Copyright Infringement, Parody and the ‘Fair use Doctrine’

A copyright is infringed inter alia when any person without a license granted by the owner of the copyright, does anything, the exclusive right to do which, is conferred upon the owner of such work[1]. Under the Section 63 of the Copyright Act, 1957 (the “Act”) any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence.

However, the Act exempts certain activities which involves fair dealing of a work in which copyright subsist, from the purview of infringement. These activities are listed in section 52 of the Act and inter alia includes the activity of using any work in which copyright subsists, for the purpose of criticism and review, whether of that work or any other work[2].

In order to create a successful parody or a satire, the parodist or the satirist, as the case may be, necessarily requires his audience to recognize the original work as well as the manner in which it has been ridiculed or criticized. Thus, by the very nature, a parody or a satire borrows and/or reproduces at least parts of the original work, in some form or manner, which results in a conflict with the rights of the owner of the original work. However, in situations where such borrowing and/or reproduction is limited, for the purposes of critical review and does not result is a substantial reproduction of the original work, then a defense of fair dealing can be raised in accordance with the provisions of the section as provided under section 52 of the Act.

In the matter of R.G. Anand Vs. Deluxe Films[3], the Hon’ble Supreme Court has observed that a work may be termed as a substantial reproduction of another in the case where a spectator or a viewer having seen both the works, is of the opinion and impression that subsequent work appears to be a copy. With regard to the term ‘fair dealing’ the Courts in India have made varied observations including some having relied on foreign laws such as the four factors laid down in section 107 of Title 17 of the United States Code. A division bench of the Hon’ble Delhi High Court in India Tv Independent News Service Pvt. Ltd Vs. Yashraj Films Pvt. Ltd[4] which was not related to parodies or satire held that:

Four factors, as per the statute in the United States determine whether it is a case of Fair Use. These are: (i) the purpose and the character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work. And we may simply highlight that even in India, Fair Use is determined on the same four factors: AIR 1959 Mad. 410 M/s.Blackwood & Sons Ltd. v. Anparasuraman where the purpose for which a copyrightable material was used was considered while determining Fair Use: 1978 (4) SCC 118 R.G.Anand v. Deluxe Films & ORs. where the opinion of the spectator or the reader after seeing or reading the works i.e. nature of the copyrighted work was considered: 2008 (38) PTC 385 Del The Chancellor Masters and Scholars of the University of Oxford v. Narendera Publishing House & ORs. where the quantum and value of the matter taken was considered as also the fourth factor i.e. the effect on the market share of the prior work was considered.

The Hon’ble Delhi High Court in the said matter further held that where the infringement violations are of a trivial nature, and where the ordinary viewer will ultimately remember the remainder of the work rather than the trivial use of work in which copyright subsists, the same would attract the defense of de minimis.

However, in the case of Blackwood and Sons Ltd. Vs. A.N. Pursuraman[5] the Madras High Court, while deciding an issue pertaining to publishing of guides which based on a text book and which reproduced substantial portions of works from the textbook, held that the US law with regard to fair use will not apply and on the concept of fair dealing, observed the following;

“In this view the question whether the use to which the copyright work is put is “fair dealing” or not would not arise for consideration but as the matter has been argued I shall express my views on it. Two points have been urged in connection with the meaning of the expression “fair” in “Fair dealing” (1) that in order to constitute unfairness there must be an intention to compete and to derive profit from such competition and (2) that unless the motive of the infringer were unfair in the sense of being improper or oblique the dealing would be fair.”

Further, in the case of Civic Chandran and Ors. Vs C. Ammini Amma[6], which dealt with the issue of criticism of a prior work, the Hon’ble Kerala High Court had held that a ‘counter drama’ of a play which from the decision, appears to have been in the nature of a parody of the original play and involved substantial reproduction of the character, scenes and theme of the original play, did not infringe the copyright in the original play. It was further observed by the Kerala High court in the matter that;

The term ‘fair dealing’ has not been defined as such in the Act. But Section 52(1)(a) and (b) specifically refers to ‘fair dealing’ of the work and not to reproduction of the work. Accordingly, it may be reasonable to hold that the reproduction of the whole work or a substantial portion of it as such will not normally be permitted and only extracts or quotations from the work will alone be permitted even as ‘fair dealing’. In the circumstances, the quantum of extracts or quotations permissible will depend upon the circumstances of each case. It may not be proper to lay down any hard and fast rules to cover all cases where infringement of copyright is alleged on the basis of extracts or quotations from the copyrighted work. In a case like the one on hand, Court will have to take into consideration (1) the quantum and value of the matter taken in relation to the comments or criticism; (2) the purpose for which it is taken; and (3) the likelihood of competition between the two works.

According to Copinger, the learned author, “it is only when the Court has determined that a substantial part has been taken that any question of fair dealing arises. Though, once this question arises the degree of substantiality, that is to say, the quantity and value of the matter taken, is an important factor in considering whether or not there has been a ‘fair dealing’. Further, it is thought that, even under the present law, in considering whether a dealing with a particular work was fair, it would have to be considered whether any competition was likely to exist between the two works. But each case will depend on its facts, and what may be fair in one case will not necessarily be fair in Anr. case.”

In cases where the parodical and/or satirical work did not reproduce a substantial part of the original work and was a completely new, non-derivative work, it would be possible to argue that it would not require copyright license(s) from the owners of the rights in the original work. In the case of RG Anand v. M/s Deluxe Films[7], the Supreme Court had observed that:

‘Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises’

The Hon’ble Supreme Court in the said matter further held that:

One of the surest and the safest test to determine whether or not there has been violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the work is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

In addition to the foregoing, the author of the original work (being a literary, dramatic or musical work), in which copyright subsists, will also be entitled to claim certain special rights in relation to the work which rights entitle the author to claim authorship of the work and  restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work  if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation[8].

Conclusion:

Thus, while there is no consensus between Courts in India when dealing with the issue of parody and satire of work in which copyright subsists, with regard to the question as to what constitutes fair use, from the foregoing precedents, it can be seen that a parody or satirical work which raises the defense of fair use, will generally be assessed prima facie on the following grounds:

  • The Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  • The effect of use of the subsequent work upon the potential market of the prior work;
  • Whether the new work is entitled for a separate copyright protection.

In addition to the foregoing factors, the following factors may also be considered by certain Courts for the purpose of determination of what constitutes fair use:

  • The purpose and the character of the use, including whether such use is of a commercial nature or is for non-profit educational purpose;
  • The nature of the subsequent work which deals with and/or which embodies the work in which copyright subsists.
  • Whether it mutilates and/or distorts the work and/or brings disrepute to the honour and reputation of the author.

[1] Section 51 of the Copyright Act, 1957.

[2] Section 52 (1)(a) of the Copyright Act, 1957.

[3] AIR 1978 SC 1613.

[4] 2013(53) PTC 586 (Del).

[5] AIR 1959 MAD 410

[6] 1996 (16) PTC 670 (Ker)

[7] AIR 1978 SC 1613: 1978 4 SCC118.

[8] Section 57 of the Copyright Act, 1957.

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