Artist Says Seller Ripped Off His Work & Sold on Flipkart; Whose Liability is It?

Flipkart must take copyright infringement more seriously. Simply because no one likes their ideas or art being ripped off for profits.
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must take copyright infringement more seriously. Simply because no one likes their ideas or art being ripped off for profits. 

Nitin Rao Kumblekar, an artist has alleged that one of the sellers had taken his artwork and used it on a mobile phone cover being sold on Flipkart.

Kumblekar wrote yesterday

I contacted the vendor for the Flipkart and asked him to take it down from there. I waited for 2 days but it was still there in Flipkart.

He waited for 2 days and nothing happened. He then wrote to Flipkart’s customer support and asked them to help them remove his art work. After a day, he was then asked to write to another e-mail ID. After 5 days, the company tells him to write to customer support.

The seller allegedly ripped off artwork created by Kumblekar.
The seller allegedly ripped off artwork created by Kumblekar.

Kumblekar then threatened to sue. And to his surprise, got a message asking him to provide the copyright certificate!

Apparently, the seller had asked Flipkart to remove that item as well. But Flipkart has not done that yet and Kumblekar is going to court.

To be fair, Flipkart has a process to report listing violations. It is called Flipkart Infringement Verification so IP owners can “report on listings that infringe their rights.”

According to the FIV document,

Flipkart does not and cannot verify that Sellers have the right or ability to sell or distribute their listed products. However, Flipkart is committed to removing infringing or unlicensed products once an authorized representative of the rights owner properly reports them to Flipkart.

Upon signing up to become an FIV member on Flipkart, the company promises the following

  1. Rapid response by Flipkart in ending listings reported by you (as the Verified Rights Owner) as allegedly infringing

  2. Dedicated priority email queues for reporting alleged infringements

  3. The ability to obtain identifying information about Flipkart’s users’

So the process exists, was it just a communication gap that led to all this mess?

Whose liability is it?

In 2008, India amended its IT act of 2000 to set up a ‘notice & takedown’ mechanism for intermediary liability. According to rules notified in 2011, once the intermediary (in this case Flipkart) is notified of a violation, they are required to remove the content within 36 hours. In between, the intermediary has the option to verify the legality of the complaint if it wants to keep the listing.

What Flipkart did, was to ask for a copyright certificate from the artist in this case, so that it could keep the listing. That’s largely okay, but for the fact that the company didn’t act within 36 hours. There are a few more nuances for this particular case, but largely, it’s a classic example which cries for more clarity on intermediary liability in India.

As this study (pdf) by CIS points out, most intermediaries end up over complying, by taking down the content without even checking for the authenticity of the claim because they fear prosecution. There are chilling effects to this kind of a setup. The flipside in this case, is that it may not be possible or even feasible for an artist to take out a copyright certificate for each and every piece of art they create. Thoughts?

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