tl;dr
There has been a rise in instances of takedown of content owned by independent news media companies, citizen journalists, current affairs bloggers and satirists on the grounds of copyright violations by YouTube. These takedowns are usually a result of copyright complaints received from big media houses. This is a misuse of intellectual property law by weaponising copyrights to stifle political dissent and fair critique. We write to Google India highlighting that action taken upon such complaints is based on an incorrect application of copyright law and YouTube’s policies and, therefore, threatens press freedom and is in violation of the constitutional rights of digital media reporters and its audience.
What motivated us to write the letter?
According to recent news reports, YouTube has frozen Newslaundry’s channel on its platform after receiving as many as 50 reports of copyright violation and take down requests from the India Today group, within a span of two weeks. As on the date of writing this blog, Newslaundry has been unable to upload any current affairs video content on its YouTube channel since September 29, 2021. These facts, at first glance, reveal an aggressive attempt to attack independent journalism.
You’ve seen several channels on YouTube that report on reporting. The debates and news that are broadcast on primetime national television shape public opinion and can bring sharp focus to a particular issue to spark national debate (think CAA/NRC protests) or even “bury” the real news by providing a sustained distraction (think Bollywood). As such, the news itself is news. And the news must be covered. Several YouTube channels discuss what is being shown on primetime news channels as a way of distracting from other issues prevailing in the country. To do this, they must show you the clips of news shows and debates that air on television. This is not a violation of copyright law in any way, shape or form. It is legitimate news reporting. And it even finds a specific exemption under Indian and US copyright laws.
What is the bigger picture? Misuse of Copyright Law
Unfortunately, large media houses have found that social media platforms, particularly YouTube, are very quick to take down content, which has even a hint of copyrighted material. As a result, they have found that “complaint bombing” a particular video or channel that is critical of their work, prompts YouTube to actually take that video down! This time, YouTube has completely frozen Newslaundry’s channel.
But that’s not legally permissible. They’re based on an incorrect application of copyright law and YouTube’s policies. This is a problem because it not only threatens the freedom of the press at large, but is also in violation of the constitutional rights of digital media reporters and its audience.
YouTube, in its copyright rules and policies, states that it abides by the standards of fair use, which it states varies from country to country and from case to case, and yet curiously 99.99%of the content removed by Google relates to copyright and trademark violations.
The law on fair dealing in India has been codified under S. 52 of the Indian Copyright Act, 1957, which states a fair dealing with any work for the purpose of the reporting of current events and current affairs shall not constitute an infringement of copyright. The Delhi High Court even held that Section 52 of the Copyright Act is founded upon Article 19(1)(a) of the Constitution of India. Therefore, any action disallowing a content creator from making fair use of a copyrightable work impacts the constitutional rights of the user as well. This also corresponds with the fair use rights under US copyright law and the Digital Millennium Copyright Act of 1998 regime.
Misuse of copyright law is hurting the freedom of speech and expression
We have to view this seriously because the trend of “complaint bombing” is an attack on the fourth pillar of democracy and independent journalism. The independent news media houses that create content and broadcast it through their YouTube channels, have a fundamental right to freedom of speech and expression, and to carry on their business and profession. And you have a fundamental right to access this information through the medium of the internet.
Often, their YouTube channels are their primary means to broadcast their news reportage, and suspension of access to YouTube strips the news platform, as well as the audience of such platforms, of their fundamental rights. Using copyright law to takedown journalistic critique is an overreach and misuse of the law.
In several instances, legitimate news reportage is taken down, and even entire channels are blocked, without affording an opportunity of hearing to such independent news media channels. This is what weaponisation of intellectual property law looks like. And it is done to attack and stifle political dissent and fair critique. Copyright jurisprudence was developed to protect the rights and interests of authors, artists and creators, not to intimidate and harass them.
So what can Google India do?
In our representation to Google India, we requested that as a significant social media intermediary, YouTube must devise a thorough mechanism, to conduct its own due diligence upon receipt of takedown requests through its Webform before restricting any account or removing any content from its platform, especially, in relation to media organisations.
The mechanism must abide by the Santa Clara Principles, and must include a provision that confers upon media organisations/individuals a right of hearing before their content is taken down or account access is disabled.
Today, YouTube is one of few companies which could become one of the largest stakeholders in furthering a free and democratic society. YouTube’s commitment towards protection of the freedom of speech and expression of the press can advance and protect human rights.
But this misuse of the law by large media houses, with YouTube complicity, is not just an attack on the satirist. It is an attack on the readers and viewers of satire as well. It restricts what news we have access to. It is an attempt to shape our opinion in a particular manner, by restricting what facts and opinions we are exposed to. It affects our fundamental rights. IFF will continue to take this up with social media platforms in a sustained manner.
Important Documents
- IFF’s representation to Google India dated October 18, 2021 (link)
- DMCA Infringements: Much Ado About Copying? (link)
- Big Tech releases its transparency reports in compliance with the IT Rules: Here’s what we found (link)
- Social media giants have released the second round of 'Compliance Reports'. We’ve analysed the data (link)