RISHABH JOSHI & CHHAVISHREE SOMANI | CAN DRAWING PUBLIC ATTENTION TO AN OFFENCE VIA SOCIAL MEDIA CONSTITUTE COPYRIGHT INFRINGEMENT?
The International Society for Krishna Consciousness or ISKCON, founded by A. C. Bhaktivedanta Swami Prabhupāda in 1966, is the society which propagates devotion towards the Hindu deity Lord Krishna. Society has hundreds of temples, centers, and meeting groups with millions of followers worldwide. It is also widely popular by the name of the Hare Krishna Movement and has a wide variety of undergoing and completed community projects.
Recently ISKCON lodged a police complaint against comedian Surleen Kaur and Shemaroo Entertainment Ltd. for vulgar and derogatory remarks against Hindu faith. Surleen made remarks on Lord Ganesh, a Hindu deity, and then went on to draw a link between ISKCON and porn in her stand-up video which went viral. This triggered a backlash from the Hindu community and came in the knowledge of ISKCON which decided to take a legal action. The controversy took an interesting turn when the Vice President of ISKCON, Radharam Das posted the police complaint and subsequently the derogatory portion of her video on his Twitter account. Twitter removed the video and also locked the account of Radharam Das for alleged violation of Shemaroo’s copyright. Although the account was unlocked after a while, the video went missing as it was brought down from all the net sources by Shemaroo following an unconditional apology to ISKCON for the remarks made in the stand-up which was accepted, calling off the issue.
The question that arises in such a situation is whether a copyrighted work being shared on social media, merely for the purpose of bringing it to the attention of people or police, an offence/violation of any law results in the violation of Indian Copyright Laws.
Indian Copyright Act and the Fair Dealing doctrine:
Section 51 of the Copyright Act states what shall result in an infringement of copyrighted material. Section 52 of the Act, on the other hand, lays down the exceptions to such infringements. Section 52(1)(a) enunciates what shall amount to “fair dealings” which are immune to infringement proceedings. Sub-section 1(a)(ii) of section 52 provides that the act of subjecting a work to review or criticism does not amount to infringement of the copyright. However, a definition of “fair dealing” is not provided in the texts of the legislation.
The doctrine of fair dealing was first discussed in Kartar Singh Giani v. Ladha Singh. The High court held in the case that the following two points need to be taken into consideration before arriving at a decision in cases involving fair dealing:
1. There must be an intention to compete with the owner of the copyright and also to gain profit out of the copied content to constitute infringement.
2. If the motive behind the infringement is not unfair or improper, the dealing should be considered fair.
The portion of the video uploaded by Radaharam Das was not accompanied to attain any monetary benefits or with any other improper motive behind it but to draw the attention of the public towards the derogatory remarks made by the comedian. Thus it seems more like criticism which is well covered under section 52 of the Copyright Act. It has been further held in Civic Chandran and Ors. v C. Ammini Amma and Orsthat copying for the purpose of criticism does not amount to infringement and it falls under the label of “fair dealing”. Based on this finding the court dismissed an application for the injunction of a parody.
It is also pertinent to note that in India there are no defined guidelines as to a threshold of content beyond which it shall be deemed infringed under the copyright laws. It is a qualitative factor that is decided on a case to case basis by the Court and it usually involves measuring the economic impact on the creator of the content. In the present case, however, the whole point of economic impact does not arise as the video was removed from everywhere on the internet by Shemaroo itself. Further, only that portion of the video that was of derogatory nature was uploaded on the twitter handle to bring into light the remarks that were made and this did not entail any substantial reproduction.
Freedom of expression v. rights of the copyright holder
In the case of Wiley Eastern Ltd. & Ors. v Indian Institute of Management the Delhi High Court had laid down that the main purpose of Section 52 of the Copyright Act is the protection of the freedom of expression granted under Article 19(1) of the Indian Constitution which shall, in turn, protect research, private study, criticism or reporting of events. The same was reaffirmed by the Delhi High Court in Super Cassettes Industries Ltd. vs Hamar Television Network Pvt. Ltd. However, such reporting or criticism, if done with the intention of commercial profit falls beyond the ambit of fair dealing and constitutes infringement.
Conclusion
Thus, in our opinion, uploading copyrighted content to draw the attention of the public towards a violation of law or an offence does not result in infringement of copyright. It is well covered within the exceptions to infringement given in section 52 of the Copyright Act read with Article 19 of the Constitution of India. Specifically speaking of the ISKCON- Surleen Kaur/ Shemaroo controversy, there appeared to be no locus standi for locking the account and alleging copyright violations as the motive was simply to draw attention towards the disparaging remarks made on the society and the Hindu deity. There existed no scope of making any pecuniary gains or taking away the profits from the creators as the video had been already deleted from all the web sources by the company itself. And lastly, there was no ‘substantial reproduction’ but only the derogatory parts were uploaded while the video was already submitted to the legal authorities as a ‘proof of action’, as claimed by Radharam Das in his post. Hence there appeared no grounds for labeling the uploading of the video as a violation of the Indian copyright law.
Rishabh Joshi and Chavishree Somani are the fourth-year students of Gujarat National Law University, Gandhinagar. They can be reached at rishabhjoshi67@gmail.com and chhavishreesomani@gmail.com respectively.
Photo Source: wired.com
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