Copyright / Plagiarism

IN Press Laws Guide | 17/09/2012

What is a copyright? What sort of content can be copyrighted?

Answer: Copyright is a branch of intellectual property rights that protects original works of authorship. A copyright over some material generally implies that the copyright owner has the exclusive right:

To reproduce the work
To issue copies of the work to the public
To perform the work in public
To communicate the work to the public.
To make cinematograph film or sound recording in respect of the work
To make any translation of the work
To make any adaptation of the work.

Copyrights are granted for literary, dramatic, musical and artistic works. Software codes fall within the ambit of literary production.

1. If content is not marked with a copyright mark, is it copyrighted?

Answer: It is a myth that content must be notified as copyrighted for it to actually be so. Copyright accrues by virtue of authorship, which means that regardless of whether there is a public indication of copyright or the copyright has been registered, the exclusive rights of the author exists.

2. Under what circumstances can I use copyrighted content without permission from the copyright holder?

Answer: Some of the common situations that are treated as exceptions to copyright are:

Factual material is open to public inspection
Act was done for Parliamentary/judicial proceedings
Acts done in pursuance of ends specifically authorised by statute like advancement of education, library, research, copied in the course of instruction, performance in classroom, broadcast recorded for educational use
Protection of public’s right to be informed through photographs, news shots, reporting of events
Use for the purposes of criticism or review

3. What is fair use?

Answer: The doctrine of fair use seeks to balance out societal interests against the exclusive rights of the copyright holder. Section 52(1)(a) & 52(1)(b) of the Indian Copyright Act are most pertinent in this regard. They allow for fair dealing for research, study, criticism, review and news reporting, wherein copyrighted material can be used without permission. The Act has a widely-worded clause for fair use, yet it is important to note that the rationale behind the clause is that society benefits more from the copyright infringement than from the grant of the exclusive right to the author in that situation; this implies that your use of copyrighted material must be a provable social benefit and it must credit the copyright holder. Further, the degree to which copyrighted content is used is also material to a fair use defence; large swathes of unaltered content being quoted would probably invite scrutiny.

The Copyright (Amendment) Bill, 2012, widens the scope of fair use by including all material (except computer programmes) as opposed to only “literary, dramatic, musical or artistic works” which were covered before. This implies that videos and sound recordings too, will now be covered by the fair-use exception.

4. Is all journalistic writing covered by the fair use exception by default?

Answer: There is no explicit provision permitting all journalists to use copyrighted material without permission in their work. However, the fair use exception does mention usage of copyrighted work for the reporting of current events. A test commonly used to determine whether a certain usage would fall within the exception or not is:

(a) Is the new use of copyrighted material “transformative”—i.e. reusing for a new purpose rather than repeating the use for which there is an existing market?

(b) And if so, is the amount used appropriate (even if it’s 100 percent) to the new use?

Therefore, journalistic writing would largely be covered by the doctrine of fair use; however, with more material being copyrighted and greater chances of facing copyright infringement notices, it might be practical to check if your use of a material passes the test.

5. Can I be held criminally liable for copyright infringement?

Answer: Yes. Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act.

The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. one lakh.

6. What do I do if I am threatened with legal action by a copyright owner when I have not, in reality, infringed the owner’s right?

Answer: If a copyright holder in any manner threatens you with legal proceedings or liability, otherwise, regarding an alleged infringement of copyright you could institute a declaratory suit that the alleged infringement to which the threats related was not in fact an infringement of any legal rights of the person making such threats and you may, in any such suit –

obtain an injunction against the continuance of such threats; and
recover such damages, if any, as you have sustained by reason of such threats.

7. If I am the first to report on an issue can I claim copyright over the event and, therefore, damages from those who report on it after me?

Answer: No! The Bombay High Court in Indian Express Newspaper (Bombay) Pvt. Ltd. v. Jagmohan (AIR 1985 Bom 229) emphatically held that there can be no copyright over happenings and events. It said that the ideas, information, natural phenomena; and events on which an author expends his skill, labour, capital, judgment and literary talents are common property and are not the subject of copyright. Copyright, however, can be obtained for the form in which this material is expressed.

8. What are take-down notices?

Answer: Many jurisdictions (such as the USA, the European Union, Australia, etc.) have devised this mechanism to regulate content on websites that host material from various sources (third parties). If you are a copyright holder and you feel that some material that has been uploaded infringes on your copyright, you can send the host a ‘take-down notice’ asking them to disable access to the infringing material. The host is usually required to inform the creator of the content of the notice. The person who has uploaded the content can then decide whether to file a counter-notice or not, failing which the material is blocked for access to the public. (For more details: http://brainz.org/dmca-takedown-101/)

The Copyright (Amendment) Bill emulates this concept. On receiving a take-down notice from an ‘aggrieved’ party, the host must disable access to the material for a period of twenty-one days or up to the period mandated by a court of competent jurisdiction. In case no court order is received in twenty-one days, access can be provided again.

9. What constitutes plagiarism?

Answer: Plagiarism is commonly defined as “the use of another’s information, language, or writing, when done without proper acknowledgment of the original source.” It is viewed, in the present day, primarily as an ethical wrong as the stress is on the appropriation of credit for work that is not your own.

10. Is plagiarism per se illegal?

Answer: No law in India makes plagiarism illegal. It is only when plagiarism constitutes a copyright infringement that it is illegal. It is possible to copy matter that is in the public domain (say, Shakespeare) and plagiarise despite your act being legal.

Further reading: http://www.altlawforum.org/node/248