De Minimis in Copyright
I had previously examined the possibility of using the maxim de minimis non curat lex (which translates to the law will not resolve petty or unimportant disputes) in the context of Indian copyright law. I concluded that it was possible to resist a claim for copyright infringement under the Indian Copyright Act on this basis, by relying on the decision in India TV v. Yashraj Films (Delhi High Court, August 2012). What follows is an analysis of the facts and decision in that case.
The “Sab Golmaal Hain” Advertisement
In the first case, a copyright protected sound recording was used in an advertisement without a license. The issue was whether the lifting and use of half a line from the popular song ‘Kajra Re Kajra Re Tere Kare Kare Naina’ from the film Bunty and Babli constitutes copyright infringement.
Bear in mind that only the phrase “Mera Chain – Vain Sab Ujhda‟ and the accompanying musical score was used in the ad, which clocked a total of a mere 3 seconds! The ad is set in a small shop where the line is reproduced along with the background musical score. The ad goes on to show the shopkeeper struggling to maintain his business and depicts the plight of those of resort to adulteration. It ends with the line – “Milaawat karne waalon ka yehi hoga haal. Aap dekhte rahiye “Sab Golmaal Hai”, har Shanivaar sham 7 baje”.
To apply the de minimis doctrine to any given case, the following factors must be considered:
Size and type of harm: In this case, it was found that only five words had been lifted and the judges considered this to be too trivial to warrant an actionable claim. The judges criticised the Bridgeport decision, wherein the physical lifting of a mere two seconds of a rap song was held to be infringement, on the reasoning that plain lifting lacked any intellectual input. Therefore, it is clear that the lifting of a mere three seconds of a song does not cause sufficient harm to the copyright owners to warrant an infringement claim.
Cost of adjudication: The judges questioned the counsel for the plaintiffs, Mr. Pravin Anand, what the copyright owners would charge the defendants if they had actually approached them for a license to use the line in the ad. Mr. Anand responded that they would probably not charge them if it was a socially relevant ad, but if it was for a commercial purpose, then it would cost about Rs. 10,000. The judges concluded that this again was too trivial an amount compared to the cost of adjudication.
Purpose of the unauthorised use: This is perhaps the most important factor. The court held that since it was a consumer awareness announcement it was a non-commercial purpose. The intention was to educate consumers about the scourge of adulterated products and not to appropriate the goodwill or efforts of the copyright owner. Neither was there any actual personal monetary gain flowing to the advertisers. Lastly, it was possible that the ad was a part of the CSR plans of the company and hence would be considered socially relevant.
Effect on the legal rights of third parties: To answer this point, one may refer to the second factor although this was not discussed in the decision.
Intent of the wrongdoer: Here, the question is whether whether there was an intention to commercially exploit the owner’s work. It was found that there was no intention to violate/steal (the emphasis was on the kirana shop and how a radio is common in such a shop) and merely to educate the public. Thus, it would appear that the judges chose to look at the ad in totality, and not focusing on the mere act of unauthorised reproduction. There was no dishonest motive and being a consumer awareness ad, it was permissible use.
Overall, the court found that there was no case of copyright infringement under the Indian Copyright Act and no damages were required to be paid to the plaintiffs.
Vasundhara Das on India TV
In this case, the celebrated Bollywood singer Vasundhra Das was invited to a talk show ‘India Beats’, which was then broadcast on the India TV channel. During the course of the show, she sang small portions of nine songs (previously performed by her for different Bollywood films) based on requests she received. A live orchestra was present to provide the backing musical score and video clips from the respective movies were played for some of the songs.
Counsel for the defendants conceded that authorisation from the copyright owners should have been sought for the reproduction of the video clips. However, it was argued that there is no copyright infringement in the public performance of the sound recordings as performed by Vasundhra Das on the talk show.
Firstly, it is strange that counsel for Vasundhara Das made a concession with respect to the video clips. If fair use principles can be applied to the reproduction of the sound recordings, it should be equally applicable to audio-visual clips as well (assuming, of course, that the are relatively short clips). I have, myself, created several videos using ten second clips from different videos/movies and considered the mash-up to be fair use under copyright law. But perhaps I am missing something.
The songs used and the duration of the performance is given below:
1) “Shakalaka Baby‟ from the movie Nayak. (1:33 minutes)
2) The English bits of the song “O Ri Chori‟, from the movie Lagaan (No video clips were shown)
3) “Rabba Rabba‟ from the movie Aks. (The live orchestra provided the musical score + 00:17 minutes of a video clip was shown)
4) “Soni Soni‟ from her album Meri Jaan
5) “Chaleyan Jaise Hawaein‟ from Main Hoon Na (the orchestra provided the score and four short clips were shown)
6) “Salam Namaste‟ from the movie (short video clips were shown)
7) “Salaamey‟ from Dhoom (no video clips were shown)
8) “It‟s the time to disco‟ from Kal Ho Na Ho (video clips were shown)
The plaintiffs claimed copyright in 7 of these songs. The defence counsel argued that the fair use provision under S.52(b) relating to ‘reporting of current events’ was applicable here. But the court swiftly rejected this argument, holding that the program clearly did not report current events, although it may have done so in an ancillary manner.
In applying the maxim of de minimis to the facts of this case, the court did not analyse each of the factors separately. Instead, the focus was on the fifth factor – the intent of the wrongdoer. The court found that the underlying intention was only to inform viewers of the life of the famous singer Vasundhra Das. Given that her previous performances were the only way to show the milestones in her career, it could not be considered as dishonest intention to appropriate the plaintiff’s works. Moreover, since the guest was a famous Bollywood singer, the show would quite obviously focus on musical performances, and it is impossible to separate her life from her past performances. It also also observed that the outcome could have been different had there been less conversation and largely musical performances during the entire show. However, the total airtime was 45 minutes and the singing lasted less than 10 minutes, which served to strengthen the de minimis claim.
To conclude, it is quite clear that the Delhi High Court has paved the way for de minimis to apply in copyright law cases and successfully ward off claims of copyright infringement.
Image by Praveenpn
This post was first published on SpicyIP
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