This post is in continuation to my previous post (here) highlighting the implications of closed door consultations on amendments to the Copyright Act. Here, I discuss some of the major themes that such amendments must consider. Please note that due to the scope of this post, it is longer than our usual posts.
Fair Use and Free Speech
The fair use principles (for ‘non infringing uses’) are carved out as exceptions and limitations to the rights of a copyright owner, premised on the idea that the societal benefits in allowing such use are larger than any possible loss suffered by the owner. The Copyright Act lays down this regime in Section 52 of the Act. They, in essence, promote innovation, creativity, and free speech and expression in general by allowing new works to be created without fears of repercussions. This becomes particularly important in the digital age with the growth of user generated content that is being published online, inter alia, on social media platforms.
The provision, however, suffers from a severe inhibition in that it allows for this protection to be claimed only based on the exhaustive list of grounds it mentions. In doing so, it appears to confine the extent of creative permissible uses a work can be subjected to, without factoring the practical effects of the same. Take, for instance, the question of whether parody videos are protected as fair use if they borrow from the original work. The only ground that could cover it would possibly be Section 52(1)(a) wherein it has to be shown that the use was for the purposes of ‘criticism’ or ‘review’. While certain courts have indeed held parody to constitute fair dealing, it is quite possible that it would not pass muster in a different court, especially in the absence of any definition of what is meant by terms such as ‘criticism’ or ‘review’. For instance, as I have discussed on the blog earlier (here and here), though it might be possible to make a claim that sharing short sports clips could be covered by this provision, it is not difficult to imagine a court reaching a different conclusion. In such a scenario, two things become necessary: first, the existing categories of exceptions need to be clearly defined as to what they represent, and second, instead of limiting fair use protection to an exhaustive list, a shift to a broader inclusive model, such as that of the United States, with the presently enumerated exceptions as an indicative list, be made to ensure that uses that are hard to categorise in a particular head but should deserve protection are not excluded.
Another problem that remains associated with the provision is its use of the term ‘fair dealing’ in Section 52(1)(a). As against the broad United States model where fair use only requires satisfaction of a four-factor test, the Indian model applies a different standard. Apart from Section 52(1)(a), where ‘fair dealing’ is specifically mentioned, there is no need to turn to a similar test for claiming an exception to the copyright. Any such requirement in context of Section 52(1)(i) was rather specifically denied in the DU Photocopy case.
In the context of Section 52(1)(a), however, the Delhi High Court in India TV Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd. has held that the four-factor test as used in the United States should be referred in order to interpret the term ‘fair dealing’. This decision, however, does not bind any other court, and they could arrive at an entirely different conclusion in interpreting the term ‘fair dealing’ due to an absence of legislative guidance to this effect. Given that Section 52(1)(a) is the broader, residuary, part of the provision, allowing for a great diversity of claims to be brought within its fold, this uncertainty further inhibits the use of the work. Therefore, the term ‘fair dealing’ must be defined, ideally in broad strokes similar to the four-factor test.
Website Blocks and Online Speech
Copyright claims have been the reason behind a large majority of websites that have been blocked based on court orders. Presently, these website blocks are predominantly being carried out under Section 151 of the CPC without any clear parameters in deciding when and how a block order should be given. Interestingly, the Delhi High Court in UTV v. 1337x.to has sought to highlight the impact of such takedown orders on freedom of speech and expression. It specifically called for a ‘fair balance’ to be struck between the IPR rights and right to trade and free speech, and limit the website blocking to only certain ‘rogue’ websites. This approach, however, appears to be far from being the case as can be seen as the recent examples of dynamic injunctions that have been issued by courts without going into the determination of the ‘rogue’ nature of the websites involved and the necessity of taking down the entire website as against a specific URL (see here, here, and here). Such expansive content takedowns without requiring a proportionate procedural check on their desirability significantly dents online speech. In any case, this being merely a Delhi High Court precedent, it lacks binding value in other jurisdictions. In order to remedy the same, it is desirable to adopt a multi-step statutory framework that necessitates carrying out of a proportionality analysis while determining whether takedown of a specific URL is an insufficient remedy and blocking of the entire website itself is required, as well as ensuring due process requirements and procedural safeguards in place regarding web blocking.
Arguably the most hotly debated issue in terms of impact of digital media on copyright law is the determination of liability of intermediaries for infringing content posted on their platforms. As has been discussed on the blog previously, apart from facing onerous licensing conditions, UGC platforms have been facing a constant pressure from large copyright owners in taking down any content utilising their works in any form. This is despite the use being transformative in nature, without having any substantial impact on the revenues of the owner. Due to these aggressive strategies and the uncertainty on their liability, the platforms tend to over comply with copyright infringement complaints. Several intermediaries such as YouTube, etc., take down content immediately on receipt of any notice by anyone, without even requiring upfront proof of holding rights over the alleged infringed content as per their Copyright Complaint Form. This flaw has been utilised recently, for instance, by WhiteHat Jr in silencing dissent and criticism against it. The Delhi High Court in Myspace dealt with several concerns regarding the liability of intermediaries, including the specificity of notice served by the complainant, harmonious interpretation of Section 81 of the IT Act and the safe harbour for copyright infringement claims, and compliance with takedown requests. It, however, left a lot to be clarified, and due to the limited jurisdictional applicability has not settled the debate as can be seen from a similar question pending on appeal before the Punjab and Haryana High Court. For the prospective amendments, resolving this muddled regime of intermediary liability in a manner ensuring least possible restriction to free speech must be a key point of discussion.
Decriminalisation of Copyright Law
Chapter XIII of the Copyright Act lists out copyright related offences for which even carceral penalties may be awarded. Nandita Saikia has extensively critiqued the criminal treatment of copyright violations, highlighting its fallibility in, inter alia, not requiring the presence of intention for holding an accused as guilty, and the vague nature of the offences. Though she notes that in light of India’s TRIPS commitments, wilful infringements on ‘commercial scale’ are required to be dealt with through criminal provisions. Apart from this possible caveat, there is an urgent need to rethink the viability of adopting a criminal law approach to copyright law. It has to first be ascertained as to what are the harms that are sought to be redressed by criminalising certain actions and if criminal provisions, and the accompanying impingement of individual liberty, is necessary (or even useful) to redress the said harm. For instance, take the case of Section 63 that prohibits infringing any copyrighted work knowingly. A scenario where this provision could be invoked is when a collector of sports archival clips informally sells some clips to someone. While such collection should be considered fair use, as pointed out earlier given India’s unclear fair use regime it could also be held to be an infringing use. Since this transaction is made for gain in course of a trade, the proviso would also not lead to lesser penalty, and the infringer has to undergo a minimum of six months of imprisonment. In such a scenario, the harm sought to be redressed is the potential economic loss that will be accrued to the rights owner due to this act by the infringer. This loss would possibly be the reduction in the amount paid to sports boards by the buyers of these clips, largely media agencies, due to availability of clips, which in turn would be negligible if it is not shared publicly. This issue can be resolved by merely providing for an adequate compensation to the rights owner, without any need to take recourse to the criminal justice system. There, thus, hardly appears to be any justification in criminalising such activities.
The justification often put forth to support criminalisation has been two-fold: first, penalising infringers having no ability to compensate for the loss; second, creating a deterrence effect amongst potential infringers. As far as the first argument is concerned, while the infringer’s inability to pay shows a situation where the rights owner faces difficulty in recouping its loss, imprisonment for the same also leads to no particular benefit to the owner either. Other forms of penalties such as possible variations of community service could be an interesting option to explore. On the second count of deterrence, this argument requires clear evidentiary backing to support itself, particularly because despite the existence of these offences on the statute books they haven’t of themselves seem to have had any substantial impact on the extent and commonality of copyright piracy in India. In absence of proof that these justifications are valid, the continuation of penal provisions for copyright violations only serves as a tool for stronger parties to utilise these provisions to exploit or threaten smaller parties into compliance with their expectations. In this form, the penal provisions might instead act as deterrence to creativity and reduce access to works instead of incentivising them. Hence, the amendment process should consider decriminalisation of copyright law to the maximum extent possible.
Orphan Works: The Silent Speech
Orphan Works are those works whose owners are either unknown or cannot be located. While there is an absence of Indian statistics on this point to my knowledge, the British Library has estimated around 40 percent of its copyrighted works to be orphan! This highlights the magnitude of the problem their access poses. It is due to this reason that their treatment in copyright law has been a major point of discussion of late in major countries such as countries in the EU, the UK, and the US, and others such as Canada are constantly dealing with statutory licensing mechanisms for such works. India, on the other hand, remains surprisingly unconcerned about the same, despite its model being mentioned in almost all discussions on this issue. India follows a compulsory licensing system as found in Section 31A of the Copyright Act requiring a prospective applicant to file an application for seeking a license from the Appellate Board. The procedural formalities, however, remain muddled with uncertainties with primary issues such as the extent of search for the owner required for it to be considered ‘reasonable’, the treatment of moral rights of the owner, and the derivative use of the work, remaining unspecified. It is thus pertinent to provide greater certainty on the functioning of this mechanism to allow for greater access to works that have become orphan.
Apart from the themes discussed in detail above, the following major issues, as discussed on the blog earlier, would also be pertinent while deliberating amendments to the copyright law: Authorship of AI created works (see here), text and data mining and copyright infringement (see here, here, and here), statutory licensing for streaming services (see here, here, and here), digital exhaustion (see here and here), and open access initiatives in form of easier copyright waiver mechanisms (see here) and perhaps most significantly, open access to government material and the laws (see here, here and here).
In this post, I have pointed out some of the major issues that need to be re-assessed under the Indian copyright regime. As highlighted, they have severe ramifications on the right to free speech and access to culture, among other things. A statutory treatment of these issues that have particularly arisen with the proliferation of the digital media is necessary and it cannot be left to the vagaries of inconsistent interpretations of high courts and district courts. They should thus be at the centre of any plans to amend the Copyright Act. Despite this large scale impact on the rights of the public, the move to push for closed door consultations with limited stakeholders raises questions as to the way in which the Copyright Office envisions copyrights. It, prima facie, appears to be a vision sans the public interest involved, and it can be hoped that the doors are opened for a transparent and deliberative consultation soon. Given the lasting impact such amendments might have, it would be great if more informed readers and affected stakeholders could share their thoughts on these issues and possibly highlight areas that the post might have missed.