[Update to this post has been made below – regarding a provision in the Copyright Act which may in fact allow this!]
Do you know of a copyright provision anywhere in the world that would allow your content (that you created), become an unrelated party’s property unless you sent them an email stating that you’d like to keep your copyright over it? If the letter that our friends over at Medianama received recently are of any indication, Thomson Reuters seems to think so. As Nikhil Pahwa wrote yesterday,
“We received an email from Thomson Reuters last evening, informing us that unless we write back to them in 14 days denying them the use of our articles, they will take the lack of refusal, as an indication of consent to use them. What’s more, they will presume that we have given them the “right to use, incorporate and distribute the Content in its Services to its subscribers and to permit such subscribers to use and redistribute the Content.””
I can’t imagine what legal basis they are relying on for such a presumption, but it surely seems very questionable. By this logic, everyone could keep sending Thomson Reuters similar notices indicating that lack of refusal to consent will imply consent, and whenever Thomson Reuters doesn’t reply to a notice, someone gets rights to use, incorporate and distribute all their content!
This would of course be as questionable as this initial notice and by no means am I endorsing this as a general means of acquiring content — but it was great to see that Nikhil Pahwa responded giving them a taste of their own medicine by sending them back a similar notice!
It does seem bizarre that such a large publishing house would take any such risks in their approach to acquiring content and it makes me wonder whether they’d actually take such a questionable approach, or whether I’m completely missing something here. Any thoughts?
You can view the letter that Medianama received as well as their response over here.
——– Update: Sai Vinod, former member of our blog, points us to the curiosity that is Section 52(1)(m) of the Copyright Act:
“Certain acts not to be infringement of copyright: … 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;”
Does this then allow wholesale copying unless expressly denied? It seems like it could certainly be ‘argued’ so at least. But, if so, wouldn’t this mean copyright has no meaning in these scenarios? I would think that such a provision couldn’t and shouldn’t be interpreted to mean that wholesale copying is allowed unless expressly denied – but then would need to come up with an alternative interpretation to this, and I can’t quite think of one.
But, for example, I took a look at today’s “The Hindu” newspaper – and I couldn’t find any express reservation of rights. Surely this doesn’t mean I can reproduce the whole newspaper under my name as a new publication!!
Other interesting questions sent in by Sai include:
(a) Scope of reproduction: Assuming Thomson Reuters ‘acquires’ content through this above-mentioned method – whether Thomson Reuters’s publications qualify as a newspaper or magazine or periodical?
(b) Import of the word ‘expressly’: Whether a specific clause dealing with reproduction rights or a general terms of use policy which reserves copyrights with the owner?
(c) What about a CC license (non-commercial sharing, copying & distribution) – can this be construed to include express reservation of reproduction rights?
What could this Section 52(1)(m) mean? Would love to hear thoughts and comments on this…
To my understanding the meaning of 52(m) is that is any one has published an ‘article on current economic, political, social or religious topics’ the same can be reproduced ‘in a newspaper, magazine or other periodical’ unless the author has expressly denied such publication. The logic behind this provision would be to foster dialogues on current issues. Moreover all situations under section 52 provides immunity only from rights under section 14 and not under section 57. In no situation can the name of the author be changed. And hence 52(m) is clearly of no help to Thomson Reuters. To my understanding if Mr. Nikhil Pahwa dont respond to the mail and the work get published it will be a clear case of infringement as under section 14 the owner need to authorise reproduction and i believe it should be express.
Hi Swaraj,
Reuters email is most prolly based on S. 52(1)(m). There were a couple of Madras HC decisions in 2009-10, interpreting the section in context of reproduction of Periyar’s work in a periodical. Ref : http://indiankanoon.org/doc/1783034/
http://indiankanoon.org/doc/1848459/
Single bench judgment by justice chandru was upheld by division bench of Mad HC to say that such reproduction is okay if published in a newspaper, magazine or periodical, especially since such article as already been published.
i think a lot might depend on what is interpreted as “newspaper, magazine, or periodical” and what is interpreted as “an article” (which can give rise to the question, if only reproducing one article or reproducing even a number of articles of this kind is outside of copyright).
The Madras judgment (I’ve only read the appellate one) seems erroneous. (1) Section 52(1)(m) applies to an article CURRENT topics. There is no consideration how the articles (if they were that) in question were on current topics. (2) The exception applies to reproduction in a periodical, not from a periodical. (3) In discussing whether the works had fallen into the public domain, the Court seems to have overlooked Section 79(3). (4) There was no provision like Section 52(1)(m) in the 1914 Act. Section 52(1)(m) is not procedural but takes away a substantive right, hence may not be applicable to a pre-existing vested right under Section 6(c ) General Clause Act.
I’ve something to share which is radically different from the above context but on similar lines.
Lifestyle by default adds Rs. 2/- to the bill (for their so called CSR activity) and one has to specifically mention the cashier if he wants to opt out !
Is this legal ?
Thank you for all your comments. Here is another comment sent in via email:
Hi,
I saw the following document in the SSRN’s eLibrary and thought it might interest you.
The abstract and full-text document, of:
Fair Use of Periyar’s Works Under Section 52(1)(m) of Copyright Act: How Far is it Fair?
can be found here:
http://papers.ssrn.com/abstract=1767913
After reading your article about Thomson Reuters notice titled “All your content belongs to us (unless you opt out)”. I thought this article would be useful to the readers.
Thanks and Regards,
R.Chandrasekar,
IPR Attorney, Madras High Court.