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This article is written by Shubhank Suman, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho).

Introduction

Is the fair dealing clause in the Copyright Act of 1957 an invitation to infringe on someone’s copyright under the guise of trolling? In view of MEMES, which purports online trolling these days, this subject necessitates legislative consideration. Memes are defined as an “idea, behavior, style, or usage that spreads from person to person within a culture,” which often goes viral in social media where the owner is not known or the person who started the trend is anonymous, where there is no publishing or self-regulation but only broad, insufficient community standards. Because of this anonymity or absence of any regulatory bodies or any person, most people consider the internet as a forum or a space that provides them a free pass to ride over someone else’s intellectual labor and make it the source of their income. This raises a serious question before society whether this online infringement of copyright needs to be regulated or not? 

Memes and copyright

Copyright is a legal right of the author to control the use of their work. The underlying principle behind granting this protection is to protect the interest of the creator or author who put their intellectual labor to create something. If copyright is not granted then any person may copy such hard-earned work and ride over somebody else’s intellectual labor which in result prevents the actual author or creator from getting recognition as well as monetary compensation. 

Memes have now become a prominent channel to share or propagate artistic, musical, cinematographic, and literary works. A meme that basically contains images or videos for humorous manifestation is not limited to the promotion of ideas. Memes in present days are being extensively used for commercial purposes. This evolution of meme vis a vis commercial purposes requires legal dissection in the light of copyright protection. 

Memers generally use songs and scenes from movies to make their memes more humorous and funny. Sometimes they also add literary works like poems, stories to increase their reach. Here the question arises, are they entitled to use such copyrighted works?

Most people argue that memers are entitled to use such work because they are using it under the concept of Fair dealing. The doctrine of fair dealing in India covered under Section 52 of the Indian Copyright Act 1957 lays down certain acts or works that cannot be considered as an infringement of copyright namely fair dealing with a literary, dramatic, musical, or artistic work not being a computer program for the purposes of-

  1. “private or personal use, including research;
  2.  criticism or review, whether of that work or of any other work;
  3.  the reporting of current events and current affairs, including the reporting of a lecture delivered in public”.

Further, this concept gets more refined in the case of Civic Chandran v. Ammini Amma  “Where Section 52(1)(a) and (b) specifically refer to ‘fair dealing’ of the work and not to the reproduction of the work. Accordingly, it may be reasonable to hold that the re-production of the whole or a substantial portion of it as such will not normally be permitted and only extracts or quotations from the work will alone be permitted even as fair dealing.” Further, the court held that, In such cases, a court has to take into consideration: 

  1. “the quantum and value of the matter taken in relation to the comments or criticism; 
  2. the purpose for which it is taken; and 
  3. the likelihood of competition between the two works”;

similarly, In the case of Blackwood & Sons Ltd. v. A.N. Parasuraman, it was held that: 

“In order to constitute fair dealing, there must be no intention on the part of the alleged infringer, to compete with the copyright holder of the work and to derive profits from such competition and also, the motive of the alleged infringer in dealing with the work must not be improper.” 

Therefore, the concept of fair dealing does not give license to violate an exclusive right of the copyright owner. One cannot simply copy other’s work and claim refuge under the garb of Fair dealing. Simply giving credit would not help either.

If we examine the above criteria in terms of memes then we can find that there are lots of memes that embody a substantial part of musical, artistic, cinematographic, and literary works without giving any credit to the actual authors of such work. Memers at present times do not make such memes only to attract comments or criticism rather they are involved in a ‘reach war’ where they are in a race to add more and more such contents to increase their followers which in turn helps them to commercialize their pages and make them earn through advertisements. 

Sometimes memers also copy others’ work and portray themselves as the real author of such work. There are lots of meme pages that post poems, shayaris of renowned authors under their own names and earn profit over it.

From the above discussion, It is clear that the doctrine of fair dealing is not applicable to all the memes available on social media. Memes that are not giving credit to real authors or use the content of others for commercial purposes should not be granted protection under this exception. 

Most of the memers also directly share content or memes of one creator without substantially changing it which violates the copyright of original creators. These copyright violations through memes on social media platforms like Facebook and Instagram also requires the role of these intermediaries to be checked.

Role of intermediaries and meme

A social media intermediary is defined as one “which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services” 

This implies social media platforms like Facebook, Instagram, etc. will come under this wide ambit of definition as these channels provide a platform to enable interaction between viewers and creators through memes and also allow them to disseminate the contents to a wide public.

The liability of intermediaries in case of copyright infringement was first raised in the case of Playboy Enterprises Inc. v. Frena where the Court held the ISP liable on the ground that intent or knowledge is not an element for infringement. However later in the case of Religious Technology Centre v. Netcom On-Line Communication Services Inc. The court observed that it is not possible for intermediaries to have knowledge of all the information that passes through it. Therefore, Digital Millennium Copyright Act 1998 was introduced to fix the liabilities of intermediaries in case of copyright infringement. The Act envisages certain conditions where the liability of ISPs needs to be limited based on satisfying certain conditions. 

  • Intermediates are just functioning as a channel for the transfer of information that was initiated at the user’s request, and neither the destination of such information nor its storage should be selected by the intermediaries..
  • The information transferred through intermediaries must not be altered.
  • ISP must not have known to any infringing activity,
  • The ISP must not get any direct financial benefit from infringing behavior when it has the authority and ability to manage it on its platform.
  • ISP must remove or limit access to infringing material as soon as it is notified of such conduct.

However, if we analyze the liability of intermediaries in the Indian scenario we find that lack of knowledge about the infringement does not hold good, and liability of the intermediaries is prima facie absolved in cases only where the function of the intermediaries is limited to provide access. If an intermediary facilitates storage or dissemination of contents then it will be strictly liable. 

In the case of Super Cassettes Industries Ltd. v. Myspace Inc., the defendant is a social networking and entertainment website which provides services of storage and sharing of music and videos. The claim of the plaintiff is that the copyright of the material stored and being distributed through the defendant belongs to them and consequently the defendant is liable under the Copyright Act for infringement. The Court analysed Section 51(a)(ii) of copyright Act 1957 which states  “permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement”. The court considered online intermediaries under the scope of “Any Place” in the definition and observed that intermediary is providing a platform over the internet to upload or disseminate copyrighted contents and also earn profits on them through advertisements. Therefore, intermediaries are strictly liable under Section 51(a)(ii) of the Trademark Act.

In view of the above discussion, social media intermediaries like Facebook and Instagram also provide a platform to memes for storage and dissemination. These intermediaries also have the ability to regulate the infringing activities on their platforms and earn profits on these memes through advertisements. Therefore applying the above conditions, these intermediaries should also be made strictly liable along with the meme creator under section Section 51(a)(ii) of the Trademark Act 1999. 

Conclusion

Hence in the light of the above discussion, it is high time for the government to come up with necessary guidelines to regulate copyright infringing activity through memes over social media platforms. Social media intermediaries have to be made responsible to check or verify the content uploaded by memers before making it available to the general public. Since a lot of hard work is needed to shoot a picture or make graffiti, it takes a few minutes for someone to make a meme and portray it as their original piece of work. Minimal due diligence by these intermediaries can prevent lakhs of such copyright infringement. 


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