Indian Copyright

The Law Governing the Right to Privacy

noreply@blogger.com (ns) — Mon, 27 Feb 2012 17:12:00 +0000

One of the main content law concerns when it comes to publishing any biographical material about others is that any publication may have the effect of violating their privacy. Under Indian law, the right to privacy is not well-defined. Nonetheless, it has been recognised under Article 21 of the Constitution of India which deals with the ‘right to life and liberty’— given that Article 21 lies in Part III of the Constitution, the right to privacy is effectively a fundamental right.

Apart from Constitution, several statutes also contain disparate provisions relating to privacy; they include the Information Technology Act, the Indian Penal Code, and the Juvenile Justice Act. In addition to this, the right to privacy is also recognised under tort law.

If one were to consider the law of privacy in broad strokes, with reference to the decisions of the Supreme Court in the cases of R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, and Mr. X v. Hospital Z, (1999) 8 SCC 296, it would emerge that under Indian law, the right to privacy is primarily treated as the right to be ‘let alone’. Whether or not a person’s privacy has been invaded depends not so much on whether the information published is truthful or not, or whether it is laudatory or critical — the determining factor is the nature of the information which is published. The Supreme Court has ruled in no uncertain terms that ‘nobody can publish anything regarding the private matters of a citizen including his/her family, marriage, procreation, motherhood, child-bearing and education without his/her consent’. The publication of private information without the consent of the person to whom it pertains would amount to a violation of person's right to privacy, and would lead to liability in an action for damages.

However, these general rules are subject to several caveats: Firstly, there appears to be no posthumous right to privacy recognised under Indian tort law. Secondly, there exists a hierarchy: the general public has the ‘greatest’ right to publicity, public figures and those who force themselves into the public eye do not enjoy as ‘strong’ a right, and public officials can claim virtually no right to privacy as far as their public acts are concerned.

Thus, although the right to privacy has been firmly established, the threshold at which privacy is considered to have been violated is much lower in the cases of persons who either voluntarily thrust themselves into the controversies or who are public figures. As far as public figures are concerned, although they do have a right to privacy, it has been held in the case of Khushwant Singh v. Maneka Gandhi, AIR2002Delhi58, (which dealt with both defamation and privacy) that “People have a right to hold a particular view and express freely on the matter of public interest. There is no doubt that even what may be the private lives of public figures become mattes of public interest.”

And as far as public officials are concerned, it was held in the case of Raja and M.A. Parameswari v. P. Srinivasan and Ors., AIR2010Mad77, that ‘the persons holding public offices must not be thin-skinned with reference to the comments made on them and even where they know that the observations are undeserved and unjust, they must bear with them and submit to be misunderstood for a time. .... In Time, Inc v. Hill 385 US 374 it was pointed out that in the case of public officials, insofar as their official function is involved, they are substantially without a right to privacy and factual error and content defamatory of official reputation or both, are insufficient for the award of damages for false statements unless actual malice knowledge that the statements are false or reckless disregard of the truth is alleged and proved. In a democratic set up a close and microscopic examination of private lives of public men is the natural consequence of holding of public offices. What is good for a private citizen who does not come within the public gaze may not be true of a person holding public office. What a person holding public office does within the four walls of his house does not totally remain a private matter. We agree .... that the scrutiny of public figures by media should not also reach a stage where it amounts to harassment to the public figures and their family members and they must be permitted to live and lead their life in peace. But the public gaze cannot be avoided which is a necessary corollary of their holding public offices’.

As such, the right to privacy is not an absolute right which all persons enjoy equally. Further, an extremely strong defence to the publication of private information is that the person to whom it pertains has consented to its publication. However, ‘consent’ is not an unassailable defence. This may be inferred from the case of Phoolan Devi v. Shekhar Kapoor, 1995(32)DRJ142, where the Delhi High Court held that the grant of consent from the subject of a film for the making of the film ‘does not give a license to the defendants to make a film in total disregard to [the subject’s] right to privacy’.

Further, the publication of information which is already in the public domain may not constitute a violation of the right to privacy even it is an invasion of privacy, unless such publication is otherwise prohibited by a statute. For example, Section 21(1) of the Juvenile Justice Act prohibits the publication of the name, etc., of any juvenile involved in any proceeding under the Juvenile Justice Act, while Section 21(2) of the same Act stipulates that a person who violates the mandate of Section 21(1) ‘shall be punishable with fine, which may extend to one thousand rupees’.

The Indian Penal Code (i.e. the ‘IPC’) also has provisions relating to privacy: Section 228A prohibits the unauthorised disclosure of the identities of the victims of certain sexual offences, specifically:
1. 376: Rape
2. 376A: Intercourse by a man with his wife during separation
3. 376B: Intercourse by public servant with woman in his custody
4. 376C: Intercourse by superintendent of jail, remand home, etc.
5. 376D: Intercourse by any member of the management or staff of a hospital with any woman in that hospital

Section 228A of the IPC, in its entirety, reads as follows:

(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is—
(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim:
Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation.
Explanation.—For the purposes of this sub-section, "recognised welfare institution or organisation" means a social welfare institution or organisation recognised in this behalf by the Central or State Government.
(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine,
Explanation.—The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.

Courts have also shown a tendency to refrain from revealing, even in judicial decisions, the identity of the victims of rape, and in the case of State of Punjab v. Ramdev Singh, AIR 2004 SC 1290, the Supreme Court stated:

Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court. High Court or lower Court, the name of the victim should not be indicated, we have chosen to describe her as 'victim' in the judgment.

Section 228A is, however, not the only Section of the IPC which is related to privacy: Section 509 of the IPC deals with words, gestures or acts intended to insult the modesty of a woman. Even though it is generally not considered to be a ‘privacy law’, it is not inconceivable that it could be interpreted in a manner which would make it apply to invasions of privacy in certain circumstances. In pertinent part, this Section states: ‘Whoever, (intending to insult the modesty of any woman)…. intrudes upon the privacy of any woman shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both’.

The Information Technology Act is another statute which contains provisions that pertain to privacy. Section 66E states that ‘whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both’. The statute also stipulates a penalty for the breach of confidentiality and privacy (in Section 72 which has no direct connection to Section 66E). Under this Section, (i.e. Section 72), persons who secure access to certain data in pursuance of the powers conferred by the Act are generally prohibited from disclosing the data; disclosure makes such persons liable to be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Thus, there is very little doubt that the law both recognises and protects the privacy of persons. However, it is only if the violation of a person’s privacy is challenged under a statute, and found to have occurred in a manner contemplated by the statute that the law is (relatively) clear. In other cases, where reliance is placed on tort law and constitutional law, the law is far more fluid. Fundamental principles have been established but a determination of whether or not privacy has been violated appears to be arrived at on a case-by-case basis.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Defamation

noreply@blogger.com (ns) — Sun, 26 Feb 2012 15:44:00 +0000

Not taking into account defamation of the State (otherwise known as ‘sedition’), under Indian law, defamation is both a criminal offence and a civil wrong.

As far as its being a criminal offence is concerned, Section 499 of the Indian Penal Code, 1860, (i.e. the IPC), defines what would amount to defamation in relatively clear terms. Later Sections of the IPC specify what the punishment for having committed defamation would be, and the IPC read in conjunction with the procedural requirements laid down in the Code of Criminal Procedure, 1973, (i.e. the CrPC), makes the law relating to defamation as a crime is relatively certain, even if it is considered to be harsh by some.

As a civil wrong, however, the law is far less certain. Defamation is treated as a wrong within the superbly ill-defined realm of tort law, an area of law which does not rely on statutes to define wrongs but relies on an ever-increasing body of case law to define what would be considered to be a wrong. Although tort law finds its roots in English law, and has over the course of the centuries evolved easily accessible fundamental principles, the area is still nascent in India, and possibly in consequence, not especially well defined.

Defamation as a Crime

Section 499 of the IPC defines ‘defamation’ as being committed:

Through: (i) words (spoken or intended to be read), (ii) signs, or (iii) visible representations;
Which: are a published or spoken imputation concerning any person;
If the imputation is spoken or published with: (i) the intention of causing harm to the reputation of the person to whom it pertains, or (ii) knowledge or reason to believe that the imputation will harm the reputation of the person to whom it pertains will be harmed.

This broad definition is subject to several explanations and exceptions as follows:

[Explanations]
Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
[Exceptions]
First Exception.—Imputation of truth which public good requires to be made or published
It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.—Public conduct of public servants
It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.—Conduct of any person touching any public question
It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Fourth Exception.—Publication of reports of proceedings of Courts
It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a
trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned
It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a partly, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception.—Merits of public performance
It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation.—A performance may he substituted to the judgment of the public expressly or by acts on the pan of the author which imply such submission 10 the judgment of the public.
Seventh Exception.—Censure passed in good faith by person having lawful authority over another
It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with mat other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eight Exception.—Accusation preferred in good faith to authorised person
It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests
It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Tenth Exception.—Caution intended for good of person to whom conveyed or for public good
It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

If a person is found guilty of having committed defamation in terms of Section 499 of the IPC, the punishment is stipulated in Section 500: simple imprisonment for up to two years and/or a fine. The CrPC, which lays down the procedural aspects of the law, states that the offence is non-cognisable and bailable. Those who are accused of the offence would generally not be taken into custody without a warrant, and as such, an aggrieved person would not be able to simply file a police complaint but would, in most cases, have to file a complaint before a magistrate.

As far as the 'truth defence' is concerned, although ‘truth’ is generally considered to be a defence to defamation as a civil offence, under criminal law, only truth is a defence to defamation as a crime (assuming, of course, that it is demonstrably true) only in a limited number of circumstances. This can make persons particularly vulnerable to being held guilty of having committed defamation under the IPC even if the imputations the made were truthful.

Defamation as a Tort

As far as defamation under tort law is concerned, as a general rule, the focus is on libel (i.e. written defamation) and not on slander (i.e. spoken defamation). In order to establish that a statement is libellous, it must be proved that it is (i) false, (ii) written; (iii) defamatory, and (iv) published, [according to Ratanlal and Dhirajlal, The Law of Torts, 26th Edition; page 279].

An interesting aspect of defamation as a tort is that it is only a wrong if the defamation is of a nature which harms the reputation of a person who is alive. In most cases, this translates to saying that it is not a tort to defame a deceased person since, as a general rule, the plaintiff needs to be able to prove that the defamatory words referred to him. However, this does not mean that there can be no cause of action if a dead person is defamed — if, for example, a defamatory statement negatively impacts the reputation of a deceased person’s heir, an action for defamation would be maintainable.

Further, if an action for defamation is instituted, and defamation is found to have been committed, damages will be payable to the plaintiff (usually, the person defamed). In addition to this, a person apprehensive of being defamed in a publication may seek the grant of an injunction to restrain such publication. However, pre-publication injunctions are rarely granted as Indian courts have tended to follow the principle laid down in the 1891 case of Bonnard v. Perryman, which has been articulated by Westlaw as follows:

The Court has jurisdiction to restrain by injunction, and even by an interlocutory injunction, the publication of a libel. But the exercise of the jurisdiction is discretionary, and an interlocutory injunction ought not to be granted except in the clearest cases—in cases in which, if a jury did not find the matter complained of to be libellous, the Court would set aside the verdict as unreasonable. An interlocutory injunction ought not to be granted when the Defendant swears that he will be able to justify the libel, and the Court is not satisfied that he may not be able to do so. [1891] 2 Ch. 269

This principle has been followed by a division bench of the Delhi High Court in the 2002 case of Khushwant Singh v. Maneka Gandhi, AIR2002Delhi58, and the 2011 decision of the Delhi High Court in the case of Tata Sons Ltd. v. Greenpeace International & Anr., I.A. No.9089/2010 in CS (OS) 1407/2010.

As such, even if there is an apprehension that content may be of a defamatory nature, it is likely that publication would not be restrained except in exceptional cases — presumably, those cases where the later payment of damages would clearly not suffice to set right the wrong done to the person defamed. In non-exceptional circumstances, Indian courts have shown a tendency to support free speech, and have not displayed a tendency to grant injunctions which would have the effect of muzzling speech on the ground of possible defamation.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Recording Telephonic Conversations

noreply@blogger.com (Nandita Saikia) — Mon, 20 Feb 2012 09:43:00 +0000

Recorded conversations are treated in different ways by the law depending on how the recording is obtained. Tape recordings of conversations have repeatedly been held to be admissible as evidence by courts. However, this does not automatically make telephone tapping and the recording of telephonic conversations legal.

Telephone tapping is, of course, subject to its own laws:

Section 5(2) of the Indian Telegraph Act, 1885, which grants the Government the power to order the interception of messages;
Rule 419A of the Indian Telegraph Rules, 1951, which lays down the procedural requirements which must be followed for telephone tapping to be legal;
Section 69 of the Information Technology Act, 2000, which deals with the power to issue directions for interception or monitoring or decryption of any information through any computer resource;
Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009.

Under these laws, the tapping of telephones by third parties is generally illegal, unless the procedures mandated by law are followed. Pertinently, it is possible to interpret the law to mean that tapping would be illegal even is the person whose telephone is tapped consents to the tapping.

Further, even in the case of 'consensual tapping' — which is, in all probability, illegal — privacy implications may arise. This is because when a telephone is tapped, the conversations of the person whose telephone is tapped with other people would be recorded, and those other people would presumably not have given their consent to being recorded.

If, however, the tapping of a telephone was legal, privacy implications giving rise to liability would not be an issue.

Privacy Concerns

Recording telephonic conversations — including one’s own conversations — however, is a completely different ball game, and the law is not crystal clear.

The primary legal impediment relating to the recording of telephonic conversations is the likelihood of privacy concerns arising where the recording is executed without the consent of those participating in the conversation. In general terms, the Right to Privacy has been recognised under both law and self-regulatory mechanisms including:

Tort law,
Article 21 of the Constitution of India which deals with the ‘Protection of Life and Personal Liberty’,
Depending on the technology used, the Information Technology Act — under Section 66E as well as (depending on the content of the conversations) Section 43A along with the associated 2011 Privacy Rules),
(Possibly, for women) under Section 509 of the Indian Penal Code, and
With regard to television programmes, the Indian Broadcasting Foundation’s Content Code & Certification Rules 2011.

What is clear (relying on PUCL v. Union of India, 1997, AIR1997SC568) is that telephonic conversations are an important part of a person's private life, and people do have a right to hold private conversations in the privacy of their homes or offices.

Due to this, any surreptitious, non-consensual recording of a telephonic conversation may have implications relating to privacy. However, reading through case law (relating to the use of hidden cameras and other recording devices), it emerges that there is no absolute bar on surreptitious recording in general. If one were to stretch the rationale underlying the conclusions courts have reached with relation to the use of hidden cameras, it could be argued that the recording of a telephonic conversation (with consent from at least one party, at any rate) is permissible. Further, if public interest were to a part of the equation, depending on the technology used, recording a telephonic conversation without the consent of any of its participants may be legal.

For example, if one were to consider sting operations: the High Court of Delhi remarked in Court on its Own Motion v. State & Ors. (2009CriLJ677) that ‘a sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a civilized society,’ and ‘normally, if a private person or agency unilaterally conducts a sting operation, it would be violating the privacy of another person and would make itself liable for action at law.’

Nonetheless, it appears that in practice, courts adopt an approach where they weigh public interest against the right to privacy. In Court on its Own Motion v. State, 146(2008)DLT429, it was held that: ‘Sting operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person.’

Further, as far as television broadcasting concerned, Theme 6 in Chapter 3 of the Indian Broadcasting Foundation’s Content Code & Certification Rules 2011 prohibits the broadcast of certain private information unless the invasion of privacy is warranted. The terms “warranted” and “identifiable larger public interest” have both been defined in the IBF Content Code as follows:

“Warranted” means that where broadcasters wish to justify an infringement of privacy or the subject matter treatment or audio visual presentation of themes of identifiable larger public interest as warranted, they should be able to demonstrate why in the particular circumstances of the case, it is warranted. If the reason is that it is in identifiable larger public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy and /or does not violate any of the provisions of the IBF Content Code and restrictions on subject matter treatment and audio visual presentation of themes under this Code.

“Identifiable larger public interest” shall mean the subject matter treatment or audio visual presentation of themes relating to social evils, gender or caste based issues, criminal or disreputable behavior, protecting public health or safety; exposing misleading claims made by individuals or organizations; or depicting significant incompetence or corruption in public office for the larger public interest.

As such, it is clear that there is a public interest angle at play, and no absolute bar against the invasion of a person's privacy exists as far as television broadcasting is concerned.

The Recording of Telephonic Conversations

As mentioned earlier, statutory law does not clearly state in what circumstances telephonic conversations may be recorded. Focussing on the recording of telephonic conversations (to the exclusion of the legality of using hidden cameras): the subject may be considered under three broad heads:

Where all the parties to a telephonic conversation consent to its being recorded;
Where one of the parties consents to its being recorded; and
Where none of the parties consents to its being recorded.

In the first case, if all the parties to a telephonic conversation consent to its being recorded, there are, obviously no real issues as far as the violation of the privacy of the participants was concerned. ‘Consent’ would be an extremely strong (though not an unassailable) defence should any of the parties later claim that their right to privacy was violated.

In the second case, if a telephonic conversation was unilaterally recorded by one of its participant (or, possibly, with their consent) without obtaining the consent of the other(s), it is possible that the non-consenting party/parties could claim that their right to privacy was violated. It is doubtful that such a claim would be successful if the recording were executed by one of the parties to the conversation as there appears to be no legal bar on recording one’s own conversations. If, however, the recording was executed through a third party, it is possible that the party/parties who did not consent to the recording of the conversation would have a stronger claim that their privacy had been violated, as the mere act of recording would presumably amount to the disclosure of the content of the conversation to a person who was not a party to it. The law is, however, does not provide a clear answer.

Finally, in the third case, if none of the parties to a telephonic conversation consented to its being recorded, in all probability, unless the recording was by way of a legal telephone tap, all the parties to the conversation could claim that their privacy had been violated. Pertinently, the ruling of the Andhra Pradesh High Court in the case of Rayala M. Bhuvaneswari vs Nagaphanender Rayala on 20 December, 2007, AIR 2008 AP 98, appears to indicate that recording telephonic conversations one is not a party to is illegal. (Pertinently, in this case, the court referred to American law where, in many states, unilateral consent makes the recording of a telephonic conversation legal.)

Nonetheless, even if consent is not obtained from any party, assuming that the recording is not by way of an illegal telephone tap, it may be possible to defend the invasion of privacy on grounds of public interest, in some circumstances, using arguments which demonstrate the public interest supercedes the right to privacy.

(This post is by Nandita Saikia and was first published at Indian Copyright. It is extremely speculative in places, and like all the other posts in this blog, it does not constitute legal advice.)

Preliminary Drafts of Some Agreements

noreply@blogger.com (Nandita Saikia) — Thu, 02 Feb 2012 08:54:00 +0000

There’s a document available here which contains rough drafts of the following agreements:

Employee intellectual property, confidentiality and non-competition agreement
Software development agreement for the development of software on an open source platform
Lawyer’s retainer agreement with/without advance fees
Mutual non-disclosure agreement
Non-exclusive training agreement
Leave and licence agreement
Recruitment assistance / business development agreement

Access the drafts here.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Broadcasting, Films and the 2011 Indian Intermediary Guidelines

noreply@blogger.com (Nandita Saikia) — Wed, 18 Jan 2012 17:30:00 +0000

A Quick Note:

The (largely infamous) Information Technology (Intermediaries Guidelines) Rules, 2011, primarily prohibit content which is harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of others' privacy, hateful, ethnically objectionable, disparaging, encouraging money laundering/gambling, or unlawful in any manner/opposed to any law for the time being in force – or which is threatening to the unity, integrity, defence security, sovereignty of the country – or which infringes any IP right.

Such content is, for the most part, illegal beyond the Internet as well as on it, as a compilation of Indian content laws would show.

In fact, the case of the 2011 IT Act Rules doesn’t appear to be a case where Internet content has been specifically ‘targeted’. Looking at the Rules, from a content point of view, it appears that they have been drafted to virtually mirror regulations with regard to other forms of content: TV programmes and films. (See: Rule 6 of the Cable Television Networks Rules, 1994, and the Guidelines for Certification of Films for Public Exhibition under the 1952 Cinematograph Act.)

Such mirroring, obviously, isn’t especially practical given the dynamics of the Internet, and those of online interaction especially on social media sites. However, the promulgation of the 2011 IT Act Rules could well be about using a tried-and-tested (albeit imperfect) formula such as the one used in the realms of broadcasting and cinematography.

There is a good chance that the 2011 IT Act Rules are simply the product of assuming that the dynamics which apply to regulating limited content for broadcast (including film content) can also be reasonably applied to virtually unlimited online content (including user-generated content). The assumption though, if at all it was being made by those who drafted the 2011 IT Act Rules, appears challengeable, to say the least.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

A Brief Compilation of Indian Content Law

noreply@blogger.com (Nandita Saikia) — Wed, 18 Jan 2012 16:58:00 +0000

Content law is a field of law unto itself, and the Indian corpus juris contains over twenty statutes governing content. In addition to statutory law, case law and tort law also govern content – for example, the right to privacy (and the corresponding prohibition on the publication of content invasive of privacy) finds its roots not only in constitutional law but also in tort law.

Most Indian content laws are not directed specifically at online content. However, they are, for the most part, applicable to online content (even though recent debates may lead one to believe that the legal regulation of content in India is non-existent). These laws, however, do not focus on 'pre-screening'; as with most laws, they prescribe sanctions upon the publication etc. of illegal content.

A compilation of some of India’s content laws has been appended below; it is only intended to superficially (and non-authoritatively) look at the field:

1. Advertising Standards Council of India Guidelines
a. An ASCI letter requires print ad Supers (communicating disclaimers, qualifications etc. in an advertisement) to be a minimum 6 and 7 points for 100 cc or less and more than 100 column centimetre or equivalent size ads respectively.
b. The ASCI Self-Regulation Code is an exhaustive code dealing with the content of advertisements, requiring them, among other things, to be truthful, etc.. Although it is not a law, it has been granted the force of law through case law.

2. Cable Television Networks (Regulation) Act, 1995
The CTN Act applies to cable services defined in Section 2(b) as ‘the transmission by cables of programmes including re-transmission by cables of any broadcast television signals’. Although it has not thus far been tested in the context of IPTV, there appears to be no reason why it cannot apply to IPTV.
The Act requires all programmes to conform to the Programme Code in Rule 6 of the Cable Television Networks Rules, 1994, while all advertisements must conform to the Advertising Code in Rule 7 of the same Rules. Both these codes cover the entire spectrum of potentially objectionable content, and, among other prohibitions, state that content must not be offensive.

3. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003
The CTP Act prohibits any person controlling a medium may cause cigarettes/tobacco products to be advertised through the medium, and disallows all persons from participating in any advertisement promoting CTP use/consumption. Doing so is a criminal offence.

4. The Cinematograph Act, 1952
The Guidelines for Certification of Films for Public Exhibition under this Act prohibit the portrayals of gratuitous violence, abuse, defamatory content, children being subjected to any form of child abuse, modus operandi of criminals, content likely to incite the commission of offences, gratuitous violence, any double entendre, the degradation of women, sexual perversions, etc..

5. The Civil Defence Act, 1968
This Act prohibits the printing/publication of any newspaper, news-sheet, book/other document containing matters prejudicial to civil defence. Doing so is a criminal offence.

6. The Constitution of India
Although Article 19(2) does not directly limit the right to freedom of speech and expression of citizens, it recognises that the fact that the right to freedom of speech and expression being a fundamental right does not mean that it can be used to hold invalid laws which may be passed restricting the right where those laws are passed in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to an offence.

7. The Consumer Protection Act, 1986
This Act prohibits the making of false or misleading facts disparaging the goods, services or trade of another person, etc., or permitting publication of advertisements, for the sale or supply at a bargain price of goods or services that are not intended to be offered for sale or supply at the bargain price, or allowing a false impression that something is free to be created, or allowing contest/lottery etc. to be conducted to promote a product/business interest.

8. The Contempt of Courts Act, 1971
Under this Act, criminal contempt is the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise – and which is untruthful or does not fall within the scope of fair reporting) of any matter or the doing of any other act whatsoever which:
(i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

9. The Copyright Act, 1957
This Act makes the unauthorised exercise of copyright (i.e. copyright infringement) both a criminal and a civil offence. In addition to this, the Act prohibits the violation of the performers’ right, the broadcast reproduction right, and the moral rights of authors.
Further, a sound recording/video films, when published, must display the name and the address of the person who has made the sound record, the owner of the copyright, and the year of its first publication (under Section 52A of the Act); failure to mention these items is a criminal offence.

10. The Drugs and Cosmetics Act, 1940
This Act prohibits the use of a test or analysis made by the Central Drugs Laboratory or by a Government Analyst, or any extract from such report, to advertise any drug. Doing so is a criminal offence.

11. Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954
This Act, inter alia, prohibits:
i. the advertisement of certain drugs for treatment of certain diseases and disorders;
ii. misleading advertisements relating to drugs; and
iii. the advertisement of magic remedies for treatment of certain diseases and disorders.

12. Emblems and Names (Prevention of Improper Use) Act, 1950
This Act prohibits the unauthorised use of specified national emblems for the purpose of any trade, business, calling/profession/in the title of any patent/in any trade mark/design.

13. The Human Rights Act, 1993
The Human Rights Commissions under this Act have a mandate to perform those functions they consider necessary to protect human rights – this may be interpreted to include sending Notices to entities whose content allegedly violates human rights, or where the making of content violates human rights.

14. The Indecent Representation of Women (Prohibition) Act, 1986
As its name suggests, this Act prohibits the depiction and distribution/sale of the figure of a woman so as to be indecent/derogatory, which or denigrates women, or is likely to deprave, corrupt or injure public morality. The indecent representation of women is a criminal offence.

15. The Indian Penal Code, 1860
The IPC contains provisions dealing with sedition, obscenity, blasphemy, and defamation, (among other provisions), which may be used to sanction those who generate and circulate objectionable content.

16. The Information Technology Act, 2000
This Act, inter alia, prohibits:
i. Sending grossly offensive messages;
ii. Sending false information to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will;
iii. Sending spam/phishing, etc.: Sending messages/information to cause annoyance inconvenience;
iv. The transmission of image of a private area of any person without their consent, under circumstances violating the privacy of that person;
v. The transmission of obscene electronic content including sexually explicit material and child pornography.

The Information Technology (Intermediaries Guidelines) Rules, 2011, also prohibits content which is harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of others' privacy, hateful, ethnically objectionable, disparaging, encouraging money laundering/gambling, or unlawful in any manner/opposed to any law for the time being in force – or which is threatening to the unity, integrity, defence security, sovereignty of the country – or which infringes any IP right.

17. The Insurance Regulatory and Development Authority (Insurance Advertisements and Disclosure) Regulations, 2000
These regulations require insurance companies to disclose in advertisements: the full particulars of the insurance company, along with the benefits, the form number of the policy and the type of coverage. Further, every insurer's web site or portal must disclose the site’s specific policies, the privacy of personal information for the protection of both its own businesses and its consumers, along with the their registration/license numbers.

18. The Official Secrets Act, 1923
the publication or communication to any person any secret official code or pass word/any sketch, plan, model, article/note/document/information which is calculated to be/might be/is intended to be, directly or indirectly, useful to an enemy – which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States.

19. The Prevention of Insults to National Honour Act, 1971
This Act, inter alia, prohibits bringing into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof. Doing so is a criminal offence.

20. The Prize Competition Act, 1955
This Act generally requires that a licence be obtained to conduct a prize competition, depending on the value of the prize. Naturally, this affects the publication of any material relating to the competition.

21. The Trade Marks Act, 1999
This Act not only prohibits the infringement of a trademark, but also infringement by way of advertisement including a comparative advertisement, in certain circumstances.

22. The Young Persons (Harmful Publications) Act, 1956
This Act, inter alia, prohibits the printing, advertising, sale, hire, distribution or public exhibition of a harmful publications in certain circumstances – a ‘harmful publication’ means any book, magazine, pamphlet, etc. which consists of stories, whether or not illustrated, portraying offences, cruel/violent acts, repulsive/horrible incidents as may corrupt a young person in any way.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

The Doctrine of Independent Creation

noreply@blogger.com (Nandita Saikia) — Thu, 15 Dec 2011 03:30:00 +0000

Patent law grant rights, depending on the jurisdiction, only to the first person(s) either to file a patent application in respect of patentable subject-matter, or to invent the patentable subject-matter. As such, once a patent is granted in respect of a particular invention, no other person has the right to exploit it during its subsistence without the permission of the patentee, even if the other person has developed the same invention independently (without copying from the patentee).

In stark contrast to this, copyright is a form of intellectual property which allows multiple persons to own the rights in identical or substantially similar works provided that those works have been independently created. In fact, independent creation is one of the foundations of copyright law. Copyright — at the time of the creation of a protectable work — only prohibits the reproduction or copying of a pre-existing protected work. Therefore, if an author were to independently create a work which bore a striking resemblance to a protected work already in existence, without reference to the pre-existing work, he would (usually) own the copyright in the subsequent work which he had created.

Thus, there would be two distinct ownership trails, and the owners of the rights in the two (or possibly more!) independently created works would be allowed to exploit, and enjoy, the rights in their own works without reference to the owners of the other similar works. Thus, this doctrine, as is probably evident by now, exempts from liability for copyright infringement the author-owner of a copyrightable work which is substantially similar (or even identical) to an existing work which is protected by copyright.

Unfortunately, like a great part of copyright law, the doctine is not encoded in statute even though it seems to have been established as far back as in the 1807 English case of Roworth v. Wilkes. The Indian Copyright Act, 1957, does not explicitly state that independently created works are worthy of being protected by independent copyrights regardless of any similarity they may bear to pre-existing protected works. Nonetheless, relying on scholarship, doctrine and foreign caselaw, Indian courts have shown a tendency to respect the doctrine of independent creation.

In the 2002 case of Star India Private Limited v. Leo Burnett (India) Private Limited, which dealt with films, for example, the Bombay High Court held that there was no infringement where the production of the impugned film was independent. In its decision, the Court quoted paragraph 7.98 of Copinger and Skone James on Copyright (Fourteenth Edition) where the authors stated:

"It is an infringement of the copyright in a film to make a copy of it, or a substantial part of it, whether directly or indirectly and whether transiently or incidental to some other use. This includes making a photograph of the whole or any substantial part of any image forming part of the film. As with a sound recording, it is not expressly stated that copying of a film includes storing it by electronic means but again it is suggested that it does. Again, the copyright in a film is infringed if the recorded moving images are directly or indirectly copied but not if the same or similar images are recorded independently, for example by s the subject matter of the film. Again, however, underlying works such as the screenplay may be infringed by such means."

The legal position is therefore clear, as long as one refers to case law, even though the statute does not provide any clear guidance on the existence of independent copyrights in works which have been independently created. This does not, however, throw any light on exactly how the doctrine of independent creation came to be incorporated in Indian copyright jurisprudence, although, in all likelihood, it was simply an import from England. Being an English import, if indeed that is what the doctrine is, does not, however, justify its existence of itself.

Questions of justification aside, it is inarguable is that the doctrine of independent creation is one of the cornerstones on which copyright law rests. And even if — like many other aspects of copyright law — there does not seem to be a coherent or convincing analysis of why that is the case, the theoretical basis of the doctrine may be left in the realm of academia, without impinging on procedural considerations.

From a practical point of view, independent creation has the potential to create tremendous evidentiary problems in terms of being able to establish whether or not the creation of a subsequent work is in fact independent of any reference to a protected pre-existing work. There are no clear rules regarding on whom the burden of proof would lie, and how independent creation may be established. In fact, Roworth v. Wilkes itself stated:

"But if the similitude can be supposed to have arisen from accident ; or necessarily, from the nature of the subject ; or from the artist having sketched designs merely from reading the letter-press of the plaintiff's work,—the defendant is not answerable. It is remarkable, however, that he has given no evidence to explain the similitude or to repel the presumption which that necessarily causes."

Although at first glance, given that the doctrine may operate as a defence to allegations of copyright infringement, the burden of proving independent creation could be considered to lie on the defendant — with the plaintiff only having to prove substantial similarity to make a case of infringement. However, the burden of proof could easily wind up “oscillating” (for lack of a better term) with the plaintiff, possibly, having to substantiate assertions of non-independent creation.Unsurprisingly, the greater the similarity, the harder it would be for a defendant to avail of the doctrine of independent creation — assuming, of course, that the defendant had access to the pre-existing work, and that other doctrines such as merger didn't come into play.

Thus, even though independent creation is clearly recognised by the law as a defence to copyright infringement, depending on the circumstances, it may not be the most best defence to adopt in cases of infringement. If not anything else, proving that a work has indeed been independently created may be well nigh impossible to accomplish.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

The Competing Laws governing Copyright and Content

noreply@blogger.com (Nandita Saikia) — Wed, 16 Nov 2011 06:30:00 +0000

Copyright includes the right to publish; there’s no doubt about that — Section 14 of the Copyright Act, 1957, clearly grants copyright owners the exclusive right to publish works whose copyright they own, and to authorise others to do so. As such, any publication of a substantial part of a work protected by copyright, which publication is carried out neither by nor with the permission of its copyright owner, is likely to amount to copyright infringement.

Having the right to publish a work under copyright law though isn’t the same as actually being able to publish a work without having undesirable legal consequences ensue.

Copyright law is just one of the many laws which govern the publication of creative works. In fact, copyright law is limited to dealing with the publication of creative works in which copyright subsists — just a small fraction of all creative works. It does little more than enable one to identify and specify who owns the relevant copyright, who has the right to publish a protected work, and who has the right to profit from its publication.

The publication of creative works, however, needs to pass the test of legality under a variety of laws other than the Copyright Act. These laws include “procedural laws” such as, depending on the kind of work, the Press and Registration of Books Act, 1867, the Cinematograph Act, 1952, and, in the case of retail sales, the Legal Metrology Act, 2009. In addition to this, there exists an entire gamut of content laws with which one has to contend.

Content laws relating to creative works are laws which come into play upon publication, independently of whether or not the published work is protected by copyright. These laws deal with whether the substance of the works are legal, and not with who has the right to publish them. In other words, they apply to both copyrighted and unprotected works. Also, all content laws are not incorporated in one statute. On the contrary, there are over twenty different statutes which contain provisions dealing with the content of creative works, and in addition to this, various kinds of creative works may also be governed by Rules associated with statutes, case law, and by self-regulatory guidelines issued by professional bodies.

While content laws generally do not impact the right to publish a work under copyright law, publication could result in their being invoked. For example, if the copyright owner of an obscene work were to publish it, while the publication of the work would not fall foul of the provisions of copyright law, there is a high chance that, depending on the nature of the work, the publication would be against the provisions of a number of other laws including:

The Information Technology Act, 2000;
The Young Persons (Harmful Publications) Act, 1956;
The Indian Penal Code, 1860;
The Cable Television Networks Act, 1995 and Rules, 1994;
The Indecent Representation of Women (Prohibition) Act, 1986;
The Cinematograph Act, 1952 (including the Film Certification Guidelines);
Tort law dealing with privacy; and
The Advertising Standards Council of India Guidelines (which have the force of law despite not being law).

Indian copyright jurisprudence has not gone into the issue of the tension between copyright and the freedom of expression in much depth — primarily, possibly, because the two are generally seen as different issues in the Indian context. Nonetheless, there is an increasing degree of awareness arising in regard to content issues, and in relation to what may and may not be published. With this rise, it is likely that there will be a corresponding increase in the friction between the laws governing content and copyright, possibly with one being used to subvert the other.

Pertinently, many content laws may lend themselves to camouflaged use given that they are extremely vague. For example, television programmes are required not to offend good taste or decency under Rule 6(1)(a) of the Cable Television Network Rules, 1994. “Good taste”, obviously, is neither defined nor susceptible to being defined, and as such, whether or not a programme conforms to this Rule is entirely subjective.

Thus, the laws governing copyright and content may find themselves not working in tandem — while copyright law may grant the right to publish creative works, content laws may penalise publication (or, at least, make it illegal). The result is that when restraining the publication of a creative work through the copyright route is not feasible, it may be possible to restrain publication through the creative application of content laws.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Poland: A Fact-Checker as Co-Author

noreply@blogger.com (Nandita Saikia) — Thu, 03 Nov 2011 07:07:00 +0000

In a fascinating but possibly questionable decision, the Polish Supreme Court appears to have created a new mechanism by which a person could become an author of a work protected by copyright — by revising it so as to delete parts which are factually incorrect.

In this case, the original non-physician author of the work (which was about music therapy) requested three other colleagues (presumably physicians) to cross-check her work. In doing so, they deleted certain sentences, including a suggestion that music replace anaesthesia in surgery.

The original author appears to have initially agreed to have the colleagues be co-authors, and then appears to have changed her mind. The colleagues sued, and they won the right to be recognised as co-authors at every stage of the case.

However, surprisingly, they do not appear to have won on grounds such as breach of contract or even by the invocation of estoppel. On the contrary, the colleagues won on the basis of copyright law. Tomasz Targosz reported that the Polish Supreme Court observed that co-authorship existed if “in consequence of the changes introduced by the plaintiffs, a work of a different character was created which without the plaintiffs’ contribution would have taken a different shape.”

While this may not seem entirely absurd, as Targosz notes, copyright does not protect underlying knowledge, and if this were the standard to be used, it could raise questions such as whether thesis guides would be co-authors of their students’ theses.

(Hat Tip: Targosz, Tomasz; Authorship by deletion – Supreme Court, June 22, 2010, II CSK 527/10)

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Notes on Copyright and Currency

noreply@blogger.com (Nandita Saikia) — Sun, 30 Oct 2011 06:14:00 +0000

As a general rule, the reproduction of currency is a problem not quite so much from a copyright point of view but because it would (under most circumstances) be a violation of laws relating to counterfeiting. Nonetheless, copyright may subsist in banknotes and coins, and those reproducing them (whether by creating physical reproductions or by simply filming them) may find themselves being prosecuted for copyright infringement, as the laws of some countries appear to contemplate.

Canada:

Notes: The Bank of Canada owns the copyright in Canadian notes, and asserts its copyright with a copyright notice. According to its ‘Policy on the Reproduction of Bank Note Images’, “[i]t is not necessary to request the Bank's permission to use bank note images for film or video purposes, provided that the images are intended to show a general indication of currency, and that there is no danger that the images could be misused”. In other circumstances, permission must be obtained from the Bank of Canada, which ‘will usually consent if there is no counterfeiting risk and if the intended use is in good taste’.

Coins: The Royal Canadian Mint owns the IP rights in coins, coin images and designs. The Policy of the Mint does not state that no permission is required for filming, so presumably, permission would have to be obtained for the same.

England:

HM Treasury has issued 'Guidelines on Coinage and Banknotes Issues' which are, inter alia, intended to to assist persons who are considering making reproductions of coins and banknotes.

Notes: The Bank of England owns copyright in British currency notes, and permission must be obtained to reproduce bank notes (before taking steps to do so), even if the reproduction is on film. Failure to obtain permission could cause one to have committed an offence under Section 18(1) of the Forgery and Counterfeiting Act 1981, which states: “It is an offence for any person, unless the relevant authority has previously consented in writing, to reproduce on any substance whatsoever, and whether or not on the correct scale, any British currency note or any part of a British currency note.”

Coins: The Crown owns copyright for designs and images of United Kingdom decimal coins although the authority to determine permissible use of coinage design and reproduction of images of UK coins has been delegated to the Royal Mint. The website of the Royal Mint states: “The flat form reproduction of a coin for use in advertisements or other promotional literature is normally permissible, providing the coin is reproduced in a faithful likeness and shown in good taste. ... Where there is any doubt as to whether a reproduction or use of coin design is permissible, an application for Royal Mint authorisation should be made to: Information Office, Royal Mint, Llantrisant, Pontyclun CF72 8YT.”

The Euro Area:

Notes: The copyright in Euro banknotes is owned by the European Central Bank. There are a few circumstances under which Euro banknotes may be reproduced, although any reproduction which may cause a person to mistake the reproduction for a real note would be unlawful under Decision ECB/2003/4. The ECB cooperates with national central banks to protect copyright, and infringing reproductions are deal with in accordance with the standard procedure specified in Guideline ECB/2003/5. The first line of defence against infringement is under national laws, while the second line of defence is provided for in Council Regulation (EC) No. 2532/98.

Bank notes are protected by a Counterfeit Deterrence System (CDS), "which prevents personal computers and digital imaging software from capturing or reproducing the images of protected banknotes”. Users, who have a legitimate interest in reproducing Euro banknote images, may obtain CDS-disabled digital images from the Directorate Banknotes provided they meet certain requirements.

Coins: Euro coins are issued by the Euro area countries, and the European Commission coordinates all coin matters at the Euro area level. The website of the European Commission states that the “Copyright on the design of the common sides of the euro coins belongs to the European Community represented by the Commission. However, the European Commission has assigned each euro-area Member State all the Community rights as regards their territory. .... Member States of the euro area have authority over copyright issues regarding the national sides of the euro coins, in accordance with their national legislation.”

Relevant European legislation includes:
Rules on reproduction of banknotes (ECB/2003/4) (Official Journal L078 25.03.2003, p 16)Non-compliant reproductions of euro banknotes (ECB/2003/5) (Official Journal L078 25.03.2003, p 20)Commission communication on copyright protection of the common face design of the euro coins. Official Journal 2011/C 41/03 Council Regulation (EC) No 2182/2004 concerning medals and tokens similar to euro coins Council Regulation (EC) No 2183/2004 extending to the non-participating Member States the application of Regulation (EC) No 2182/2004 concerning medals and tokens similar to euro coins.

India:

It is unclear who owns the copyright in Indian currency.

Notes: The Paper Currency Act, 1861, stopped private and presidency banks issuing currency, and granted the Government of India a monopoly to issue bank notes. However, the Reserve Bank of India Act, 1934, had the Reserve Bank take over the function of issuing notes from the Office of the Controller of Currency, Government of India. However, under Section 25 of the RBI Act, the design of banknotes must be approved by the Central Government on the recommendations of the Central Board of the Reserve Bank of India.

Coins: In India, the term “rupee coin” includes a one rupee note. The minting of coins is governed by the Indian Coinage Act, 1906 which states (in Section 6) that: ‘Coins may be coined at the Mint for issue under the authority of the Central Government, of such denominations not higher than one hundred rupees, of such dimensions and designs, and of such metals or of mixed metals of such composition as the Central Government may, by notification in the official Gazette, determine. The Reserve Bank merely acts as an agent of the Central Government for in relation to the distribution, issue and handling of the coins (as may be inferred from Section 38 of the RBI Act).

Considering that both the Reserve Bank of India and the Government of India pay a role in determining the design of currency, it is possible that they would jointly own the copyright in currency although the issue of who owns the IP in currency designs does not appear to have been explicitly dealt with. Similarly, there appear to be no laws / guidelines specifically dealing with the reproduction of currency. However, as the RBI website states: “Counterfeiting banknotes / using as genuine, forged or counterfeit banknotes / possession of forged or counterfeit banknote / making or possessing instruments or materials for forging or counterfeiting banknotes making or using documents resembling banknotes are offences under Sections 489A to 489E of the Indian Penal Code and are punishable in the Courts of Law by fine or imprisonment ranging from seven years to life imprisonment or both, depending on the offence.”

US:

US Copyright law does not appear to contain any provision dealing with the ownership of copyright in currency (and it is possible that currency would be considered to be a non-copyrightable work under 17 USC 101 and 105).

18 USC 504 (Printing and Filming of United States and Foreign Obligations & Securities) allows the filming of real currency. However, there is no provision which clearly allows the filming of fake currency. Further, fake currency would be required to comply with the provisions of 31 CFR 411 (i.e. The Counterfeit Detection Act of 1992) which explains the (stringent) requirements to which the makers of fake currency must adhere. Finally, destroying currency is a crime under 18 USC 333, which prohibits burning money or mutilating currency in any way so as to render it unfit to be reissued.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Following Instructions: Origami and Other Crafts

noreply@blogger.com (Nandita Saikia) — Sat, 15 Oct 2011 07:45:00 +0000

Craft kits, knitting instructions, embroidery designs, and origami diagrams are rarely (if ever) accompanied by an intellectual property rights licence. However, they may well be protected by various intellectual property laws including copyright.

There is little doubt that written instructions to create various crafts would invariably be protected by copyright law either as artistic or literary works, or both (provided the general requirements for ‘copyrightability’ were met). An ambiguity would, however, appear if one were to consider the objects created through the use of the instructions.

The legal situation may vary considerably depending on the subject of the instructions: in the case of handicrafts including Origami, following the instructions to make an object would result in the creation of an artistic work which is protected by copyright. (Section 2(c) of the Copyright Act, 1957 defines an ‘artistic work’ so as to include paintings, sculptures, drawings and other works of artistic craftsmanship.) On the other hand, following instructions to knit a sweater would result in the creation of a non-copyrightable object (since, in India, there is no copyright in clothes).

In both cases the finished product would have been derived from the instructions, and considering that the right to create derivative works is a right which is included in the copyright bundle, the owner of the right would have the exclusive right to do so. However, it is possible that craft instructions could be separated into two distinct categories depending on the ‘copyrightability’ of the finished object.

Should the finished object be capable of independent copyright protection, the position stated above with reference to derivations would undoubtedly apply. That being said, one may conclude that the absence of an explicit licence to create a finished product on the basis of the instructions automatically presumes that the instructions are accompanied by an implicit licence. After all, there is very little point in publishing instructions if the intention is not to allow persons to create the object described in them.

The problem with assuming that an implied licence is granted is that there is absolutely no certainty regarding the terms under which it may have been granted. For example, one question which would arise is whether the licence would be limited to personal use or whether it would extend to commercial use. Also, if a licence were granted, the licence would generally subsist for only five years from the date it came into effect, unless one were to presume that the author of the instructions intended that the licence be perpetual. Similar presumptions would also have to be made with regard to territory, in order to have the licence be applicable worldwide, as the statute would restrict the territory of the licence to India alone.

The validity of such presumptions is extremely doubtful though, especially since Indian law specifies that a copyright licence must be written down and signed by the licensor. Clearly, there is no way in which this requirement may be satisfied in the case of an implied licence, which would rely exclusively on the circumstances for its terms to be defined.

The other possible way to look at the situation is to assume that an implied licence is not granted but that persons may follow the instructions to create the object described by relying on fair use principles to protect them from allegations of copyright infringement. However, this approach too is not without pitfalls.

Firstly, although India recognises fair use principles, ‘fair use’ is treated as being part of copyright doctrine, as it is not spoken of in the copyright statute. Instead, the statute enumerates a variety of fair dealing exceptions to copyright infringement. Any act falling within the scope of any of these exceptions would not be treated as punishable infringement.

Among the fair dealing exceptions is Section 52(1)(t) of the Copyright Act which allows “the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work failing under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any premises to which the public has access”. Clearly, this would allow a reproduction of a sculpture to be made, if it had been placed in a museum, for example, presumably even if it the reproduction was for the purpose of sale as the provision does not restrict “making or publishing” to “non-commercial making or publishing”.

Although this Section would allow for the reproduction of, say, a work of Origami displayed in a museum, it is not especially helpful in terms of discerning the law relating to the creation of objects by following copyrighted instructions. In all probability, to do so, one would have to fall back on fair use principles. Unfortunately, as mentioned earlier, these principles are not explicitly recognised by the Copyright Act, and as such, although reference may be made to Title 17 of the USC, fair use is not a subject on which the law is crystal clear. All that may be said is that the use of a copyrighted work without the permission of the owner (to create a derivative work) would generally be considered to be fair if the use was is non-commercial, personal or possibly private, and did not detrimentally affect the market for the work. Further, in the case of instructions, an argument could easily be made in favour of the existence of an intention that the instructions be followed to create the object described in them.

As such, one way of the other, when copyrighted instructions explain how to make a copyrightable object, one can quite safely assume that one is permitted to use to the instructions to make the object described, as long as one does so in a private atmosphere, and not with the intention of selling the object.

Where, however, copyrighted instructions explain how to make an object which cannot be protected by copyright (such as clothes), it is possible that the object described (once made) may be used in a commercial scenario as well. Although the object would undoubtedly be a derivative work, it would be a derivative work not subject to copyright protection. There were indications in Rajesh Masrani v. Tahiliani Designs Pvt. Ltd. [2009 (39) PTC 21] that a non-copyrightable object may be indirectly protected through underlying designs. However, this case dealt with haute couture, and it is possible that it would not be generally applicable.

Either way, the possibility that it would be legitimate to sell non-copyrightable objects created from copyrighted instructions is merely an additional right, and would not affect the basic position that, in all probability, it is legal to use copyrighted instructions to create the object described in them for private use, even if the instructions are not accompanied by an explicit licence to that effect.

Also see:

Origami Copyright: Rich Stim and origami-usa.org

Note:

It appears that there are only two Indian cases which mention implied copyright licences, and neither state that such licences are recognised in India. The cases are:

Warner Bros. Entertainment Inc. and Ors. vs. Mr. Santosh V.G. (13.04.2009 - DELHC)
Mishra Bandhu Karyalaya and Ors. vs. Shivratanlal Koshal (29.04.1969 - MPHC)

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Preliminary Issues involved in exploiting "Cultural Art"

noreply@blogger.com (Nandita Saikia) — Sun, 25 Sep 2011 16:47:00 +0000

The copyright framework is different from the frameworks of other intellectual property rights such as that of patents as far as the existence of “simultaneous rights” are concerned. If two people, by some miracle, were to create identical works protectable by copyright in circumstances which would ordinarily make each of them the copyright owners of the works they had created, each of them would own the copyright in their own work. As such, this would result in there being two copyright owners of identical content.

The situation, however, may be slightly different with regard to cultural legacies such as “cultural art” which forms a part of our heritage, and is firmly in the public domain — for example, designs used in Madhubani art which have been passed down from generation to generation. Very often, the designs themselves may be in the public domain, and may therefore not be protectable by copyright individually. However, even if it was to transpire that this was the case, it is possible that it would be necessary to find some form of proof that the design was in fact in the public domain — whether that proof were to be in the form of the design appearing in an old book in the public domain, or in some other form. The reason obtaining such proof may be advisable, particularly in the case of unusual designs, is that there may be little standing in the way of a person claiming that they had created the relevant design earlier, that the subsequent work infringed the copyright subsisting in it.

Merely because a form of art is traditional, it does not mean that the whole art form falls beyond the purview of copyright protection. For example, Warli art is not “uncopyrightable” and if an artist were to paint a canvas using the kind of figures represented in Warli art, that artist would almost undoubtedly be entitled to copyright in his art. While such an artist may not be able to prevent other persons from using similar figures in their own canvases, unless, of course, they were effectively reproducing or adapting his copyrighted work, this would not negate his own rights vis-à-vis his own work.

In cases where cultural art was used/created, it is possible that defences such as “independent creation” could be used to fight against allegations of infringement. Whether or not such defences would be successful is, however, not guaranteed as the issue of infringement would be determined on a case-by-case basis. As such, wherever possible, it may be prudent for a licence to be obtained to ensure that there are no legal impediments to one’s use of a work which has been created/expressed/made publicly available earlier than one’s own, particularly in those cases where one knows that there is someone who claims to own the copyright in the earlier work.

The issue of copyright claims and notices is, however, an interesting one, and persons sometimes state that they own the copyright in far more than they are reasonably or legally entitled to. As such, a mere claim or notice of copyright may not by and of itself indicate that the work in respect of which it is applied is actually protected by copyright. It may, nonetheless, indicate that the person claiming copyright would be willing to pursue legal action against persons it deems to have infringed “its” copyright. This is generally a factor which should be taken into account considering that fighting allegations of copyright infringement can involve the investment of significant resources both in terms of time and money.

And one final twist to the story is that even if individual art-designs are entirely in the public domain, if someone has compiled a collection of them, copying the entire collection could conceivably infringe the copyright in the collection. Such copyrights are often referred to as “compilation copyrights”, and even though they are not referred to in the Indian copyright statute, they are relatively widely recognised.

As such, exploiting the copyright in “cultural artworks” is not an exercise which is entirely risk-free, to say the least.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

101: Copyright Infringement and Plagiarism

noreply@blogger.com (Nandita Saikia) — Thu, 15 Sep 2011 06:26:00 +0000

Copyright Infringement

Copyright, as understood today, is a creation of statute. It subsists in works such as books, and protects them by, among other things, disallowing their unauthorized reproduction, adaptation and translation. The right to do such acts is referred to as copyright, and is described in Section 14 of the Indian Copyright Act, 1957. It vests exclusively in the copyright owner — usually, the author of the work.

The violation of copyright (referred to as copyright infringement) is a legal wrong in respect of which a civil suit may be instituted to seek the grant of a permanent injunction to restrain further infringement, damages, the rendition of accounts of profit, and the delivery up of both infringing copies of the work and the plates used to make them. If required, administrative orders such as Anton Pillar Orders may also be obtained to assess the extent of infringement.

Copyright infringement is also a criminal offence. Section 63 of the Copyright Act states that infringers are liable to be imprisoned for between six months and three years and to be fined between fifty thousand and two lakh rupees, while Section 63A stipulates an enhanced penalty for second and subsequent convictions.

Plagiarism

Plagiarism is primarily an ethical issue (even though it is often confused with copyright infringement). It involves using the work of another author without attributing him/her. To have committed plagiarism, it is not necessary to exactly copy the words contained in the earlier work. For example, merely incorporating the ideas which another person has expressed in writing without according credit to him/her constitutes plagiarism.

Pertinently, Section 57 of the Copyright Act grants authors the “Special Right” to be attributed for their work. Widely referred to as a moral right, this right is perpetual, is independent of copyright, and remains unaffected by transfers of copyright ownership. Thus, the right to attribution recognised by statute could be considered analogous to the right not to be plagiarised.

Further, Section 63 of the Copyright Act which deals with infringement as a criminal offence contemplates the same punishment for both the violation of Section 57 and for copyright infringement. Considering this parity in the statute itself, the confusion between infringement and plagiarism is understandable.

Infringement v. plagiarism

Infringement and plagiarism are distinct and may not occur simultaneously. This is partly because copyright generally subsists in a work for only up till sixty years from the death of its author, while the right of an author to be attributed for his work is perpetual.

As such, if a copyrighted work is plagiarised in a manner violating Section 14 of the Copyright Act, possibly through an exact reproduction, then both plagiarism and infringement occur simultaneously. As a corollary, the plagiarism of a work more than sixty years after the death of its author does not involve copyright infringement.

Further, infringement may take place without plagiarism occurring. For example, the unauthorised, substantial reproduction of a copyrighted work is copyright infringement even if its author is credited. As long as the author is credited, there is not plagiarism. However, according credit does not negate the commission of copyright infringement.

(This post is by Nandita Saikia. An extract from it was first published in the June issue of Booklink.)

The Proposed Statutory Broadcasting Licence

noreply@blogger.com (Nandita Saikia) — Thu, 08 Sep 2011 07:38:00 +0000

The Copyright (Amendment) Bill proposes to introduce into Indian law statutory licences, one of which is a statutory licence for radio broadcasting. There have been questions raised about this statutory licence which has been proposed to be introduced to the Copyright Act through a new provision: Section 31D.

The 'Notes on Clauses' in the Copyright (Amendment) Bill, 2010, states:

“The proposed new section 31D seeks to deal with statutory licence for broadcasting of literary and musical works and sound recordings. It provides that any broadcasting organisation desiring to communicate to the public by way of a broadcast or by way of performance of a literary or musical work, including sound recording which has already been published may do so.

The broadcasting organisation shall give prior notice, in such manner as may be laid down by rules, by stating the duration and territorial coverage of the broadcast, and shall pay an advance to the owner of rights in each work royalties in the manner and at the rate fixed by the Copyright Board. The names of the authors and the principal performers of the work shall be announced with the broadcast. No fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of the owners of rights.

The broadcasting organisation shall maintain such records and books of account, and render to the owners of rights such reports and accounts, as may be prescribed by rules and shall allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast. However, the provision of the section shall not affect the operation of any licence issued or any agreement entered into before the coming into force of the Copyright (Amendment) Act, 2010.”

Unfortunately, this Explanation does little more than paraphrase the contents of the proposed Section without actually detailing the rationale behind its inclusion. To make matters worse is the fact that the marginal note in the Copyright Bill accompanying the text of the Section speaks only of radio broadcasting, describing the Section as a ‘Statutory licence for radio broadcasting of literary and musical works and sound recording’, as opposed to the text of the 2010 Section which contained no such restriction and spoke of broadcasting in general terms. (This in itself evinces a clear inconsistency.)

Pertinently, the understanding of the proposed licence being limited to radio broadcasting was also reflected in the ‘Memorandum on Delegated Legislation’ which states:

“The proposed new section 31D of the Act deals with statutory licence for radio broadcasting of literary or musical work and sound recording. Under sub-section (2) of the said section, the Central Government is empowered to prescribe the form of notice which every broadcasting organisation 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 already published. Under sub-section (6) of the said section, every broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work or sound recording already published shall maintain such records and books of account, and render to the owners of rights such reports and accounts, allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast, in such manner as may be prescribed.”

Thus, it was obvious that there was a clear inconsistency in the Copyright (Amendment) Bill, 2010 with some parts of it stating that the proposed licence would be applicable to broadcasting in general, and other parts limiting the applicability of the proposed licence to radio broadcasting.

The revisions made to the 2010 Bill in August 2011, however, clarified the situation by unequivocally stating that the proposed Section 31D would apply only to radio broadcasters, and it thereby excluded other broadcasters.

What is critical to bear in mind is that the proposed licence is a statutory licence and not a compulsory licence. This means that the licence would be granted by the statute itself as opposed to possibly being granted by the Copyright Board upon the receipt of an application, which latter mechanism is how the existant compulsory licensing system in the Copyright Act operates.

Further, the circumstances in which a compulsory copyright licence may currently be obtained, through the Copyright Board, for the purpose of broadcasting are extremely limited. For example: it may be possible to apply for a compulsory licence under Section 31 of the Copyright Act only if a published work is withheld from the public or if the copyright owner has disallowed broadcast on terms which the prospective licensee considers reasonable.

As such, if the proposed Section 31D were to become law, radio broadcasters could have an “easier” time licensing copyrighted works than other broadcasters, given that they would have a statutory licence at their disposal which other broadcasters, such as television broadcasters, would not.

Unsurprisingly, television broadcasters protested.

Unfortunately, as mentioned earlier, there is no explanation within the Bill which clarifies the rationale behind the introduction of the the proposed licence at all or behind having the proposed licence apply only to radio broadcasters. However, it may be possible to explain the differential treatment accorded to radio broadcasters with reference to the disparity in the revenues of the two sectors: television and radio. In any case, it would appear that India is not the only country which has accorded statutory licences to radio broadcasters — for example, Section 114, Title 17, USC (the US Copyright law) seems to incorporate a statutory licence for radio broadcasting, in some circumstances.

Further, it possible that, in deliberations regarding the proposed Section 31D, there were considerations about the accessibility of large sections of the population to radio (versus accessibility to television), that arose. And as such there may have been public policy issues at play. Any conclusion regarding whether or not this is what the drafters of the Bill had in mind is, however, speculative.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Raw Data Relating to the Proposed Indian Copyright Amendment

noreply@blogger.com (Nandita Saikia) — Thu, 01 Sep 2011 12:31:00 +0000

Firstly, although it's not raw data, here's a summary of the salient features of the 2011 Version of the Copyright (Amendment) Bill.

The Basic Documents

The Copyright (Amendment) Bill, 2010 (gov.in);
The Report of the Parliamentary Standing Committee on the Copyright (Amendment) Bill, 2010 (here);
The Revisions to the Copyright (Amendment) Bill, 2010 made available in August 2011 (SpicyIP);

Understanding the Proposed Amendment

A mark-up of how the Copyright Act, 1957, would look if the 2010 Bill were passed (Pranesh Prakash, CIS);
A comparison between the Copyright (Amendment) Bill, 2010 and the August 2011 revisions to it (Nandita Saikia);
A mark-up showing the impact of the 2011 revisions proposed to the Copyright (Amendment) Bill, 2010 on some of the existing provisions of the Copyright Act, 1957. (Nandita Saikia)

The 2011 Copyright Bill on Copyright Societies

noreply@blogger.com (Nandita Saikia) — Wed, 31 Aug 2011 08:37:00 +0000

The 2011 version of the Copyright Bill proposes a number of changes to Chapter VII of the Copyright Act, 1957, in relation to the structure and working of these societies. Proposed changes which have been carried forward from the 2010 Bill have been marked as such in the text below.

The most important changes in the 2011 version are probably that it anticipates both authors of copyrighted works and owners of copyright being members of collective societies. Further, the proposals attempt to have all the rights of underlying works included in films administered by copyright societies.

The revised text of Chapter VII would read as follows of the amendment was passed:

33. Registration of Copyright Society.

(1) No person or association of persons shall, after coming into force of the Copyright (Amendment) Act, 1994 commence or, carry on the business of issuing or granting licences in respect of any work in which copyright subsists on respect or in respect of any other rights conferred by this Act except under or in accordance with the registration granted under sub-section (3):

Provided that owner of copyright shall, in his individual capacity, continue to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society:

Provided further that the business of issuing or granting license in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act:;

Provided also that the performing rights society functioning in accordance with the provisions of section 33 on the date immediately before the coming into force of the Copyright (Amendment) Act, 1994 shall be deemed to be a copyright society for the purposes of this Chapter and every such society shall get itself registered within a period of one year from the date of commencement of the Copyright (Amendment) Act, 1994.

(2) Any association of persons who fulfils such conditions as may be prescribed may apply for permission to do the business specified in sub-section (1) to the Registrar of Copyrights who shall submit the application to the Central Government.

(3) The Central Government may, having regard to the interests of the authors and other owners of rights under this Act, the interest and convenience of the public and in particular of the groups of persons who are most likely to seek licences in respect of the relevant rights and the ability and professional competence of the applicants, register such association of persons as a copyright society subject to such conditions as may be prescribed:

Provided that the Central Government shall not ordinarily register more than one copyright society to do business in respect of the same class of works.

(3A) The registration granted to a copyright society under sub-section (3) shall be for a period of five years and may be renewed from time to time before the end of every five years on a request in the prescribed form and the Central Government may renew the registration after considering the report of Registrar of Copyrights on the working of the copyright society under section 36:

Provided that the renewal of the registration of a copyright society shall be subject to the continued collective control of the copyright society being shared with the authors of works in their capacity as owners of copyright or of the right to receive royalty:

Provided further that every copyright society already registered before the coming into force of the copyright (Amendment) Act, 2011 shall get itself registered under this Chapter within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2011.

(4) The Central Government may, if it is satisfied that a copyright society is being managed in a manner detrimental to the interests of the owners of rights concerned, cancel the registration of such society after such inquiry as may be prescribed.

(5) If the Central Government is of the opinion that in the interest of the owners of rights concerned, it is necessary so to do, it may, by order, suspend the registration of such society pending inquiry for such period not exceeding one year as may be specified in such order under sub-section (4) and that Government shall appoint an administrator to discharge the functions of the copyright society.

[As per the 2010 Bill, a proposal regarding the Tariff Scheme of Copyright Societies]

33A. (1) Every copyright society shall publish its Tariff Scheme in such manner as may be prescribed.

(2) Any person who is aggrieved by the tariff scheme may appeal to the Copyright Board and the Board may, if satisfied after holding such inquiry as it may consider necessary, make such orders as may be required to remove any unreasonable element, anomaly or inconsistency therein:

Provided that the aggrieved person shall pay to the copyright society any fee as may be prescribed that has fallen due before making an appeal to the Copyright Board and shall continue to pay such fee until the appeal is decided, and the Board shall not issue any order staying the collection of such fee pending disposal of the appeal:

Provided further that the Copyright Board may after hearing the parties fix an interim tariff and direct the aggrieved parties to make the payment accordingly pending disposal of the appeal.

34. Administration of rights of owner by copyright society.

(1) Subject to such conditions as may be prescribed,-

(a) a copyright society may accept from an owner of rights exclusive authorisation to administer any right in any work by issue of licences or collection of licence fees or both; and

(b) an author and other owners of rights shall have the right to withdraw such authorisation without prejudice to the rights of the copyright society under any contract.

(2) It shall be competent for a copyright society to enter into agreement with any foreign society or organisation administering rights corresponding to rights under this Act, to entrust to such foreign society or organisation the administration in any foreign country of rights administered by the said copyright society in India, or for administering in India the rights administered in a foreign country by such foreign society or organisation:

Provided that no such society or organisation shall permit any discrimination in regard to the terms of licence or the distribution of fees collected between rights in Indian and other works.

(3) Subject to such conditions as may be prescribed, a copyright society may-

(i) issue licences under section 30 in respect of any rights under this Act;

(ii) collect fees in pursuance of such licences;

(iii) distribute such fees among author and other owners of rights after making deductions for its own expenses;

(iv) perform any other functions consistent which the provisions of section 35.

[Deletion as per the 2010 Bill]

~~34A. Payment of remuneration by copyright society.~~

(1) If the Central Government is of the opinion that a copyright society for a class of work is generally administering the rights of the owners of rights in such work throughout India, it shall appoint that society for the purpose of this section.

(2) The copyright society shall, subject to such rules as may be made in this behalf, frame a scheme for determining the quantum of remuneration payable to individual copyright owners having regard to the number of copies of the work in circulation:

~~Provided that such scheme shall restrict payment to the owners of rights whose works have attained a level of circulation which the copyright society considers reasonable.~~

35. Control over the copyright society by the owner of rights.

(1) Every copyright society shall be subject to the collective control of the author and other owners of rights under this Act whose rights it administers (not being author and other owners of rights under this Act administered by a foreign society or organisation referred to in sub-section (2) of section (34) and shall, in such manner as may be prescribed,-

(a) obtain the approval of such author and other owners of rights for its procedures of collection and distribution of fees;

(b) obtain their approval for the utilisation of any amounts collected as fees for any purpose other than distribution to the owner of rights; and

(c) provide to such owners [the 2010 Bill had proposed changing the word “owners” to “author” but this was not accepted in the 2011 version]regular, full and detailed information concerning all its activities, in relation to the administration of their rights.

(2) All fees distributed among the author and other owners of rights shall, as far as may be, be distributed in proportion to the actual use of their works.

36. Submission of returns and reports.

(1) Every copyright society shall submit to the Registrar of Copyrights such returns as may be prescribed.

(2) Any officer duly authorised by the Central Government in this behalf may call for any report and also call for any records of any copyright society for the purpose of satisfying himself that the fees collected by the society in respect of rights administered by it are being utilised or distributed in accordance with the provisions of this Act.

36A. Rights and liabilities of performing rights societies.

Nothing in this Chapter shall affect any rights or liabilities in any work in connection with a ~~performing rights~~ [As per the 2010 Bill] copyright society which had accrued or were incurred on or before the day prior to the commencement of the Copyright (Amendment) Act, ~~1994~~2011, [As per the 2010 Bill] or any legal proceedings in respect of any such rights or liabilities pending on that day.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

The 2011 Copyright Bill on Out-film Royalties

noreply@blogger.com (Nandita Saikia) — Wed, 31 Aug 2011 07:49:00 +0000

Among the most talked about provisions in the Copyright (Amendment) Bill, 2010, were those which dealt with the entitlement of musicians and lyricists to royalties for the out-film use of their works. The proposed amendments which dealt with this in Sections 18 and 19 of the Copyright Act have now been revised in accordance with the recommendations of the Parliamentary Standing Committee, which means that they would affect not only film music but also non-film music on sound recordings. If the Bill is passed, this is how the provisions would read:

18. Assignment of copyright.

(1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof:

Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.

[As per the 2010 Bill, retained in the 2011 version] Provided further that no such assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work:

[As per the 2011 version which substituted the third proviso suggested in the 2010 Bill with this proviso and the next, using text almost identical to the PSC recommendations — the changes in the text have been marked herein] Provided also that the author of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilization of such work in any form other than for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to contrary shall be void:

Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film shall not assign or waive [n.b. the words “or waive” were not included in the PSC recommendations] the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work except to the [the PSC recommendations included the word “author’s” here although it was redundant] legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void.

(2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.

(3) In this section, the expression "assignee" as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.

19. Mode of assignment.

(1) No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent.

(2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment.

(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

(4) Where the assignee does not exercise the rights assigned to him under any of the other sub-sections of this section within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.

(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.

(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.

(7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.

(8) [As per the 2010 Bill, retained in the 2011 version] The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member shall be void.

(9) [As per the 2011 version which substituted sub-section (9) suggested in the 2010 Bill with this sub-section and the next, using text identical to the PSC recommendations] No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilization of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall.

(10) No assignment of the copyright in any work to make a sound recording which does not form part of any cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for any utilization of such work in any form.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

The 2011 Copyright Bill on the Settlement of Assignment Disputes

noreply@blogger.com (Nandita Saikia) — Wed, 31 Aug 2011 07:08:00 +0000

The Copyright (Amendment) Bill, 2010 made one change to Section 19A of the Copyright Act although the text of the Bill indicated that there was a typographical error and that another change was also intended. This additional change may have been captured by the 2011 version of the Bill, although, of course, there is no way in which to verify whether the 2011 version merely corrects an error in the 2010 version. At any rate, this is how the Section has been proposed to be amended:

19A. Disputes with respect to assignment of copyright

(1) If an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable to any act or omission of the assignor, then, the Copyright Board may, on receipt of a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke such assignment.

(2) If any dispute arises with respect to the assignment of any copyright the Copyright Board may, on receipt of a complaint from the aggrieved party and after holding such inquiry as it considers necessary, pass such order as it may deem fit including an order for the recovery of any royalty payable:

Provided that the Copyright Board shall not pass any order under this sub-section to revoke the assignment unless it is satisfied that the terms of assignment are harsh to the assignor in case the assignor is also the author:

Provided further that, [As per the 2010 amendment which remains unchanged in the August 2011 version] pending the disposal of an application for revocation of assignment under this sub-section, the Copyright Board may pass such order, as it deems fit regarding implementation of the terms and conditions of assignment including any consideration to be paid for the enjoyment of the rights assigned no order of revocation of assignment under this sub-section, be made within a period of five years from the date of such assignment.

(3) [As per the August 2011 version] Every complaint received under sub-section (2) shall be dealt with by the Board as far as possible and efforts shall be made to pass the final order in the matter within a period of six months from the date of receipt of the complaint and any delay in compliance of the same, the Board will record the reasons thereof.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

2011 Copyright Bill on the Copyright Board

noreply@blogger.com (Nandita Saikia) — Wed, 31 Aug 2011 06:46:00 +0000

The 2011 version of the Copyright Bill proposes to make changes in Sections 11 and 12 of the Copyright Act, 1957, dealing with the Copyright Board. These are the changes which have been proposed:

11. Copyright Board.

(1) As soon as may be after the commencement of this Act, the Central Government shall constitute a Board to be called the Copyright Board which shall consist of a Chairman and ~~not less than two or more than fourteen~~ two other members.

(2) ~~The Chairman and other members of the Copyright Board shall hold office for such period and on such terms and conditions as may be prescribed.~~

The salaries and allowances payable to and the other terms and conditions of service of Chairman and other members of the Copyright Board shall be such as may be prescribed:

Provided that neither the salary and allowances nor other terms and conditions of service of the Chairman or any other member shall be varied to his disadvantage after appointment.

(3) The Chairman of the Copyright Board shall be a person who is, or has been, a Judge of a High Court or is qualified for appointment as a Judge of a High Court.

(4) ~~The Registrar of Copyrights shall be the Secretary of the Copyright Board and shall perform such functions as may be prescribed.~~

The Central Government may, after consultation with the Chairman of the Copyrights Board, appoint a Secretary to the Copyright Board and such other officers and employees as may be considered necessary for the efficient discharge of the functions of the Board.

12. Powers and procedure of Copyright Board.

(1) The Copyright Board shall, subject to any rules that may be made under this Act, have power to regulate its own procedure, including the fixing of places and times of its sittings:

Provided that the Copyright Board shall ordinarily hear any proceeding instituted before it under this Act within the zone in which, at the time of the institution of the proceeding, the person instituting the proceeding actually and voluntarily resides or carries on business or personally works for gain.

Explanation.- In this sub-section "zone" means a zone specified in section 15 of the States Reorganisation Act, 1956.

(2) The Copyright Board may exercise and discharge its powers and functions through Benches constituted by the Chairman of the Copyright Board from amongst its members~~, each Bench consisting of not less than three members~~.

Provided that, if the Chairman is of opinion that any matter of importance is required to be heard by a larger bench, he may refer the matter to a special bench consisting of five members;

(3) If there is a difference of opinion among the members of the Copyright Board or any Bench thereof in respect of any matter coming before it for decision under this Act, the opinion of the majority shall prevail:

Provided that where there is no such majority, the opinion of the Chairman shall prevail.

(4) The Chairman may authorise any of its members to exercise any of the powers conferred on it by section 74 and any order made or act done in exercise of those powers by the member so authorised shall be deemed to be the order or act, as the case may be, of the Board.

(5) No member of the Copyright Board shall take part in any proceedings before the Board in respect of any matter in which he has a personal interest.

(6) No act done or proceeding taken by the Copyright Board under this Act shall be questioned on the ground merely of the existence of any vacancy in, or defect in the constitution of, the Board.

(7) The Copyright Board shall be deemed to be a civil court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973, and all proceedings before the Board shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

noreply@blogger.com (Nandita Saikia) — Tue, 30 Aug 2011 09:28:00 +0000

A few weeks ago, a revised version of the Copyright (Amendment) Bill, 2010, received Cabinet approval after being amended with the recommendations of the Parliamentary Standing Committee (the "PSC") being taken into account.

Following this, the Bill was scheduled to be debated in the Rajya Sabha on August 29, 2011, although no such debate took place. Remarkably, the revised version of the Bill did not appear to be easily available although the Indian IP blog SpicyIP published a copy of the revisions proposed to be made to the Bill on August 30, 2011.

This document (available here) attempts to capture the changes made to the Copyright (Amendment) Bill, 2010 by the 2011 version of the Bill. The revised version of the Bill appears to follow the letter of the PSC recommendations as far as films and music are concerned. However, some of the changes appearing in other parts of the Bill do not appear to be entirely in consonance with the PSC recommendations.

The principal changes (between the August 2011 version of the Copyright Bill and the 2010 version) appear to be:

1. Section 2(m)
The revised version of the Bill omits the contentious amendment proposed to be made to Section 2(m) of the Copyright Act, 1957. [More on the 2(m) book debate is available here at SSRN.]

2. Commercial Rental

The proposal to define the term "commercial rental" has been retained although, perhaps in order to address the concerns of rights holders, it was explained that ‘a non-profit library or non-profit educational institution’ means a library or educational institution which receives grants from the Government or exempted from payment of tax under the Income-Tax Act, 1961.

This clarifies the situation with respect to Section 14(b)(ii) of the Copyright Act which says that, in the case of computer programmes, one of the exclusive rights of the copyright owner is the right to 'sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental'.

3. The Principal Director of a Film
All references to the principal director of a film being a joint author of a film (along with the producer) and, consequently, a joint owner have been deleted in the 2011 Bill;

4. Lyricists' and Musicians' Rights wrt Out-Film Use
(Ref.: A mark-up of the relevant provisions.)

The Bill now specifies that the authors of underlying works and those they assign the works to are each entitled to an equal share of the royalties received for the out-film use of those works, (with "out-film use" being defined as "non-theatrical use"). This clarifies one of the ambiguities in the 2010 version of the Bill. Pertinently, an analogous provision has also been made in respect of sound recordings, and the revisions made by the 2011 Bill in this regard are almost identical to the recommendations of the PSC.

5. Copyright Board
(Ref.: A mark-up of the relevant provisions.)

The Bill proposes to amend Sections 11 and 12 of the Copyright Act dealing with the Copyright Board through proposed amendments which had not earlier made an appearance. The Board will, if the Bill is passed, comprise a Chairman and two other members. Also, the requirement that each Bench of the Board comprise not less than three members has been proposed to be deleted.

6. Dispute Resolution under Section 19A
(Ref.: A mark-up of the relevant provisions.)

The Bill now stipulates a time-frame within which disputes should be determined by the Copyright Board: six months.

7. Accessibility to Copyrighted Works by Disabled Persons

The Bill had earlier proposed to achieve ensuring accessibility to copyrighted works by disabled persons through a compulsory licence and a exception to copyright infringement. The scope of the exception has been considerably broadened in this version of the Bill.

Further, the fact that the compulsory licence was virtually useless as very few were eligible to apply for it has been addressed. The current version of the Bill omits stringent eligibility criteria and simply states that any business or person working for the benefit of persons with disabilities may apply for a licence. What is interesting is that the proposed 2010 amendment which would have allowed the Copyright Board to determine how many copies could be published without the payment of royalties has been deleted; presumably, the proposed 2011 compulsory licence no longer contemplates "free copies".

8. Statutory Licences for Radio Broadcast in the proposed Section 31D
The anomaly which had the text of the Bill allude to "any broadcast" and the marginal note refer to "radio broadcast" has been corrected with both now referring only to "radio broadcast".

9. Copyright Societies
(See: A mark-up of the relevant provisions.)

The concern that the restrictive provisions of the copyright statute with regard to collecting societies would apply to only authors has been addressed with the provisions now applying to both the authors and owners of protected works. Also, the 2011 Bill stipulates that the underlying works used in films may only be licensed through a copyright society.

10. The Intermediary Safe Harbour

The revised version of the Bill evinces the "strengthening" of the proposed so-called safe harbour clauses with reference now being made to "transient OR incidental storage" as opposed to the earlier "transient AND incidental storage" possibly being exempt from liability for infringement. Further, the notice-and-take-down procedure has been tightened, and the earlier requirement to get a court order within 14 days (which caused much consternation) has now been changed to 21 days.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

DIT Clarification on the 2011 Privacy Rules

noreply@blogger.com (Nandita Saikia) — Thu, 25 Aug 2011 08:08:00 +0000

In April 2011, four sets of Rules were published under the Information Technology Act, 2000; the second of these sets — called the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 — dealt with how personal sensitive data or information (collectively called “Information” here) should be treated.

Unfortunately, the Rules, to put it mildly, were not a model of clarity. In addition to being ambiguous, they were also criticised for making the impractical mandatory — for example, Rule 5(1) required a body corporate or any person collecting Information on its behalf to obtain consent in writing from the provider of the Information via a letter/fax /email regarding the purpose of usage prior to the collection of the Information. It has never been clear how this requirement could be made workable especially in situations which could involve having to obtain consent from large numbers of people.

Perhaps recognising the existence of problems regarding the interpretation and workability of the Rules, the Department of Information Technology, Ministry of Communications & Information Technology issued a Press Note on August 24, 2011 through the Press Information Bureau, Government of India clarifying the Privacy Rules.

Apar Gupta, a Delhi-based lawyer, and the author of the LexisNexis' ‘Commentary on Information Technology Act’, captured the essence of the Clarification in three succinct tweets reproduced here:

Clarification 1

Clarification 2

Clarification 3

Even though there isn't really anything beyond that to the Clarification, a slightly more detailed version of it has been appended below:

The Rules applicable to companies or any person located within India.
The providers of information, referred to in the Rules, are human beings who provide (to a company) sensitive personal data or information.
As far as the possibly unworkable Rule 5(1) described earlier is concerned, the requirement of obtaining consent from a person providing information by letter/fax /email has been changed: the Clarification states that consent includes consent given by any mode of electronic communication.
A B2B arrangement is not subject to Rules 5 and 6, although a B2C arrangement is.

Rules 5 and 6 state (in possibly over-simplified terms):

Information may only be collected if necessary for a lawful purpose connected with a function or activity of the collector, and the provider must be aware of the collection of information, its purpose, etc.

The collector should enable the provider to review the information, and there should be a provision to revise incorrect information, although the collector will not be responsible for the accuracy of the information.

The information may only be used for the purpose it is collected, and may not be retained for longer than required. The collector must provide an option to the provider not to provide information or to later withdraw information although if information is not provided/withdrawn, the collector is not under an obligation to provide the provider with goods/services with respect to which the information was sought/collected.

The collector (body corporate) must address any discrepancies and grievances of their provider of the information with respect to processing of information within one month from the date of receipt of grievance, and, for this purpose, designate a Grievance Officer and publish his name and contact details on its website.

Information may be disclosed only with the consent of the provider unless such disclosure has been agreed to in the contract between the body corporate and provider of information, or where the disclosure is necessary for compliance of a legal obligation.

The collector shall not publish the Information.

The “privacy policy, as prescribed in Rule 4, relates to the body corporate and is not with respect to any particular obligation under any contract”.

Rule 4 requires companies and persons collecting Information on their behalf to “provide a privacy policy for handling of or dealing in personal information including sensitive personal data or information and ensure that the same are available for view by such providers of information who has provided such information under lawful contract”.

(This post is by Nandita Saikia and it incorporates text by Apar Gupta. It was first published at Indian Copyright.)

T-Series v. MySpace: First Reactions

noreply@blogger.com (Nandita Saikia) — Wed, 24 Aug 2011 13:10:00 +0000

The judgment of the Delhi High Court in the case of Super Cassettes Industries Ltd. v. Myspace Inc. & Another pronounced on July 29, 2011 was probably the first Indian judgment dealing with the subject of intermediary liability in the Indian context.

It's a long, detailed judgment. In a nutshell the facts are:

Users could upload music on MySpace. They happened to upload some music belonging to T-Series, which wasn't enthusiastic about having its music uploaded online without its permission.

T-Series and MySpace had a splotchy history. T-Series at one point suggested that MySpace obtain a licence from it -- it isn't clear from the judgment whether it wanted MySpace to obtain a licence for its entire repertoire for high licence fees or whether this was some form of limited licence. MySpace suggested that T-Series avail of its Rights Management Tool to prevent infringing music from being uploaded. T-Series rejected this suggestion. Etc.

The result was that the upload of infringing materials by users was not prevented at the threshold, and T-Series sued for the infringement of the copyright in its works. In its second prayer, it appeared to (non-explicitly) ask for an injunction against inducement to commit copyright infringement which is not generally recognised in the realm of Indian copyright law, and which was unusual in itself.

At any rate, it was held that MySpace had indeed committed copyright infringement. The Indian Law and Technology Blog dealt with the issues involved in the case in a detailed post (here).

There were several parts of the judgment which weren't immediately comprehensible (to my mind, at any rate) from a copyright perspective. Some of them have been discussed here. It should be mentioned though that the content of this post is speculative in many places, and that the suggested possible interpretations of the Copyright Act may not be generally accepted; the post merely attempts to explore possible alternative interpretations of the Indian copyright statute, and accepted copyright theory.

Tort Law Analogy

The decision seemed to repeatedly draw an analogy between tort law and copyright, and at one point spoke of the application of common law principles too, which didn't seem to be entirely consistent with the provisions of Section 16 of the Copyright Act, 1957, even though that Section isn't entirely clear in itself.

Authorisation

Under Section 14, in simple terms, copyright includes the right of the copyright owner to communicate a protected work which it owns to the public, or to authorise another person to do so.

As a general rule, direct infringement of copyright involves violating another person’s copyright oneself while indirect infringement involves contributing to or, possibly, being vicariously liable for infringement someone else (such as one’s employee) commits. Either fortunately or unfortunately, depending on one’s perspective, the Indian Copyright Act, 1957, contains no explicit provision relating to indirect copyright infringement.

As such, to say that indirect copyright infringement is an offence in India, it is generally necessary to read and interpret two Sections of the Copyright Act together: Section 51 (which defines “infringement”) and 14 (which defines the meaning of copyright).

Doing so, however, may result in an interpretation according to which “infringement by authorisation” is an offence. This may have been what led to the decision of the Delhi High Court repeatedly referring to MySpace having authorised infringement. In fact, it may be possible to infer that indirect infringement seems to have been equated with "infringement by authorisation" in the decision.

The problem with this is that jurisprudentially, "authorisation" implies authority / the right to ask that an act be committed. Without authority, authorisation can only be purported, not valid. As such, a person who does not own the copyright in a work — or have an appropriate licence — cannot ordinarily authorise the communication of a protected work. He may ask that a copy be made, but that only amounts to a request.

Considering this, it isn’t entirely clear what "infringement by authorisation" means. Paragraph 78(b) of the decision, however, states that the finding of infringement isn’t based on "authorisation", which appears to make the entire "authorisation" discussion redundant.

In any case, from a factual point of view, it is extremely unclear that MySpace authorised infringement; it merely seems to have enabled infringement since its website made it possible for users to engage in infringing activities.

As far as enabling infringement is concerned: Although a website is not a form of technology, it may be possible to draw parallels with the US Sony v. Universal case (also known as the Sony Betamax case) which clearly indicated that just because a technology made available the general public is capable of being used for infringing purposes, it does not automatically follow that its manufacturers would be guilty of infringement. Drawing an analogy, it should be possible to argue that just because a facility offered to the general public on a website is capable of being used for infringing purposes, the owner of the website would not automatically be guilty of infringement. In other words, enabling infringement cannot be equated with either contributing to infringement or being vicariously liable for infringement.

Safe Harbour

Indian copyright law does not contain an explicit safe harbour for intermediaries. However, Section 51(a)(ii) of the Copyright Act states that a person who permits a place to be used for the unauthorised communication of a specific protected work to the public, for profit, would not be guilty of infringement if (a) he was not aware of the infringement and (b) had no reasonable ground for believing that the communication of the work would be infringing. It could be argued that this Section applies only to specific, specified works: the Section refers to “the work” and not “a/any work”. As such, it should also be possible to argue that the Section does not make the mass infringement of unspecified works infringing. Further, considering the requirement of having a reasonable ground for believing that the communication would be infringing, it could also be argued that the apprehension that some part of a massive repertoire may be infringed would not bring any actual infringement under the scope of this Section (due to a lack of specificity).

Future Infringement and Remedies of Infringement

As far as remedies for infringement are concerned, Section 55 of the Copyright Act which deals with civil remedies speaks of actual infringement, and not possible infringement. The injunction granted in the decision, however, covers possible copyright infringement in addition to actual infringement. Although precedent may have established that it is possible to obtain an injunction against infringement anticipated on some solid basis, the validity of the grant of injunctions against possible infringement is unclear especially where the apprehension such infringement is based primarily on nothing more than the fact that users may tend to infringe copyright.

It is also interesting to note that Paragraph 47 of the judgment also seems to assume MySpace has “complete knowledge” of acts of infringement not yet committed, which is difficult to accept.

ToS Licence and a Review of Content

The licence contained in the MySpace Terms of Service allowing for the modification of user generated content seems to have been virtually equated with the ability of MySpace to review content at the time of upload, and it isn't entirely clear how or why parallels have been drawn between the two.

Nature of the Internet

And finally, of course, there are factual questions to be asked with regard to the very nature of intermediaries, the practicalities of checking for infringement at the threshold without any inputs from copyright owners, the value of social networking and the need to balance the rights of intermediaries (and consequently the freedoms granted to users/the public) against the protection of the rights of copyright holders.

While the decision is undoubtedly a victory for rights owners, it is unclear whether it also serves the interest of the general public. But then again, the decision is neither intended nor required to decide anything beyond the issues arising between the parties to the case.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Case Report: Landscape Art not Copyrightable

noreply@blogger.com (Nandita Saikia) — Mon, 15 Aug 2011 05:41:00 +0000

(This post is an edited extract of Chapman Kelley v. Chicago Park District, 2011.)

In 1984, Chapman Kelley, an artist recognized in the US for his representational paintings of landscapes and flowers received permission from the Chicago Park District to install an ambitious wildflower display at the north end of Grant Park, a prominent public space in the heart of downtown Chicago. The display, called “Wildflower Works”, was promoted as “living art”, and received critical and popular acclaim. It was tended by Kelley and a group of volunteers but by 2004, it had deteriorated, and the City’s goals for Grant Park had changed. So the Park District dramatically modified the display, by reducing its size, reconfiguring the shape of the flower beds, and changing some of the planting material.

Subsequently, Kelley sued the Chicago Park District for allegedly violating his “right of integrity” under VARA (i.e. Visual Artists Rights Act of 1990; 17 U.S.C. § 106A) and for breach of contract.

The United States Court of Appeals for the Seventh Circuit held that the contract claim was insubstantial, that for reasons relating to copyright’s requirements of expressive authorship and fixation, a living garden like Wildflower Works was not copyrightable, and that the artist was not entitled to the benefit of "moral rights".

The Court came to this conclusion in spite of recognising that the artistic community might classify a garden as a work of postmodern conceptual art, and that copyright’s prerequisites of authorship and fixation are broadly defined.

The Court held that:

...the law must have some limits; not all conceptual art may be copyrighted. In the ordinary copyright case, authorship and fixation are not contested; most works presented for copyright are unambiguously authored and unambiguously fixed. But this is not an ordinary case. A living garden like Wildflower Works is neither “authored” nor “fixed” in the senses required for copyright. ... Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden—the colors, shapes, textures, and scents of the plants—originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists. All this is true of Wildflower Works, even though it was designed and planted by an artist.

Of course, a human “author”—whether an artist, a professional landscape designer, or an amateur backyard gardener—determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. To the extent that seeds or seedlings can be considered a “medium of expression,” they originate in nature, and natural forces—not the intellect of the gardener—determine their form, growth, and appearance. Moreover, a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement. If a garden can qualify as a “work of authorship” sufficiently “embodied in a copy,” at what point has fixation occurred? When the garden is newly planted? When its first blossoms appear? When it is in full bloom? How—and at what point in time—is a court to determine whether infringing copying has occurred?

In contrast, when a landscape designer conceives of a plan for a garden and puts it in writing—records it in text, diagrams, or drawings on paper or on a digital-storage device—we can say that his intangible intellectual property has been embodied in a fixed and tangible “copy.” This writing is a sufficiently permanent and stable copy of the designer’s intellectual expression and is vulnerable to infringing copying, giving rise to the designer’s right to claim copyright. The same cannot be said of a garden, which is not a fixed copy of the gardener’s intellectual property. Although the planting material is tangible and can be perceived for more than a transitory duration, it is not stable or permanent enough to be called “fixed.” Seeds and plants in a garden are naturally in a state of perpetual change; they germinate, grow, bloom, become dormant, and eventually die.

This life cycle moves gradually, over days, weeks, and season to season, but the real barrier to copyright here is not temporal but essential. The essence of a garden is its vitality, not its fixedness. It may endure from season to season, but its nature is one of dynamic change'.

We are not suggesting that copyright attaches only to works that are static or fully permanent (no medium of expression lasts forever), or that artists who incorporate natural or living elements in their work can never claim copyright.

(This post was compiled by Nandita Saikia and was first published at Indian Copyright.)

The Law Governing OS Licences

noreply@blogger.com (Nandita Saikia) — Sat, 13 Aug 2011 15:00:00 +0000

Request for Inputs

While studying Software Delveopment on an OS Base, I noticed that some contracts which are used to licence Open Source software do not specify:

the governing law; and
the term and territory of the licence.

I was wondering whether anyone has conducted / is aware of any research on choice(s) of law in copyright contracts. I’m trying to understand what the proper law of such contracts would be if the governing law was not specified. I’m concerned because under Indian law, if the term and territory are not specified, a licence is deemed to be valid only for five years and only within the territory of India. The choice of law cases I'm aware of pertain primarily to shipping. (At this point, I'm focussing on contract interpretation and not on enforcement / anti-suit injunctions, etc. although I'd appreciate any references to allied subjects too.)

Thanks,
Nandita

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Section 14, not 14(1) Describes Copyright

noreply@blogger.com (Nandita Saikia) — Sat, 13 Aug 2011 14:57:00 +0000

Misprints in copies of statutes abound. One which I noticed the other day was that the bare Act of the copyright statute I was using lists a subsection (1) in Section 14. So, according to it, the exclusive rights of those who own the copyright in literary works are enumerated in Section 14(1)(a).
Once upon a time, Section 14 did have a subsection (1) as well as a subsection (2), but the 1994 amendments to the Indian Copyright Act, 1957, changed this, and the Section no longer has a subsection (1). It's now Sections 14(a), (b), (c), (d) and (e).

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Indian Copyright

The Law Governing the Right to Privacy

Defamation

Recording Telephonic Conversations

Preliminary Drafts of Some Agreements

Broadcasting, Films and the 2011 Indian Intermediary Guidelines

A Brief Compilation of Indian Content Law

The Doctrine of Independent Creation

The Competing Laws governing Copyright and Content

Poland: A Fact-Checker as Co-Author

Notes on Copyright and Currency

Following Instructions: Origami and Other Crafts

Preliminary Issues involved in exploiting "Cultural Art"

101: Copyright Infringement and Plagiarism

The Proposed Statutory Broadcasting Licence

Raw Data Relating to the Proposed Indian Copyright Amendment

The 2011 Copyright Bill on Copyright Societies

The 2011 Copyright Bill on Out-film Royalties

The 2011 Copyright Bill on the Settlement of Assignment Disputes

2011 Copyright Bill on the Copyright Board

The 2011 Version of the Copyright (Amendment) Bill

DIT Clarification on the 2011 Privacy Rules

T-Series v. MySpace: First Reactions

Case Report: Landscape Art not Copyrightable

The Law Governing OS Licences

Section 14, not 14(1) Describes Copyright