This article is written by Ankur Saxena who is pursuing a Certificate Course in Intellectual Property Law and Prosecution from LawSikho.
Table of Contents
Introduction
The circulation of E-newspaper was never an issue for newspaper agencies. However, in recent times due to the pandemic situation of COVID-19 various governments have declared the lockdown throughout their country. The Indian government also declared the lockdown on March 25th, 2020, throughout the country. Owing to which the physical circulation and doorstep delivery of the newspaper becomes affected. Anticipating these constraints, various newspaper agencies started providing free trials of e-papers on their websites for reading and even free downloadable PDF’s of the day’s paper.
Free circulation of e-paper & copyright infringement
This created the copyright infringement issue under Copyright Law because of the free circulation of e-paper using social media by individuals, rather than agencies themselves. When various sectors are encountering losses both in terms of demands and profits, the print media industry in India were also affected by it. The agencies have faced a reduction in the number of subscriptions to their newspapers due to the concern of spreading of COVID-19.
In view of this, an Indian daily newspaper ‘Dainik Bhaskar’ published a piece of news stating that downloading and sharing the copies of e-papers is illegal on a social media platform and the group admins and individuals may be held responsible for this illegal distribution. This might be the result of an alleged advisory made by the Indian Newspaper Society to its members. However, this claim is not entirely true since the circulation of free e-papers is not illegal. Therefore, until the e-newspaper is free, any individual can circulate without facing any legal trouble. Per contra, when the user is sharing the complete PDF copy of the newspaper that otherwise would be accessed only after the payment for the cost of subscription, it is not legal.
Classification of E-Papers
The e-papers can be classified into two categories:
(1) One which comes with a user agreement, and
(2) Another which does not come with a user agreement.
The reason to characterize e-papers in these two categories is that it causes contractual obligation to the reader under “Terms of Use” policies. For example, The Times of India e-paper comes under the first category, because it clearly states that the subscription includes:
- Articles can be shared through – email, Facebook & Twitter.
- It does not allow PDF of page/publication to be shared or downloaded.
- Pages cannot be printed or clipped.
Therefore, even if the user receives free access to The Times of India, they are legally bound by these Terms of Use policies of the paper. These terms of use provided by the website can be treated as a form of contract, which is legally binding, when the reader subscribe or use the content of the website of any e-paper, the person becomes bound by these terms of use. It can be understood that the copyright regulations of various newspaper houses and print media is almost the same with a very little difference and specifically prohibit distribution of e-copy of the newspaper. Thus, the unauthorized circulation of e-newspapers is a violation of the contractual obligation and copyright and outside the scope of “fair dealing”.
In the recent suit dated May 29th, 2020 for an injunction against a messaging app Telegram FZ LLC & Ors. by a daily newspaper Jagran Prakashan Limited, the Singh Bench of the Delhi High Court passed an ad-interim injunction, restraining the messaging app for distributing the e-copy of the newspaper through various channels without permission, in violation of the copyright and trademark of the newspaper. According to the plaintiff, his newspaper’s website had a security feature, allowing a reader to read the newspaper in digital form on the website itself and not download it in PDF format. Currently, newspaper readers can subscribe to a physical/print newspaper or read the daily newspaper in digital format on the newspaper’s web page.
It was added that given the current COVID-19 situation, the plaintiff was considering imposing a fee on a digital newspaper in India. It was alleged that some users of Telegram created channels on the platform to share the plaintiff’s papers in PDF format on a daily basis. Such activity allowed its users to download all previous versions of e-papers published in the past, which would otherwise be available only if they paid the subscription fee. The Bench said that the plaintiff made a prima facie case in his favour and imposed injunction.
Legal Position
Section 52 of the Copyright Act of India is in accord with Article 13 of TRIPS (Trade-Related Aspects of Intellectual Property) which says:
“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”.
With the advent of technology in the present era, while the need for “fair dealing” must be upheld largely given public interest, it is important to pay due attention to the latter of Article 13, which states that use does not conflict with new exploitation Should work and should not unduly prejudice the legitimate interests of the rightful holder. As the Court observed, the mass use of PDF copies of e-newspapers on the messaging app leads to loss of visitors to news sites. A large number of visitors to a publishing website can bring greater market visibility and potential subscriptions for the future.
Further, as per Section 14 of the Copyright Act, no person without the permission of the owner of the work has the right to copy, publish or communicate the work to the public. The copyright owner is entitled to sue for remedies, including injunction, damages, profits and delivery of infringing goods/material. The right provided under Section 14 of the Act is not absolute in its nature and is subject to “fair dealing”.
Although the Copyright Act is the only law that deals directly with illegal acts of copyright infringement, Section 43(b) of the Information Technology Act, 2000 is also relevant. Section 43(b) clearly states that if any attempt is made to destroy, delete or alter any information residing in a computer resource, or diminish its value or utility, it is illegal. This person will be liable to pay damages by way of compensation to the person so affected.
The punishment for the crime of copyright infringement is established in section 63 of the Copyright Act. It establishes that any person who knowingly infringes the copyright on work or any other right conferred by the Act, will be punished with imprisonment for a period of not less than six months, but it may extend to three years, and the fine which will not be less than Rs. 50,000 (USD 660) but it can be extended to Rs. 200,000 (USD 2,640). Other criminal provisions are also mentioned in sections 63A, 65A, 65B of the Act.
There are various legal measures available to enforce appropriate laws and their provisions against any form of copyright infringement of copyright law. In addition to issuing a cease and desist or takedown notices, the filing of lawsuits and criminal proceedings to John Doe may also be initiated under Sections 63 and 64 of the Copyright Act and sections 43 and 66B of the Information Technology Act, 2000.
Remedies Available
Even though the law provides various remedies for the newspaper agencies to restrict the illegal circulation of the e-newspaper, the newspaper agencies may also adopt a few of the available measures to prevent this illegal circulation:
- By providing an encrypting e-newspaper PDF copy which can be accessed through a password that the recipient has to enter to read or open the newspaper.
- Implement security for electronic newspaper PDFs with the “Publish Sensitive Information” action, which helps the author protect the file with PDFs to protect or create passwords, and to automatically edit applicable copy and restrictions.
- Create custom security policies to help enforce password protection and PDF permissions, in the same way, every time.
- By including User policies which allow the author/owner to have access to PDFs for a limited time and publish e- newspapers with this user policy applied.
- Revoking and reinstating access to PDF documents in case of illegal circulation.
Finally, the user/reader must understand that an electronic copy of a newspaper received through paid or free subscription is always protected by copyright. Distribution/circulation other than personal use can lead to legal action against the said offender. Same is also valid for messaging apps if they circulate and share content against the terms of use and without permission from the owner.
Conclusion
Therefore, there are several steps that newspaper houses can take to address these challenges of the digital age. Publications should revise their copyright policies and terms of use, with specific wording about copyright infringement through circulation in message apps or the exchange of e-papers. Notice of copyright infringement should be issued to individuals/aggregators with proper posting/publicity to the general public about the consequences of such illegal actions.
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