Are Memes Copyrightable in India?

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Table of Contents hide
1) Introduction:
2) Memes and Copyright:
3) Copyright of the meme is an infringement or not?
4) Issues involved if memes are not protected:
5) Defense for copyright infringement:
6) Remedies for Copyright infringement:
6.1) Civil remedies
6.2) Criminal remedies
6.3) Border enforcement
7) Punishment for copyright infringement under Criminal provision:
8) Prevention of Copyright Infringement:
9) Conclusion:

Introduction:

In India, the trend of a meme has changed into pervasive which implies while not memes there’s no fun for users and audiences on social media platforms. In the country, the opinion of the general public was extremely influenced by a meme and it conjointly includes a power to form the concept of the individual particularly in the matter of political communication. Memes have accelerated quickly and blowout humorously, and that’s why any issue that perseveres in the world, people discover one or the other manner to indulge the issue. Thus, Social media and memes are complementary to each other which means they go hand-in-hand where memes can be considered as a fuel by which social media runs.

Memes and Copyright:

A meme refers to an image, quote, or any video, etc., by emulation or copying passed from one individual to another. In the present scenario of India, the meme culture is so much commercialized and also a part of society. The term meme (from the Greek term ‘mimema’, which means “emulation or copying”) was introduced by British evolutionary biologist Richard Dawkins in his work “The Selfish Gene”, in 1976. The memes which are most affluent in getting copied become a part of our Indian culture; additionally memes are not having any such market value which considered merchandise.

According to the provision of clause (c) of section 2 of the statute Copyright Act, 1957, the meme is commonly known as to be a design work do come beneath the definition of inventive work image or the photograph of one thing or somebody, even the engraved design on wood, marble, etc. and the architecture work do come under the definition of artistic work, image or the photograph of something or someone is the most popularly copied meme and copying the meme and sharing it without any authorization would lead to intrusion.

Copyright of the meme is an infringement or not?

On social media platforms, memes are perpetually and promptly being traced and do get viral straightforwardly, but can anyone ever thought that copying someone’s work (meme) is considered to be legal or not. The Copyright Act, 1957 protects the rights of the meme creator, who create a meme by putting in a lot of effort, skills, and time. The facts concerning the meme creator that mostly the identity of the meme creator are unknown, they do not allow another individual to exculpate or prevent him from legal proceedings.

The response to the above-stated query lies within the domain of the “Doctrine of Fair Use”. According to the statute of Copyright Act, 1957, the provision of Section 107 explains the statutory framework for determining whether something is fair use or not. There are certain conditions that were satisfied under the domain of the doctrine of fair use, which allows an individual to use the copyrighted work in the creation of new work, without taking any prior consent.

In India, a creator has to fulfill two conditions to successfully gain the fair use defense regarding copying the memes:

(a) There must not be any intention to compete with the copyright holder; and

(b) There should not be any improper usage of the original photograph or image or video, etc.

The first condition is termed the ‘Market Substitution Test’. It is the most important condition regarding copying memes by using someone’s other work. The meme creator should not seek to compete with the copyright holder by using any satirical or comical take.

The second situation involves the term ‘improper use’, which is a very comprehensive term and cannot be demarcated in a straitjacket definition rather it is open for interpretation and further deliberation. Since the meme rarely comes under the purview of indecorous use unless they seem to be flagrant offensive to the right holder because it is for a fun purpose.

The four parameters to be fulfilled for the findings of fair use are as follows-

a) defining the purpose of using the meme
b) mention the amount of work to be used
c) describe the effect and use of the meme upon the society
d) state the nature which is being used for the copy-righted work.

The memes which weigh against fair use, for example, a meme that an enterprise creates and distributes for sales and marketing purposes has a commercial element. These memes are different from the Internet memes created by fans, individuals, etc. If the nature of the copyrighted work is more factual and contemporary (for example, a picture of a historical figure), rather than something more creative (for example, a clip from a motion picture), this will favor fair use. If the meme includes a short clip from a longer movie, then the amount and substantiality of the use factor will favor fair use; however, this may not be the same case when the meme consists of a single photograph/image.

Therefore, from the above evaluations, we can conclude that there is not a definite answer to the question that the use of original meme is fair or not, as it varies from situation to situation, however, there are some types that are generally allowed such as criticism or commentary of someone or any research work or education related to the meme, etc.

Thus, the memes do not hold any commercial value therefore they lie under the ambit of fair use defense. But it doesn’t mean that anyone’s photograph or artistic work or idea can be used without his/her consent. When someone’s privacy is not disturbed, then only the fair use defense works. Therefore before copying the original work of any individual, one should get all the necessary licenses and approvals done to prevent any kind of legal obligation or legal action in the mere future.

Issues involved if memes are not protected:

Certain issues can be arising in the case of copyrighting memes:

  • Firstly, by using images and videos the meme has been copyrighted, the copyrights of which vests with another person.
  • Secondly, whether or not the meme is created wherever copyrights vests with the person who has created the meme.

In India, the provision of clause (i) of sub-section (d) of Section 54 of The Copyright Act, 1957 gives a copyright-holder the right to “make a copy of the film, including- a photograph of any image forming part thereof…”. This suggests that the person must necessarily seek permission from the film producer for using the image while creating such a meme.

Furthermore, if, there is a rise to a fresh cause of action to the plaintiff by sharing the meme by others, then it would amount to be a tort.
There’ll be no infringement of meme copyright if someone comes up with a meme using his photograph, because of the rights in the image as well as the copyright in the “meme” image vest in the same person. Such a meme can be said to be an artistic work that is created by exercising one’s labor, skill, and judgment and does not impinge upon existing copyright.

Also, without having a license the creator of the “meme” image will be able to restrict others from using his meme and the sharing of the meme may amount to copyright infringement

For example, there was a character, Boromir, from the popular fantasy movie ‘Lord of the Rings’ (his famous line “One does not simply walk into Mordor”?). If, the copyright image belongs to the producers of the film and the producers might be able to restrict the sharing of this meme if they can prove that it infringes their copyright.

The stand that may be taken by the person creating the meme is that the meme created by taking the image from the film is an original work in itself; after all, he created the meme by exercising his skill, labor, and judgment.

Defense for copyright infringement:

In the case of copyright infringement, the “Doctrine of Fair Use” comes to the rescue. It may lead to a legitimate defense in case of copyright infringement. The provision of sub-section (1) of Section 54 of the statute of Indian Copyright Act, 1957 provides “rational dealing with any work” it can be for personal or private use for review or research and also for criticism.

The doctrine does not give any right to use someone else’s work instead it provides a defense to the accused that the copyrighted work has been used fairly. Evaluating whether the person who has been accused of using the copyrighted work can use the defense of fair use can be complex. Four parameters can be considered on a case-to-case basis, to determine the defense of fair use:

a) defining the purpose of using the meme
b) mention the amount of work to be used
c) describe the effect upon the society from the use of it
d) State the nature of the work which is being copy-righted.

The provision of sub-section 1 of Section 54 of the Indian Copyright Act, 1957 does not assert that a satire can qualify for the defense of the doctrine of fair use, however. In Civic Chandran v Ammini Amma, the Kerala High Court held that the parody and satire that copies from the original work for criticizing, don’t amount to unlawful use of the original work and thus qualify as “fair dealing with the work”. There may be a problem that arises if a meme is created to detriment the society in any way or to generate revenues out of it. For instance, a parody or a satire can be used to criticize an original work but, under Article 21 of the Constitution of India, if the satire violates the Right to privacy of a person, then, the creator will incapable of being exercise his defense available under Article 19 of the Indian Constitution i.e. Right to freedom of speech and expression.

The American case of Warner Bros corroborates one such situation of violation of rights in the case of copyright infringement where the defendant faced a compensation of $100 million for using a racist meme of Nyan Cat and Keyboard Cats as characters in its video game Scribblenauts.

Remedies for Copyright infringement:

The statute, Copyright Act, 1957 provides some remedies against copyright infringement. They are:

Civil remedies

Civil remedies provide injunctions or restrictions, damages, rendition of accounts, damages for conversion and delivery & destruction of infringing copies;

Criminal remedies

Criminal remedies provide imprisonment, fines, seizure of infringing copies, and delivery of infringing copies to the owner; and

Border enforcement

The Act also provides for the prohibition of import and the destruction of imported goods that infringe the copyright of a person with the assistance of the customs authorities of India.

But besides this, some questions arise regarding the remedies available for copyright infringement. Is there any time limit for seeking remedies regarding infringement of copyright? Are any monetary damages available for copyright infringement? The answer to these questions is, there is a limitation period of three years from the date of such infringement for filing a suit for damages for copyright infringement. Yes, monetary damages are also available in case of copyright infringement and also, the copyright owner can claim the rendition of accounts of profits.

Can the plaintiff claim attorney fees and proceeding fees in an action for copyright infringement? Yes, the plaintiff can claim attorney fees and proceeding fees in an action for copyright infringement but it is only upon the discretion of the Court to award such litigation fees to the plaintiff or not and also if such costs were allowed then, it is not more than the actual fees. Recently, in 2015, the Commercial Courts, Commercial Division and Commercial Division Appellate Division of High Courts Act 2015 (Commercial Courts Act) was enacted and brought some amendments in the Code of Civil Procedure (CPC) and specifically provides for payments of costs and the method of calculation of costs. Thus, costs were awarded to the plaintiff according to this Act based on the calculation.

Punishment for copyright infringement under Criminal provision:

Under the statute of Copyright Act, 1957, there are some penal provisions for copyright infringement-

Under the provision of Section 63 of this Act, if any person knowingly or abets the act of infringement of copyright then such person will be punished for imprisonment for a period of 6 months (minimum) to 3 years (maximum) and may also be liable for a fine of ₹50000 to ₹2 Lakhs.

The provision of Section 65A was introduced by the Copyright (Amendment) Act, 2012. This provision penalizes the circumvention of effective technological measures that may be applied to copies of a work to protect any of the rights conferred under the Act (i.e. copyright, performance rights). The punishment under this provision is imprisonment which may extend to two years and payment of a fine.

The Copyright Act, 1957 inserted the new provision i.e. Section 65-B in the year 2012 as the Copyright (Amendment) Act, 2012. The provision of Section 65-B defines punishment for unauthorized removal or alteration of ‘rights management information’ with imprisonment up to two years and payment of a fine.

Prevention of Copyright Infringement:

There are certain preventive measures for copyright infringement:

(a) Documentation of copyright,
(b) Registration of copyright,
(c) Proper notice of copyright,
(d) Appropriate licensing agreements regarding copyright,
(e) Observing the activities of regular or habitual infringers, etc.

Conclusion:

A meme not ought to violate the rights of any individual and should not be created for the motive of commercial exploitation. It only serves the aim of fun and entertainment for the audience. An infringement of copyright happens once correct approvals and consent from the copyright owner are absent on the part of the meme creator of such a meme. It is advisable for young creators should seek suitable approvals from the owners of the work before utilizing the same. The creation of a meme for enjoyment or the fun purpose is fine but if used for occupational or advertising purposes, one should acquire necessary approvals and license from the copyright owners to avoid facing any kind of legal obligation.

References:

This article is written by Aditi Sahu, 3rd year B.B.A.LL.B student at Banasthali Vidyapith.

Also Read –  How to Respond to A Copyright Infringement Notice?

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