Aradhya Sethia, a 2nd year student from NLSIU, Bangalore, brings us an interesting post on the place of parodies in our legal regime. Incidentally, though I had seen mention of AIB’s “Humble Plea to Bollywood” floating around in Social Media circles, I hadn’t actually watched the video till this post came in – and it’s certainly worth a watch! This is Aradhya’s first post in the 2nd Annual SpicyIP Fellowship applicant series. As a reminder to our interested readers, our fellowship application window is open till the middle of January.
The growing spoof industry in India
One of the leading online comedy channels, AIB recently came up with a video directly attacking the growing culture of copyright protectionism in Indian movie industry. The internet environment has clearly changed the culture of entertainment consumption. This changing culture with the help of the alternate media poses a direct challenge to “entertainment feudalism” of the big production houses.
The video comes as a protest against Yashraj’s denial of the permission to let them broadcast a Dhoom-3 spoof. Recently, “Disgrace-2”, a movie spoof on Race-2 had to bear the brunt of takedown notices. Youtube has provided very convenient means for the expansion of such industry, Qutiyapa, AIB being the prominent players in Indian scenario. In fact, spoofs are sometimes used as a publicity technique by the producers of the original movies. A short sketch on growing online Spoof industry in India can be found here
As already pointed out in these posts, takedown claims mainly arise on two grounds, ‘copyright infringement’ and ‘objectionable content’. S.79 of the Information Technology Act along with Information Technology (Intermediary Guidelines) Rules, 2011 governs the takedown regime in India. There used to be only one takedown regime for both the grounds before Copyright Act, 2012 came into existence. After the 2012 act, the takedown procedure for infringement of copyright is covered separately. The details about the current takedown regime for Copyright Infringement is already discussed in this post.
The safe-harbour to intermediaries is provided under S.79 of the Information Technology Act. However, the Information Technology (Intermediary Guidelines) Rules, 2011 largely undo the protection provided by the section. The reports of over-compliance with takedown notices are well known. The rules suffer the vice of vague drafting and overbroad effect. The chilling effect resulting from such drafting is already been debated in other some other posts. However, the post does not aim at going back to the same debate again. The post aims at making two arguments for the protection of spoofs. First, spoofs should be excepted from copyright infringement as they are not substitutes to the actual movies. Second, while assessing whether the spoof in question is ‘objectionable content’, the element of humour or citizen’s right to laugh should also be made important element.
Copyright Infringement: Two Separate Markets
With reference to the takedown for copyright infringement, movie spoofs pose some serious issues. Can spoofs be excepted from copyright protection? Unlike India, parodies are largely excepted from the copyright infringement claims in the U.S. However, some guidance for excepting spoofs from copyright infringement can be taken from development of trademark law in U.S. context. As already discussed in this post, the basic rationale behind trademarks protection is to prevent the confusion over the trademarks. Thus, if another person indulged in similar business uses the same trademark in such a way that it makes it difficult to distinguish between the two trademarks, the company which possessed the trademark originally will be harmed. However, if parody causes no such confusion and it is easy to distinguish between the original and the parody, the rationale of the protection does not extend. Therefore, parody should be excepted from trademark infringement as generally, it does not lead to any such confusion.
This rationale can be imported to the context of copyright also. The basic rationale for copyright protection is protecting the business of the copyright holder. Thus, it is submitted that the competition law standard of “substitutability” “relevant market” can be brought here to take guidance from, if not complete adoption of the same. Movie spoofs are not the replacement of the movie. In fact, several incidents show that the spoofs further help in the promotion of the movie. The spoof market is completely separate from the movie market and therefore, the copyright holder should not be allowed to abuse its dominant position in a market which is not affecting its own market. For example, Vampire sucks would not be a substitute for Twilight.
Objectionable Content: The Role of Humour
The takedown claim may also arise out of objectionable content. With regard to the objectionable content, the determination of what is objectionable has to be made on case by case basis. The most important limb of free speech jurisprudence in India is the term “reasonable” in Art. 19(2). The understanding of this term in free speech jurisprudence defines the level of tolerance in a society. Though on one hand, humour may offend certain people, it also makes us laugh. It just makes this world a happier place to live. It empowers us with this wonderful tool of subtlety that enables us to articulate certain issues and criticisms, which may remain unsaid and incomprehensible in a language which is devoid of humour. Humour should be an important factor for determining ‘reasonability’ of restrictions. It is high time that we understand the importance of this humour in our speech process.
The threat of such protectionism is not merely to the rights of the citizens to speak freely, but extends to question of the value that we attach to creativity and humour which may lie at the very root of such art forms. “What if the real danger is not that we lose our freedom of speech and expression but our sense of humour as a nation?” – Lawrence Liang.