Fair dealing and the right to reproduce (articles)

I’m still on my “fair-dealing” hobby horse. Earlier last week, in my post relating to the Mint Legal notice, I had rather hastily admitted that Copyright law might not expressly permit the reproduction of articles in their entirety. Now, I’m not so certain.

1. Firstly, there’s the express language of Section 52(1)(m) of the Copyright Act which reads:
   

   “(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;”

   The clause creates a blanket presumption that all newspapers, magazines (including online) and periodicals can reproduce in entirety articles on “current political, social or religious topics” . This is subject to the author expressly reserving to himself/herself the right of such reproduction.

   The article that sparked the Mint’s ire was authored by one Seema Singh. I just checked the Mint site and there is no statement by her either at the foot of the article or anywhere on the website where she expressly reserves the right to reproduce to herself.

   Section 52(1)(m) only allows the author (as opposed to the publisher/”first owner”) to reserve the right of such reproduction – which means that HT-Media’s prohibition on reproduction in its Terms of Use will not serve the same purpose. The reservation must be “express” which means that it cannot be arrived at impliedly.

   There are good grounds to believe that Section 52(1)(m) survives even the exclusive assignment of copyrights by authors to publishers, and may even be seen as an additional right in the hands of the author not enumerated in Section 14. It is the right of the author of an article of political importance to reach the maximum possible audience if she wishes, and not to be silenced by non-publication, merely because he or she happened to assign rights to a particular media company.

   There is legislative wisdom behind the vesting of such powers in the author, and behind setting up the right to reproduce articles as the general presumption against which the author has the right to demur.

2. Secondly, the ambit of the fair-dealing right enshrined in Section 52(1)(a) and (b) is fairly wide and recognizes that the extent of permissible copying may vary with the purpose and characteristics of the use. Specifically, reproducing works to make them more accessible might amount to a transformational use even though it is not transformation in the sense of “altering the original expression with new expression meaning or message”.

   (See THE CHANCELLOR MASTERS and SCHOLARS of the University of Oxford Vs. Narendra Publishing House The rule regarding “the extent of copying.. does not entail that the reproduction of the entire work would militate against the finding of fair use. There could be cases where the copying could be substantial and the courts finds fair use, at the same time there could be cases where the copying though insubstantial could be held as infringement”)
   (See Also Kelly v. Arriba Soft)

There are a host of other authorities in India to support the view that CSE’s non-commercial, public-interest use will weigh heavily in the court’s determination.
I’m following this article up with a longer one that analyses fair-dealing in India.

Lessons in Cola, Copyright, Constitutionality and Generosity for dear Mr. Raju (from a self-appointed legal educator)

I’m responding to Raju Narisetty’s blog post on copyright infringement, along with which he tosses in some rambling invectives against Sunita Narain and the Center for Science and Environment (CSE).  In his words, “it all began” with his discovery of Mint articles archived at a site run by the CSE (www.indiaenvironmentalportal.org). The article claims that users and readers have absolutely no right to use Mint contents for any purpose unless The Mint expressly authorizes them. Mr Raju finds a gleefully irony in the fact that he can now accuse the CSE of a misdemeanor, as revenge for their having had the temerity to take on the Colas during their highly acclaimed pesticide campaign. I want to dwell briefly on his digs at the CSE, before addressing his observations on Copyright.

Coke
In relation to Sunita Narain and the CSE’s extremely hard fought campaign against the big colas, Mr. Raju scours the entire internet and finally handpicks this link - a monumentally stupid, 3 sentence piece in the National Public Radio’s website which says this.

“ In India, several states have banned the sale of Coke and Pepsi after a group called The Center for Science and Environment said the soft drinks contain unacceptably high levels of pesticide. The national government of India has said the Center’s data is flawed. But the state governments continue to ban the products.”

(I’m quoting the entire article, here and I hope Mr. Raju doesn’t give himself a nosebleed if he sees this)

While this snippet certainly does not tell you the “entire saga” of high toxicity levels in colas in India, it reveals much about Mr. Raju’s own worldview.

The CSE is a “group” – like the Taliban, the Bajrang Dal and the Indian Mujahideen – that is “prone to pointing fingers”, and is not the well-respected two-decade old research organisation that we know it to be. This ‘group’ is obviously populated by some nasty attention-seeking lunatics who are strangely influential amongst lowly state governments who irrationally ban the sale of colas. By contrast, the “national government of India” – the repository of reasonableness and true wisdom – is, however, wiser, and pooh-poohs the madwoman’s rants.

Undoubtedly, Sunita Narain is one of the many  “self-appointed guardians of right and wrong behavior in our society” whom Mr. Raju cannot abide. Coke and Pepsi would, of course, do nothing of the sort since, as we know, Coke is an honourable man. In fact, they advertise with him, these colas.

Here’s a snippet from another article that tries to capture what the real pesticide saga is about.

The most common pesticides detected by the CSE in the samples were Lindane, Chlorpyrifos, Heptachlor and Malathion. Lindane accumulates in fat tissues and damages the liver, kidney, neural and immune systems, and induces birth defects and cancer. Exposure to Chlorpyrifos adversely affects brain cell development. Malathion causes dna abnormalities at all doses.

According to CSE, the United States has restricted the use of Heptachlor to underground termite control. If the results are to be believed, therefore, they could have serious health implications for people.

Why should a global company which provides quality products globally provide a substandard product in India? Equally importantly, will our government give more importance to the threat of reduced investment vis-à-vis a possibly very real health threat to the public at large?

It’s a little shocking that the editor of a major national newspaper would exhibit openly his ignorance of important public issues. Or perhaps he is only exhibiting his antipathy towards them. In 2006, at a Global Meeting in Istanbul, Coca Cola issued special-edition coins with “Coca Cola Republic of Happiness” inscribed on them. More than a mere marketing gimmick, I imagine this “Coca Cola Republic” to be an actually existing borderless nation-state with a devoted population that includes people of Mr. Raju’s ilk. This population emphatically denies allegiance to any of the recognized constitutions of the world, and is opposed to being identified with the peoples of any country. The ‘other’ of this republic is not any one sovereign state, but the  “ordinary public” of the entire world.

Copyright
The pretext for this attack is equally ill-conceived. Mr. Raju is visibly pained that the CSE has not sought his express permission in writing before collecting the articles in its database. This “egregiously” violates, in his learned legal opinion , the Indian Copyright Act, 1957. At the heart of Mr. Raju’s attack is an extremely parsimonious view of freedom of speech and the press.