Bad Luck Brian (image)

Digital advancement coupled with interactive internet platforms like YouTube, Facebook, Instagram has fostered the participatory culture and enabled users to assert a more active role in the creation and consumption of the content. User-Generated Content (UGC) resulting mostly from the transformation or recreation of the previous content forms the key feature of the internet today. Viewed from the lens of copyright law, the UGC that is re-elaboration of the work of others falls in the ambiguous domain of derivative work. Lawrence Lessig has referred participative web as the ‘read/write culture’ whereby citizens add to the culture they read by creating and recreating the culture around them. This ‘remix culture’ however, involves the complex question of copyright infringement. Internet memes are one such user-generated work that has gained immense popularity in the age of social media – lawfulness of which remains mired in controversy.

Internet Memes and Copyright Law

The term ‘meme’ was coined by Richard Dawkins in the year 1976 in his work The Selfish Gene’ and referred to anything that went viral. Internet memes have borrowed this term and are commonly understood as an image juxtaposed with texts, having a humorous undertone to it. The existing memes are transmitted endlessly on the web and undergo variation whenever they are posted and reposted – such that sometimes the new version denotes a completely different idea. Often, the creator or owner of the image on which the text is juxtaposed is not the creator of the meme, for instance, ‘Socially Awkward Penguin’. Meme generally results from the alteration of the original image by a third party, in turn, enabling subsequent artists to create numerous strands of the meme by placing it in varied contexts. As memes fall within the category of derivative work, and usually, it is the copyright owner who enjoys the right to create derivative work, memes are contended to be infringing the copyright of the owner of original work.

A meme would fall under the category of ‘artistic work’ under Section 2(c) of the Indian Copyright Act of 1957, which includes “a painting, sculpture, drawing (including a diagram, map, chart or plan), an engraving, a photograph; work of architecture and any other work of artistic craftsmanship”. Section 14 (c) of the Copyright Act grants certain exclusive right to the author of artistic work and unauthorized use of any of it by a third party constitutes infringement. An internet meme is essentially an unauthorized use of someone else’s work and hence constitutes an infringement of copyright work in most cases. As memes are prima facie infringing the question of “fair use” or “fair dealing” invariably arises.

Defence of Fair Use

The tests developed in one of the early cases of Folsom v. Marsh by Justice Story was later codified in the Copyright Act of 1976 as four-factor test under section 17 U.S.C. § 107. Section 17 U.S.C. § 107 lays down four parameters to test whether an infringing work is saved by the fair use exception. The factors that need to be considered are:

“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.”

Fair use is not a right but a defence for infringement. The test is subjective, i.e., the degree of its applicability varies from case to case. Evaluating the question of fair use involves determining whether the purpose and character of use exude enough transformation, such that, the addition is not merely a substitute for original work. Nature of copyrighted work is assessed to determine fair use- the scope of fair use is limited in case of unpublished work and broad if the work is published. Under the substantiality factor- taking is excused if it constitutes an insignificant portion of the work – however, the same must not be the “heart” of the work unless it’s parodying the original (Campbell v. Acuff-Rose). Finally, the use must not negatively impact the current as well as the potential market of the original work.

Section 52 of the Indian Copyright Act provides various exceptions to infringement. The language of the text suggests that the list is exhaustive and action falling outside the same do not qualify as fair dealing. However, the Courts in India have stretched the ambit of fair dealing by adopting a flexible model similar to US fair use. In the case of R.G Anand v. Deluxe Films, Supreme Court stated that “Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises”. The Court in Civic Chandran v. Ammini Amma while distinguishing fair dealing from reproduction stated that no bright-line rule can be established in this regard and relied on the parameters similar to the US four-factor test – “the quantum and value of the matter taken in relation to the comments or criticism; the purpose for which it is taken; and the likelihood of competition between the two works”. This case primarily was concerned with parodies as fair use. However, memes do not comment, criticize or review the original work but build on previous work to create a new expression altogether. Thus, a generalized application of the exception would fail to meet the challenges posed by memes. Each meme should be assessed specifically on a case by case basis on the four-factor test as discussed by Ronak Patel (2013).

Liability of Hosting Platforms for Meme-Generation.

In US Section 512 of the DMCA commonly referred to as the “safe harbour” clause limits an Intermediary Service Providers (ISPs) direct, contributory and vicarious liability for activities categorized as transmitting, caching, storing and linking to the copyrighted content provided there is no ‘actual knowledge’ of the infringement. In India, a similar provision is contained in Section 79 of the Information Technology Act, 2000 (IT Act). In the EU, Article 14 of the E-Commerce Directive exempts ISPs for storing information provided the hosting platform doesn’t have actual knowledge of illegal activity or infringing information uploaded by their users. Nevertheless, irrespective of the jurisdiction – are platforms generating meme eligible for this exemption given the fact that they are aware of the infringing nature of meme. Moreover, the role played by these platforms is not technical or automatic but “active”- as evident from the design of these platforms that allows adding on to the derivative work. Although safe harbour clause grants immunity to ISPs if they ‘act expeditiously to remove or to disable access’, this notice and takedown mechanism does not per se confers immunity but is dependent on the actual expeditiousness. This makes meme-generating platforms target of future litigation as copyright owners are unlikely to bring action against individual users. The risk of action against ISPs has only escalated with coming into effect of EU Copyright Directive in Digital Single Market (DSM Directive). Article 17 of the DSM Directive has made a shift from notice-and-take-down mechanism to notice-and-stay-down mechanism in order to ensure that ISPs take a pro-active stance against unauthorized content. Though it has been asserted by the EU Parliament that memes, snippets GIFs, etc. would be saved under the exception and limitation clause but with a mandatory upload-filter mechanism it occurs far from possible. Chris Meadows, calls Article 17 a “meme ban provision” and rightly so as the filtration technology is not equipped to distinguish between fair use and other infringing content. Article 17 of the DSM Directive is an example of how right holders continuous lobbying for over-protection for their copyright would eviscerate fair use of its essence. Consequently, it wouldn’t matter if the memes are saved by fair use exception- it would be banned.

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