Monday, March 5, 2012

Copyright Infringement: How is "Substantiality" to be Assessed?

The last few days I was reading a book by Ashwin Sanghi titled “Chanakya’s Chant”. The book is a page-turner and is certainly worth a read. 

The entire book is peppered with quotable quotes of various icons from history, which are conveyed through the central character of the book, namely Chanakya. 

At the end of the book, the author has been honest enough to attribute the quotes to their original authors. However, this, for me, posed an interesting question relating to the law of copyrights.

The quotes have not been “cited” by the author in the book. In other words, the quotes have not been referenced by way of foot-notes. Instead, they have been woven seamlessly in the book and are spoken by the central character of the book as and when the occasion justifies the use of the quote.

If attribution to the original authors of the quotes had been absent, a reader would have got the impression that the quotes/witticisms were originally spoken by Chanakya (despite the fact that the book is marketed as a work of fiction).

The question here is- despite attribution, does the use of the quotes in the manner in which they have been used in Ashwin Sanghi’s book constitute copyright infringement of the prior published original copyrighted work in which the quotes were originally used (if they indeed form part of copyrighted works)? If yes, can attribution to original authors/works dilute the allegation of infringement?

In answering these questions, it is first necessary to understand the interplay between Sections 14 and 52 of the Copyright Act. Section 14 enumerates the bundle of rights available to a copyright owner and Section 52 provides exceptions to infringement.

For an act to constitute infringement, there must be a right envisaged under Section 14 which is capable of being infringed, and there must not be an exception under Section 52 which offsets the allegation of infringement.

I am proceeding under the assumption that no consent has been sought from the copyright owners of the original work. 

In the absence of consent from the copyright owners, is it possible to treat Sanghi’s use of the quotes as “reproduction and publication” amounting to infringement? Or does the question of “substantiality” need to be addressed when the issue of “reproduction” is analysed?

Sometimes, in instances like these, the human tendency is to look at the popularity of the quote to decide the issue of infringement. For example, if a book were to reproduce “I’ll make him an offer he can't refuse”, we immediately associate it with Mario Puzo’s immortal work “The Godfather” and peremptorily conclude that the reproduction of the quote/line amounts to infringement.

Besides such a conclusion being biased, the analysis is strictly not a copyright-based analysis, it becomes one which has trademark undertones to it. To ascertain infringement of copyright, the enquiry must restrict itself to the requirements of copyright vestation and the bundle of rights that constitute a copyright. Consequently, is there a justification to use a “popularity” argument to assess substantiality of reproduction? If yes, then the issue turns on the quality of the portions reproduced.

That said, if quality is not decisive in vesting copyright in a work, why should it play a role in making a case for infringement?

Let me restate this argument- if a few paragraphs of a book, which are not necessarily seminal in terms of quality, are reproduced in another book, would we approach the issue of infringement from a qualitative standpoint? In most cases the answer would be “No”. We would go by simpliciter reproduction to establish copyright infringement.

Why should the approach be any different for a quote or a line? By using quality-based arguments, are we trying to fill the quantitative voids? Is this permissible and would this be true to the fundamentals of copyright jurisprudence? 

Besides the above arguments, is it possible for Sanghi to take the defense that the quotes belong to the annals of history and popular lore, and therefore, there can no copyright in them? or could he argue that his use would amount to an ode or tribute to these quotes through a fictional character in his work? Is an ode/tribute a defense under Section 52?

I’d love to hear from our readers on this issue- my co-blogger Ms.Divya Subramanian will also contribute her two pence to this discussion.

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