Alternative to Tik Tok: IP challenges

Tik Tok was a world sensation. It had launched itself world-wide in 2016 after merging with its former rival Musically. Its following was no less in India. But as the conditions between China and India got tensed, steps were taken to ensure the benefit of National Security. One such step was banning the 59 Chinese Apps, including Tik Tok. Tik Tok was a unique mix of innumerable audios. For gathering all these audios an equal number of licenses are also required. This is a major challenge in the pose for every big player which is planning to give the masses a replacement for this app.

Introduction

Tik Tok, known in China as Douyin is a Chinese short video making and sharing app that was created by Byte Dance Company. Videos ranging from 3 seconds to 15 seconds and short looping videos of 3-60 seconds could be created on this platform. After its merger with its biggest rival, in September 2016 Tik Tok was launched worldwide.

The lip sync video making formats was a mass appealer. People who had never even operated such apps were now acting in front of the camera. With new filters cropping up every day, new virtual effects being added to the app, and challenges being introduced, by the end of July 2020, Tik Tok had reported 700 million users worldwide, after only 4 years in the world market. By that time, it had even passed the record of 2 billion global downloads[1].

Tik Tok was a major success in India too. Indians were delighted in acting in front of the camera, with a famous dialogue of a hit-single playing in the background. Tik Tok stars were now delf-proclaimed famous personalities. But as the situation between India and China tensed, the Indian Government took the step of banning 59 Chinese mobile apps. Tik Tok was one of them. This sudden removal of Tik Tok from the Indian Smart Phones now raises the question that what might be an ideal replacement to this mass addiction of 100 million Indians and what challenges are to be faced for finding an alternative to Tik Tok.

Tik Tok and India

On June 30, 2020, the Indian Government had banned 59 Chinese mobile apps. These lists of apps included Tik Tok, Helo, Likee, Cam Scanner, Vigo video, Club Factory, Shien, Clash of Kings, and 51 more apps. The reason cited by the government was for security reasons. The statement released was that these apps were,

‘Prejudicial to sovereignty and integrity of India, defense of India, the security of the state and public order’

But looking at the situation of those times, the following reasons could be drawn behind the specific ban of the app Tik Tok:

  1. Border clash with the Chinese troops over an ill-defined 3440 km long border. The two- nations are now compelling to build infrastructure along the border, also known as the Line of Actual Control.
  2. The data taken by the app was being illegally and secretly collected from the user’s phone when the app was being downloaded. It was said letting citizens use the app was a threat to National Security.
  3. A third reason, though not official which was evident from the situation was a wide-spread hatred against the cringe content which was frequently uploaded on the app. Many politicians had shown disregard towards it and even Madras High Court had banned it in 2019 for a short period. Added to that was the infamous war between YouTubers and Tik Tokers.

What was Tik Tok’s stance on this?

Nikhil Gandhi, Tik Tok Head, India had released an official statement after the news of the ban in which he had pondered upon the following points:

  • Tik Tok had been complying with all the laws of the nation. The data privacy and security requirements were under Indian Laws.
  • No information was shared with any foreign governments, including the Chinese Government.
  • Even if in the future they were requested to do the same, they won’t do so.
  • For them, the privacy and integrity of the users are of utmost importance.
  • They had democratized the internet by making the app available in 14 different languages. It was a gathering for in-numerable artists, singers, storytellers, educators, and performers.

But what was it that made Tik Tok a mass appealer?

Indians considered it to be the perfect time-pass activity. Opening it once meant that for hours one could scroll it. People could now be delivering dialogues or dancing to their favorite creations, just by using their smartphones. They could now get the feel of that of an actor or actress. Many even found fame through the app. These self-proclaimed Tik Tok stars were now famous personalities amongst the masses. Brands would use these stars to advertise their products and gather consumers for them. Artists would use the app to encourage people to create videos on their newly released songs and many actors and actresses who are no more an active part of the industry would get their fair share of fame and attention by just uploading 30 seconds of video a day. But it isn’t just the app which was a mass appealer. It was also an IP marvel.

Tik Tok: An IP Marvel

Tik Tok worked on two sets of an interface:

Background sound(audio) library + Users who will perform on those audios

Users who will perform

There was naturally an abundance in the number of users who would perform on the audios provided to them. Since the audios in the background are not created by the users, they do not come under the category of User Generated Content (UGC). This means that the app can never use the safe harbor of not getting blamed for the creation of its users. To take the credibility of these creations, a number of licenses are to be signed.

Background sound library

This is where the main challenge starts for Tik Tok. For every audio either in the form of song, dialogue, sound effects which was to be made available on the app. A number of licenses have to be created to re-publish them on the app.

The licenses which were to be gathered by Tik Tok to create their huge audio library are:

  • Synch license
  • Publishing license
  • Mechanical license

Tik Tok was able to gather such a huge audio library in just a single go by absorbing its former competitor Musically. Almost 8000 music licensing deals were gathered by Tik Tok from Musically.

Music licenses and related laws

Music licenses is a broad term for all the license which are prevalent in the music industry. Licensing was introduced in India after the 2012 amendment in the Indian Copyright Act. Both the houses of the Parliament had passed these amendments to comply with international treaties of the World Intellectual Property Organisation(WIPO).[2]

The Copyright Act now gave exclusive rights to the work of an author to store it by any medium. The same is included exclusive rights to reproduce a work, copying a work.[3]

Authors were given the right to equitable remuneration, which meant that were to be rewarded on an equitable basis from all exploitations of their works[4]. The author could resign them this right only to their heirs or a copyright society[5].

Now explaining the various licenses prevalent in the music industry, for all of the licenses to be made, one has to approach the Indian Performing Rights Society (IPRS)[6]. Members of IPRS are ensured that they are provided with benefits like administrative and legal expertise in licensing and collective matching and distributing royalties gained from the use of their works.

Licenses which are monitored by IPRS, some of those licenses which are prevalent in the music industry are:

  • Synch License: This license is used when already created music is synched with a new visual media. Such kinds of licenses are availed by advertising agencies, film studios, and TV commercial houses.
  • Publishing License: such kinds of licenses are used to stream copyrighted content on the internet. One type of publishing license is the Public Performance License. It is issued for an artist copyrighted work and is used for broadcasting that works, either on TV, radio, or the internet.
  • Mechanical license: In this license, an artist’s copyrighted work under an agreement is taken for distribution or recreation. The artists are paid under this agreement for recreating or distributing their original work. Such a license is necessary even if there only slight changes made to the original composition.

The above-mentioned license can be availed by registering on the official IPR website, verification, and successful payment of the government fees. After this, an IPRS license is issued along with an introduction letter.

For breaching the exclusive rights of a creator, the following penalties can be levied on the offender:

  • Detention ranging from 6 months- 3 years
  • Payment of a fine not less than Rs. 50, 000, and not more than Rs. 200,000

For infringing the exclusive rights of a creator, the following penalties can be levied on the offender:

  • Detention ranging from 1-3 years
  • Fine of Rs. 100,00- Rs. 200,000

Challenges to be faced for finding an ideal replacement for Tik Tok

Tik Tok had acquired almost 8000 music licensing deals by absorbing former competitor Musically, by signing an $800 million deal in 2016. In Indian rupees, it’s a Rs. 5800 crore deal. Only a big player could be able to invest in such an app. Such a company should come with huge investments to meet the requirement of buying such large-scale and expensive music licenses. Buying so many licenses, and creating a user-friendly app which would not only allow them to experiment with their creativity but would also give them an interesting and unique platform for time-pass, is what is necessary to be done by any ideal replacer.

Currently, it’s an ideal time for a big player to invest in such a lip-synching video making app. Since the Indian population offered 100 million users to Tik-Tok, an ideal replacement could be offered to these users. It’s a golden opportunity and many big names like Google and Facebook are ideal investors in the current scenario.

Case Laws

  • In the case of India TV Independent News Service v. Yashraj Films Pvt. Ltd.[7] to determine a fair dealing, the four-factor test was used, under Section 52(1)(a) of the Indian Copyright Act. It has held that for a work to be non-infringing under 52(1)(a) it should be new work and it includes criticism, review which should be interpreted liberally.
  • In R. G. Anand v. M/S. Delux Films[8] it was held that when a work is represented and treated differently so that the second work becomes a new one separate from the previous one, it is not a violation of copyrights.
  • In the case of Mohendra Chundra Nath Ghosh and Ors. v. Emperor[9] the meaning of copy was contemplated. It was held that copy can be defined as that which comes so near to the original that it suggests the original composition to the mind of the observer. 

Conclusion

Thus, for any new company to come up with a replacement for Tik Tok, it is an ideal time. In fact, many big names are already in the process of giving the masses a replacement to it. Facebook had signed a global deal with music label Saregama, soon after the ban on Tik Tok, and introduced Reels and music stickers for stories on Facebook and Instagram. It also signed a deal with IPRS to license music for the same.

Even Reliance Jio is a well-suited investor. Its Jio Saavn already has the required licensing deals along with a huge investment to enter the market. The mega music company T-Series can also enter the market. It carries 35% of Indian Music Market labels and has almost 200,000 songs under it. A big-fat deal can be signed with it to get access to all those songs.

References

http://14.139.60.114:8080/jspui/bitstream/123456789/15514/11/Salient%20Features%20of%20Copyright%20Amendment%20ACT%2C2012%20%2830-43%29.pdf

https://www.deccanherald.com/brandspot/pr-spot/apna-time-aagayaa-an-indian-tiktok-rival-will-also-need-to-navigate-the-music-industry-858226.html

https://www.bbc.co.uk/newsround/53266068

https://www.wipo.int/edocs/lexdocs/laws/en/in/in066en.pdf

https://www.myadvo.in/blog/public-performance-license

Frequently Asked Questions (FAQs)

  • What is Tik Tok?

Ans. It is a lip-synching video making app created by Byte Dance company, based in China.

  • Why was Tik Tok banned in India?

Ans. Tik Tok along with other 58 Chinese apps was banned citing security reasons. The Indian Government had released that banning these apps was necessary as they were prejudicial to the sovereignty and integrity of India, defense of India, the security of the State and public order.

  • What kinds of licenses are to be availed for creating an app like Tik Tok?

Ans. For creating an app like Tik Tok, three types of licenses are to be availed. Synching license, for creating the lip-synch videos, Publishing license, for broadcasting these videos on the internet, and a Mechanical License which would give the right to reproduce and distribute an original creation.

  • What is IPRS?

Ans. IPRS is the Indian Performing Rights Society ensures that the works of a creator are registered with it. All licenses to be made have to go through IPRS.

  • When were licensing introduced in Copyright Act?

Ans. Licensing was introduced in the Copyright Act by the amendment in 2012. The amendments were made to the act in order to comply with the treaties of the World Intellectual Property Organisation.


[1] Official data released by Tik Tok in 2020.

[2] India had joined WIPO in 1975

[3] Section 14(e) of the Copyright Act

[4] Section 14 of the Copyright Act

[5] Section 33 of the Copyright Act defines a copyright society as a registered collective administration society of authors and owners.

[6] Members of this society are the artists who register their

[7] In Delhi High Court on 21st August 2012

[8] 1978 AIR 1613

[9] 1928 AIR Cal 359

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