From my abode of a year and a half (Gelman Library’s top floor), I wish all readers a very happy world book and copyright day! Not only are books a man’s closest companion but as Shakespeare puts it, “a force to counter the common curse of mankind – folly and ignorance“. The World Book and Copyright Day is celebrated by UNESCO to commemorate Shakespeare’s death anniversary and to promote the culture of reading, publishing and copyright.
This phrase, ” the culture of reading, publishing and copyright” poses an interesting quandary. The quandary being the jurisprudence of copyright protection. Between 1589 and 1613, when Shakespeare produced his seminal literary works, there was no form of copyright regulation in England. Nevertheless, the Bard of Avon was undeterred to pen his thoughts. It was only after many years of his death, that the first IP legislation – the Licensing of the Press Act, 1662 was enacted in England. Even then, it was only in 1710 with the passage of the Statute of Anne by the British Parliament that copyright protection was conferred to literary works. Hence, testifying that copyright was not necessarily an incentive for creative expression, for one of the greatest English writers flourished in absentia of a copyright regime.
Infact, just last night over dinner I was asked about the copyrightability of certain English works. My father’s dear friend – Mark Turner has a quaint hobby of collecting Regency charades (a form of rhyming riddles) and subsequently blogging about it. Due to their antiquity, locating original versions was not only difficult but extremely expensive. However, he was successful in procuring their reprints from various sources and is perhaps one of the handful owners in the world of such a Collection.
He asked me if he was violating copyright law, even though it was purely a non – commercial activity. Considering that these charades were written during the Regency period, which ran roughly from 1776 through the 1830’s, they were copyrightable subject matter under the Statute of Anne (which was enacted in 1710). He breathed a sigh of relief on being told by me that he need not worry. All these works had fallen into public domain and could be used without seeking permission of their authors. Another interesting thing about these riddles is that majority of them were penned under a pseudonym. Had these works not fallen into public domain, a bigger issue of orphan works had to be combated. (On a side note, try guessing some of these riddles. Apart from being fun, they’re a good exercise for the gray cells!)
On the World Copyright Day, I want to highlight this year’s two noteworthy copyright developments at the domestic and international front –
(i) The transfer of the Indian Copyright Office from the Ministry of Human Resources and Development to the Department of Industrial Policy and Promotion. I’ve written about this here.
(ii) A very critical time for the WIPO Broadcasters Treaty (The Treaty) : The 47th WIPO General Assembly ended in a political stalemate over several issues on the impeding WIPO Broadcasters Treaty. In the upcoming WIPO Standing Committee on Copyright and Related Rights (SCCR), if the national governments do not explicitly come out in support of the Treaty, it could spell doom and perhaps mark the end of a road map for an international legal framework for protection of broadcasting organizations.
The harbinger of India’s IPR Policy is the latest to be mired in a plagiarism row. Allegations have been levied against the Department of Industrial Policy and Promotion for plagiarizing several portions in the recently released consultative paper on Standard Essential Patents.
I did’nt have the chance to dig deeply into the paper (being swamped with my own research paper! ). If true, this is reflective of a very disturbing trend. Coming up with something original is arduous but giving credit not so much.
Some of you may be aware that one of my published note was mired in a controversy wherein I had suspected it to be plagiarised by a law firm. Though the matter has been resolved ( gladly the partner understood my concerns and pulled it down from their website), the reaction it garnered was somewhat surprising.
Apart from minor overlaps, copyright infringement and plagiarism are quite distinct. While it is normal for a layman to be unable to distinguish between the two, same is not expected from IP lawyers. Hence, I’ll take this opportunity to differentiate between these two, often interchangeably used terms.
(I) The Legal v. Ethical Debate : Nature of the Two Wrongs
Plagiarism is usually an academic wrong and is not per se illegal (Hence, the paradoxical title of this post!) While, copyright infringement subsists even in non – academic settings and is illegal. It is a codified wrong under a country’s copyright law ( 17 U.S.C § 501 is the U.S. law on copyright infringement while it’s Indian counterpart is Section 51 of the Indian Copyright Act, 1957)
Hence, it may be perfectly legal to plagiarize someone’s work, ethically it would be on shaky grounds. (especially if the plagiarist happens to an academic or a student writing a class paper)
(II) The Idea- Expression Dichotomy : Paramount Difference
The idea-expression dichotomy recognized by Article 9.2 of TRIPS is the paramount distinction between copyright infringement and plagiarism.
For a copyright infringement claim to be successful, it is imperative for the expression which embodies an idea to be copied. Whereas, plagiarism exists when ideas are stolen or passed off without due attribution even if there is no replication of the fixed expression. (See here for Oxford’s definition of plagiarism)
Substantially paraphrasing an author’s sentence or quote is not copyright infringement but could be plagiarism if the main essence or idea behind the author’s work is lifted without due credit. Infact, there is an acute unawareness about paraphrasing being one of the types of plagiarism.
Oxford classifies paraphrasing as a type of plagiarism. It is defined as –
“Paraphrasing the work of others by altering a few words and changing their order, or by closely following the structure of their argument, is plagiarism if you do not give due acknowledgement to the author whose work you are using.”
Thus, two academic articles on the same topic may be strikingly different ( in terms of the expression conveying the idea) but may nevertheless be plagiarized if there is an intellectual hijack over an author’s research or the argument conveyed without due acknowledgement. Further –
“A passing reference to the original author in your own text may not be enough; you must ensure that you do not create the misleading impression that the paraphrased wording or the sequence of ideas are entirely your own.”
Claiming proprietary ownership over an idea or the sequencing of ideas ( since the way an author chooses to structure his/her work is an idea in itself) without due attribution would be plagiarism. Same holds true for a compilation of views and opinions of others, even if paraphrased ( For more on academic plagiarism, read here)
(III) Remedies : When Suing is an Option?
Unfortunately, the girl’s name SUE is not a remedy for most types of plagiarism! Though it is a gross violation of academic integrity with potential serious consequences ranging from expulsion of students, to academics losing their jobs ( the ex- DU VC Dr. Dinesh Singh was charged with plagiarism by the Delhi University Teacher’s Association, though the charges were not proved) and an overall tarnishing of a scholar’s image.
Remedies for copyright infringement ( depending upon the jurisdiction) varies from civil, criminal to administrative. Hence, the advise of, ” Don’t wait and SUE” certainly holds weight for copyright infringement!
(See here for remedies under US Copyright law and here for remedies under Indian Copyright law)
With recent advancement in technology, it is easy to spot copyright infringement. However, academic plagiarism (especially plagiarism by paraphrasing) due to it’s unpredictable nature is often difficult to spot and subsequently prove.
Given the degree of shrewdness required to camouflage an intentional academic plagiarism, I view the plagiarist as a bigger pirate than the copyright infringer (not to say that copyright infringement is a lesser offence).
“The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works…Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”- Circuit Judge Pierre Leval in Authors Guild v. Google, Inc. (Page 13).
These words of Judge Leval resonate and once again reaffirm that public interest trumps intellectual property law. In an appeal from the U.S. District Court for the Southern District of New York, a three-judge panel of the U.S. Court of Appeals for the Second Circuit upheld Google Books Library Project’s legal status. The litigation arose in the aftermath of Google making digital copies of tens of millions of books (without authors consent) submitted to it by world’s major research libraries with the aim of making snippet view of these books available to Internet users for search.
The authors in dispute contended that Google was engaging in “massive copyright infringement” by it’s display of search results to book-seeking users.
The Court answered in the affirmative. Google’s unauthorized digitization of copyright-protected works for creating a search functionality and display of snippets from the works were non-infringing fair uses on account of following reasons –
(i) The purpose of the copying was highly transformative –
Google’s act of making digital copies of books facilitating a search function was transformative as it had the effect of augmenting public knowledge by making available limited information about the author’s books. Further, Google’s search functionality was not a substantial substitute for author’s copyright protected works (For instance, an intended reader of Jim Bouton’s – Ball Four will in all probability not read the book on Google’s online library as only limited snippets from the text will be available for public viewing. Hence, the reader will have to explore other alternatives for procuring a copy).
(ii) The public display of the text was limited –
The Court concluded that since a snippet view never revealed more than one snippet per page in response to repeated searches for the same term, it was difficult and almost impossible for a searcher/ reader to gain access to an extended and continuous discussion of the term. However, the Court also expressed that if the snippet view could be used to reveal a coherent block of text amounting to 16 % of the total text then that would raise a very different question beyond the scope of the present dispute.
Suffice is it to say that, since the snippet view (in it’s present form) did not give continuous and coherent view of a large portion of text, hence was within the confines of fair-use.
(iii) The revelations (the portion of the text from the book that was made visible) were not significant market substitute for the protected part of the works in question –
The Court concluded that the snippet view functionality as presently structured by Google substantially protected against its serving as an effective competing substitute for author’s copyrighted works. Further, no snippet view was provided for books such as dictionaries and cook books – for which even a small percentage of view would fulfill a searcher’s needs.
The Court also stressed upon that the manner and order of the text as revealed to searchers was as important as the percentage of copyrighted text revealed. Hence, even if the search function of Google’s online library revealed 100% of the text of the copyrighted works, there would be no substitutive value if the words were revealed in an alphabetical order, or in an order otherwise not followed in the original copyrighted work.
(iv) No denial of fair use could be found on the mere nature of Google’s commercial nature and it’s profit motivation –
Even though Google does not receive any direct revenues from its operation of the Google Books function, the authors (plaintiffs) contended that Google was motivated by profit and sought to use it’s dominance of book search to fortify its overall dominance on the Internet search market. Thus, implying that Google indirectly reaped profits from the Google Books function.
The Court rejected this argument. Based upon precedent, (U.S. Supreme Court’s decision in Cambell v. Acuff- Rose Music Inc. ) it held that Google’s profit motivation (if any) should not deny it fair use over its highly transformative book search facility, given the absence of significant substitutive competition.
(v) Google’s act of making the digitized copies of the books available to the libraries that provided the book, on the understanding that they will be used within the limits of copyright law did not amount to infringement –
The Court rejected plaintiff’s argument that Google’s contract with participant libraries for making digitized copies available to the latter for non-infringing fair use purposes amounted to infringement. The Court held that the present arrangement was not any different had the participant libraries made their own copies for fair use digital searches.
Further, the Court observed that based upon present record, the possibility that the participant libraries may misuse the digital copies was mere speculation. Also, there was no evidence on record to hold Google liable for contributory infringement.
The Way Forward/ Conclusion
I can only warmly welcome Judge Leval’s well reasoned and persuasive decision which once again reaffirms the public interest function of copyright law. Though not a ground breaking decision as far as the interpretation of contours of fair-use goes, my now somewhat copyright sharpened eyes can visualise following anomalies –
(a) “But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect ‘upon the potential market for or value of the copyrighted work” -Page 35 of Authors Guild v. Google, Inc.
This excerpt from the decision raises a question which has been left unanswered by the Court – “how should significant or meaningful effect upon the potential market be quantified?” – would it be loss of few sales in the primary market or would it even extend to the market for derivative rights?
While I understand that addressing this question would have been judicial overreach, it would have benefited had the Court made a cursory remark based on the facts of the present case.
(b) ” The contract between Google and each of the participating libraries commits the library to use its digital copy only in a manner consistent with copyright law, and to take precautions to prevent dissemination of their digital copies to the public at large.” – Page 44 of Authors Guild v. Google, Inc.
The delay in publishing this post (even though I had read the decision on the day it was penned down) has primarily been due to my struggle with the quoted excerpt of the decision. During one of the brainstorming sessions, my otherwise highly astute IP lawyer friend raised a pertinent question (stemming from a strong patent focus), – ” How can a searcher/reader access full scanned copies of the book?”.
Two alternatives come to my mind – either by entering into a license agreement with the participating libraries (how will the specifics of the license play out is something I am still struggling with) or with Google (however if a license is entered between the searcher and Google without providing for a royalty to the author, Google’s fair use argument for it’s Library Project will fall at it’s face). Some have even suggested that the latter alternative might not even be an option since Google never actually sought the consent of authors.
Hence, these are precisely the sort of questions that have been left unanswered by the Second Circuit, leaving much to anticipation.
( I hope to get a better insight into these issues from none other than Professor Brauneis and Professor Oman , who I intend to meet on October 22nd at the GW AIPLA Networking Reception. This also serves as a gentle reminder to all G.W. IP lawyers in and around Washington D.C. – you may not want to miss this!).
Being a public spirited person and as an ardent supporter of the open access movement (keeping aside the copyright lawyer in me at bay), I raise the utilitarian value of the Google Books Library Project – if after expending massive resources on digitizing rare books, searchers cannot access the full digitized(scanned) copies without entering into esoteric license agreements (capable of being understood only by lawyers) then the limited purpose served by the Google Books Library Project is unfathomable to me.
As a bibliophile myself, I can only pray that the Supreme Court takes note of the public utility function of the Google Books Library Project, without getting throttled by a restrictive fair-use regime.
While I had solemnly resolved not to inundate the followers of this blog with another piece this week, the hyperactivity stems from another path breaking decision on “fair-use” rendered by the U.S. Court of Appeals for the Second Circuit.
Circuit Judge Pierre Leval (for me his status is nothing short of a demigod) noted that Google was within the boundaries of fair-use for making short snippets of 10 million books online. The Court found that the project served public interest without violating intellectual property law.
This is a massive win for crusaders of access to knowledge movement , which was lately being throttled by an overtly protectionist and restrictive copyright regime.
The decision is not yet in public domain. As soon as it is available, I will analyse the contours of “fair-use” for the benefit of readers (not to mention that this decision directly impacts my current work!). My guess is that the decision will be nothing short of atleast 50 pages (tell only will tell!).
Profuse apologies for the unusual delay in getting back to from where I left of last time. I have been swamped with work and other professional commitments which are on the verge of taking a toll on my mental health. To the utter dismay of some people, before diving into from where I left last time, I will momentarily digress from the topic under discussion. This is to highlight a landmark decision on US Copyright Law .While a sincere attempt has been made to avoid legalese, occasional usage of the same is indispensable; lest it be oxymoronic to the topic under discussion (After all this a legal blog, even though the primary objective is to decode the complexities of IP law to a layman).
9th Circuit sets new “Fair Use”Precedent [ Lenz v. Universal] : “Copyright holders to consider fair use before sending takedown notices”
Hence, was the plight of Stephanie Lenz – a Pennsylvania based mother. Universal Music Corporation (who was at that time enforcing Prince’s copyright) served her with a DMCA TakeDown Notice on grounds that Prince’s song was the focal point of the video (Watch the video and analyse how “focal” the music is. To me the dominant aspect of the video are the adorable children and not the music!).
After YouTube removed the video, in 2007 the Electronic Frontier Foundation on behalf of Lenz sued Universal on grounds of failure to consider lawful “fair use” before issuing the takedown notice. The US Court of Appeals for the Ninth Circuit held that the rigors of the Copyright Act mandated copyright holders (Universal in this case) to analyse “fair use” before asking online service providers like YouTube to remove content that they controlled.
In an age of increasing internet activity wherein ordinary people use online service providers to share candid photographs and videos of their family and friends, the pro-consumer/user approach adopted by Judge Tallman is worthy of appreciation. While I am supportive of rights of content creators and artists, I fail or rather refuse to rationalize the potential loss (monetary or otherwise) Prince/Universal could have incurred by a twenty-nine second, non-commercial home video. Furthermore, there is no way that the video under litigation could serve as a substitute for the original Prince song. Both videos are in stark contrast to each other and any fan of Prince’s “Let’s Go Crazy” is unlikely to watch Lenz’s video as a substitute for the original. Not being an infringement case, this was not even a triable issue before the Ninth Circuit.
This decision comes as a major blow to the copyright lobbyists – the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA). Being the typical Washingtonian lobbyists they are, aggressively pushing for stringent copyright protection, RIAA’s statement that they respectfully disagreed with the court’s conclusion about the DMCA and the burden placed upon the copyright holders to analyse “fair use” before sending “Takedown Notices” does not surprise me. In fact, this is a rare case of split between Hollywood and Silicon Valley. While the RIAA and the MPAA supported Universal (not to my disbelief considering that Universal is RIAA’s Board Member); Twitter, Tumblr and Google rallied behind Lenz.
Amidst the Hollywood – Silicon Valley split and related mudslinging, this case is a win for ordinary internet users who due to lack of awareness on copyright issues succumb to deadly legal tactics of large corporations. Even though the Ninth Circuit’s decision on issue of “fair use” is final, the absence of guidance from other Circuit Courts warrants an advisory at my behest – “Please verify the copyright status of background music and other related media before uploading a video.”
And with this, I bow down to EFF – one of the seemingly few crusaders of free speech and liberal IP reform. While I have always held EFF in high regard,with them representing Lenz on a pro bono basis raises them to a pedestal of reverence(Contrary to popular belief, I can be high on drama!).
Any valuable feedback and insight into the topic will be deeply appreciated. Omission to use footnotes and endnotes as a mode of citation is deliberate; eliminating any semblance to an academic discourse. Contrary opinion on grounds of feasibility will be welcomed; not to mention my non – existent technical aptitude for writing HTML codes (I have been told that HTML works best for inserting academic citations).