In my last post on the CSE-Mint controversy, I had confidently claimed, that the answer to whether CSE could claim a 'fair-dealing' defense, was a 'resounding no'. However a fine piece of legal analysis from the OriginalFake blog has forced me to recant the 'resounding no' and instead replace it with a timid 'maybe'.
OriginalFake is a blog founded by Mr. Prashant Iyengar of the Alternative Law Forum and it deals with the "politics of IP, Technology and Culture in India".
In my last post I had predicated my analysis on certain general principles of 'fair dealing' as laid down by Indian Courts. However after reading the post on OriginalFake I realized that I had missed out on a very specific 'fair dealing' exception that was laid down in Section 52(1)(m) of the Copyright Act. As most of you must already know, Section 52 deals with a whole range of 'fair dealing' exceptions. S. 52(1)(m) in particular allows the print media to reproduce any article on current economic, political, social or religious topics unless the author of the article expressly reserves to himself all rights to reproduction.
Section 52(1)(m) reads as follows:
The following acts shall not constitute copyright infringement:
(1)(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
In most cases the print media owns the copyright to all of the articles authored by their employees. This is usually done through the employment contract and is allowed for under the proviso(a) to Section 17 of the Copyright Act. The journalist however remains the author of the article. Section 52(1)(m) states that the author, as opposed to the owner, is the person who can block the article from being reproduced in other print media. To avoid the application of S. 53(1)(m) the journalist has to expressly state at the end of the article that he reserves to himself all rights to reproduction. It will not suffice for the newspaper, as the owner of the copyright, to put up such a notice in its name. Therefore despite the employment contract assigning the copyright to the newspaper, the journalist continues to own certain reproduction rights.
Most of the Mint's articles including the one pointed out by Narisetty do not carry a notice by the author expressly prohibiting other 'newspapers, magazines or other periodicals' from reproducing their work. Therefore under Section 52(1)(m) it is possible for other 'newspapers, magazines or other periodicals' to reproduce Mint's content without Mint's permission. As far as I know this is true of most newspapers in the world. Until Indian newspapers start carrying the relevant Section 52(1)(m) 'author notice' they are free to rip off articles from each other without any threat of copyright infringement suits. Come to think of it, I'm sure a lot of Indian newspapers, entering into licensing arrangments with foreign newspapers to reproduce certain weekly columns, will be thrilled to know that they can republish all these columns without having to pay a single penny for the same.
The moot point now is whether or not CSE's website will fall under the definition of 'newspaper, magazines or other periodicals'? However this is a discussion that I would rather leave to our readers - do feel free to comment on this issue.