Analyse the issue of Fair Dealing / fair use as not infringing the Copyright Act

Abhishek Varughese (84)| Anu Radhakrishnan (94) | Debapriyo Banerjee (104) |

KV Saurabh Kamalakaran (114) | Nikhil Saraf (124) | R Balaje (134) | Shradha Shivnani (144) | Swati Sachdeva (154)

(1) Delhi High Court - Judgment 21st Aug, 2012 India TV Independent News Services Pvt. Ltd & Ors v Yasraj Films Pvt Ltd.

(2) Saregama India Ltd. v Viacom 18 Motion Pictures & Ors. (March 2013)

MEDIA LAW & ETHICS

Analysis of the issue of Fair Dealing / fair use as not infringing the Copyright Act using the cases:

Two suits were initiated against India TV by Yashraj Films Pvt. Ltd., one for using a line from a popular Hindi song in an advertisement broadcast by the entity and the other for airing a program where Vasundhara Das, a renowned playback singer, sang nine stanzas from

songs which had made her famous.

Appellant Respondent

India TV Independent News Parties Yashraj Films Pvt. Ltd.

Ms. Pratibha M. Singh with Ms. Ujjwala Jeremiah and Ms. Chandrika Gupta

Main Advocate Mr. Pravin Anand with Ms. Geetanjali Visvanathan

• Considering the 5 factors of de minimis, the damage done is trivial.

• If a singer in a chat show were to sing, as long as the singing duration is limited to a minute or so at a time, it

would be a case of de minimis use and hence the appropriation of the lyrics & sound recording would not

constitute an actionable violation of the copyright in the sound recording.

Arguments

• Use of a part of the song “Kajra Re” (copyright owned by Yashraj Films) in an advertisement broadcasted by

India TV • For a programme “India Beats” on India TV the singer performed in full or in part, nine stanzas from songs that whose sound recording rights were not hers (7 of them

were of Yashraj Films

India TV Independent News Services Pvt. Ltd & Ors v Yashraj Films Pvt Ltd.21st August, 2012

BRIEF SUMMARY (Case 1)

The Single Judge of the Delhi High Court had restrained India TV and opined that a derivative copyrightable work such as a soundrecording cannot be appropriated. It is against the said order of the Single Judge that India TV had filed appeal in the Division

Bench of the High Court. It is however with reference to the legal maxim de minimis non curat lex (as a defense in copyright violation) the present case was discussed by the Court. The court held that that the party had not infringed the copyright based on

the defence of de minimis.

Analyse the issue of Fair Dealing / fair use as not infringing the Copyright Act

Plaintiff Defendant

Saregama India Ltd. Parties Viacom 18 Motion Pictures

Mr. Pratap Chatterjee, Senior Advocate and Mr. S. N. Mookerjee, Senior Advocate

Main AdvocateMr. Jayanta Kumar Mitra, learned Senior Advocate and

Mr. Tilak Kumar Bose, leaned Senior Advocate

• Saregama India Ltd. owned the copyright for the soundtrack as well as lyrics for the movie 'Aradhana' and

by extension of the song 'Mere Sapno Ki Rani‘• Bollywood motion picture 'Special 26' had infringed the

copyright by using the song without permission in the movie - Anupam Kher sings the first few words (out of

tune) of the song in one of the sequence

Arguments

• There was no infringement in the music since the words were not narrated in the particular melody of

the original• Nobody has copyright over those words because those

words are used very commonly all over our country• The use of less than 7 seconds was de minimis and not

worthy of a legal claim

A few words of a famous song [Mere Sapno ki Rani, Aradhana] whose copyright lay with Saregama India Ltd. had been used in Special 26, A bollywood movie. Saregama proceeded against Viacom on the grounds that Viacom had infringed its copyright in

the lyrics and music of the classic song.

Saregama India Ltd. v Viacom 18 Motion Pictures & Ors. 1st March, 2013

Hon’ble Calcutta High Court in Saregama Limited Vs. Viacom Limited denied Saregama relief on the grounds that there was no infringement in the music since the words were not narrated in the particular melody of the original song and that there

was no originality in just the words.

BRIEF SUMMARY (Case 2)Analyse the issue of Fair Dealing / fair use as not infringing the Copyright Act

Saregama India Ltd. v Viacom 18

Motion Pictures & Ors.

CASE ANALYSIS

As per our analysis the case was taken up from three otherpast references:

•Midas Hygiene Industries Pvt. Ltd vs. Sudhir BhatiaAnd Ors. On January 22, 2004

•R.G.Anand vs. M.S.Delux Films & Ors.

•Saregama vs. Eros International Media Ltd.

•A media content can be said to be a copy of another,only if a substantial part of the former media content findsplace in the reproduction

•One of the surest and the safest test to determine whetheror not there has been a violation of copyright is to see if thereader, spectator or the viewer after having read or seenboth the works is clearly of the opinion and gets anunmistakable impression that the subsequent work appearsto be a copy of the original. [249 C-D]

Based on the above factors, Saregama India Ltd. was justified in filing the case, however due to the trivial nature of

the matter, the court was correct in dismissing the case

India TV Independent News

Services Pvt. Ltd & Ors v Yashraj

Films Pvt. Ltd.

Issue of part of popular song being used in advertisement:The court held that the party had not infringed the

copyright, finding that the purpose of the advertisement

was to create public awareness and harped on the de minimis defence- only five words were used, which the judges considered too trivial to warrant an actionable

claim. There was also no evidence of whether it was a paid advertisement or whether the advertisement was made in

the context of social corporate responsibility. Also if the purpose was commercial, the respondent would have

charged Rs10,000 and the court argued that such an amount was trivial when compared to cost of adjudication.

Issue of a popular singer singing various songs that she had performed as playback singer but didn’t have rights of

on a TV chat show:The court held that the singing "consumed less than 10

minutes" of the total show time and the aim was to highlight the achievements of her life as a singer, relying on

the de minimis defence.

Analyse the issue of Fair Dealing / fair use as not infringing the Copyright Act

Saregama India Ltd. v Viacom 18

Motion Pictures & Ors.

CASE ANALYSIS

India TV Independent News

Services Pvt. Ltd & Ors v Yashraj

Films Pvt. Ltd.

Is there a development of the order?

NO, the case has not seen any development since

Is it a reinforcement of the previous order ?

In the judgement, I.P. Mukerji (Hon’ble judge) refers to the de minimis clause on the grounds of which the

Division Bench of Delhi High Court passed the verdict on the India TV Independent News Services Pvt. Ltd & Ors v Yashraj Films Pvt. Ltd.case. It said that the copyright infringement is trifling or minimal and that the Court should ignore it.

Is there a development of the order?

There has been no development of this order since.

Is it a reinforcement of the previous order ?

Yes, the case is a reinforcement of a previous order where the Single Judge of the Delhi High Court had ruled in

favour of Yashraj Films Pvt. Ltd. and restrained India TV saying that a derivative copyrightable work such as a sound recording cannot be appropriated . This judgement was later challenged by India TV which led to the present case.

What differentiates the orders from each other?

The major difference between the two cases was that The Calcutta High Court did not apply the principles laid down by the Delhi High Court to conclusively decide if the use of few words of a song could deploy the de minimis defence for the

Saregama India Ltd. v Viacom 18 Motion Pictures & Ors. Case while, The Delhi High Court gave the decision after considering the 5 factors of the de minimis clause.

Analyse the issue of Fair Dealing / fair use as not infringing the Copyright Act

TEAM ANALYSIS

Fair Use / Fair Dealing

• Indian Context According to Section 52 of the Copyright Act 1957, certain acts are not to be infringement of Copyright

• Fair Use is not defined in the Copyright Act, 1957. Further Section 52 (1) deals with, fair dealing as a defenseapplies only to literary, dramatic musical or artistic work. It should be noted that fair dealing applies only with

respect to work and not to reproduction of the work

The Copyright Act, 1957:

• Copyright is a form of intellectual property that gives the author of an original work exclusive right for a certain time period in relation to that work

• A copyrighted work my be used under certain conditions:• Public Domain• Permission• Legal Exception

• Fair Use

Arguments FOR de minimis

The fair use concept is a bad theoretical fit for trivial violations

Fair Dealing and Fair Use in the context of Section 52, The

Copyright Act, 1957

A de minimis analysis is much easier

A de minimis determination is the least time consuming and it is in the interest of the parties and the courts to use it. Again this is a

valid point since litigations involving fair use have dragged on for ages in the past.

De minimis Definition

De minimis is a Latin expression meaning about minimal

things, normally in the locutions de minimis non

curat praetor ("The praetor does not concern himself

with trifles") or de minimis non curat lex ("The law does not

concern itself with trifles)

Analyse the issue of Fair Dealing / fair use as not infringing the Copyright Act

TEAM ANALYSIS

Fair Dealing and Fair Use in the context of Section 52, The

Copyright Act, 1957

The development in technological infrastructure and the multifunctional character of the information and communication technology eases copyright violation which may lead to rise in trivial disputes. Clarification

regarding the aims and mechanism of the maxim have therefore assumed significance. The courts and copyright office have to carefully analyse the loopholes existing in the law prevailing in relation to de minimis

and copyright law in India so that minimum standards are set on the grounds of which the size of legal violation

and subsequently the size of harm caused due to the same can be measured.

What quantity of copying is below the threshold of actionable copying?

Under what circumstances the maxim should be applied?

What can be considered as trifling, unimportant and insufficient?

Questions raised against de minimis

CONCLUSION

Analyse the issue of Fair Dealing / fair use as not infringing the Copyright Act