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Role of Copyright Law in the Media Industry

By Megan Carvalho

What is Copyright?

Copyright is a form of Intellectual property that gives its owner exclusive rights to reproduce, publish, sell, or distribute a creative work. Copyright relates to literary and artistic creations, such as books, music, paintings and sculptures, films and technology-based works (such as computer programs and electronic databases). In certain languages, copyright is referred to as authors’ rights[1]. Copyright in India for literary, dramatic, artistic and musical works last for sixty years after the death of the author, while copyright for cinematographic films, photographs and sound recordings last for sixty years.

Unauthorized reproduction, importation or distribution either whole or of a substantial part of the work protected by copyright is called copyright infringement. Section 51 of the Copyright Act, 1957 deals with infringement of copyrights. However, all unauthorised use of copyrighted works are not infringement as certain acts are not considered to be infringement of copyright. They are treated as fair dealing of copyright work, such as, private and personal use, criticism or review, and reporting of current events and current affairs.[2]

Copyright and the Media

Media of all types, TV, radio, film, music, advertising, press, publishing and even the internet, are regulated by various different laws and statutory and non-stautory bodies. While the freedom of speech and expression guaranteed by Art 19(1)(a) of the Constitution of India broadens the scope of the media, laws such as the Press And Registration Of Books Act, the Cable Television (Regulation) Act, the Copyright Act, and even the Indian Penal Code lay down certain restrictions on the media industry.

Copyright Law plays a great role in the media industry, since the owner of an original creative work holds the exclusive rights to reproduce, copy, publish, broadcast and even translate or adapt his work. The economic benefit given by virtue of a copyright provides an incentive to the author to create new works and protect them against infringers, encouraging new and creative works by many different people. Thus, the media industry is very much affected by the provisions of the copyright laws and the exceptions provided under it.

Copyright and Press Media

Press Media is mass media that delivers news to the public. This includes print media (newspapersnewsmagazines), broadcast news (radio and television), and more recently the Internet (online newspapers, news blogs, news videos, live news streaming, etc.). Press media is concerned with facts, so not all press is copyrightable but among those that are, the written works such as newspapers, news-magazines and blogs are copyrighted as ‘literary works’, while TV news broadcasts and news videos can be considered ‘Cinematographic films’[3], and radio broadcasts and news podcasts as ‘Sound recordings[4]’ under the Copyright Act.

Works that are not creative or original cannot be copyrighted, so, news, facts or information cannot be copyrighted as they have not originated from the author (even if he was the one to discover them). While the news itself cannot be copyrighted, a copyright can exist in the expression of that news[5]. Copyright in India only protects original and creative expressions of ideas and not ideas themselves.[6] Even Article 2(8) of the Berne Convention for the Protection of Literary and Artistic Works 1886 excludes the protection for “news of the day or to miscellaneous facts having the character of mere items of press information.”

The reproduction or publication of anything in the public domain does not amount to infringement of copyright[7]. Therefore, if a person gains knowledge of an event and creates news item or publishes an informative story on an online blog or shares a report, perhaps on Whatsapp or Twitter, he cannot be said to be violating any copyright as long as he does not copy anybody else’s creative expression.

Copyright and Advertising

Advertisements are paid, non-personal, public communication promoting causes, goods and services, ideas, organizations, people, and places, through means such as direct mail, telephone, print, radio, television, and internet.[8] They serve a dual purpose, first, they inform the consumers about the product, giving information about price and potential performance, secondly, they persuade consumers to buy their product by various means such as attractive captions, slogans, characters, repetition etc.

Advertising is a very fast growing and highly competitive industry, where using intellectual property laws to protect the advertisements is of utmost significance. The copyright law is of relevance not only to the advertisers and advertising agencies, but to the creative persons such as visualizers, art directors, copy script and slogan writers, performers and so on, who are engaged in creating valuable advertising property.

Like all other creative work, for an advertisement to be copyrightable it must be original[9], must involve some form of expression and not be just an idea (there is no copyright for ideas)[10], it must not be from the public domain[11] and must involve some sort of labour, skill and capital[12]. If these conditions are satisfied a copyright can be given to an advertisement of any type, an advertisement has various components involving literary, artistic, dramatic, musical skills each of which may be protected under the classes of work mentioned in section 13 of the Copyright Act, 1957.

Catalogues, brochures etc. fall under the head of literary works and copyright subsists in them. Courts have on a number of occasions held that copyright subsists in trade advertisements and catalogues. In Collis v. Carter[13] it was held that copyright subsisted in a dry list of ordinary medicines sold by a chemist, arranged in alphabetical order, which had required labour, expense and trouble, but no literary skill in its compilation. In Maple and Co. v. Junior Army and Navy Stores[14] an illustrated catalogue for advertisement and not for sale was held to be a book and subject matter of copyright. It is always open to doubt whether the component parts of the catalogue are original but a catalogue is generally a compilation upon which the compiler has exercised skill and judgement[15].

While advertisements printed in newspapers or magazines or even on the internet may contain written material, copyright does not protect names, titles, individual words, short phrases, and slogans. Words cannot be given copyright even if the in question is an invented word[16], though it may be protected by trademark.

TV commercials and advertising films can be included in the category of cinematographic films as defines in section 2(f) of the Copyright Act, 1957. In R.C. Products Ltd v. S.C. Johnson Ltd.[17], where there was an adaptation of the elements of advertisement or get up by the respondent and there was material on record clearly suggesting that the subsequent TV commercial was a copy of the earlier one, the court passed an injunction order against the respondent in a suit for infringement of copyright.

Radio Jingles may be copyrighted as a sound recording according to section 2(xx) of the Copyright Act. With regard to musical works in advertising, using familiar songs or catchy music in the advertisement is an effective marketing strategy and thus many advertisers use licensed copyrighted music. In the case of William Music v. Pearson Partnership[18], an advertising agency produced a TV advertisement for a bus company, which parodied the lyrics and music of “There is Nothin’ Like a Dame” from Rodgers and Hammerstein’s musical “South Pacific”. The plaintiffs sued the respondent agency. The judge held that no special rules applied to parodies when it came to copyright and that there was infringement of copyright held by the plaintiffs in the music.

Advertisements are generally creative works created by many people in the employment of the advertiser, therefore, in the absence of an agreement to the contrary, the employer will be the owner of the copyright. Generally, in case of an employer-employee relationship the copyright lies with the employer, while in case of an independent contractor the copyright lies with the author.

Copyright and the Internet

The Internet has become a vital platform for delivering digital content such as movies, music, books, news, and software. The global reach of the Internet enables digital content to be nearly instantaneously delivered to any part of the world, meaning that international barriers are significantly reduced or eliminated in the case of digital content. Which means that copyright is a very important mechanism for creation and dissemination of digital content. However, the ubiquity of the internet also means that copyright infringement and online piracy is easier than ever.

The Copyright Act, 1957 gives certain rights to the owner and lays down the provisions relation to the infringement of copyright, but makes no provision as to whether such infringement occurred in cyberspace or in physical world. However, the internet is a very different type of media, due its wide accessibility, the ability to disperse information to a huge audience almost instantaneously at a cheap cost, and the difficulty in telling apart the original and the copy, which makes it difficult to apply the traditional theories to the cyberspace.

While it is clear that reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public would amount to the copyright violation under the Act even on the internet, in cases of copyright violations like in linking, framing and in-lining there is no reproduction of any copyrighted work.

Linking means connecting two web pages on the internet. The user is provided for an access of a website through the original site. It is of two main types, surface linking and deep linking. In surface linking, the site provides the link to the homepage of another site. In deep linking, the site offers a link to the inner pages of the website, bypassing the homepage. Deep linking can amount to copyright infringement as such a hyperlinker’s actions can amount to ‘communication to the public’[19]. In the Shetland Times Ltd. v. Dr Jonathan Wills and Zet News Ltd.[20] both parties offered Internet-based news services. The “Shetland News” reproduced verbatim a number of headlines from the online edition of the Shetland Times as hypertext links to the corresponding news articles which led to users bypassing the front page of the Shetland Times’ web site and reading only the linked texts. It was argued that both their web site and that of the defenders were cable programmes, and that the defenders infringed copyright under s20 of the Act[21] and the Court granted an interim injunction for Copyright protection.

Framing is the juxtaposition of two separate Web pages within the same page, usually with a separate frame with navigational elements. It is generally viewed as stealing another website’s content, however, framing does not directly reproduce or distribute any copy of the original web page. Therefore, because case law has not been developed definitely regarding framing, it is more likely to be regarded as copyright infringement if copyrighted material is modified without permission or if customers are confused about the association between the two sites[22].

“In-lining” is the process of displaying a graphic file on one website that originates at another. Instead of copying the elements to the composite page, the elements are linked in by “pulling in” graphic or image files from another site and displaying on the composite Web page. According to section 14 and 51[23], reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation, but the person who employs an in-line link on his site is not causing any reproduction of the copyrighted content. However, in-lining creates moral issues as Section 57 of the Copyright Act, 1957 allows the copyright author to claim authorship of the work and provides that author of the copyrighted work has a right to see that his work is not being distorted, mutilated or modified. Therefore, the courts to decide upon the legality of in-lining from case to case. In case an in-line link amounts to aiding in distribution or communication with dishonest intentions, the courts will come forward and declare such it illegal.

Conclusion

Media is a broad and ever-changing field, especially with the advent of the internet, and since the media is made up of much creative expression and labour, copyright plays a great role in this industry. What is and isn’t copyrightable, what constitutes infringement and how enforceable copyright is, all greatly influence how media is made and consumed. Therefore, since copyright plays such an important role in the media industry, it is imperative that copyright laws stay abreast with the times and provide a clear path for the equitable development of the media industry.

[1] Understanding Copyright and Related Rights, WIPO, 2016

[2] Sec. 52(1)(a) of the Copyright Act, 1957

[3] Sec. 2(f) of the Copyright Act, 1957

[4] Sec. 2(xx) of the Copyright Act, 1957

[5] Springfield v. Thame, (1903) 89 LT 242 at 243

[6] RG Anand v. Delux Films, (AIR 1978 SC 1613)

[7] Eastern Book Company v. D.B. Modak (2008) 1 SCC 1

[8] advertisement (ad). BusinessDictionary.com. WebFinance, Inc. August 16, 2020, <http://www.businessdictionary.com/definition/advertisement-ad.html>.

[9] Cramp & Sons Ltd v Frank Smythson Ltd [1944] AC 329

 

[10] RG Anand v. Delux Films, (AIR 1978 SC 1613)

[11] Eastern Book Company v. D.B. Modak (2008) 1 SCC 1

[12] Mishra Bandhu Karyalaya And Ors. vs Shivratanlal Koshal AIR 1970 MP 261

[13] Collis vs. Carter [1898] 78 LT 613

[14] Maple and Co. vs. Junior Army and Navy Stores [1893] 21 Ch D 369

[15] Lamb v. Evans (1893) 1 Ch. 218.

[16] Exxon Corp. v. Exxon Insurance Consultants International Ltd [1982] Ch. 119

[17] R.C. Products Pty., Ltd., vs. S.C. Johnson Pty. Ltd., 26 IPR 98 (Federal Court of Australia)

[18] William Music vs. Pearson Partnership [1987]FSR 97

[19] Section 2(ff) of the Indian Copyright Act, 1957

[20] Shetland Times Ltd v Dr Jonathan Wills and Zet News Ltd ,(1997) FSR 604, 1997 SLT 669

[21] Copyright, Designs and Patents Act 1988

[22] Section 57 of the Copyright Act, 1957

[23] The Copyright Act, 1957