What are Spotify Codes?
A Spotify code is a machine–readable code in an image that is unique to Spotify, one of the largest audio streaming and media services providers worldwide. It is a scannable tag that is similar to a QR code but is simpler and more visually appealing. These codes can be created for anything on Spotify that has a URL attached to it, be it a playlist, a favorite song, or artist profiles, thereby allowing for smoother sharing of content while also increasing its accessibility, within the application itself. The pre-conditions to the utility of the code are – first, the usage of the Spotify mobile app, as the codes cannot be scanned by any other third-party app, and second, the exclusive generation of the code for only that content which finds a place in the app, which in turn increases consumerism; a significant factor that enabled Spotify to attain the 31% market share it has today.
Spotify Codes and the Scope of Intellectual Property Protection
The question worth pondering over here is whether a code such as the Spotify Code, which re-directs the user to specific content that already has an existing copyright claim, can be trademarked or whether such copyright over the particular data can be extended to Spotify, considering that it acts as an intermediary between the user and the end information. The terms and conditions of the company provide that the users are to comply with certain guidelines in respect of the placement, sizing, color, and restricted use of the codes, require prior approval before usage, and are also granted a non-exclusive license to use and display Spotify Codes for the purpose of sharing a piece of content from the Spotify Service.
A non–exclusive license herein refers to a license which does not exclude the holder from using the mark or from granting licenses to any other person. An expansive meaning of the same is that a Non-Exclusive License grants, to the licensee, the right to use the intellectual property, while the licensor remains free to exploit the same intellectual property and to allow any number of other licensees to also exploit the same intellectual property. This implies that the aforesaid license can only be granted by a company if the particular property for which they are granting the license is an intellectual property. The question that now arises is, considering that there is no expression of the term ‘intellectual property (IP)’, ‘trademark’ or ‘copyright’, what is the IP being claimed by Spotify and what are the consequent grounds on which they are issuing a license?
The prospect becomes a rather fascinating one if seen against the recent backdrop of the Coronavirus pandemic, which saw a sharp surge in the usage of QR-type codes and Spotify Codes on a multitude of merchandise. The lack of clarity in the law, seen in conjunction with the increasing usage of such codes, opens potential avenues where such codes may find legal protection – an emerging way being through registering such a code as a trademark or via copyrighting the electronic code used to develop the output code with its distinctive style and brand logo on the side.
The Indian Position of Law
Generally, a copyright can be claimed over an original literary, dramatic, musical, or artistic work. On the other hand, a trademark is granted on the grounds of a graphically represented mark being of a distinctive and distinguishable character. When Spotify claims that Spotify Codes are its intellectual property, the type of IP is uncertain.
It is accepted that the written code or software behind Spotify Codes can be copyrighted. Here, since the license is granted to use the final Spotify Code and not the software, it falls outside the ambit of copyright.
The jurisprudence that has been evolving in relation to QR-type Codes is with regard to trademarks. The Delhi High Court in FK Bearing Group Co. Ltd. Vs. Kunal Trading Corp. and Ors. considered that the defendant was utilizing the plaintiff’s QR Code while deciding on a matter of passing off, though another trademark was in dispute. QR Codes or barcodes are given protection, but only to the extent of protecting other trademarks.
In attempting to fulfill the requirements of a trademark, a Spotify Code is capable of being represented graphically. The main contention that exists, also in the context of QR Codes in general, is whether the graphical representation is distinguishable. Now, a Spotify Code is certainly recognizable, considering the logo of Spotify that is attached to it but it is difficult to establish that this fulfills the requirement of “distinguishing the goods or services of one person from those of others” as one cannot distinguish which particular song a Spotify Code represents. So, while it may be distinguished that a particular code is a Spotify Code, each code being unique poses a different problem that goes back to the argument against the trademark-ability of QR Codes that “random” lines and dots cannot be said to be distinguishable features. Thus, when a non-exclusive license is granted by Spotify for the use of Spotify Codes, Spotify assumes the existence of an IP right, though QR-like codes are not capable of availing protection under IP law. The cases of Needle Industries (India) Pvt. Ltd v. Mr. Sushil Jain & Anr and GS1 India v. Global Barcodes SL & Ors, which are often cited as granting IP protection to QR Codes and barcodes consider that those QR Codes and barcodes are used by the accused in a deceptive manner and causing loss to the plaintiff. In the case of Spotify Codes, those using them will not really amount to deception as the Spotify logo is attached to the code and even if the logo is removed, the code only works in-app. To use a Spotify Code, it has to be scanned on the Spotify App and it plays music on the app itself. A third party’s use of Spotify Code, even for commercial purposes, may not cause loss to Spotify as anyone using it has to ultimately use Spotify to access it. Therefore, it is difficult to presume that any protection granted to QR Codes and Barcodes can be extended to Spotify Codes.
Presently, the conundrum surrounding the IP protection that may be availed by a QR-type code is principally settled in the United States of America, wherein the U.S. Patent and Trademark Registration Office (USPTO) largely rejects such applications, primarily on the ground of lack of distinctive character. The settled position of law in this regard, however, is subject to change given the creative and evolving nature of Intellectual Property as well as the rise of cases such as that of SIX Interbank Clearing AG, a large Swiss payment platform operator, which had applied to register the QR code with an inset cross on a dark square in classes 35, 36, and 38 in Switzerland.
In the instant case, the Swiss Institute of Intellectual Property denied the application with the reasoning that QR codes serve a technological, not a commercial purpose and that the complexity of such codes did not allow for it to be comprehended with ease. The Federal Administrative Court, however, upheld the appeal and propounded that QR codes may either be decorative patterns or device marks, both of which are registerable signals. While the code ultimately serves a technical purpose, and the matrix can hardly be memorized or easily distinguished from other QR codes by humans, the above only relates to the portion of the QR code that is ‘technically necessary,’ i.e., everything but the center of the matrix, which is unique, based on its overall impression. While the Federal Institute of Intellectual Property registered the same, it is pertinent to note that this excluded the non-distinctive part of the code, which was still open for use to the public; whether it had a unique center or not.
As regards the solution of copyright, the law in this regard is fairly well established via legislation across the globe. To exemplify, in Australia, when new software is created in the form of code, it is protected by copyright as an original literary work. In the United States, software material has been accorded copyright protection since the 1986 Wheelan Associate Case and more recently been upheld in Oracle America, Inc. v. Google, Inc. as well. However, the aspect of whether software relating to QR-type codes can be copyrighted still remains to be unexplored, given that the aforementioned laws are applicable to more traditional forms of software code.
The scope of protection granted to QR Codes and barcodes is very limited under intellectual property law. The present position of law, both in India and abroad, provides for limited protection in cases where the codes are used for deceptive purposes that cause loss to the owner of the codes. Thus, there is no explicit IP right that protects such codes. This puts the emerging, original creative creations at huge risk, keeping in mind how they have a vital function as well as widespread consumer appeal. The increasing usage of QR codes, be it for enabling convenient apps like Google Pay, scanning the menu at a restaurant, or for music such as the Spotify Code, marks the opening of an uncharted avenue for the development of Intellectual Property.
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Diya Vanzara and Yashvi Bhagat
Penultimate year students of Gujarat National Law University, Gandhinagar