In the creative space, there is a thin line between “inspiration” and “imitation.” A stark similarity between works of art often stirs the question about which one is the original. This conundrum is clarified to some extent by our laws which determine the originality of a work based on “who did it first” instead of “who thought of it first?” The fulcrum rests on the expression and not the idea. So, while you may be inspired by an idea, you cannot imitate its expression unduly. This issue has hit the headlines recently with the popular storytelling platform, Humans of Bombay (HOB) suing another platform, People of India (POI) for copyright infringement of their posts. It must be worthwhile to mention that the format of visual storytelling followed by both platforms can be traced back to the Humans of New York platform, which has not made any copyright claims.
The Delhi High Court on Wednesday, while hearing HOB’s suit for issuing an injunction against POI, emphasised that copyrights arise only in the case where there is “substantial imitation” in expressing an idea but not in the idea, per se. It forbade both platforms from replicating any original and commissioned image or post of each other. Copyrights for such work will exclusively rest with the respective platform but it held that there was no restriction on operating a model of storytelling even if they are based on similar ideas. It also highlighted that if any third person shares their story or image with both platforms, then neither can make any copyright claims.
In this Weekly, let us decode what counts as a copyright infringement in India.
What is Copyright?
Simply put, copyright is the right of a creator over their creation. In India, the Copyright Act, 1957 determines the rights of the creator over the use, attribution, enjoyment and transfer of any literary, musical, dramatic, creative, design or cinematic creation. A creator gets a copyright as soon as they create a work and it acquires a shareable form. The creator of any work becomes the “first owner”, except in commissioned work where there is a written agreement granting the copyright to the commissioner. This prevents any other person from reproducing such a creation as their own.
Does the creator have to register their creation to claim copyright?
Under the Indian law, it is not mandatory to register the copyright over any creation. A certificate of copyright registration is not conclusive proof of your ownership of the copyright. It does, however, make it easier to prove your ownership over the work before a court of law.
What are the protections given to the creator under copyright laws in India?
The 1957 Act grants exclusive moral and economic rights to the creator. The copyright owner can either authorize or prohibit anyone from reproducing or broadcasting the work, making copies and adaptations, using the work for public performance etc. Copyright grants the creator the right to derive financial benefits from the creation. It also protects the moral rights like being identified as the author of the work and due credits. These rights are vested in the creator perpetually.
If the copyrights of a creator are breached, they can approach the court seeking either an injunction or damages and other legal remedies from the accused. Copyright violation is a cognizable crime in India. It can be punished with jail time of up to 3 years and a fine of at least Rs. 50,000. The police can seize any copies of a work which have allegedly infringed on an author’s copyright.
Are there any exemptions in the case of copyright ?
As the Delhi High Court reiterated in the current case, it is a settled position of law that there cannot be any copyrights over any creative idea. You cannot claim monopoly over any concept or an idea but only over its material form. Further, there exists the Fair Dealing Rule wherein reusing a work that is under a copyright is permitted as long as it is done in certain limited amounts and for a specified purpose. Under section 52 of the Act, some of the common instances of Fair Dealing are :
- For academic purposes like research and private study;
- For critique or review;
- For reporting current events or news;
- For the purposes of any judicial proceeding;
- For performance by a non-professional artist, if the performance is pro bono;
- Recordings of any literary, dramatic or musical works, subject to certain conditions.