Indian courts can restrain YouTube from taking down a channel for copyright strike: Experts

YouTube and copyright strike

Courts in India have the power and jurisdiction to restrain YouTube from taking down on account of copyright strikes say experts.

Google owns the video streaming platform YouTube. It uses the 'copyright strike' to manage instances of copyright infringement. If a user gets three copyright strikes in 90 days, the user's account, along with any associated channels, is terminated. This results in the user losing the entire subscriber base built over the years.

“Indian courts have the power to grant injunctive relief against YouTube, preventing YouTube from taking down a channel as per its three-strike copyright system, as long as there is a prima facie case and a balance of convenience and irreparable loss that cannot be compensated in terms of money,” said Manmeet Singh, Senior Partner at Saraf and Partners.

Recently, Associate Broadcasting Limited, which operates television and digital channel TV9, filed a suit for an injunction against tech giant Google over a threat of their YouTube channels being taken down over copyright strikes. Between 2020 and 2023, the TV9 YouTube channel disseminated news about various events from across the world, including hurricanes, floods, and other natural and manmade disasters, including the Gaza war. However, TV9 was issued a copyright strike, alleging that some footage they used belonged to a party in the US.

After the copyright strike, the videos that allegedly contained infringing materials were taken down. TV9 told the court that the removal of their channel from YouTube will cause them irretrievable loss as they will lose their subscriber base built over the years.

When do courts grant injunction?

To grant an injunction against a channel being taken down, the courts must be convinced that the owner of the YouTube channel has no other option. The court must also be convinced that there is a strong case in favour of the owner of the YouTube channel and that not granting an injunction will cause irreparable damage.

Manmeet Kaur, Partner at Karanjawala & Co., said, “Since Alphabet Inc., along with subsidiaries such as Google LLC, and YouTube operate in India, Indian courts have territorial jurisdiction to issue directions, i.e., restrain YouTube from taking down a channel for a copyright strike if the aggrieved party can prove that YouTube has frivolously instituted the ‘strikes’ and the said act has affected its rights.”

Under which law can court grant injunction?

Under such circumstances, a YouTube channel owner could claim that they used the footage on a fair use basis. Fair use is a concept in copyright law that permits a party to use copyrighted work without the copyright owner's permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

Section 52 of the Copyright Act lays down parameters for seeking exemption from infringement based on fair use.

Singh said, "To contest such copyright strikes and prevent the consequent taking down, the channel owner would have to demonstrate that it was covered by the fair dealing exceptions provided under Section 52 of the Indian Copyright Act, 1957 (such as review, criticism of a copyrighted work, etc.) in support of its claim before the court.

Noting that Indian copyright law is a strong law, Sudarshan Singh Shekhawat, Founder, Shekhawat Law, said, “Infringing content on any media, be it print or electronic, is actionable and can be restrained.”

Vikramjeet Singh, Partner, BTG Advaya, said, “The copyright strike concept is under Indian copyright law. But the law at the core of channel suspension is contract law and not consumer law since this is likely a free service.".

If the owner of a YouTube channel believes that their channel is being taken down unfairly, they can move the court against the video-sharing platform for violation of the terms of the contract.

Subhash Bhutoria, founder and principal at LAW SB, said, “Removal of a channel can result in financial and reputational losses and hence be treated as a tortious liability. Since YouTube is the primary platform for sharing and streaming one's content, any abuse of its dominant position can be questioned under competition and even consumer protection laws.”

An abuse of dominance complaint is lodged with the Competition Commission of India (CCI), India’s anti-trust regulator. If the regulator finds that a company is indeed abusing its dominant position, it imposes a penalty and asks it to cease and desist from taking such actions. An affected party could also be awarded compensation. Google has already been penalised by the CCI in 2022, wherein it imposed a penalty close to Rs 2,500 crore. Since YouTube is a dominant video streaming platform, if it takes down a channel arbitrarily, an affected party could also approach CCI.