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Copyright infringement vs public access to knowledge – The SciHub case
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Background of the Case
The Plaintiffs briefly are three large publication houses, specifically in the realm of scientific or technical journals. These houses publish a staggering number of articles per year, and charge readers for access to view the same articles. As scientific research is heavily dependent on review of existing literature, one could argue that these companies play a very pivotal role in the development of scientific acumen.
The Defendants, on the other hand, are public websites offering viewers with the ability to access articles held behind a paywall, for free. These websites provide free access to paid articles either by hosting the articles themselves, or by providing a catalogue of links directed towards websites containing free copies of the articles.
The Plaintiffs have alleged that the Defendants effectively have been serial offenders of copyright law, by continuing to make copyrighted material available without the requisite license from the copyright holder (aka the Plaintiffs) and have been infringing their rights under copyright law. They also allege that the Defendants have gone about this infringement by making a number of domains and mirror sites, to circumvent court orders issued in other countries. In light of the same, the Plaintiffs are seeking a dynamic injunction against the Defendants. In a nutshell, a dynamic injunction is an injunction granted against a party extending to all websites that appear to be similar to the infringing website, and perform the same functions that the infringing website performed at the time of granting the injunction. It is a remedy born out of judicial innovation in a prior Delhi High Court case, and reduces the need for an intellectual property holder to constantly approach the courts for injunctions against sister sites of the infringing site.
The Public Interest Angle
Intellectual property on the whole has struggled in achieving a balance between public interest for access to the protected subject matter, and granting economic benefits to the creator for his pains in bringing forth the said creation. Copyright in literature has been at the forefront of this debate, owing to the large public interest invested in its free proliferation.
Protection of public interest in copyright law has found its enactment in the concept of fair use, and in India particularly, in fair dealing. Section 52 of the Copyright Act, 1957 lays down the concept of fair dealing, and consists of an elaborate enumeration of uses that would be permitted under this concept. It would however be possible to argue that the existence of the element of public interest influences the grounds of interpretation of the pigeonholes under Section 52. The case of Rosemant Enterprises Incorporation v. Randon House Incorporation, a US Second Circuit decision, is an interesting read in this light, for the Court in that case found that the defendants, despite unauthorizedly utilising the plaintiff’s biography, had acted in fair use, with the Court stating that “the public interest should prevail over the possible damage to the copyright owner”.
Another interesting note lies in a previous decision by the Delhi High Court in the case of Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. The Court, while summarizing the points on “fair dealing” makes a very interesting observation, as provided below:
“Public interest may in certain circumstances be so overwhelming that courts would not refrain from injuncting use of even "leaked information" or even the right to use the "very words" in which the aggrieved person has copyright, as at times, public interest may demand the use of the "very words" to convey the message to public at large. While the courts may desist from granting injunction based on the principle of freedom of expression, this would, however, not necessarily protect the infringer in an action instituted on behalf of the person in whom the copyright vests for damages and claim for an account of profits”
Intriguingly, this point plays a double-edged sword. The Court in the present case may rely on this precedent to hold that an injunction should not be granted, owing to the large public interest in free access to knowledge. However, the Court will then have to call for damages to be awarded to the Plaintiffs for the infringement of their work. The Defendants do not commercialise their efforts, and therefore the question of calling for account of profits does not arise. The Court would then have to decide a particular amount as damages, which requires an economic analysis into the extent of infringement by the Defendants, which only burdens the head that bears the band. Food for thought.
Sparking Research
The next issue that arises is how far the Court is willing to push the envelope when it comes to education and research. Section 52(1)(a)(i) of the Act allows a person to utilize a copyrighted work for private or personal use, including research, and Section 52(1)(i) allows for the reproduction of the work by a teacher or pupil in the course of instruction, and we proceed to examine what this means for the case below.
The Madras High Court in the case of Blackwood and Sons Ltd. v. A. N. Parasuraman held in that case that the defendant’s guides did not constitute works of research, as “private study only covers the case of a student copying out a book for his own use, but not the circulation of copies among other students”. However, the Delhi High Court in the famed The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. case, provided for a different interpretation of the clause, and noted that the protection for an act conducted by a student for his own research would also extend to the same act of a university for reasons of limited days of instruction, preserving the book against damage from repeated photocopying, and so on.
The takeaway from this would then be that the university, acting as a facilitator for research, was protected under the concept of fair dealing of private research. One might then say that the Defendants, also acting as facilitators for private research, are providing access to universities and students who would otherwise be unable to access the same owing to the exorbitant fees being charged by the Plaintiffs.
One might even extend the same logic to the clause for educational instruction. Due to the expansive interpretation given by the Court in the aforementioned case, the phrase ‘in the course of instruction’ extends to acts outside the classroom, and one would find it hard to believe that it does not cover the acts of the Defendants, as students and faculty often rely on the Defendants’ resources to improve the quality of their assignments and pedagogy respectively.
Conclusion
The facts at hand prove to lean in favour of the Defendants, especially given that the High Court has further agreed to hear researcher collectives and student organizations as well. We might even see a repeat of the circumstances in the DU Photocopy case, with overwhelming social pressure petitioning the Plaintiffs to drop their suit. The case would however hinge on the stance the Court would take as to the position the Defendants play in the role of access to knowledge, rather than the content and qualitative use of the Plaintiffs’ copyrighted work. To students and researchers alike, the Defendants don the shining mantle of a knight, while to the publishers plying their trade, a bibliophilic Robin Hood, the scourge of their operation. To the author, a recent graduate now working in the field of intellectual property, a turgid conundrum sure to cause him a few sleepless nights.
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Sanjay Kumar Gupta vs Sony Pictures Network India
Brief Facts of the Case
The Appellants contend that the Respondents should be held liable for infringement of Copyright of their concept. Appellants run a quiz show by the name of Jeeto while the respondents are proprietors of Kaun Banega Crorepati.
The Appellants claim that they’d floated their concepts to the respondents who in turn breached their confidentiality and copied their concept for their show.
The entire claims of the Appellants rests on the argument that they have copyright over the concept of involving at-home players in the quiz show.
Issues Raised
There are, inter alia, two main issues raised by the Trial Court in the present case.
Firstly, whether the copyrights claimed by the plaintiff in the concept of "Jeeto Unlimited" is an original work for the purpose of the Copyright Act, 1957?
Secondly, whether the plaintiff is entitled to a decree for infringement of his copyright work?
Arguments by the Parties
The Appellants have based their claims on two broad arguments, i.e there was a breach of confidentiality on part of the respondents and that they (the Appellants) had copyright over the concept of Jeeto.
In support of their first argument, the Appellants put forth that they had floated the concept to the defendants who in turn had forced them to sign a waiver absolving them of any liability in case of disclosure.
In support of their argument, the Appellants pleaded that they presented this concept to the respondent who run and produce the popular game show “Kaun Banega Carorepati” (KBC). They allege that the Respondent had copied the concept which was presented by them in and hence violated the copyright of the appellants.
Further, they point out that there is certain similarity between the concept of 'Jeeto Unlimited' and KBC.
“1. Game will be played simultaneously with the contestant and the home audience.
- Home audience answers the same question that has been asked to the contestant
- Home viewer can participate by watching the television for questions and giving the answer through SMS/email
- Reward depends on the amount of money for which the question is being played
- Home Viewer will be selected through digital mode programming by the channel‟s technical team”
On the other hand, the Respondents have countered that the Appellants had no Copyright over the concept used in Jeeto Unlimited. They have also asserted that there is substantial similarity between the two shows even though certain concepts are similar.
The Respondents point out the following distinctions between the two shows:
- Contestants in the Respondent’s show are selected on the basis of who can answer a question the fastest. Contestants in the Appellant’s show are selected through the lottery method.
- The games played by the contestants and the games played by the home-viewers do not overlap in the Respondent’s show. In the Appellant’s show however, the home viewers are invited to answer the questions posed to the contestant and is used as a hint or a “lifeline” by the contestant.
- The Respondent’s show is a pre-recorded event where home viewers get to watch the pre-recorded episode. In the Appellant’s show, the contestants and the home viewers play the game simultaneously.
- The games played by the contestant and the home viewers are separate, and their rewards are different as well in case of the Respondent’s quiz show. In case of the Appellant’s quiz show, the home viewer whose correct response was chosen by the contestant is rewarded by splitting the increase of monetary amount between the contestant and the home viewer.
- In the Respondent’s show the contestant is provided only one opportunity to answer the question correctly. In the Appellant’s show, the contestant is negatively marked for the first wrong answer, and the game ends on the second wrong answer.
Decision of the Court
The Court was quick to dismiss the first claim based on the findings of the Trial Court. The Appellants could not produce the alleged consent/waiver form nor did they make any effort to call for its production in court. The Court also took note of the fact that media houses have a general practice of signing such forms before meetings to ensure that should any broadcast/publication have contents similar to those discussed in the meetings, they won’t be held liable. Thus, it shows that the Appellants knew of the consequences before they signed such a form or attended such a meeting.
The Court has relied on the principles laid down in the Supreme Court case of R.G. Anand vs Deluxe Films. The Apex Court, in this case, avers that there can be no copyright in an idea, principle, subject-matter, themes, plots etc.
The stated that:
“..in law what is copyrightable is not an idea, principle, subject-matter, theme, plot etc but how such aspects are brought into a form of literary work or dramatic work or artistic work or musical work or cinematographic film or sound recording or actual live shows/performers rights or broadcasting rights….”
The Court relied on the fact that one of the witness of the Appellants that was produced in Trial Court had himself stated that the concept of audience/viewer engagement has been earlier used in various television programmes.
The Court relied on Section 16 of the Copyright Act, which states that:
“No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.”
In that light, the Court found that concept is not a subject matter of copyright. It is not a copyright work as provided envisaged in section 2(y) or Section 14 or Sections 37 to 39A of the Copyright Act. The Court stresses that a concept cannot be a subject matter of copyright because a concept must be transformed into a form of a literary work or dramatic work or musical work or artistic work or cinematographic work or sound recording or a performer’s right or a live show for it to have any Copyright protection in that particular work.
The Court also ruled that there is no averment that appellants are first in the world who have innovated such a concept of play along audience sitting at home. The concept of a play along audience sitting at home was already in public domain.
Conclusion
The concept of a quiz show is a concept which is otherwise well known – one can argue that it is an internationally popular form of quiz shows.
Thus, the Delhi High Court, in this instance, has only reiterated what the Supreme Court had already laid down in the case of R.G. Anand vs Deluxe Films.
New ideas and concepts spring from old ones. Granting of copyright protection to ideas and concepts would render creativity obsolete. Time and again, when this issue of copyright of ideas crop up, the Courts have understood the necessity of allowing creative freedom over ideas and protection over work.
Yet, we constantly have cases where one party alleges that they have the Copyright over an “idea” or a “concept”.
While this judgment upholds the law already laid down, what is needed is for the Courts to lay down guidelines to determine how concepts differ from work. The Courts need to give the term “concept” a concrete definition which can be used as a guideline in future cases to quickly determine whether copyright should exist or not.
We hope this article was a useful read. The judgment can be downloaded here.
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Non-payment of Copyright royalties – raids on Indian music companies
The Enforcement Directorate (ED) raided the Mumbai offices of major Indian music companies – Universal, T-series, Sa Re Ga Ma and YRF Music, on Friday the 3rd, for non-payment of royalties and laundering the royalty money into investments.
The raids were made in relation to a case against two entities that handle licenses in the Indian music industry, namely, the Indian Performing Right Society (IPRS) and the Phonographic Performance Limited (PPL). Chitra Singh, widow of ghazal singer Jagjit Singh, had filed an FIR with the ED naming IPRS and PPL. Script writer Javed Akhtar too had made a complaint about non-payment of royalties. The ED began investigations into allegations of money laundering derived from non-payment of license royalty.
IPRS is a copyright society that issues licenses for public performances, while PPL is a copyright society dealing with sound recordings. The two copyright societies are embroiled in various legal issues. One of them concerns the legality of these companies being allowed to issue licenses under the Indian Copyright Act. Another legal issue concerns the non-payment of royalty and subsequent money laundering. According to investigations made by the ED, IPRS had assigned their rights to issue licenses and collect royalties to PPL to share revenue. However, PPL allegedly indulged in fraudulent activities and did not pay IPRS their due royalty.
The ED is a specialized financial investigative agency that enforces the Prevention of Money Laundering Act, 2002 (PMLA). The music industry companies collected royalty from consumers and were entitled to pay 50% of the collected amount to music composers and lyricists. However, this money was supposedly used by different people in other investments. What makes the case noteworthy is that the fraudulent activities concerned are said to involve amounts up to Rs 1,500 – 2,00 crores (USD 230 million to 307 million).
The ED teams have apparently seized several incriminating documents pertaining to the records of royalty collections over the period and its fraudulent use. These documents will be gathered from Kolkata and Delhi to identify a money trail. It remains to be seen whether these companies will be allowed to continue issuing licenses, and what happens of the royalty that is rightfully owed to the composers and lyricists.
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Nuances of Copyright infringement by manufacture of products based on Engineering drawings
A recent judgement of the Delhi High Court in Holland L.P. and another. vs S.P. Industries calls for a debate on copyright infringement, and overlap and exclusivity between copyright and industrial design protection laws in the country.
We start by providing an overview of events that led to the dispute between the parties. Holland L.P. had designed and developed an Automatic Twist Lock (“ATL”) system, and has supplied the same to the Indian Railways over the years, with an Indian partner. Indian Railways had floated a tender in the year 2012 for replacement and repair of a list of parts of the ATL devices supplied by Holland L.P. and its partner. The Indian partner of Holland L.P. and S.P. Industries participated, with the latter emerging as the successful bidder.
In this backdrop, Holland L.P. (“Plaintiff 1”) and its partner (“Plaintiff 2”) had sought permanent injunction restraining S.P. Industries (“Defendant”) from manufacturing, selling, offering for sale, advertising, directly or indirectly ATL and parts thereto, alleging that such acts of the Defendant amounts to infringement of copyright of the Plaintiff. The Court however, ruled in favour of the Defendant.
Now referring to the particulars, engineering drawings (2D drawings) of the ATL prepared by Plaintiff 1 was made available as part of the tender by Indian Railways with permission from Plaintiff 2. The Plaintiffs contended that they are the owners of the copyright over the engineering drawings and they have the exclusive right over three-dimensional representation of the engineering drawings. In other words, the Plaintiffs contended that they have the right to prevent others from manufacturing, selling, offering for sale or advertising a product based on the engineering drawings. The Plaintiffs further contended that engineering drawings are not “Design” as per The Designs Act, 2000, since such drawings are “functional” and do not “appeal to the eye alone”. The instant contention is particularly relevant because, in case the subject matter over which the Plaintiffs are claiming copyright protection, is protectable under The Designs Act, then copyright would cease after the Plaintiffs reproduce the ATL 50 times by an industrial process, as per Section 15 of the Indian Copyright Act. The Plaintiffs had in fact reproduced the ATL systems 50 times by an industrial process.
On the other hand, the Defendant contended that the subject matter over which the Plaintiffs are claiming copyright, is protectable under The Designs Act, and since the Plaintiffs have reproduced ATL systems at least 50 times, the copyright of the Plaintiffs has ceased.
While there were various other contentions, we are particularly interested in understanding whether engineering drawings is subject matter of copyright protection alone, or are they protectable as industrial design under The Designs Act.
The Court is of the opinion that engineering drawings made for the purposes of production of ATL systems is subject matter, which is protectable as industrial design under The Designs Act. The Court is of the opinion that, any design (such as engineering/machine drawings) which is used for the purpose of industrial production of an article, is protectable as industrial design. The Court draws the instant opinion by conjoint reading of Section 2(d) of Designs Act, 2000, Section 14(c) and 15(2) of the Copyright Act, 1957.
We agree with the Court’s interpretation only in part for reasons that follows. One would agree that a set of engineering drawings would include drawings that define the way a product looks. In other words, such subset of drawings defines how the finished article/product appeal to and are judged solely by the eye. Hence, such drawings may be subject matter of industrial design protection. However, engineering drawings may also include a subset of drawings that define how certain parts, which are housed inside the product, are configured. Hence such drawings correspond to parts that are purely functional and are incapable of appealing to and being judged solely by the eye. Hence, it may be inappropriate to come to a conclusion, as the Court has, that any design which is used for the purpose of industrial production of an article, is protectable as industrial design. Our sense is that, design of product will include subject matter, such as engineering drawings of “housed/functional” parts (purely functional and not expressly contributing to aesthetics), over which only copyright protection applies, and will also include subject matter, which substantially defines how the product is perceived by the eye, which is protectable as industrial design.
Having made the above observation, it is now worthwhile to explore whether the owner of copyright over technical drawings corresponding to such functional parts (not the product as a whole, which is subject matter of industrial design protection) stop others from manufacturing such functional parts. Section 52(1) of the Copyright Act precisely deals with this matter.
Section 52(1): The following acts shall not constitute an infringement of copyright, namely:-
(w) the making of a three-dimensional object from a two-dimensional artistic work, such as a technical drawing, for the purposes of industrial application of any purely functional part of a useful device.
The above section makes it clear that, even though one may hold copyright over engineering drawings over purely functional parts, they will not be able to stop third party from producing such parts. In other words, provisions of the Copyright Act cannot be used to stop third party from producing (including other acts of commerce) such functional parts, irrespective of whether they are visible or hidden from being gauged by the eye.
In conclusion, drawings that define the way an article/product appeals to and is judged solely by the eye, is protectable as industrial design, and copyright in the same ceases to exist once the article/product is reproduced 50 time by an industrial process by the owner. Drawings of purely functional parts of an article/product are not protectable as industrial design, and only copyright protection exists. However, such copyright is not infringed by third party who produces such functional parts.
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Copyright Dispute between Zee and Saregama
In a recent Copyright infringement case, Zee Entertainment Enterprises Ltd (an Indian media and entertainment company) moved the Delhi High Court alleging infringement by Saregama India Ltd (an Indian music label and content producer for Indian television) over Zee’s copyright on songs from 29 movies. According to Senior Advocates representing Zee, the Plaintiff (Zee) has the copyright to broadcast these 29 movies and songs from these movies. Saregama India Ltd has allegedly exploited Zee’s copyright over these songs from 29 movies by way of playing the songs and allowing internet users to download them.
Interpretation of the Allegation
Zee, in its plea said Saregama India (Defendant) has been misrepresenting itself to be the copyright assignment holders of the sound recordings as well as audio visuals of the songs incorporated in the 29 movies, whereas, the rights to the recordings exclusively vests with Zee. Senior advocates representing Zee contended that Saregama (Defendant), as per their reply to the legal notice preceding the suit, claims assignment of copyright by the producers of the movies (in question) in the year 1981. During 1981, the medium of recording was only in the form of LPs (long playing vinyl record or phonograph).
Referring to the section 18(1) of the Copyright Act, 1957, the representatives of the plaintiff contended that the assignment of 1981 could not have vested in the Defendant the right to exploitation of the copyright in the “medium” or “mode” of recording that did not exist and was not in commercial use in 1981. The Plaintiff (Zee), sought to injunct the Defendant from exploiting the copyrighted works through CDs, DVDs and magnetic tapes. The Court enquired, whether or not, technological advancement in sale of music in the form of LPs as existed earlier to now CDs, DVDs and magnetic tapes would not fall within the meaning of “medium” within provision of Section 18(1) of the Copyright Act, 1957.
Actions
The Court, on December 23, 2016, held that the aforementioned contention requires due consideration and refused to grant injunction with respect to CDs, DVDs and magnetic tapes. On the contrary, the Court passed injunction restraining the Defendant from exploiting the “medium of ring tones” and “internet”.
The Delhi High Court further asked Saregama to deposit Rs. 20 lakh subject to which, the Defendant, shall, till the further date of hearing be entitled to stream the said music on its website and to permit download of songs as was being done but shall not be entitled to grant any new or fresh licences with respect to the said works. The Court listed the matter for further consideration for Jan 24, 2017.
Conclusion
This order does not provide a clear justification as to why or how CDs, DVDs and magnetic tape mediums differ from the internet and ringtones. A clear rationale is awaited until the next date (Jan 24) of decision. However, it is believed that if the sought injunction is granted with respect to CDs, DVDs and magnetic tapes this case would have an impact on the media companies.
Read the order here.
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Delhi university Copyright case – University wins over publishers
This month, we witnessed a powerful (progressive?) judgement by the Indian Appellate Court regarding the Delhi University copyright infringement case. Here, the plaintiffs, namely, Oxford University Press, Cambridge University Press, and Taylor & Francis Group, alleged that Delhi University and Rameshwari Photocopy Services infringed the plaintiffs’ copyrights of various publications.
Rameshwari Photocopy Services has a licensed shop in the campus of Delhi School of Economics (University of Delhi) where students buy course packs authorized by professors who taught courses at the university. The course packs prepared by the shop included subject matter that had been photocopied from several textbooks published by the plaintiffs.
The plaintiffs argued that the inclusion of these pages amounted to an infringement of copyright related to their publications. Further, they provided examples of similar cases decided in other countries such as the United States of America, United Kingdom and Canada, wherein claims of copyright infringement were upheld.
Regarding copyright in the field of education, Section 52(1)(i) of the Indian Copyright Act lists acts which are not to be considered as infringement of copyright, as follows: “(1) The following acts shall not constitute an infringement of copyright, namely…the reproduction of any work … by a teacher or a pupil in the course of instruction.”
The appellate court decided that the publishers’ copyright was not infringed. The division bench, headed by Justice Nandrajog, was of the opinion that the term “course of instruction” could not be limited only to proceedings inside a classroom, as stated by the publishers. The court further clarified the difference between ‘reproduction’ and ‘publication’, by reasoning that ‘a publication would have the element of profit, which would be missing in the case of reproduction of a work by a teacher to be used in the course of instruction while imparting education to the pupils.’ Further, the court also noted that various decisions made by courts in other countries could not be applied under these circumstances for a developing country like ours.
This was a landmark case that took a step in the right direction for a developing nation like ours, which is in the process of increasing literacy levels by trying to impart affordable education to all. Consequently, Justice Nandrajog rightly noted: “So fundamental is education to a society – it warrants the promotion of equitable access to knowledge to all segments of the society, irrespective of their caste, creed and financial position.”
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