Copyright is the intellectual property rights to reproduce copies of the work in which copyright subsists. The work consists of acts concerning literary, dramatic, music and artistic work, cinematographic film, sound recording and computer databases.[i] Copyright serves a two-fold interest. On one hand, it provides the creators the right to their creativity and on the other hand, it protects the right of society at large. The Copyright Act provides five exclusive rights to the copyright owner and these are: Right to

1. Reproduce
2. Distribute
3. Public display
4. Publicly perform
5. Create derivatives of the work

Recently, when there is rapid growth in technology, the importance of copyright has also increased enormously. For instance, in the case of Bennett Coleman v. WhatsApp Inc. & Ors.[ii], the court ordered an interim injunction restraining WhatsApp and Telegram as they were distributing the e-newspaper of Times of India for free.

Embedding: A tool for Copyright infringement?

Embedding refers to the integration of links, blog posts, articles, images, gifs and videos on an original post as its own part to increase engagement. This process of embedding is known as inline linking. Another form is deep linking, where the app works like a web allowing the users to click on a link given in the web, email or SMS or in another app (like Instagram, Facebook or Twitter) directly into some other page which is deep within it.[iii] This process is considered violative of Copyright.

The embedding process takes into the account server test, which was first dealt in the case of Perfect 10, Inc. vs. Amazon.com Inc.[iv] In this case the Ninth Circuit created the "Server Rule" for website displays according to which a website does not legally display an image which is copyrighted if that website does not publish the work from a copy of that image stored in their service. In other words, one can be said to commit copyright infringement if he/she copied an image and placed it on their website but in a situation where they merely provided a link for that work then it will not constitute infringement[v]. On this basis, the court held that because the media companies are not storing the files on their actual servers, they won't be liable for direct copyright infringement.

In another case of Nicklen v. Sinclair Broadcast Group, Inc., the court held that:
"The server rule is contrary to the text and legislative history of the Copyright Act. . . . The Ninth Circuit's approach, under which no display is possible unless the alleged infringer has also stored a copy of the work on the infringer's computer, makes the display right merely a subset of the reproduction right."[vi]

Many courts have also dismissed this test for the reason that it could lead to creative and commercial loss to the owner of the copyright and also to unlawful exploitation. Recently in the case of Alexis Hunley, et al vs. Instagram, LLC[vii], the United States District Northern District of California tried to end this embedding process.

In this case, the plaintiffs Matthew Scott Brauer and Alexis Hunley filed a claim against Instagram for copyright infringement as their exclusive right to publish and display the photographs and videos posted by them was infringed by a third-party website without obtaining any licence from the plaintiffs. The contention made by them was that Instagram will be secondarily liable for the direct infringement of the display by the third party.

The court in September 2021, relied on the Perfect 10 judgment and held that since the website server has not stored the image on its own server then it will not constitute a direct infringement. The court further relied on the judgment of American Broadcasting Cos. vs. Aereo[viii], Inc., which explains the application of the server test. The court also invited the plaintiffs to raise any objections regarding the Ninth Circuit.

Later in June 2022, the plaintiffs filed an appeal to review the applicability of the server test and supported their contention with the help of Sinclair's case in which the court noted that since the terms of Instagram were ambiguous regarding the embedding by the third party, the server test will not be followed. The plaintiffs argued that the district court went beyond the application of server test and applied it to the website publishers rather than constraining it to the situation relating to search engines.

Applicability of Server Test in Indian Jurisdiction:

There is no provision under the Indian Copyright Act which provides for the applicability of Server Test or embedding. Sections 14 and 51 of the Act provide for copyright infringement and the construction of the words makes it clear that the embedding will not be construed as copyright infringement as the embedding sites do not publish any copyrighted work rather it only provides a link through inline linking.

In the case of Super Cassettes Industries Ltd., the Delhi High Court issued notice to the defendant for infringement of copyright caused by the unlicensed streaming of the copyrighted work by "T-Series". In another case of Naukari.com vs. Bixiee.com, both the parties indulged in displaying job opportunities on their web page but later the plaintiff started providing deep links which take the user to visit a completely new page and bypass the plaintiff's page.

The Delhi High Court applied the server test and made Bixiee.com copyright infringement. Therefore, it can be said there is a chance for prospective applicability of copyright infringement by embedding by the Indian Courts.

Conclusion:
The intellectual property rights relating to copyright involve a lot of transactions by way of embedding and it is not possible to keep an eye on every happening on the internet. Therefore, it becomes important to reform the Copyright Act accordingly with the explicit words of embedding and deep-linking with the rules that make a person liable for embedding.

Similarly, it should be mandated by the websites like Instagram, Facebook and other media websites to expressly obtain a licence from the original creator of the work before posting it to their page or communicating it by embedding, it to make sure that the interest of the creator has been protected and they are getting encouraged to make further creation as embedding also leads to monetary loss.

The blind applicability of Server Test leads to copyright infringement, It should be considered only when the situation is within its limit i.e. dealing with the search engines and should not be made applicable to media websites.

End-Notes:

1. Copyright Act 1957, s 2.
2. Bennett Coleman vs WhatsApp Inc. & Ors. [2021] CS (COMM) 232/2021
3. Singular, "Deep Linking" >https://www.singular.net/glossary/deep-linking/, accessed 26 September 2022.
4. Perfect 10, Inc. vs. Amazon.com Inc. [2007] 487 F.3d 701 (9th Cir. 2007).
5. Weintraub Tobin, Is The Server Test Ready for a Reboot? (JDSUPRA, 5 August 2022) <https://www.jdsupra.com/legalnews/is-the-server-test-ready-for-a-reboot-1600621/ > accessed 27 September 2022.
6. Nicklen v. Sinclair Broadcast Group [2021] Inc., 20-cv-10300 (S.D.N.Y. July 30, 2021).
7. Alexis Hunley, et al vs. Instagram, LLC [2021] 21-cv-03778-CRB (N.D. Cal. Sep. 17, 2021).
8. American Broadcasting Cos. vs. Aereo [2014] 573 U.S. 431.