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Conscience, Criticism, and Copyright

(Or how Section 52, Indian Copyright Act, works...)

    (Note: This post was written after my being stunned by conversation in which the argument was made that a film of a woman actually being raped — this wasn't a conversation about simulated rape — could/should be shared on SocMed because such sharing is supposedly fair use under copyright law, because the sharing highlights the issue of violence against women, and because it supposedly puts pressure on the police to arrest the rapist. The ethical and other legal ramifications of that argument aside, this post focusses on the copyright strand of the argument being misplaced. Of course, the post applies not just to the sharing of filmed rape on SocMed but to the indiscriminate use of protected content to raise social concerns including in those cases where the content used is unrelated to the concerns raised.)

First draft

The Indian Copyright Act, 1957, doesn't contain a fair use provision. What it contains is a long list of exceptions and limitations to copyright infringement in Section 52 of the statute. These exceptions serve to allow a person to use copyrighted content without the consent of its copyright owner in the limited and narrow circumstances contemplated by them.

The items of the list in Section 52 do not create free-for-all situation which allows copyrighted content to be used without restraint. And they are not in the form of parameters which could be used to determine whether a specific instance of the unauthorised use of protected content is legally permissible; such parameters are found in Section 107 of Title 17, USC, which states:
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

On the contrary, as opposed to the US model, the Indian Copyright Act begins listing exceptions to copyright infringement by stating:
§ 52(1). The following acts shall not constitute an infringement of copyright, namely: (a) a fair dealing with any work, not being a computer programme, for the purposes of— (i) private or personal use, including research; (ii) criticism or review, whether of that work or of any other work; (iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public. Explanation: The storing of any work in any electronic medium for the purposes mentioned in this clause, including the incidental storage of any computer programme which is not itself an infringing copy for the said purposes, shall not constitute infringement of copyright.

After this, Section 52 of the Indian statute goes on to create various exceptions to copyright infringement which are intended to do such things as facilitate cultural activity, enhance education, create avenues for access to law, ensure the smooth functioning of legislatures, help persons with disabilities access copyrighted content, and ease business transactions. Reading the provisions, it is reasonably clear that Section 52 of the Indian Copyright Act aims to balance the monopoly which copyright grants to its owners against public interest to access content, even if it is protected, in a manner which would serve the greater good, so to speak, with the least possible detriment to copyright owners. Further, the exceptions apply not only to copyrighted works, as defined by the statute, but also to performances and broadcasts by virtue of Section 39 of the Copyright Act which states:
§ 39(c). Acts not infringing broadcast reproduction right or performer’s right. No broadcast reproduction right or performer's right shall be deemed to be infringed by— [....]such other acts, with any necessary adaptations and modifications, which do not constitute infringement of copyright under section 52.
What the exceptions and limitations under the Copyright Act, however, do not allow one to do is to use protected content (or broadcasts, or performances, for that matter) for the purposes of social commentary or to supposedly bring up matters of conscience. Section 52(1)(a), which is arguably the most important item in the entire provision, amongst other things, allows fair dealing with protected content for the criticism or review of works, or for the reporting of current events and current affairs.

The criticism, review or reporting contemplated by Section 52(1)(a) of the Copyright Act is not unrestricted. Criticism and review, under this provision, must be fair and may only be of works – that is to say, of literary, dramatic, musical or artistic works, or cinematograph films or sound recordings per the definition of ‘Work’ contained in Section 2(y) of the statute – or, by virtue of Section 39, of broadcasts or performances. Neither Section 52 nor Section 39 can be used to excuse the infringement of copyright for the purpose of criticising something which is not a work such as violence against women, some other social issue, or an abstract idea.

The clause in Section 52(1) of the Copyright Act which permits the unauthorised use of copyrighted content to report current events and current affairs obviously does not contain a clause relating to ‘works’ (as does the one on criticism and review) but like the one on criticism and review, it does require the use to be fair. What is ‘fair’ has generally been determined in India with reference to the parameters laid down in Section 107, Title 17 of the US Code (extracted earlier). In light of the vagueness of the parameters therein, it is extremely difficult to predict what would be held to be ‘fair’ by a court. It is reasonably clear, however, from case law, that out-and-out commercial use may not be considered to be fair, and that in determinations of what is 'fair' would be based on the quantum and quality of protected content used, as well as on the nexus between the protected content used and the content in relation to which it is used. For example, courts have not been known to treat sympathetically claims that the unauthorised use of music to accompany news items that have nothing to do with the music amounts to fair dealing.

To claim that the unauthorised use of protected content for the purposes of criticism or review is acceptable without reference to the requirements that the use be fair and that the use be to criticise or review a work is to argue against the plain meaning of the statute. Similarly, to claim that the use of protected content without authorisation to report or comment on what’s happening in the world without highlighting that the use must necessarily be fair is contrary to the statute. In the case of works, one could go a step further, and read into Section 4 to argue that the publication of a work without the consent of its owner is in and of itself infringing as is, per Section 38A, the publication of a filmed performance without the consent of the performer who has not agreed in writing to be filmed in the first place. (As distasteful as the terminology of the Copyright Act is in these circumstances, filmed rape would almost certainly fall into the latter category.)

There are arguments which could conceivably be made to support the unauthorised use of protected content – ‘insubstantiality’, for example, if the quantum of content is low, or ‘transformation’ if the content is used in a context entirely different from that of its original work. The insubstantiality argument, in the case of works, can be made by virtue of Section 14 while in the case of broadcasts and performances, it can be derived from Sections 37(3) and 38A of the Copyright Act respectively. All three of these provisions begin similarly with reference to substantiality. To illustrate, Section 14 of the Indian Copyright Act begins by stating:
§ 14. Meaning of copyright. For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof: [….]
Section 14 continues to allow copyright owners the exclusive right to do such things as reproduce, or authorise others to reproduce, works which they own. But given that the provision explicitly applies only to an entire work or to a substantial part of it, it stands to reason that it does not apply to a sliver of a protected work which may consequently be used without the authorisation of the copyright owner. What constitutes such a usable sliver is debatable though – copyright law determines what constitutes a ‘substantial part’ with reference not only to quantity but also to quality. As such, it could well be the case that any potentially recognisable part is ‘substantial’ as far as the law is concerned.

As for the transformative use of protected content being permissible: that argument comes straight out of US law and jurisprudence. It has been accepted by an Indian court in relation to works and, as such, is not alien to Indian jurisprudence. That said, it does not find mention in the Indian copyright statute.

Considering this, although arguments of insubstantiality and transformation could be used to defend the unauthorised use of copyrighted content, whether such arguments would ultimately prove to be sustainable is not guaranteed, and assessments would likely be made on a case-by-case basis. Simply because one wants to use copyrighted content to advance a social agenda or to answer what one claims are the dictates of one's conscience, it doesn’t automatically follow that copyright law would necessarily facilitate one’s doing so. This is particularly true in cases where there is no discernible nexus between the content shared without authorisation and the concern raised purportedly as a matter of conscience.

(This post is by Nandita Saikia and was first published at Indian Copyright.)