Can an organization or company freely use a copyrighted song or video in its product? Is permission required?
With the proliferation of digital media, it is no surprise for organisations to use images from the web, grab snippets from songs or re-use short videos. Although, these actions are generally an infringement of copyright laws. A copyright (as defined under Section 14 of the Copyright Act, 1957, hereinafter referred to as ‘The Act’) refers to an exclusive right of the creator. It is an author’s right to his artistic, literary and musical works. It is an essential tool which allows the creator to circulate/distribute their work in a manner which suits them the most. Let’s say for instance, Ms. ‘A’, has written and recorded a song called song ‘y’. In the instant case, she has automatically gained copyright over the song by the virtue of creating it. Now, Ms. A has the exclusive right to copy, sell and create new versions of the song. If a radio station is willing to play song ‘y’, they will be required to seek Ms. A’s permission. Furthermore, if any other singer wishes to play Ms. A’s song, they will have to seek her permission for that as well. If her prior permission is not taken, it will lead to an infringement of her copyright. Copyright infringement can occur when a copyrighted work is used without the permission of the copyright holder. This unauthorized use violates the exclusive rights granted to the creator of the work resulting in legal consequences. The same has been defined under Section 51 of The Act.
It will be pertinent to mention that, there is no specific minimum safe harbour for using a small snippet of a copyrighted material without permission. The copyright law does not provide a clear-cut duration under which the usage is automatically permissible. Therefore, it would be correct to say that even using a brief segment of a song or a video can result in a copyright infringement claim. However, there are certain defences and exemptions, such as the doctrine of ‘fair use’, which may be applied considering the context and purpose of the use. The doctrine of fair use allows limited use of a copyrighted content without requiring the permission of the copyright holder.
Fair use considers factors like:
The purpose and character of the use (e.g., whether it is for commercial or non-commercial purposes, and if it is transformative).
The nature of the copyrighted work.
The quantum and value of the matter taken into relation to the comments or criticism, and,
The effect of the use on the potential market for or value of the copyrighted work.
Let us understand this with the help of an illustration. ‘X’, is a youtuber who majorly reviews latest movies released in theatres and on various OTT platforms. While reviewing, he also uses brief clips/snippets from the movie to make it more interesting. The purpose for which he is making these videos is to only criticise and comment on the movie and not to substitute the movie itself. It will be pertinent to mention that the copyright owner cannot bring a copyright infringement claim against him on the ground that he has used a particular part of the movie in his video. The same is possible because Section 52 of the Act lays down certain acts which shall not constitute an infringement of copyright.
Section 52 of the Copyright Act delineates specific circumstances under which certain actions do not constitute copyright infringement. Consequently, Section 52 can be invoked as a defence to demonstrate that the action in question qualifies as fair use and does not infringe upon copyright.
Further, in the case of (India TV) Independent News Services Pvt. Ltd. V/s. Yashraj Films Pvt. Ltd (2012) 192 DLT 502, the brief facts of the case being: the defendants, India TV broadcasted a TV show wherein a documentary was shown on the life of singers while they perform their own songs. Interestingly, while the singers were singing, clips of scenes from the movies were shown in the background. The matter was brought before the court wherein plaintiffs contented that this act of the defendants has infringed their copyright. On the other hand, the defendants contented that their act constitutes fair use within the meaning of Section 52 of the Act. The Delhi High Court in its judgement, restrained the defendants from distributing, broadcasting or otherwise publishing in any other way exploiting any cinematograph film, sound recordings or part thereof that is owned by the plaintiff.
After a long litigation saga, in an appeal challenging this decision of the hon’ble Delhi High Court to a higher bench, the Division Bench of the hon’ble Delhi High Court set aside the decision of the single judge bench and the restrictions were thus removed. However, the appellants were still prohibited from displaying any cinematograph film without the permission of the owner of the copyright.
With reference to the judicial pronouncements mentioned above, it would be fair to conclude:
Firstly, the doctrine of fair use, as laid u/s 52 of the Act, is a very subjective issue which may vary from case-to-case basis. If a suit is filed, it is ultimately the judge who has to decide whether there has actually been a copyright infringement or not based on the facts and circumstances of the case.
Secondly, notwithstanding the duration of the music/video used, a copyright infringement claim may still be brought if it has been done without the permission of the copyright owner. Hence it is advisable to seek permission from the copyright owner in order to avoid further litigation. In the subsequent section, I shall be discussing the procedure through which individuals can obtain permission in order to use the work of a copyright owner.
What is the procedure for seeking permission from the copyright owner for the utilization of their copyrighted work? (Section 19 of the Act)
In order to legally use a copyrighted material, a person should obtain permission from the copyright holder/owner of the work who has legal rights over the work. In case of a song, this could be the creator, the publisher, producer or a record label. Generally, a license shall be obtained from the copyright holder. It could either be a synchronization license (for videos) or a master use license (for the sound recording)
In accordance with the provisions of the Act, a person shall reach out to the owner with a formal request and provide the details about how they intend to use the material, including the purpose, duration, and the context of the usage. The copyright owner/holder may seek for certain terms, such as fee/royalty, attribution, or limitations on how the material can be used. It is advisable to ensure clear communication with all parties involved to avoid misunderstandings regarding the scope and limitations of the usage.
Furthermore, it should be ensured that all rights have been clearly discussed including, the rights of the performers, producers as well as the other stakeholders which were involved in the creation of the content. It is further advised to maintain thorough records of all licensing agreements and permissions which have been obtained.
In today’s world, we are surrounded by advanced technology and artificial intelligence, which have made it easier than ever to create and manipulate digital content. However, it is essential to also remember that using a copyrighted work without authorisation may inadvertently attract legal consequences. The Copyright Act has been enacted in a way which protects the interests of the creators, hence, it is always advisable to seek requisite permissions and licences before using the creator’s copyrighted work.
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