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
- Public display
- Publicly perform
- 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
In another case of Nicklen v. Sinclair Broadcast Group, Inc.
, the court held
"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
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,
[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
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
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
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.
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.
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.
- Copyright Act 1957, s 2.
- Bennett Coleman vs WhatsApp Inc. & Ors.  CS (COMM) 232/2021
- Singular, "Deep Linking" >https://www.singular.net/glossary/deep-linking/,
accessed 26 September 2022.
- Perfect 10, Inc. vs. Amazon.com Inc.  487 F.3d 701 (9th Cir. 2007).
- Weintraub Tobin, Is The Server Test Ready for a Reboot? (JDSUPRA, 5 August
> accessed 27 September 2022.
- Nicklen v. Sinclair Broadcast Group  Inc., 20-cv-10300 (S.D.N.Y. July
- Alexis Hunley, et al vs. Instagram, LLC  21-cv-03778-CRB (N.D. Cal.
Sep. 17, 2021).
- American Broadcasting Cos. vs. Aereo  573 U.S. 431.
Please Drop Your Comments