Recently, a U.S. Circuit Court has ordered that Google must take down from YouTube the controversial parody film ‘Innocence of Muslims’ based on a copyright claim by actress Cindy Garcia, who makes a 5-second appearance in the film.
Copyright Law exists, in contemporary wisdom, to reward and incentivize creativity. However, with the explosion of content that the digital age has ushered in, copyright has also often been used as a censorship tool. We had reported earlier this week about the disturbing trend in European countries where news publishers are given exclusive right over not just their completed news reports but the content of the news itself.
The Takedown of ‘Innocence of Muslims’
Equally disturbing, if not more, is the fact that there have been two instances in the recent past where copyright holders have effectuated censorship by succumbing to the pressure of fundamentalist groups. The first instance is the abovementioned recent decision of a US Court where YouTube was ordered to take down the controversial video ‘Innocence of Muslims’ (Innocence) based on a dubious copyright claim by one of the actors in the film. Innocence has been an interesting case study to understand the role of corporate gate-keepers of information in censorship since 2012, when the video sparked riots around the world for its irreverent and provocative depiction of Islam. Although the US Government did request Google to take down the video, the company did not comply, as the video was clearly within the 1st Amendment Rights granted by the US Constitution. When the video was challenged for being inciting and provocative, Google was able to reasonably balance its ‘free speech prevails’ philosophy with the practical realities of hosting content around the world. 
However, the recent decision of the Court has arm-twisted YouTube into taking down Innocence in the United States by holding that hosting the video violates the copyright of Cindy Garcia, one of the actors in the film (this was an order for temporary injunction). Ever since the video was uploaded on YouTube and become controversial, Cindy has been fighting the corporation to have it taken down. Her initial line of attack was impleading YouTube in a suit against the producer as she did not consent “to the use of her performance, image or likeness in such an offensive and file film”. When this attempt was unsuccessful, she approached the Federal Courts claiming that the movie infringes her copyright over the film and it must therefore be taken down by YouTube.
The question before the Court was whether an actor in a film can claim a copyright over the film. While grounds for an injunction are similar in Indian law and US law, the difference is that in US Law, as opposed to prima facie case, the person seeking injunction must show strongly that they are likely to succeed on merits. There is a long line of precedent in U.S. copyright jurisprudence that a person can claim to be a co-author of a joint-work only if they are the “inventive or master mind”, who either creates or gives effect to the work. In Aalmuhammed v. Lee, it was held that the “Islamic Technical Consultant” of the film Malcolm X, did not meet the above-mentioned criteria. He lacked control over the work, and “absence of control is a strong evidence of the absence of co-authorship”, held the Circuit judge. What is interesting is that in this case, the basis of Cindy Garcia’s complaint is that the final cut of the film was nothing like what she had expected it to be, thereby clearly demonstrating that she lacked control over the film. Despite this, the Court ordered an injunction, saying that though the issue was “fairly debatable” and “rarely litigated”, Garcia “might have a copyright”.
Among the arguments Google made for a stay order was the ‘public interest’ angle, where Google emphasised that by removing this video, the public is denied of an opportunity to view controversial material first-hand and engage in meaningful debate. Unfortunately, this application was denied.
Given the controversial background of Innocence, it is likely that the Court has ordered for the video to be taken down only because it felt sorry for Cindy Garcia. However, by doing so, a very dangerous precedent has been set. If the reasoning in this decision were to be followed, every performer in a film will be allowed to ask for takedown of videos on the grounds of violation of their copyright.This means that every time a controversial video is released, anyone who performed in it and feels uneasy about flak that the film is receiving will be allowed to have it taken down. This means that it would be easier for radical fringe elements to dictate what art and expression should be.
Doniger’s not-so-innocent ‘Hindus’
Another instance of censorship in the recent past is the much-talked about Penguin controversy wherein Penguin decided, in an out-of-court settlement, to withdraw the circulation of Wendy Doniger’s controversial book ‘The Hindus’. While the copyright-connection appears obtuse, at the heart of the matter is that Penguin, which had bought the right to publish the book in India, has chosen not to exercise this right. This raises a myriad of questions regarding the status of the book. In a Legal Notice addressed to Penguin drafted by Lawrence Liang of the Alternative Law Forum, Bangalore, Penguin was asked to license the work as a general public license since it was “no longer interested” in exercising its rights as a copyright holder. If the publishing house chooses not to licence it,can the book be compulsorily licensed? Since Penguin does not want to circulate the book, can somebody else go ahead and publish the book? Would they need either Doniger or Penguin’s permission?The answers to these depend partly on the publishing contract between Doniger and Penguin, and partly on how creatively one interprets the law.
The status of the book is no doubt a legal gray area. When discussing this post with Swaraj Barooah, he put forth a plausible way in which this book can be published- as part of an anthology that carries Doniger’s work as well as academic works that are critical of it. After all, the solution to hate speech (if it can be called that) is more speech. This solution allows readers to both read the work, as well as be exposed to quality criticism of her work, rather than just hear of allegations that the Jewish author has written the book with “Christian missionary zeal” and with the approach of a “woman hungry of sex” (this is from the complaint that caused the publisher to withdraw the book from publication). 
The contrast between the Penguin case and the Innocence case is that in the former, the publisher has bowed down to third-party pressure while in the latter, there is a problematic judicial order which Google is still trying to fight. Ultimately, it must be recognized that apart from private corporations taking on a moral obligation to respect free speech, we need lawyers, politicians and policy-makers stepping up to the challenge of not allowing radical groups dictate what knowledge the public has access to.
Big thanks to Swaraj for his inputs.
Talking about Penguin’s case, Compulsory Licensing could be an option as put forth in the post. But two impediments in this way would be that:
1. Presently there is no copyright board only.
2. The publisher may end up proving that the ground of withholding the books from public is not unreasonable as it might affect public peace and hurt religious sentiments…..
Thank you for the comment, Shashank. Apart from the two points you mentioned, what we must also keep in mind is that S.31 allows for compulsory licensing only for ‘Indian’ works.