Trivial Copyright Claims & De Minimis Explained
At a recent conference on patent and copyright law, the renowned copyright scholar from the University of Pennsylvania – Professor Shyamkrishna Balganesh spoke about the development of fair use in a U.S. context and emphasised their dependence on institutions such as the judiciary or the Copyright Office to carry out this task. It seemed that India might suffer from a similar burden of dependence given the slow pace of case law development and the relative ineptness of the Indian Judiciary to understand the impact of technological advances and its impact on copyright law. I suggested that the role of advancing copyright law in the technological age be shifted to the Indian Copyright Office, so that fair use issues (for example whether jailbreaking is permissible in India) without having to wait for a judicial opinion.
But a recent decision of the Delhi High Court (August, 2012) has downplayed some of these concerns. The fundamental issue here was whether the legal doctrine of de minimis non curat lex could be used in the context of copyright law to fight an infringement claim. De minimis is translated as ‘the law does not concern itself with trifles’. Simply put, the maxim means that law will not resolve petty or unimportant disputes. The associated issues include its status as a separate defence, besides the fair use exceptions under S.52 of the Indian Copyright Act.
The de minimis maxim has a significant bearing on our relationship with copyright law. Think of these daily activities that could be considered ‘infringement’ without realising it:
- Printing a poster of your favourite band to hang in your room.
- Playing the song ‘Happy Birthday’ for a friend at a birthday party.
- Taking a picture of something on your phone.
At the same time, most would agree that these are too trivial to be litigated upon or warrant a cause of action in a court of law.
Justice Pradeep Nandrajog and Justice Manmohan Singh identify three distinct paths in the application of de minimis to copyright law.
(1) Substantial Similarity: The doctrine of de minimis has an important bearing on the question of ‘substantial similarity’. To say that the impugned use is ‘de minimis’ is to say that the alleged infringing work is not substantially similar to the original, and therefore it may be possible to escape liability on this ground. From a practitioner’s perspective, it may be useful to advance this argument in cases where a work has been copied verbatim, but in a different structure or form. At the same time, the recent case involving the TV show ‘2’4 and the allegedly infringing Indian version ‘Time Bomb’ will not be a fit case to argue the de minimis factors since the ‘structure/format’ itself appears to have been copied (besides having a commercial purpose). It is also important to keep in mind that ‘observability’ is an important aspect of the test of substantial similarity (i.e. ‘what would the audience think?’) and hence its application to audio-visual works might be different.
(2) Other areas of law: In support of the argument that the de minimis doctrine could be applied to the law of copyright, it relied on Davis v. Gap. This has been elaborated in greater detail below.
(3) Fair Use: Another path chartered by the courts is the application of de minimis to the fourth factor in a test for fair use – the effect of the use upon the potential market for or value of the copyrighted work. Differently put, one could state that de minims may apply if it shown that it will only cause trivial (insignificant) harm to the copyright owner.
The issue that then arises is this: is this a distinct defence or is it to be used in conjunction with the fair use defence under Section 52 of the Copyright Act? From a preliminary reading of case law, it appears that there are two distinct theories applicable here: Firstly, the maxim can be used as an alternative to fair use in cases where the damage done is trifling. Secondly, to assist in the fair use determination in parallel. It is therefore inconclusive whether a new substantive right has been created in respect of infringement claims, or if it is merely of persuasive value in arguing a Section 52 defence. But what is undisputed from this decision is that the doctrine of de minimis is applicable to copyright law.
Application of de minimis to copyright law
The judges provide three main reasons:
1) Th concept of fair use is a bad theoretical fit for trivial violations. That said, there are certainly some fair use defences (such as the ‘for personal/private use’ exception) are fundamentally based on the de minimis doctrine.
2) The de minimis analysis is much easier. This is very persuasive given David Nimmer’s extensive analysis of over 60 fair use cases, which shows that there is no discernible test in determining what constitutes fair use and what persuades a judge to decide a fair use case either way. A de minimis analysis on the other hand, is often less subjective.
3) A determination of de minimis is the least time consuming and it is in the interest of the parties and the courts to use it. This is borne out by the fact that past cases involving fair use have often dragged on for ages.
It is perhaps also important to reference the objections raised by Pravin Anand in the course of this hearing to this point. Mr. Anand relied on the treatise of the renowned copyright scholar Professor David Nimmer where he says that de minimis is not an acceptable copyright infringement defence. However, the judges rejected this argument stating that the inconsistency in judicial opinions on de minimis is no ground to conclude that it is not a viable copyright infringement defence.
The factors generally considered in a de minimis analysis are as follows:
- the size and type of the harm,
- the cost of adjudication,
- the purpose of the violated legal obligation,
- the effect on the legal rights of third parties, and
- the intent of the wrongdoer
In conclusion, it is clear that despite the relative uncertainty about its nature and application, the maxim of de minimis can be used in copyright law as a valid defence to an infringement claim, and in a legal regime where violations are seemingly abundant, this decision is a landmark for Indian copyright law.
(Image by Tomas Castelazo)
This post was first published on SpicyIP
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