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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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 3^rd, 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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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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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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