Creativity is an outcome of the mind of an intellectual being. It is the keystone of progress; no civilized society can afford to ignore the basic requirement of encouraging creativity. The economic and social development of a society depends on the sustained creativity of its people. Any creative work which is produced through the honest efforts of a human mind is intellectual work. These creations of mind include intellectual works in fields of inventions, literary and art.
It is both just and appropriate that the person putting in the skill and effort in an intellectual creation; is attributed to some benefit as a result of this endeavor. Copyright laws framed by the legislation are one such pillar of the society; which ensures certain safeguards for the rights of authors over their creations; thereby protecting and rewarding their creativity. It provides protection against the duplicity and piracy of the original work of the author. The protection provided by copyright law creates an atmosphere instrumental to creativity; which induces them to create more such works and motivates others to create too.
In India, by virtue of the Copyright Act, 1957; the economic as well as moral rights in intellectual works; (such as literary, dramatic, musical, artistic, cinematograph films, and sound recordings); are safeguarded by providing exclusive rights to the original authors of these works. However, sometimes the motivation that the author of an original work provides to others; leads to infringement of the intellectual rights of the original authors.
One such example is the paradigm of Parody and its fair dealing (use).
In this article; the author Maitrayee Sinha (Legal Researcher at Legal Thirst & a 4th-year law student at Amity Law School, Delhi) will talk about the laws pertaining to the use of fair dealing as a defense in respect of Parodies; its implications on the protection being provided to the Parodist.
What is Parody?
The origin of the word ‘parody’ can be traced back to the Greek language; when parody was called paroidia – a compound of two words “para” (beside) and “ode” (song). In ancient times it was only limited to parodying poems. However, in today’s world, parodies have a huge fan base.
Parody is an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect. Parody is mostly made to comment and criticize the idea and message; that was meant to be delivered through the original work of the artist.
What is Fair Dealing?
Indian Copyright Act, 1957, protects the economic rights of the original author of intellectual work. Under the act, the author has the right to authorize or not authorize the following: –
- Reproduction of the work in any form
- Issuing of copies of the work to the public
- Performance of the work in public
- Communication of the work to the public
- Making of any cinematographic film or sound recording in respect of the work
- Translation or adaptation of the work
Fundamentally, this protection and enforcement of intellectual rights mainly ensure three things. Firstly, it is conducive to social and economic welfare. Secondly, it provides safeguards against the fundamental rights of the author; and thirdly, it promotes commerce, competition, and innovation. However, in the interest of the public, certain limitations and exceptions are laid down in the Act; which permits the use of a copyrighted work without prior permission or license from the author of the work. Fair dealing is one such exception.
According to section 52 of the Act; there are certain acts which do not constitute an infringement of copyright; if they are a fair dealing with any work for the purposes of: –
- Private or personal use
- Reporting of current events and current affairs
However, the term “fair dealing” has not been defined in the copyright act. Longman Business Dictionary defines “fair dealing” as; reasons are given for copying a book, film, song, etc. without the permission of the person; or the company that owns or made it; that a court of law can accept as reasonable. So, it can be thought of as a legal doctrine; that permits limited use of another’s copyrighted work without the prior permission or license of the owner. The line between fair use of a work and infringement is very thin. In India, there is no statutory provisions that lays down; what amount of copying results in fair use and what amount does not. The court on various occasions has decided this based on judicial precedents. Hence, in India, the proportion of copied work permissible as fair use depends on the circumstances of each case.
Parody and Fair Dealing
With the proliferation of the internet, Parodies of songs, cinematographic films, stage plays, etc. have become common and easily accessible. They have become a major source of entertainment for the ones viewing it; and a source of revenue for the ones creating it. The explosion of social media, has provided the Parodists a larger and more popular platform to showcase their work.
Parodies by their nature are considered as borrowed work. It is not possible for a Parodist to produce his work; without reproducing a certain amount of work from the original work. However, Parodies do not intend to compete with the original work. They operate in a different market and do not aim at inflicting economic damage to the original work. Rather the parodies increase the reach or viewership of the original work; as people unaware of the ideology which a parody is criticizing; tend to look back at the original work who’s flawed are being discussed in the parody.
But as discussed above, parodists cannot claim the defense of fair use; if their work is a blatant act of copying the original work; this copying would amount to infringement.
The question of fair dealing only arises when it is determined by the court that; a substantial amount or portion of the original work has been reproduced in the Parody. The quantity and value of the matter taken, is an important factor in considering; whether or not there has been a ‘fair dealing’. Also, even if the purpose of reproduction is to criticize the portions of the drama or the ideologies of its author; still, it may not amount to ‘fair dealing’ unless the defendants prove; that the criticism is fair and justifiable in the facts and circumstances of the case. (Copinger and Skone James, Copinger and Skone James on Copyrights 196 11thed 1971)
It has been observed in M/s. Blackwood & Sons Ltd. v. A.N. Parasuraman that in order to constitute fair dealing,
- There must be no intention on the part of the alleged infringer; to compete with the copyright holder of the work and to derive profits from such competition and,
- the motive of the alleged infringer in dealing with the work must not be improper.
Thus, to decide whether Parody is a copyright infringement or not; we have to rely on judicial precedent laid down by the Kerala High Court in Civic Chandran Vs. Ammini Amma which gives the three- test rule for determining the question at hand by taking into consideration the following factors: –
- the quantum and value of the matter taken in relation to the comments or criticism
- the purpose for which it is taken and,
- the likelihood of competition between the two works
Therefore, as long as the case of Civic Chandran is concerned; it states that if reproduction of the original work is done for the purpose of criticizing or commenting the ideology drawn out of the original work; it does not constitute improper use of the original and thus qualifies as fair dealing.
Some Case Laws Like PepsiCo v. Hindustan Coca Cola Ltd.
The Delhi Court ruled taking into consideration the three test rules laid down in Civic Chandran case. Pepsi Co. sought an interim injunction; as the respondents infringed the copyrighted jingle of ‘Yeh Dil Maange More’ as ‘Kyo Dil Maange No More’; and Pepsi Co.’s roller-coaster ride commercial in their own commercial. Defendants claimed that they had parodied the commercial. The Court held that defendant’s commercial was a colorable imitation of the appellant’s commercial; and that it was a replica and hence put a restraint on it.
So, the question as to what proportion of reproduction of original work; may still be considered as fair dealing still remains unanswered. Even though the judiciary through various precedents has discussed the issue of using fair dealing; as a defense by Parody makers; there still remains ambiguity regarding the quantum of work to be reproduced. Until there is not a statutory law and the apex court does not decide the applicability of fair dealing; under the shadow of section 52 of the Copyright Act; the courts at a lower level may apply the doctrine; without any formal guidelines and only based on their interpretation.
However, while deliberating the factor of statutory provision; it is important to keep in mind that creativity is not like a mathematical principle; where the amount or percentage is fixed. Creativity is dynamic, subject to change from one mind to the other. So, the author suggests that for a law or rule to be legislated for the above; with scope for variation of the quantum, depending upon the facts of each case.
In conclusion it is pertinent to mention the fact; that the larger aim of Intellectual Proprietorship is to encourage the inflow of creativity in society. By providing statutory recognition to Parodies and the doctrine of fair dealing; with respect to the tests laid down by the judiciary; the legislature will help develop and maintain the creative rearing of the society.