In my last post on the CSE-Mint controversy, I had confidently claimed, that the answer to whether CSE could claim a ‘fair-dealing’ defense, was a ‘resounding no’. However a fine piece of legal analysis from the OriginalFake blog has forced me to recant the ‘resounding no’ and instead replace it with a timid ‘maybe’.
OriginalFake is a blog founded by Mr. Prashant Iyengar of the Alternative Law Forum and it deals with the “politics of IP, Technology and Culture in India”.
In my last post I had predicated my analysis on certain general principles of ‘fair dealing’ as laid down by Indian Courts. However after reading the post on OriginalFake I realized that I had missed out on a very specific ‘fair dealing’ exception that was laid down in Section 52(1)(m) of the Copyright Act. As most of you must already know, Section 52 deals with a whole range of ‘fair dealing’ exceptions. S. 52(1)(m) in particular allows the print media to reproduce any article on current economic, political, social or religious topics unless the author of the article expressly reserves to himself all rights to reproduction.
Section 52(1)(m) reads as follows:
The following acts shall not constitute copyright infringement:
(1)(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction
In most cases the print media owns the copyright to all of the articles authored by their employees. This is usually done through the employment contract and is allowed for under the proviso(a) to Section 17 of the Copyright Act. The journalist however remains the author of the article. Section 52(1)(m) states that the author, as opposed to the owner, is the person who can block the article from being reproduced in other print media. To avoid the application of S. 53(1)(m) the journalist has to expressly state at the end of the article that he reserves to himself all rights to reproduction. It will not suffice for the newspaper, as the owner of the copyright, to put up such a notice in its name. Therefore despite the employment contract assigning the copyright to the newspaper, the journalist continues to own certain reproduction rights.
Most of the Mint’s articles including the one pointed out by Narisetty do not carry a notice by the author expressly prohibiting other ‘newspapers, magazines or other periodicals’ from reproducing their work. Therefore under Section 52(1)(m) it is possible for other ‘newspapers, magazines or other periodicals’ to reproduce Mint’s content without Mint’s permission. As far as I know this is true of most newspapers in the world. Until Indian newspapers start carrying the relevant Section 52(1)(m) ‘author notice’ they are free to rip off articles from each other without any threat of copyright infringement suits. Come to think of it, I’m sure a lot of Indian newspapers, entering into licensing arrangments with foreign newspapers to reproduce certain weekly columns, will be thrilled to know that they can republish all these columns without having to pay a single penny for the same.
The moot point now is whether or not CSE’s website will fall under the definition of ‘newspaper, magazines or other periodicals’? However this is a discussion that I would rather leave to our readers – do feel free to comment on this issue.
Hey Prashant,
Thanks for the link.. The comments therein indeed follow an interesting line of thought too..
As regards CSE’ website qualifying as a NP/Mag… the particular page might just do so, since they call it a Newsbulletin and the path is Home>>Resources>>Newsbulletin
PLus the nature of the Bulletin being in the nature of a compendium of news items.. so to my sensibilities (the very common one that is..) may aid things in CSE’ favour…
LOL @ “Come to think of it, I’m sure a lot of Indian newspapers, entering into licensing arrangments with foreign newspapers to reproduce certain weekly columns, will be thrilled to know that they can republish all these columns without having to pay a single penny for the same.”.. too good!!!
But am sure the agreements are
a. to avoid unnecessary hassles w.r.t diff in copyright norms in varied jurisdictions
b. The fact that Indians do have a sense of righteousness…
Cheers!
Hi,
I’d left a comment here earlier that doesn’t seem to have made it through the filters.
Among various other observations, I had requested that you unlink my CV from this post. My CV is up on the site due to a contractual obligation I had with OSI. It certainly doesn’t sum me up in the manner that this post suggests.
I request you once again to remove the link soonest.
Warm regards,
Prashant
@Prashant – I’ve deleted the link to your CV. Sorry about that but it was one of the first things that popped up in the Google Search.
Could you please re-post your previous content, I don’t think it got through the last time.
@Divs – you’ve got a point there on the Mint website qualifying as a news weekly. However I don’t think it will be too easy to take this line of argument. Some judges and lawyers can give S. 52(1)(m) a very rigid interpretation to exclude websites since fundamentally websites are different from newspapers or magazines.
How about arguing for the other side? I’m sure you can come up with some interesting arguments. 🙂
Hey Prashant,
I agree @ websites being fundamentally diff from print media, but that fundamental difference lies only in terms of the technology used to “relay”” it. The fact that a technological mode of relay is used to put forth the public ur “expression” of an idea, IMO is not reason sufficient to negate protection (or applicability of any other provision for that matter) to that “expression”, only because it has been relayed by more tech-friendly terms. The CR act, as far as my understanding goes, is restricted to governing the “idea-expression dichotomy” and not the tech used to exploit that… else, as we evolved from LPs to cassetes to CDs.. the CRA shd have been amended from time to time, before a piracy/CR infringement suit could have been entertained.
Moreover, IMO, if TM law can be extended to give Domain Names protection, e-paper content etc. also being protected under CR must follow. I hope the analogy makes sense.
PLus, as far as the strict interpretation goes, with how net-savvy and tech-friendly lawyers n judges are.. I think they ought drop that argument!! watsay?
Cheers…
we will need to look at legislative history to determine what the drafters were thinking. how can the journalists possibly reserve rights which they do not own? doesn’t that sound absurd?
in any event, what about moral/paternity rights? CSE has clearly violated that?
@Balak – you maybe happy to know that the Ministry has proposed the deletion of Section 52(1)(m) in the next set of amendments. You can check out this link here:
http://copyright.gov.in/View%20Comments.pdf
I’m sure there will be a lot of people out the opposing the amendment as of now.
As for your moral rights question – again only the author has moral rights and not the owner.
More importantly could you elaborate on how exactly the moral rights were violated in this case? Ideological clashes?
@Divs: Its quite a delicate argument. Your analogy to LPs, CDs, is wrong because the copyright act classifies all music as ‘musical works’ – it never mentions the mode of technology through which music is conveyed. In our case when the Copyright Act has specifically mentioned the various modes of media which will be protected we cannot expand it to include even the internet because the internet was not ‘invented’ when the legislation was drafted and it is not possible to infer that our legislators expected this provision to be used for various new forms of technology. Moreover since it is an exception it must be construed narrowly. Looking forward to your reply Divs.
No, by moral rights, i mean the “right to claim authorship of the work” under Section 57, i.e., the right to attribution. By not acknowledging the authors, CSE has clearly violated that aspect of moral rights. Even if CSE succeeds in the specious argument that their use qualifies as fair use (i doubt that), Mint can easily implead the authors as co-plaintiffs who will put forward this argument.
Agree with u on quite a few things…
a. “music”= musical works, so literary writings = “literary works.”.. isnt it?
so by that logic.. the LP/CD analogy shd extend to technology in literary works also.
b. the absence of mode of tech… is what even i advocate. Even if its a newspaper… my point is.. does it say a Hardcopy of the paper.. using XYZ printing tech? NO! Hence.. a newspaper relayed by anymode should be covered…including the internet.
c. Various modes of Media: well well Mr. Reddy, today isnt the net the most popular media? Any ad campaign goes on the net.. Youtube google video, ads on websites.. so wouldnt the internet qualify as Media?
IMO, the fact that the Act came to force in 1957.. when technology was not as advance as it is today… is a greater reason for the purview of the Act to be widened. The reason i brought in the Ruma Pal Judgment to cite that TM law was extended to Domain names.. was merely as an eg. as to how laws in India have been extrapolated to newer realms of applicability.We cant look at law in watertight compartments.. being dynamic and organic in nature..
Prashant, I have conviction in my argument… delicate though it might be!
Awaiting to Hear from you..
Dear Divs,
You definitely have conviction in your arguments – I will never ever dispute that! 🙂
Your points may be valid but I still do not think that a Court should give an ‘exception’ such as Section 52 a wide interpretation. As per general rules of statutory interpretation if in case there is no statutory definition the Court must go by the ordinary dictionary meaning. In this case the statute does not define any of the terms. The ordinary dictionary meaning of newspaper will not cover a website in my opinion. Having said that it is also possible that an Indian judge will have no qualms about giving Section 52 (1)(m) an over-expansive interpretation and you may actually win over there.Its too close to call in my opinion.
@Balak – CSE did acknowledge the authors. You can check up the remaining articles on their website. They mention the author and the newspaper from where they have sourced the article.
Hey Prashant,
For somebody else’s take on interpretation of S. 52 as an exception..
Chancellor Masters and Scholars of the Univ. of Oxford v. Narendra Publishing House and Ors. (the decision that Mihir has been analyzing on copyrightability) Para 33 of J. Bhatt’ judgment.
Cheers!
@ Prashant..
Ive been deliberating over your line of thought as well.. You are right in stating that exceptions are generally meant to be strictly interpreted. However, I am quite wid J. Bhat in his Chancellor Masters Judgment.. on what he says in Para 33, a part of which i reproduce:
“Fair use provisions, then must be interpreted so as to strike a balance between the
exclusive rights granted to the copyright holder, and the often competing interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativity, and the same time must discourage blatant plagiarism. It, therefore, must receive a liberal construction in harmony with the objectives of copyright law. Section 52 of the Act only details the broad heads, use under which would not amount to infringement. Resort, must, therefore be made to the principles enunciated by the courts to identify fair use.”
I think the purpose of the website.. as a news source may also be looked into.. (apart from the dictionary meaning)in decding whether it shd be afforded protection under the “fair-use” clause to facilitate “broad heads” being read under S. 52.
However.. I agree most.. that it is a Close call!!!
Cheers!!!!
I’d side with Divs in this one. “Daily News Bulletin” is the section of the India Environment Portal where this stuff is reproduced. It is a periodical (“daily” + “bulletin”), pertains to news. It would fall under periodical, as it is a “a publication that appears at fixed intervals”, the only thing being that it is a web publication and _all_ (as far as I can tell) its articles are sourced from elsewhere. This is not unlike a newspaper run solely off a free wire service called the World Wide Web.
Hey Divs,
Glad to know that we’ve agreed to disagree on that point.
Just in case you’re interested on the actual economic costs of such a practice do read this article here:
http://www.iht.com/articles/2008/11/13/business/papers.php
Prashant
Actual “costs” of such a practice? Free eyeballs and awareness and loyalty is what “unauthorized” copies of newspapers is generating. That’s the best form of advertising — free! The long tail isn’t just a catchphrase for a book — it has actual ramifications.
The figures quoted in the report are estimates of how much advertising revenue they could possibly have earned. That is to say, how much they could have earned in a parallel universe. Because all unauthorized copies being replaced by links wouldn’t get them all that ad revenue since a vast majority wouldn’t follow through. How they came up with the “assumption that advertisers would pay $1 for every 1,000 pages of unauthorized material viewed on Web sites that are not owned by the copyright owners” is still unclear to me.
That is, if anything, “lack of a gain” not a “loss”.
Cheers,
Anon. Cow.
P.S. Once again, my comments are being swallowed up whole (and wholesale) by the system. Admin, please have a look.
Hey Prashant..
The link doesnt work!!! any other place i could find the same???
Divs
@ Divs – the link is working, please try again in a different browser. Otherwise send over your email ID and I’ll see if I can email the article to you.
@Anon – I stand corrected – its not the ‘actual’ costs it is the ‘estimated costs’.
You’re right about the system swallowing your comments, we’ll look into it, sorry for the inconvenience, your last comment was delivered to me in my inbox but is not up over here. I’m pasting it below:
Anon Coward: I’d side with Divs in this one. “Daily News Bulletin” is the section of the India Environment Portal where this stuff is reproduced. It is a periodical (“daily” + “bulletin”), pertains to news. It would fall under periodical, as it is a “a publication that appears at fixed intervals”, the only thing being that it is a web publication and _all_ (as far as I can tell) its articles are sourced from elsewhere. This is not unlike a newspaper run solely off a free wire service called the World Wide Web.
My Reply: I think you’ve missed the point of the discussion – we were discussing on whether a website would qualify for Section 52(1)(m). I was arguing that since there is no definition of periodical in the statute the Court should go by the English dictionary meaning of periodical and not give an expansive interpretation to the exception. Please do go through the above comments once again.
Dear Prashant,
1. The issue isn’t about “actual” vs. “estimated”. It is about “cost” vs. “lack of a gain”. My humble submission is that a “lack of a gain” can’t automatically be a “cost”.
2. “A publication that appears at fixed intervals” is the Webster’s definition of “periodical” (1913 ed.), and going by that I tried to make a point that according to a common dictionary definition, “Daily News Bulletin” on the India Environment Portal would be a “periodical” for the purposes of s.52(1)(m). One does not have to stretch the meaning of “periodical” to include DNB. The question is: is “publication” on the World Wide Web the same as publication on newsprint or on paper for the purposes of s.52(1)(m)? I don’t think it is a stretching of the normal way we use those words to say: yes.
Cheers,
Anon. Coward
Dear Anon. Coward,
In cases of copyright infringement, from what little I know, once infringement is proved damages are calculated on the basis of the profits made by the infringer as also on the basis of the actual licensing rates of the owners – In such a case would you not agree that ‘cost’ = ‘lack of gain’?
On the point of the ‘periodical’ – I would argue that the provision needs to be read in context of the era that it was enacted in. The internet did not exist when S. 52(1)(m) was enacted and therefore it is safe to presume that the legislature meant this provision to apply only to paper publications especially since the internet as a mode of media represents a sea-change when compared to the print media and as such the internet throws up several more policy questions which can be answered only by the legislature and not by an activist judiciary. The difference between the print media and the web media are simply too many for them to fall within the same genus.
Moreover I think exceptions should be read narrowly in the sense that over-expansive interpretations should not be given.
However that is just my opinion and I’m sure you’ll dis-agree with it. 🙂
In case you’re replying to this I’ll be taking some to reply to your comment – so please pardon the future delay.
Thanks,
Prashant
Ah, I finally have come to understand your POV on “cost”. And, definitely, if copyright infringement is the lens you’re looking at, then profits made by the infringer and actual licensing rates do play a part. (Please note that neither of these were the parameters used in the report, which was forgone advertising revenue.)
My simple submission is this: copyright infringement is a small lens to look at the large issue of article reproduction and how that affect the newspaper industry. Copyright is only one of the many ways for compensation of article writers and their publishers. Eyeballs and readership are more important that control of reproduction from the viewpoint of profits. That’s the long tail. While the knee-jerk reaction might be to enforce copyright, the considered viewpoint (in my opinion) would be to acknowledge that readership is as, if not more, important.
And very simply put, many of the people who read an article from WSJ on Counterpunch might not ever have gone to read it on the WSJ website. The reproduction of the article on Counterpunch gets people more interested in WSJ. That’s a benefit for WSJ.
Sometimes brands pay filmmakers to place their products in films, and sometime filmmakers pay brands to place their products in their films. What I want to show is that who benefits (Counterpunch vs. WSJ) is malleable, and not clear-cut enough to be called a “cost”. It is merely a “lack of gain”.
Enjoy your break from Spicy IP.
Cheers,
AC