By: Tanya Mehta
I want to start this article on a somewhat personal note. I am a recent law graduate with a keen interest in the subject of intellectual property laws. Since I spend my days working and reading about copyrights, trademarks and other intellectual property laws, my eyes automatically tend to focus on words like “IP”, “copyright”, “trademark”, “infringement”, “geographical indication”, etc. (you know the drill). One such instance happened with me on a late Friday evening when I was going through the Telegram Messaging application on my mobile phone. While going through the app, under my mother’s chat, I read, “This message couldn’t be displayed on your device due to copyright infringement”. This incident made me more curious! I asked her about the contents that she sent, which would lead me to why this content was copyright protected? She then told me that some of her friends had told her about these telegram channels that have movies and shows app-exclusive. To join the gang, instead of buying a subscription to these entertainment apps (read: save money), she indulged into Telegram’s dark piracy world!
What is the deal with Telegram and Copyright infringement/Piracy?
Telegram is a Russian origin instant messaging application. It enables you to send messages to other people. But this isn’t the exciting feature that Telegram offers. Telegram also enables people to create channels for one-way communication, i.e., admin to members only. These channels can have unlimited participants!
However, the question remains, how does copyright infringement take place? These channels with huge audiences get access to one platform. The admin of such channels may upload pirated material on these platforms available on Telegram, giving access to these multiple people. Files as huge as 2 (two) GB can be quickly sent over Telegram. This feature makes it easy for these channel admins to transmit and circulate copyright-protected materials like movies, television shows, web series, e-newspapers, and even pornography! These materials can be downloaded and recirculated. Thousands of people get access to exclusive subscription content. This action accounts for not only copyright infringement but also a monetary loss to the copyright owners.
Now you must be wondering, what can Telegram do in this matter? Telegram provides encryption security. How do you expect it to distinguish between copyrighted material and other messages? It is highly difficult for Telegram to do that. But, Telegram can still be held accountable for such copyright infringement by way of vicarious liability. Even though Telegram isn’t the party circulating such copyright-protected content, it has intermediary or vicarious liability. This is because Telegram does not have any filter for stopping the infringement.
Telegram has been under the radar for quite some time. It has made headlines for pornographic and child abusive content circulated on the messaging application. In 2019, Athena Solomon K., a student of National Law School of India University, Bengaluru, filed a petition in the Kerala High Court seeking a ban on the Russian instant messaging application. The Kerala High Court asked the Central Government to file a response for it. In another instance, in February 2020, a lawsuit was filed against Telegram in the Israeli Court. The Petitioner claimed against the distribution of copyright-protected content in Telegram’s groups. The Israeli Court held that it was Telegram’s responsibility to prevent groups on its platform from distributing content that infringes copyrights.
What has Telegram done so far for preventing IP infringement?
The FAQs on Telegram’s website about reporting copyright infringement state that complaints regarding copyright infringement can be sent via email to email@example.com. However, copyright owners or agents authorized to act on the owner’s behalf can only make such complaints. They shall not process complaints relating to private chats and groups. Abusive and pornographic content can also be reported by sending an email to firstname.lastname@example.org.
Even after having a portal for complaining about infringement and illegal content, Telegram has not been quick enough to take down such content. In recent times, Dainik Jagran sued Telegram for circulating its E-newspaper, available to readers with a valid subscription. Before filing the suit, Dainik Jagran had served notices and written emails complaining about their dilemma to Telegram. However, Telegram failed to respond to these complaints. The Court found infringement of Dainik Jagran’s copyright. Dainik Jagran was granted the ad-interim injunctions it had prayed. Telegram was directed to furnish information about the administrators and members of the channels and take down the infringing channels.
Not just Telegram, but other social media apps like Instagram, YouTube, and instant messaging apps like WhatsApp circulate several copyright-protected contents that infringe the copyright owner’s rights. There is a need to develop stricter laws for these digital intermediary platforms. This will ensure that these apps will make better efforts to avoid infringement of intellectual property laws. Recent, IT Rules, 2021 has provisions that enhance the liability of intermediaries. However, how effective it will be in its execution that the time will tell.
I was glad that Telegram had acted upon the complaint because the app-exclusive movie forwarded by mom to me was taken down. Further, this prompted me to bring this interesting article to you. Do let us know your similar experience.
Note: Views expressed here is the personal opinion of the author.
Jagran Prakashan Limited v/s. Telegram FZ LLC & Ors CS(COMM) 146/2020
Israeli district court’s order in Hebrew https://www.nevo.co.il/psika_html/mechozi/ME-20-02-24999-55.htm