Monday, March 5, 2012

Evaluating Substantiality

Sai indeed has raised an interesting question in his post- what is substantial enough to make a case for copyright infringement?

I will attempt to answer this question, in the context of Chanakya’s Chant. Am sure readers will appreciate that it is often easier to answer questions, when one uses a live example!). For starters, I agree the book is an awesome read. However, I would like to take a look at the situation from a somewhat different perspective..

As I see, the prolific use of quotes in the book, can be compared to a sort of compilation. One has learnt from the US Supreme Court decision in Feist, that the modicum of creativity required in a work of authorship, to be copyright eligible, is minimal. 

In other words, what I am attempting to say is that it is possible to look at what Sanghi did, to be in fact a weave/compilation of perhaps, his favourite quotes, into an altogether different historical setting, an attempt, which (in my humble opinion) is extremely creative in fashion.

I am not sure if what I say above holds good. Let me try to substantiate that by layering it with another line of thought.

We all know that copyright is an exclusive right over the expression of an idea. In other words, the expression describes the idea. If a known expression is picked up (say Oh My God! From FRIENDS) and used in a distinct set up, with a different plot, I think the expression, would be inextricably linked to the new idea. 

In such a scenario, if a couple of lines commonly used, were to be taken and looked at, they perhaps, would be associated with multiple scripts. Just because they have been used again in a different context, may not necessarily mean that they are infringing the copyright subsisting in the previous work. This in my view, is especially true, since copyright subsists in a work, and not in an “extract” from a work.

Coming to the point on fair dealing, the test of fair dealing under S. 52 must be applied before determining Infringement. As Sai rightly pointed out, “criticism” is covered as an exception there under.

But, to answer his question, I believe that praise would also be included under the ambit of “criticism”, especially because,criticism is not merely understood to be a negative opinion, but is in fact an opinion rendered by someone with knowledge or expertise in the field, and whose opinion on a particular work, may give rise to a positive or negative opinion about it. With this in mind, I think an ode or tribute would definitely qualify as fair dealing.

Further, to answer the question of substantiality of the work, I think the Folsom v. Marsh test used to determine fair use proves useful. The four factor test, which has been incorporated in the Indian jurisprudence, takes the following into account:

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.

Let me attempt applying these to the Chanakya’s Chant case:
1. Yes, Chanakya’s Chant is a work for commercial gains. The purpose and character could perhaps be said to be descriptive of a character’s response.
2. The nature of the copyrighted work is literary
3. The amount and substantiality of the portion in relation to the original work, is miniscule- few dialogues, as compared to the whole book
4. Effect on the commercial value of the copyrighted work –negligible. I don’t think the sales of any of the works whose dialogues/quotes have been referenced would be affected by Sanghi’s use.

If at all any, the only cause of action that the authors have against Sanghi's use, is one of “violation of moral rights”. Under S. 57 dealing in Author's Special Rights, they would have to make out a case showing that either (a) there is a distortion, mutilation or other modification of the said work; or (b) that an action prejudicial to his honour or reputation has been taken.

Having said all of this, mostly on impulse, I think Sanghi played it safe by giving due credit to the authors of the quotes. Whether his use is decided to be fair or not, he at least cannot be accused of blatant plagiarism!

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