Thursday, July 21, 2011

Some reflections- of Harry Potter, Infringement and Fair Use..

Sai’s Harry Potter post and his cursory reference to derivative works, albeit in a different context, brought to my mind instantly Warner Bros. Entertainment Inc v. RDR Books, or the Harry Potter Lexicon case, as we commonly refer to at Law School.

The case, dwelling on derivative works, infringement and the defense of fair use, looks at whether creation of a lexicon for the multifarious terms for the Harry Potter series, amounts to infringement of the right to make derivative works. While the court ruled in favour of J.K. Rowling, it also undertook an extensive fair use analysis.

Talking of derivative works reminds me of a movie called Hari Puttar, that came to the Indian cinemas about two plus years back. Warner Brothers being vigilant watchers of their intellectual property, moved for an injunction. However, they failed before the Indian courts to secure an interim injunction. Warner Bros. Entertainment Inc. v. Harinder Kohli and Ors. (Could someone please throw light on the fate of the proceedings??? I lost track soon after!)

The two right owners, in two different jurisdictions, chose to enforce their rights albeit with different strategies. While the Lexicon case had a pure copyright approach, the Hari Puttar case seemed to take the route of trademark rights being infringed.

As I was thinking about these cases in tandem, to me it seemed like Warner Bros. may have taken up such different arguments on purpose.

Undoubtedly in a copyright infringement case, fair use, a judicially developed doctrine in the US would be argued- and was very vehemently argued in the Lexicon case. The doctrine as many of you would be familiar, involves consideration of:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

India, on the other hand, has a statutorily defined framework for “Certain acts not amounting to infringement”, which we consider to be our fair use related provisions. In this view, is it possible that the fact that statutory exclusions are more susceptible to be strictly enforced, have dettered Warner Bros. from instituting a Copyright action in India? Perhaps… and also may be perhaps they wanted to allege only similarity in the titles and not the content of the subject matter itself. In this scenario, a trademark action seems to have better suited their case.

However, the question that ticks in my mind is, will something like S. 52 in the Copyright Act, 1957 always be more strictly interpreted? The answer probably is kind of obvious, however, when I think of this in greater depth, I am reminded of what J. Bhatt has to say in Chancellor Masters and Scholars of the Univ. of Oxford v. Narendra Publishing House and Ors , at Para 33:

Fair use provisions, then must be interpreted so as to strike a balance between the exclusive rights granted to the copyright holder, and the often competing interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativity, and the same time must discourage blatant plagiarism. It, therefore, must receive a liberal construction in harmony with the objectives of copyright law. Section 52 of the Act only details the broad heads, use under which would not amount to infringement. Resort, must, therefore be made to the principles enunciated by the courts to identify fair use."

This to me seems to tilt the coin against towards giving fair use a broader, rather judicially crafted interpretation, as against a pure application of statutory provisions. And to me, it appears rightly so - pertinently with the advent of technology, social media as well as the varied forms of derivative works coming of age.

I welcome the take from our readers on this line of fuzzy thought!!

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