Copyright

Pokemon GO and Freedom of Panorama in India


London-Eye-Censor-CC“All the world’s a stage, And all the men and women merely players […]”

One does not know if this was what the creators of Pokemon Go had in mind when they created the gaming app. Nevertheless, just a month into its launch, the app has taken the world by storm and its players are everywhere looking for their elusive catch. For the un- initiated, Pokemon Go is an augmented reality game developed by Niantic, which uses the GPS of player’s device (such as a smart phone) to generate the virtual Pokemon characters in the surroundings of the real world location in which the player is present. The player then will have to catch the Pokemon character by flinging a virtual ‘Pokeball’ at it. As you would have figured out, the USP of the game lies in it that the whole game has a real life feel to it, with the characters “appearing” in the player’s real surroundings, as seen through the player’s device.

With the game becoming wildly popular in a short span of time (with even celebrities vouching for it), it has brought about a slew of safety and legal issues with it. Law suits ranging from trespass to invasion of privacy to unfair user agreement terms have been filed in various parts of the world. Not to mention the ever increasing number of accidents that the game has caused, with a couple of them resulting in the death of the game’s players. With so much happening, can IP be far behind?

Pokemon Go and Freedom of Panorama

One of the IP issues highlighted by the game, as pointed out by IPKat, is the freedom of panorama or the lack of it in various jurisdictions. Freedom of panorama is a copyright exception vis a vis copyrighted works situated in public places. No uniform definition is possible for this exception as it manifests in varying forms in different jurisdictions. The reason why freedom of panorama is being debated in regard to the game is that once the player catches the character, she has the option of saving the moment of her capture to the device in the form of a saved image. Such captures could often have works of art/ architecture in its background and sharing of it on social media platforms could raise a question of copyright infringement over these artistic works (this is especially so since most social media platforms reserve the right to use these pictures for a commercial purpose).

This has become a major talking point in Europe, where there is a wide disparity in the panorama freedom provided by different countries. Article 5 (3) (h) of the InfoSoc Directive, which gives the member nations the option to include in their legislations the freedom of panorama for works situated permanently in public places is not mandatory. This has resulted in varying standards in EU and has led to confusion among both users of online platforms and intermediaries. For instance, while Article 59 of Germany’s Urheberrechtsgesetz (its copyright legislation), provides for a wide freedom of panorama, France till recently did not have one and even the one legislated now is a restricted one (for a full enumeration of freedom of panorama across the world, see this).  Thus, the users of the game might find themselves to be in violation of copyright if they choose to share their Pokemon Go images.

Freedom of panorama and India

Although Pokemon Go is not yet officially launched in India, the frenzy has caught on in the country with many using cracked versions to play the game. Interestingly, a PIL has already been filed seeking a ban on the game. While one would have to wait for the kind of legal and safety challenges the game might throw up in India (for a nice read on the possible legal tangles, see this), it seems to be on safe harbours as far as the panorama exception is concerned. The Copyright Act, 1957 lays down the freedom of panorama in the form of three provisions- §52 (1) (s), (t) and (u).

While §52 (1) (s) provides for an exception in so far as making or publishing of a painting, drawing, engraving or photograph of a work of architecture, §52 (1)  (t) extends a similar right as against sculptures and works under §2 (c) (iii), i.e., “any other work of artistic craftsmanship”. The other difference between §52 (1) (s) and (t) is that the exception provided in the former is not limited to works situated in public places while the latter extends only to those “permanently situated in public places or any premises to which public has access.

The panorama trio is completed by §52 (1) (u), which extends the exception to inclusion of artistic works in cinematographic films. It may be worthwhile to note that §52 (1) (u) (ii) can only apply if the artistic work is appearing incidentally in the cinematographic film and not as a principal matter.

The true extent and import of the panorama exception under the Indian law can only be appreciated when one realises that they are not even subject to qualifications like non-commercial use. Most jurisdictions only allow for freedom of panorama if the copyrighted works are put to non-commercial or educational purposes.

Also, the provisions, it appears, have not been frequently invoked in the courts. Albeit, an  interesting instance of its use may be found in this decision of the Madras HC, wherein an argument invoking §52 (1) (t) was raised by the defendant, who was sued for infringing the copyright over the image of a deity which was a commissioned work of the plaintiff and was used by the plaintiff in its calendars. The defendant took recourse to §52 (1) (t) to argue that since the plaintiff’s calendars were hung in many temples across the state, it should be treated as an artistic work permanently situated in a public place. The court rejected it on the grounds that the work exhibited was not the original one and thus not covered by §52 (1) (t).

Conclusion

Thus, on the face of it, given the wide panorama exception carved out by the Indian Copyright Act, Pokemon Go is unlikely to run into a copyright barrier. Nevertheless, it would be interesting to see the effect of trademark laws and cultural heritage laws on apps such as Pokemon Go. That though is for another post. Till then, you “gotta catch ´em all!”

Image from here

Balu Nair

Balu completed his B.A. LL.B. (Hons.) from WB National University of Juridical Sciences, Kolkata and LL.M. from Melbourne Law School as an Alex Chernov Scholar. He is currently a Lecturer at Jindal Global Law School and is also Assistant Editor at Indian Law Review. He can be reached at [email protected]

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