Wednesday, March 7, 2012

Substantiality- Where Does one Draw The Line?

In the first post on this topic, I had posed a few questions based on the use of popular quotes in Ashwin Sanghi’s book “Chanakya’s Chant”. Divya posted her thoughts on the questions posed. In this post, I would like to continue the discussion and delve deeper into the thought-provoking points raised by Divya.

In a series of posts earlier elsewhere, I had discussed the issue of vestation of copyright in characters of literary works. During the course of discussing the issue, the question that I had raised was as follows- when a literary work is vested with copyright, does the copyright vest in the work alone, or could portions of the work enjoy stand-alone copyright as well?

In other words, do parts of the whole enjoy a copyright besides the copyright in the whole? The answer to this question was, to a certain extent, found in the Irish Rose case and subsequently in the Sam Spade case. In both these cases, the line of approach that was taken by US Courts with respect to copyright in characters was that, if the characters are merely vehicles for the story, there is no stand-alone copyright in the characters. Here, it is only possible to claim copyright infringement of the story by association of the characters to the story.

However, if the story revolves around the characters and the story is a vehicle to extol the virtues or vices of the characters, the characters could be treated as enjoying stand-alone copyright. For instance, the characters from the movie Rocky were treated by US Courts as falling within the latter category, and it was held that the characters themselves enjoy copyright protection because they stand out from the common stock of characters.

Simply put, the thumb rule appears to be that if the characters lead to association with the work, it is the copyright in the work that would be infringed if the characters are used by third parties. Whereas if the characters themselves enjoy popular acceptance regardless of the setting in which they were used in the work, the copyright in the characters would be infringed if they are used by third parties.

The same rule could be applied to quotes as follows:

Situation 1: If the quotes lead to association with a particular work or character in a work, it could be said that the copyright in the work is infringed. After all, if the intention is to prevent third parties from using the quotes, a creative plaintiff need not claim copyright in the quote, he could simply allege that the use of the quote infringes the work in which the quote was originally used.

The first objection could be- what cannot be done directly cannot be achieved indirectly as well. In other words, if a quote cannot be protected directly, it cannot be protectly indirectly using the work as a facade.

The second objection could be that association is a trademark-like argument, which I mentioned in the first post.

The third objection could be that lines like “I’ll make an offer he can’t refuse” are actually normal statements, but it is the association of these lines with a particular character that gives it a “secondary significance” and makes them “quotes/dialogues”. The question that now arises is, should association of such otherwise unremarkable lines with popular characters, deprive third parties the right to use the lines?

There are again two ways of looking at this issue- On one hand, if the line has not been used in the same manner as it was used in the original work, copyright infringement would be difficult to claim or establish. For instance, if the character who mouths the line “I’ll make an offer he can’t refuse” is not a mafiosi, but happens to be a character like “Holly Golightly” from “Breakfast at Tiffany’s”, the setting is entirely different (although the use of the line is apt for her character...).

On the other hand, if the line has indeed been used by a gangster, whose character arc is similar to that of the character in the original work, it might be arguably possible to assert exclusive rights over the quote through the character/story.

Situation 2: If however the quote is unique in itself, the author could claim a stand-alone copyright in it. The issue with this is the use of quality as a relevant factor to vest a work with copyright. The burden on the copyright owner would be to show that the quote is not a “commonly used line”, but was a “quote” in the strict sense of the term. Again here, his attempts would veer towards establishing the popularity of the quote to prove uniqueness. This too brings in the trademark/association angle.

Turning to the issue of criticism, regardless of the tone being positive or negative, criticism is “about” the work. I am not sure if a work in itself can be called a critique of another if it does not comment on the earlier work. Chanakya’s chant, in that sense, is not a critique of any work.

As for fair dealing, fair dealing is a stricter approach to exceptions to infringement than fair use. Under fair dealing, limited situations are envisaged whose metes are bounds are almost clear. Therefore, use of fair use principles to broaden the scope of such limited situations may not be permissible.

Section 52 of our Copyright Act uses fair dealing for a few instances and fair use for a few other. When it comes to literary works:
A. Section 52 (a) permits “fair dealing” for private use and criticism,
B. 52(b) permits “fair dealing” for the purposes of reporting,
C. 52(c) permits reproduction in a judicial proceeding,
D. 52(d) permits reproduction or publication for Legislative purposes,
E. 52(e) permits reproduction for the purposes of a certified copy,
F. 52(f) permits only reading and recitation of a reasonable extract,
G. 52(g) permits publication in a collection of essentially non-copyright matter for use in “educational institutions”
H. 52(h) permits reproduction during the course of instruction or in examinations
I. 52(i) permits performance in the activities of an educational institution
J. 52(j) permits making sound recording of the work with the license or consent of the owner of the work
K. 52(l) permits performance in an amateur club to a non-paying audience, or in a religious institution
L. 52(o) permits making of three copies for a library if the book is not sold in India

There are a few other provisions besides the above, but none of the provisions seems broad enough to employ “fair use” principles propounded in the US. This is because “fair dealing” provisions in most jurisdictions appear to be restrictively worded and are treated as such too.

Now, given that Sanghi’s use of the quotes does not fall under any of these “fair dealing” exceptions, and if one were to prove that the use of the quotes infringes either the copyright in the original works, or copyrights in the quotes themselves, what possible defense could Sanghi have?

The big picture argument could be- does a “quote/line” qualify as “literary work”? The counter-question is “why can’t I write and sell a one-quote book?” Does copyright law preclude the possibility of a book with a single-quote being bought and read by people? Also, does “literary work” always mean a “book”? 

As obscure or far-fetched as the example may be, I am not sure the answer is either obvious or settled. 

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