PODCASTS AND INTELLECTUAL PROPERTY RIGHTS WITH PODCASTS
In the last few years, podcasts have become very popular for creating content for an online audience. A podcast is a digital audio-video file which can have a single episode or multiple episodes that is available on the internet for users to watch and listen. They can either be only audio or audio-video. They can also be referred to as blogs and can be downloaded to listen at any time. Any person can make a podcast to grow a community, from individuals and companies to TV channels. It can be called the modern day radio without the time restrictions and a variety of options to choose from. There are various streaming services available with millions of podcasts but the legal issues surrounding podcasts have not been explored fully. Not many people know how to protect their podcasts and why a podcast should be protected.
A creator must always research about how to protect their work, especially in cases where they monetize from it. Intellectual property means any original creation of the human intellect and IP rights are the legal rights given to a creator to protect his creation. A podcast has different elements that can be protected separately with trademark, copyright and other contract related protection.
To protect a creation, the first step is to establish who the owner of the work is. In the case of podcasts, a person who created it might not be the owner if he has made a podcast as an employee of a company. It is also possible that a creator has a team comprising producers, a co-host, or guests invited for the podcast in which case ambiguity might arise while deciding the ownership. An agreement with your co-host or any advertisements that run on your podcast should clearly define who owns what part of the podcast.
CONSIGNED INTELLECTUAL PROPERTY RIGHTS WITH POSCASTS
Hence after deciding the ownership of who-owns-what, then comes the next step of protecting the creation. The two major intellectual property rights associated with podcasts are-
A trademark distinguishes between the goods and services of one person with another with the objective of preventing confusion between the consumers and promoting fair competition. It is an identification mark for consumers to know what-belongs-to-whom. Getting a trademark for your podcast will stop others from using the same name and you will have a legal right against anyone who tries to copy or use the trademarked name in order to gain profits from your goodwill. Your brand’s logo and tagline can also be trademarked.A trademark registration is also useful if the podcast is made into a movie or a TV show.
In India, the trademark for podcast can be registered under Class 41 (Education, Entertainment Activities).
Copyright protection refers to the protection is extended to literary, dramatic, musical and artistic works, including sound recordings, films, broadcast, and more. It is the protection of expression of an idea and prohibits others from reproducing, performing or publishing your work.There can be different copyrightable elements in your podcast, like recording of the podcast, the music bites are used and the content that you create. If a company produces a podcast, they have copyright over the recording. If you are individual who created his own content and records podcast, you can claim ownership of both and protect them under copyright.A popular way of protecting your copyrighted work and also allow others to use it is a Creative Commons License. The license is provided by the owner to other users letting them distribute or build on it, but in conditions that are specified by the license. There are different types (based on parameters like non-commercial, derivatives, etc.) of these licenses and the creators must make sure that they enter into one that suits their needs and expectations.
Copyright infringement is a big issue in podcasts. When the podcast is posted on the Internet, it is available to anyone, anywhere and is shared by many people. If you do not have a proper protection in place, it is seen as implied that it can be shared.
There are no specific regulations in India that deal with podcasts as it has not been explored here much and has recently started gaining traction. Even the subject of Internet broadcasting being under the scope of Copyright Act is still debatable in India.
3. Domain Name
While taking steps in protecting their creative work, the owner of the podcast should also make sure that the podcast does not infringe on any other person’s intellectual property right. While you might not register your trademark, you must choose a name that is not confused with one already in use. A trademark search is the best way to find it. You can also search for names on streaming services such as Apple Podcasts, Spotify etc. Another issue that arises with podcasts is when copyrighted music is used in them. It is not allowed to use copyrighted music and you will end up infringing the right of the owner of that song. Major Podcast distributaries like Apple and Spotify would not permit you to use copyrighted music unless you have a license from the owner. The only way to use music without permission is the one which is in public domain and it differs from country to country and also depends on the version of the song. Buying rights to play a song in your podcast is a safe option to avoid legal challenges. Neither the exception of fair use works all the time nor the excuse of not using the music for monetizing, and depends on the facts of each case. This is not only limited to copyrighted music, but also any performance or public display rights which means that you should not infringe on these rights of others by including any such video/audio/picture in your podcast.
With the growing popularity of podcasts, it is essential to protect your creation to stop others from infringing on your right. A podcast is a creator’s book published by himself and should not be exploited by others. The aim of protecting your creation through intellectual property is not to restrict the access but to make it available to more and more people by rewarding the owner’s creativity and a legal way to access and enjoy the content created by them. As much as protecting the podcast with IP rights is concerned, it is equally important that the podcast itself must not infringe on the IP rights of any other person’s work. The creator should also be aware if anyone is using their content without permission and immediately take legal action against such persons through damages and injunction. There is a need, if not urgent, to make Podcasting Regulations in India which might lead to change in the Copyright Act as well.