Public performance or not.!!

 Author : Shweta Khurana, 2nd Year student of RGSOIPL, IIT Law School.

Is the evolution and interpretation of laws lagging behind the technological advancements? The recent Supreme Court judgment in the case of American Broadcasting Companies Inc. v. Aereo Inc. 573 US 2014 implies so. The ruling observes that the retransmission of programs to the paid subscribers without the copyright owner’s authorisation or license is violative of the copyright law. The case raises the question of liability of the companies that offer the subscribers the ability to watch and record local broadcast television over the internet on payment at monthly basis. The US Supreme Court rejecting the respondent’s contentions as to their retransmission activity not coming within the meaning of “public performance” pointed out that such service was a tool or way to avoid being held liable for copyright infringement.

Analysing the judgement, if we look into the technology to get a clearer view as to the service in dispute being within the meaning of “public performance” the said service allows all the paid subscribers to watch programs airing on network television or record programs that will air in the future over the Internet.  The service provides three-in-one function as that of a regular television antenna, a recording device, and an application that makes these services work on devices other than televisions and computers. This is enabled by use of thousands of antennas that are distinct for each subscriber and function to capture the local broadcast signals i.e. thus the service bears similarity to modern day cable systems. Pointing to the definition of the public performance under the US Copyright Act, 1976^[1], 17 U.S. Code § 101 states that:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Interpreting the words of the definition and applying it to the dispute under question, it is noted that Aereo sent each of its subscribers an individualized/ private transmission of a performance from a unique copy of each copyrighted program captured and transmitted through different antennas. Also the servers are subscriber specific and does not involve transmission of performances “to the public,” but rather a number of "private" performances to paying subscribers.

Referring to two similar cases of Fortnightly Corp. v. United Artist Television Inc.^[2] and Teleprompter Corp. v. Columbia Broadcasting System Inc.^[3] where the community antenna television (CATV) systems were considered to be outside the purview of ‘public performers’ and these systems were said to be like a viewer rather than a broadcaster as these systems only perform the function of carrying the programs which have already been released to the public by private channels to individual viewers.

Drawing a comparison with the Indian Copyright Act, 1957 as amended in 2012 that gives an expanded definition of “communication to public” under Section 2 (ff)^[4]  so as to include both works and performances (instead of just works as was the case prior to the coming into effect of the 2012 amendments i.e. 'earlier'). Also, the definition now explicitly states that it does not matter whether the communication is ‘simultaneous or at places and times chosen individually’. As such, it appears to include multicasting, narrowcasting and unicasting. The explanation to the aforementioned section helps in understanding the intricacies of the copyrighted works transmitted through satellite or cable transmission so as to be considered within the definition of ‘public performance’. This makes it clear that such a dispute under Indian Jurisdiction would have suffered the same fate, preserving and protecting the broadcaster’s rights ruling out copyright violation on part of the service provider.  

Looking a bit deeper into the issue, one can see the economic and technological implications of this judgment on the new and upcoming technologies like Apple’s iCloud and Dropbox and other cloud computing tools that provide easy online access to stored data, music, pictures and other information via an online platform. It also raises concern as to the affordability issue as the service enabled the viewers or subscribers to watch and record local programs from various electronic devices on a very cheap subscription monthly payment.

So, instead of leaving the judiciary to interpret the law on their own, there is a need to find out such loopholes within the legislation and improvise or evolve the law to keep pace with the leaping technological breakthroughs as a 1976 legislation is not an appropriate legal proposition to be applied in the era of Internet, digital video recorders and smart phones.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]http://www.law.cornell.edu/uscode/text/17

[2] 392 U.S. 390 (1968)

[3] 415 U.S. 394 (1974)

[4] "communication to the public" means making any work available for being seen or heard or

otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing

copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

Explanation.- For the purposes of this clause, communication through satellite or cable or any other

means of simultaneous communication to more than one household or place of residence including

residential rooms of any hotel or hostel shall be deemed to be communication to the public;

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Every Monkey has its day!!! I mean litrally …

Author: Suraj Badrayan, 3rd Year student of RGSOIPL, IIT Kharagpur Law School.

Imagine yourself owning a DSLR camera, and trek the forests in the hopes of capturing one of those rare photographs. You put down your camera and take break. Little do you know, lurking in the bushes, whoosh..!!! A monkey grabs your camera, manhandles the camera and then dropping it down and running away. Ordinarily, all you would do is just hope that your expensive camera is not damaged and scratched. But, then you find out  that you are in the possession of one of the rarest photographs ever captured. A rare shot of a monkey taking a selfie!! That photograph could make you a lot of money.

Little do you realise that you would be actually be mixed up with a bizarre copyright ownership issue about that photograph. Apparently, the monkey owns copyright over the photograph. Surprised..!!! Well you shouldn’t be, because that is exactly what has happened to Mr Slater. The story can be viewed here.

Well, let’s examine the legal position in this regard. Section 17 of the Indian Copyright Act, 1957 says that “the author of the work” shall be the first owner of the copyright. Section 2(d) subclause (iv) of the same Act, defines author of the photograph as the person taking the photograph. So by bare reading of the provisions of the Act, you will actually realise that the monkey is  the true owner of the copyright.

Ok, in order to make things more complicated, the Black’s Law Dictionary and General Clauses Act, 1897 defines person as a human being or a legal entity. So, the monkey cannot hold the copyright in the photograph.

THE QUESTION IS WHO OWNS THE PHOTOGRAPH?

There are three arguments that can be put forward. Let’s look at them.

1. The owner of the camera is the owner of the photograph. He spent, time, money and resources. He meant to take photographs, but the monkey took and camera and clicked it. Since, monkey is not a person, naturally the only person over there, the owner of the camera owns the copyright.

2. The government owns the photograph: The concept of animals as “property” of person is not new. To the law, animals are property, they are goods to be bought and sold, acquired and maintained.   This principle is deeply interwoven into the law. Imagine, the monkey is owned by a person, say Mr. X. Then, if the monkey clicks the photograph, then it can be said that the copyright is owned by Mr. X. As common law says that, rights and liabilities of acts done by the animal can be traced back to the owner itself.

Section 39 of the Wildlife Protection Act, 1972 specifies that all wild animals are to be government property. Section 17 clause (d) of the Copyright Act, says that in case of government work, the government shall be the first owner of the copyright. Hence, above analogy, the government shall be the first owner of the copyright of the photograph.

3. The photograph is in public domain: Here it can be said that, no one owns the copyright, and the photograph is public domain under the principle of res communes. The term res commune was defined as "things that could be commonly enjoyed by mankind, such as air, sunlight and ocean”. Common law describes public domain material as publici juris or propriétépublique to describe works that were not covered by copyright law. Legal scholars such as Patterson and Lindberg describe “public domain” not as a "territory", but rather as a concept: "There are certain materials—the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers—not subject to private ownership. The materials that compose our cultural heritage must be free for all living to use no less than matter necessary for biological survival.^[1]

Hence, copyright to photograph may not exist at all due to publici juris principle. An alternative interpretation to this would be taking the philosophy of section 52 of the Copyright Act, which are copyright exceptions and limitations. Hence, such content which (but for Section 52) would have fallen squarely within the scope of the definition of a protectable work under the Copyright Act may also, in a manner, be considered to be in the public domain, if one were to use the term loosely. Consider particular sub clauses of:

 52(1)(a): as fair dealing

52(1)(h): for bona-fide instructional use

52(1)(m): for reproduction in any newspaper, periodical, magazine of an article on economic, political, social or religious topics.

Or reading of  the general exceptions within section 52 one can come to a conclusion that the photograph can be fitting loosely in the definition of public domain.

CONCLUSION:

If the matter ever comes to court and if I was ever the judge hearing that case, I would rather apply the Golden rule of interpretation^[2] to the definition of author in section 2(d) sub clause (iv) of the Copyright Act in order to remedy the absurd result arising from the section.

The interpretation would be that in particular cases when author of the camera is not able to be determined or is absurd in law, then the author is in fact the owner of the camera.

This would be the most simple, more logical and common sense thought to do. For if a court would try to resolve it otherwise, he would end up writing a whole lot of absurd nonsense like the one I have written above.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]Ronan, Deazley (2006). Rethinking copyright: history, theory, language.Edward Elgar Publishing.p. 105.ISBN 978-1-84542-282-0.

[2]The golden rule of statutory interpretation may be applied where an application of the literal rule would lead to an absurdity. The courts may then apply a secondary meaning.

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Breakdown of the ‘Idea- Expression Dichotomy’ Doctrine

The doctrine that, only expressions are Copyrightable and not the underlying ideas, is referred to as ‘idea expression dichotomy’ and is one of the foundation pillars of modern Copyright Law. It is because of this doctrine that non literal expressions could also enjoy a protection. The doctrine has been relied upon by the Indian Courts in a number of decisions (for e.g., see the oft quoted judgment in the case of R.G.Anand v. Delux Films, AIR 1978 SC 1613).

The test to separate the copyrightable expressions from the underlying non copyrightable ideas is referred to as the ‘pattern test’ or ‘abstraction test’ and has emerged from the argument put forward by J. Learned Hand in the case of Nichols v. UniversalPictures Corp., 45 F.2d 119 (2d. Cir. 1930):

Upon any work, ...  a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play [or the work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright [the author] could prevent the use of his "ideas," to which, apart from their expression, his property is never extended...

In this quest to find out the dividing line between the expression and the underlying idea, Hand asks us to carry out a series of abstractions where each abstraction is coupled with filtration out of Copyrightable expressions. For the sake of clarity, consider the following example:

“Samba, mad with rage, murdered the treacherous Kaliya on that dark moonless night.” [Initial Expression]

First abstraction:

“Samba, mad with rage, murdered the treacherous Kaliya that night.” [Underlying Expression]

Second abstraction:

“Samba, mad with rage, murdered the treacherous Kaliya.” (Expression underlying the Underlying Expression)

Third abstraction:

“Samba, mad with rage, murdered Kaliya.” (Expression underlying the Expression underlying the Underlying expression

Fourth abstraction:

“Samba murdered Kaliya.” [The most general statement of what the initial Expression is about]

Justice Hand regards this ‘the most general statement’ as the idea which is not copyrightable.

However, such an approach presents to us a paradox because aren’t the words, “Samba murdered Kaliya”, too an expression. They are words of English language and language is an instrument of expression. Hence, to say that we have dissected the expression and found out the underlying idea is an absurd statement, for the course of such an exercise, pushes us to the realms of Psychology, which in itself is not an exact science. Because, whatever the idea we think through our faculty of reasoning, logic or aesthetics, as soon as is delivered to the external world, either through speech or pen or paint brush or an act of drama or dance, becomes an expression and no more remains merely a thought or an idea. Thoughts and ideas dwell in the kingdom of the brain and mind but as soon as they are delivered to the outside world, even in the most minuscule, raw and uncreative form, they are expressed, hence transform into an expression. Thus, for the purpose of finding out the underlying idea, telepathy and not ‘pattern’ or ‘abstraction’ test is required. Hence, to me, the doctrine that idea- expression dichotomy is a pillar of Copyright Law, appears to be incorrect. 

The doctrine also appears to be flawed because it makes the whole law subjective and renders unpredictability to the situation. Even if the outcome of a case does not get influenced by personal whims and fancies of the judge, yet in the absence of any bright line rule, the same situations may have different outcome when presented to different judges. The following illustration shall be useful:

Suppose you are the judge and the owner of the copyright in Spiderman approaches your court against the copyright owner in Nagraj alleging that the Naagrassi (Snake rope) coming out of the wrist of Nagraj is substantially similar to the spider web rope coming out of the wrist of Spiderman:

If you apply ‘abstraction’ test on the character of Spiderman to find out when the expression separates from the idea and thus what would be the scope of copyright protection, the following plausible abstractions come out:

Abstraction- Underlying Idea #1:

A rope like structure coming out from the wrist of the Superhero, made up of a material peculiar to the Superhero.

Abstraction- Underlying idea #2:

Use of a rope by the Superhero to swing in the air or to tie enemies.

In the absence of any guiding light or bright line formula, you are free to chose any of the above abstraction as the underlying non copyrightable idea- if you find the former as the idea, then the plaintiff will get a relief but if you find the later as the underlying idea, the defendant would be in a better position.

Then what is the way out? In my humble suggestion, we need to go to the basics of Copyright Law. Perhaps we must look into the creative aspects of the work and if the new work is creatively novel  then the work must enjoy a copyright protection. Hence, rather that traversing backward to abstract the underlying idea, we must keep the initial work (whose copyright has been alleged to have been infringed) as the starting point and then compare the later work with it. If the expression in the later work is creatively different then it is not infringing (Note: Here the degree of creativity must be much higher than the modicum of creativity, Eastern BookCompany v. D.B. Modhak, (2008) 1 SCC 1, because if creative aspects are present only in modicum quantities, then the new work is a mere adaptation).  And this decision, which would be based on the then prevailing facts, and not law should be decided not by judges, but by a jury comprising of artists and critiques in that field and expert evidence should have a great value. 

Author: Tanveer Verma

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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BEWARE OF THE 'NEW PUBLIC'

The judgement of CJEU in the case of Svenssonv Retriever Sverige AB, hereinafter referred to as Svensson, sheds some light on the doubts related to hyperlinking. In the case Retriever Sverige AB (‘Retriever Sverige’) operated a website that contained hyperlinks that redirected users to press articles in the website of the Stockholm newspaper Göteborgs-Posten. Svensson, a journalist including 3 others sued Retriever Sverige AB for communication of their copyrighted work to the public. So after the judgement to the case we try to answer some questions here.

1)      Q: What if a website provides hyperlinks to the copyrightable content of another website, otherwise freely available?

Ans: The links that have been posted are linking them to original site itself and allowing them to view what have already been given free access to! So there is no communication to “new public”. Hence there is no infringement of copyright.

By “new public”, the court means, the public that was not taken into account by the copyright holders when they authorized the initial communication to the public to whom the work has been communicated to.

2)      Q: But what if the original site has removed such protected content from the site and still another website gives access to those removed contents?

       Ans: In this case the access is being given to new public and as per the  reasoning of the court in this judgement it would amount to copyright  infringement.

3)      Q: What if a website gives access only to restricted users to the protected content and another website on the other hand circumvent such restrictions through the links appearing on such site?

       Ans: Definitely then access of the content is being given to new public a copyrighted material. Then bypassing such restrictions, will amount to infringement!

4)      Q: What if another website links to content from other website in such a way that it appears to the viewers that it is a content of the website on which the links are available?

       Ans: In this case if the content is still freely available then as per this judgement it would not result in any infringement as there is free access and no new public is created.

5)      Q:Article 3(1) of Directive 2001/29 provides: 

         Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

 So it is possible for a Member State to give wider protection to authors’ exclusive right by enabling communication to the public to cover a greater range of acts than provided for in the directive?

Ans: The directive is for the purpose of harmonization of the member state laws and widening the scope of the act of “communication to the public” would be detriment to the purpose.

Conclusion: 

      

In a nutshell the implications of this judgement is that internet users will still be able to share and refer to free contents on the Internet without breaking copyright rules. It is also good news for internet users and especially for content aggregators that direct consumers to content sites whose revenue would otherwise be seriously affected. The judgement of this case is valuable as it settles some of the debated issues and brings in the concept of “new public” which however may not always provide a workable solution in every situation. It sets a positive precedent to cases of hyperlinking of unauthorized content.

The Copyright Act, 1957 of India has inserted a sec 52 (c) after the amendment in 2012 which permits transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration unless such links, access or integration have been expressly prohibited by the right holder or if the person responsible is aware or has reasonable grounds to believe that such storage is of an infringing copy. We are yet to see how the Indian courts deal with the issue of hyperlinking after this case.

References:

•     http://copyright.lawmatters.in/2011/01/hyperlinks-and-copyright-infringement.html
• Alka Chawla , Law of Copyright : Comparative Perspectives, First Edition, 2013
• http://kluwercopyrightblog.com/2014/02/21/the-svensson-case-and-the-act-of-communication-to-a-new-public/

AUTHOR - Neerajita Sarkar

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Types of Copyright in a Comic Book and an Animation Movie

Although a formal Registration of Copyright with the Copyright Office is not mandatory but a Registration Certificate serves as a prima facie evidence of ownership of Copyright (s. 48 of Indian Copyright Act, 1957). For e.g., in the case of Raja Pocket Books v. Radha Pocket Books, 1997 (40) DRJ 791, the plaintiff through evidence had to prove that they were the true owners of copyright in the character ‘Nagraj’ and it was a very heavy burden to discharge. The Indian Copyright Act chalks out the following categories of copyrightable work:

1.        Artistic
2.        Literary
3.        Dramatic
4.        Musical
5.        Sound Record
6.        Cinematograph
7.        Software

And by the virtue of s. 16 of the Copyright Act, the Copyright Office will grant Registration only if the work falls in any of these categories and the applicant is able to establish the same. At times, a piece of creation may contain more than one of the above elements and a registration of copyright for the work in one of the above categories would not deem that the other elements have also got a protection. For example, the song “Maa Rewa” by the band “Indian Ocean” in their album “Kandisa” has the following elements in which a copyright could subsist: 1. Lyrics, 2. Music and 3. Sound Recording.  A copyright registration certificate in the category of Sound Recording although would be a prima facie evidence that the sound recording is original but could not establish that the copyright in the music (the tune, etc.) and the lyrics lie with the applicant. For these purposes, two separate applications need to be filed- one for the Lyrics (under Literary category) and other for Music and respective Registration Certificates need to be obtained.

The situation becomes more complex when the complexity of the nature of the work also increases and thus it is important to have a very clear understanding of the various underlying copyrightable elements in the work for the purpose of a proper and complete legal copyright protection.

A.     Comic Book

A comic book is a creation where generally a story is told using certain pictures in various frames. These pictures may or may not be accompanied by words, dialogues, etc. Therefore, a comic book contains the following copyrightable elements:

1. Artistic Work in the pictures and characters: The Copyright Office will not accept the entire comic book as one artistic work and therefore each character needs to be registered separately through separate application. Although, it is not necessary to register various moves of one character separately and one application containing one figure of the character is enough but it is advisable to register every unconceivable (by common man) emotion or action associated with that figure (For e.g. it is not necessary to file a separate application under artistic category for a Nagaraj who is kicking when an application for a standing Nagaraj has been made but it is advisable to get a separate registration of a Nagaraj with snakes coming out of his wrist)
2.  Literary work in the dialogues and captions: The dialogues and other captions used in the comic book would fall under Literary Category for Copyright protection. An application under literary category shall be made to the copyright office with the complete Comic book attached (but remember that this application would not be able to cover the artistic elements discussed above).
3. Non Literary Elements to be covered under Literary category: In a comics, the story is told either through a combination of pictures and dialogues/ words/ captions or by the use of pictures alone. When no dialogues/ words/ phrases are used, it is important to protect the underlying story which is the non literal element by writing down the story in a real language on a piece of paper and then applying for a registration under the literary category. In those cases too, where the story is conveyed partly through words and partly through pictures, such type of protection of non literal element is advisable. (For a better understanding of non literal copyrightable expressions, please see R.G. Anand v. Deluxe Films, AIR 1978 SC 1613 and Anil Gupta v. Kunal Dasgupta, AIR 2002 Delhi 379).   

Story partly told through dialogue and partly through pictures

(http://lous-land.blogspot.in/2013/01/new-crocs.html)

Moreover, a comic book, like Raj Comics’ “Nagaraj”, may contain one single story or, like Diamond Comics’ “Billoo”, may contain a set of many stories. It would really not matter whether the literal elements in a comic book with many stories are registered using one application or different applications for different stories however to avoid the 10% permissible infringement (de minimis infringement, please see India TV v. Yashraj, 2013 (53) PTC 586 Del), one might go for separate registrations.

Snakes coming out of Nagraj's wrist- something difficult to conceive

(http://www.2-clicks-comics.com/comic-book-characters-letter-n/nagraj-comics.html)

B.     Animation Movie

An animation movie is a great work of art and per se it comes under the category of ‘Cinematograph’ for the purpose of Copyright. However, there are a number of other copyrightable elements in it and are as follows:

1.       Cinematograph: The complete movie would enjoy a protection under the cinematograph category and as per section 2 (f) of the Copyright Act, cinematograph also includes the Sound Recording, therefore, in my opinion, there is no need to file a separate application for the Sound Recording in the film.

2.       Artistic Work in the character, background, etc.: Just like a comic book, all the characters and even the background (For e.g., the ice castle in the movie ‘Frozen’ by Disney) would come under the Artistic category and it is advisable to file separate applications for all the characters and their distinct moves and any other work whose infringement would harm the true owner.

3.       Literary Category: The dialogues, the commentary, the lyrics of the songs, etc. would come under the Literary Category. It is advisable to file separate applications for the lyrics and the dialogues to avoid any de minimss infringement.

4.       Music: The music in the songs, background score of the movie, etc. would come under the Music category and it is advisable to file separate application for separate score.

5.       Non Literal Elements to be covered under Literary category: Just like a comic book (discussed above), the non literal elements (like the underlying story) should be written down on a paper and filed for Copyright Protection under Literary Category.

Again, Copyright Registration is not mandatory but a Copyright Certificate would serve as a prima facie evidence in case of any future infringement and by its virtue, the infringer has to suffer a very heavy burden of proof.

In reality, the situation is more complex especially in the cases of Animation movies because the authors of various component works are different and thus a proper licensing/ assignment strategy needs to be adopted, but that discussion shall be kept for a separate blogpost. 

A Copyright application as per the current Copyright rules is made through Form XIV.

And finally, a few words from Raja Pocket Books v. Radha Pocket Books, 1997(40) DRJ 791:

Meaning of the word "NAGRAJ" and "NAGESH" is the same, namely, king of snakes. The idea depicted in the comic Nagraj is of a human being (male) with snake like characteristics ,who can climb walls and roofs, can blow poison and kill his enemy, capable of releasing snakes from any part of his body, the snake so released from the body after completing their work return back to the body and merge in the snake like character NAGRAJ. In the comic "NAGRAJ" the character is shown to be a creature of professor Nagmani, an expert and knowledgeable person with respect to snakes with the object of helping criminals and militants in furtherance of their object of creating terrorism etc., which due to intervention of Baba Gorakhnath is transformed into a Harmit, a noble character used for eradication of terrorism from the earth. (Devinder Gupta, J. Del HC, 1996).

(Note: 

1. This post is not a legal advice.
2. I do not own the copyright in the pictures/ comics posted. However, this use will be fair use but further copying might amount to infringement.
3. The copyright in the video has expired.
4. This post may be used for scholarly purpose without my permission. However, the source and the name of the author needs to be mentioned.)

Author - Tanveer Verma

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