Category Archives: Copyright

Copyright Societies And The Copyright (Amendment) Act, 2012

Introduction

Copyright Societies are formed to collectively administer the work in order to protect its copyright, these societies are formed and managed by authors and owners of such works. It is not practically possible for every author or owners to keep a track of all the uses of their work. When a person becomes a member of national copyright society, his work is being kept under better vigilance and track of all the uses of his work are kept strictly because of the powers and facilities granted to copyright societies, also, collection of all the royalties for the usage of the work becomes easier. Moreover, our country being a member of the international conventions, the Indian copyright societies have a chance to collaborate with foreign societies and this facilitates the collection of royalties in those countries for usage of the work as well. It is therefore, in the interest of copyright owners to join copyright societies to get maximum economic benefit of their works.

Copyright Societies in India

In India a copyright society is registered under Section 33 of the Copyright Act, 1957. Such societies are formed by authors and owners and only one society can be registered to do business in respect of the same class of works. Formation of a copyright society requires minimum of seven members.

The business of providing licence for any dramatic, artistic, musical or literary work incorporated in cinematic or sound recording form should be carried out only through a copyright society duly registered under this act. The period for registration granted to a copyright society is five years and it can be renewed bore expiry of this period or at the end of it.

Effect of Copyright (Amendment) Act, 2012 on Copyright Societies

The Copyright (Amendment) Act, 2012  (2012 Amendment) came into force with the primary objective of establishing an equitable and just framework for administration of copyright and sharing of revenue to protect the rights of owners and authors incorporated in cinematography and audio recordings.

The amendment of 2012 added to the burden with respect to “issuing or granting licence” in respect to the above mentioned works. Previously, the Copyright (Amendment) Act, 1994 added Section 33 to the Act which made it mandatory that only copyright societies can grant licence or issue copyright licence. As a part of the 2012 Amendment, section 33(3A) was added, which laid down a new guideline that any copyright society carrying out the business of granting or issuing copyright licence must register itself again within the period of 12 months from the date of the amendment. Therefore, any copyright society which existed prior to the amendment has to re-register itself within the given time frame. Also, there was no punishment prescribed in case any copyright society fails to do so.

Problems with the Amendments in 2012 and 1994

There are always 2 sides of every coin. Though the attempt of government in the amendments was genuine, there are certain ambiguities that jeopardise the interest of non-author owners of a copyright in case of creative works. Section 33 which was inserted by the 1994 Amendment mandated only the copyright societies to carry in the business of “issuing or granting licence” for creative works. But, it does not say anything about the copyrightable work. Also, it has to be taken into consideration that Section 18 of the Act says that the owner of creative work can assign the copyright to any “person”.

Therefore, an owner or author has the right to assign his copyright to a production company and also has the right to assign it to any other person at the same time. So, in such a process, forming a copyright society is not necessary. However, a specific bar is created by Section 33 on any other person or entity who may be assigned any such right as stated in Section 18 to issue these licence as a copyright author or owner of a copyrightable work. The ambiguity is that only a copyright society has the right to get involved in business of issue of licence by virtue of Section 33, even when under Section 30 the copyright owner has the valid right licence a work. Section 30 and 18 are provisions of the act since it came into existence. The impact on these sections by Section 33 which was added later has not been clarified either by the statue or any of the amendments. It is still ambiguous as to whether Section 18 and 30 will prevail over Section 33 or not, this ultimately leads to high legal ambiguity while deciding the matters by the courts.

It is a mandatory for the production companies in the music and film industries to engage  third parties for collecting and licencing and for collecting public performance licences as well for collection of fees in that respect. Alternatively, there is an option to assign, in terms of Section 18, public performance rights to third-party collecting and licencing bodies who can monitor such right so as to ensure that no infringement of any copyright is done by the non-owners. The third party due to their specialization in such activities make sure that no infringement in any form is done in country like India with such a massive population.

A fine example of such a scenario is the case of Novex Communication (P) Ltd., a company, which as per its website, in terms of Section 30, is holding authorization as agents or is assigned with rights under Section 18 for administration of copyright and licencing purposes.

There is a presence of legal vacuum upon the interests of the third party licencing entities carrying out the work of issuing and granting licence in respect of creative works. The 2012 Amendment might have clarified the position with regard to the same but it has only added up to the ambiguity by providing a new sub-section (1) of Section 33. Now, according to this section, only a copyright society can carry out the work of business of granting licence for issuing or granting of any copyright with respect to any dramatic, artistic, literary musical or artistic work incorporated in a film or sound recording. This proviso leaves bodies like Novex on an uncertain footing legally.

Conclusion

Copyright societies which are formed for a specific purpose of granting/issuing licences for usage of any artistic work are being put up at a more ambiguous position after the 2012 amendment. This ambiguity has not being resolved by any judicial pronouncement till date. There are few judgement by some High Courts on the said issue but they too are contradictory and indecisive. Given the developing stage of the copyright laws in India, there are high chances that the subsequent licencing disputed will allow High Courts and even Supreme Court to interpret the law and lay down proper position in order to avoid any form of ambiguity.

Author: Mr. Akash Gupta, Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at pratistha@khuranaandkhurana.com.

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Fashion & Intellectual Property

“Fashion is not something that exists in dresses only. Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, what is happening.” – Coco Chanel

Fashion industry is at an all-time high and the present size of the market is a $US1 Billion. Many established players together with new designers are operating within the market. One of the key factors leading to the growth of successful fashion houses and of the fashion industry in general is the brand consciousness and the bond which is shared between the customers/clients and the fashion houses. The bond that fashion houses develop with their clients can be attributed to the popularity of their logos or house marks. Consequently securing these logos becomes paramount for these fashion houses.

Introduction of Intellectual Property (IP) in Fashion Industry

Many brands within the fashion industry guard their logos or emblems under “Trademark Law.”However, most of these brands do not pay adequate amount of attention to other intellectual properties that they create in course of their business which should also be protected, for example, fashion layouts. A fashion enterprise spends huge sums of money and time to create new and authentic layouts each season. There are many steps that a designer or a fashion house may take to secure the rights over an original fashion layout or design, but before that let us appreciate the importance of securing such rights. The following incidents which were well captured by the various news reports will clearly highlight the importance of securing such rights:

  1. The 2018 cruise collection of Christian Dior which Sonam Kapoor Ahuja wore for the Elle India cover was allegedly copied from Indian Designer Orijit Sen. According to designer Orijit Sen, one of the co-founders of People Tree, the print on the Dior dress was a blatant rip off of Sen’s brand that he had created and began selling more than 10 years prior and is still producing in 2018. Further, he says “he had never worked with Dior or any other major fashion brand.” He also says he was“never approached by Dior or any other related label for permission to use the design.” Now Dior and Mr Sen have managed to come to a settlement for an undisclosed amount.
  2. Another incident is from 2017 when the designer Rahul Mishra sent a legal notice to a high-end clothing brand alleging plagiarism.
  3. Yet another incident of plagiarism involves the allegation that Shweta Bachchan Nanda and Monisha Jaising’s fashion label MxS copied the laundry room “AIRPLANE MODE” sweatshirt design.

                             Airplane_mode

Now let us understand how IP rights can reduce risk and enhance competitiveness of all types of businesses in the fashion industry.

Copyright: Copyright is first and most crucial IP on the subject of fashion industry. Copyright guarantees protection for artistic work to artists and designers. The most important criteria for securing a copyright are originality and uniqueness. Why should Copyright be the first choice of IP in fashion industry?

    1. Rights over copyright will start from the day the work is created. (As fashion trends may change seasonally, having a right from first date would be great)
    2. Copyright is secured almost globally (139 countries) thus it is not bound geographically.
    3. Term of copyright is lifetime of the artist plus 60 years from the year in which artist dies.
    4. Remedy against infringement lies in criminal law as well as under civil law.

Designs: According to The Designs Act, 2000, which is a law enacted by the Indian Parliament, a design means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trademark or property mark or any artistic work.

Thus, The Designs Act, 2000 covers all articles of clothing, haberdashery, garments, head wear, footwear and many others. Registration of design is a vital device in the hands of stylists, fashion designers and the entire fashion industry to secure the rights over their new and original fashion layouts, designs etc. In this regards, Section 22 of The Designs Act, 2000 clearly states that during the existence of copyright in any design it shall not be lawful for any person:
(a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or
(b) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or
(c) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.

Trademark: The aforementioned example of AIRPLANE MODE sweatshirt clearly highlights the importance of trademark protection in the fashion industry.Trademark registration helps in providing an exclusive legal right that stops any third person from using a quote or phrase which is similar to the registered trademark. Securing the rights over a brand name by filing for the registration of trademark is also very important part of any commercial enterprise. Thus, trademark is another IP  that fashion enterprises must become aware of and must look into.

Trademark (Shape): Further, a distinctive shape of an article can be protected under the trademark law in India. Trademark shape is crucial for footwear, bags etc.
Fashion Industry is booming and therefore all the players in the industry must realize the importance of IP in securing their designs and products from infringement. Ralph Lauren once said, “I don’t design clothes. I design dreams. “No one should let anyone else copy their dreams.
All views expressed in the blog are my own and do not constitute the opinions of any entity in any way with which I’ve been, am now or could be affiliated.

Author: Paras Khurana, IP Attorney at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at paras@khuranaandkhurana.com.

References:
1.https://timesofindia.indiatimes.com/city/delhi/designer-rahul-mishra-sends-legal-notice-to-high-end-clothing-brand-for-plagiarism/articleshow/60764115.cms

2.https://www.indiatoday.in/magazine/up-front/story/20180212-christian-dior-sonam-kapoor-dress-plagiarism-people-tree-artist-orijit-sen-1160812-2018-02-03

3.https://in.news.yahoo.com/shweta-bachchan-apos-sweatshirt-looks-095321763.html

All About Section 31 D of Copyright Act, 1957

The 2012 amendment in Copyright Act has introduced various provisions, one of them being section 31 D. This section is concerned with the broadcasting or performance of a literary or musical and sound recording, which has already been published.

Clause 1 of Section 31D states:

“Any broadcasting organization desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section”.

Broadcasting or performance of such work can be done by issuing a prior notice of the intention to broadcast the work and by paying royalty to the rights holder, as fixed by the Copyright Board. However, the term “Copyright Board” in the Act has been substituted with “Appellate Board” as per the Finance Act, 2017.

Due to widespread growth of internet all over the globe, ‘communication to public’ via internet is  much more prevalent and thus, on September 05, 2016, the Department of Industrial Policy and Promotion (DIPP) issued an Office Memorandum clarifying the scope of section 31 D of Copyright Act, 1957 by construing that  “any broadcasting organization desirous of communicating to the public” may not be restrictively interpreted to be covering only radio and television broadcasting, as definition of “broadcast” read with “communication to the public” appears to include all kinds of broadcasts including internet broadcasting.[1] Therefore, bringing ‘online broadcasting’ under the ambit of section 31 D of Copyright Act, 1957.

The practices as provided under section 31 D can be adequately taken care of by Copyright societies as provided in the statutes.  The functioning and working of the copyright societies in India has been well explained in the case of Entertainment Network (India) Ltd vs. Super Cassette Industries Ltd & Ors. In this case it was stated that the existence of the copyright society is for the benefit of the copyright holder. The Copyright society must help the copyright owner in a way that he/she is able to exploit his/her intellectual property rights in a structured manner. “The Copyright society grants license on behalf of the copyright owner, files for litigation on their behalf not only for the purpose of enforcement but also protection to enforcement of the copyright owner’s right. It not only pays royalty to the copyright owner but is authorized to dispense the amount collected by it amongst its members.” But the functioning of societies is under the scanner nowadays, as societies are alleged to have been using this law for getting personal gains, thus making the enforcement of this law redundant, leading to various contentious matters.

CHALLENGING SECTION 31 D AS ULTRA-VIRES

Since the introduction of section 31 D, it has been challenged by various entities alleging it to be ultra-vires the Constitution of India, especially Article 14, 19(1)(g) and 21 of the Constitution as well as the right to property under Article 300A.[2]   The functionality and mechanism of this particular section was disputed on ground that :

  1. a) There is no public interest in making film music available to the broadcasters at subsidized and preferential royalty rates rather than leaving them to negotiate commercial agreements with copyright owners and that the practical effect of Section 31D is to ensure commercial profitability of the broadcasters at the expense of the owners of the copyrighted works.
  2. b) The content of this provision cause inconsistency in the provisions of the Copyright Act, 1957 as it takes away the exclusivity from the exclusive rights granted to the owners of copyrighted works. Thus, leading to impediment of copyright owners to create original work and to commercially exploit them to his liking.
  3. c) Section 31D is violative of Article 19(1)(g), as it provides for the royalties to be fixed for radio broadcasting by the Board directly. Thus, such a power cannot be termed as a reasonable restriction.

The Madras High Court upheld the validity of Section 31 and 31D in the case of South Indian Music Companies v. Union of India  W.P No. 6604 of 2015 and observed that Section 31 and 31D provides for a mechanism to deal with public interest vis-a-vis the private interest. Thereby, taking care of public as well as interest of owners. Further, the guidelines as to determination of royalty and provision of providing the owners, a reasonable opportunity to be heard, thereby substantiating section 31D that was also introduced in compliance of Article 11(2)[3] and 13[4] of Berne Convention and Article 15(2)[5] of the Rome Convention (for sound recordings) and Article 9(1) of the TRIPS Agreement.[6]

Thus, the High Court, after analyzing various factors such as  principles governing the interpretation of statutes including the doctrine of purposive construction, reading down and contextual interpretation, did not find any reason to hold section 31 D of Copyright Act as unconstitutional.

These provisions under the amended Copyright Act has tried to balance the power of music labels by allowing the broadcasters that obtain the said licenses to have continuity of business by making copyrighted works available to the general public at large.  These provisions have dealt with the monopoly of the music labels by including the grant of a statutory non-voluntary license in the Act.

MECHANISM OF LICENSING UNDER SECTION 31 D

In another case of International Confederation of Societies of Authors and Composers (CISAC) v. Aditya Pandey & Ors. [7] The Hon’ble Supreme court of India, reaffirmed an interim order passed by the High Court of Delhi, which essentially discussed the following issues:-

  1. Whether the ‘Communication to the Public by way of Broadcasting of a Sound Recording’ also amounts to a ‘Communication to the Public of Literary and Musical Works embodied in the Sound Recording’ under the Copyright Act 1957?
  2. If the above is answered in affirmative, whether separate licenses in respect of such Literary and Musical Works should be obtained from the authors of copyrights in such works in addition to the license secured from the producer of the Sound Recording?

The court referred to the decision pronounced under Gramophone Co. Ltd. vs. Stephen Carwardine & Co.[8], which, recognized the concept of co-existing copyright. The learned Single Judge, at first had concluded that once a license is obtained from the owner or someone authorized to give it, in respect of a sound recording, for communicating it to the public, including by broadcasting, a separate authorization or license is not necessary from the copyright owner or author of the musical and/or literary work. However, this does not mean that the musical and/or literary work can be otherwise “performed” in the public, (as opposed to communication of a sound recording to the public) without authorization.[9]

With regard to the second issue, the Court relied on Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association and others[10], in which the Court had already pronounced that it was not necessary for a party to obtain a license from the authors of underlying works (e.g. lyricists and musicians) or from the assignees of such works (in this case, the sound recording company).

It is also pertinent to mention that the Supreme Court also noted that the assignment of the copyright in the work to make sound recording per se (i.e., which does not form part of any cinematograph film), shall not affect the right of the author of the underlying work to claim an equal share of royalties or/and consideration payable for utilization of such work in any form by the plaintiff/respondent.

WHOSE AUTHORITY IS IT TO GRANT LICENSE

The section once again came under the controversies, when the Deputy Registrar of Copyrights, granted an interim statutory license under Section 31D(1) of the Copyright Act, 1957 in favour of M/S Kuku & Koyal Internet Pvt. Ltd. The petitioners i.e. Saregama India Ltd and Super Casettes Industries Pvt Ltd, challenged this very order of the Deputy Registrar of Copyrights before the Delhi High Court through writ petition  [W.P.(C) 1155/2018 & W.P. (C) 1299/2018]  disputing the jurisdiction of this matter.   Petitioners argued that the power to grant license remains only with the Copyright Board . Thereby, the Hon’ble High Court of Delhi stayed the interim license and held that such directions had to be complied in accordance with law and thus, if the Registrar of Copyrights did not have the power to issue a statutory license, no such license could be granted.

CONSEQUENCES OF VIOLATING SECTION 31D

The violation of section 31D amounts to infringement of  copyright. The Calcutta High Court in the case of Saregama Ltd vs. The New Digital Media & Ors.[11] issued injunction against the defendant after analyzing the fact that the  agreement under section 31 D was enforceable and was not a dead agreement. Thus, non-payment of royalty by the defendants leads to violation of agreement as well as section 31D. It is pertinent to note that the Court did not grant any injunction with respect to those sound recording which was being used by the defendants without paying any royalty, as the concerned agreement has expired due to lapse of time, thus, such use of work was not considered as an injunction. However, the Court granted a monetary remedy to the owner of copyright because his work having exclusive right was being used by other party. The Court observed that provisions of section 31 D merely require royalties to be paid to the owner of the work as prescribed by the Copyright Board, the same is a statutory license.  As such, for breach of copyright, there can be no order of injunction only monetary claim as recognized by rules 29 – 31 of the Copyright Rules 2013.

The judiciary has tried to construe section 31 D of Copyright Act by balancing public interest and interest of the owners.

Author: Ms. Pratistha Sinha , Trademark Associate and Ms. Anuja Nair, Senior Associate – Media & Entertainment Litigation at Khurana & Khurana,  Advocates and IP Attorneys. In case of any queries please contact/write back to us at pratistha@iiprd.com.

References:

[1]http://www.manupatrafast.in/NewsletterArchives/listing/Induslaw/2016/ September-2016%20–%20Legal%20Developments.pdf

[2] Eskay Videos Pvt. Ltd. v. Union of India W.P. 92 of 2015; South Indian Music Companies v. Union of India  W.P No. 6604 of 2015

[3]Article 11 (2) Of Berne Convention: Authors of dramatic or dramatico-musical works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.

[4] Article 13 Of Berne Convention: Possible Limitation of the Right of Recording of Musical Works and Any Words Pertaining to 1. Compulsory licenses; 2. Transitory measures; 3. Seizure on importation of copies made without the author’s permission

[5]International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations Permitted Exceptions: 1. Specific Limitations; 2. Equivalents with copyright

[6] Article 9(1) of TRIPS Agreement:  Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

[7] CIVIL APPEAL NO. 9416 OF 2016

[8] (1934) 1 Ch. 450

[9]http://www.manupatrafast.in/NewsletterArchives/listing/Induslaw/2016/ September-2016%20–%20Legal%20Developments.pdf

[10] (1977) 2 SCC 820

[11] C.S. No.310 of 2015

3EU’s New Copyright Directive Proposal: Boon for Strengthening IPR Law Protection or Bane on the Individual Internet Freedom?

We are at a time where the internet is bringing the world closer together, turning itself into a close-knit community. Internet has enhanced and rather increased the exchange of information. Amidst that, law enforcement agencies and governments all over the world have enacted various laws for channelization of data, protection of internet users, privacy of the individuals, etc. for example, in the European Union, the recent law, is the GDPR which is a privacy regulation which has come into operation in May, 2018, however, the major focus of this article would be in the intellectual property law domain; Furthermore, of the recent would be the most debated EU’s new copyright directive- proposal, that is  yet to be approved. It is argued that, while, having such a law would give more protection to the owners of the copyright content, it is countered that it may deprive the internet users, the world, of the vast copyrighted data currently available. It is in this light, that the probable impact of the new copyright proposal will be analyzed and discussed.

 INTRODUCTION

Many are aware about the new privacy legislation of the European Union which is very talked off and debated all over the world, i.e. the General Data Protection Regulation (GDPR). While, the GDPR was introduced in 2016 and implemented in May 2018 not only EU but the entire world is still grappling with its various adherences and compliances. Due to its extra territoriality aspect, the GDPR is affecting all the countries, other than EU. What is even more surprising is European Union’s new copyright directive proposal. Ever since the beginning of internet age, various intellectual property rights law has been put in place for the same. These laws have been amended all over the globe in various jurisdictions to incorporate the IPR violations if any in the digital space. A similar amendment has been proposed in the EU’s copyright law, whose probable effects and consequences will be discussed in this article.

EU’S NEW COPYRIGHT DIRECTIVE

The EU Copyright Directive is the Directive on Copyright in the Digital Single Market. It is rather an attempt to harmonize copyright laws across all the European Union member states.

The initial EU copyright law (which the new draft proposal seeks to amend) was put in place in 2001, at a time when the intellectual property law protection became vital even in the digital space. It is majorly designed to update the law and make it more relevant in the cyber space in order to grant more protection to the copyrighted content. One of the biggest criticisms it faces is that it is vague and overly harsh. The two major provisions, i.e. Articles 11 and 13 are considered to have a major impact on the individual freedom.[1]

MAJOR PROVISIONS IN QUESTION

As mentioned above, the two major provisions i.e. Article 11 and 13 of the draft proposal/directive have been criticized as being harsh and oppressive to the individual internet freedom.

Article 13, implies that it would force all online platforms to police and prevent the uploading of copyrighted content, or make people seek the correct licenses to post that content. For the most part this would mean filters that check content as it’s uploaded would be mandatory for platforms including Facebook, Instagram, GitHub, Reddit and Tumblr, but also many much smaller platforms. YouTube already uses such a system — called Content ID — to protect copyright infringement, but the technology to do this is extremely expensive and has taken over 11 years to build and refine.

Article 11, although has gained a considerable light of criticism due to it being harsh and oppressive but to a lesser extent. This article states that companies like Google, Facebook and Microsoft may have to pay publishers for showing snippets of news articles.”[2]

IMPACT OF THE NEW COPYRIGHT DIRECTIVE IF MADE A LAW

The impact of the new copyright directive would be on two entities:

1) individuals i.e. users, 2) social networking sites.

ON THE PEOPLE

On one hand, the EU has the GDPR, which is the much-needed privacy law meant for safeguarding the interests of the users in terms of the data content which they would share online and the possibility of it being likely to be misused by the various sites online. On the other, is the new copyright directive? Under this new copyright directive, any user who intends to use any creative content produced by the artist, songs or dance artist, composers or anybody will be liable as per the new directive. Rather they may have to seek the correct licenses for it or else the copyrighted content after being filtered will have to be removed. Not only that, any memes, remixes, or anything concerning any artist will not be uploaded or rather can be but with restrictions mentioned in the draft proposal. The entire purpose of internet which is connecting with people, free flow of ideas, information, may get hampered drastically. One cannot imagine the impact it would have on the people of the European Union. Due to these reasons, various protests have taken place in a bid to take down the proposal.

 ON THE SOCIAL NETWORKING SITES

This directive may make these sites redundant as then the people may be unable to upload the data they may want to. The most controversial provision is the “Article 13, which requires websites to enforce copyright, even on content uploaded by users. Critics believe this could mean that social media sites and others would have to check every piece of content uploaded – a task that would be impossible for humans. Instead, it would require automated copyright checking systems, put in place by each company – a potentially expensive process. Such systems have a high error rate, and have already been controversial on platforms, like YouTube, where they have been implemented. Such systems have been labelled “censorship machines” or an “upload filter” by critics of article 13.It has also led to fears that popular memes, remixes, parodies and other material which use small amounts of copyrighted material could become a thing of the past.”[3] Due, to this, the Italy Wikipedia has shut down in protest of the EU copyright law on 3rd July, 3018

 WHAT HAPPENS NEXT?

“The initial proposal to reform EU copyright law was presented by Günther Oettinger shortly before leaving his post as Digital Commissioner.EU member state governments approved the plans (with slight changes) in the Council. The Legal Affairs Committee narrowly approved the plans (with slight changes) – but in a surprise move, the Parliament then refused to rubber-stamp the Committee’s position, opening it up for further debate. Next, the entire Parliament will vote on changes to the Committee position on September 12, 2018.After closed-door compromise negotiations between the institutions, the Parliament will have to approve the result one final time.”[4]

CONCLUSION

While, it is understood that the copyrighted material of various artists, composers, etc must be protected, a balance between the two, i.e. the internet freedom of the individuals and the rights of the artists, singers, rappers, composers, etc must be maintained. This is rather advocated by many all over the globe. The probable effects, consequences, impact of the same highlight only the possibilities of the copyright (proposed) law that may happen. The actual implications of the same are difficult to measure. Yet, it is further emphasised that a balance must be maintained between the two, i.e. the internet freedom of the individuals and the rights of the artists, singers, composers, etc, so as to ensure that the one doesn’t work to the detriment of the other.

Author: Shruti Gupta, Legal Intern,  at  Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at pratistha@iiprd.com.

References:

[1] https://www.cnet.com/news/article-13-europes-hotly-debated-eu-copyright-law-explained/

[2]https://www.cnet.com/news/article-13-europes-hotly-debated-eu-copyright-law-explained/

[3]https://www.bbc.com/news/world-europe-44696302

[4]https://juliareda.eu/eu-copyright-reform/

Copyrighting Patents

The nature of Intellectual Property Rights is such that, like any other law, it has loopholes as well as overlaps. These overlaps arise due to the fact that IPR protects ideas by their expressions and expression can be in more ways than what can be imagined by one person. There are subject matters which are eligible for the protection of more than one kind of IP. The prime example is the overlap between design and copyrights which has been statutorily dealt with under the Copyrights Act.

However, the recent debate has been with regard to Copyrights and Patents. Now, both of these are as far apart as two IP protection sects can be. Copyright protects literary, dramatic, artistic, cinematographic, musical works whereas Patent grants rights to functional inventions which are novel, useful and non-obvious. However, these rights find a commonality in the patent applications. It is pertinent to disclose the information relating to the working of the invention in the patent application by way of specifications. These specifications also include certain drawings and sketches of working models of the invention. There has been a long standing question whether these applications, which consist of the originally authored specifications and drawings, are eligible to be granted a copyright. Or alternately, can the specifications in the patent application be infringing upon copyrights owned by other authors/scholars.

Countries have taken different stands in the matter. Germany, for instance, excludes patent documents from the copyright protection from the time they are published.[1] However it is necessary for a person to cite the source when using it in a scholarly or academic work. Switzerland as well exclusively exempts the patent documents from being copyrighted.[2] On the other hand the position in UK differs depending on when the patent was filed. All the applications filed prior to 1989 were protected by the Crown Copyright. However, after they enforced their 1988 Copyright Act all the applications prior to 1989 remained with the government  unless they had a copyright notice on them, and the copyright for all the applications filed after that date lies with the applicant and no use can be made unless with express license except for the purpose of ‘dissemination of information’.[3] USA holds a different position for copyrighting patent applications. It has been stated that all the information posted on the website of the USPTO is considered to be in the public domain but the government holds international copyright over it. However, the applicants are allowed to specify their copyright on the patent drawings or other materials.[4]

There have been very few cases which discuss the copyright ability of patent applications. The US case that accepted that copyright subsists in a patent application was In Re Yardley.[5] In more recent cases, it has been questioned whether patent applications can be challenged in court as infringing a copyright. In American Institute of Physics and John Wiley & Sons, Inc. v. Schwegman, Lundberg & Woessner P.A. [6], the University alleged that the firm infringed their copyright by attaching a scholarly article in their patent application. The firm on the other hand took the defense of ‘Fair Use’ and stated that the articles were taken from the USPTO website itself. In two other cases, American Institute of Physics and Blackwell Publishing, Ltd. v. Winstead PC[7]  and John Wiley & Sons, Ltd. and American Institute of Physics v. McDonnell Boehnen Hulbert & Berghoff LLP [8]—and again, after intervention by the PTO—the plaintiffs similarly amended their complaints to disclaim any allegation of infringement based on submission of copies of copyrighted articles to the PTO, or on retention of file copies of the works submitted to the PTO.[9] The defendants in all these cases stated that disclosure of prior art was necessary in order to secure a patent for their invention and thereby should be included under the exclusion of ‘Fair Use’. The court accepted this and said that as long as it proves to be of evidentiary value and is a requisite for disclosure for the government the use can be deemed to be fair.

Contrarily, the UK courts do not follow the same rationale. In Catnic Components Ltd. & Anr. v. Hill and Smith Ltd. the court held that the copyright in a patent ceases to exist once it is published. The court was of the opinion that the main underlying principle behind granting a patent is full disclosure. The idea is to bring the invention into public domain so as to boost innovation. Copyright on the other hand restricts the rights of other people by giving exclusive rights to the owner of the copyright. It is a conflict between the most basic objectives of the two rights. Furthermore, scholars have pointed out that granting copyright could in effect hamper the innovations further. The term of a patent is a maximum of twenty years but in case of copyrights the term is much longer and continues to be in effect 60 or 70 years after the death of the owner, depending on the domestic laws of the country. This creates a problem as to the fact that even after the invention is out in the public domain there would still be rights which will be otherwise attached and thereby will beat the purpose of being in public domain. These questions have not yet arisen in front of the Indian courts and the law is also silent on it, nothing has been stated explicitly. But the position of other countries gives us a fair idea as to how allowing copyright in patent applications or not can lead to different scenarios and raise different questions.

Author:  Yashvi Padhya, Intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at swapnil@khuranaandkhurana.com.

References:

[1] https://www.dpma.de/english/patents/faq/index.html#a22

[2] https://www.admin.ch/opc/en/classified-compilation/19920251/index.html#a5

[3]http://webarchive.nationalarchives.gov.uk/20140603113132/http://www.ipo.gov.uk/types

/copy/c-other/c-other-faq/c-other-faq-type/c-other-faq-type-patspec.htm

[4] https://www.uspto.gov/terms-use-uspto-websites

[5] 493 F.2d 1389 (CCPA 1974)

[6] D. Minn. Civ. No. 12-528

[7] N.D. Tex. No. 3:12-CV-1230

[8] N.D. Ill. No. 12 C 1446

[9]http://www.mondaq.com/unitedstates/x/283736/Copyright/Can+a+Patent+Application+

Violate+the+Copyright+Laws

Ownership Of Third Party Content On A Website/ Social Media/ Blogs Etc.

We all know that the copyright of any literary/dramatic/artistic work lies with the author of the work even if the copyright is not registered provided, it is original. According to this, the creator of the website is the copyright owner of the same (subject to some exceptions) provided the text, photographs, videos etc., used in the website are not copied works. Now a question arises as to who owns the copyright of the content posted by third parties on a website/ social media/ blog etc. Because individually the owner of the website and the owner of the content posted by third party are different. The answer to this question lies in the terms of the medium one is using to post its content.

Any website has its own terms and conditions that the user must adhere with, without agreeing to those one cannot have access to their services. Generally, public do not take efforts to read these terms and conditions and blindly agree to them, therefore, leading to bunch of all the problems. The terms and conditions are usually drafted in legal language making it difficult for people of non-legal background to understand them. But it is said that one sided efforts are of no use because it is said that one sided efforts go in vain i.e. though efforts are being taken by the website owners to make them easy to understand, people are not taking any efforts to read and understand them before accepting.

In terms and conditions of most of the websites it is mentioned that the owner of the work that is posted through their medium is the author himself, but they give free licence to the owner of the website to use the content anywhere else or even sub licence it to others. This gives them permission to share the content with others also without giving you even a penny. This means that one cannot earn anything out of the efforts one puts in making the work uploaded on the website. Some of the ways to avoid this is reading and understanding the terms and conditions, getting a copyright registered, not relying on only one medium, having a blog of our own in short being aware and alert of one’s rights, terms and conditions of the website.

From the above discussion we may conclude that nobody can take away the ownership right of a work from the copyright owner (subject some to exceptions) i.e. the ownership of the copyright of the work created lies with the author himself even after uploading it on a third party website but by agreeing to their terms and conditions we give them free licence to use our work in a way they want to make use of it.

Author: M. Sai Krupa, Intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at anirudh@khuranaandkhurana.com.

References:

[1] https://www.socialmediatoday.com/content/who-owns-your-content-online

[2]https://www.out-law.com/page-381

[3]https://www.theguardian.com/money/2012/dec/20/who-owns-content-you-upload

[4] http://www.mondaq.com/india/x/607438/Copyright/Copyright+Protection+Of+Online+Content

 

Violation Of Moral Right In Light Of ‘Ghar Se Nikalte Hi’- Will This Be An Eye Opener For The Trend Of Remixes?

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” [1]

The foundation of this concept was laid in the case of Amarnath Sehgal v. Union of India[2]. This was a landmark judgement delivered by the Delhi High Court thereby setting precedent and contributed in increase in understand and scope of moral rights given under Section 57[3] of the Indian Copyright Act, 1957. Moral rights are generally meant for protecting the work of the author and maintaining its integrity which essentially means preventing it from getting mutilated or distorted or altered in any undesired manner which may result in hampering the image of the author or its use in such a way that it may hurt the sentiments of the author.

The latest Bollywood glitch between Javed Akhtar and Armaan & Amaal Malik has been with respect to the same. The renowned Bollywood lyricist Mr. Javed Akhtar has issued legal notice against Armaan & Amaal Malik and Super Cassettes Industries Pvt. Ltd., for violation of his moral rights by recreating the song ‘Ghar Se Nikalte Hi’. It is alleged by Mr. Akhtar that the newly created version has used the original “mukhda (first stanza)” of the song repetitively. Although it is combined and mixed with different composition and different lyrics, the essence of the song remains the same. Mr. Akhtar further claims that the new version infringes his “moral rights” under Section 57 of the 1957 Act and aggrieved by the fact that ‘Kunaal Verma’ has been credited as sole author for the recreated version denying Mr. Akhtar, his statutory right of authorship.

There is no doubt that ‘Mukhda’ is the soul& essence of a song to which we all shall agree and so Mr. Akhtar has every right to be identified and credited for the same, especially when the original track bears his name in bold. Further, the fact that his right to royalty (Section 18[4] and 19[5]of the 1957 Act) in respect of using of lyrics which were originally given by him, has been jeopardized as they will not be able to receive royalty without the recognition of authorship. Even the Apple’s Itunes does not recognize him as the original lyricist which has further aggravated the entire situation.

However, the anomaly which can be observed in this notice is that it has been issued to Armaan Malik, who merely is the performer and singer and had nothing to do with the authorship of the song and in my opinion,

it should have been issued to lyricist of the new version who has in fact distorted the entire song. Other shortcomings of the legal notice may be that-

  • There was no legal notice issued to Apple’s Itunes for having failed to mention Mr. Javed Akhtar as the lyricist of the song, although they have specifically violated Section 52-A[6].
  • Legal Representative of the author can exercise the rights conferred upon the author of a work, other than right to claim authorship of the work. The proper body to allege on the recreated version as trying to escape the payment of royalty is IPRS (Indian Performing Rights Society), to whom Mr. Akhtar has assigned his rights.
  • Notice issue to Armaan Malik for simply making a public comment on You Tube page in which he failed to acknowledge the original authors seems senseless and baseless.

There have been several cases with respect to moral right &recreated versions, but a penumbral area exists as nowhere the term ‘recreation’ has been defined in the 1957 Act per se, but if we go by the definition of the word ‘adaptation’, Section 2(a)includes in relation to any work, any use of that work involving in its alteration and rearrangement. Section 14 also confers such type of right to the owner of any literary, dramatic artistic or musical work. If we comply with these provisions, then T-Series, being the owner of the original work has the right to make an adaptation or recreated version. But the question arises that whether recreation of original work amounts to violation of moral rights of the original authors of that work?

Section 57[7]of the 1957 Act provides two rights to the author i.e., of paternity (right to claim authorship) and integrity (to claim damages for any mutilation, distortion, modification of the work prejudicial to his honor or reputation). These rights are also protected under Article 6bis[8] of the Berne Convention where under the right to Paternity, author can claim due credit for any of his work.

But the catch here is that Section 57 protects the right of authors only when it is established that the alteration or modification of the work is prejudicial to author’s reputation and also there is some relation between the original and recreated work. This view has been reiterated by the court in Manu Bhandari v. Kala Vikas Pictures.[9]

From Amarnath Sehgal’s case[10] the Indian Copyright legislation has moved further on broadening the scope of artist’s reputation and interest and the outcome of present matter will also add up to it.

With respect to integrity rights, I am of opinion that on comparing and reading the lyrics of original and recreated version there is nothing dishonorable or prejudicial which can damage the reputation of the original authors. If this is treated as violation of moral rights, it would send a signal of warning for music industry and the trend of making remixes. As nowadays with increase in number of remixes or recreated versions, this issue of moral right will be one of the major debates in India and even though it remains unsettled, it is essential to protect the interest of original writers so that their music does not wither away with the modern remixes.

Author: Prashant Arya, Intern at  Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at swapnils@khuranaandkhurana.com.

References:

[1]Universal Declaration of Human Rights, Article 27(2)

[2]Amarnath Sehgal v. Union of India,2005 (30) PTC 253

[3] https://indiankanoon.org/doc/1710491/

[4] https://indiankanoon.org/doc/1703533/

[5] https://indiankanoon.org/doc/262036/

[6] https://indiankanoon.org/doc/588136/

[7]Supra, fn.4

[8] Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

[9]Manu Bhandari v. Kala Vikas Pictures,AIR 1987 Del 13

[10]Supra, fn.3

Law On Internet Memes

Internet users in India spend half their time on social media every day. It is one of the most efficient platforms for communication yet the most exploited one. One such famous platform would be Facebook, an online networking site that mostly everyone is aware of. Similarly, internet ‘meme’ is also ubiquitous It is defined as “an idea, behaviour, style or usage that spreads from person to person within a culture.” These memes are a subset of the behaviour passed from one individual to another by imitation or other non-generic memes. In legal terms, it is a ‘derivative work’ and only the copyright owner has the legal right to create such work. Although, if the person claims to have made a “fair use” of the copyrighted work, it can be used as a defense under the provisions of the Copyright Act.

Now, lets come back to the debate as to whether memes shall be protected under the copyright and Trade Mark law or not. You may think that no one is the owner of such memes, rather it is just a creation of the internet but the Law may think differently as some memes do qualify for copyright protection and at some point, they were created by some person who could be the owner of the right. For instance, a meme called the “Grumpy cat” became so famous that it was turned into a business through selling books, posters, mugs, etc. in the name of “Grumpycats.com” and was granted a trademark for the same.

Even though a lot of memes are shared on the internet for the sole purpose of fun, there have been instances in the past that states otherwise. Just like in the case of Getty Images, an American agency which supplies images and illustrations that sent letters demanding license fees who exploited their copyrighted content was an image of “Awkward Penguin”, a photograph taken by George Moberly, a National Geographic photographer, for which Getty enjoys the licensing. Posting a meme on a personal blog (non-monetized) or a personal social network account might not be challenged. However, if it is for a commercial purpose, it might violate the copyright.

Assuming that these marks are registered in India, they will be governed by the Trade Marks Act. Now, if the image on a meme is being used on goods and services or for other commercial purposes, it would lead to infringement of the trademark under Section 29 of the Act which clearly states that a mark may be infringed by use of spoken words or their visual representation meaning that even a slight usage or any modification of that image on social media would result in infringement. However, this provision is only applied to registered marks and not unregistered.

Even though Copyright law in India does not specifically provide remedy in the case of parody, the owner of such artistic work can reach the Court for infringement of his right as any use of the Copyrighted work if,  it is  not a “fair use” can result to infringement leading to a lawsuit.

Even though its tempting to think that viral content is nothing but part of the web that is “owned by everyone”, there is still some source attached to the work and if such work amounts to copyright, the owner should be provided with the rights for the same. Memes are a rapid business and do not get immunity from the skirmishes of copyright and trademark, thus leading to more upcoming battles in court.

Author: Ms. Tushita Dogra, intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at swapnils@khuranaandkhurana.com

References:

[1] https://www.plagiarismtoday.com/2013/05/07/copyright-memes-and-the-perils-of-viral-content/

[2]https://www.washingtonpost.com/news/the-intersect/wp/2015/09/08/how-copyright-is-killing-your-favorite-memes/?utm_term=.64b3b3aa2474

[3] http://www.abajournal.com/magazine/article/do_memes_violate_copyright_law

Does Publication of Bare Acts by Private Companies amount to Copyright Infringement?

Introduction

“[I]f ignorance of law is no excuse it presupposes that a citizen is able to know law. The elementary requirement in this country is that the citizen is able to obtain an authenticated copy of the Act, Rules and Regulations. If a citizen is not able to obtain these documents, the argument is that it would be difficult to implement the rule that ignorance of law is not an excuse.

A Public Interest Litigation [WP(C) 10941/2017] has recently been filed in the High Court of Delhi contending that ‘Right to Know’ being a fundamental right and obliges the Government to inform the citizens about law by publishing authenticating it and updating as well as providing  reasonably priced printed copies of Bare acts. Interestingly, the PIL also goes on to claim that Acts of Parliament are under copyright ownership of the Government and, therefore, these cannot be permitted to be published by private players for commercial gains.

Background

The present petition has highlighted the troubling issue of accessing legislative and judicial documents in India. This issue was previously brought to the forefront by Vansh Sharad in his writ petition, whereby the High Court of Delhi observed that the “RTI Act itself mandates the Government to place the texts of enactments in public domain”[1]. Even prior to this The Bombay High Court has on a number of occasions passed orders directing the Government to make available authentic and updated copies of the acts and legislation, the most recent one being in the case of Mumbai Grahak Panchayat and Another. Vs State of Maharashtra and Others[2].

On the basis of the status report filed on the last date of hearing in the case of Union of India v. Vansh Sharad Gupta (hereinafter referred to as ‘Vansh Sharad’)the Court took a prima facie view that the Cabinet Secretariat’s officials are making positive efforts in tackling the issue of digitisation of bare acts, rules, regulations and notifications. Visibly, the actions taken by the Government is evidenced in the New India Code web portal which is under development and provides for improved online access to Indian legislations[3].

However, access to legislation has re-surfaced again with the present PIL filed in the High Court of Delhi by Advocate Arpit Bhargava which claims that the failure of the Government in providing affordable and accurate hard bound copies of Central Enactments, Rules and Notifications is violative of the fundamental right guaranteed under Article 19(1)(a) of the Constitution. Advocate Bhargava has also alleged that apart from the high prices of the private publications, some were also inaccurate. A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar on 08.12.2017 has thereby issued notice to the Ministry of Law as well as the Department of Publications under the Ministry of Housing and Urban Affairs and sought their stand on the issue raised in the petition. The matter is listed for 11th April, 2018.

The present PIL sheds light on two cardinal principles, the Right to Know and the principle of fair use which is given under Section 52 (1) q (ii) of the Copyright Act 1957 (hereinafter referred to as the ‘Act’). The said provision excludes the reproduction or publication of any Act of a Legislature from the scope of copyright infringement subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter.

Analysis

While the importance of the right to know has been reemphasized, time and again as being co-related to the fundamental right of freedom of speech and expression guaranteed under Article 19 of the Constitution, the interpretation of Section 52 (1) q (ii) and the condition laid therein has never before come into question. One needs to analyse a number of issues to understand whether the publication of Bare Acts by private companies amounts to copyright infringement of the Government or not?

  • Whether there exists any Copyright over Statutes?

An interesting point to be evaluated while considering this issue is whether the State can assert any copyright over Statutes. In U.S.A. the position laid down in State of Georgia v. Harrison Co[4] is that, “the citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process”. Even the Bombay High Court in Vansh Sharad reaffirmed the observation made by the CCI that “[t]he law and enactments are in public domain and none can claim copyright in the law”. In light of these judgements, one could reasonably argue that there exists no copyright over Acts and Statutes and therefore, can be reproduced or published freely.

On the other hand, various provisions of the Act suggest otherwise. Section 52 which enumerates the acts that shall not amount to infringement necessarily implies the existence of a copyright. Moreover, Section 17 (d) of the Act lays down that Government shall be the first owner of all Government works, unless there is an agreement to the contrary. The definition of Government work as laid down under Section 2 (k) of the Act covers within its scope, all works which are made or published by or under the direction or control of the government, legislature, Court, tribunal or any other judicial authority in India. On reading these provisions together, the logical inference would be that the copyright over the Acts and statutes lies with the Government.

  • Whether such Copyright is infringed by publication of Bare Acts by private publishers?

If the argument of the Government being the copyright holder is accepted, one would then have to examine if there exists any exception which gives the private companies the right to publish Government work without infringing government’s copyright in them. This exception is given under Section 52 (1) q (ii) which lifts the prohibition on reproduction or publication of an Act or statute if it is knit together with any commentary thereon or any other original matter. This requirement has been confined to Acts of legislature alone and does not extend to other categories of Government work covered under Section 52 (1) (q).

The Petitioner in this regard claims that the term “Bare Act” itself implies law in its raw form and hence any reproduction of it by private publishers amounts to infringement of the copyright of the Government. Whether the comments and cases added by the private publishers to the Bare Acts published by them fulfil the condition set out Section 52 (1) q (ii) could be analysed on the touchstone of the judgement laid down in Eastern Book Company v. D.B. Modhak[5]. In the given case the Supreme Court of India rejected the ‘sweat of the brow’ doctrine(which conferred copyright on works on the basis that some amount of skill, labour and capital has been employed in the work), and held that the work must be original “in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author”. The present PIL therefore delivers a platform to interpret whether on account of the skill and judgment displayed in the combination and analysis of statutes with cases and other annotations, the private players of the market satisfy the requirement of commentary or original matter.

Apart from this, there are other concerns regarding publication of Bare Acts by private companies. In the Mumbai Grahak Panchayat case, it was observed, “[t]he Judges of this Court have repeatedly noticed that there are errors in the Bare Acts published by the private publications. …[I]n some publications, the amendments to the Enactments or to the Rules are not incorporated. In some cases, the amendments are not correctly reproduced.” This issue which has also been raised in the present petition is worrisome considering the wide use of such Bare acts, including by the Courts.

Conclusion

The present PIL seeks directions to the Government to take immediate steps to ensure availability of its own authentic, accurate and reasonably priced publications of all central acts, rules, notifications and their amendments and to immediately bar private publishers from doing the same. If this prayer of the petitioner is granted, one is left to wonder whether these directions could in fact result in an improvement in the accessibility of public domain materials or rather disincentivize the creation of new expressive works. It is no doubt the duty of the Government to provide for promulgating the statutes. However, in my opinion, allowing the Government (or anybody else) to monopolize publication and distribution of statutes is not a reasonable panacea. Alternatively, the Government could exercise its power to regulate the mode of promulgating these Acts, so as to ensure its accuracy and authority. Fair use provisions, must be interpreted so as to strike a balance between the rights and interests of the copyright holder, and the often-competing interest of the public in protecting the public domain. What remains to be seen is whether the Hon’ble Court takes such a balanced approach, or one more skewed toward either side.

Author: Ms. Prakriti Varshney, intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at anirudh@khuranaandkhurana.com.

 References: 

[1] Union of India v. Vansh Sharad Gupta, W.P.(C) 4761/2016 & CM APPL. 22914/2016

[2]2017 SCC OnLineBom 726

[3]See Order dated 15.12.2017 inUnion of India v. Vansh Sharad Gupta, W.P.(C) 4761/2016 & CM APPL. 22914/2016

[4]548 F.Supp 110, 114 (N.D. Ga 1982)

[5] 2008 (36) PTC 1 (SC)

Freedom of Panorama

Freedom of panorama is a derived from German word Panoramafreiheit. It is the right of individual to publish photographs of the public buildings and the public structures which are attached to the public places permanently and is one of the exception of the Copyright law. “French-Italian model” and the “German-English model” are the two modular frameworks on which the freedom of panorama is based. On one hand, where the French-Italian model does not lay down the restrictions on the copyright law, the German-English model, on the other hand, states freedom of panorama as an exception to the copyright law. Indian Copyright Act has incorporated the German-English model with certain modifications to suit the Indian scenario.

Article 5 of the Berne Convention,1886 has laid down the “principle of assimilation” which means that countries who are the members of the convention enjoy the rights as laid down in the convention along with the national law of the State. Article 17 of the Convention has permitted the States to enact necessary legislation to prevent the infringement of any work thereby following one of the essential principles of the International Law. Article 9 of the Berne Convention mentions that audio and visual reproduction of copyrighted work amounts to the copyright infringement. Article 9 of the Berne Convention is contradictory to the Section 52 of the Copyright Act, 1957 as it follows the principle of assimilation and the basic principles of the International Law.Italian Copyright law follows the French-Italian model by recognizing the freedom of panorama and states that the photographs and video recording of sculptures, artistic work and architectural structures having public access, will not amount to copyright infringement if such a reproduction is used only for personal purpose but, if it such photographs or video recordings are used commercially, it will amount to the copyright infringement.

For example: – Photography of the Eiffel Tower at night amounts to copyright violation. However, photography during the daytime is rights-free and does not amount to infringement. The interesting explanation to such a law in France is that the in 1923 the creator and the owner of the copyright of the Eiffel Tower died and the Eiffel Tower entered public domain in the year 1993. Thus, in 1999 Las Vegas had its own Eiffel Tower. Although, the copyright expired in 1993 the lights in the Tower were installed in the year 1985, adding to the aesthetic beauty of the pre-existing structure and classifying the tower’s light display as an “art work” within the purview of Copyright Laws. Hence, the night-time photography of Eiffel Tower will amount to the copyright infringement, as it does not fall within the public domain till date.[1]

Looking into the Indian scenario, even though there is no provision explicitly defining the Freedom of Panorama, the Copyright Act, 1957 under Section 52 sub-clause (t) and sub-clause (u) has provided for the provision related to the Freedom of Panorama. Section 52(t) states that the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or any other work of artistic craftsmanship, permanently situated in a public place or any premises to which the public has access, will not amount to copyright infringement. Section 52(u) has included the cinematographic films within the ambit of the freedom of panorama.According to sub-clause (u)the following inclusions in the cinematographic films does not amount to the copyright infringement:-

  • Any artistic work which is situated permanently in a place which can be accessed by the public.
  • Any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film.
  • Use of the author’s artistic work where the author is not the copyright owner or it was the author’s commissioned
  • Reconstruction of any structure or building in accordance with the architectural plans by which the building was constructed.

All in all, Section 52 of the Copyright Act, 1957 has resolved a potential conflict which could have arisen, if any architectural structure or any sculpture displayed in the public is photographed or used in a cinematographic film without the prior permission of the artist.In practice, Section 52 does conflict with certain aspects of the copyright law yet, it has been seen that Section 52 prevails over the other provisions.

Neelkant Darshan was a short feature film shot in the Akshardham Temple where photography and videography is prohibited. Section 14(c)(i)(A) of the Copyright Act, 1957 provides the architects and the author of an architectural work have the right to protect their work from being stored in any medium by electronic means. A tourist if photographs the Akshardham Temple by virtue of Section 14(c)(i)(A) will be deemed to infringe the copyright. However, by virtue of Section 52 of the Copyright Act, 1957, such photography and videography will not amount to infringement of copyright as the temple is situated permanently in an area easily assessable to the public.Therefore, it is quite evident that Copyright law is clear about the concept of Freedom of Panorama; however, conflict may arise if a building is trademarked and recorded in a video!

About the Author: Trishala Sanyal, intern AKK New Law Academy Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at  info@khuranaandkhurana.com

Reference:

[1] https://petapixel.com/2017/10/14/photos-eiffel-tower-night-illegal/