Copyright Limitations on Media Freedom

This post was first published on March 12, 2010.
Contributed by Professor Sridhar Madabhushi
The newspaper you read this morning, the TV channel you watched this evening, the movie you saw last week, the computer software you use to write a letter, the music you listen to in your system, they are all copyrighted. There is a paradigm shift from viewing copyright as a monopoly that the public is willing to tolerate in order to encourage innovation and creation of news works to viewing copyright as a significant asset to country’s economy[1]. Nothing can be more properly described as a man’s property than the products of his mind, and over the years a system of law has been established to protect the ideas- patents for inventions, copyright for literature and art, and so on. The intellectual property system has served us well by encouraging creativity and innovation and the spread of ideas. Without copyright law, the publishing and record industries would scarcely operate. The entertainment world would be in chaos[2].
With its enormous writing and printing activity, the media may confront several copyright issues. Whether it is a letter to the editor, or a contribution from a free lance journalist, or a commissioned interview, or a photograph purchased or a story sought for magazine section or an investigative report sent by staff correspondent, the publisher is concerned with the ownership and other related rights regarding that creative writing.
Lord Macaulay, the British nineteenth century author and statesman, said: “The system of copyright has great advantages and great disadvantages, and it is our business to ascertain what these are, and then to make an arrangement under which the advantages may be as far as possible secured, and the disadvantages as far as possible excluded”[3].
By securing the interests of the authors, and giving financial rewards, it stimulates creativity, thereby learned men to compose and write useful books.
The Law
The copyright is available for three different categories of works such as a) original literary, dramatic, musical or artistic works, b) sound recordings, films, broadcasts and cable programmes, and c) the typographical arrangement of published editions (according to UK Law, Copyright, Designs and Patents Act 1988). The literary work need not necessarily be a literary one. The expression literary work is defined in s 3(1) to mean ‘any work, other than a dramatic or musical work, which is written, spoken or sung’. Thus it includes a) a table or compilation (other than a database), b) a computer programme, and c) a preparatory design material for a computer programme, a data base. Database is not a table or compilation, but is listed separately to include in literary work which, in fact, means a written work. In the UK the main criterion for copyright protection has always been the hard work put by the author, rather inelegantly describing as ‘sweat of brow’, irrespective of intellectual creativity. There must be something definitely creative in the way the author has handled the material if it is to attract copyright.
A film script, but not the actual film or its sound track, will normally count as a dramatic work. Dramatic work includes a work of dance or mime. Feature films, newsreels, home and music videos, television programmes and filmed advertisements are also part of these dramatic works.
Broadcast also can be copyrighted. It is defined as a transmission by wireless telegraphy of visual images; sounds or other information (for example teletext) which is capable of being lawfully received by members of the public or is transmitted for presentation to members of the public. It includes analogue, terrestrial and satellite broadcasts by television or radio. Broadcasts are protected independently of the material, which is the subject of the broadcast. Thus if Star TV broadcasts a feature film, copyright subsists in the broadcast and in the film itself. Copyright does not subsist in a broadcast, which infringes, or to the extent that it infringes, the copyright in another broadcast or in a cable programme.
Copyright exists in the typographical arrangement of a published edition of the whole or any part of one or more literary, dramatic or musical works. This right exists separately from the material that is the subject matter of the edition. It is a special and narrow type of copyright, which protects the image on the page. Its purpose is to protect the publisher’s investment in the typesetting work. Copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition. Publication is defined as the issue of copies to the public, which is likely to include making the edition available electronically, for example, over the Internet.
When the copyright is acquired?
The copyright in written work is automatically acquired. There is no need to apply for or register it. As soon as it has been recorded, in writing or otherwise (including electronically), the work is protected by copyright. The position of copyright of unpublished or published work is almost the same. The general rule in UK , throughout the EU, and US is that copyright lasts until 70 years after the end of the year in which the author died, post mortem auctoris (pma)
Purpose of copyright:
Public purpose is the real purpose of regulation of copyright. The Constitution of United States, Article I, Section 8 Clause 8, explained the purpose: The Congress shall have the power ‘to promote the progress of science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective writings and discoveries. This is the basis for Copyright Law and also the Patent Law.
The Constitution of India did not have a similar provision, but it can be read in the rubric of liberty of thought, found in Preamble, freedom of expression under Article 19(1)(a), and right to life under Article 21. In fact, the copyright is the sister of printing press. When the press was introduced into England in 1476, the need for protection of printed works was felt inevitable. And when the copying became technically much more easier, effective, faster, wide spread and neat than the original, the need for copyright protection is much more higher and intensive. The creative live music performance by eminent singer such as Dr Mangalampally Balamuralikrishna could be recorded and inscribed into VCDs and Audio CDs for sale in the next minute after completion of the concert, and it could be telecast live simultaneously all over the world. There is a need to protect the rights and derivative economic benefits of the owner of that great voice and skill and those who invested huge amount of money to organize such a concert. To quote another example, a film made with great effort and high capital, could be copied within seconds into multiple numbers of VCDs, which would totally reduce the market for the original producer. A copyright law, thus, is needed to secure a fair return for the author’s labour. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good’.
Judge Walker of the Second Circuit has summarized: ‘the copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation.’ The public interest is the criterion for copyright protection.
Doctrine of Fair Use:
The only balancing factor in this regulation is doctrine of fair use. It is the most important of the rights of the users. Unfortunately the fair use is the least specifically defined and least understood of user’s rights. Certain specific fair uses of copyrighted works are not infringements even if they involve in copying, adapting, performing, or displaying the copyrighted work. The Act lists four non-exclusive factors for courts to consider in determining whether any particular use is a fair use and thus not an infringement of copyright. The four factors are: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for non profit 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. A court is required to examine these factors in adjudicating an assertion of infringement by the copyright owner on the one hand and the assertion of fair use by the alleged infringer on the other.
Doctrine if fair use defence will be judged again on the basis of the public interest.
The Courts can refuse to enforce copyright on the basis of public interest defense which include those where the work is:

  1. a) immoral, scandalous or contrary to family life;
  2. b) injurious to public life, public health and safety or the administration of justice
  3. c) incites or encourages others to act in a way referred to in (b)[4]

If the copied material was intended to be used for non-profit, personal, educational or informational purpose, it could be a fair use. Its commercial use or profitable exploitation might not be a fair use and thus be treated as an infringement.
Is it tool of monopolistic oppression?
But due to misconception of this law, this is used as a tool for censorship and monopolistic oppression. Earlier protection was confined to 14 years with a possibility for extending for another 14 year term. The Copyright Term Extension Act passed in October 1998, in US extended basic term lasts for the life of the author plus seventy years.
The monopoly is extended and the public has to wait for any given work to enter the public domain. Under No Electronic Theft Act, 1997 NET Act, an individual who is engaging in willful infringement can be held criminally liable for profit or commercial advantage. The Digital Millennium Copyright Act, 1998, provided both civil and criminal legal sanctions for the circumvention of technological measures employed by copyright owners to control access to their works. This Act permits copyright owners to force Internet service providers to remove material from the Internet and the World Wide Web when the copyright owner believes the material in infringing.
The copyright regulation, which now had an international spread and effective control beyond the borders, also is another major limitation that operates on media freedom. It intends to protect the intellectual property of the writers and creators. Either print or electronic, the media has to depend upon the views and literary works of the others for publications. Then the media organization steps into the shoes of a mere publisher having no control over the author’s intellectual property. While freelancers, article writers do have a cover for their own innovated property of their intellect, the newspaper owner or a news channel proprietor has no authority over the day-to-day events. However, beautiful the expression may be the news constituted in it forms the part of ‘current affairs’ and none could own it. Like the state, which generates whole lot of information, does not own it, editor or publisher equally does not own every bit of information that passes through their controls and gets communicated to millions of people.
Author, the owner:
Normally, the author of the work is the first owner of the copyright. The Copyright can be a valuable piece of property and it is important to know who owns it at any particular time. Where an editor asks his reporter to produce a news article, or directs him to report events in a particular period in course of his employment, the employer owns the copyright, subject to any agreement to the contrary. Like other pieces of property, copyright can be sold, given away, bequeathed or, if there is no will, inherited by the author’s heirs. It is quite possible for an author to assign only part of the rights, perhaps rights of translation, or film rights, or rights in a specified country, or part only of the duration of copyright.
The intellectual property need not be strictly original to be secured under copyright law. Any improvement, précis, comment, translation, compilation, editing, summing up, head noting or any such formulation is protected effectively by the copyright regulation.
No copyright over News and current events:
In Indian Express Newspaper (Bombay) Pvt Ltd., Jagmohan,[5] the reporter of Indian Express, Mr. Ashwini Sarin investigated into the flesh trade in Madhya Pradesh and purchased in Shivpuri village, a woman “Kamala” for Rs 2,300 to establish the trafficking in women. He then wrote series of articles exposing the prostitution trade and involvement of bigwigs from politics and police department on 27th, 29th, and 30th April 1981 and 2nd May 1981.
Then Mr. Vijay Tendulkar scripted a play by name ‘Kamla’ totally based on the Indian Express exposure, and staged the play for 150 times in 32 cities and in seven languages. Jagmohan Mundhara, a film producer planned to produce a film on the same theme from the same writer Vijay Tendulkar. Journalist Ashwini Sarin and the Indian Express newspaper complained that Jagmohan and Vijay infringed their copyright. The Indian Express contended that, when serious of sensational reports resulted from sweat of brow of the journalists, and forms an effective expression of what was happening around, why not it be protected? How is that others could make capital out of it leaving the original authors of the ‘exposure’ without any protection to their writing?
The Bombay High Court held that there could not be any copyright in an event which actually taken place. The Court observed: “There is distinction between the materials upon which one claiming copyright has worked and the product of the application of his skill, judgment, labour and literary talent to these materials. The ideas, information, national phenomena and events on which an author expends his skill labour, capital, judgment and literary talent are common property and are not the subject of the copyright”.
This judgment ignored the skill, capital, talent and labour invested by the journalist and simply termed the incident as national phenomena and finally refused the copyright to journalists. The Court should have recognized the way the national phenomena or tragic happening in society was creatively reported by the journalist alerting the authorities.
The justice could be ordering Vijay Tendulkar and Jagmohan to acknowledge the efforts and risk of Journalist and secure his permission on token payment of a share in their proceeds. If not it would amount to permitting a theater and cinema person to commercially exploit an expression of idea which is not their own, which is against the spirit of copyright regulation.
Judicial pronouncements on public interest and fair use:
In 1998, in Pro Sieben Media AG v Carlton UK Television Ltd.,[6] the Calton UK TV had broadcast a current affairs programme which critically analyzed the issue of chequebook journalism and the sale of stories about people’s private lives to the media. The programme included a 30 second sequence taken from an interview, which was the broadcast of the plaintiff Pro Sieben with Mandy Allwood, a woman who was notorious at the time for being pregnant with eight fetuses, and making money out of her situation. The plaintiff complained infringement of his copyright and the defendant pleaded the fair use defence for criticism or review. The trial judge refused to accept the defence of fair use and held there was no sufficient acknowledgment of the author of original programme The Court of Appeal reversed the decision finding that there had been sufficient acknowledgement. The Court explained that the exemptions under doctrine of fair use had achieved proper balance between protection of the rights of a creative author and the wider public interest and that the free speech is an important part of that wider public interest. The fair dealing is for the purpose of criticism, that criticism may be strongly expressed and unbalanced without forfeiting the fair dealing defence. The words ‘for the purpose of criticism or review’ and ‘for the purpose of reporting current events’ should be construed as composite phrases. The intentions and motives of the user of copyright material were highly relevant in relation to fair dealing. The criticism includes the criticism of ideas and style. The programme was a comment on cheque book journalism in general and the treatment by the media of the Allwood story in particular. The event was a current event, and the use of extract was short, and thus there was no infringement.
Diana case:
In Hyde Park Residence Ltd, v Yelland[7], a newspaper published still photographs taken on a security camera when Princes of Wales Diana, and her friend Dodi Fayed visited Villa Windsor in Paris, on the day prior to their deaths in a car accident. The photographs were stolen by a security guard and sold to the newspaper, which published them more than a year later. Hyde Park had sought summary judgment at the first instance relying on breach of copyright. The defendant relied on the defence of fair dealing for the purpose of reporting current events. The judge upheld it as fair use. However, it was reversed on appeal. Motives of alleged infringer, the extent and purpose of the use, whether that extent was necessary for the purpose the purpose of current events in question will decide the fairness or otherwise of the usage. In Diana case the work (photographs by security camera) had not been published or circulated to the general public. This was considered to be one of the important indicators that the use was not fair and not for the purpose of reporting current events. The Court examined the doctrine of fair use on the touchstone of a reasonable man and said: ‘A fair minded and honest person would not pay for the dishonestly taken driveway stills and publish them in a newspaper knowing that they had not been published or circulated’. Another factor was that the extent of the use was also held to be excessive.
Weakness of Copyright Law
In R.G. Anand v. Delux Films and Others[8], Mr. R.G. Anand penned, produced and staged a drama called “Hum Hindusthani” in Wavel Theater New Delhi. It was a popular drama appreciated by the press and public during 1954-56. The Delux Films made a film ‘New Delhi’ on the same theme and released in 1956. R. G. Anand saw the film and found it an exact copy of his drama. On a suit filed by Anand, the lower courts found no infringement of copyright. The case reached the Supreme Court found that there was a clear violation of copyright by the film producer, and that it was an act of piracy. However, the Supreme Court said that the complainant had the onus of proof that it was an act of piracy, which is very difficult. The Supreme Court explained what were the infringements:

  1. There can be no copyright in an idea, subject matter, theme, plots or historical or legendary facts.
  2. Where the same idea is being developed in different manner, it is manifest that source being common, similarities are bound to occur. In order to be actionable the copy must be substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
  3. According to the Court one of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the same opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
  4. Where the theme is the same but is presented and treated differently so that subsequent work becomes a completely new work, no question of violation of copyright arises.
  5. Where however the question of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy.

Justice R. S. Pathak observed that the Supreme Court must spell out the law in another deserving case, clearly what the infringement and who had to prove it, and strengthen the copyright law. He said: “It may be necessary for this court to interfere and remove the impression which may have gained ground that the copyright belonging to another can be readily infringed by making immaterial changes, introducing insubstantial differences and enlarging the scope of the original theme so that a veil of apparent dissimilarity is thrown around the work now produced”.
This case and judgment expose the weakness of copyright law and hardship involved in establishing the piracy of copyright by the author, as it demands a clear and cogent evidence and application of relevant tests.
In contrast, a guide or compilation, which involves less skill and less energy, is effectively protected.
Guide and quotations:
In E.M. Forster vs. A.N. Parasuram,[9]. the University of Madras prescribed Forster’s novel ‘A passage to India’ as a text book for B.A. Degree Students. Parasuram published “Everyman’s Guide’ for this book. The guide contained an introduction to the author’s life, works, analysis of theme, character sketches and social issues discussed in the story. Author E.M. Forster and his publisher Edward Arnold initiated action against Parasuram. The single judge found no violation of copy right as there was no substantial copying of original book, and found the guide as his independent literary effort. The Division Bench confirmed the single judge’s ruling and held that textual essay was skillfully arranged. The court concluded that, the respondent’s work was neither an abridgment nor a piece of literary criticism in itself. It was functional in character. The court clarified that verbatim quotation from an original work was permitted as essential for fair criticism. Reasonable reproduction of passages for critical review is ‘fair dealing’ and substantial reproduction would invite the penal provisions.
Substantial Reproduction:
In Secondary Board of Education v. The Standard Book Company,[10] the West Bengal Board of School Education published an English text book for VI Class entitled “Parijat Readers Book One”. The Standard Book Company came out with Notes on Parijat Readers Book One. Court agreed with the contention of the petitioners that the Standard Book Company with substantial reproduction of text book along with the notes was competing in sales with the original book, which was unfair.
Examination Papers:
In Rupendra Kashyap v. Jiwan Publishing House[11], the Delhi High Court held that the Examination paper was a literary work, which could be a subject matter of copyright. The court held that CBSE had copyright over the examination papers it got set by the experts of the subjects on consideration. Setting an examination paper requires creativity and lot of effort on the part of the person who sets it.
The UK court granted copyright protection to an interview made by the newspaper. In Express Newspapers v News(UK)[12], it was held that a reporter’s interview lasting over eight and half hours, the whole conduct of the interview and the selection of quotations involves sufficient skills and judgment of the reporter to enable him to acquire copyright in the quotations included in his report. The subject matter of interview, ideas, expressions, events quoted by him involving that personality etc totally belong to the interviewee but yet such a person do not find any protection or economic benefit for that.
Here are two more examples. Hadji Lello Zeitun was a famous freelance detective. A writer Mr Evans interviewed him and collected all interesting detections he ventured, and wrote them in a series of articles. When they were about to be published Mr Zeitun raised a dispute about the ownership of copyright. The court held that Mr Evans was the sole author, as the person alone responsible for the literary form of the matter. It was fallacious to talk of Zeitun’s being the a joint author although he supplied the ideas[13]. This case was followed in Donogue v Allied Newspapers, 1938. Steve Donogue was a renowned jockey of the day. Allied Newspapers paid him 2000 pounds to give information about his career to their reporter and to no other newspaper. The reporter wrote up the material and it was published in series of articles in the News of the World. When the reporter with the consent of Allied Newspapers started to republish the articles in amended form in another paper, Donogue tried to stop him. He was unsuccessful. The court held that copyright exists in the particular form of language in which ideas are conveyed; there is no copyright in the ideas themselves.
The hard work put in by the detective and the jockey has been merely reduced to ideas and the persons who just gave a literary shape to it became the authors and owners of copyright. Whereas in Indian Express case, the hard work by the reporter was considered an idea while, the dramatic expression of that sensational story by some other will acquire copyright. The theory of sweat of brow some times favours the persons who really author new scripts of history and some times, however creative the expression may be, provides protection only to that. The concept of an idea taking shape of a format and design getting protected under copyright is now emerging.
It appears that the copyright protection is not uniform and reasonable as some individuals are denied the protection while the corporate media giants exploit the economic benefits out of it. The law should be strong in favour of weak. But unfortunately the copyright, which is basically known as ‘intellectual property’, is denying the protection to the intellect of an individual and transferring such protection to those who convert it into different form and exploit. If such hard work and adventurism is not encouraged, there will be no stimulus to such activity. A reporter getting into an Investigating venture and recording a very clinching evidence for the unlawful activity or corruption must be regarded as one who created a literary work. reporters ventured to expose the corruption tendencies in Defense department on arms purchase deals. The corruption is, perhaps national or international event, but the style of its exposure must be a creative work, which needs protection. Any TV channel wants to use such a sensational visual records should definitely take the license or permission of Tehelka. Similarly ZEE news camera has recently captured the huge stocks of fake foreign currency and fake stamp papers in Mumbai, which resulted in discovery of a big racket. That visual must be a prized possession of the adventurous TV journalist. More than writing a fiction, which definitely require innovative skills, securing the recorded evidence of corruption is more innovative, and thus requires to be secured, because public interest is involved in it.
After Devanand case discussed above, the rights of performers were recognized. Similarly it is will be more reasonable to recognize the rights of the adventurists who discover the social happenings under a cover of influence and corruption, to treat them on par with the persons who divert them into creative formats like films, dramas and other electronic performances.
In C. Cunaiah v. Balraj and Co,[14] the Author of Mayura Priya, portrait of Lord Bala Subrahmanya, assigned copyright in the picture to M/s C Cunnaiah and Co, which reproduced copies and was selling since 1940. M/s Balraj & Co also started selling calendars of Bala Murugan with color imitation of great similarity. Reversing the lower court order, the Madras High Court found the face of Balamurugan as an exact copy of Mayura Priya and granted injunction against Balraj & Co. Though, there is an adaptation and improvement in the work, the court refused to recognize it because, the basic form was copied.
TTD employed an artiste to draw the picture of Lord Venkateswara, which is still being reproduced only by TTD. It has an exclusive copyright over it and exploiting it in every year selling lakhs of calendars of different size.
In Tata Yellow Pages case the Supreme Court held that the Telephones Department did not own any copyright over the list of telephone users, as that was not a literary work. Time Tables of RTC and Railways also cannot be subject matters of copyright, because there is nothing creative in it, except a lot of hard work in their compilation.
Photos of National Leaders:
There was a legal dispute over usage of NTR photos and posters by the group, which has overthrown the leader. The pro-NTR group raised objection to usage of his photos by the anti-NTR group after demise of NTR. The AP High Court and held that no one could own an exclusive right to use the photographs of national leaders, and refused to restrain usage by rival group, of NTR photos, considered to be one of the national leaders. However, if a photographer has made a very creative photograph of NTR, he could have exclusive right to its economic value from selling and multiplying the copies. No one, including the two groups can claim the ownership. If it is a posed photograph, commissioned by the person whose photographer was being taken, the author of the photo is that person and not the photographer, though he has a right to be acknowledged as photographer and right to claim the agreed price for it. If the photo of that person is neither arranged nor commissioned by that person, he does not have any copyright over it, but the photographer has every right. In a posed photograph, the sitter has to give permission for copying. Unauthorized publisher of that photograph can be sued on the ground of breach of confidentiality. In un-posed photo, consent of the sitter is not required.
Head Notes:
In Eastern Book Company v Navin J Desai[15], it was held that if head notes were verbatim extracts from the judgments of the court there was no amount of skill or labour involved in preparing the head notes and no person can claim a copyright therein. Copyright will subsist in head notes only if there is originality in the preparation of head notes.
Head notes contain in clear and concise language of the principal law deduced from the decision to which it is prefixed or the facts and circumstances which bring the case in hand within some principle of rule of law or of practice. The preparation of such a headnote or the side or marginal note of a report of a judgment requires the exercise of skill and thought. The head notes of law reports are therefore original literary work, which are entitled to copyright protection[16].
Substantial Alteration:
To create a copyright by alteration of the text, there must be extensive and substantial alterations, practically making a new book.
Copyright & Freelance writer:
A free-lance journalist, who is not employed by any newspaper or magazine, retains all forms of copyright in articles sent to different papers. He has right for all forms of reproduction, unless there is a special arrangement to the contrary. A publisher cannot reproduce the article of a writer in another of his publications, without the prior permission of the author.
Letter to the Editor:
A letter to the editor is intended to be published only once. The author of the letter retains copyright in the contents of his letter. The newspaper cannot reproduce the letter on a second occasion. However, it can quote from parts of his letter in follow up story. Because that reproduction could be a fair dealing for the purpose of criticism, review, reporting current events etc[17].
Whether an editor can alter or delete or add to the letter written by a reader? In a case in Britain, it was held that in the absence of express or implied prohibition, the editor has the right to make reasonable alterations.
If some material is sent to the Newspaper, free of cost, the newspaper cannot become the owner of copyright. For example, if an association sends its annual report, the newspaper cannot acquire copyright over it. It can own the copy of the report but not a copyright in it. Similarly a book sent for review will not entitle the newspaper any right in its creative writing.
Copyright subsists in private letters, commercial letters and Government letters, as they are original literary works. The author of the letter is the original owner of the copyright in the case of private letters. In case commercial or Government letters written by employees in the course of employment the copyright in the letter belongs to the employer. [Section 17(a)]
What is worth copying is prima facie worth protecting, as held in University of London Press case. When the Indian Express’s report on Kamala could be worth copying by Cinema producers and Drama Artistes, it has to be protected from them.
Works, which cannot be copyrighted:
Apart from hard work, creativity and originality, there are other factors, which create problems for media with regard to copyright issues. There is no copyright for works, which are not original, libelous, immoral, obscene, or positively of an irreligious bearing. There can be no copyright in works, even though they are original, if they are against morality or public policy. Works, which are of grossly immoral tendency, works which are calculated to deceive the public, works, which are contrary to public policy, or works which are seditious.
Reproduction of an inflammatory news item from a different newspaper may not give rise to copyright issues, but the peace in the society and lives of the people matter most, compared to the economic value and legality of the news reports copied from others. A news report published in Deccan Herald during late 1980s, with a provocative headline “Mohammad, the idot!” was republished in one of the local dailies in Andhra Pradesh. More than a copyright issue, the police were bothered about the law and order in communally sensitive old city and arrested the editor for provoking such a disturbance.
Banned writings:
The Copyright is a statutory right. Hence, a writing or work banned by another law cannot secure a protected copyright under 1957 Copyright Act.
Enforcement mechanism
In India, one of the most important factors that hinder the spread of copyright awareness is the lack of enforcement mechanism. In US Copyright Clearance Center (CCC) is created to secure the rights of the copyright holder. It is a not-for-profit licenser of photocopy and electronic reproduction rights. The CCC and Publications receive complaints of unlawful photocopying and other infringements. The CCC and publications encourage the whistleblower and offer cash payments for reporting illegal activity. Even for photocopying the intending person has to obtain permission from licensing representative such as Copyright Clearance Center. If the photocopy activity exceeds the limitations of fair use, one is required a photocopy license. In most instances copyright infringement by photocopying are settled before a lawsuit is filed or the case goes to court. In these cases, undisclosed amounts (often quite substantial) are paid to the plaintiffs.
In American Geophysical Union et al. vs. Texaco Inc., a class action suit filed against Texaco on behalf of all publishers registered with CCC both the trial court and the appeals court rejected Texaco’s argument that its photocopying activity was fair use. As a result, instead of proceeding to trial, Texaco paid a seven-figure settlement and agreed to take retroactive CCC licenses. The law does not recognize ‘best efforts’ exception. The copyright owner may file a federal lawsuit against anyone who reproduces his or her works without permission, even in cases where the user claimed it was difficult, time consuming or expensive to locate the owner. The copyright owners and users of copyrighted materials developed an efficient mechanism in US for the exchange of permissions and royalties. Acting as an agent for over 9600 registered publishers and hundreds of thousands of authors and creators worldwide, CCC can authorize any company to photocopy from over 1.75 million titles included in its repertory. The international Federation of Reproduction Rights Organization IFRRO recognizes CCC as the principal photocopy permissions agency in United States.
The Association for Copyright Enforcement ACE and Association of American Publishers AAP, support the CCC program and have agreed that they well not pursue nor support copyright infringement litigation by their members against CCC licensees.
In India, the authors are not organized; their writings are not properly valued. The publishers continue to exploit the economic benefits from the writings of the author. The royalties and copyright prices are very minimal compared to profits made by the publisher. The accounts are also not sought from publishers. Writer’s society has to be formed and with the state support these societies should enforce the copyrights and regulate the licensing process.
The law of copyright in the name of intellectual property right renders strong protection for the benefit of content owning industries such as the publishing industry, the music and motion picture industries and the computer software industry which include the corporate publishers, multinational broadcasters and media giants, and work out against the individual violators. The misunderstanding that the primary purpose of copyright law is to protect authors against those who would pilfer the author’s work threatens to upset the delicate equilibrium in copyright law.
Though the doctrine of fair use offers a wide range of facility to disseminate information, there are certain strong areas, which impose harsh consequences on individual and academic users of information disseminated over the media, either electronic or print. To serve the purposes and objectives of the of the law as indicated by it’s title, the individual intellect has to be given priority and preference to the interests of multi-billion dollar entertainment industry or information industry. The writers and performing artistes should form associations and fight for securing their rights and interests as available under the present copyright regulatory regime and plead for more and more protections.
The purpose of copyright is understandable when it comes down heavily on mechanical copying and satellite level infringements affecting the business. But the law must be liberal when it comes to the use of the information for individual or academic purposes; the scope of doctrine of fair use as an exemption from copyright liability must be as enhanced as possible. The individual authors must be protected from exploiting publishers.
The courts and the law should allow the expansion of the scope of fair use and thus enlarge the need for dissemination of information freely through out the world without any barriers at any stage. It is the duty of the state and society to see that the dissemination is permitted by the wider practice of doctrine of fair use. The fine balance between the rigour of copyright and flexibility of fair use has to be maintained. The great advantages must be in tune with avoiding the great disadvantages of this global regulation.
The strict enforcement of stricter law of copyright should not result in loss of general storehouse of knowledge, because copyright seeks to stock the knowledge and not to lock it. Too long and broad monopoly for copyright will not help promotion of knowledge and learning, which is the real purpose of copyright regulation. The copyright law should not be viewed solely as an economic regulation, and its priority should not be the protection of economic rights alone. The public interest in public dissemination as the basic purpose of law must always be kept in mind while dealing with questions and disputes over this regulation, whether global or local.
The globalization of copyright laws, though intended to secure the interests of multinational information and entertainment giants, the individual intellect should also be strongly secured by these regulations, if not, the goal of globalization to make the globe a ‘vasudhaiva kutumbakam’, may not be truly realized.
[1] Lydia Pallas Loren, The Purpose of Copyright, Open Spaces Quarterly, February 7, 2000, from Opposing Copyright Extension Homepage.
[2] Statement of Secretary of State for Trade and Industry while introducing the Copyright, Designs and Patents Bill to the House of Lords in 1988, as reported in Copyright and the Public Interest, by Gillian Davies, Thomson, Sweet & Maxwell, p 70-71
[3] Lord Macaulay, as quoted by Gillian Davies, “Copyright and the Public Interest, Thomson, Sweet and Maxwell, p 235
[4] As held in Hyde Park decision [2001] Ch. 143
[5] AIR 1985 Bom 229
[6] (1999) 1 WLR 605
[7] [2001] Ch. 143
[8] AIR 1978 SC 1614
[9] AIR 1964 Mad 331
[10] Calcutta Weekly Notes, CWN (1966) 1130
[11] 1996 PTC 16
[12] [1990] FSR 359
[13] Evans v Hulton, 1924 UK
[14] AIR 1961 Mad 111
[15] (2001) PTC 57 57 (Del) at p 93
[16] Sweet v Bening [1955] 16 CB 459 quoted in Raghunathan v All India Reporter Ltd., AIR 1071 Bom 48.
[17] Bakshi, P.M., Press Law, An Introduction, 1986, p 171

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