In a recent post, Divij discussed the use of copyright infringement claims by Aaj Tak against the independent media platform, Newslaundry. The videos in relation to which the copyright claims were made contained clips from videos of Aaj Tak’s reporting and as per Newslaundry were used to critique Aaj Tak’s reporting on certain issues. Divij highlighted the use of copyright strikes as a new form of Strategic Lawsuits Against Public Participation (‘SLAPPs’) using the problematic takedown structure of YouTube. In this post, I shall elaborate on one of the points mentioned by Divij, that the use by Newslaundry falls within the ambit of the exceptions provided under the Indian copyright law. I shall first briefly summarise the test to be applied and then assess the facts of the present dispute in light of the standard.
Section 52 of the Indian Copyright Act, 1957, provides for certain acts which are an exception to the general norm of copyright infringement. Section 52(1)(a) specifically is important for the purpose of the present debate. It provides that any use of a copyrighted work for the purposes of, inter alia, “criticism or review, whether of that work or of any other work” [52(1)(a)(ii)] or “the reporting of current events and current affairs” [52(1)(a)(iii)] is exempt from an infringement claim provided that it constitutes ‘fair dealing’ with the work. Hence, for Newslaundry to claim this exception it must prove that its use amounted to fair dealing and that it fell within the ambit of either of the above-mentioned two purposes.
As I have highlighted here, fair dealing in India, as per the Delhi High Court, has been interpreted to incorporate a test based on four constitutive factors, similar to the United States. The four factors are: the purpose and character of use, nature of the work, amount and substantiality of copying, and effect of use on the market for the original work. I shall now analyse the applicability of each provision in this dispute. I shall, however, add a caveat that since I have not gone through each of the specific videos that have been taken down, the factors may weigh slightly differently in certain individual instances.
The purpose of use in the instant case is to generate discourse about the reporting standards as exhibited by a leading news channel. As claimed by Newslaundry, the purpose is to critique and criticise what they deem to be unsatisfactory reporting on the part of Aaj Tak. This constitutes an important purpose to use the clips, especially in light of the importance regularly accorded to freedom of press by courts in India. While Newslaundry has clarified that all its videos on YouTube are non-monetized, an argument can be made that the use of the clip is commercial in nature considering that Newslaundry runs based on subscriptions (see here) and these videos are in part an effort targeted towards generating revenue. This, however, appears a little distant chain of causation to link a direct commercial use of the copyrighted work to the video, and is similar to an argument on commercial use that I rebutted here in context of Sci-Hub and donations. Additionally, the character of use in the present case is also arguably transformative in nature. This is because Newslaundy videos (for instance, here) usually involve curating small clips from reported news from other channels, placing them in context, and highlighting the possible shortcomings of the original clips, alongside addition of audio-visual effects.
The second element, that concerning nature of work, requires the court to assess whether the work is factual in nature or is it largely creative. While these days it might be difficult to demarcate whether news reporting has indeed remained factual or a creative work of fiction, it would be safe to say that the concerned works being news reports are legally factual. Hence, this factor weighs in favour of Newslaundry. Moving then to the third factor, the amount of work copied is minimal as very short length clips of the reports are usually taken by Newslaundry in its videos and while it is difficult to argue that those short clips amount to a substantial portion of the original work, it is a fact-specific argument that needs to be discussed with respect to each clip.
Finally, the effect of market needs to be considered. It might be argued that since the clips involve criticism of the reporting of Aaj Tak, with the growing popularity of Newslaundry, this criticism might hamper the market for Aaj Tak’s services if people get influenced by it. However, it must be noted that when the effect on market is discussed in context of copyright law, it is in the nature of substitutability in that will a consumer access the original work from a potentially infringing source instead of accessing it through the original source. Any arguments on losses suffered due to possibly incorrect portrayal of the channel are required to be dealt with by the realm of defamation law. In this context, it is hard to sustain that Newslaundry’s use would have any effect on the market of the original work since they show very short clips from the original work. The viewers might instead out of curiosity, or with the intention of verifying, access the original work more than they would have earlier. Hence, the factors weigh heavily towards the conclusion that Newslaundry’s use amounts to fair dealing.
Criticism, Review, or Current Reporting?
In a previous post, I have discussed in detail the Indian law on the interpretation of ‘criticism’ or ‘review’. The central idea is that the allegedly infringing work should be such that the focus of attention should not be on the original work but on the new work that has been created. Additionally, a liberal approach must be adopted while determining whether a given use amounts to criticism or review, which in turn include inspection or examination of the original work for a second time. In the present scenario, as claimed by Newslaundry, the sole purpose of the concerned videos was to criticise the original work, the reporting done by Aaj Tak. It was a re-examination of the work to determine whether the reporting was carried out in a manner consistent with the journalistic standards expected of an established brand such as Aaj Tak. Hence, it should fall within the scope of ‘criticism’ or ‘review’.
The second possibility of whether it can be covered by “reporting of current events and current affairs” raises interesting questions. This is because the underlying work which Newslaundry is alleged to have infringed is in itself one which can take recourse to this exception if it used any copyrighted work. At the same time, it is arguable that the manner in which contemporary issues are being reported by prominent media houses are also ‘current events’ or ‘current affairs’. Accordingly, any reporting of such reporting so far as it is contemporary in nature for it to qualify as ‘current’, should also be able to avail of this exception. While there does not appear to be much guidance on interpretation of this exception, the decision in Super Cassettes v. Hamar Television Network Pvt. Ltd. had held that alongside criticism and review, ‘current events’ should also be looked at with a liberal view. In light of this, it is arguable that even this exception might be available to Newslaundry.
The above analysis highlights that Newslaundry has a very strong argument to claim fair dealing with respect to the use of Aaj Tak’s clips. The fact that their YouTube channel has been significantly impacted despite this points towards the inefficiency in the copyright enforcement mechanisms that do away with the benefits accorded by the fair dealing provisions. For instance, in this dispute even if Aaj Tak’s copyright claims are eventually rejected by YouTube moderators, Newslaundry still suffers with at least over a month of silence on a leading video sharing platform with no particular recourse. This becomes particularly difficult for non-legacy media houses who rely much higher on their online presence and also tend to have lesser financial pockets to approach the courts. As Divij rightly highlights, this problematic structure is a result of opaque and weak private enforcement mechanisms as well as ambiguous and ineffective laws. There is, thus, an urgent need to rethink the existing framework that allows for easy abuse of copyright mechanisms to stifle free speech and criticism, focusing on the role and involvement of each involved stakeholder including the state and the private players.