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Draft No.

1
Seminar Paper for Media Law On
"Media And Copright Law: A thin line of Division"
By : Rahul Meena
Roll No. 933
Date: 7/April/2016
Introduction

According to Laurence Sterne1 an English Novelist (1713-1768):

The sweat of a mans brows, and the exudations of a mans brain, are as much
a mans own property as the breeches upon his backside.
Thereby meaning that whatever an individual produces by the application of his labour, intellect
or skill is his property and nobody has a right to deprive him of such propert y.
The word Copyright is derived from the expression Copier Of Words first used in the context,
according to Oxford Dictionary in 1586. The word Copy is presumed to date back to 1485 A.D.
(approximate date) and was used to connote a manuscript or other matter prepared for printing.
Word Copy according to Blacks Law Dictionary means transcript, imitation, reproduction of
an original writing, painting, instrument or the like. Copyright according to Blacks Law
1 Laurence Sterne in his novel The Life and Opinions of Tristam Shandy.

Dictionary is the right in literary property as recognized and sanctioned by positive law. An
intangible incorporeal right granted to the author or originator of certain literary or artistic
production whereby he is invested for a specified period with the sole and exclusive privilege of
multiplying copies of the same and publishing and selling them.
Copyright as defined in the Oxford English Dictionary is an exclusive right given by law for a
certain term of years to an author, composer, etc. or his assignee to print, publish and sell copies
of his original work. Copyright in some form seems to have been recognized in ancient times.
The Roman Law adjudged that if one man wrote anything on the paper of another, the writing
should belong to the owner of the blank material, meaning thereby the mechanical operation of
writing by the scribe deserved to receive satisfaction.

BRIEF HISTORY OF COPYRIGHT LAWS


A. US SCENARIO:
Intellectual property law originally evolved within the English common law, but the framers of
the U.S. Constitution considered it so important that they specifically recognized it, making
both copyrights and patents federal matters right from the time the Constitution was ratified.
Article 1, Section 8 of the U.S. Constitution2 includes this language:
The Congress shall have the power to promote the progress of science and the useful arts, by
securing for limited times to authors and inventors the exclusive right to their respective writings
and discoveries.
Shortly after the Constitution was ratified, Congress accepted that invitation and enacted the first
federal copyright law, The Copyright Act of 1790. That law has been revised several times since,
as technology created new problems that could not have been anticipated by the framers of the
Constitution. The 1976 Copyright Act, the most recent comprehensive revision of the law
attempted (not always successfully) to deal with such troublesome new problem areas as
photocopying, audio and video recording, satellite communications and cable television.
Whatever the unresolved problems in copyright law, the history of Congres sional
involvement makes copyright law fundamentally different from some of the other areas of
mass media law it is an area of Federal Statutory Law, not primarily a form of State Statutory
or Common Law. If the problems of copyright law are to be solved at all, they are resolved
mainly by Congress, with help from the federal courts.

2 www.usconstitution.net/xconst_A1Sec8.html

B. INDIAN SCENARIO:
India being a member of two international conventions on copyright, namely, the
Berne Convention for Protection of Literary and Artistic Works (Paris Act, 1971) and the
Universal Copyright Convention, 1952. After independence, the Copyright Act, 1957
was enacted, to give effect to the recommendations of these two conventions. The Act was
amended in 1983, 1984, 1992, 1994 and in 1999. The Indian Copyright Act, 1957 is
in accordance with Indias obligations under the Agreement on Trade Related
Intellectual Property Rights (TRIPS).
Section 14 of the Copyright Act, 1957 defines copyright as:
A property right in an original work of authorship (such as a
liter ary, m us ical, artistic, ph otograph ic, a film work or a
com puter

programme)

fixed

in

any

tangible

medium

of

expression, giving the holder the exclusive right to reproduce,


adapt, distribute, perform and display the work.

WHAT COPYRIGHT LAW COVERS

Generally, all kinds of creative endeavors may be copyrighted. That includes literary works
(fiction and non-fiction, prose and poetry), musical works (and any accompanying words),
dramatic works (including music), choreographic works and pictorial, graphic and sculptural
works (including both photographs and paintings), computer software, maps, architectural
designs, recordings, motion pictures and radio or television productions (whether
dramatic or news/documentary in nature).
However, there are some very important exceptions to this rule. Probably the most
important one for the mass media is that the news itself cannot be copyright ed, although a
description of a news event can be copyrighted. The first reporter to reach the scene of a
plane crash, for instance, cannot prevent others from reporting the fact that the plane
crashed or the details of how it happened. The most that this re porter can deny to others
is his or her account of the event. Others may tell the story in their own words.
Thus, it is commonplace for journalists to rewrite each others stories. When ever one
reporter scores an important Scoop, others quickly pick up the story, carefully putting it
in their own words and perhaps giving credit to the original source. Even though this is
permissible under copyright law, it should be emphasized that one news medium cannot
systematically remove all of its news from a competitor to avoid having to employ its
own news staff. To do that is called unfair competition. Systematic News Piracy as it has
been called, is not permissible.

OVERVIEW OF COPYRIGHT LAW


To summarize very briefly, the owner of a copyright has the Exclusive Right to reproduce the
copyrighted work, to create Derivative Works based on it, and to

distribute copies,

perform the work or display it to the public. Anyone else who does these things is guilty of
copyright Infringement unless what that person does qualifies as a fair use. To prove an
infringement, the copyright owner must show Substantial Similarly between the original work
and the allegedly infringing work. The owner must also show that his/her copyright is Valid
and the infringer had Access to the original work and thereby, violated one of the exclusive
rights of the author. When the copyright eventually expires the work then falls into the
Public Domain, at that point, the once exclusive rights belongs to everyone.

C.

INFRINGEMENT OF COPYRIGHT

INDIAN SCENARIO:
Section 51 of the Copyright Act, 1957 lays down various acts, the doing of , any of which
without a licence from the owner of the copyright or the statutory authority or in
contravention of the terms of such a licence would constitute an infringement of the
copyright in a work. Section 52 enumerates various acts, the commission of which would
not constitute such infringement. These are in the nature of exceptions to the exclusive
rights conferred upon the copyright owner and also serve as defences in an action for
infringement. The remedies for infringement are laid down under Sections 54 to 58 of
the Act.
On a combined reading of Sections 51 and 52, the following acts amount to acts of
infringement of copyright when committed by a person not authorized by licence from

the owner or the competent authority under the Act:


1. If the defendant reproduces the work in any material form (otherwise than by
way of a fair dealing for the purposes of private use, including research,
criticism or review or for the purpose of reporting current events) in a newspaper,
magazine or similar periodical or by broadcast, in a cinematograph film or by
means of photographs.
2. If the defendant makes a cinematograph film by reproducing or converting a
substantial portion of the plaintiffs novel or drama.

In R.G. Anand v. Deluxe Films3, Fazal Ali, J laid down the following tests for infringement:

1. There can be no copyright in an idea, subject matter, themes, plots or historical


or legendary facts and violation of the copyright in such cases is confined to the
form, manner and arrangement and expression of the idea by the author of the
copyrighted work.
2. Where the same idea is being developed in a different manner, it is manifest that the
source being common, similarities are bound to occur. In such a case the Courts
should determine whether or not the similarities are on fundamental or substantial
aspects of the mode of expression adopted in the copyrighted work. If the defendants
work is nothing but a literal imitation of the copyrighted work with some
variations here and there it would amount to violation of the copyright. In other

3 (1978) 4 SCC 118.

words, in order to be actionable the copy must be a substantial and material one
which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. 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 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 the
subsequent work becomes a completely new work, no question of violation of
copyright arises.
5. Where however apart from the similarities appearing in the two works there are also
material and broad dissimilarities which negative the intention to copy the original
and the coincidences appearing in the two works are clearly incidental no
infringement of the copyright comes into existence.
6. Where, however, the question is 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. It is manifest that unlike a stage play a film has a much broader
prospective, wider field and a bigger background where the defendants can by
introducing a variety of incidents give a colour and complexion different from
the manner in which the copyrighted work has expressed the idea. Even so, if the
viewer after seeing the film gets a totality of impression that the film is by and large a
copy of the original play, violation of the copyright may be said to be proved.

Copinger 4 , a leading international author on the subject, describes the necessary


ingredients of a case for infringement as:
In any case of infringement the plaintiff has to establish not only
that the work in respect of which the complaint is made in fact so
nearly resembles his as to be capable of being an infringement, but also
that it has in fact been produced by the use of those features of his
work which by reason of the knowledge, skill and labour employed
in their production constitute an original copyright work. There is no
infringement unless it is established that the defendant has
produced a work which both closely resembles the plaintiff's work and
has been produced by a direct or indirect use of those features of the
plaintiff's work in which copyright subsists.

U.S. SCENARIO:
Under the U.S. Copyright Act, 1976, there are three things which needs to be proved in order
to constitute infringement, they are:
1. The alleged infringer had some access to the authors work,
2. There is substantial similarity between the two works and,
3. That the copyright is valid and covers a legitimate, original work.

For the substantial similarity test to be met, there must be both similarity in the general ideas
underlying the two works (often called the Extrinsic Test for similarity) and similarity in
4 Copinger on Copyright, (12th Edn.) Para 458.

copyrightable aspects of the expression of those ideas (the Intrinsic Test for similarity).
However, after all of this legal analysis of what constitutes substantial similarity is completed,
the original copyright owner ultimately has to convince a judge or jury that the Average Person
(not just an expert) would see the new work as similar enough to have been pirated from the
original.

OBJECT OF COPYRIGHT LAW


The law of copyright is intended to prevent plagiarism and unfair exploitation of
creative work. It is a natural extension of the freedom of speech and expression
protected under Article 19(1)(a) of the Constitution . If an individual enjoys the
freedom of speech and expression, he must also be guaranteed protection of the
intellectual property in his expression, be it in the form of a literary, dramatic, musical
or artistic work, a film or a sound recording.
Copyright protection and a guarantee of material benefit to the creator of an original
work is essential to ensure encouragement of creative work in all walks of life so that
society can make cultural progress. Absence of such protection would demoralize
creative artists and have a chilling effect on creative activity. Also, since copyright
protection is afforded not only to authors but to publishers and assignees of such
work, if others were entitled to copy their works and profit from their sale, such
persons would be hesitant to invest their resources in publishing and circulating
original works 5 . There is, therefore, a vital public interest in copyright protection.
G. Davies in Copyright and the Public Interest6 provides that:
Copyright... serves the public interest in freedom of expression. By
enabling the creator to derive a financial reward from the work, his
artistic independence and right to create and publish according to his
5 See infra Ownership of Copyright also refer Land Broke v. William Hill, (1964) 1 All ER 465
HL, Sumangalam R. Jayalakshmi v. Meta Musicals, A.I.R 2000 Mad. 454.
6 NC Studies, Munich, 1994 XIV 173.

own wish and conscience is assured. Alternative methods of rewarding


creators, such as patronage, whether by the State, or by individuals, carry
the risk of control or censorship.
The Universal Declaration of Human Rights, 1948 7 recognizes not only the right
to protection of original works but also to the protection of the economic
benefits attached to it. Article 27 of the Universal Declaration of Human Rights,
1948 reads as:
1. Everyone has the right freely to participate in the cultural life of the community to
enjoy the arts and share in scientific advancement and its benefits.
2. 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.

7 www.un.org/Overview/rights.html as visited on 5.02.09.

COPYRIGHT VERSUS THE FREEDOM OF EXPRESSION


Seen from a different angle, copyright is not a positive right to do something but
confers a negative right, which restricts others from copying the original work of an
author. A right for one person is thus a restriction on another. Since the law of
copyright protects the right of one person and restrains another from exercising
corresponding rights, the question naturally arises as to whether the right of the
copyright owner infringes the freedom of expression of another under Article 19(1)
(a) of the Constitution or the freedom of business of another guaranteed under
Article 19(1)(g). Unlike defamation, contempt, morality, decency, incitements to an
offence and the like, copyright is not one of the specified restrictions under Article
19(2). However, the law of copyright is an incident of the general law of property.
Whatever an individual produces by the application of his labour, intellect or skill is
his property. The law of copyright creates a further statutory intangible right of
property in respect of such work if it is an original work 8 . The right to free
expression or free trade cannot be stretched to mean that a person can be entitled to
benefit from anothers property or the fruits of anothers labour whether tangible or
intangible.

THE FAIR USE DILEMMA

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted
material without requiring permission from the rights holders, such as use for scholarship or
review.9The competing interests of the right holders and the users of copyright work rests on a
delicate balance and Copyright law maintains it with the help of fair use or fair dealing
provisions. Fair dealing is a formulation known to jurisdictions that evolved out of the British
common law copyright system. These provisions provide protection for materials taken for
8 The Copyright Act, 1957, Section 13 (1) (a).
9 http://en.wikipedia.org/wiki/Fair_use

research or study, criticism or review, reporting the news and for purposes related to judicial
proceedings.10
INDIAN SCENARIO:
In India, Section 52 of the Copyright Act, 1957 explains what all are not legally infringements.
The section begins with fair dealing as one of the exceptions of infringement. Accordingly, fair
dealing with a literary, dramatic, musical or artistic work for the purposes of (i) research or
private study; or (ii) criticism or review, whether of that work or of any other work does not
constitute infringement.
The making of not more than three copies of a book (including a pamphlet, sheet of music, map,
chart or plan) by or under the direction of the person in charge of a public library for the use of
the library if such book is not available for sale in India, the reproduction, for the purpose of
research or private study or with a view to publication, of an unpublished literary, dramatic or
musical work kept in a library, museum or other institution to which the public has access:
Elaborating the context of studies, the Section further holds that the reproduction of a literary
work...(i) by a teacher or a pupil in the course of instruction or (ii) as part of the question to be
answered in an examination; or (iii) in answer to such question. (Sec. 52 (1) (h) of Copyright
Act) also comes under exception to copyright infringement.
The most important question involved here is that when such a usage amounts to infringement.
In Ramesh Chaudhary & Ors. v. Ali. Mohd11, it was held that:
Verbatim lifting of the text to the extent of copying the complete set of
exercise and the key to such exercises can in no manner be termed as a
review, criticism or a guide to the original work and thus it amounts to
infringement.
Similarly, in Syndicate Press of University of Cambridge & Anr. v. Kasturi Lal & Sons 12, which
also involved the verbatim lifting of the text to the extent of copying the complete set of exercise
10 http://en.wikipedia.org/wiki/Fair_dealing
11 AIR 1965 J& K 101.

and the key to the exercise. And hence, the court observed that the act of the defendants could
not be termed to be a review, criticism or a guide to the original work. The Court also opined
that:
While the universal nature of knowledge and its dissemination freely is a
approving concept but it must not transgress rights of an author guaranteed
by the Copyright Act. Those who possess the ability to create also possess the
right to assert that their creation be recognized and identified with them. They
have the right to proclaim that no other person infringes upon their claim of
originality and the right to limit the use and prevent the abuse of their
creation.
U.S. SCENARIO:
To decide if a given use of a copyrighted work is a fair use, the 1976 Copyright Act
provides for four factors which needs to be considered:
1. The purpose and character of the use, including whether it is for profit or for
a non-profit educational purpose,
2. The nature of the copyrighted work,
3. The percentage of the total work that is used and,
4. The effect the use will have on the value or profit-making potential of the original
work.

D. LEADING CASE LAWS


1. Basic Books v. Kinkos Graphics Corp.13- By the 1990s another issue involving
classroom copying had become controversial, that was the use of course packages in
12 2006(32) PTC 487 (Del.)
13 758 F. Supp. 1522.

college classes. In 1991 a federal court ruled that Kinkos Graphics, a major
producer of these course packets, had to pay royalties for virtually all of the
copyrighted materials (such as magazine or journal

arti cles and book chapters)

included in these custom compilation of previously published materials. The court


held that such large-scale copying was not a fair use as the result was that
companies like Kinkos and college bookstores were now charging higher prices for
course packets so royalties had to be paid to each copyright owner.
2. Princeton University Press v. Michigan Document Services 14- In this case, the
courts 2-1 majority opinion gave teachers and copying services complete right to
copy magazine and journal articles as well as large parts of books for inclusion in
course packets by holding that such copying is a fair use, and not amounting to
copyright infringement. Armed with this decision, many copying services geared up
for a bonanza of royalty-free copying. But then the celebration ended as the full
panel of judges sitting on the sixth circuit voted to set aside the earlier ruling and
rehear the case. The judges then voted 8-5 to overturn the earlier decision and ruled
that large-scale copying for course packets was indeed an infringement, and not a
fair use.
3.

Williams & Wilkins v. U.S.15- This case was initiated by a publishing house whose
medical journals were being photocopied on a massive scale by federally funded
medical libraries, so that the libraries could avoid purchasing additional copies. The
publishing house lost its case as in 1973 a federal court said that the dissemination
of medical knowledge was so important that this copying was a fair use. The case
was appealed to the U.S. Supreme Court, but the decision of the federal court
remained unchanged.

14 74 F.3d 1528.
15 487 F.2d 1345, 420 U.S.