With all the hoopla surrounding the Copyright Act amendments, a recent decision of the Delhi High Court (Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd) which throws some light on the extent of the fair dealing provisions that are statutorily provided under the Indian Copyright Act as of today, provides a good basis to anchor one’s arguments in support of or against the expansion of fair dealing provisions under the Act. I have attempted a brief examination of the judgement, highlighting the key aspects that formed part of the ruling.
(a) Facts: The plaintiff, Super Cassettes Industries Limited, which operates under the brand T-Series, sought an injunction against infringement of its copyright in cinematographic and musical works, by the defendants, Hamar TV, a television network which primarily caters to Bhojpuri audiences and runs a series of entertainment and news channels, including ‘Focus TV’. The defendants were broadcasting the plaintiff’s copyrighted works without a license. Specific instances of infringement include the use of clips from the movies Ghajini, Main Aisa Hi Hoon and Slumdog Millionaire, as part of its program E! Martini.
(i) Super Cassettes India Ltd.:
(a) The plaintiffs contended that as the sound recording company, it is the first owner of copyright in musical works and compositions that are produced under its direction and control, and thereby, its rights under S.14(e)(iii), S.14(d)(iii) and S.14(a)(i) in respect of sound recordings, audio-visual recordings and its exclusive right in the music works by broadcasting it to the public, were violated.
(b) The defence of fair dealing is not available to the defendants as it was not a defence raised with bona fide intentions since the defendants falsely asserted that the broadcasts were made prior to the formal launch of the channel and they continued to infringe the plaintiff’s copyright works, despite getting notice of the same
(c) The provisions of the Indian Copyright Act, when read in conjunction with the TRIPS Agreement (Article 13)and Berne Convention (Article 9.2) provides no reasonable basis to hold the defendant’s acts as fair dealing.
(d) Although the broadcast itself does not compete with other uses such as the theatrical distribution, DVD rentals and sales etc. the defendants restricted the plaintiff’s ability to exploit its works normally, through licensing.
(ii) Hamar Television:
(a) The defendants contended that the maximum duration of broadcast at any given point was not more than 40 seconds long and hence cannot be dubbed as indiscriminate use of copyright for commercial exploitation or ‘substantial taking’.
(b) It sought the defence of S.52(1)(a)(i) and (ii) which by claiming that the alleged broadcast were in the nature of “review”, “preview”, “news”, “special programmes” and “interviews” and for reporting “current events” under S.52(b) and S.39(b) of the Act.
(b) Holding: First and foremost, it is interesting to note that the table given below was constructed for the purpose of determining whether the claim of ‘reporting current events’ could be availed of by the defendants or not. Using this table, the Court observed that the alleged purposes for which the copyrighted works were used did not fall within the exceptions set out in S.52(1)(a)(ii), S.52(1)(b)(ii) or S.39(b) of the Copyright Act. There was sufficient disparity in the relevance of the copyright musical works that were used by Hamar TV and Focus TV and the nature of the programmes telecast by them.
The ruling rested on two main aspects – that of substantiality and fair use for the purpose of criticism, review or reporting current events.
The court concluded that the qualitative test is as important as the quantitative test and so rejected the earlier contention of the defendants that a mere 40 second broadcast, cannot be considered as ‘substantial takings’. Thus, the essence of the copyrighted work is of importance, and not the overall quantity. It also found that while it is not possible to delineate the exact contours of fair dealing, its determination is a question of fact, degree and overall impression.
Review/Criticism/Reporting Current Events
The court concluded that the motives of the alleged infringer, the extent and purpose of the use are all considerations that go towards determining whether the broadcast was necessary to report current events. The defendants clearly failed this test. Further, one cannot use the garb of criticism to infringe copyright, although a liberal approach by the courts is generally preferred in determining the motives of the alleged infringer.
The court concluded by noting that repeated instances of infringement by the defendants would result in a reasonable cause for grant of aggravated damages at trial.
The Court in this case relied primarily on US and UK principles of fair use and fair dealings and sought to incorporate them in its reading of the S.52 and S.39 exceptions. The convergence of opinion on these principles across jurisdictions, is more pristine that one would ordinarily expect and their use to advance the understanding of the limitations of the fair use provisions in the Indian regime is certainly justified.