Copyright: India
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Crafts copyrights
Sabyasachi Mukherjee and Sanganeri block prints
Shefalee Vasudev, August 22, 2021: The Times of India
Sabyasachi Mukherjee, among India’s foremost couturiers and a brilliant design mind, came under fire for interpreting Sanganeri block prints, a GI protected craft practised by Rajasthan’s Chhipa community, for his H&M collection Wanderlust. A section of learned crafts practitioners felt he was being insensitive to artisans and the heritage of the country of his imagination and business. “We are deeply pained by the missed opportunity that ‘Wanderlust’ has been for artisan livelihoods. The publicity material implies that the range is connected with Indian craft. However, it is not made by Indian artisans and with no visible benefit to them…” stated an open letter with about 200 signatories, including India’s most respected crafts leaders and representatives of advocacy groups.
Let’s divert for a moment to the concept of cross-wiring. While cross wiring is used in marshalling cabinets, creating beehive frames and is unavoidable in marriages or businesses, in psychology it is a particularly riveting concept. It causes synesthesia — a condition in which information meant to stimulate one sense stimulates multiple senses. Synesthetes “see” music when they hear it and can even assign it a colour. When they eat, they “taste” food textures as having shapes like square or round.
Cross-wiring is also an incredible metaphor. Use it as a lens here. Sabyasachi x H&M x Undefined crafts copyrights in India x No legal guidelines on artisanal signatures or IPR of heritage crafts (after 75 years of Independence and an intimidating posse of crafts advocates from Kamaladevi Chattopadhyaya onwards) x Routinely transgressed Geographical Indication (GI) norms without penalties x Where would Indian fashion be without Ajrakh, Patola, Bandhini, Jamdani, Kalamkari, Masulipatnam chintz, Banarasi, Sanganeri block printing, Ikat weaving, Chikankari, khadi etc?
So, if Sabyasachi’s collection for H&M has opened a can of worms, he could in fact take a congratulatory moment. India’s crafts sector needs this debate. Here is why.
1. It is high time that IPR issues find a mandate and clear consensus on ownership and move from proposals to policy. If the Ministry of Textiles could achieve just this one thing this year, it would strengthen the fabric of India. Because it is as much about a certain craft culture as it is about skills.
This implies legally defining plagiarism to differentiate between inspiration, copying, pattern replication, and degree of similarity to the original. It also needs to be spelt out if litigating parties must be legally registered businesses to seek legal recourse.
The “love to hate” Sabyasachi fest that has become an unfortunate recurrent spectator sport on social media by a mix of his fans and detractors indicates yet again the envy that the designer arouses. Also, let’s not forget that many fashion designers, small traders and boutique businesses copy his work! Everything from his visual campaigns to jewellery to lehnga-cholis has been replicated but not his success as a couturier and strategist with collaborations such as Christian Louboutin, Pottery Barn, Thomas Goode, Bergdorf Goodman. Whether you love Sabyasachi’s work or not, it is easy to see he has been at the receiving end of attacks while others get away with murder.
Instead of positioning this as a moral issue, which it is not, let us argue in favour of mindful altruism towards the crafts sector so that copyright, credit, and opportunity become the norm. Because truly it is hard to list well-known designers who used crafts in their work, some splendidly of course, but gave due credit to the artisan. Many continue to underpay craftspeople while making big brands out of traditional design vocabularies.
On the other hand, without intervention by some designers, from the yarn stage to dyeing, weaving or printing, packaging, marketing with experimentation, innovation and global-local ideas, Indian crafts would not be in “fashion”.
So instead of stone-pelting between the craft and fashion ecosystems, this provocation could lead to a transformative moment. If clear IPR guidelines are drafted, designers as well as craftspeople will be able to enter collaborative businesses without the mess.
On that note, it is crucial to underline that to support the efficacy of the GI tag, the Ministry of Culture with the Indira Gandhi National Centre of Arts (IGNCA) is setting up incubation cells to facilitate the development of GI crafts from food to perfumes and weaves. According to sources, IIM, NIFT and the Indian Institute of Crafts and Design have been invited to collaborate.
As a fashion and culture writer, I feel energised and enthused by this debate. Of course, the nine fashion magazines which put out orchestrated digital covers to promote the Sabyasachi x H&M collection, can well be judged by their covers.
Vasudev is the editor-in-chief of The Voice of Fashion
Ideas
No copyright for ideas, but copying expression is infringement: Delhi HC
Oct 17, 2023: The Times of India
Ahmedabad: Spare parts of computer hardware are not literary, musical or artistic works and thus an FIR cannot be lodged for violation of the Copyright Act for their sale, the Gujarat high court ruled.
In this case, Mayur Shah was booked in 2014 under Sections 51 and 63 of the Copyright Act for selling computer and printer spare parts, branding them as Hewlett Packard.
An FIR was lodged against him by an office-bearer ofIPR Vigilance Indian Company. Shah approached the HC for quashing of the FIR, and his counsel, Sachin Vasavada, argued that the Copyright Act cannot be invoked for registering the FIR without following a certain procedure, which was not done in this case. Justice Sandeep Bhatt quashed the FIR with the observation, “Even if the FIR is taken at its face value, it refers to items which do not fall within artistic work as defined under Section 2(c) of the Copyright Act, 1957. It cannot be said that the spare part is literary or musical work. It is not disclosed that the spare part is an artistic work that the provisions of Copyright Act, 1957 would apply.”
The court further said that the FIR did not disclose if the complainant had acquired any other right conferred under the provisions of the Copyright Act, 1957 and therefore, provisions of Sections 51 and 63 would not be applicable.
Music
Digital music streaming
Section 31(D) is applicable
The Times of India, Sep 08 2016
Govt clarifies copyright act applies to digital streaming services
In a decision that will help music streaming services, the Department of Industrial Policy and Promotion (DIPP) has clarified that all forms of broadcasting -including digital music streaming -fall under section 31(D) of the Copyright Act of 2013.
Section 31(D) of the Act offers statutory licensing (SL) to broadcasting services, allowing them the right to offer music to their consumers at rates determined by the Copyright Board. This provision was brought into the Act to protect broadcasters from abusive practices of some music companies, who demanded unreasonable and unjustifiable royalties before granting permissions. Though the wording of the clause was quite clear in the Act, music companies had tried to create an impression that the section didn't apply to digital music services. With this clarification, DIPP has clarified that section applies to all broadcasters including digital music services.
Commerce and industry Minister Nirmala Sitharaman told that the process for setting up the Copyright Board is on. She did not elaborate on the timeframe. Setting up of the board has been pending for a few years, but the minister has initiated the process. Government's clarification will bring major relief to services such as Gaana and Saavn, and will encourage them to renew commitment to their struggling businesses. Dhingana, another service, which was acquired by global giant Pandora, was shut down after being unable to fund music royalties. Guvera, an Australian music streaming service operating in India, is also struggling to pay its creditors. In addition, FM radio broadcasters have been unable to develop presence on digital because of the high costs demanded by labels.When asked to comment, an ex pert from a global consultancy firm stated: “Music companies should actually be giving their music at a very low cost initially to encourage multiple music services, which would help not only in curbing piracy but also in increasing their revenues from multiple sources However music companies have been thinking short term and increasing rates prohibitively making legal music services unviable and leading many of them to close down“.
In digital streaming, most music services are losing money significantly . Their royalty payments have grown by over 500% in the last four years, with built-in minimum guarantees to the labels. Digital broadcasters' revenues, however, have grown modestly as the business is taking time to develop. Labels also restricted how their music was used, initially offering web but not mobile rights, limiting how consumers could consume content, and restricting what partnerships digital music services could use.
Commenting on the clarification, Prashan Agarwal, COO of Gaana, said, “The clarification that internet companies are covered under SL is welcome. However, there was never any doubt in our minds that we were covered. This clarification will help the streaming industry grow and catch up with its peers internationally“.
Industry body IAMAI also issued a statement: “The clarification will also provide a relief to the spiralling annual licence fee paid to label companies that sometimes exceeded the revenue of many these startups....this clarification by DIPP now creates a level-playing field as the provisions of section 31D are not restricted to radio and television broadcasting organizations only , but cover internet broadcasting organizations also“.
Commenting on behalf of radio broadcasters, Prashant Panday , CEO Radio Mirchi said “Worldwide, radio broadcasters have moved towards streaming their on-air products as well as offering niche online products. Here in India, the huge minimum guarantees demanded by labels have made that impossible. What we forget is that the biggest losers in all this are the artists, the ones who deserve all the support and recognition possible“.
Music/ songs played in public
Only registered societies can grant licences: HC
HC bars 3 copyright bodies from giving music licences, Dec 29, 2016: The Times of India
New Year celebrations, the Delhi high court has restrained three copyright societies from issuing any licences for playing music and songs of various artists in public.
Justice Sanjeev Sachdeva, in an interim order, restrained the Indian Performing Right Society (IPRS), the Phonographic Performance Ltd (PPL) and Novex Communications Pvt Ltd from granting licences till April 24 next year, for alleged violation of section 33 of Copyright Act which mandates that only registered societies can grant licences in respect of copyrighted work.
HC also issued notice to the Centre, the Copyright Office, the three societies and the Federation of Hotel and Restaurant Associations of India seeking their replies to the plea of Event and Entertainment Management Association (EEMA) which has sought an enquiry against PPL, IPRS and Novex for allegedly violating section 33 of the Act. EEMA had moved court arguing that the registration of PPL and IPRS had lapsed on June 31, 2013, and has not been renewed yet, while Novex was never registered as a copyright society, yet they were issuing licences
Playing film music at weddings is not a violation: government
Neha Madaan, July 27, 2023: The Times of India
PUNE: The Union government has issued a directive that playing Bollywood numbers at marriage ceremonies and related festivities would not invite action over copyright infringement.
The move comes in response to the Centre accepting a plea made by the hospitality industry.
For years, event planners, hotels and individuals organising weddings would remain embroiled in issues with copyright firms demanding that they pay licence fee for playing copyrighted Bollywood music during such functions. But the demands were in violation of copyright laws, resulting in unnecessary disputes and financial burdens. The Centre's decision aligns with principles laid out in the Copyright Act, ensuring that the playing of copyrighted music at weddings is well within legal boundaries.
In the latest public notice, the department of promotion of industry and internal trade (DPIIT) said it had received multiple complaints from the public and stakeholders regarding the collection of royalties by copyright societies for playing music at marriage functions. This is in violation of Section 52 (1) (za) of the Copyright Act 1957 and does not count as infringement under the entire Section 52.
Specifically, Section 52 (1) (za) says playing a literary, dramatic or musical work or communicating it to the public during a genuine religious or official ceremony by the central government, state government or any local authority does not infringe copyright. This includes marriage processions and other social festivities associated with weddings, which are considered religious ceremonies under this clause.
DPIIT said copyright societies were directed to avoid actions that go against Section 52 (1) (za) to avoid legal action. "Additionally, the general public is cautioned against complying with any unwarranted demands from individuals, organisations or copyright societies that breach the section," it said.
Amit Sharma, president of the Poona Hoteliers Association and GM of Amanora The Fern, said, "As per the order on July 24, the government has clearly specified and stated that no permissions are required from any of the copyright societies for playing music during marriages and any associated festivities."
The order comes as a relief to the general public and the hospitality industry, which bore the brunt of pressures from various copyright societies, he said. "We welcome the move. A few of our association members are facing unwarranted defamatory suits - meant to harass them - in different courts in cities like Kolkata and Guwahati. Hopefully, the Centre's decision will help rein in the harassers and help the general public enjoy unhindered."
Textbooks
Photocopies can be issued
Abhinav Garg, Copyright is not a divine right: HC, Sep 17 2016 : The Times of India
Observing that “copyright is not a divine right“, the Delhi high court on Friday allowed Delhi University to issue photocopies of major textbooks published by leading publishers.
Justice Rajiv Sahai Endlaw held that the act of students getting books copied from DU's library or its authorised photocopy shop enjoys protection under Section 52 of the Copyright Act, which exempts education from copyright infringement.
In a 94-page order, the court essentially concluded that if DU can photocopy content within its library to impart education to students, then similar protection is enjoyed by the contractor, Rameshwari Photocopy Service. The modest shop in North Campus was thrust at the heart of the case by international publishers who sued it for copyright infringement in 2012, resulting in Friday's landmark verdict on intellectual property rights.
“Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public,“ Justice Endlaw observed.
A group of publishers, including Oxford University Press, Cambridge University Press and Taylor & Francis, had objected in their suit to the photocopy shop selling course packs, that is, compilations of photocopied portions of different books prescribed by DU as suggested reading in its syllabus.
The HC held that when texts are used by DU for imparting education and not commercial sale, it can't infringe on copyright of the publishers. Justice Endlaw recalled his own experience and noted, “In the times when I was studying law, the facility available of photocopying was limited, time consuming and costly . The students then used to take turns to sit in the library and copy by hand pages after pages of chapters in the books suggested for reading and subsequently either make carbon copies thereof or having the same photocopied.“
The court further noted that DU's action may be guided by the limited numbers of each book available in its library , the limited number of days of the academic session, the large number of students requiring the said book, and the fear of the costly books being damaged on being subjected to repeated photocopying. Therefore, it could not be dubbed a copyright violation. The court pointed out that if the facility of photocopying wasn't available, students “instead of sitting in the comforts of their respective homes...would be spending long hours in the library and making notes thereof “.
Responding to the verdict, the publishers in a joint statement said, “It is unfortunate that the court's decision today could undermine the availability of original content for the benefit of students and teachers.“
Name of school
Alumni can't use
The Times of India, Apr 19 2016
DPS alumni schools can't use name: HC
Abhinav Garg
The Delhi high court restrained a franchisee of schools floated by a group of Delhi Public School alumni, including former Union minister Salman Khurshid, from using “DPS“ on the ground of trademark infringement and copyright violations.
Justice V K Rao directed DPS World Foundation to drop the word from its operations and al so barred any of its agents, trustees, members, employees, franchisees, assignees etc from using the word claimed by Delhi Public School Society .
DPS World Foundation is headed by Louise Khurshid, wife of Salman who himself is a life trustee along with other wellknown people such as Montek Singh Ahluwalia. It runs schools in several cities, including Greater Noida, Patna and Pune.
In a detailed order on Mon day , Justice Rao held that the recently launched initiative had infringed on the right of DPS Society and they couldn't claim that by virtue of being “DiPSites“, the word could be relaunched in a new mode.
The order came on a suit filed by DPS Society accusing the foundation of trademark violation by using the DPS acro nymn in schools affiliated to the latter's trust.
The society learnt that DPS World Foundation had launched schools using the name and a deceptively similar logo that is also reflected on its website, said its lawyers, Sandeep Sethi and Puneet Mittal. Seeking permanent injunction, the society said the public was being misled that DPS World Foundation had a connection or even a nexus with Delhi Public School.
Personality rights
The Anil Kapoor case/ 2023
Malavika Prasad, Sep 24, 2023: The Indian Express
Rajinikanth’s name, Amitabh Bachchan’s baritone and now Anil Kapoor’s style. These are some of the personality rights that celebrities are trying to protect. The Delhi High Court this week allowed Kapoor’s pleas for protection of his personality rights from misuse by third parties.
What is a personality right?
The name, voice, signature, images or any other feature easily identified by the public are markers of a celebrity’s personality and are referred loosely as “personality rights.” These could include a pose, a mannerism or any aspect of their personality. Many celebrities even register some aspects as a trademark to use them commercially. For example, Usain Bolt’s “bolting” or lightning pose is a registered trademark.
The idea is that only the owner or creator of these distinct features has the right to derive any commercial benefit from it. Exclusivity is a big factor in attracting commercial dividends for celebrities. So unauthorised use causes a tangible loss of revenue.
Celebrities can move the Court and seek an injunction when an unauthorised third party uses their personality rights for commercial purposes.
How does the law protect the right?
Personality rights or their protection are not expressly mentioned in a statute in India but are traced to fall under the right to privacy and the right to property. Even as the Delhi High Court and the Madras High Court have passed interim orders, the law is at a nascent stage in India.
Many concepts in intellectual property rights used in protection of trademarks such as passing off, deception can be applied while deciding whether a celebrity deserves to be protected through an injunction.
In the case of Anil Kapoor, the Delhi High Court granted an ex-parte, omnibus injunction restraining 16 entities from using Kapoor’s name, likeness, image, using technological tools like Artificial Intelligence, face morphing and even GIFs for monetary gain or commercial purpose.
An ex-parte injunction is when relief is granted to a party without hearing the other side. An omnibus injunction refers to an injunction granted against any unauthorised use- even those that are not mentioned in the plea.
The injunction acts as a deterrent. However, even when a Court grants an injunction, it is not easy for a celebrity to track all misuse and take action. The celeb has to then issue a takedown order to an online intermediary like Google to have them removed. These legal processes have significant costs involved but could still be beneficial compared to the loss in revenue to the celebrity.
How have Indian Courts decided so far?
Anil Kapoor had moved the Delhi High Court in a civil suit seeking protection of his personality- his name, photographs, manner of speaking, gestures etc. He also claimed protection of his copyright in the dialogue and in the image and other associated works.
Kapoor’s lawyer, intellectual property rights specialist Pravin Anand argued that several defendants had misappropriated Kapoor’s name and elements of his persona to earn profits. For example, the expression “Jhakaas”, Kapoor’s trademark dialogue is a Marathi slang word but is popularised by Kapoor in Hindi films. The lawyer cited news reports stating that the manner in which Kapoor delivers the expression is exclusively associated with him.
Anand distinguished the unauthorised use from “fair use.” A fair use would be for example depiction in news, teaching material or other non-commercial uses or even artistic uses like mimicry or satire which is a copy but not mere reproduction. However, if a third-party uses it to profit from it, it cannot be termed fair use.
Earlier in November 2022, the Delhi High Court had dealt with a similar case involving Amitabh Bachchan. From using variations of his name such as “Big B” to including his “unique style of addressing the computer as’ Computer ji‘ and lock kiya jaye”, the HC injuncted the use of his personality rights.
The HC had relied on a 2012 order which also involved Bachchan. Titan Industries, the Tata company which also owns the jewellery brand Tanishq had moved the HC against a Muzaffarnagar-based jewellery store for using Bachchan’s images from the Tanishq advertisement.
In 2015, the Madras High Court, in a similar case involving actor Rajnikanth had observed that “personality right vests on those persons, who have attained the status of celebrity”. The court’s observation came in the actor’s lawsuit against the producers of the movie “Main hoon Rajnikanth” claiming that his name, image, style of delivering dialogues had infringed his personality right.
The HC had observed that from the title of the movie, the public viewing the movie would identify it with only the actor alone. The court said that the producers after admitting that the actor has a high reputation can’t now say that Rajnikanth is a common name.
When can the Court grant an injunction?
In the Titan case, the HC in its order listed out the “basic elements comprising the liability for infringement of the right of publicity.”
First, the right has to be valid. This means that the Court must be satisfied that the “plaintiff owns an enforceable right in the identity or persona of a human being.”
Second, is that the celebrity has to be easily identifiable in the alleged misuse. “The Celebrity must be identifiable from defendant’s unauthorized use Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable,” the HC had said.
On how to prove that the celebrity is identifiable, the HC said that a simple “unaided identification” should be enough if the celebrity is well-known. Otherwise, the plaintiff will have to bring evidence “of a number of elements in the context of defendant’s use which add up at a geometric rate to point to the plaintiff.”
Scriptures
Scriptures are copyright-free, but adaptations are protected: HC
Malavika Prasad, Oct 19, 2023: The Indian Express
Large-scale infringement of copyright of publisher Bhaktivedanta Book Trust, set up by ISKCON founder Srila Prabhupada, says court. How does copyright of religious texts work?
The Delhi High Court has found “large-scale infringement” in the reproduction on the Internet “of… copyrighted works” of the Bhaktivedanta Book Trust, which publishes books and commentaries on Indian religious philosophy and spiritualism, especially classic Vaishnava texts.
The Bhaktivedanta Book Trust was established in 1970 by Bhaktivedanta Swami Prabhupada (Srila Prabhupada), who also founded the Gaudiya Vaishnava religious organisation International Society for Krishna Consciousness (ISKCON), colloquially known as the Hare Krishna Movement.
Are religious texts protected by copyright?
Religious scriptures are in the public domain, and in copyright law, no exclusive intellectual property rights apply to creative works in the public domain. So, the Old Testament and New Testament, or the King James Version (KJV) of the Bible, one of the most widely used translations of the Bible, are not protected by copyright.
However, many modern translations of the Bible are copyright-protected because they represent new creative works by the translators.
For example, the New International Version (NIV), which was first published in 1978, is copyright-protected, and permission would be needed — or the terms set by the holder of the copyright would have to be followed — in order to use the NIV text for certain purposes. Also, while the Ramayana and Mahabharata are not protected by copyright, the television series Ramayana created by Ramanand Sagar or B R Chopra’s Mahabharata are “transformative works” that would be protected.
What does the copyright law in India say?
Indian copyright law protects “original work” — a creative and independently created expression fixed in a tangible medium. The law grants the creator/ author of the work the exclusive right to “use, reproduce, distribute, perform, and display their work”.
The law also protects transformative work which is a creative/ artistic work that takes existing material (text, music, art) and significantly modifies, reinterprets, or builds upon it to create something new and distinct. For example, the comedy group AIB’s 2015 spoof video ‘Every Bollywood Party song’ starring the late actor Irrfan, was a parody of rapper Yo Yo Honey Singh’s ‘Party all night’, and it would not amount to infringement as it can be termed as inspired work.
What was the case of the petitioner Bhaktivedanta Book Trust?
The trust said that its founder’s works published in various Indian and foreign languages had “simplified the religious books and scriptures” making it easy for the common man to understand. The copyright of his work would vest with the trust after he died in 1977.
The trust claimed that certain websites, mobile apps, and Instagram handles were making available a large number of the trust’s copyrighted works “almost in a verbatim manner on their online platforms” without its permission, which amounted to infringement.
And what did the HC say?
In its interim order, the court said adaptation of the scriptures, including “explanation, meaning, interpretation or creating any audio visual works”, would be entitled to copyright protection. The court said this is so because these are the original works of the authors themselves.
“Thus, there can be no objection in the actual reproduction of the text of Srimad Bhagavad Gita or similarly other spiritual books. However, the manner in which the same is interpreted by different gurus and spiritual teachers being varied in nature, copyright would vest in respect of the original parts of the literary works which preach, teach or explain the scripture,” the court said.
The HC added that since Srila Prabhupada had himself handed over the copyrights to be administered by the trust, the works cannot be “reproduced without authorization, licence or the permission” of the trust.
The HC found that the shlokas in Prabhupada’s books, as well as their anuvaad (translation) and tatparya (intention) had been reproduced by the defendant entities. The court agreed that if not checked, such piracy would cause an “immense loss” of revenue to the trust.
