I recently attended a roundtable conference on Patents and Copyright where Professor Shyamkrishna Balganesh, noted copyright scholar from the University of Pennsylvania, was talking about the development of the fair use doctrine in a U.S. context and how there is an unstated dependence on institutions (the judiciary/ U.S. Copyright Office) to do this task. I was concerned that India might have to suffer the burden of such institutional dependence, given the slow pace of case law development and the relative ineptness of the Indian Judiciary in understanding technological advances and its impact on copyright law.
In my view, the courts in India just don't do enough (and can't, given the long & protracted litigation trends in India) to advance the fair use doctrine in India and I had suggested that this institutional burden be shifted to the Indian Copyright Office, to resolve fair use issues (for example whether 'jailbreaking' in India is legal or not) quickly without having to go to courts.
But a recent decision of the Delhi High Court (August, 2012) has all but changed my mind, given the level of detail with which they have treated this matter. I will discuss the case facts and operative parts of the judgement in the following post, but for now, I will analyse the important issues to emerge from this judgement on the development of the fair use defence under Indian law.
I consider this to be not only an important academic issue that scholars and students can examine in depth, but also important for practitioners who might have to rely on alternative defences where Section 52 of the Indian Copyright Act seems insufficient.
The fundamental issue at hand is whether the legal doctrine of de minimis non curat lex can be used in a copyright law context to fight a claim for infringement in India. The associated issues revolve around whether de minimis constitutes a defence separate from the fair use defence provided under S.52 of the Indian Copyright Act, or it is to be used in conjunction with the latter.
DE MINIMIS IN COPYRIGHT LAW
The judges in this case focussed their attention, and in my view, have made very relevant observations on the application of the de minimis non curat lex maxim in copyright law. So what does this doctrine mean? De minimis is translated as 'the law does not concern itself with trifles'. Thus, simply put, the maxim basically means that law will not resolve petty or unimportant disputes.
It is obvious that this maxim has important implications for copyright law, given the massive volume of petty copyright 'infringements' that take place on a daily basis without us even realising it.
- Have you ever printed a poster of your favourite band to hang in your room? Infringement.
- Have you ever sung Happy Birthday out loud ('publicly performed') at a birthday party? Infringement.
- Have you taken a picture of a copyrightable work on your smartphone? Infringement.
But you, the courts and I will agree that such cases should not be adjudicated in a court of law. They're just too trivial to waste the time of the courts to resolve the dispute.
THREE PATHS OF DE MINIMIS IN COPYRIGHT LAW
The judges (Justice Pradeep Nandrajog and Justice Manmohan Singh) after scrutinising available literature and case law, identify three distinct paths in the field of copyright law in relation to the maxim of de minimis.
1) SUBSTANTIAL SIMILARITY
It is found that the doctrine of de minimis has an important impact on the question of 'substantial similarity'. So to say that the impugned use is 'de minimis' is to say that the alleged infringing work is not substantially similar to the original, and therefore one can escape liability on this ground.
So from a practitioner's perspective, this would be useful to argue in cases where there is a dispute involving portions of copyrightable works being copied literally, although it differs in structure/form. But for example, the case recently reported by Shan involving the television show 24 and the allegedly infringing Indian version 'Time Bomb', will not be a fit case to argue the de minimis factors since the 'structure/format' itself was alleged to have been copied (besides the fact that the commercial nature of this venture will weaken the argument considerably). It is perhaps also important to keep in mind that 'observability' is an important aspect of the test of substantial similarity (basically, 'what would the audience think?') and hence the application in audio-visual works might be considerably different.
The judges observe that there have been conflicting decisions on when copying of literal/non-literal expressions have been held to be more than de minimis, thus giving rise to an actionable claim - and this is a continuing source of concern on establishing the application of de minimis in cases involving 'substantial similarity'. But to my mind, this is only a question of degree, and practitioners can take solace in the fact that in cases where there is a distinct structure with only small bits of literal expressions being lifted, the de minimis maxim should certainly apply.
2) OTHER AREAS OF LAW
In declaring the need to apply the de minimis doctrine as applied in other areas of law to the law of copyright as well, the judges relied on the decision Davis v. Gap. It becomes quite clear that copyright law is a field that witnesses the most cases of trivial violations, and if it is applied to other areas, then why not copyright law? I have elaborated upon this point in greater detail below.
3) FAIR USE ANALYSIS
Another path chartered by the Courts, is to apply de minimis to the fourth factor of the fair use test - the effect of the use upon the potential market for or value of the copyrighted work. To put this another way, one could state that de minims will apply if it shown that it will only cause trivial (insignificant) harm to the copyright owner. I found this to be the most interesting and a a very keen observation on the part of our Indian judges.
The issue that then arises is this: is this a distinct defence or is it to be used in conjunction with the fair use defence under Section 52 of the Copyright Act? From a reading of some cases that deal with this issue, it is discerned that there are two distinct theories applicable here:
Firstly, the maxim can be used as an alternative to fair use in cases where the damage done is trifling. Secondly, as a help to describe the conclusion with respect to a factor of fair use.
Thus, it is inconclusive whether a new substantive right has been created to rebut an infringement claim, by use of the de minims maxim, or if it is merely of persuasive value in arguing a Section 52 defence. But it is fairly clear from this decision that de minimis can be used in copyright law as well.
JUDGES ARGUE WHY DE MINIMIS SHOULD BE USED IN COPYRIGHT LAW AS WELL
The judges provide three main reasons:
1) Firstly, they say that the fair use concept is a bad theoretical fit for trivial violations. I do not entirely agree with this sentiment since certain fair use defences such as 'for personal/private use' are conceptually based on the de minimis doctrine. However, it is still a valid assertion.
2) Secondly, they say that de minimis analysis is much easier. This is very persuasive given David Nimmer's extensive analysis of over 60 fair use cases, which shows that there is no discernible test in determining what constitutes fair use and what persuades a judge to decide a fair use case either way. A de minimis analysis on the other hand, is less subjective in my opinion.
3) Thirdly, they say that a de minimis determination is the least time consuming and it is in the interest of the parties and the courts to use it. Again this is a valid point since litigation involving fair use have dragged on for ages in the past.
It is perhaps also important to reference the objections raised by Pravin Anand in the course of this hearing to this point. Mr. Anand relied on the treatise of the renowned copyright scholar Professor David Nimmer where he says that de minimis is not a viable copyright infringement defence. However, the judges rejected this argument stating that the mere lack of consistency in judicial opinions on this point is no ground to conclude that de minimis is not a viable copyright infringement defence.
DE MINIMIS FACTORS
Given that de minimis has been held to be a valid defence to a copyright infringement claim, it is useful to set out the factors in such an analysis:
(i) the size and type of the harm,
(ii) the cost of adjudication,
(iii) the purpose of the violated legal obligation,
(iv) the effect on the legal rights of third parties, and
(v) the intent of the wrongdoer
Thus, it is fairly clear from this decision that despite the relative uncertainty about its nature and application, it is clear de minimis can be used in copyright law as a valid defence to a claim for copyright infringement. Aside from the recent decision in the MySpace case which I have covered here and here, I find this to be one of the most significant Indian copyright law cases this year - if not for the simply fact that it explains the concept in detail, it is also useful to practitioners in providing an alternative defensive path, where S.52 of the Indian Copyright Act falls short. And in a world where copyright 'violations' in the strictest sense of the law occur left, right and center, I think this is an invaluable decision for Indian copyright law.
I will be examining the application of this maxim to case facts in my next post.