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After the recent ban on TikTok by the government, several alternative short-video sharing services have seen a rise in their following. One such application is Roposo, a video creation and sharing app, available in 12 Indian languages. Riding on the ‘Made in India’ advantage, it saw a surge of 22 million in its user base in merely two days after the TikTok ban. MyGovIndia has also joined the platform to connect with Indian audiences and Indian achievers such as Babita Phogat and Sangram Singh have also collaborated with Roposo in the past. However, the platform has recently found itself in a legal tussle with T-Series. Earlier this month, it had received copyright infringement notices from T-series wherein the company president Neeraj Kalyan had stated that apps such as Roposo were “habitually infringing music content” and “blatantly infringing our copyright”. T-Series has now filed a suit for permanent injunction before the Delhi High Court to stop Roposo from using its copyrighted content. In an order, the court agreed to the defendant’s request to grant them two days time to sit with the plaintiff and ensure legal compliances. In this piece, I analyse the legal issues surrounding the development.
Features of the Application
In order to understand the legal implications, it is essential to have an overview of the features of the app. While I have not personally used the app, based on Google searches and some YouTube videos, there are two particular features that are of relevance. First, the app provides an option to ‘collaborate’ which in turn has two options wherein users can take the audio from a video posted by any user and use it in their videos or they can mix and match to create a form of duet video. This feature essentially works on the premise of using the content posted by other users which might or might not have infringing content. The second feature is the creation of a music library from which users can not only use music stored within their phones but they can also choose from a curated list of songs to add to their videos. From the recent reviews on Play Store, it appears that Roposo has removed both these features subsequent to the order, at least for the time being.
Does Roposo Qualify as an Intermediary?
As Divij has examined in detail earlier, under Section 2(1)(w) of the Information Technology Act an intermediary is defined with respect to those “particular electronic records” which it acts upon “on behalf of another person”. Accordingly, so far as the ‘collaborate’ feature is concerned, the platform is merely hosting content posted by other users without any personal involvement and would hence qualify as an intermediary. However, as far as the music library is concerned, even if the curated list might be created using songs from the phones of various users, the same is not done ‘on behalf of’ them. It is, arguably, a personally conducted act and, hence, it would be difficult to consider the platform as an intermediary for the music library feature. This appears to be the case from Roposo’s admission before the court it “created a music library which contain popular music including to which the plaintiff had the copyright” and had “taken down substantial portion of the music library, extracting and effects tools, which allegedly infringed the plaintiff’s copyright” after T-Series’ notice. This would be strengthened if T-Series’ claim is true that even the rights management information of these copyrighted songs has been removed by Roposo in its music library. In such a scenario, the creation of the music library, as vividly explained by Ameet Datta, requires obtaining several licenses from rights holders, with major players such as T-Series, Saregama, and IPRS. In the absence of such adequate licenses, Roposo appears to be prima facie infringing the copyright of the rights holders through its music library feature.
Can Roposo Claim Safe Harbour Protection?
The question that now remains is whether safe harbour protection could be claimed with regards to the collaborate feature for which Roposo acts as an intermediary. While it might be argued that Section 81 of the Information Technology Act makes safe harbour exemptions inapplicable to copyright infringements, as explained by Divij here and here, the courts have held to the contrary. Hence, protection under Section 79 can be claimed provided that it is not hit by Section 79(3). Section 79(3) entails absence of “actual knowledge” on the part of the intermediary and that the intermediary should not have “conspired or abetted or aided or induced” the unlawful act. The Delhi High Court in MySpace v. Super Cassettes Industries has held ‘actual knowledge’ to mean compliance of takedown notices which isn’t at issue in the instant dispute. On the second point, the Delhi High Court in Christian Loubatin v. Nakul Bajaj has held that the standard of having “conspired or abetted or aided or induced” requires the intermediary to be an “active participant” in the infringement. It appears difficult to see if such threshold would be met solely by providing a platform where users have the option to collaborate and use each others’ tunes. Hence, arguably Roposo could claim safe harbour protection for the collaboration feature.
Fair Dealing
In case the previous prong is held against Roposo and it is denied safe harbour protection, it is interesting to note whether it could adopt the defence of fair dealing as provided in Section 52(1)(a) of the Copyright Act in relation to both the ‘collaborate’ feature and the music library. Anupriya had recently argued that video-sharing platforms could possibly be protected under the fair dealing provision due to the transformative nature of the use. While I agree with her analysis, I must add an important caveat. Her analysis is aptly applicable to the ‘collaborate’ feature where the users are making short videos of transformative nature, even if with some commercial motive. However, this argument does not extend to the creation of a dedicated music library on part of the platform. This action by the platform falls foul of all the factors of the four-factor test in that the use is not transformative, it is for a commercial purpose, the nature of the work is creative as against factual, the entirety of the songs are part of the library, and it has a negative effect on the market of the work.
Conclusion
While Roposo has always claimed to be “ethical” and “clean” in terms of their serious efforts concerning content moderation, it appears that similar diligence hasn’t been shown in their copyright efforts as they find themselves in slightly shaky waters. Although T-Series have gone on the extent of calling Roposo as “music pirates” and “a matter of shame” for its investors, they have clearly stated that they are “always open to license” their content. Notably, Sharechat, after similar infringement claims by T-Series, recently inked a licensing deal with it. With the growing monetary value of Roposo, through over 90 million downloads and campaigns featuring celebrities such as Amol Parashar, it appears that it will follow a similar path and enter into a licensing deal. If such a deal is not entered into, as against Roposo’s tagline of “The world is watching”, T-Series would probably be watching them in court.
As a parting aside, these onerous licensing requirements have a considerable impact on the user generated content (‘UGC’) potential that TikTok had started opening up in India. While Anupriya highlighted their impact on cultural production and free speech, particularly for the marginalised, there is also the commercial angle to it. TikTok had opened up UGC as an innovative marketing strategy for brands in India, particularly for connecting with Gen Z users which prefer what is known as “S-I-N-C (Short- form, Influencer Driven, Native and Co-Created)” campaigns. However, these licensing obligations, with major players such as T-Series charging substantial royalties, would end up reducing the Indian UGC market to only a select few major players. Moreover, the Indian alternatives with lesser economies of scale might offset these costs by reducing the revenues shared with UGC content creators. This would, in turn, lead to the same remuneration disparities that TikTok was plagued with which Indian alternatives are hoped to resolve. To end with a fun fact, it is interesting that Gulshan Kumar allegedly started off by selling pirated Bollywood music before starting T-Series and now T-Series is earning around 70% of its revenues from online royalties.