The laws of intellectual property have played a decisive role in cultural, educational, scientific and technological advancements. Copyright is a legal term used to describe the rights that creators have over their fictional and artistic works. Works covered by copyright range from books, music, paintings, sculpture, films to computer programs, databases, advertisements, maps and technical drawings. It is a legal right shaped by the law of a country that grants the inventor of original work partial rights for its use and distribution. This is usually only for a limited time. The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use. In India, copyright laws are governed by the Indian Copyright Act, 1957 [1] .
Section 14 of the Indian Copyright Act, grants the creator a set of rights through which he may ensure that he is not deprived of any benefits arising out of his work. It is important to note that not all rights are granted to all forms of work. Certain benefits are limited to specific creations, while the rest are applicable on all forms of work.
Perhaps the most important of the lot, the reproduction right grants the owner the exclusive right to make copies of his work, in any form. If any other person, without the express approval of the owner, participates in reproduction in any kind, such as photocopying a book, reproducing a cartoon character on a shirt, making a digital copy of a movie, making an audiobook out of a hardcopy, et cetera, infringes upon the reproduction right of the owner. Infringement of this right can take place in the form of verbatim copying, or modified copying. The former involves straightforward reproduction, such as photocopying a book or reproducing a protected photo on a dress. Complications arise in circumstances where the work has lifted parts, and modified them to form an altogether new creation. In such cases, the courts generally bring forth ‘the substantial similarity test’ in order to help them determine whether the defendant’s act did actually constitute violation of the plaintiff’s right and deprive him of benefits, or not. The substantial similarity test incorporates two components, the first one being, determining whether there actually had been ‘exact copying’, and the second one being assessing the degree to which the copying resulted in ‘a substantially similar reproduction’.
As stated earlier, a new work similar in substance to a prior work would not necessarily constitute copyright infringement. If the defendant is able to prove that he had no reasonable access to the plaintiff’s creation, and thus had not known of it at the time of creating his own work, his act would be well within his legal rights.
Once actual copying is proven, the work is still not adjudged an infringement upon the plaintiff’s work yet. The courts then look into the intricate details of both works, and try determining whether the defendant’s act did actually bring about the existence of ‘a substantially similar copy’. [2]
Harney v. Sony Pictures Television, Inc. and A&E Television Networks [3] , LLC. is a landmark case concerning this element. Back in April 2007, freelance photographer Donald Harney stopped by a Boston church, and requested a pair of father and daughter to photograph them for a newspaper. The father reluctantly agreed, and Harney captured a shot of the young Reigh Storrow Mills Boss being carried on her father’s shoulders, who was presumed to be Clark Rockefeller at that time. Later on, when Harney had the photo published, many official authorities realized that the father in the picture was actually Christian Gerhartsreiter. Later on, Sony Pictures television, Inc. and A&E Television Networks, LLC. collaborated to make a movie titled ‘Who is Clark Rockefeller’. One of its significant scenes bore a striking resemblance to Harney’s picture. On discovering so, he sued for copyright infringement. The courts, on assessing the intricacies of both works, came to a conclusion that the defendant’s work did not infringe upon the copyright of the plaintiff. There were certain elements in Harney’s picture that entailed copyright shelter, while certain others did not. The courts declared there to be substantial differences in both the works, in respect of the protected elements of the picture, and thus the defendant’s work called for independent copyright protection.
This right entitles the owner to lend, lease, sell or rent out copies of his work to the public. ‘Copy’ means a reproduction of the work in any form. Through this very right, the owner is able to exploit his work to its fullest. However, this right is limited by ‘doctrine of first sale’, as implied in section 14. According to the section, the owners of a literary, dramatic or musical work, not being a computer program, have the exclusive right to issue copies of the work to the public, as long as these copies are not already in circulation. A copy enters into circulation the moment it is sold off for the first time. An important point to remember is that this right is copy-specific, which means it is applicable on that very copy in circulation. The only two conditions attached to this doctrine are that firstly, the copy must have been obtained lawfully, and secondly, the person intending to sell off the copy must be its owner. Thus, a person who has merely been lent the copy by the owner is not entitled to exercise this doctrine.
This doctrine brings forth the idea that, though copyright laws were designed keeping in mind the rewarding of creators, the primary objective of granting copyright protection is the distribution of knowledge for the greater good. Thus, this doctrine encourages the secondary market, acting as a check on the rights of the copyright owner.
Cinematographic films and sound recordings are exempted from this doctrine. Section 14 of the Indian Copyright Act explicitly states that the owners of a cinematographic film or sound recording have the exclusive right to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions [4] .
However, the dawn of the internet brought in a new set of challenges to the pre-existing laws of that time. The distribution right, just like other laws, was designed keeping in mind the ‘physical’ transfer of copies from one individual to the other. The internet is a platform where an individual can upload content on various websites for others to access, and more often than not this content turns out to include illicit copies of films, eBooks, sound recordings, et cetera. Thus, it was argued that whether the act of uploading copies violates the public distribution right. The courts came to a conclusion that it did constitute copyright infringement, as uploading copies meant making them available for others to access, which is synonymous to the lending of physical copies to the public (barred by the public distribution right in conventional sense).
This right, also termed as ‘the derivative works right’, entitles the owner of copyright the privilege to prevent others from making derivative creations out of his work. A ‘derivative work’ means the adaptation, transformation or translation of a prior work. The term ‘adaptation’ is defined under section 2(a) of the Indian Copyright Act. It basically involves the creation of a work based in its entirety on a prior work, but in a different form. Obvious examples include deriving a movie out of a novel, or making an abridged version of a novel. Adaptation is different from transformation, both in the context of definition and legality. Transformation refers to a work that has merely taken up the basic grounds upon which the prior work was based, with the rest of its content being original. Since merely lifting ideas does not constitute copyright infringement, transformation of a work without the original owner’s consent is perfectly legal. Whereas since adaptation is a mere change in format, with the content being substantially similar, not obtaining a license would constitute infringement.
A derivative work could also be entitled to a separate layer of copyright protection, provided it meets two requirements. The first of them being, the derivative work must have been authorized by the owner of copyright of the original work. The next one stating that the derivative work must adhere to the essentials of copyright protection, most notably the originality requirement. The originality requirement states that the work must have ‘originated with the author’, i.e., it must not have been influenced by or copied from an existing work. Since once the owner grants a license to the creator of the derivative work, the derivative work is no longer considered a copy of a prior work. There have been countless number of adaptations made over the years, the majority of them prominently being movies derived out of readings. Notable mentions include the Jurassic Park trilogy, the Harry Potter saga (2002-2011), Netflix’s controversial 13 reasons why (2017) and classic horror flicks such as The Exorcist (1973) and Carrie (1976 and 2013).
The owner of copyright, other than exercising reproductive and distributive rights, is also exclusively entitled to perform his work ‘publicly’. Since this particular right is concerned with the ‘performance’ of works, creations such as photographs, paintings, sculptures, industrial drawings or any other works that are incapable of being performed, are excluded. It is incumbent to interpret the true meanings of the terms ‘publicly’ and ‘performance’ mean here, and the conditions attached to them.
‘Publicly’ could mean either of the two instances. The first one being either a place where the public has reasonable access to, or one where a reasonable number of people have gathered. It is important to note that at the instance of the latter, the gathered lot of people does not include family or close acquaintances. Thus, where members of a family get together to enjoy a movie night at home, the public performance right won’t be violated. The next one is primarily concerned with modern technological advancements such as cable television and television on demand. With the coming of Live TV, works could be transmitted and viewed by people directly through their television sets back home. Over the years, greater technological advancement brought forth greater liberties to people in the form of on-demand TV services, such as Netflix and Amazon prime video. The most significant feature of contrast between Live TV and On-demand TV was that the latter allowed individuals to ‘control’ the performance of their favorite movies and tv shows, through features such as pausing, fast forwarding, rewinding, et cetera. Unauthorized transmission, either via Live TV or via On-demand TV violates the public performance right. [5]
‘Performance’, in turn, includes acts such as reciting or acting out the work in the case of literary works, displaying the work, any of its images or sound effects or acting it out, in the case of cinematographic films, playing the work or acting it out in the case of sound recordings or dramatic works.
Possessing strikingly similar features to the public performance right, the public display right exclusively entitles copyright owners to display their works publicly. Other than literary, dramatic or musical works, sound recordings and cinematographic films, photos, paintings and sculptures are also featured within this right.
‘Display’ simply means showcasing the work to the public, which includes all categories of public performance as stated in the public performance right. However, the US copyright law also incorporates the first sale doctrine in the public display right. Which means that the owner of a lawful copy could freely display the copy to the public, with the only limitation being that the copy could be displayed solely at the place of its residence.
Analyzing the provisions of the Indian Copyright Act of 1957, it may be concluded that the act is adept at redressing the grievances of copyright owners in cases of infringement, either in the economic sphere or in the moral sphere. However, technological advancements are reaching extraordinary heights in the present era. At the time of adoption of the Berne convention [6] back in 1886, nobody could possibly have thought of a time when unlawful copying would become a walk in the park, due to rapid progress in the digital sphere. Therefore, the present copyright laws need to either be interpreted in ways to counter such advanced threats of infringement, or be amended as per the status quo.
[1] The Indian Copyright Act, 1957 (Act 14 of 1957), § 14(d).
[2] Harney v. Sony Pictures Television, Inc., 704 F.3d 173 (1st Cir. 2013).
[4] The Indian Copyright Act, 1957 (Act 14 of 1957), § 14(d).
[5] American Broadcasting Cos., Inc. v. Aereo, Inc., 573 U.S. 431 (2014).
[6] The Berne Convention for the Protection of Literary and Artistic Works, September 9 th , 1886, S. Treaty Doc. No. 99-27.
Author: Vedant Saxena
Editor: Kanishka Vaish, Senior Editor, LexLife India.
