This article has been written by Vinit Bagdai, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. It has been edited by Aatima Bhatia (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Due to COVID–19 mostly all the physical activities have moved to digital mode. The online method of learning is the new phase due to the pandemic; Since the lockdown, a phase has begun; the number of webinars taking place online are quite high. The main issue of concern is whether there is any copyright Infringement caused due to online webinars which are being conducted.
This article will analyze copyright issues in relation to webinars and discuss the rights of the speakers, organizers, and participants under the Indian Copyright law. So, how will you know whether or not you are infringing anyone’s right? Let’s discuss the basic details first and then we will talk about the exceptions as well.
Online education during COVID-19 and challenges with respect to Copyright Law
Due to the pandemic, education has witnessed massive revolutionization and the essence of reform is the way in which the delivery mechanisms function. With classes being conducted online, responsibilities on legal research now probe on the questions of the practicality of copyright laws and its application in relation to education that is provided to the students everywhere via online mode, be it via recorded lectures, study materials or any other form of education being imparted or the medium in which it is shared. With growing debate and assessment on this area; there certainly lies the ability for discourse and dissemination.
With renowned researchers in copyright law, the Centre deems that the webinar works as an extensive and discursive academic forum for the engagement of concerned students, practitioners, and other people.
Copyright Law and fair use
In India, Copyright law deals with the protection of the expression of an idea, rather than an idea itself. Therefore, tangible expressions like books and videos are protected under copyright laws. In India, protection is granted to all works in the nature of literary, dramatic, artistic, and musical work as well as cinematographic films and sound recordings as mentioned in Section 13 of Indian Copyrights Act, 1957.
Copyright restricts any other person from using the author’s original work without their authorization or permission. However, in certain circumstances, copyright law allows the use of a copyrighted work without the requirement of obtaining the approval/consent from the author. This is known as the doctrine of fair use, referred to as the doctrine of fair dealing in India (though the two concepts are not purely identical. To come under the umbrella of fair use one must always keep in mind the purpose and nature of the work for which the copyrighted work is used for, as well as, the amount of the work used by such a person.
Section 52(1) of the Copyright Act lists out the acts that do not constitute copyright infringement. Sections 52(1)(h) to 52(1)(j) enumerate the exceptions for use of copyrighted material for educational purposes. Whether the particular use of a copyrighted work falls within the scope of these provisions is determined by whether it is made for the purpose and in the manner as specified therein. As held by the Delhi High Court in the landmark DU Photocopying case, the four-factor test used in other jurisdictions such as the US to make a fair use determination does not apply under Indian law. The court clarified that the fairness of use under section 52 is to be determined only by the wordings of the provisions and the limitations specified therein.
Private use vs. public use of webinar recordings
The delivery of a speech by any person in public is regarded as a performance [see section 2(q)] and the person delivering such speech or a lecture possesses an exclusive right to make a sound/visual recording of the performance (see section 38A) for broadcasting . Any person who wants to make a sound recording or broadcast the same has to take prior authorization from the speaker(s). The necessity of prior authorization or a license can be avoided only if the producer’s intention is to use it for a private purpose and not for communicating it to the public [see section 2(ff)]. The term ‘private’ with respect to copyright, was discussed in the case of Blackwood v. A. N. Parasuraman, that the circulation of copies by the producer would not constitute private use and would amount to infringement of the copyright of the speaker(s). Therefore, it is sufficiently clear that independent copyright in a webinar recording, the producer, despite being its author, needs permission from the speaker(s) to use it for any purpose other than for ‘private use’.
Copyright in Webinar Recording
The speaker(s) of the webinar has an exclusive right to make a recording of the lecture [See Section 14(a)(iv)]. Any person other than the speaker(s) making a recording of the lecture/webinar would be committing infringement. Speakers are generally invited by several organizations or individuals to deliver a lecture as a part of a webinar. The author [See Section 2(d)(v)] of the recording of such a lecture would be the person arranging for this lecture. By virtue of Section 17 (cc) of the Act, the speaker will have exclusive ownership over the lecture, even if he is employed by some other person (who has made all the arrangements for the lecture). Therefore, an author or the producer of the recording would require the authorization of the speaker of the webinar to save one from committing the act of copyright infringement. A conflict of interest would occur if a speaker is not given the power to restrict the producer from making recordings of his lecture. However, if the producer is permitted the right to make a recording without prior authorization from the speaker, the speaker’s exclusive right to produce recordings of his own would collide with the producer’s right to communicate the recording to the public [See Section 14(e) (iii)].
Case Analysis in respect to Copyright in Webinars
The Indian courts have agreed on what constitutes fair use via judicial decisions. In Civic Chandran and Ors. v C. Ammini Amma and Ors., The Kerala High Court laid down a 3-condition test to determine whether the defense of fair use can be taken in a case. These were,
1. The quantum and value of the matter taken;
2. The purpose for which it is taken; and
3. the likelihood of competition between the two works.
However, if anyone for the purpose of criticism and review will not amount to infringement of copyright of such works as expressly stated in Section 52(1)(a) of Copyright Act. Further, Section 52(1)(i) of Copyright Act states that anything which is reproduced by a student or a teacher with an educational purpose it would not amount to infringement of copyright. Yet, there are certain limitations which have been placed because of which this doctrine cannot be used for unfair means like distribution of any copyrighted material in the name of educational purpose. Such things will just increase the likelihood of copyright infringement.
Firstly, the copyrighted work must be obtained via legal means. It would amount to infringement if the work is downloaded dishonestly and then circulated for free download of the paid material it would result in infringement of the copyrighted work. However, downloading of original work is allowed via the internet, but it should be done in a legal way.
Secondly, copyrighted work is allowed to be used for studies and educational purposes; use the exception of the educational purpose and use the copyrighted work in an improper manner. Students and teachers using the same suffer the consequences for infringing copyrighted content.
In 2012, there was an amendment in the Copyright Act which stated that it will permit the usage of scanned copies of paid books to be shared by the organizations/Institutions for the purpose of education if the institution/organizations already owns a hard copy of the book in its library other than that one cannot upload scanned copies of the paid books to be shared with the students under the umbrella of the doctrine of fair use/dealing.
In this 21st century, people can collect information from different sources and use it without infringing the rights of the original owner. However, it is important for everyone to ensure that while using such information; they don’t infringe the rights of the original owner. The doctrine of fair use also has its own limitations and hence the teachers and everyone else using such works should be always careful.
In general, public and private webinars both are protected under copyright laws and the speaker of such webinars is the owner of such works unless there is a contract to the contrary in the course of the employment.
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