Author: K. Sri Hamsa, IV year of B.A.,LL.B.(Hons.) from DSNLU, Visakhapatnam
Co-author: Sri Vaishnavi.M.N, IV year of B.A.,LL.B.(Hons.) from DSNLU, Visakhapatnam
Any creative invention of mind or innovative inventions of mind can be known as the Intellectual Property for starters. It can be new music, design, or a specific product which is a new invention and is a direct outcome of mind. Now, it is a general tendency of a human being to copy or take whatever he/she is unable to procure, let it be a resource or a design or maybe we could also go to an extent where a human being couldn’t be able to procure an object or an idea which was invented too.
That is a juncture of thought when he/she tries to obtain it by force. Law, to a greater extent, protects the civilisation from chaos. As UNESCO states “War begins in the minds of men”[i]and also it had given various approaches to create peace and harmony in the minds of men and women which can be observed in its preamble itself.[ii]Today, it is the same mind that the law itself is trying to protect, the same mind, but one with innovation.
As the 26th United States President, Theodore Roosevelt has stated that “No man is above the law, No man is below it; nor do we ask any man’s permission when we ask him to obey it,”[iii]Law is a social instrument which is a powerful one to win over chaos. It is an authority to which everyone is bound to be liable to. Having said the greatest prominence, the latest laws have been to a greater extent developed in such a manner that it has also dealt with Intellectual Property.
After a higher deliberation, we could determine that Intellectual Property, especially Copyright, is an outcome of Innovation and Creativity consisting of concrete ideas which needs to be protected in order to avoid the wars in the minds of men of today’s timeline. Intellectual Property is the foundation of almost every new element which seems to be providing an ease of lifestyle for all the individuals, ranging from the software in our phones to the designs of various products we use.
However, ever since the earliest timelines, this optimistic view towards Intellectual Property was never a wholesome aspect. The third United States President, Thomas Jefferson has opined specifically on Intellectual Property that “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”[iv]
Speaking in a broader and modern sense today, Thomas Jefferson actually sounded inclined towards open-source licensing which we follow today in various types of information databases. We could also approach it in a very orthodox manner by limiting his thought to the concept of “idea” itself. Either way, this is some way we could sense the evolution in Intellectual Property.
The Million Dollar Question following every innovation is that “Is it in the Public Interest?” Our analysis in the following context deals with the advantages/disadvantages of the evolution of Intellectual Property Rights vastly in relation to the Indian Laws.
Protection of Public Interest Through Fair Use Doctrine
When the issue of Public Interest comes to the debate at a very simple stage, we can state that it can be left to be determined with the interpretation of the law with the compatible facts and circumstances of the case. Now, in a very best-case approach, we could start by analysing the interpretation of the Hon’ble Supreme Court of India when it comes to the protection of Intellectual Property over Public Interest.
During the nascent stages of awareness towards various Intellectual Property Laws and also during the golden period of technological evolution, there has been a rising importance for databases too. And one such technologically innovative approach of a company has resulted in various copyright infringement suits from the company against the respondents who have copied and attempted to distribute its work. In the case of Eastern Book Company v. D.B. Modak, it has been held by the Hon’ble Supreme Court of India in the year of 2007 that the concept of “Minimal Level of Creativity” is still enough for the Appellants to obtain copyright under the Copyright Act.[v]
The Supreme Court has clearly been able to distinguish the concept of “Minimum Originality” with the doctrine of “Sweat of the Brow.” Also, a factor to consider in this regard is that this Landmark Case still might not have addressed the factor of Public Access to the subsisted Copyright. Additionally, it is definitely not the right approach to follow the Fairness Theory and Welfare Theory in an independent manner owing to the primary reason that they both might still be co-dependent in a mixed socialist economy such as India.
However, from another perspective or when we look at it from another angle of this, there were many instances when there is an actual conflict between the Public Access and the Intellectual Property Rights such as the copyrights for a particular text, lyrics etc. which has an extent of innovation in it. Our aim through this blog is to analyse the Intellectual Property law from various dimensions and primarily relate it to the concept of fair use doctrine which has been enshrined in Section 52 of the Indian Copyright Act, 1957.[vi]
In relation to Section 52 of the Act,it is basically essential for us to understand the instances where the issue of copyright infringement arises and at which point exactly does it conflict with Section 52. The first Landmark Case Law which had addressed this issue was in the Hon’ble Delhi High Court in India TV Independent News Service Pvt. Ltd v. Yashraj Films Pvt. Ltd. which took place on 21st August, 2012.[vii]
The Delhi High Court, then, upon the reference of various other Landmark Case Laws in foreign jurisdictions and after the consideration of the Facts and Circumstances of the Case has obtained a four-factor test to be applied to all the cases in the conflict of copyright infringement wherein these 4 factors can also, in another words, be treated as exemptions to the copyright infringement.[viii]
Therefore, if the usage of any copyrighted product falls under the ambit of these four factors, then it cannot be determined that the copyright has been infringed. The four factors are as follows-
The purpose and the character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market or value of the copyrighted work.[ix]
And, as we will see later, fair use is determined on the same four factors in India as it is in the United States. Lastly, the Hon’ble Delhi High Court had discussed in-depth about the Fair Use Doctrine and had dismissed the applications for the interim injunction prayed for with the reasoning that there is an increasing number of inconsequential copyright violations across the country and it is our opinion today that it is a very fortunate aspect that the Delhi High Court has viewed the society’s best interest in the present judgement.[x]
The Delhi High Court has termed three reasons for the rise in the trivial copyright violations which are-
Smaller amount of “Modicum of Creativity” will suffice for a cognizance/grant of copyright.
Presence of Unregistered Copyright. For example, u/s. 15 of the Copyright Act, Designs are deemed to be protected under the Copyright Act up to 50 times of its usage. The owner of that specific design needs to get the design registered for the copyright before exercising exploitation on the design for the 51st time.
Statutory Rights are broader for the copyright holders.
The Delhi High Court has stated that the Fair Use Doctrine is very much important in today’s scenario keeping in mind these trivial copyright violations. The High Court has pointed out that in the absence of a doctrine, even the simplest of the aspects might still be a copyright violation. Therefore, it is from the context of the judgement from the abovementioned Landmark Case Law, we learn that society’s best interests often weigh over the copyright holder who wishes to create a monopoly over his/her inventions.
Genesis of Fair Use Doctrine
The main issue or in another term, the root cause or solution for these Landmark Case Laws regarding the Copyright, which is an actual kind of an Intellectual Property Right can be found in the doctrine of Fair Use. The Doctrine of Fair Use can be historically observed in the United States wherein there were many Landmark Case Laws discussing this aspect in the early 1960s. The Legal Position before the advent of the doctrine of Fair Use was really settled in nature.
Then, the Courts used to interpret which usage constituted Fair Use and which didn’t in the copyright cases. However, with technological advancement, even the most technologically sophisticated infrastructure still has a narrower loophole left behind and also today, we live in a data-sensitive world where, unfortunately, even famous people have their social media accounts hacked.
Therefore, envisaging this advancement as a necessity for stronger measures and to avoid repercussions of various decisions by the Courts in the future, the Royal Council (Congress) in the United States had codified the doctrine of Fair Use and had developed four factors which can also be considered as a “Test” in the simple language to identify if a work has been a fair use and whether it amounts to a copyright infringement or not.[xi]
When we observe the author’s viewpoint about the doctrine of Fair Use in the above-cited article, he has believed that the four factors which determined the nature of fair use in copyright cases are translucent and were not clear at context initially. However, when we see into his views further on, we could observe that the Supreme Court of the United States in the Landmark Case of Campbell v. Acuff-RoseMusic Inc had declared and adjudicated that the result of the issue regarding the aspect of Fair Use in any given case will be dependent on the four factors which have been given by the Royal Council (Congress).[xii]
This Case Law has also been observed by the Delhi High Court in Super Cassettes Industries Ltd. v. Mr. Chintamani Rao &Ors. This Case Law deals with the infringement of copyright of audio and music lyrics wherein the Delhi High Court has time and again emphasised the importance of the four-factor test in order to determine the fair use of a copyright. Still, after an extravagant discussion between us, one question still persists which is “Whether Fair Use Doctrine provides for an unlimited infringement of copyright when it is in conflict with the Public Interest?” for which we would be analysing this aspect in terms of the core Public Interest angle in the further contexts of this blog.[xiii]
Copyright v. Public Interest
Copyright infringement which meets the criteria within the ambit of Section 52 of the Act can be considered as Fair use, for example, copyrighted works can be used for educational purposes but if there is any commercial use under this pretext then the defendants cannot take under the defence of Section 52. “In Super Cassettes Industries Ltd. v. Chintamani Rao[xiv]and Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd.[xv], regarding the defence of fair dealing, the Court applied the "commercial exploitation test”(which is the first factor) and observed that if a publisher commercially exploits the original work and infringes on the copyright in the process, the defence of fair dealing would not be available to such a publisher, even if the book published by him is used, or intended to be used, for research or private study."
To understand the above-mentioned issue and the question of whether public interest can outweigh the rights of the owner, we will analyse the recent case of Elsevier ltd. v. Alexandra Elbakyan,[xvi]where three publishing companies filed a suit against two websites namely Sci Hub owned by Alexandra Elbakyan (herein Defendant No.1), a computer programmer from Kazakhstan and Libgen or Library Genesis (herein Defendant No.2). Most of the publications of the plaintiff companies need a subscription, ensuring that copyright owners/authors receive some credit for the same. Defendant No.1 claims that the objective behind the creation of Sci Hub is to provide a unlimited public access to tens of millions of research papers and it has over 85 million publications while defendant 2 claims that they help a user to find a particular article or book being a links aggregator and it has accessibility to over 85 million journal articles and 2.8 million textbooks.
The plaintiffs contended that they have exclusive rights by means of agreements with the authors/owners of the works guaranteed under “Article 14(a)(i), (ii) and (iii) of the Copyright Act, 1957[xvii]i.e., to reproduce, to issue copies and to perform the work in public or communicate it respectively.” They also contended that the defendants’ acts led to copyright infringement under Sections 51 (a), 51(b)(i), (ii) and (iii)of the Copyright Act[xviii]as they did not have any authority or licence to publish such work and that they affected the owners of the copyright and the publishers violating their exclusive rights with respect to the copyrighted work. They have also invoked Section 65A[xix]and 65B of the Copyright Act[xx]for circumventing the protection of copyright provided under the Act through a technological measure and remove and distribute the information without any authority as such.
The plaintiffs highly relied on the case of UTV Software Communication Ltd. v. 1337 X. to &Ors.[xxi]where the Delhi High Court has declined the idea of “internet exceptionalism” stating that the internet should also be regulated and cannot be excluded from reasonable restrictions. The court has discussed “whether blocking a website dedicated to piracy is against free and open internet” and it was held that the freedom of using and publishing on the internet must be regulated by drawing necessary lines to confine access to such infringing websites. It was added that the freedom and the rights of all the stakeholders must be balanced.
The Court has also explained the idea of rogue websites which are mainly built by sharing content which has been infringed, this includes music and film piracy. It was elaborated that a rouge website can be identified by determining some factors including whether the website primarily aims at copyright infringement, responds appropriately to a takedown notice for copyright infringing content, receives a significant amount of traffic, and posts guidelines on the website to circumvent measures that disable access to the website based on related copyright infringement, and so on.
The Court then defined the criteria for identifying what constitutes a rogue website. Two globally recognized tests for determining a 'rogue website' are compared and contrasted. In developing a criterion appropriate for the Indian setting, the Court considered two competing viewpoints previously adopted by Indian courts in two different landmark cases. In Eros International Media Ltd. &Anr. v. Bharat Sanchar Nigam Ltd. &Ors.,[xxii]the Bombay High Court stated that blocking injunctions against complete websites may only be issued if the Plaintiff provided proof that the entire website comprised of only unlawful or illicit content. In cases where blocking orders were requested, the Bombay High Court established a three-pronged verification test that courts had to follow. In contrast, the Delhi High Court's division bench in Department of Electronics and Information Technology v. Star India Pvt. Ltd.,[xxiii](which was ultimately relied on in the Sci Hub Case) took a more practical, qualitative approach in determining a rogue website as one that is largely infringing. The Court determined that the quantitative approach used to adopt a three-step verification criterion is too cumbersome to copyright owners, particularly in circumstances when websites change URLs after being prohibited. In such a circumstance, finding each violating and infringing URL would be a massive and nearly impossible undertaking for the copyright owner. As a result, the Court determined that the Defendant Websites were rogue. The Court decided that a blocking injunction against the entire website is lawful, but that courts must follow proportionality in doing so. The onus is on the right holders to show that any website sought to be blocked is a 'rogue website' mainly engaged in assisting widespread copyright infringement to the satisfaction of the Court.
The defendants in the Sci Hub Case contended that their acts fall under the exclusive domain of Section 52 of the Indian Copyright Act[xxiv]and it comes under fair dealing as the intention behind the website is to create access to researchers stating that there should be free access to knowledge. Researchers and other people who support the free access of the publications are citing the case of the Chancellor, Masters & Scholars of the University of Oxford &Ors. v. Rameshwari Photocopy Services &Ors,[xxv]also known as the “DU Photocopying case”. In this case, a suit was filed against a photocopy shop in the premises of Delhi University in the context that they are involved in photocopying of the copyrighted work without any authority or license. The suit was rejected by the Delhi High Court stating that the act falls within the ambit Section 52(1)(i) of the Copyright Act as the copies were made for educational purposes.
While the supporters of Sci hub website (citing DU Photocopy case) contend that this also comes within the ambit of Section 52, the opposers contend that exception cannot be claimed as Sci Hub provides copyrighted material for anyone who wants to access and that it might not necessarily be used for educational purposes. However, in Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd[xxvi]the court held that "in certain circumstances, the public interest may be so compelling that courts will not hesitate in injuncting use of even "leaked information" or the right to use the "very words" in which the aggrieved person has copyright, as public interest may require the use of the "very words" to convey the message to the general public. While courts may refuse to issue injunctions based on the concept of freedom of speech, this does not necessarily protect the infringer in a lawsuit brought on behalf of the person who is the rightful owner of the copyright for damages and an account of profits." Interestingly, this concept is a double-edged knife. Even if the courts rely on this precedent and do not grant an injunction order against Sci hub and Libgen, this nonetheless might not be enough to protect from being held liable for the damages caused due the said copyright infringement.
Still there is no judgment delivered as such in the case of Sci Hub. Can Sci-hub not be held liable for copyright infringement with the mere defence under Section 52 of the Copyright Act? Does the Sci Hub website come under the ambit of Fair dealing? Would an increase in the traffic to the Sci-hub website doesn’t commercially benefit the owner? Would this pass the commercial exploitation test or would it still be an exception? The whole objective behind copyright law is to protect the rights of the author/owner and will this objective not be hindered by providing such exceptions under Section 52 especially where there are millions of publications without authorization meaning equal number of copyright infringements? Does the Sci hub objective fall within the ambit of Article 27(1) of UDHR[xxvii]i.e., everyone has right to enjoy and share the benefits of scientific advancement making this a human right issue or does the rights of the rightful author prevail as per Article 27(2) of UDHR[xxviii]i.e., everyone has the right to protection of moral and material interests resulting from scientific, artistic or literary work/production as an author/owner of such work?
These are some of the questions that will only be clearly answered after an interpretation is made by the Hon’ble Delhi High Court. The judgment would also, presumably, clarify the rights and duties of the academic publishers, set guidelines for usage of copyrighted work under Section 52 of the Copyright Act, 1957 and the distinction between piracy and online sharing.
Conclusion
The most awaiting Judgment by the Hon’ble Delhi High Court is the silver lining in our view to analyse the evolution of Indian Copyright Act, 1957 and the concept of Copyright in IP Regime. The socio-legal flavour adds on at a juncture of context in this blog wherein from a certain extent, the copyrights of genuine hard-working researchers are at stake and they are unable to derive the fruits of the seeds sown.
Ultimately, it all boils down to the factor of Public Interest v. Copyright and it is a unique jurisprudence which lies and describes about the prevalence of either one of the concepts which also rests down upon the interpretation of the Hon’ble Delhi High Court. Finally, something that can be agreed upon by the society as a whole is the true saying by Teddy Roosevelt that No man is above the law. In modern terms, under Delhi High Court, it might also be probably understood that No Rogue Website is above the law and has to abide by the same wherein the concept of Public Interest Prevails.
On the other hand, the Delhi High Court might also give greater value and importance to the concept of an “Idea” construed as “Taper” in the words of the 3rd President of the United States of America, Thomas Jefferson, wherein the President gave value to a shared innovation and that such shared innovation has no probability of darkening the civilization in the future prospects.
It is still a wilder ambiguity as to the fact that whether websites like Sci Hub are still a true taper which shares light among the whole research community or is it just another black cat in a dark room, an abstract which is unsolvable?
[i]UNESCO: Building Peace in the Minds of Men and Women, available at https://en.unesco.org/70years/building_peace#:~:text=The%20Preamble%20to%20the%20Constitution,a%20generation%20that%20political%20and. Last visited on 21st January, 2022. [ii]Id. [iii]Stated By the 26th United States President, Theodore Roosevelt, available at https://www.azquotes.com/quote/250981. Last visited on 21st January, 2022. [iv]Stated by the 3rd United States President, Thomas Jefferson, available at https://thetaper.library.virginia.edu/2016/11/02/welcome-to-the-taper.html#:~:text=whole%20of%20it.-,He%20who%20receives%20an%20idea%20from%20me%2C%20receives%20instruction%20himself,receives%20light%20without%20darkening%20me.&text=If%20ideas%20spread%20without%20limit,over%20ideas%20to%20their%20originators. Last visited on 21st January, 2022. [v]Eastern Book Company v. D.B. Modak,(2008) 1 SCC 1, available at https://lawtimesjournal.in/eastern-book-company-and-ors-vs-d-b-modak-and-ors/, Last visited on 22nd January, 2022. [vi]Acceptable use of Copyrighted Material, available at https://singhania.in/blog/acceptable-use-of-copyrighted-material#:~:text=As%20per%20Section%2052(1,creator%20of%20the%20copyrighted%20work, Last visited on 23rd January, 2022. [vii]India TV Independent News Services Pvt. Ltd. v. Yashraj Films Pvt. Ltd., 2012 Indlaw DEL 1663, available at https://spicyip.com/2020/12/sci-hub-and-libgen-up-against-academic-publishers-a-death-knell-for-access-to-research-part-ii.html, Last visited on 23rd January, 2022. [viii]Id. [ix]Id. [x]Id. [xi]Nimmer, David. “‘Fairest of Them All’ and Other Fairy Tales of Fair Use.” Law and Contemporary Problems 66, no. 1/2 (2003): 263–87. http://www.jstor.org/stable/20059179., Last visited on 24th January, 2022. [xii]Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S. Ct. 1164 (1994). [xiii]Super Cassettes Industries Limited Versus Mr. Chintamani Rao & Others. LNIND 2011 DEL 3611. [xiv]Id. [xv]Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd., 2011 (45) PTC 70 (Del). [xvi]Elsevier ltd. v. Alexandra Elbakyan, 2020 SCC Online Del 1677. [xvii]Copyright Act, 1957, Sec. 14. [xviii]Copyright Act, 1957, Sec. 51. [xix]Copyright Act, 1957, Sec. 65A. [xx]Copyright Act, 1957, Sec. 65B. [xxi]UTV Software Communication Ltd. v. 1337X.To &Ors.,(CS(COMM) 724/2017). [xxii]Eros International Media Ltd. &Anr. v. Bharat Sanchar Nigam Ltd. &Ors., Suit No. 751 of 2016. [xxiii]Department of Electronics and Information Technology v. Star India Pvt. Ltd., 2016 SCC OnLine Del 4160. [xxiv]Copyright Act, 1957, Sec. 52. [xxv]The Chancellor, Masters & Scholars of the University of Oxford &Ors. v. Rameshwari Photocopy Services &Ors., CS(OS) 2439/2012. [xxvi]Supra xv. [xxvii]The Universal Declaration of Human Rights, Art. 27(1), available at https://www.un.org/en/about-us/universal-declaration-of-human-rights, Last visited on 29th January, 2022. [xxviii]The Universal Declaration of Human Rights, Art. 27(2), available at https://www.un.org/en/about-us/universal-declaration-of-human-rights, Last visited on 29th January, 2022.