Sahil Malhotra
On 13 March 2019, the European Parliament passed the European Union Directive on Copyright in the Single Market Article 13 of the Directive requires online platforms to filter and remove copyrighted material from their websites, and makes these platforms liable for copyright infringement committed by the users. The objective behind this move is apparently to direct revenue from tech giants towards artists and journalists who actually create a lot of the content on the internet.[ii] Although copyright infringers are plentiful on online platforms such as YouTube and Facebook, a particularly interesting set of questions is raised by a relatively recent and particularly millennial form of content development – parodies and memes, which are possibly the biggest users of copyrighted material by volume for creating new content.
A parody is ‘an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect’[iii]. In recent years, the internet has exploded with the use of parodies, which are being used to poke fun at books, movies, pictures and music. Since a parody essentially involves the usage of a part of the material that it imitates, a parodist could possibly be susceptible to a copyright claim, where the original work is protected by copyright.
The Indian government has generally maintained a neutral stance towards parodies, barring a few isolated cases[iv], and has never cracked down on parodies for copyright infringement. Parodies are neither explicitly allowed nor disallowed under the Copyright Act, 1957 (hereinafter ‘Act’). However, they can be said to be included under a category of works allowed under Section 52(1)(a)(ii) of the Act, which provides for ‘criticism or review, whether of that work or of any other work.’ Parodies which criticize an original work essentially serve a social utility, and should thus be protected under the fair use principle of copyright law.
In this piece, I analyse whether a law similar to Article 13 of the Directive would be effective in India. To do so, we must look at whether the parodists themselves would first be liable for copyright infringement. I argue, firstly, that a parody which is made purely for the purpose of entertainment cannot be protected under the fair use principles. Secondly, a parody made with a pure economic objective can be protected, only if it constitutes a sufficient transformation of the original work. Thirdly, a parody does not violate the content creator’s moral rights.
Parodists are clearly aware of the fact that if their parodies do not entertain, they will not be watched. However, can a parodist infringe on a copyright simply to entertain his/her audience? ‘Entertainment’, according to the Chambers Dictionary, is ‘something that entertains or amuses; amusement; a performance or show intended to give pleasure’.[v] In M/s Blackwood and Sons Ltd. & Ors. v. A.N. Parasuraman & Ors., it was held that in order to prove that entertainment is covered within the fair use defence, a parodist has to satisfy two conditions:
He/she must not intend to compete with the copyright holder.
He/she must not make improper use of the original work.[vi]
The first condition is essentially a market substitution test, which stipulates that the parody must not negatively impact the market for the original work, i.e., that the parodist must not intend to compete with the author of the original work in the same market. Thus, if the parodist is trying to use the parody solely as a source of entertainment for the audience, then it is not competing with the original work. The parody cannot substitute the original work, since the two operate in different markets and cater to different target audiences.
The second condition is vague – what constitutes ‘improper’ use of a copyrighted work is unclear. Moreover, it is also vague as to whether a parody, specifically, would fall within the ambit of improper use. Section 52(1)(a)(ii) of the Act talks solely of ‘criticism or review’ as qualifying for fair use. Further, according to the Kerala High Court, so long as a parody copies from the original work in order to criticise it, then this copying does not constitute improper use of the original and qualifies as fair use or fair dealing.[vii] Thus, if a parodist simply intends to entertain through comic effect, and does not actually criticise the original work, then such a parody shall constitute ‘improper’ use, and will not be protected by the fair use defence.
An opposition to the above argument could be that there is a right to entertain as well as a right to be entertained under the right to freedom of speech and expression, as provided by Article 19(1)(a) of the Constitution of India.[viii] Thus, a parodist may argue the exercise of this right in order to justify the objective of making the parody of the original work. However, this justification is unlikely to succeed, since the established principles of fair use in Indian jurisprudence, as well as the test designed to test whether a particular work is protected by fair use principles, do not allow a parodist to use an original work without permission from the holder of the copyright, if it is purely for entertainment. Though the parodist has a right to entertain, this right should not be allowed to override the original maker’s copyright.
The right to freedom of speech and expression is not an unbridled right, with certain reasonable restrictions prescribed in Article 19(2) of the Constitution. Essentially, these restrictions have been provided because society has determined that the benefit of the restriction far outweighs the infringement on the freedom.[ix] A copyright operates in a similar manner. The difference, however, lies in the fact that, unlike the reasonable restrictions, it does not seek to prevent certain forms of speech and expression in order to prevent harm. Rather, it prevents such speech and expression to promote a benefit, i.e. an artist being able to exercise control over their own work.
Admittedly, protection of copyright is not one of the grounds for imposing a restriction on the freedom of speech and expression. However, a harmonious interpretation of the extent of this freedom and of the right of a copyright holder must be made. An absolute freedom of speech and expression – and, by implication, an absolute freedom to entertain – would allow a parodist to publish whatever they wanted, in whatever form they wanted. This necessarily grants them the ability to publish something originally made by someone else, nullifying the existence of the fair use principles. The entire essence of copyright law would be lost if the parodist were to be granted such an unrestricted right to entertain.
Such balancing of intellectual property rights and fundamental rights is already a part of European intellectual property law.[x] The Court of Justice of the European Union (CJEU) has developed a body of law along the same lines, holding that a balance must be struck between the protection of intellectual property rights, and fundamental rights guaranteed by the EU Charter of Fundamental Rights.[xi] Enforcement of fundamental rights cannot be used to circumvent enforcement of copyright protection.[xii] This principle must be adopted into the jurisprudence of Indian intellectual property law as well.
We must therefore conclude that parodists cannot use copyrighted material to create parodies solely to entertain their audience.
Many parodies are made simply for the purpose of expressing opinion or ridiculing something, and the parodist aims to gain nothing more from his/her content. More often than not, however, parodies are aimed at earning their creator revenue. This is evident from the vast amount of literature on the internet on how to make money off uploading videos on YouTube. Whether this revenue is off YouTube views or Facebook likes, the use of a parody for such economic gain cannot be presumed to be unfair use. Firstly, any economic gain to the parodist does not harm the copyright holder. Since the two operate in different markets, the parody cannot reduce the demand for the original work, to its own advantage. Secondly, the parody, admittedly through a reverse mechanism, actually serves to further publicise the original work. Thirdly, at least as far as relatively unknown works are concerned, the parody often serves to cause the original work to gain in popularity.[xiii]
Thus, commercial use of a parody cannot be a conclusive determination of unfair use of a copyrighted material. However, despite this, it seems there is a preference for works created for the purpose of criticism or review under the fair use principle, over those created for economic benefit of the parodist or other commercial purposes. It therefore seems that there is a prejudice against protecting parodies created for commercial purposes under the fair use principle.[xiv]
Unfortunately, there is a dearth of case law in India regarding the commercial nature of parodies. However, since the fair use exceptions in copyright law in India have been derived, to a large extent, from laws in the USA, the judgements from the courts of the USA have persuasive value for Indian courts. In Campbell v. Acuff-Rose Music Inc., the Supreme Court of the United States held that dispositive weight cannot be given to the commercial nature of the parodist’s work. The presumption that the commercial nature of a parody renders it unfair use of the copyrighted material, is incorrect, and prejudiced against the parodist. The court also clarified that the non-profit and educational purpose of a work is only one element of its purpose and character.[xv]
Regarding reproduction of copyrighted works for profit or economic benefit, in M/s Blackwood and Sons Ltd. & Ors. v. A.N. Parasuraman & Ors., a case which was not related to parodies, the Madras High Court stated the following about fair dealing –
“If substantial and vital parts of the works are reproduced, the intention to appropriate to the infringer the labour of others for his own profit is made out and there need not be proof of any independent oblique motive.”[xvi]
The court’s observation, if applied in the context of fair use for parodies, can be construed as meaning that any work with a commercial purpose will not be protected under the fair use defence, unless it injects new content, expression or meaning into the parts of the original work that it copies. This further implies the ‘transformation’ principle, which can be referenced in the case of R.G. Anand v. M/s Deluxe Films, where the Supreme Court of India stated –
“Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.”[xvii]
Therefore, a parody made with a commercial purpose can be protected under the fair use principle of copyright law, as long as the parody sufficiently transforms the original work, and does not just copy substantial or vital parts from it. However, what qualifies as sufficient transformation can be determined only on a case-to-case basis. It is important for a court to take a broad, unbiased view on the issue of commercial purpose of a parody, since copyright infringement for ‘gain in the course of trade or business’ is not subjected to the same mitigation in punishment as are other forms of infringement.[xviii]
Parodies are widely used for mocking a particular piece of work or its creator. However, will a court look favourably upon a parody that simply seeks to mock, in terms of copyright infringement? Within Section 52(1)(a), ‘criticism’ is a term extremely limited in its scope. It is ‘analysis and judgement of the merits and faults of a literary or artistic work’[xix]. Thus, if a parody, which copies substantially from the original work, simply mocks it and does not actually criticise it, then it is possible that such a parody will not be protected under fair use.
This fine distinction can be called the ‘line of creativity’. In the context of a parody, it demarcates where the parodist’s creative application of new ideas and expressions, as well as criticism of the original work, ends, and insult and humiliation of the author of the original work, or the work itself, begins. Clearly, no objective principle can be applied in order to determine whether a particular parody restricts itself to criticising the original work itself, and does not comment on the author. Further, it is nearly impossible to set down any rule with respect to how much copying constitutes ‘substantial’ copying of a copyrighted work. The inquiry to be conducted by the court to determine substantial copying must be left flexible enough in order to account for the different approaches that individual parodists may use.
The intention of the parodist plays an important role in such a situation. In Hustler Magazine v. Falwell[xx], the defendant had explicitly admitted to his desire to assassinate the reputation of the person whom his parody was aimed to criticise. Such an explicit expression of the parodist’s intention is rare, and it can become extremely subjective to decide the parodist’s intentions based solely on the content of the parody.
Section 57 of the Act could possibly be another potential roadblock to parodies being free from copyright infringement. The section grants the author of a work certain special rights, called moral rights, which prescribe that in case someone causes ‘distortion, mutilation, modification or other act’ of the original work, which is prejudicial to the honour or reputation of the author, then the author has the right to restrain such acts or claim damages from the offending party, during the period that the copyright subsists. Now, it is established that a parody is a new and independent work, which only borrows certain elements from the original copyrighted work.[xxi] Thus, it cannot ‘cause’ a mutilation, distortion, or modification of an existing work. It in no way changes anything about the original work itself. For this reason, it cannot be said that a parody commits any ‘action’ under Section 57 in relation to the original work, which insults or injures the reputation of the author. Thus, a parody does not violate the moral rights of the creator.
In light of the above analysis, it is evident that implementing a rule similar to Article 13 of the Directive in India would produce mixed results, since analysing copyright infringement by a parody, by its very nature, is an extremely subjective inquiry. Parodies, when created responsibly, seem to be fall within the fair use principles of copyright law. It therefore follows that online platforms will, more often than not, not be liable for copyright infringement for parodies uploaded onto them. Furthermore, issues with implementation of such a measure are bound to crop up, as is evident from the opposition to Article 13 of the Directive.[xxii] Thus, any such move in India would not exactly achieve the intended objective behind Article 13 of the Directive.
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[i] Commission Proposal for a Directive of the European Parliament and of the Council on Copyright and Related Rights in the Digital Single Market, COM (2016) 593 final (Sept. 14, 2016).
[ii] Matt Reynolds, What is Article 13? The EU’s new divisive copyright plan explained, Wired, April 15, 2019, https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban.
[iii] Oxford English Dictionary, 3rd Edition (2000).
[iv] FP Staff, India’s War Against Internet: Blocking Parody Accounts on Twitter, Firstpost, August 22, 2012, https://www.firstpost.com/tech/news-analysis/indias-war-against-internet-blocking-parody-accounts-on-twitter-2-3606373.html.
[v] Chambers Dictionary, 10th Edition (2007).
[vi] 1959 A.I.R 410 (Mad.) (India).
[vii] Civic Chandran v. Ammini Amma, 16 PTC 329 (Ker.) (India).
[viii] Union of India vs. Association for Democratic Welfare, (2002) 5 S.C.C. 294 (India).
[ix] Aharon Barak, in Proportionality and the Rule of Law: Rights, Justification, Reasoning 77, ¶3 (Huscroft et al. eds., 2014).
[x] Ansgar Ohly, European Fundamental Rights and Intellectual Property, in The Europeanisation of Intellectual Property Law 145, 163 (Justine Pila & Ansgar Ohly ed. 2013).
[xi] See Case C-61/97, Foreningen af danske Videogramdistributører v. Laserdisken, 1998 E.C.R. I-05171; Case C-275/06, Productores de Música de España (Promusicae) v. Telefónica de España SAU, 2008 E.C.R. I-00271; Case C‑70/10, Scarlet Extended SA v. SABAM, 2011 E.C.R. I-11959; Case C‑580/13, Coty Germany GmbH v. Stadtsparkasse Magdeburg, judgement of 16 July 2015; Case C‑484/14, Tobias McFadden v. Sony Music Entertainment Germany GmbH, judgement of 15 September 2016; Case C-149/17, Bastei Lübbe GmbH & Co. KG v. Michael Strotzer, judgement of 18 October 2018.
[xii] Pim ten Thije, Bastei Lübbe: “Fundamental Rights as a defence to circumvent enforcement of copyright protection? No!”, says CJEU, Kluwer Copyright Blog (Feb. 11, 2019, 1.35 AM), http://copyrightblog.kluweriplaw.com/2019/02/11/bastei-lubbe-fundamental-rights-as-a-defence-to-circumvent-enforcement-of-copyright-protection-no-says-cjeu/.
[xiii] Kris Erickson Et Al., Copyright and the Economic Effects of Parody: An Empirical Study of Music Videos on the YouTube Platform and an Assessment of the Regulatory Options (2013).
[xiv] Wariya Lamlert, Fair Use Defence for Parody under Copyright Law, Court of Justice, Thailand.
[xv] 510 U.S. 569 (1994).
[xvi] supra note vi.
[xvii] 1978 A.I.R. 1613 (SC) (India).
[xviii] Section 63, Copyright Act 1957 The Copyright Act, No. 14 of 1957, § 63, India Code (1996) available at http://indiacode.nic.in.
[xix] supra note iii.
[xx] 485 U.S. 46 (1988).
[xxi] supra note xv.
[xxii] James Vincent & Russell Brandom, Everything You Need To Know About Europe’s New Copyright Directive, The Verge, September 13, 2018, https://www.theverge.com/2018/9/13/17854158/eu-copyright-directive-article-13-11-internet-censorship-google.
Sahil Malhotra is a 2nd Year B.A. LL.B (Hons.) Student at National Law University, Delhi.