The CSE shot into the limelight a couple of years ago when it came out with a report alleging that most soft drinks in the country were contanminated with dangerously high levels of pesticides. In my opinion the CSE distinguishes itself from the rest of the shrill, rhetorical, faith based, rabble rousing NGO brigade, by churning out well-researched fact based reports on the state of India’s environment. The Mint, for its part, has developed a fantastic reputation for itself in the span of a few years as a leading business daily, by publishing objective, original, high quality business news and setting high standards for Indian journalism. I use the word ‘objective’ because in the same article Narisetty points to another Mint article, which while discussing the problem of Indian newspapers, liberally, ripping of photographs of bloggers without credit or cash, makes a pointed reference to the fact that its sister publication the Hindustan Times has been guilty of the same. (This is another issue which I will discuss in a later post especially since it involves questions about our conduct.)
On a lighter note I’m sure that the Wall Street Journal, whose editorial tilt towards the ‘free market and free people’ is well known, would have been thrilled by the news that its partner’s (Mint and WSJ are partners) content was being copied and seemingly endorsed by a leading centre-left NGO.
Jokes apart, the allegations against the CSE are quite serious. As Narisetti points out on his blog the CSE is well aware of the possibilities of copyright infringement since its website carries a notice warning visitors not to infringe the copyrights of external content which maybe posted on the CSE’s site. In addition to this notice, the website also hosts the content of its magazine – Down to Earth along with a copyright policy. Some interesting clauses of the copyright policy are as follows:
The contents of the Service are intended for personal, noncommercial use. All materials published on the Service (including, but not limited to articles, photographs, images, illustrations, audio clips and video clips, also known as the “Content”) are protected by copyright, and owned or controlled by the SEC or the party credited as the provider of the Content. Users shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Service
The Service and its Contents are protected by copyright pursuant to Indian and international copyright laws. Users may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create new works from, distribute, perform, display, or in any way exploit, any of the Content or the Service (including software) in whole or in part.
Users may download or copy the Content and other downloadable items displayed on the Service for personal use only, provided that they maintain all copyright and other notices contained therein. Copying or storing of any Content for other than personal use is expressly prohibited without prior written permission from the Society for Environmental Communication or the copyright holder identified in the copyright notice contained in the Content.
Despite this warning to visitors the CSE has been rather hypocritical in not practicing what it has been preaching. There seems to be a sense amongst most of us that if content is free then that content maybe reproduced without prior permission. However it must be remembered that even free content is protected by copyright laws and cannot be used without the permission of the owner of the copyright. At the end of the day its all about money and more so in the case of a free website which earns revenue through advertising, which again is dependant on the number of hits on its website. Therefore if one website rips off content from a free website without even linking back to the original content it results in fewer hits for the free website thereby causing a monetary loss to the free website. All that the CSE had to do was to link back to the Mint’s website instead of reproducing entire articles and it could have avoided this entire mess.
Given the participants involved in this battle it is very likely that Narisetty’s hard-hitting attack on the CSE will stoke a spirited, passionate, possibly vicious debate on the internet over the state of our copyright law. As a prelude to this debate we seek to discuss and maybe even pre-empt certain ‘fair dealing’ and ‘free speech’ arguments.
Can CSE claim a Fair Dealing Exception?
The answer to this question has to be a resounding NO! There is absolutely no question of CSE even attempting to defend its actions under the ‘Fair dealing’ exception under Section 52 since it has reproduced entire articles of the Mint on its website. Fair dealing exceptions apply only when a portion of the work is used; there is simply no question of claiming a fair dealing exception when the infringer has reproduced the entire work. The only way they could possibly claim a fair dealing exception was if the article was reproduced for the purposes of criticism or review – which clearly did not happen. In this case however CSE was merely archiving the article to create an online library without transforming the character of the literary work.
Indian courts deciding fair-dealing exceptions have borrowed extensively from American and British jurisprudence on this point. American law (17 U. S. C. 107) lays down a four factor test to decide what falls under ‘fair use’: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect on the potential market for or value of the copyrighted work. British law on the point as discussed in the case of Hubbard v. Vosper, (1972) 2 WLR 389, lays down similar principles, which determine fair use of a copyrighted work based on the proportion of the work used along with the purpose of its use i.e. was the content reproduced for purposes of review or criticism or was it reproduced in the same form, conveying the same information as the original thereby causing pecuniary losses to the owner of the copyright. While the former would fall within the fair-use exception the latter would be an infringement of copyright. The substance of both these approaches have been endorsed by Indian courts in the Delhi High Court case of Chancellor of the University of Oxford v. Narendra Publishing House and later in the ESPN case which Suchita blogged about recently.
In this case CSE has been accused of reproducing entire articles of Mint without any ‘transformational’ work such as a criticism or review of the same. Through its actions it may have possibly diverted search engine traffic and hits from Mint’s website thereby causing monetary losses. The fact that CSE was working towards a non-commercial motive is a pretty insignificant consideration when weighed against the fact that entire articles were being reproduced. In the unlikely instance of this case going to Court there is no doubt that CSE will be held liable for copyright infringement.
Can the CSE claim an Article 19(1)(a) free speech defence?
I’m quite sure that somebody or the other is going to respond to this post arguing that the CSE was well within its fundamental right to free speech (& the free press) under Article 19(1)(a) of the Constitution to reproduce Mint’s content for the purpose of ‘reporting’. This argument too must be rejected outright. A copyright protects only the expression and not the underlying idea or in the case of the media reporting the underlying facts. Therefore if the CSE wanted to ‘report’ it could have expressed the Mint’s ideas in its own words. There is no bar against re-expressing ideas. Nobody can stop CSE from using the underlying ‘idea’. It has a fundamental right to report on the idea but it does not have a fundamental right to reproduce the expression of that idea.
The ultimate aim of Article 19(1)(a) is to ensure that a free press thrives. If everybody rips off the content of the ‘free press’ for free, then in that case the free press is going to be making subtantial losses leading to a weakening of the ‘free press’. This is exactly why we have copyright laws to incentivize literary creativity and as a natural consequence enrich the free press.
There are however certain exceptions to these general rules, especially in cases of photo-journalism or video-journalism. Prof. Nimmer, author of a biblical treatise on copyright law, points out that in some cases the underlying idea of a particular copyrighted work maybe expressed in only that work and it maybe impossible to convey the ‘underlying’ idea through a different expression. An American judgment cites his example of the photographs of My Lai massacre during the Vietnam war. He explains: No amount of words describing the “idea” of the massacre could substitute for the public insight gained through the photographs. The photographic expression, not merely the idea, became essential if the public was to fully understand what occurred in that tragic episode. It would be intolerable if the public’s comprehension of the full meaning of My Lai could be censored by the copyright owner of the photographs.
In such situations he proposes that a form of compulsory licensing be invoked to ensure that the owner of the copyright receives some form of renumeration for his work. For more on these arguments please read this American judgment over here. For more on ‘fair use’ exception please click here to link up to Stanford’s impressive online database on ‘fair use’ exceptions.