Traditional Knowledge Digital Library’ As the Digital Protectorate of Traditional Knowledge and Folklore in the IPR Regime

SELECTED ESSAYS FROM THE NATIONAL LEVEL ESSAY WRITING COMPETITION ON INTELLECTUAL PROPERTY RIGHTS

The essays published in this volume were selected from the national level essay writing competition organised by the Centre for Intellectual Property Rights, NUALS in the year 2016 to commemorate the World IP Day.

All rights reserved with Centre for Intellectual Property Rights, NUALS. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any forms by any means, electronic, mechanical, recording or otherwise, without prior written permission from the publisher. Permission to use any content may be obtained from the copyright owner. Please apply to CIPR, NUALS through email. Email: [email protected] ISBN: 978-81-933144-7-0

2 Foreword

Dr. Athira P S, Director (i/c), Centre for Intellectual Property Rights

With its aim to emerge as a Centre of Excellence in the realm of Intellectual Property education as well as research, and to continuously foster research interest in the minds of students, the Centre has organized its Second CIPR National Essay Level Competition commemorating the World Intellectual Property Day, 2016.

Choosing a topic was a challenging, yet interesting journey. Intellectual Property is a passionate expedition. Re-thinking the role of Intellectual Property in the present scenario, and its relevance, took the Organizers away from the usually traversed area of industrial property and instead choose copyright as this year’s theme.

Law is a response to social challenges. Copyright is one of the finest examples in resolving the intricacies of the relationship between law and technology. Copyright poses a number of important but complex considerations. Copyright is given particular consideration here as it is the most common form of IPR that applies to learning resources.

Copyright law in historical archives is known to be the legacy of technology. It has undergone systematic changes keeping in view the nature, extent and domain of technology involved to secure the public interest of creativity, innovation and ingenuity. It is not possible within this book to cover all of the copyright issues you need to consider. Instead, we consider a few of the major issues like Copyright as a means of protection of cultural intellectual assets in the digital age, popular media and cultural expressions: boundaries of protection afforded by IPR, remix culture and amateur creators: Copyright challenges and preserving traditional knowledge and folklore in a digital world with the application of IPR, which is an outcome of the proceedings of the Second CIPR National Essay Competition.

Copyright law has become a major arena of social and political conflict over the past generation. Much of the turmoil revolves around deeper issues: What legal principles and social norms should be used to promote innovativeness and creativity, especially when the

3 Internet and other digital technologies are involved? In a further twist, widespread access to ever more sophisticated computers and other digital media over the past two decades has fostered the re-emergence of a “read-write” culture. The remix culture raises important challenges, not only for cultural industry stakeholders, legal practitioners and scholars, and policy makers, but also for members of the public.

Another innovative topic which is addressed in this work is that of traditional cultural expressions. These raise some particular legal and policy questions in IP and as such, they receive a distinct focus in many national and regional IP laws. The effectiveness of protection of such expressions is an area with limitless boundaries and has been explored herein.

This work provides a valuable window in today’s primarily digital learning environment, with access to the technologies and the skills to use them in sophisticated ways amounting at times to confrontation with copyright law on a regular basis. The authors have selected well over 10 best topics as the key subjects of their essays. We hope that the readers will gain a broader perspective of the interesting avenues of copyright law covered in these varied contributions. In this age of global interconnectivity and interdependence, it is necessary that both professionals and students are equipped with state-of-the art knowledge on the frontiers of intellectual property law. We hope this work will be a step forward in that direction.

4 Table of Contents

Foreword ...... 3

Legality of Mashups and Remixes in the digital age ...... 6

Fighting Fire with Fire: Using Custom to Protect TCEs ...... 18

Recognising ‘Traditional Knowledge Digital Library’ As The Digital Protectorate Of Traditional Knowledge And Folklore In The IPR Regime ...... 28

The Economic Fairness of Fair use: An Analysis vis-à-vis Google Books Case and DU Photocopy Case ...... 38

Film Piracy and Copyright Compliance: A Critical Perspective ...... 49

Inspiration or Infringement? ...... 60

Someone Killed the DJ! ...... 68

Do You Copy? Roger ...... 80

Retelling of Hindu Epics as an Aspect of Traditional Cultural Expression: Preservation of Traditional Literature accorded by Intellectual Property Rights ...... 90

5 Legality of Mashups and Remixes in the digital age1 Abstract

The copyright law was initially introduced as a response to the print media. However, as we transit into the digital age, the traditional legal framework of the copyright law is being challenged extensively. Convenient and cumulative use of technology and the World Wide Web facilitates replication, modification and easy transmission of information at all levels. These characteristics of the digital media have enabled the amateur producers to deliver notable products inspired by the work of the professional artists that has created an even greater number of challenges for copyright law to face. As a response to attempts at imposing embargos on the free flow of information, various patrons responded by launching the ‘Free Culture Movement’ and the ‘Open Access’ movement to support the free flow of information and knowledge in the society. In this backdrop, the paper analyses the status of such secondary artists and scrutinises the response/failure to respond by examining whether and when remixes and mashups can constitute copyright infringement in light of the existing copyright law. Due consideration to the issue whether remixes and mashups constitute a new form or art or are a mere reproduction of the prior artists’ work has also been given.

Further, to arrive at an accurate conclusion, the subject has also been analysed in light of the ‘Fair-Use’ doctrine through the application of the four-factor test developed by the Courts. Last but not the least, the author seeks to make recommendations that require amendments to be introduced in the traditional copyright law, in line with the progressive digital technology. It is emphasized that these recommendations do not suggest that the economic incentive of the artists is eliminated/diminished in any manner but the establishment of a conducive co- existence of the amateurs and professionals in the interest of public and creativity.

1Jasleen Kaur Dua, 3rd Year Student, Army Institute of Law, Mohali. The author can be reached at [email protected].

6 Introduction

Copyright and its infringement: ‘Copyright’ grants protection to the creator of any intellectual property to augment ‘creativity, science and democracy.’2 This right may be claimed by the creator if ‘modicum of creativity’ in the work can be proved.3 The objective was twofold- first, to incentivize the creator and second, to promote the free flow of information.4 Each of these rights is exclusive to the creator, wherein ‘exclusive’ indicates that the copyright holder alone has the right over the work and the right to exclude all others from reproducing his work.5 These rights have been guaranteed under the Berne Convention6, Universal Copyright Convention7 and TRIPS Agreement.8Infringement occurs if any third party does/intends to do an act, which if done, would infringe the copyright of another person9 and if, instead of searching into the common sources, one exploits the labours of one’s predecessor10 with/without knowledge.11 The author seeks to purport that the copyright law that developed as a response to the rapid growth of the print media12 has proved to be futile in the digital age and requires reexamination.

Background

Transition into the digital age: The term ‘digital media’ connotes the phenomenon of electronic media stored in the form of various codes.13 Due to the cumulative use of digital media, an imbalance between exclusive rights of creators and free flow of information has been created that suggests that the existing framework is ill-fitting for the digital age14, owing to which, the term ‘Digital Dilemma’ was coined by the United States’ National Research

2 NEW YORK UNIVERSITY PRESS, COPYRIGHTS AND COPYWRONGS- THE RISE OF INTELLECTUAL PROPERTY AND HOW IT THREATENS CREATIVITY 4 (ed. 2001). 3CCH Canadian Ltd. v Law Society of Upper Canada, (2004)1 SCR 339, The Chancellor Masters & Scholars of The University of Oxford v. Narendera Publishing House and Ors. 2008(38) PTC 385 (Del). 4 Neil Weinstock Netanel, Copyright and Democratic Civil Society, 106 Yale L.J. 283 (1996). 5Carl W. Doozan, Pre-Copyright Rights, 14 Notre Dame L.Rev.391 (1939). 6The Berne Convention for the Protection of Literary and Artistic Works art. 9.2, 9 Sept. 1886. 7The Universal Copyright Convention art. IV bis, 1952 U.N.T.S. No. 13444, vol. 943, pp. 178-325. 8 The Trade Related Aspects of Intellectual Property Agreement art.13, 1995. 9 HAILSHAM, HALSBURY’S LAWS OF ENGLAND 480 (ed. Vol. 7). 10David Vaver, Principles of Copyright cases and materials, WORLD INTELLECTUAL PROPERTY RIGHTS ORGANIZATION, 134available athttp://www.wipo.int/edocs/pubdocs/en/copyright/844/wipo_pub_844.pdf (Last accessed: Apr. 25, 2016). 11 Microsoft Corporation v Kiran (2007) 144 DLT 274, DhirajDharamdasDewani v Sonal Info. Systems Pvt. Ltd. &ors.(2012) 3 AIR BomR. 586. 12 GILLIAN DAVIES, COPYRIGHT AND THE PUBLIC INTEREST 14 (2d ed. 2002). 13 NICHOLAS NEGROPONTE, BEING DIGITAL (ed.1995). 14 ROUTLEDGE, JESSICA REYMAN, THE RHETORIC OF INTELLECTUAL PROPERTY: COPYRIGHT LAW AND THE REGULATION OF DIGITAL CULTURE, 35 (ed.2009).

7 Council, an expert panel constituted for the report on intellectual property issues in the digital age.15 It was recognized that characteristics of digital media that facilitate the copyright infringement include the ease of replication, ease of transmission and multiple uses, plasticity i.e. easy modification, lack of differentiability of copyrighted works in digital form, and non- linearity i.e. easy accessibility of all information.16 It was reaffirmed in the International Conference on Future Digital Economy, jointly organized by the organization for OECD17 and the Italian Ministry for innovation and technologies.18

In this backdrop, the author seeks to analyze the validity of valuable contributions of the amateur artists. It may be noted that the paper will consider the need for bringing clarity in the existing framework with regard to the work of amateur artists, application of ‘Fair-use Doctrine’ to these works, and increasing the number of voluntary licensing options for the creators.

From amateur to professional art- dealing with the change in creative panorama:

The primary objective of enacting a law relating to the protection of art is for ‘lasting benefit to the world’19 through motivation and encouragement of individual effort.20 Although, it is imperative that the author is guaranteed the moral and economic rights over his creation21, it is equally important to recognize that any embargo on the flow of the existing knowledge will directly hamper any kind of improvement in that area22 and encroach upon the right to freedom of expression of the others.23

15NATIONAL RESEARCH COUNCIL, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THEINFORMATION AGE 233, (Washington, DC: National Academy Press) (2000). 16 SPRINGER-VERLAG BERLIN HEIDELBERG, NICOLA LUCCHI, DIGITAL MEDIA & INTELLECTUAL PROPERTY, 12- 13, (ed.2006). 17Organisation for Economic Co-operation and Development. 18 Organisation for Economic Co-operation and Development, International Conference on the Future Digital Economy- Istituto San Michele, Rome, Italy, 2006 available at www.oecd.org/sti/digitalcontent/conference.(Last accessed: Apr. 21, 2016). 19Washington Co. v. Pearson, 306 U.S. 30, 36 (1939). 20Mazer v. Stein, 347 U.S. 201, 219 (1954). 21 World Intellectual Property Organization, Understanding Copyright and Related Rights, WIPO Publication No. 909(E) available at http://www.wipo.int/edocs/pubdocs/en/intproperty/909/wipo_pub_909.pdf (Last accessed: Apr. 24, 2016). 22International Federation of Library Associations and Institutions,Limitations and Exceptions to Copyright and Neighbouring Rights in the Digital Environment: An International Library Perspective (2004), available at http://www.ifla.org/publications/limitations-and-exceptions-to-copyright-and-neighbouring-rights-in-the-digital- environm (Last accessed: Apr. 25, 2016). 23Berkman Center for Internet and Society, The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age, HARVARD LAW SCHOOL available at http://cyber.law.harvard.edu/media/files/copyrightandeducation.html (Last accessed: April 23, 2016).

8 The emerging trend indicates a phenomenon wherein the amateur producers, despite the lack of financial resources and proprietary motives have delivered remarkable upshots inspired from the original work.24 This, has been referred to as the “the public re-emergence of grassroots creativity” by Jenkins.25 While one segment defines the term ‘Remix’ as a mixture of pre-existing work, that cannot be termed as original;26 the other considers this as original art not inspired by the profits but absolute passion.27 In respect of originality, many patrons refer to ‘remixing’ as a different form of art in the industry.28 Similarly, ‘mashup’, like remixes is a creation out of the prior work29 that is now easier to create and distribute with the help of technology.30 This has created an even greater number of challenges for the traditional copyright law to face31 especially, post the formal recognition of the work of secondary amateur artists.32 This innovative development has led to a scenario that demands affable co-existence of the professionals and the amateurs. Further, lack of a regulating body that may be helpful in countering any breach of the copyright exacerbates the problem.33

Following is an account of user generated content that indicates the trend of creation of art by amateurs and distribution thereof:

PLATFORM DATE OF DATE OF FIGURES OF USER GENERATED LAUNCH RECORD DATA Flickr January, 2004 December, 5.26 billion Photos uploaded34 while the 2014 average number of photos uploaded/day is 2 million.35

24 HENRY JENKINS, CONVERGENCE CULTURE: WHERE OLD AND NEW MEDIA COLLIDE, 140 (ed.2006). 25Id. 26 Damien O'Brien and Brian Fitzgerald,Mashups, remixes and copyright law. Internet Law Bulletin 17-19, 2006, available at https://core.ac.uk/download/files/310/10875633.pdf (Last accessed: Apr. 23, 2016). 27 LAWRENCE LESSIG, REMIX: MAKING ART AND CULTURE THRIVE IN THE HYBRID ECONOMY, 28 (ed.2008) 28Id. 29 Kerri Eble, This is a Remix: Remixing Music Copyright to Better Protect Mashup Artists, http://illinoislawreview.org/wp-available at content/ilr-content/articles/2013/2/Eble.pdf (Last accessed: Apr. 23, 2016). 30Australian Copyright Council, Information Sheet G118v04 December 2014, Mashups, Memes, Remixes and Copyright. 31 Peter S. Menell, This American Copyright Life: Reflections on Re-Equilibrating Copyright for the Internet Age, 61 j. Copyright Society USA 235, 291-98 (2014). 32 Organisation for Economic Co-operation and Development, Enquiries Into Intellectual Property’s Economic Impact, 2015, available at http://www.oecd.org/sti/ieconomy/KBC2-IP.Final.pdf (Last accessed: Apr. 24, 2016). 33SachaWunsch-Vincent, Economic Research Working Paper No. 9-The economics of copyright and the internet: Moving to an empirical assessment relevant in the digital age, available at http://www.wipo.int/edocs/pubdocs/en/wipo_pub_econstat_wp_9.pdf (Last accessed: Apr. 21, 2016). 34 Los Angeles Times, Flickr reaches 6 billion photos uploaded, available at http://latimesblogs.latimes.com/technology/2011/08/flickr-reaches-6-billion-photos-uploaded.html (Last accessed: Apr. 21, 2016).

9 Facebook February, March, 2016 Total 300 million photos uploaded per 2004 day36 and 243,000 uploads/minute.37 Instagram October, 2010 April, 2016 More than 80 million photos uploaded/day.38 Spotify September, June, 2015 Over two billion playlists and 75 million 2008 active users.39 YouTube February, April, 2016 400 hours of video uploaded/minute.40 2005 SoundCloud August, 2007 October, 2015 150 million registered users and 175 million total listeners/month.41

The response of the benefactors: As a response to advanced digitalization, a system of ‘openness’ has been suggested.42 First advocated by Marshall McLuhan, Peter Drucker and Alvin Toffler in the 1970s, the concept later was developed by YochaiBenklar in 2006 and Larry Lessig in 2004. Recently, the ‘Free Culture Movement’ was launched43 by Prof. Lessig, who also founded ‘Creative Commons’, in 2001 along with various other cyber law and intellectual property law experts. It is an organization that indulges in licensing for re-use of work that allows reproduction and distribution of information as well as expression.44 This movement aims to eliminate all barriers to free flow of information.45 Another such instance of a demand for liberal treatment of the subject is the ‘Open Access’ movement that is based

35 Flickr, Statistics, available at https://www.flickr.com/photos/franckmichel/6855169886. 36Zephoria Digital Marketing, The Top 20 Valuable Facebook Statistics available at https://zephoria.com/top- 15-valuable-facebook-statistics/ (Last accessed: Apr. 21, 2016). 37 Mashable India, Facebook Has a Quarter of a Trillion User Photos, available at http://mashable.com/2013/09/16/facebook-photo-uploads/#M.E6hIWJJEqQ (Last accessed: Apr. 21, 2016). 38 Instagram, Instagram Statistics available at https://www.instagram.com/press/?hl=en (Last accessed: Apr. 21, 2016). 39 Spotify, Spotify Press, https://press.spotify.com/us/about/ (Last accessed: Apr. 24, 2016). 40 YouTube, YouTube Statistics, https://www.youtube.com/yt/press/statistics.html. 41 Bloomberg, Can SoundCloud Be the Facebook of Music?, available at http://www.bloomberg.com/news/features/2015-07-10/can-soundcloud-be-the-facebook-of-music- (Last accessed: Apr. 24, 2016). 42 CENTER FOR DIGITAL DISCOURSE AND CULTURE, TIMOTHY W. LUKE, JEREMY HUNSINGER, PUTTING KNOWLEDGE TO WORK AND LETTING INFORMATION PLAY ISBN: 978-1-933217-00-0, 58 (ed. 2009) . 43Id. 44 Free Culture Foundation, About us, available at http://freeculture.org/about/ (Last accessed: Apr. 25, 2016). 45 Free Culture Foundation, Media, available at http://freeculture.org/learn/media/ (Last accessed: Apr. 25, 2016)

10 on the Budapest Open Access Initiative definition for Open Access i.e. ‘free availability of knowledge without any financial, legal, or technical barriers.’46

The legal status quo of the copyright law revolutionized with the Napster’s case in the United States47 wherein the court declared the system of file-sharing through intermediary platforms such as Pandora, Spotify and YouTube as legal and in line with the copyright law.48 One of the most prominent instances of litigation relevant to the issue was witnessed in the Fairey Case.49 The defendants were alleged to have plagiarized Obama’s photograph that was the original work of Mannie Garcia;50 however, it was maintained that since the poster was of a transformative nature, it constituted fair use.51 On the contrary, Professor Jane Ginsburg, Professor of Literary and Artistic Property Law at Columbia Law School, disapproved this and reasoned that under fair use, the entire image/work of the original creator cannot be made the subject of one’s own transformation and if allowed, it would be a complete disregard of the untiring efforts of the creator.52

Regardless of the varied opinions on the issue, it must be recognized that we have now entered the age of remixes that has been further accelerated by technology and the World Wide Web. Whilst the removal of this concept is impracticable and proving copyright infringement is implausible in cases of remixes and mashups, it may be argued that this culture may benefit the artists as well as their art by expanding their audience. To fathom the response/failure to respond, the next section focuses on whether and when remixes and mashups can constitute copyright infringement?

Analysis

Do remixes constitute copyright infringement: Copyright is infringed by a third person if he/she encroaches upon the author’s exclusive rights of the original creator unless protected

46 Intelligent Multimedia, Managing Creative Works in a Digital World- Series in Legal Information and Communication Technologies, Vol. 8 available at http://creativecommons.fr/wordpress/wp- content/uploads/2011/05/CCiBook_printedversion_IntelligentMultimedia1.pdf (Last accessed: Apr. 20, 2016). 47 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001). 48 Yu, Peter K., Digital Copyright and Confuzzling Rhetoric,13 Vand. J. Ent. & Tech. L. 881 (2010-2011). 49 William W. Fisher III, Frank Cost, Shepard Fairey, Meir Feder, Edwin Fountain, Geoffrey Stewart &MaritaSturken, Reflections on The Hope Poster Case, Harvard Journal of Law & Technology Volume 25, Number 2 Spring 2012. 50 Michael J. Madison, Beyond Creativity: Copyright as Knowledge Law, Vanderbilt j. of Ent. and Tech. Law [Vol. 12:4:817]. 51 Ned Snow, Proving Fair Use: Burden of Proof as Burden of Speech, Cardoza Law Review, Vol. 31:5 52 Morrison &Foerster LLP, Google Books and Fair Use: From Implausible to Inevitable?, available at http://www.jdsupra.com/legalnews/google-books-and-fair-use-from-41763/ (Last accessed: Apr. 20, 2016)

11 under the ‘Doctrine of fair use’ or ‘Doctrine of fair dealing’, as the case may be.53 Therefore, it is prudent to state that prima-facie remixes and mashups impinge upon the right of reproduction under Art.9 of the Berne Convention and the right of communication of work to the public under Art.8 of the WIPO54 Copyright Treaty unless the use is fair. The author may also claim a violation of his moral rights if a remix or mashup that has used his/her work erodes or alters the meaning of the work in a manner that may be derogatory to the reputation of the author.55

Contrarily, it may be argued that various provisions of the aforementioned international codes authorize reproduction in a manner that does not affect the rights of the original author, for instance, Art.13 of the Agreement on TRIPS Agreement that allows normal exploitation of work in a limited manner so long as it respects the exclusive rights of author. Further, subject to conditions, it may also be allowed under Art.2(3) of the Berne Convention on the Protection of Literary and Artistic Works as a derivative of the original work. Akin to this perspective, the Court of Justice of the European Union in 2011 decided the case of Eva- Maria Painer v. Standard Verlags GmbH and others56 wherein it was held that if the reproduction is lawful and the due credit is given to the author by indicating his name in the reproduced segment, it could be distributed amongst members of the society.

In view of the above distinct conclusions, it is apparent that the legal standpoint on the issue is ambiguous. While it is maintained that the existing legal framework urgently requires amendments in line with the progressive digital technology, the present position in respect of ‘fair use’ and ‘fair dealing’ has been scrutinized in the next segment.

When copyright law authorises copying:

Fair Use doctrine is the heart of the copyright law- that acts as a social bargain wherein we concede to certain limited individual rights to ensure the benefits of creativity to all.57It authorises copying, which but for the exception carved out would have amounted to

53 MARTINUSNIJHOFF PUBLISHERS, INTERNATIONAL COPYRIGHT LAW AND ACCESS TO EDUCATION IN DEVELOPING COUNTRIES: EXPLORING MULTILATERAL LEGAL AND QUASI-LEGAL SOLUTIONS, (ed.2012). 54World Intellectual Property Organization. 55The Berne Convention for the Protection of Literary and Artistic Works art.VI bis, Sept.9, 1886. 56(CJEU-C/145/10). 57 Association of Independent Video and Filmmakers, Documentary Filmmakers’ Statement of Best Practices in Fair Use (2005), available at http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use/ (Last accessed: Apr. 18, 2016).

12 infringement.58 The exceptions to copyright infringement as provided by the Berne Convention and Art. 13 of the TRIPS agreement must qualify a three-step test,59 i.e.; exception must be ‘special’; it must not conflict with normal exploitation and must not unreasonably prejudice the legitimate interests of rights holders. The Courts have repeatedly directed towards the usage of these principlesof fair use and have articulated the following factor test.60

The purpose and character of the use:

Transformative use:Fair use guarantees “breathing space within the confines of copyright” for transformative works61 that are different in character and not a mere substitute.62 Such works serve a different function from the original63 and are less likely to affect the market of the original work.64 In the context of remixes and mashups, the new work is a result of combining the two works but it is not a mere combination. The new work is obtained by alteration of various technical components of existing work that may be termed as transformative. Further, the expression or the intention of the secondary artist may also be relevant for the purpose of concluding whether the prior work has been used in the same context as the original author intended. For instance, in Campbell v. Acuff-Rose Music Inc.65the court ruled in favour of the secondary artists as the remix disregarded the original song and used the lyrics of the prior song in a degrading manner.

Commercial or non-profit: This issue is closely connected to commercial viability,66 commercial consequences and implications.67However, this view has been criticised as most

58Ayush Sharma, Indian Perspective of Fair Dealing under Copyright Law: LexLata or LexFerenda, JIPR 14(6), November 2009 pp 523-531. 59Ficsor M, How much of What? Three-step test and its application in recent WTO dispute settlement cases, RIDA, 192 (2002) 111-251. 60 Syndicate Press of the University of Cambridge v. BD Bhandari, 2005 (31) PTC 58 (Del); Civic Chandran v. AmminiArama, (1996) 16 PTC 329 (Ker); Sony BMG Music Entertainment v. JeolTenenbaum, (2011) 45 PTC 70; Super Cassette Industries Ltd. v. Positiv Television Pvt. Ltd., 2008 (38) PTC 477 (Del); ESPN Star Sports v. Global Broadcast News Ltd., (1972) 1 All.ER 1023; Hubbard v. Vosper (1972) 2 Q.B. 84; Hyde Park Residence Ltd. v. Yelland (2000) R.P.C 604; Ashdown v. Telegraph Group Ltd., (1986) R.P.C 515; Associated Newspapers Group Plc v. News Group Newspapers Ltd., (2005) EWHC 472; Fraser-Woodword Ltd. v. British Broadcasting Corporation, (1964) 1 All.ER 465; Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., (1964) 1 WLR 273; Baxter v. MCA Inc, (1987) 812 F.2d 421. 61 Sony BMG Music Entertainment v. JeolTenenbaum, 2010 U.S. Dist. LEXIS 68642. 62 Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994). 63A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639-40 (4th Cir. 2009), Perfect 10, Inc. v. Amazon.com, Inc., 508 3 F.3d 1146, 1165 (9th Cir. 2007), Kelly v. Arriba Soft Corp., 336 F.3d 811, 819 (9th Cir. 2003). 64 Abilene Music, Inc. v. Sony Music Entm’t, Inc., 320 F. Supp. 2d. 84, 93 (S.D.N.Y. 2003). 65Supra note 61, at 583. 66Harper & Row v. Nation Enterprises 471 US 539 (1985). 67 LADDIE, PRESCOTT & VITORIA,THE MODERN LAW OF COPYRIGHT AND DESIGNS, LexisNexis, (ed. 2011).

13 cases of infringing activities are commercial in nature and not in every case, the secondary work would preclude fair use.68

The nature of the copyrighted work: Under this factor, the courts ascertain the value of the work and its nature- whether published or unpublished, expressive or factual.69 It may be noted that the expression of the author is protected, not the idea.70 It is maintained by the author that the mashups/remixes reproduce the idea of the original author, the expression, however, is that of the secondary artist which may differentiate the nature of the original work from the secondary work. Thus, not all cases of mashups/remixes should be deemed as copyright infringement.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole/De Minimis: The reproduction of a substantial portion is not ‘normally’ permitted.71 Substantiality is considered as a matter of “fact and degree,” and the overall impression carried by the court.72 However, this is not the primary determinative factor as substantial copying could also be in cases where the use is fair73 that may be ascertained by contemplating upon the actual purpose of the work.74 Therefore, whether the substantial copying or not constituted infringement depends on the purpose that the secondary artist has employed the work for. The purpose in this context may be to improve on the original work as in the Fairey Case75, criticize the expression of the original creator as in the Campbell case76 or simply create a new expression out of the existing ones that is better in view of the secondary artist. In all of the above cases, unless the identical work is being communicated or reproduced, the use cannot be deemed as unfair despite substantial copying of the original work.

The effect of the use upon the potential market for or value of the copyrighted work: This factor requires a significant effect ‘on the potential market for or value of the copyrighted work.’ All kinds of commercial use of copyrighted work cannot be the simpliciter to make

68The Authors Guild Inc. v. Google, Inc. United States Court of Appeals for the Second Circuit, Docket No. 13- 4829-cv, Decided: October 16, 2015. 69 Folsom v. Marsh, 9 F.Cas. 342, 348 (C.C. D. Mass. 1841) (No. 4901). 70Supra note 61 at 586. 71CivicChandran v. AmminiArama (1996) 16 PTC 329 (Ker). 72Supra note 66. 73Supra note 61. 74 Fraser-Woodward Ltd. v. British Broadcasting Corporation &Anr., [2005] EWHC 472 (Ch). 75Supra note 49. 76Supra note 61.

14 the use unfair and cannot be denied protection.77 It will be deemed infringement only if the loss in the potential market is due to the substitution effect.78 In the case of mashups, it has been reasoned that the mashups are a different kind of music that cater to an audience other than that of the original author as in the case of the mashup artist of Girl Talk, the audience of whom is strikingly different from that of the original artists.79 Therefore, as the target audience of the secondary artist is different from that of the original artist, the loss in the potential market of the original author cannot be due to the substitution effect and no action must lie against him.

Recommendations

Keeping in mind that elimination of economic incentive for the creation may drive the creators out of the market altogether,80 a balanced view of the issue has to be taken. In this light, the following recommendations have been made:

Introduction of a provision for eliminating the ambiguity in respect of the amateur work: For the purposes of clarity in respect of any user-generated content, a provision may be inserted to the tune of Canada’s newly introduced exception in its copyright law.81 This provision exempts any ‘user-generated non-commercial’ content from copyright infringement if the original source is mentioned, the individual has reasonable ground to believe that he/she is not infringing copyright; and the remix does not have a “substantial adverse effect” on the exploitation of the existing work.

Legalize Amateur Remix culture: Professor Lessig cautions that amateur culture must not be deemed illegal and recommends a hybrid economy wherein the commercial entities producing the original work supports sharing of the work by the non-commercial entities82 as “copyright extremism” “chills” innovation and creativity.83

It is imperative to note that since only the amateur artists exploiting the prior works for non- commercial purposes, (if commercial, it would not be amateur but professional) it would reduce the need for entering into costly licensing agreements and Amy benefit the copyright

77 Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1125 (1990). 78 Martin Anderson, Welfare 133-34 (1978). 79 Ryan Dombal, Interviews: Girl Talk, PITCHFORK available at http://pitchfork.com/features/interviews/6415- girl-talk/ (Last accessed: Apr. 25, 2016). 80 Cambridge University Press v. Patton, 769 F.3d 1232. 81Canada, Copyright Modernization Act (S.C. 2012, c. 20),s.29. 82Supra note 28. 83Andr´esMonroy-Hern´andez, Designing for Remixing: Supporting an Online Community of Amateur Creators available at https://llk.media.mit.edu/papers/andres-dissertation.pdf (Last accessed: Apr. 23, 2016).

15 holders in the form of increased rate of returns. For instance, the internet will facilitate discovery of new music by the mashup-artists’ audience that may increase the sales of the original artist. The artist is also more likely to receive offers for licensing the use of his music for further commercial uses.84 Most importantly, digital technology must be seen as an opportunity that allows us to celebrate the amateur culture and creativity in a legitimized manner.

Extension of compulsory licensing to foreign works: Art.9 of the Berne Convention provides for a system of compulsory licensing to disregard the monopoly of the copyright holder in the interest of the general public. Further, Art.11bis(2) states that the license may be issued if the work has been withheld from the public. A license under Art.9 has also been recognized under Art.13 of the TRIPS. However, foreign works are beyond the ambit of this provision, which indicates that no country can request for compulsory licensing of foreign works. Similarly, the three-step test also does not preclude the flexibility of national legislations.85 Recently, The Argentina-Brazil proposalprompted for ‘Access to Knowledge’ or ‘A2K’ movement that urges WIPO to establish minimum exceptions and limitations to copyright protection by allowing access to knowledge to citizens of developed and developing countries equally. This movement also seeks to grant protection to the Internet Service Providers from copyright liability.86 The movement, though still in its development stages, will aid the objective of copyright law by ensuring access to information on one hand and adequate returns for the creators on the other.

It is recommended that compulsory licensing is extended to foreign works and the discretion available to the national entities for imposing restrictions may be limited under Art.11bis(2). Such extension is not violative of the three-step test, is exceedingly in the interest of healthy competition and promotes the concept of exclusive right in creative expression by rewarding the authors adequately for their work.

Conclusion

Further development is possible only if access to knowledge is fostered. The concept of ‘A2K’ was hailed also by Newton when he confessed of his gratefulness to his predecessors

84 Harper, Emily (2010),Music Mashups: Testing the Limits of Copyright Law as Remix Culture Takes Society by Storm, Hofstra Law Review: Vol. 39: Iss. 2, Article 4. 85 Geiger, Christophe; Gervais, Daniel; and Senftleben, Martin "The Three-Step Test Revisited: How to Use the Test’s Flexibility in National Copyright Law (2013), PIJIP Research Paper no. 2013-04. 86 Treaty on Access to Knowledge Draft, 9 May 2005 available at http://www.cptech.org/a2k/a2k_treaty_may9.pdf (Last accessed: Apr. 26, 2016).

16 such as Galileo, Copernicus, and the natural philosophers of Greece.87 Mashups/remixes, though employing the existing work are novel conceptions of the secondary artists. It has been argued that the secondary work falls squarely within the ambit of ‘Doctrine of Fair-Use’ and is, therefore, legal. However, for the purpose of precision, it is imperative to incorporate a provision in the existing framework that legalizes the remixes and mashups created by amateurs with the aid of technology as it is not a mere reproduction of the original work but transformative in nature.

87British Broadcasting Corporation, Sir Isaac Newton- Moving Words, available at http://www.bbc.co.uk/worldservice/learningenglish/movingwords/shortlist/newton.shtml (Last accessed: Apr. 24, 2016).

17 Fighting Fire with Fire: Using Custom to Protect TCEs1

Abstract

Traditional knowledge is a broad term used to refer to the knowledge of various communities and indigenous peoples that are a representation of their culture and identity. Given the rapid nature in which the world is turning into a global village, the threat that these communities face in terms of appropriation of cultural knowledge is immense. While methods such as database libraries have been evolved to protect certain types of traditional knowledge, other forms such as traditional cultural expressions, especially intangible ones, have been left behind. In a digital age, arguably, it must be easier to protect traditional knowledge, since the information regarding the same is vast and easily available. However, digitisation has helped in the appropriation of traditional knowledge and has resulted in communities losing their control over the knowledge. This problem is further amplified by the fact that traditional knowledge does not fit into the contours of intellectual property law, since the motive behind it is not personal reward. The knowledge is held by the community as a whole, in collective, or by a leader, who keeps it in custody for the entire community. However, rapid commercialisation has led to improper use of these expressions, which offend the communities, This essay attempts to highlight various methods of preservation of these cultural expressions to show that a community’s utilisation of its own cultural norms regarding transfer of traditional knowledge is the only method that does not result in a problem-solution mismatch.

Traditional knowledge, latosensu, (hereinafter TK) is a living body of cultural heritage passed on from generation to generation within a community. It is knowledge that has been acquired or created by the community and often forms part of a people’s cultural and spiritual identity.2The word 'traditional' does not refer to its age or antiquity, but instead its

1Smrithi Bhaskar, 3rd Year Student, Gujarat National Law University, Gandhinagar. The author can be reached at [email protected]. 2 Traditional Knowledge, WIPO.COM, http://www.wipo.int/tk/en/ (last visited Apr. 21, 2016).

18 significance for a particular group of people with a common cultural identity.3It is not a static body of knowledge, but grows with "continuing customary use" in accordance with the community's own laws and customs.4Being representative of the identity of a community, it is often not only held collectively in ownership, but may also change according to the values of the society it thrives in. Traditional knowledge is usually categorised into knowledge on Genetic Resources, Traditional Cultural Expressions and Traditional Medical Knowledge, which is a part of Traditional Knowledge strictosensu. 5This classification exists though scholars argue that this is not the way indigenous societies view their knowledge and so creates problems of implementation and strict classification.6

Traditional Cultural Expressions, or TCEs, which is what this essay will lay emphasis on is defined under Article 4(3)7 of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005 as “those expressions that result from the creativity of individuals, groups and societies, and that have cultural content.”8WIPO uses the terms “TCEs” and “expressions of folklore” to refer to tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested. TCEs include oral performances, symbols, crafts and names, among other things. The term "expressions of folklore", though used by the WIPO, has not been adopted by the author since the term "folklore" implies a hierarchy of knowledge in which scientific knowledge is more trustworthy and accurate than indigenous knowledge.9

3Daniel Gervais, Traditional Knowledge and Intellectual Property: A TRIPS Compatible Approach, Mich. St. L. Rev. 137, 142 (2005). 4Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2002, WIPO SP002. 5Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), http://www.wipo.int/tk/en/tk/ffm/ report/final/index.htm , (last accessed Apr. 22, 2016). 6From Deontology to Dialogue: The Cultural Consequences of Copyright, 13 Cardozo Arts &Ent L.J. 157, 167 (1994). 7UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005, Art 4(3), 8 Glossary, WIPO.COM, http://www.wipo.int/tk/en/resources/glossary.html#12 (last accessed on Apr. 26, 2016. 9Karen Engle, Culture and Human Rights: The Asian Values Debate in Context, 32 N.Y.U. J. INT'L L. & POL. 291, 306-07 (2000).

19 Given the rampant misuse of TK,10 indigenous people argue that their rights to control, access and restrict their knowledge must be recognised and protected, since it is derived from unique historical and cultural experiences.11 Given that it is knowledge, the most logical answer to this plea for protection would be found in the regime of intellectual property laws. While there have been moves to protect the indigenous community such as the Amauti project in Canada,12 there is still a regime to be developed, and this essay seeks to analyse the best system to be adopted in this regard.

The premise of the argument that TKs of all kinds need to be protected under some regime of law, if not Intellectual Property law, is that this knowledge cannot be considered as a mere raw resource from which other benefit, especially if they gain benefit by using this knowledge in a manner that the community finds offensive, or without giving proper credits to the guardians and custodians of such knowledge. However, the problem with affording such a protection under established systems of law such as IPR is that TKs do not have the same characteristics of other forms of knowledge that IPR seeks to protect. It is impossible usually to find a single creator or owner, and these creators, even if identifiable are not incentivised to create for profit or commercial gains, which is the premise of IPR rights.13 Intellectual Property rights are aimed at compensating individual effort, while creators in such communities do so in the interests of the community as a whole, or create based on techniques and ideas that belong to the entire society.14

It is universally recognised that despite these differences, there has to be some form of protection afforded to these forms of knowledge. As embodied in Art 29 of the United Nations Draft Declaration on the Rights of Indigenous Peoples15,they are "entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic

10Maori Take on Hi-Tech Lego Toys, news.bbc.co.uk, http://news.bbc.co.uk/2/hi/asia-pacific/1619406.stm (last accessed on Arp 27, 2016). 11G.A. Res. 217, A(III), U.N. GAOR, 3rd Sess., at 76, U.N. Doc. A/810 (1948). 12 Intellectual Property Rights and the Inuit Amauti: A Case Study (2002), KIPO.KE.WIPO.NET, http://www. kipo.ke.wipo.net/export/sites/www/tk/en/igc/ngo/wssd_amauti.pdf , (last accessed Mar. 3, 2016). 13Cheryl Swack, Safeguarding Artistic Creation and the Cultural Heritage: A Comparison of Droit Moral Between

France and the United States, 22 COLUM VLA J.L ARTS361, 371-72 (1998). 14Edward J. Damich, The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights ofAuthors, 23 GA. L. REV. 1, 27-28 (1988). 15United Nation Declaration on the Rights of Indigenous Peoples, G.A. Res No. A/61/l.67.

20 resources, seeds, medicines, knowledge ofthe properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts." Additionally, this principle finds its place in the United Nations Declaration of Human Rights, which provides that "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."16

In this regard, a distinction is worth making between the various categories of Traditional Knowledge. Though, as stated above, any attempt at classification is fictitious,17 the author suggests that different methods of protection needs to be accorded to TCEs and other forms of TKs (strictosensu). To protect TKs such as genetic resources, models such as the TKDL (Traditional Knowledge Database Library)18have been developed by India and areoperating successfully. However, it is practically impossible to create a database of cultural expressions.

Any system of protection we seek to adopt must keep in mind that the needs of the community is to conserve their knowledge systems, while simultaneously providing for incentives to those who may add value to it by using it for a brief period of time. The aim is not to isolate the knowledge, but to disperse it in a way that is beneficial and not detrimental to the financial as well as moral interests of these societies. A distinction must also be drawn between the rights of the community, and the rights of individual creators in the community, if such a distinction is possible based on the factual matrix. For instance, the know-how regarding a particular weaving style may rest with the community as a whole, but a design created based on such know-how by persons within the community rests with them. However, indigenous communities do not usually adopt such individualistic approaches and consider all knowledge derived out of communal knowledge as communal in itself.19 It must also be borne in mind, especially with respect to intangible TCEs that their use outside the community may not lead to a financial loss. However, certain kinds of use of sacred cultural

16U.N. Commission on Human Rights, Report of the Working Group on Indigenous Population on its Eleventh Session, 45th Sess., Agenda Item 14, U.N. Doc. E/CN.4/Sub.2/1993/29/ Annex I (1993). 17Supra note 6. 18 About TKDL, TKDL.RES.IN, http://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp?GL=Eng, (last accessedApr 27, 2016). 19Anil K. Gupta, WIPO-UNEP Study on the Role ofIntellectual Property Rights in the Sharing of Benefits Arising from the Use of Biological Resources and Traditional Knowledge (2004), available at http://www.wipo.int/tk/en/publications/769euneptk.pdf, (last accessed Apr 4, 2016).

21 artefacts, symbols or designs can cause considerable offense to the relevant community responsible for the use and circulation of that artefact, symbol or design.20

The subject of protection of TKs has a variety of theories and suggestions, mixing political ideologies and historical narratives. Some work only in a national context, and are focused on certain tribes and movements to protect their heritage, while others seek to create a blanket law that will work in any matrix. 21 For example, the idea of protection of such property is more copyright centric in Australia and New Zealand22, dealing more with the types of property that can be included and excluded within the paradigm, rather than places such as Africa, where a sui generis regime is being brought about.23Therefore, it is pertinent to discuss and dissect the various methods suggested and adopted to achieve the goals of protecting TKs, and their applicability to intangible TCEs.

There are various solutions proposed and tried out in various traditional knowledge systems. One of the most logical leaps from problem to solution leads to a system of labelling, such as used in Australia. Used by Aboriginal communities in Australia and in New Zealand, these aim at marking tangible expressions of culture to deem it authentic. However, not only is this very expensive24, it can only be used on products and artworks, and still excludes folklore and names and other intangible expressions. Additionally, labelling only works if the products or goods being labelled are already marketed as cultural goods, since it is only a proof of authenticity. It is also necessary that customers are aware about authenticity that the goods derive from the system of labelling. It merely shows that a product is of indigenous origin, and helps in indentifying such works by preventing copies from being sold in that market where the label operates. This system does not stop counterfeiting, but merely provides an advantage to labelled goods in a market where both original and counterfeit cultural goods are sold.25 Additionally, it has been argued in Australia that this is a "one size fits all" approach, and is not formulated keeping in mind needs of individual communities.

20Joseph William Singer, Publicity Rights and the Conflicts of Laws: Tribal Court Jurisdiction in the Crazy Horse Case, 41 S.D. L. Rev. 1 (1996). 21Kristen A. Carpenter, Sonia K. Katyal& Angela R. Riley, In Defense of Property, 118 Yale L.J. 1022 (2009). 22Naomi Mezey, The Paradoxes of Cultural Property, 107 Colum. L. Rev. 2004 (2007). 23 A New South Africa Traditional Knowledge Bill, IP-WATCH.ORG, http://www.ip-watch.org/2012/03/18/a-new- south-africa-traditional-knowledge-bill-sui-generis-protection-for-tk/ (Last accessed Apr 17, 2016.) 24 ToiIho To Be Scrapped,TangataWhenua (Māori News & Indigenous Views), NEWS.TANGATAWHENUA.COM, http://news.tangatawhenua.com/archives/1456 (Last accessed Apr 23, 2016). 25Id.

22 Additionally, such labels of authenticity may require certain conditions to be met to be declared as authentic, for example aboriginal, works, which may not be met by most goods.26

For example, the Indonesian government came up with a legislation to protect Batik, in a response to counterfeiting of the designs. A defensive strategy was adopted, and the government developed a design patent program for registration of thousands of traditional designs, levying a fee to allow artists to use it. However, it was seen that not all traditional artists could afford the fee being levied by the government.27. This led to smaller artists being disallowed entry to the market, albeit unintentionally, and established new hierarchies within the community of artists.28

Another popular mechanism is the creation of a knowledge registry or database. India is one of the forerunners in this regard, with the creation of the TKDL (Traditional Knowledge Database Library)29 to document traditional medicines. Such recording and publication will lead to a system wherein patent officers can cross-check contentious claims. However, the legal protection afforded to such databases coupled with questions of ownership, time and inter-community disputes makes this an ineffective system. The uneven legal protection for databases exacerbates the problem. Additionally, the problem of identifying ownership remains. Since these databases operate within the IP paradigm, it is also safe to assume that the knowledge will eventually come into the public domain. 30

Another method used to protect TCEs is based on moral rights of the author (droitsd’auteur).31This includes the right to the integrity of the work, to not have it altered, distorted or mutilated. These rights are non-transferable except through an agreement

26Indigenous Art – Securing the Future: Australia’s Indigenous Visual Arts and Craft Sector, Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Para 10.16 (Commonwealth of Australia, 2007). 27Charles Knobloch&DewiSavitri Reni, Using Batikmark as a First Step to Extend Protection of Indonesian Javanese-batik Patterned Textile in Foreign Countries, Arnold &Knobloch, L.L.P., Feb. 5, 2009, http://www.usptclaw.com/pdfs/Batikmark_Article.pdf (last accessed Apr 21, 2016). 28Id. 29Supra note 16. 30Jane E. Anderson, Law, Knowledge, Culture: The Production of Indigenous Knowledge in Intellectual Property Law (2009). 31Elizabeth Adeney, The Moral Rights of Authors and Performers: An International and Comparative Analysis (2006).

23 between the creator and a third party. However, these rights necessitate the existence of a clear author or creator.32 The problem with this system may seem obvious and insurmountable, that since the concept of ownership in traditional communities is based on history and associated conceptions of the works, making moral rights ineffective if the work is not recognised as copyrightable, or if a single creator or group of creators cannot be identified, since it cannot be applied to collectives. However, there are cases where moral rights were successfully implemented such as in Australia with respect to the publication of a book 'Nomads of the Desert' by anthropologist Charles Mountford. This book contained information regarding certain secret ceremonies of the Pitjantjatjara people. There was subsequently an injunction on the sale of the book within the Northern Territory, Australia since the author refused to withdraw it. The court in this case recognised the claim made by the Pitjantjatjara Council on that this disclosure would harm their societal structures. 33

In this context, it is worth noting that the WPPT recognises the economic and moral rights of performers as well, and grants then control over their songs, chants and dances which are instrumental in transmitting and preserving their cultural heritage.34

Another method being adopted, as seen in the Intellectual Property Rights policy that Kerala in India adopted in 200835, is the policy of a public domain. The underlying principal here is that it will serve as a counterpoint to the monopoly that abuse of TCEs create. However, this system also does not account for various reasons as to why some TCEs cannot be placed in a public domain. One argument is that in most societies, "indigenous" peoples are considered different from the public (for examples Native Americans and aboriginal peoples). Secondly, the perception of what constitutes knowledge is as varied as the politico-cultural contexts from which it emerges, and the benefits that the community may perceive36. Historically, indigenous peoples have lost ownership and control over their knowledge, and there is no way to determine the extent of circulation, potential uses and possible users in this context, meaning communities may be reluctant to place their knowledge in the public domain.37 This is evidenced by the fact that certain communities have requested their knowledge to be

32First Nations Cultural Heritage: Laws, Policy, and Reform (Catherine Bell & Robert K. Paterson eds., 2009). 33Supra note 32. 34Traditional Culture: A Step Forward for Protection in Indonesia (Peter Jaszi ed., 2009) 35 India: Intellectual Property Rights for Kerala, WIPO.COM, http://www.wipo.int/wipolex/en/details.jsp?id=7642, (last accessed Apr 26, 2016). 36Id. 37Supra note 21.

24 withdrawn from circulation, or have requested protection in perpetuity for their TCEs.38Additionally, the interests of the government and the interests of the traditional community may not be the same. Another concern is that public domains make the past and ongoing cultures of people invisible, especially with respect to knowledge management. The issue regarding control can only be fixed if culturally appropriate conditions for access are established.

Another variant of this system is the Creative Commons.39 Creative Commons serves as a licensing framework alternative to the copyright regime. It assists in creating a suitable regime in which specific needs of specific communities are met, such as non-commercial use. This calls for a shift in the existing IP paradigm, which is reflected in the views of many owners of TCEs. In theory, the idea of a Creative Commons seems to answer all the underlying philosophies of the movement to protect TCEs. It promotes a local narrative that acknowledges that it is impossible to create a system assuming indigenous peoples around the world as homogenous in culture, values and identities.40However, to implement this effectively, care needs to be taken that it does not fall prey to the pitfalls of the above regimes. Ideally, a wide range of TK specific licenses must be created in collaboration with various communities, to ensure that local needs are taken into account. While the question would still remain as to 'whose commons?', it would still be a step to rectify a number of problems faced by other regimes.

Other scholars have suggested a sui generis legislative system. Crafting a system to suit this situation would ensure that communities do not have to modify their systems to fit into a framework that may not work. Countries such as Panama have already developed sui generis legislations,41 filling in the gaps as to where TCEs do and do not fit into the IP regime. "The role of a sui-generis regime could therefore be to establish a bridge between indigenous/local community and national and international legal systems, in order to secure the effective recognition and protection of rights which derive from customary law and practice"42However, such a sui generis legislation also poses multiple questions for which there are no simple answers. The need for international assistance, the diversity of the subject, the difficulties in identifying owners, the applicability, enforceability and

38Id. 39Supra note 34. 40Id. 41Supra note 29. 42Id.

25 transferability of these legislations have yet to be seen since there is no model to compare to. There have also been proposals for an international treaty relating to this subject, as opposed to some claims that there must be individual, localised national legislations. While an international instrument may provide a broad framework, as stated before, a more localised approach needs to be adopted. These debates are further magnified by the political cloud surrounding this debate, leading to a slow move towards an international treaty. The call for a treaty also raised questions as to the extent of participation by indigenous peoples and the acceptance of the same by an large number of nations.

The last, and in the view of the author, most effective way to protect TCEs is utilising customary law. It has been long argued by some indigenous societies that if a step is to be taken to preserve and protect TCEs, then the customary rules regarding those expressions must be taken into account. There may be many indigenous laws that govern use and transfer of TKs, which may be either historical or contemporary.43 These laws must be given adequate authority to function in the manner they were intended to, as opposed to being replaced by other laws which may or may not be made keeping in mind the complex cultural matrix of the community in question. These localised laws are based on the context of the society and will usually not be transferable across communities. However, it recognises that each community is different and has different needs and aims while protecting its knowledge, and understanding this, allows for the most important stakeholder to ensure that the rules of surrounding their own knowledge are followed. It is pertinent to note that unlike other knowledge, TKs have certain religious and sacred significance, which is why it is imperative to allow the community itself to dictate the use of the same.44 While this does present substantial challenges such as identifying the source of power in a community, and whether the community rule can be followed outside the context of the community, these laws must be respected. Therefore it is argued that despite the difficulties, these must be incorporated into the Western context. One way to do this is by utilising protocols made by the community itself, thereby building a framework which gives traditional rules validity and authority. There must be rules that actively support the traditional framework, even if there are ways to protect a particular knowledge through an existing IP system.45

43Supra note 26. 44Supra note 21. 45Id.

26 In conclusion, it is argued by the author that the protection of TCEs is the need of the hour. While it is marginally easier and more effective to protect knowledge such as traditional genetic knowledge or medicinal knowledge, it is very difficult to protect cultural expressions, especially those which are intangible. Coupled with the fact that terminologies such as folklore devalue this knowledge, most of the efforts in force today are ineffective and lead to adverse consequences. Additionally, the creation of solutions to the problem of indigenous peoples without taking into account their view or any rules and traditions they may have on the subject defeats the very purpose of trying to fill the gap that TKs create in terms of intellectual property rights. It is therefore the author's view that adopting each community's customary law on the subject is the most appropriate solution to follow to protect the moral rights of the communities that hold such knowledge in custody.

27 Recognising ‘Traditional Knowledge Digital Library’ As The Digital Protectorate Of Traditional Knowledge And Folklore In The IPR Regime1

Abstract Traditional knowledge and folklore are the sacred information that is passed down through generations among indigenous and tribal communities. It is considered to be unique in nature since it presents itself as a cross between intellectual property and public domain. But in the present era, the common problems faced by this knowledge are the possibilities of misappropriation and exploitation, especially in a culturally rich nation like India. This is generally because it forms a part of the public domain since it does not have an ‘apparent owner’ to protect the property with exclusive rights. Thus, for a unique property like traditional knowledge, an equally unique protection system is required, wherein the property can be protected whilst being existent in the public domain. This can be achieved via digital means of a database like the Traditional Knowledge Digital Library. This database was introduced by the Indian Government as a measure to prevent misappropriation, by compiling the traditional knowledge and folklore in a digital library, so that patents over the information present on the database could not be obtained. The digital library presently has a much-cited success, but its usage can be further experimented upon, by copying the features of a typical Intellectual Property Rights Regime. Implementation of such features in the already existent digital library would further enhance its protectorate function that it was formed for and aims at achieving.

INTRODUCTION Traditional knowledge and folklore are the rich cultural heritage and knowledge that has been passed down through ages in indigenous communities.2 Such knowledge is intrinsic only to the indigenous community, to whom it belongs. Due to its unique nature it is imperative to preserve

1Abha Nadkarni, Student, WBNUJS, Kolkata. 2Manuel Ruiz, The International Debate on Traditional Knowledge as Prior Art in the Patent System: Issues and Options for Developing Countries, CENTRE FOR INTERNATIONAL ENVIRONMENT LAW (2002),http://www.ciel.org/Publications/PriorArt_ManuelRuiz_Oct02.pdf(last updated Apr. 22, 2016); Traditional Knowledge,WORLD INTELLECTUAL PROPERTY ORGANIZATION, http://www.wipo.int/tk/en/tk/(last updated Apr. 22, 2016).

28 it. Unfortunately, recently, problems like bio-piracy have arisen with respect to traditional knowledge and folklore. Bio-piracy is a form of misappropriation, which occurs when companies or even individuals use traditional knowledge and folklore to develop a product, over which it can obtain patent rights.3 To a common man this practice may not seem illegal, since the knowledge per se is not being patented, but the product formed through its usage is. Even the patenting of a product formed through traditional knowledge would adversely affect the tribal and indigenous communities, to whom such knowledge is sacred.4 The importance and the need for preserving such traditional knowledge and folklore have been looked into in Part II of this article.

Protection of traditional knowledge and folklore eventually became apparent, but the plaguing problem was whether the Intellectual Property Rights (‘Intellectual Property Rights’) Regime protection could apply to these. This further raised the question of, the perception of traditional knowledge and folklore as a property, which has been discussed in Part III by looking through a jurisprudential lens. The next issue that arises is what kind of protection can be afforded to such a unique property. A solution that is presented in the form of a digitally developed database known as the Traditional Knowledge Digital Library (‘TKDL’), has been addressed in Part IV of the article. And finally Part V of the article suggests certain improvements to the present TKDL framework that would imbibe features of IPR protection. This article would conclude on the note that it is imperative to protect traditional knowledge and folklore, and this can be achieved through the means of TKDL and certain additional changes in its features.

NEED FOR PRESERVING TRADITIONAL KNOWLEDGE AND FOLKLORE

Traditional knowledge and folklore are recognised as prior art, which are sacred to the indigenous and tribal communities.5 The reason for protection being provided to such prior art is

3The Trade and Environment Database, Basmati, http://www1.american.edu/ted/basmati.htm (last updated Apr. 22, 2016); Traditional Knowledge Digital Library, http://www.tkdl.res.in/tkdl/Langdefault/common/BioPiracy.asp?GL(last updated Apr. 22, 2016). 4PrakruthiGowda&Ushasi Khan, Sacred But Vulnerable: A Critical Examination of the Adequacy of the Current Legal Framework for Protection of Tribal Sacred Traditional Knowledge, 1(1) NUJS L. REV. 109, 113 (2008). 5 John Reid, Biopiracy: The Struggle for Traditional Knowledge Rights, 34(1) AMERICAN INDIAN L. REV. 77, 81 (2009).

29 twofold. First, such a property is of a unique nature that is linked with the traditional knowledge holder’s identity.6 This can be analysed by referring to Margaret Jane Radin’s Theory of Personhood of Property (‘Personhood Theory’). According to this theory any property that is owned by an individual would possess the characteristics and the essence of that individual.7 For instance, if an individual owns a house, the aspects of that house could be linked back to its owner. The connection between an individual and the property, allows the ownership of the property to be linked back to the individual.8

A similar analogy can be drawn with respect to a community property like traditional knowledge and folklore. Traditional Knowledge is vehemently protected, because it is intrinsic to the indigenous communities, to the extent of being considered sacred.9 So how is Traditional Knowledge sacred? While discussing religion, Emile Durkheim had suggested that ‘sacred’ is something that represents the community views as opposed to the individual interests.10 Therefore Traditional Knowledge is considered sacred as it represents the identity of the communities and has been doing so for centuries.

The Parliament and the Judiciary have on several counts been aware of the importance of protecting the interests of the tribal communities and their knowledge.11 An instance of it is, Article 29(1) of the Constitution of India, which permits citizens having a particular culture, to have a right to preserve it. Although this awareness has mainly been resonated through the legislative example of Scheduled Tribe and other Forest Dwellers (Recognition of Forest Rights) Act, 2006 (‘Forest Act’), this particular legislation safeguards the traditional knowledge and folklore of the indigenous communities in such a manner that the usage of the information is permitted only to the members of the tribal community,12 and no one including these members is allowed to profit from the usage of such information through the development of products. The

6Id. 7 Margaret Jane Radin, Property and Personhood, 34 STAN L. REV. 957 (1982). 8Id. 9Daniel J. Gervais, Spiritual but Not Intellectual? : The Protection of Sacred Intangible Traditional Knowledge, 11 CARDOZO J. INT’L. & COMP. L. 467 (2003).

10 Michael Blakeney, The Protection Of Traditional Knowledge Under Intellectual Property Law, 22(6) EUR. INTELLECTUAL PROPERTY L. REV. 251 (2000).

11Gowda, supra note 4, at 110. 12 The Scheduled Tribe and other Forest Dwellers (Recognition of Forest Rights) Act, 2006, § 3(1)(k).

30 Act essentially recognises traditional knowledge and folklore as a community property that is owned by the indigenous communities as traditional knowledge holders (‘TK holders’) for their own use, excluding exploitative use.

Thus, a connection between the traditional knowledge and folklore and the indigenous communities can be evidenced through Radin’s Personhood Theory. Now, since the importance of the protection being afforded to traditional knowledge and folklore has been established, the second aspect of the reason is the outcome, when protection is not provided. Hence the second reason for protecting traditional knowledge and folklore is to prevent patents being obtained over products developed based on them.

In the past there have been several instances of bio-piracy wherein the traditional knowledge from India has been obtained and used for the purpose of developing products in other nations.13 These threats to traditional knowledge can be traced back to 1995 when a patent over the healing properties of turmeric was attempted to be obtained.14 A second incident was when a company attempted to obtain a patent over basmati rice.15 Since then there have been several instances of biopiracy by individuals and companies to patent the usage of traditional knowledge and folklore, it is necessary to prevent such misappropriation via means of an IPR regime.

RECOGNISING TRADITIONAL KNOWLEDGE AND FOLKLORE AS A ‘PROPERTY’

To allow traditional knowledge and folklore to be protected by the IPR Regime, it is necessary to first establish that such information carries the feature of a property that is capable of requiring protection. The IPR Regime is founded on John Locke’s ‘Labour Theory of Property’ (‘Labour Theory’) that an individual has exclusive ownership and exploitative rights over a property on which labour has been spent.16 Labour Theory is based on several assumptions and facets; among them the relevant one for an IPR Regime is that, the property should have at least an iota

13 Reid, supra note 5, at 79. 14Id. 15Id. 16 3 Madhvi Sunder, IP , 59(2) STAN L. REV. 257, 260 (2006).

31 of labour. Thus, to establish an IPR protection over traditional knowledge and folklore, the Labour Theory needs to be discussed.

In Locke’s theory there is a basic assumption made by him that the labour is exerted on the property given by God, that is common to all, and everyone has equal access to.17 An interpretation of the theory suggests that the reason that labour was exerted on the property is because it improvises on the possible use of the property. The property by itself is in an inert state capable of only so much, but when labour is applied it broadens the spectrum of possible uses.

The reason that property rights are granted when labour is exerted on a certain property is because it is meant to act as a reward.18 Labour is something an individual probably does not enjoy exerting but nevertheless does in the anticipation that he will be rewarded for it, in the form of property rights.19 This emanates from Locke’s value added theory. The proposition by Locke in the value added theory is that when a labourer produces something that is of value to others then he deserves property rights as a benefit.20 This extends to mean that by virtue of the fact that labour is used and is capable of being valuable to others, it is also capable of granting property rights to the labourer.

Now these nuances of the theory analysed in the Traditional Knowledge regime offer a more conflicted scenario in terms of the labour exerted and the ‘value added’. From the TK holders’ side, they themselves have not put in any effort for the traditional knowledge and folklore but it is their ancestors who have passed down the information. Thus, it can be assumed that although the indigenous community themselves have not exerted labour; the inheritance from the original owners would put them in a place of ownership.21 But is this ownership sufficient to warrant IPR protection?

17 th JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT § 25 (6 ed., 1764). 18 Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L. J. 20 (1988). 19 Karen Vaughn, John Locke and Labour Theory of Value, 2(4) JOURNAL OF LIBERTARIAN STUDIES 311 (1978). 20Id. 21 Robert Nozick in his Entitlement Theory, which is a part of the Distributive Justice Theory, had stated that one of the principles of this theory is the ability to pass down the property rights that the creator holds to others including successive generations. This principle is applicable to Traditional Knowledge, wherein although it is not known who the original creator is, it is known the creator did belong to the particular indigenous community and therefore, he is

From the companies or inventors side, that try to patent products, which incorporate traditional knowledge, property rights are rejected because of lack of innovativeness.22 The general assumption is that such companies have not put in their ‘own labour’ to make the product.23 Currently in the IPR Regime, there are laws and conventions to prevent the usage of Traditional Knowledge in any form in a product.24 This means that even if the product has a hint of Traditional Knowledge, although it might be a novel product, patent rights cannot be granted. For instance, if toothpaste is made using the health related properties of ‘nutmeg’; patent rights are rejected on the ground that it involves Traditional Knowledge.

Thus, the Labour Theory in the present scenario performs two functions; firstly it prevents traditional knowledge and folklore from being considered a typically property that is afforded IPR protection; and secondly it prevents companies and individuals from misappropriating such information. Since traditional knowledge is a unique form of intangible property, it cannot have the typical IPR protection, but rather an equally unique form of protection that incorporates aspects of an IPR Regime.25 This protection in the form of TKDL has been addressed in the next part of the article.

TKDL: THE PSEUDO IPR REGIME PROTECTION

TKDL is an ambitious project that was developed in the recent years as a brainchild of V.K. Gupta, who realised that a digital library with IPR Regime features was probably the solution to the bio-piracy threat suffered by traditional knowledge and folklore.26 This realisation gave birth to TKDL, which was formed as collaboration between Council of Scientific and Industrial

capable of passing down his right over Traditional Knowledge as a property to future generations; ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974). 22 Reid, supra note 15, at 83. 23Id. 24Id. 25 Michael Blakeney, The Protection Of Traditional Knowledge Under Intellectual Property Law, 22(6) EUR. INTELLECTUAL PROPERTY L. REV. 251 (2000).

26R. Lakshmi Poorna et al., Preservation and Protection of Traditional Knowledge- Diverse Documentation Initiatives across the Globe, 107(8) CURRENT SCIENCE 1240, 1241 (2014) available at http://www.currentscience.ac.in/Volumes/107/08/1240.pdf(last updated Apr. 22, 2016).

33 Research (‘CSIR’) and Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (‘AYUSH’).27 This database is digitally maintained wherein the traditional knowledge and folklore that is collected by the researchers employed by these government institutions, are available.28

A rudimentary understanding of the TKDL framework is that the information that is available on the database cannot be used for obtaining patents. The first step in the framework is that a non- disclosure agreement is entered into with various Patent Offices, which allows these offices to access the information compiled in TKDL.29 The second step is that whenever a company or an individual wants to obtain a patent in the nations with which India has such agreements, the patent information undergoes a check using TKDL to ensure that traditional knowledge has not been used.30 Thus, if the technology in the patent is similar to the traditional knowledge or folklore maintained in TKDL, then the patent is denied. This gives the assurances that the traditional knowledge and folklore cannot be misappropriated through application for patents.

TKDL is similar to an IPR Regime since it warrants protection to traditional knowledge and folklore. In a typical IPR Regime, protection in the form of exclusive rights is provided to the owner of an intangible property, as a reward for owner’s labour.31 In the TKDL framework too, the traditional knowledge and folklore is protected as it prevents anyone from using the information maintained on the database. The introduction of TKDL is a welcomed one as it has achieved a much-documented success32 in preventing various patent applications involving traditional knowledge. Further, in the new era, a digital protection is probably the best solution to the bio-piracy problem. Thus, TKDL manages to imitate the IPR Regime with respect to the protection aspect.

27Id.; Traditional Knowledge Digital Library, http://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp?GL=Eng (last updated Apr. 22, 2016). 28 V.K. Gupta, Traditional Knowledge Digital Library, SUB-REGIONAL EXPERTS MEETING IN ASIA ON INTANGIBLE CULTURAL HERITAGE: SAFEGUARDING AND INVENTORY-MAKING METHODOLOGIES (Bangkok, Thailand, Dec. 13- 16, 2005), http://www.accu.or.jp/ich/en/pdf/c2005subreg_Ind1.pdf (last updated Apr. 22, 2016). 29Id. 30Id. 31 Hughes, supra note 18, at 21. 32 Grant of wrong patents prevented by TKDL in 220 cases till date, BUSINESS STANDARD, (Dec. 4, 2015), http://www.business-standard.com/article/government-press-release/grant-of-wrong-patents-prevented-by-tdkl-in- 220-cases-till-115120401168_1.html (last updated Apr. 22, 2016).

Although, the application of IPR to traditional knowledge and folklore would also require the indigenous communities possessing ownership rights under the garb of TK holders. This unfortunately has not been achieved by TKDL, and the only function the project performs is that of protection. Hence TKDL plays a defensive role33 unlike the IPR Regime. The IPR Regime performs two main functions; one of protection and the other of allowing owners of intangible properties to reap benefits in the form of monetary value.34 But TKDL only manages to perform the former function.

Yet, it needs to be noted that TKDL never intended to perform the IPR Regime functions; it merely aimed at digitally ensuring that the traditional knowledge and folklore were not misappropriated.35 The underlying reason for this as mentioned in Part II is that lack of protection would lead adverse economic threats to the interests of the indigenous community.36 But if economic issue and protection is the underlying reason for the introduction of TKDL, then shouldn’t an effort be made towards making monetary use of it? This means that TKDL should be engineered in such a manner that it is capable of holistically performing both of the IPR Regime functions.

Thus, presently TKDL performs its function in the capacity of a pseudo IPR protectorate. Nevertheless, it can transcend from this singular function to include the monetary function as well by addressing its drawback; lack of monetary benefits to TK holders, which has been analysed in the succeeding part of the article.

IMPROVEMENTS UPON THE EXISTENT TKDL SCHEME

As aforementioned in the article, TKDL merely acts as a protective tool, to make it more akin to an IPR Regime; it needs to ensure monetary benefits to the TK holders. Working on the assumption that the indigenous communities are the TK holders as their ancestors passed down

33Poorna, supra note 26, at 1242. 34 Hughes, supra note 18, at 21. 35 Gupta, supra note 28. 36Supra Part II.

35 the knowledge to them, they would be considered as the true beneficiaries of the TKDL scheme.37 The present framework does cater to the indigenous communities in the protective aspect but not in the monetary aspect, as an IPR Regime would have. Hence to address this flaw, it is required that monetary benefits be reaped by making the database publicly accessible for a fee with certain conditions that would ensure the protective aspects.

Traditional knowledge and folklore is ideally available in the public domain, but even the public domain can be categorised based on accessibility. The World Intellectual Property Organisation (‘WIPO’) had suggested that traditional knowledge would fall within the category of public domain that is not freely accessible.38 Extending this categorisation to TKDL, access to it can be provided to the general public in exchange of monetary value. The revenue that would be received by commercialising TKDL could further be used towards the benefit of the indigenous communities and further developing the database and adding more information.39 Therefore, making the TKDL commercially accessible to the public would allow it to achieve both of the functions that are performed by a traditional IPR Regime.

CONCLUSION

Traditional knowledge and folklore through various avenues has been recognised as a scared treasure of India’s cultural heritage. Its unique nature and intrinsic quality towards indigenous communities demands protection. And normally the IPR Regime is used to provide protection to intangible properties. But in the present scenario since traditional knowledge and folklore are of a sui generis nature, an equally unique form of protection is required. This unique form of protection can be achieved digitally through the TKDL, which prevents patents being granted if they are based on traditional knowledge and folklore.

37Supra Part III. 38Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, WORLD INTELLECTUAL PROPERTY ORGANISATION, (Nov. 24, 2010), http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_inf_8.pdf (Last visited on Apr. 22, 2016). 39 NATIONAL KNOWLEDGE COMMISSION, Report to the Nation 2006-2009, ¶ 7.3, available at http://www.aicte- india.org/downloads/nkc.pdf (Last visited on April 22, 2016).

36 TKDL manages to perform the protectorate functions of a typical IPR Regime, but unfortunately fails to similarly provide monetary benefits to the apparent owners of the traditional knowledge and folklore. Making the TKDL accessible to the general public on the basis on a monetary value like a fee would ensure that the indigenous communities enjoy the protectorate functions and the revenue benefits that the TKDL can provide to them. Hence, until further changes are made to the TKDL framework, it can be regarded as the pseudo IPR Regime that acts as protector of traditional knowledge and folklore by partially performing the functions of IPR.

The Economic Fairness of Fair use: An Analysis vis-à- vis Google Books Case and DU Photocopy Case1

Abstract Last fall witnessed the decision of one of the biggest fair use cases, Google Books Case, where the 2nd Circuit court ruled Google Books in favor of fair use. Where the jurisprudence is pretty explored in U.S., it is not exactly in India. The recent most controversial case in India, i.e. Delhi University Photocopy Case’s fate is yet not decided. Both the cases deal with the same question, whether the service provided was within the ambit of fair use. Since the whole controversy revolves around economic and legal rights the case implicates, it becomes pertinent to ascertain what boundaries shall be drawn to balance the societal benefit and the rights of copyright owners.

This paper delves into the economics of fair use, analyzing both the cases on the ground of transformative use and commerciality, the two important determinants to ascertain the applicability of the most crucial factor to determine fair use, i.e. the purpose and character of the use. Apart from an introduction to the issue, the paper is divided into three parts, followed by conclusion. The first part deals with the economic analysis of fair use, i.e. transformative use and commerciality, the second part analyses the Google Books Case and its analysis through two factors, the third part analyses DU Photocopy case through both the factors. The paper finds that both the cases pose a highly transformative use diminishing the factor of commerciality ultimately benefiting the society. The paper concludes with the idea of Reprographic Rights Organization or RRO controlling the uncontrolled nature of photocopying.

The essence of copyright is the promotion of learning—not the enrichment of publishers2

1Kartikey Gupta, Student, National Law University, Odisha, Cuttack. 2Judge Merritt in Princeton Univ. Press v. Michigan Document Services, 99 F.3d 1381, 1395 (6th Cir. 1996).

INTRODUCTION

Copyright is not an absolute right. The most prominent example of its defense being fair use, i.e. an exception carved out for reproducing the copyrighted work, which otherwise would have amounted to infringement.3 From an economic perspective, fair use not only promotes competition and creativity, but also “strikes a balance between protection of initial innovation and further invention”4. Because it has such a significant impact on the rights and works of both the copyright holder and alleged infringer, the correct interpretation by the court becomes invariably imperative. While the concept is interpreted by the name of ‘fair dealing’ in common law countries, including India, ‘fair use’ in US has often been regarded as its ‘cousin’, the former being considered more rigid in interpretation than the latter.5

The US Copyright Act, 1976 sec. 107 lays down four factors to ascertain fair use:

• “The purpose and the character of the use”, including whether such use is of a commercial nature or is for a non-profit educational purpose. • “the nature of copyrighted work” • “the amount and portion of the substantiality used” • “the effect of the work upon the potential market”6 The stand taken by the judiciary shows that the fair use interpretation is largely based upon the first and fourth factors, more specifically from the economic perspective, the commerciality and transformative use of the work.7 The ‘transformative use’ of a work is “whether the new work . . . adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message”8, i.e. the new work acting more as a complement than a substitute to the original work. The ‘commerciality’ principle states that the substituted work will

3 SK Dutt v. Law Book Co. and Ors., AIR 1954 All 570. 4 BURTON ONG, The Interface Between Intellectual Property Law and Competition Law in Singapore, in THE INTERFACE BETWEEN INTELLECTUAL PROPERTY RIGHTS AND COMPETITION POLICY 378, 380 (Steven D. Anderman ed. 2007). 5 Justice Laddie, Copyright: Over-strength, over-regulated, over-rated, European Intellectual Property Review, 18(5) 253-260 (1996). 6 Daniel SengKiat Boon, Reviewing the Defense of Fair Dealing for Research or Private Study, Singapore Journal of Legal Studies, 1996, p. 149. 7Harper &Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 561 (1985). 8Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584-85 (1994).

be regarded as complimentary work or within the ambit of fair use if the commercial benefit derived from the substituted work is not outweighed by the overall commercial benefit derived from the original work.9 Both the concepts will be dealt in greater clarity further.

One such landmark interpretation of fair use was recently made by the 9th Circuit Court of US in the Google Books Case10, where the US court ruled Google Books services within the precincts of fair use. Although US has an extensive history in similar cases, the stance is pretty undeveloped, but also red hot in India.

This article delves in exploring the economic aspect of fair use and its application in the late Google Books Case and the Indian scenario. Part II of the article explains in greater detail the concept of transformative use and commerciality or commercial intermediation of fair use. Part III goes on to analyze the case of Google Books and it’s analysis through transformative and commercial intermediary test. Part IV explores the Indian scenario of Part III through DU Photocopy Case.

II. THE ECONOMICS OF FAIR USE: TRANSFORMATIVE USE AND COMMERCIALITY

Be it the claim of plaintiff for violation or defendant for fair use, at the end it all comes down to the economic impact the act poses.11 Fair use has been regarded as a tool used by the courts to authorize such transfers that are socially desirable but cannot be effectuated because of market restriction.12 But it’s a perplexing question to determine the exact situation or point where the fair use claim shall be entertained. It has been argued that the courts should bring in the fair use when the user relies on the courts’ analysis of social benefit accruing as a result of the use of the copyrighted work, than relying on the market’s interpretation itself.13 Hence the proper economic consideration for a court to base its application of fair use shall be in following cases:

9Sega Enterprises Ltd v. Accolade, 977 F.2d 1510, 1522 (9th Cir.1992). 10 Authors Guild, Inc. v. Google Inc., No. 13-4829-cv (2d Cir. Oct. 16, 2015). 11Robert M. Hurt & Robert M. Schuchman, The Economic Rationale of Copyright, 56 AM. ECON.REV. 421, 421-25, 432 (1966). 12Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190, 1236 (N.D. Ga. 2012). 13Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600 (1982).

• That a market failure is present- it can be ascertained if the possibility of high transaction cost or lower consensual bargaining power is present or when the user is unable to monetize the desired social benefit out of the work.14 • Balancing Injury and the Benefit accrued- if the market failure is apparent, the court should assess to whom the use of the work will be detrimental, by considering if the apparent market failure is cured. If in such case, the price demanded by the owner is less than what he is paid by the user, a transfer to the user in such a case should increase the social value accrued by the use.15 • The Substantial Injury hurdle- this test balances both the approaches by establishing that if permitting fair use causes substantial injury and impairs incentives, such fair use shall This gives justification to the ‘productive fair use’ test which states that if the use lowers the cost of expression and also elevating the number of works, increasing such use and incentivizing at the same time, it shall be given the fair use defense. 16

The above theory lays foundation stones for ‘transformative use’ and ‘commercial use’. Hence the ‘transformation’ per se is adjudged by determining whether any new use to the work has been added or not.17 From the economics lens, this degree of effect is to be judged on the scale of social cost and the benefits accrued of that transformation. Hence, the more transformative the use is, the more it tends to decrease the market harm to the copyright owner and more it increases the social benefit such as economies of scale and incentivizing innovation, thus increasing the proximity between the first (purpose and character of the use) and fourth factor (the market effects).18 As a result, it can be stated that transformative use of a copyright work creates a complementary effect, whereas the bare copying without any social benefits entailed or increasing innovation, poses a substitutive effect for the copyrighted work and is completely ousted from the ambit of fair use.19 One such example is ‘change of purpose’ of the work. In Perfect 10 v. Amazon.com,20 where the use of images as thumbnails by Google was held as

14Marsh, Betamax and Fair Use: A Shotgun Marriage, 21 Santa Clara L. Rev. 49, 58 (1981). 15Meeropol v. Nizer, 560 F.2d 1061, 1069-71 (2d Cir. 1977) (discusses the purposes and necessity of use). 16 WILLIAM M. LANDES& RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW10, 123 (2003). 17 Bill Graham Archives v. Dorling Kindersley Ltd.448 F.3d 605 (2d Cir. 2006). 18 MARSHALL A. LEAFFER, UNDERSTANDING COPYRIGHT LAW 491(5th ed.2010). 19Hubbard v. Vosper, [1972] 2 QB 84, 94 (“To take long extracts and attach short comments may be unfair [;] but, short extracts and long comments may be fair.”). 20Perfect 10 v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007).

highly transformative, since they were meant to serve for entertainment purpose, but now had a different social purpose of serving as a source of information. Its application in the Google Books and DU Photocopy case will be showed in the next part.

Commercial intermediaries, in the context of fair use, are entities who help the end user in attaining their right to fair use of a work by reducing the cost to access that work, even though the intermediary derives a profit to facilitate the process. Hence, the acts of commercial entities should be considered within the realm of fair use, if the social benefit derived out of it, outweighs hugely the profit he derives from facilitation of accession. But often they are viewed as agents of market harm, so charioteers of social benefit, since they’ve only been looked as profit making entities21, rather the use being seen as a nonprofit educational purpose. But this too is also not necessarily true, as we will see in the Google Books and DU Photocopy case later.

III. THE GOOGLE BOOKS CASE

To increase the global access to affordable knowledge and resources, Google, in 2004, came up with the Library Project, under which it partnered with various major libraries, collected their books and scanned them into a machine readable format. For this, Google didn’t take permission from the authors of the books.22 The readers could search for the relevant terms they wanted to look for and by the help of ‘snippet’, i.e. only certain portion of the book related with the query, Google would display the books which contained the search words.23 At times, Google also gave the information regarding the purchase of that particular book. Moreover, Google permitted the respective library to download a copy of the book the library contributed, with an agreement that libraries would abide by the Copyright laws.24

In 2005, Authors Guild and a number of authors sued Google contending that:

1. Scanning of the entire book and then displaying it through snippets acts more like a substitute to the work than a transformative work.

21Princeton University Press v. Michigan Document Services Inc., 99 F.3d 1381 (6th Cir. 1996). 22Google Press Center, Google Checks Out Library Books, available at: http://googlepress.blogspot.in/2004/12/google-checks-out-library-books.html (last visited 25th Apr. 2016) 23Google Press Center, Legal Analysis – Google Books, available at: https://www.google.com/googlebooks/perspectives/legal.html (last visited 25th Apr. 2016). 24Id.

2. Google acts as a commercial entity and cannot take the fair use shield.25 There were three more issues, but considering the limited scope of this article, only the issues in relation to fair use have been discussed and analyzed.

The Decision

The second circuit court affirmed the decision of the lower court where it declared the service to be within the boundaries of Fair Use.26 The Second circuit court laid emphasis on the underlying objective of copyright law to be expansion of public knowledge. The court stated that although authors are inevitable beneficiaries of copyright, the ultimate beneficiary is and will remain the public.27 Basing this to be as the primary intention behind Fair Use, the court laid and satisfied the requirements of fair use in following manner:-

• Purpose and Character of the use- stating the snippet function to be as a transformative search function, the court stated that merely knowing that the required term is there in the book, doesn’t really influence the reader to obtain the book. Hence, the snippet offers “just enough text” for a reader to determine if the book is useful or not, not in any way threatening the copyright.28 Moreover, Google might be a commercial entity, but Google is deriving revenue from Internet traffic and not from ‘direct commercialization’ of the books.29 Thus, the service is transformative in nature. • Nature of Copyrighted Work- the court pointed out that to determine fair use in a work, the nature of the work is immaterial. The secondary use is transformative and doesn’t replicates or imitates the original work.30 • The amount of substantiality of the portion used- taking reference of the case of HathiTrust31, the court observed that complete copying has been justified in cases where the ultimate purpose is transformative use and the copying “did not provide a competing

25 Jonathan Band, The Google Library Project: Both Sides of the Story, Plagiary Vol. I, 2006, available at: http://quod.lib.umich.edu/p/plag/5240451.0001.002/--google-library-project-both-sides-of-the- story?rgn=main;view=fulltext (last visited 25th April 2016). 26Supra Note 9, at 46. 27Id. at 15. 28Id. at 35. 29Id. 30Id.at 27 31Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 94 (2d Cir. 2014).

substitute for the original.”32 Moreover, the snippet view only provides sufficient text, not enough to be labeled as a complete text in a manner to threaten copyright interest.33 • The effect of use on potential market-Snippet only provided maximum 16% of the book. “Because of the cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view”, they cannot act as a complete substitute to the original work.34 Thus, assessing all the four factors, the court observed the Google Books and Snippets view to be well within the ambit of the Fair Use.

Google Books as Transformative Use

First thing first, Google Books were never meant to be read, but rather be used for searching, thus creating a change of purpose, and also providing appropriate link of bookseller for that book. This alternative use creates a complimentary use of the work than substitutive, potentially benefiting the copyright owner.35

Moreover, the channel of public library had to be used to make the service within fair use ambit. A possible question that can be raised is that if Google is actually transforming the use benefiting the author ultimately, why not leave it between the author and Google to negotiate for such use, where Google can act as licensee and the author as licensor? This, although might be an option, but a highly impractical one.36 The transaction cost in such a situation will be exorbitantly high, since Google will then have to negotiate the licensing terms with every single author, paying them separately, ultimately rendering it impossible to carry on Google Books for free, and hence defying its transformative use.37

Additionally, Google had a contract with the public libraries to scan the books and a copy of that scan will be provided exclusively to the library. Libraries are usually restricted to give e-books for lending purpose, since the transportation of e-books is easier than the physical copies of the

32Supra note 9, at 23. 33Supra Note 9, at 35. 34Id. at 33. 35 Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-819 (9th Cir. 2003). 36Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190, 1239 (N.D. Ga. 2012). 37Ty, Inc. v. Publications Int’l Ltd., 292 F.3d 512, 517 (7th Cir. 2002).

books, and hence the doctrine of first sale doesn’t extends to the e-books.38 But, the act of Google Books can here be justified on the terms of transformation, since these scans were meant only for search purpose and controlled by snippets. The change in the purpose from reading to searching, and hence restricting the access of books only for certain use, neither harmed the copyright owner nor were the libraries were wrong in allowing the scan of the books.

Google Books as Commercial Intermediary

The court duly recognized that although Google is driven by profit motive, the educational importance its serving cannot be denied.39 Google derive profits from the internet traffic or through intermediation, rather than by deviating the royalty of owners, and hence their ‘commercial use’ is viewed in favor of fair use.40 Moreover, the transformational benefits resulting from the project reduces the market harm to the owner, incentivizing increased innovation, ultimately not only benefiting the owner, but also rendering transformative use outweighing the commercial benefit extracted as a process of facilitation, resulting in “significant public benefits”41

IV. THE INDIAN SCENARIO

The concept of fair dealing itself remains largely unexplored in India.42 Where at one side the rights of an author in an underdeveloped jurisprudential regime need to be protected, the right to education guaranteed by the constitution has to be given a greater emphasis. Sec. 52 carves the fair dealing provision which have time and again been held crucial to ensure the protection of

38 John Palfery, Why We Miss the First Sale Doctrine in Digital Libraries, (8th Mar 2013), available at: http://www.thedigitalshift.com/2013/03/copyright/why-we-miss-the-first-sale-doctrine-in-digital-libraries/ (last visited: 25th April 2016) (“For libraries, the distinction between a license and a sale—the difference between renting and owning a copy—is critical. In the case of a digital book, the copyright holder maintains a stricter form of “ownership” of a licensed copy—and much more control over what can be done with it—than in the case of an old-fashioned, analog book. Put another way, there has been no transposition of the first sale doctrine into the digital sphere. As a result, the first sale doctrine does not apply to licensed copies. By definition, a digital book or sound recording or image is not owned by the licensee. Libraries do not own their copies of ebooks, at least not in the same sense they own their copies of printed books. The ability of libraries to provide their patrons with access to an ebook is conditional upon their ability to adhere to the license terms.”) 39Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282,292. 40Castle Rock Entm’t, Inc. v. Carol Pub.Grp., Inc., 150 F.3d 132, 141-42 (2d. Cir. 1998); 41Supra Note 38, at 293. 42Ayush Sharma, Indian Perspective of Fair Dealing under Copyright Law: LexLataorLexFeranda?,Journal of Intellectual Property Rights Vol. 14, November 2009, p 523.

public expression.43Since here too it all comes down to the economics and rights of owners and users, it becomes significant to examine the equilibrium.

The most appropriate case to analyze this situation is Delhi University (DU) Photocopy case. The issue revolves around determining if the act of photocopy shop of compiling coursepacks out of copyrighted works of authors, under the realm of fair dealing.44 Hence, the pertinent question here is whether the photocopy is creating a transformational use and photocopy shops acting as a commercial intermediary favoring fair dealing or not?

One thing that has to be understood about the coursepacks is that they are usually the compilation of extracts of various works purely meant for educational purpose. Hence only a small, necessary portion of any work is used and that too for research and educational purpose. Had the same copy been extracted by the student or a professor that would’ve clearly fallen under the fair dealing for research and educational purpose. But the photocopier merely facilitates easing of process, producing multiple copies, saving time and resource of users for a small price for his labor, ultimately benefitting the society45. Moreover, the copying of material creates complementarity in two ways, first, the specificity attached to the portions copied incentivizes innovation by helping the author understand the specific demand of his work and explore it further, and second that the extracts from the work creates further demand for it, ultimately increasing the sales.46 Thus, copying of the work creates a transformative use by making the work more of a complementary than a substitutive work, benefiting the society and reducing the harm.47

But a more important concern is deviation of profits by photocopiers. Drawing analogy from Google Books case, the photocopier can be said to be in the same level as the former.48 The

43Wiley Eastern Ltd. and Ors. v. Indian Institute of Management, 61 (1996) DLT 281 Para 19 – (“The basic purpose of Section 52 is to protect the freedom of expression under Article 19((1)) of the Constitution of India- so that research, private study, criticism or review or reporting of current events could be protected. Section 52 is not intended by Parliament to negatively prescribe what infringement is.” 44 Thomas J. Vallianeth, The DU Photocopying Case Thus Far, SPICYIP, (28th Sep. 2014), available at: http://spicyip.com/2014/09/the-du-photocopying-case-thus-far.html, (last visited: 25th April 2016). 45Princeton Univ. Press v. Michigan Document Services, 99 F.3d 1381, 1395 (6th Cir. 1996). 46 Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), [2012] 2 S.C.R. 345 (Can.) 47Id. at 23 (“the teacher’s purpose in providing copies [was] to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user”). 48 Kwok, Kelvin Hiu Fai, Google Book Search, Transformative Use, and Commercial Intermediation: An Economic Perspective, Yale Journal of Law and Technology: Vol. 17: Iss. 1, Article 7, p. 301.(2015).

difference in technology or physicality won’t matter here, since it primarily concerns the economic implications where both stand on similar position. Like Google Books, the photocopiers also help facilitate the access to work with a wider social benefit for a small labor cost and rather than extracting the royalty of authors. The enormous social benefit achieved as a result of this small cost of labor, overshadows the commerciality over the transformative use. In CCH Canada Ltd. v. Law Society Ltd.49, a similar question arose where the court had to determine the legality of copying the extracts of legal books by photocopier on demand by patrons. The court, ruling the service within the boundaries of fair dealing, concluded:

“When the Great Library staff make copies of the requested cases, statutes, excerpts from legal texts and legal commentary, they do so for the purpose of research . . . . Put simply, its custom photocopy service helps to ensure that legal professionals in Ontario can access the materials necessary to conduct the research required to carry on the practice of law. In sum, the Law Society’s custom photocopy service is an integral part of the legal research process.”50

CONCLUSION

The fair dealing and its economic implications make it no less than a boon, be it either Google Books or DU photocopy case. Although one question still remains open in the photocopy case. What amount of copying shall be considered to be within the domain of fair dealing? Where Google through snippet allowed a maximum of 16% of text, this aspect remains uncontrolled in case of photocopy.

It becomes pertinent to restrict this fair dealing because of two reasons. First, that here the context is coursepacks which requires a very limited portion of any work. Had the whole work been photocopied and used for research purpose only, it would’ve then not created a transformative use, since that would’ve become a substitute than a complimentary work. Second, the work becoming a substitution would’ve resulted in complete failure in creation of innovation incentive, ultimately harming the society, and hence the failure of purpose behind fair dealing. Although it is tardy to ascertain the exact threshold for copying, it should not in any way disturb

49CCH Canada Ltd. v. Law Society Ltd., [2004] 1 S.C.R. 339 (Can.). 50Id. at 64.

the intended purpose of it being ruled in favor of fair dealing. Basically, not confusing between free access of information with free flow of information.51

To monitor this, the idea of Reprographic Rights Organizations or RRO has been promoted which acts as a copyright society for authors and publishers. Photocopiers derive profits from such photocopying. To put a fair bar on it, any profits that photocopier gains after an ascertained level of copying shall be shared between the photocopier and the publisher, thus solacing a truce between the two. Even though RRO’s can act as a watchdog, but monitoring, extracting and calculating the royalties from thousands of photocopier might seem an impossible idea, but it is a positive step indeed and has been functioning successfully in different places, thus balancing fair dealing and owner’s innovation.52

51Anand Narayan and Aditya Rajput, Dilemma over Photocopying of Copyrighted Material: In Light of Delhi University’s On-Going Litigation, RSLR, available at: http://www.rslr.in/uploads/3/2/0/5/32050109/ananda_and_aditya.pdf, p, 14 (last visited: Apr. 25, 2016). 52Tabrez Ahmad and Pratik PriyadarshiChoudhary, Rebirth of Opt-in System in Copyright: Analysis in the Light of ‘Google Books’ Controversy, Journal of Intellectual Property Rights Vol. 16, November 2011, p. 505.

Film Piracy and Copyright Compliance: A Critical Perspective1

Introduction

The most common modes of infringement of a film’s copyright include the reproduction or sale of DVDs, sharing of unauthorized files over the internet, or by cable operators broadcasting such content.2 Quite recently, the Indian news channel CNN-IBN claimed that India loses about Rs. 2250 crores per year due to piracy.3 A 2010 report published by Ernst and Young had pegged the figure at Rs. 2719 crores.4 Another study sponsored by the Motion Pictures Association of America had stated the incidence of Indian per-capita traffic on potentially infringing websites like Torrentz or Megaupload, and cyber-lockers like Putlocker or RapidShare was among the highest in the world.5 However, these statistics may not be entirely reliable. The amounts arrived at are based on the simple calculation of the number of pirated DVDs bought or films streamed or downloaded, multiplied by the amount that would have been expended on purchasing a theatre ticket or buying a legal DVD, as the case may be. Such a calculation ignores the imperfect substitutability6 of information goods like movies. A person who has chosen to illegally stream a film has not necessarily replaced a desire for buying a DVD or going to the cinema. The rates for the latter being much higher compared to streaming, she may well have chosen to not watch that movie if no cheaper (pirated) alternative was available. This may be due to the unaffordability of legitimately distributed films or other budgetary priorities that she had.7 Criticism has also been

1 Prateik Sparsh Samantara & Prithvi Bhaskar, Students, NALSAR University of Law, Hyderabad. 2 David Waterman, Enforcement and Control of Piracy, Copying, and Sharing in the Movie Industry, 2007 REVIEW OF INDUSTRIAL ORGANIZATION 255, 289 (‘Waterman’). 3 Anil Rajput, Emerging Challenges to Legitimate Business in the Borderless World, GRANT-THORNTON FICCI CASCADE GLOBAL REPORT, http://www.grantthornton.in/globalassets/1.-member- firms/india/assests/pdfs/emerging_challenges_report.pdf, (last accessed Feb. 2, 2016). 4 John Nendick and Farrokh Balsara, Spotlight on India’s Entertainment Economy, ERNST & YOUNG ANNUAL MEDIA AND ENTERTAINMENT REPORT, http://www.ey.com/Publication/vwLUAssets/Entertainment_economy_of_India/$FILE/Indias-Entertainment- Economy_Oct_%202011_.pdf, (last accessed Feb. 2, 2016). 5 Waterman, supra note 1. 6 Peitz, M. and Waelbroeck, P., Piracy of Digital Products: A Critical Review of the Theoretical Literature, 2006 INFORMATION ECONOMICS AND POLICY REVIEW 449, 476 (‘Peitz and Waelbroeck’). 7 Peitz and Waelbroeck, supra note 5.

drawn to the MPAA study that ignored the multifarious useful and non-infringing functions performed by file-sharing and cyber-lockers.8

It is unquestionable that the rising popularity of these digital-age technologies results in a quantitative decline in the traditional units of sale of the film industry.9 However, the more important question that arises pertinent to copyright law is the effect that such technologies have on creative output. Furthermore, does the film industry necessarily have to view the emergence of the technologies as a threat? Or should it adapt with the changing needs and capabilities of customers, instead of pursuing them and content-providers with costly litigation? The industry has clearly opted for the latter – and the burgeoning numbers of injunctions and John Doe orders bear testimony to this fact.

This paper aims to arrive at an answer to the aforementioned questions, by analyzing the legal framework surrounding cinematographic copyright and raising principled objections about its current form.

ANALYSIS OF LEGAL FRAMEWORK IN INDIA

As per the Indian Copyright Act, 1957, the producer of a cinematographic film is deemed to be the ‘author’ of the work, and all rights connected to the film accrue to him/her.10 The term for which the copyright subsists is the lifetime of the producer, plus sixty years.11 The rights that he/she may hold are not limited to theatrical screening of the film, but include those for home- video rental, terrestrial, cable and satellite broadcast rights, and ancillary rights to screen films in hotels and airplanes etc.12 Piracy may threaten the exercise of any of these rights.

8 This logic is derived from the eponymous ‘Betamax defense’ as established in the case of Sony Corp. of America v. Universal City Studios, Inc. (1984) 464 U.S. 417. 9 Eric Priest, Copyright Extremophiles: Do Creative Industries Thrive or Just Survive in China’s High-Piracy Environment, 2014HARVARD J. OF LAW AND TECH., 468, 539 (‘Priest’). 10 Indian Copyright Act, Section 2(d)1957 (‘Copyright Act’). See also Indian Performing Right Society Ltd. v. Eastern India Motion Pictures Association, (1977) AIR 1443 (India). 11 Copyright Act, Section 26. 12Ministry of Human Resource Development, Study on Copyright Piracy in India, http://copyright.gov.in/Documents/STUDY%20ON%20COPYRIGHT%20PIRACY%20IN%20INDIA.pdf,(last accessed Feb. 2, 2016).

Applicable Sections of the Copyright Act

Infringement of the copyright subsisting in cinematographic films can only occur if a physical copy of the film is made13, and in such case, the ‘duplicating equipment’14 used to make copies is liable to be attached in the suit. Infringement may also occur when the film is a) stored in any medium using electronic means15 or b) communicated to the public16 – thus, file-sharing qualifies as a mode through which copyright may be violated.17 It is pertinent to note that the Copyright (Amendment) Act of 2012 creates certain exemptions for Internet Service Providers (ISPs) when the storage of the infringing work is transient or incidental.18

Section 14 of the Act accounts for three distinct classes of rights that copyright-holders in cinematographic works wield: the right to make a copy, the right to sell or rent, and the right to communicate the work to the public.19 It is evident that piracy in its various forms violates one or more of these exclusive rights.20

Section 63 of the Act specifies the penalties for infringing activity, while Section 63A imposes a higher quantum thereof for recidivists. Chapter XIII in its entirety deals with Criminal remedies which are necessitated by the TRIPS agreement. On the other hand, the Copyright (Amendment) Act of 2012 has added provisions to the statute that seek to prevent circumvention measures,21 and protect Digital Rights Management Information (DRMI).22 These changes were made

13Star India v. Leo Burnett, (2003) 27 PTC 81 Bom (India). 14Copyright Act, Section 2 (hh). 15 Copyright Act, Section 14 (a) (i). Additionally, making a visual recording of the film is defined in Section 2 (xxa) as, “the recording in any medium, by any method including the storing of it by any electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method”. It is a fact that file-sharing or digital lockers necessarily require the storage of films. 16 Iftikhar Hussain Bhat, Right of Communication to the Public in a Digital Environment, 2013 INT’L J. O’ ENGINEERING, SCIENCE AND INVENTION, 07, 14. 17Bhat, supra note 15. 18Copyright Act, Sections 52(1)(b) and 52(1)(c). 19 The latter two rights were the result of the Copyright (Amendment) Act of 1994. 20 ARUL GEORGE SCARIA, PIRACY IN THE INDIAN FILM INDUSTRY: COPYRIGHT AND CULTURAL CONSONANCE, 25, 36 st (1 ed. 2014) (‘SCARIA’). 21 Copyright Act, Section 65A. 22Copyright Act, Sections 2(xa) and 65B. DRMI is metadata that acts like a watermark.As a result of the section, any unauthorized and intentional removal or alteration of any rights management information is a criminal offence punishable with imprisonment, which may extend to two years and fine.

keeping in mind India’s obligations under the World Copyright Treaty (WCT) and the World Performances and Phonographs Treaty (WPPT).23

Inefficacy of the Act

The evolution of the Indian copyright regime makes it very clear that the laws have not originated from the context of public norms and morality, but are a product of transplantation from various systems. Whether it is the British law, or the multiple treaties and conventions, we have borrowed heavily in the hopes that the law would modulate public behavior. However, it has been argued that such an assumption does not hold sway in the matter of copyright law.24 Conversion of rules into norms of public and private behavior is a great challenge in any subject of law, and entrenched behaviour and practices surrounding sharing of information make the enforcement of copyright law an even more onerous task.25 Empirical studies demonstrate how the incidents of piracy – file-sharing or DVD-ripping – aren’t considered as ethically or morally dubious acts in the mindset of an average Asian, and this makes legal compliance difficult to achieve.26 For example, most learning and educational tools in China utilize the mode of copying. Additionally, the Chinese society is a collectivist one where sharing is considered as good practice.27 One may make a similar argument for India.28

Furthermore, the utility of deterrent-level criminal remedies as prescribed in Section 63 is questionable. The section qualifies as ‘TRIPS-plus’29, and the levels of monetary fines prescribed are beyond the paying capacity of an average Indian. Additionally, the rate of enforcement for infringing activities is poor, and a number of surveys have demonstrated how the average Indian consumer considers his/her probability of being legally implicated for acts of piracy as low.30

23World Intellectual Property Organization Copyright Treaty, article 12, Dec. 20, 1996, CRNR/DC/94(‘WIPO Copyright Treaty’); World Intellectual Property Organization Performances and Phonograms Treaty, article 19, Dec. 20, 1996, CRNR/DC/95. 24 st JOHN TEHRANIAN, INFRINGEMENT NATION: COPYRIGHT 2.0 AND YOU (1 . ed. 2011)(TEHRANIAN); 25 st PAUL GOLDSTEIN, INTERNATIONAL COPYRIGHT: PRINCIPLES, LAW, AND PRACTICE, 115 (1 ed. 2001). 26 SCARIA, n.21, p. 13. 27 SCARIA, n.21, p.13-17 28 SCARIA, supra note 26. 29Pranesh Prakash et. al., National IPR Policy Series : Comments on the Proposed Intellectual Property Rights Policy to the Department of Industrial Policy and Promotion, CENTRE FOR INTERNET AND SOCIETY BLOG, http://cis-india.org/a2k/blogs/comments-on-proposed-ip-rights-policy-to-dipp, (last accessed Feb. 2, 2016). 30 SCARIA, n.21, p. 13-17; Krishnadas Rajagopal, Entertainment industry and Internet piracy in focus, THE HINDU, Sept. 17 2012.

Hence, there is no deterrent effect to speak of, and one must acknowledge the vast gulf between the law on piracy of films, and the public norms regarding the issue.

One of the most tangible ways in which infringement by the people is addressed is through the passing of ad-hoc court orders. Hence, it is necessary for us to enquire into their manner of operation with respect to film piracy.

JOHN DOE ORDERS DECONSTRUCTED

Notwithstanding the mention of all the remedies mentioned above, the most significant remedy in present times in the Indian context is the John Doe order, more commonly known as the Ashok Kumar order. The problem which arises is that these clearly constitute extraordinary measures which enable persons to seek justice when conventional methods do not suffice. But they have, in the past few years, become the default remedy awarded to copyright-holders.

Award and Enforcement of John Doe orders in India

John Doe orders, which are known as Ashok Kumar orders in India, can be invoked under Order 39, Rule 1 and 2 read with Section 151 of the CPC. The producers of Indian films such as Masaan, Singham, and Bombay Velvet etc. have utilized these orders to protect their interests.31 Orders issued by the Court are typically framed thus: “defendants and other unnamed and undisclosed persons, are restrained from copying, recording or allowing cam-coding or communicating or making available or distributing, or duplicating, or displaying, or releasing, … the movie..”32

The first Indian case which resulted in the issue of a John Doe order was Taj Television & Anr v. Rajan Mandal33 wherein the Commissioner was given the right to enter the premises of cable operators who illegally aired the football World Cup in 2002. The Delhi High Court exercised its inherent powers under Section 151 of the Code of Civil Procedure, 1908 and decided in favour of Ten Sports, which possessed exclusive rights to cover the World Cup. Similarly, in Satellite

31 Rudresh Mandal, The Indian Story of the John Doe Copyright Regime, 2015 IJLDAI (2) 126. 32Reliance Big Entertainments v. Multivision Networks and Ors., CS(OS) 3207/2011. 33CS (OS) 1072/2002.

Singapore PTE Ltd v. Star Cable Network 34, the respondents were prohibited from broadcasting unauthorised signals which would result in telecasting or downloading of the Indian Premier League (IPL) tournament.

Necessary elements for awarding such Orders

The ingredients necessary in such an injunction have been laid down in the judgment of Fletcher v. Bealey35 and are as follows: proof of imminent danger, proof that apprehended damage could be very substantial and the impossibility of protecting plaintiff’s interests once the injurious events occur.36 What must be kept in mind about these orders is that they enable Internet Service Providers to block access to such videos indiscriminately, therefore leading to the shutdown of legitimate websites. For example, when the film Dammu had received such an order, it led to the blocking of the entirety of websites such as Dailymotion and Vimeo, both of which are otherwise used for legitimate purposes.37

Moreover, it must also be noted that such orders tend to cross jurisdictional boundaries. Under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, the Department of Electronics & Information Technology (DEITY) is the only authority capable of approving the blocking of the sites.38 When such orders are passed39, the Designated Officer must submit it to the Secretary of DEITY and initiate action.40 This is important in light of the suo moto court orders which had been passed, claiming legitimacy under Section 79 of the IT Act - which clearly does not allow this. Now, film producers have taken to including the Department of Telecommunications and DEITY as primary parties in the litigation.41

34 F.A.O. (OS) 211/2010. 35 (1885) 5 28.Ch.D. 688. 36See supra note 34. 37 VasudhaVenugopal, Internet Users Enraged Over Blocking Of File-Sharing Sites, THE HINDU, June 6, 2013. 38 The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, 8 (‘Blocking Rules’). 39 Blocking Rules, 10. 40See supra note 38. 41 Raashi Jain, THE JOHN DOE – Starring: Bollywood And Legal Complexities, MONDAQ, http://www.mondaq.com/india/x/420926/Copyright/++THE+JOHN+DOE+Starring+Bollywood+And+Legal+Co mplexities, (last accessed Feb 2, 2016); SpadikaJayaraj, Delhi High Court’s John Doe Order in Favour of Star News: Need for a Third-Umpire Review of ISP Liability?, SPICYIP BLOG, http://spicyip.com/2014/08/delhi-high-

Inefficacy of John Doe Orders in practice

John Doe orders are a regressive and inefficacious remedy for the digital age. In the landmark decision of Ahmet Yildirim v. Turkey42, the ECHR held that blocking access to an entire internet platform was clearly violative of the freedom of speech and expression.

There is no legitimate scenario in which John Doe orders can be sustainable today. There is no information to suggest that these orders have been effective.43 The orders may claim to target the infringers but there is no transparency on how ISPs interpret and operationalize them. ISPs should only be asked to identify the infringer44 so that the court may act accordingly instead of attempting a blanket ban. Attempting to strike a balance between these various stakeholders would be a more nuanced approach and could potentially lead to avoiding the pitfalls which come from turning a blind eye to the big picture.

BROADER ENFORCEMENT ISSUES IN COMBATING FILM PIRACY

In its recently released Special 301 report, the Office of the United States Trade Representative (USTR) has included India in a ‘Priority Watch List’, for reasons that include poor enforcement of copyright laws in curbing optical disc and online piracy.45 Specifically, the report berates India for not enacting ‘anti-camcorder’ legislation46 and not empowering collecting societies, while forwarding that: courts in the country must “seek deterrent sentences against persons engaged in copyright piracy”. These measures, it is suggested, will “foster a climate that incentivizes innovation.”47

courts-john-doe-order-in-favour-of-star-news-need-for-a-third-umpire-review-of-isp-liability.html, (last accessed Feb 2, 2016). 42 (2012) App. no.3111/10. 43 Juhi Gupta, John Doe Copyright Injunctions in India, 2013 J. O’IPR, 351-359. 44 EC Directive 2000/31/EC 2000 OJ L 178, Articles 12 and 15. 45 Michael BG Froman, 2015 Special 301 Report, UNITED STATES TRADE REPRESENTATIVE’S OFFICE, https://ustr.gov/sites/default/files/2015-Special-301-Report-FINAL.pdf, (last accessed Feb 02, 2016). 46Froman,supra note 44, at 47. 47Froman, supra note 44, at 46.

Debatable Applicability of the Incentive-Theory

The incentive-theory of copyright law can be considered to be one of its foremost precepts in most Western literature.48 It explains that if the law adequately protects an innovator by granting him/her monopoly over his/her expression, then he/she will be positively incentivized to come up with more creative works. However, this explanation is today criticized for being too individual- centric, unsophisticated and inaccurate.49 Many question whether it is really the law that multiplies creative effort in society by offering economic advantages to persons who are “already endowed by virtue of their backgrounds and innate ability to be creative”.50 Multiple economic and behavioural studies have been conducted that demonstrate no positive link between monetary incentives and creative outputs – and in some cases, the former’s negative effect on creativity.51 Examples supporting this broad notion would be the very useful and meticulously updated articles on Wikipedia that are put up by authors for virtually no reward.52 An explanation for such behavior comes from famed psychologist Abraham Maslow, who states that human creativity is dependent on intrinsic rather than extrinsic factors.53

This understanding tends to make one suspicious about the United States’ motivations when it seeks to modulate India’s IP-regime. It has been opined that such arguments from developed countries oversimplify the discourse of copyright enforcement and exaggerate the damage caused by piracy, so as to mislead policymakers; who then mould the developing countries’ copyright regimes in a manner that best suits the developed countries’ economic interests.54

48The theory provides a philosophical justification for a copyright monopoly through the argument that it incentivizes creative output. 49 Diane Leenheer Zimmerman, Copyrights as Incentives: Did We Just Imagine That?, 2011 THEORETICAL INQUIRIES IN LAWJ. (2) (hereinafter, Zimmerman). 50Zimmerman, supra note 48, at 2. 51See Teresa M. Amabile, Motivation and Creativity: Effects of Motivational Orientation on Creative Writers, 1985J. O’ PERSONALITY AND SOCIAL PSYCHOLOGY, 393; EDWARD L. DECI AND RICHARD FLAST, WHY WE DO WHAT WE DO: THE DYNAMICS OF PERSONAL AUTONOMY142 (1STed.1995): “When the prospect of a reward undermines the creative person’s feeling of control and autonomy, and when it shifts her attention from the inherent interest in the task to a concern with the consequences that will flow from what she produces, this research suggests that creativity will be undermined.” 52Proponents of the Open Source movement further cite the proliferation of fan-fiction as another example of the notion. 53 ABRAHAM H. MASLOW, MOTIVATION AND PERSONALITY, 15-31 (2d ed. 1970). 54 XUAN LI AND CARLOS M. CORREA, INTELLECTUAL PROPERTY ENFORCEMENT – INTERNATIONAL PERSPECTIVES, xviii (1st ed. 2009).

Policy Considerations Involved

At the policy-makers level, it is also quite a conundrum to determine the nature of sanctions that may be imposed against piracy:

a) The first option is to define infringement narrowly, such that only the most ‘serious offenders’ get indicted and an exemplary/deterrent fine is imposed on these select few.

b) The second option is to spread the net a lot wider so that all infringements – regardless of their scale – are taken cognizance of by the law and smaller fines are imposed with greater regularity.

The latter intuitively appeals to one’s sense of justice. However, the costs involved in setting up the requisite machinery or institutions, and their regular enforcement costs would be enormous. In either case, the ubiquitous nature of technologies capable of pirating, the frequency with which such acts occur, and the entrenched behavioural set-up of an average content consumer make a clear choice between either of the options tricky.

SUGGESTIONS AND THE WAY FORWARD

The very nature of intellectual property renders enforcement difficult. It is hard to define the boundaries of intangible property, and analogizing it with tangible property for that purpose leads to discordant laws. These issues crop up not just at the policy-making level, but even during the enforcement stage, as the police, prosecutors and other law enforcement bodies lack the awareness required to take efficient action.55 Perhaps the greater complication lies in making the public itself aware about the nuances of IP law, and the legal issues associated with DVD- ripping and file-sharing. The Motion Picture Association of America undertakes such efforts there through its Educational Outreach programme.56 It is about time that the film-making industry and the Copyright Board in India invest heavily in doling out a similar program.

55 SCARIA, supra note 21, p. 123. 56 st JANET WASKO, HOW HOLLYWOOD WORKS, 214 (1 ed. 2003); Sean A. Pager, Accentuating the Positive: Building Capacity for Creative Industries into the Development Agenda for Global Intellectual Property Law, 2012 AM. U. INT’L. L. REV. 223, 268.

An Argument for Copyright Pragmatism

The ideal framework must take into account the reality of current practices and encourage newer models based on that reality. This objective is drawn from the theory of ‘copyright pragmatism’, which allows, “the very idea of consequences to derive content from empirical reality and experience, rather than an absolute normative or ethical vision.”57 It is based in part on John Dewey’s argument that the “very value of the end depends on the costs and benefits of the means.”58 What copyright pragmatism therefore suggests is that there must not be any universalized norm applied across the institution of copyright law, and the goals sought to be achieved through it must be appurtenant to the current context. The film industry has lagged behind on its duty to innovate simultaneously with changing technologies and needs.

Unauthorized or unlicensed films – on pirated DVDs, websites, and Torrent channels – are extremely successful for perfectly rational reasons. They are free, widely accessible and easy to use. They derive revenue through sales or advertising, and they recognize the lacunas present in the business models of the film industry. A much-needed step on the part of the production houses would be to create online repositories of their movies so as to increase accessibility. The arrival of Netflix (and the growing reach of Hotstar and Eros Now etc.) in India is bound to greatly enhance access to films - for at least the urban population. However, this tackles only part of a larger problem. A great portion of India is yet to be internet-enabled, and this section contributes to the statistics concerning increasing incidence of cable and DVD piracy.

As for file-sharing over the internet, its advantages very well outweigh its potentially infringing capabilities. It produces a platform whereby new artists can be introduced to a wide array of consumers. For the production-houses, it serves as an effective determinant for demand. Hence, it leads to an increase of creative output, and business opportunities. Given this fact, it would be far more beneficial for film-producing companies to collaborate with websites streaming or offering for downloading their content instead of litigating for absurd amounts of damages.

57 Shyamakrishna Balganesh, Gandhi and Copyright Pragmatism, 2014 CALIF. L.REV. 1748. 58Balganesh, supra note 56, The theory of legal pragmatism is also endorsed by Richard Posner: see Internet Encyclopaedia of Philosophy, Legal Pragmatism, http://www.iep.utm.edu/leglprag/, (last accessed Feb 02, 2016).

Compensation without Control

This argument was furthered by Professor Lawrence Lessig in his theory of ‘compensation without control’ on the internet. He argues that copyright must be converted from a system of proprietary rights to compensatory rights. This essentially allows the copyright-holder to derive a fair amount from the wide availability of his content, but prevents any chilling effect on unofficial websites’ freedom of speech. As an example, a manner of ‘compulsory licensing’ could be implemented, through which the copyright-holders would be obligated to license out their content to such websites, in exchange for which they will compensated with by a fee decided by the policymakers. This also precludes unfair private contracting terms from emerging in transactions between the deep-pocketed film production companies and the relatively less affluent websites.

CONCLUSION

“I worry about the effect this [copyright] war is having upon our kids. What is this war doing to them? Whom is it making them? How is it changing how they think about normal, right thinking behavior? What does it mean to a society when a whole generation is raised as criminals?”59

The strong-arming tactics used both by policy-makers and big businesses have had little effect in increasing copyright compliance. Rather, the trends of criminalization inhibit the creation of socially beneficial works that ought to be out in the public domain. On the other hand, even the industries pursuing such strategies expend enormous resources and achieve very little.60 The remedies offered by courts have been empirically proven to be inefficacious in the face of a problem that stems largely from public morality and evolving attitudes and technologies. These factors lead the researcher to conclude that the outmoded laws and business models must be updated to enable users to access all content they desire in a form and manner that best suits them, made available at a price they are willing to pay.

59 st LAWRENCE LESSIG, REMIX, xvii-xviii (1 ed. 2009). 60Jennifer Pariser, head of Sony BMG's litigation department,stated as much at the conclusion of the trial of Capitol v. Thomas (2012) Cir. 8 , 11-2820; Eric Bangeman, RIAA Anti-P2P Campaign a Real Money Pit, According to Testimony,ARSTECHNICA,http://arstechnica.com/news.ars/post/20071002-music-industry-exec-p2p-litigation-is-a money-pit.html, (last accessed: Feb 02, 2016).

Inspiration or Infringement?1

Abstract

This paper aims to give an insight into the current global trends in copyright law relating to remixes and mash-ups. It primarily looks into the burgeoning ‘remixing’ and ‘mash-up’ creation, which has been happening in the recent era of technological advancement and the availability of digital creative material. The copyright issues relating to remix culture are obscure in the current legal scenario the world over, and the paper discusses some of the issues that plague copyright protectors in that regard. After detailed discussion on the above, the author believes that remixing does have an overtone of originality, and, remixing on its own, does provide intellectually new content, though inspired by earlier works or material. Policy makers must take a new approach in copyright law because of the legal uncertainty and the grey areas that the “remix” culture possesses. The work presented here could provide input and have ramifications for future studies on copyright issues in the remix domain.

1 Sheerene M., 2nd Year Student, NUALS, Kochi.

“Originality is nothing but judicious imitation. The most original writers borrowed from another.” – Voltaire

As are many words bandied about in the legal fraternity, the word ‘originality’ too, is subjective. Every word in a story, every note in a song, every colour in a painting has been used before. Is any work truly original? The answer is no; it is not. The question then arises, is thought original? Surely, no one could think exactly as another, in the manner in which the words form thoughts in the mind. Yet, even the thought is shaped by our own experiences, or by our teachers, or by the media, or by any type of external stimuli. Thought is a result of inspiration. This argument is certainly not watertight, because to the legal mind, the word ‘originality’ is understood to mean that the work should originate from the author. Ergo, from the discussion above, work need not be original in the sense that it must contain any original or inventive thought. Therefore, copyright law does not protect an idea, but instead it protects the form of the expression of the idea.2 The essence of copyright, one could say, is in the expression of the idea, not the idea itself.

‘Remixing’ or creation of a ‘mash-up’ has come to the forefront of the Intellectual Property Rights discussions, simply because of the conundrum it presents to both artists and legal thinkers alike. A remix is some facet of media, for example a song, which has been altered by adding, removing or, in general, infusing it with some other facet of media, to create media which is markedly different from its “original” version. Songs are layered over another to create a cacophonic melody, or perhaps poetry is added to the song, to give it an ethereal feel. The possibilities are endless. A mash-up is a combination of songs as well, usually two or more songs electronically or digitally synthesized. The challenge it poses to the music industry and the

2 Dunlap v. G. & L. Holding Group, Inc, 381 F.3d 1285, 1296 (11th Cir. 2004); WhelanAssocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1234 (3d Cir. 1986); Custom Dynamics, LLC v. Radiantz LED Lighting, Inc., 535 F. Supp. 2d 542, 548 (E.D.N.C. 2008).

recording companies is monumental. This is acerbated by the easy readiness with which media can be easily shared, thanks to the communication boom in the past decade.

The term ‘remix culture’ first appeared in the article, “Free(ing) Culture for Remix”, by copyright activist and Harvard law professor Lawrence Lessig.3 His work makes a sharp divide between the ‘remix culture’ and the ‘permission culture’.4 Those who believe that permission must be sought from the original artist before remixing the artist’s work would be part of the permission culture. Professor Lessig makes a compelling argument for the remix proponents. He argues that if the Daguerreotype camera and the subsequent Kodak Invention required permission from every one of its subjects before being photographed, the photography industry would not have boomed as it had. The freedom that was enjoyed by the photographers helped to popularize the industry and bring improvements to the cameras and to the photography field in general. He also makes a case for piracy, stating that free sharing of media shouldn’t be restricted, and remarks that its illegality is stunting the ability to remix. Remixing, in his view, is synonymous with artistic potential, and therefore should not be curbed. His solution for the same is to draft a copyright law that balances the remix digital technology, yet protects the interests of the authors from their work being illegally circulated verbatim.5 This sounds good in theory, but the implementation will have quite a few kinks to iron out.

The question that comes to mind is, “What of fashion design?” Designers attribute their new collections as inspired by Chanel Spring-Summer Collection ‘75 or Saville Row, but no law remains to give them their due. In part, designers too ‘remix’ old designs or prints to bring something new to the table. Just like their musical counterparts, they too have artistic potential, which is not limited by copyright law. Brand names in the USA did campaign, as the ‘permission culture’ would expect, for their right to designs being protected by copyright. In 2012, the United States Congress debated the Innovative Design Protection Act of 2012 (IDPA), a bill that aimed to grant copyright protection to fashion designs, which is currently left unprotected by copyright law. As the law exists today, original patterns and prints, original color arrangements,

3 Lessig, L., Free(ing) Culture for Remix, UTAH L. REV., p.961. (2004) 4 Id. 5 Id.

and innovative combinations of design elements are protected, but the designs themselves are not. Under IDPA, these designs would be entitled to copyright protection if they “(i) are the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non- trivial and non-utilitarian variation over prior designs for similar types of articles.”6 This bill was ultimately not passed by the United States Congress, and designers were again left behind. Apparently, since the collection of apparel is only “inspired by” another, it doesn’t come under the ambit of plagiarized work.

The intrinsic ethical danger in remixing is that one who borrows too freely from the other authors may simply be copying instead of interpreting or creating. In the hip-hop world, using phrases from other artists is called “biting” and goes against the unspoken code of hip-hop ethics.7 Copying is much easier for legislators to deal with because it is a direct and acute form of plagiarism. Professor Kim Chanbonpin, at John Marshall Law School, Chicago, distinguishes what she calls “plagiarism outright” and “cut and paste plagiarism”. The second type, she says, is cut and pasted from the original work, but the order of the words or variation is made simply for it to not be technically plagiarized. She opines, interestingly so, that this is still plagiarism because there is no creative thought or original expression, but just a rearrangement of an already existing thought put forward by the original author. A law student may beg to differ. However, she still sets the “cut and paste plagiarism” apart from the “remix.” ‘Cutting and pasting’ lacks creative thought or even effort.8 Remix, in her view, takes the original, uses its material, and makes it better.

Remix artists, so long as they don’t copy, do have an overtone of originality, which the naysayers must acknowledge. In the case of the hugely popular band, Green Day, their successful album, “American Idiot”, was remixed, titled “American Edit”, and posted online. Every song was remixed, and the names of the new songs vaguely resembled its genus. For example, ‘Boulevard of Broken Dreams’ remix was titled ‘Boulevard of Broken Songs’. The

6 Available at https://www.congress.gov/bill/112th-congress/senate-bill/3523/text (last seen on 12th of April, 2016) 7 ADAM BRADLEY, BOOK OF RHYMES: THE POETICS OF HIP HOP 212 (2009).

8 Chanbonpin, K.D., Legal Writing, The Remix: Plagiarism and Hip Hop Ethics, MERCER L. REV., Forthcoming. (2011)

new creator too, had cleverly given his pseudo name as Dean Gray. After its release online, it became very popular. However, Green Day’s record label, Warner Records, sent them a cease and desist order, and the whole operation was shut down. Interestingly enough, Green Day voiced their support for the remix and stated that they liked it, and that it was only the recording company that had an issue.

The main objective of intellectual property is to protect the creator’s works from being used by others for their own benefit, which is intellectual theft, as it were. While we must endeavor to protect the interests of the creators at all costs, we must ensure other advancement or progress or growth of the creative field is never stunted.

That said, a clear distinction must be made between piracy and remix in relation to copyright. Piracy distributes and copies content, and often pirated materials are used for remixing. The digital capability to share our content and culture, which remix provides, also constitutes piracy. Though piracy might not be for commercial gain, it still affects the remix market, and by extension the music industry. But remixing on its own does provide intellectually new content, albeit inspired by previous material. Copyright does not protect an idea, but instead it protects the form of the expression of the idea, as mentioned earlier.9 If so, the expression of that idea has now morphed into something new, changing its image, though not its essence. Copyright is unencumbered by the need for ‘novelty’ as can be seen in patent law, which needs some creative and original progress beyond the status quo. Does it come into the ambit of a derivative work, in the same way as an adaptation or a translation, as defined under Article 2(3) of the Berne Convention on the Protection of Literary and Artistic Works? Currently, remixes do violate copyright in a pre-existing work, insofar as the second work contains parts of the original. It violates the right of reproduction under Article 9 of the Berne Convention10 as well as the Article 8 of the WIPO Copyright treaty11, and therefore compromises the interests of the original author.

9 Dunlap v. G. & L. Holding Group, Inc, 381 F.3d 1285, 1296 (11th Cir. 2004); WhelanAssocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1234 (3d Cir. 1986)

10 Article 9 of the Berne Convention, 1886 states “(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. (2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Remixing is not always done for commercial benefit. It is in this vein that Lessig argues that if remixing is not done for commercial gain, there is no harm and that it in fact stimulates creative movement of ideas. Remix helps culture to evolve. One can even argue that culture has evolved through remixing. Cultures have merged, we have borrowed from other cultures, and none of that is subject to copyright law. Music great A.R. Rahman, in an interview with TIME magazine, talked about his song, “Jai Ho”, written for the movie, “Slumdog Millionaire”. He allowed the song to be reworked by the well-known girl band, “Pussycat Dolls”, saying in the interview that he didn’t want the song’s popularity to die down after the hype surrounding the movie went down, and it didn’t.

In the case of mash-ups, there are different types, and copyright protection can vary depending on the type of mash-up work. One type of mash-up is where snippets of songs are all synthesized together to create a new song: for example, DJ Earworm’s popular yearly mixes of the top twenty-five billboard hits, titled “United State of Pop”. These do meet the standard of creativity necessary for it to gain copyright protection because they have a theme. Themed mashups do count as original works.12 In another type of mash-up, the question asked is, firstly, whether the mash-up is a derivative work, and if so, is it transformative. A derivative work still requires the permission of the original copyright holder, without which it would still be a copyright infringement.13 Being transformative is the most essential criterion in understanding whether the mash-up deserves copyright protection. By transformative, we mean that it must modify the purpose or the character of the original. Derivative works, therefore, need not be transformative, and such derivative works would not have a copyright.14 For example, Ted

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.”

11 World Intellectual Property Organisation Convention, 1967 “[…] authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”

12 Harper, E., Music Mash-ups: Testing the Limits of Copyright Law as Remix Culture Takes Society by Storm 39 HOFSTRA L. REV (2010). 13 Id.. 14 Michael Allyn Pote, Mashed-Up in Between: The Delicate Balance of Artists' Interests Lost Amidst the War on Copyright, 88 N.C. L. REV. 639, 646 (2010).

Turner, trying to colourize old versions of “Citizen Kane”, ended in a three-year copyright battle in France, culminating in a binding precedent that prevented the distribution or broadcasting in France of any colourized version of a film against the wishes of the original creator or the heirs. In Turner’s case, the court perhaps took the view that the mash-up rarely changed the purpose and character of the original, and, therefore, was not entitled to copyright protection.

Whether a remix or a mash-up deserves copyright protection or is a copyright violation depends on the circumstances and the nature of each work. Simply because of copyright concerns, individual creativity must not be stifled because that would prevent creative growth. That being said, those whose work has been “ripped off” by remix artists, or directly used, must be taken to task for their copyright infringement if the original author’s permission was not sought. Legislators must strike a balance between artists whose work deserve copyright protection, because their rights have been compromised due to unethical remixes, and the remix artists who genuinely value and propagate creative expression and transformative work. The copyright laws presently around the world relating to remixes and mash-ups are grey and varied. However, it is also argued that remixes and mash-ups are acquiescent with copyright law. For example, Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) states that in “certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”, an exception to copyright can be made. As long as the remixed work is only for creative purposes and not for commercial gain, the exclusive right of the original author can be limited, as the new work does not threaten the “normal exploitation” of the work.

In sum, policy makers and legislators must take a new approach in copyright law, in light of the legal uncertainty and the grey areas that the “remix” culture possesses. The yardstick, ‘by the default exclusive copyright regime’, which is presently applied on intellectual property, is much too harsh and punitive, so much so, that it stymies creative growth. Remix artists, for their part, should perhaps revisit The Beatles member George Harrison’s quote: “All the world is birthday cake, so take a piece, but not too much.” We have the 2300-year old, immortalized Panchatantra arranged within a frame story altered and reinterpreted many times over from its original verse

and prose -- perhaps the oldest example of remix culture. As Lessig says: “The point is not that remix is new to culture. Indeed, culture itself is, and has always been, remix.”

Someone Killed the DJ!1

REMIX CULTURE AND COPYRIGHT CHALLENGES

ABSTRACT

This is the age of the internet. YouTube, SoundCloud and platforms of a similar ilk have come forward as a stage to show an artist’s creativity in the form of remixes and mashups.

The efforts put in by the amateur creators in creating this form of culture has not escaped the eyes of the law. Often we see myriads of cases where some recording or the other is taken down from the internet and/or other platforms citing “Copyright Infringement”. This essay aims to enlighten its readers regarding the challenges faced by content creators, especially amateur creators in the process of remixing existing works and how these challenges are to be tackled through fair use and creative commons license. Moreover, this essay discusses a few major cases regarding music remixes as well as how the legal framework has changed with regard to this culture.

Keywords: amateur creativity, appropriation, copyright, derivative art, fair use,infringement, remix, sampling.

1. INTRODUCTION

“I invented nothing new, I simply assembled the discoveries of other men behind whom were centuries of work… progress happens when all the factors that make for it are ready and then it is inevitable.” – Henry Ford

“Thou shalt not steal”of the Ten Commandments, has been the line of thought in theconundrum surrounding the term “remix.”2 Today, it refers to the act of creating something new based on existing materials. The present essay while limiting the scope of remix as musical remixes, also extends in its applicability to other forms of art as well.

Remix is a form of appropriation art where an existing piece(s) of work is used to create a new work. Indian Courts have interpreted remixes as a sound recording made of any already published song by using another voice or voices and with different musicians and

1 Kunal Bindra & SHantanu Rawat, Students, Hidyatullah National Law University, Raipur. 2"Thou shalt not steal." Judge Duffy's opinion in Grand Upright v. Warner 780 F. Supp. 182 (SDNY 1991) regarding whether an existing work of music can form the basis of a new work.

arrangers.3Lawrence Lessig defines remix as an essential act of Read/Write creativity, the expression of a freedom to take “the songs of the day or the old songs” and create with them.4“Remix culture” is a practice enabled by widespread access to sophisticatedcomputer technologywhereby existing works are rearranged, combined or remixed to create a new work.5

Simply put, a remix is:

· any altered version of a song;

· new media created from old media;

· to copy, transform and combine.6

Remixes can be Inspirational, Incremental or Component-based.7

1.1 HISTORY OF REMIX

Remixes of various art forms have been done since time immemorial. Different cultures have gone through with mixing and merging prior arts to form a new work, like folk music.8

Example of which would be Cento, a Medieval European literary work based on modification made to older works. The Art and Architecture of Renaissance Europe is a remix of Rome and Greece in the 15th and 16th century. In musical context, radif of the Persian origin was the earliest remix where music of older artists was arranged differently in order to create a different musical effect altogether.

Musique Concrete in the 1940s, by Pierre Schaeffer, a French engineer who recast pre-recorded sounds by manipulating the speed and direction of turntables and magnetic tape, was one of the first recorded remixes in the world. Later, in 1956, “The Flying Saucer” by

3SeeGramophone Co. of India v. Super Cassettes Industries Ltd., 1996 PTC(16). 4 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy 56, BLOOMSBURY 2008. 5GuildaRostama, Remix Culture and Amateur Creativity: A Copyright Dilemma, available at http://www.wipo.int/wipo_magazine/en/2015/03/article_0006.html 6Transcript of Everything is a remix, available at: http://everythingisaremix.info/blog/everything-is-a-remix-part-4- transcript. 7Andres Monroy-Hernindez, Designing for Remixing: Supporting an Online Community of

AmateurCreators(Ph.D Thesis) available at http://hdl.handle.net/1721.1/78202 . th 8US media scholar Professor Henry Jenkins argues that “the story of American arts in the 19 century might be told in terms of the mixing, matching and merging of folk traditions taken from various indigenous and immigrant populations.”

Dickie Goodman strung together journalist reporting with sound bites from rock ’n’ roll recordings of the time.9The earliest example of mainstream recognition was “Rapper’s Delight” (1979) by Sugarhill Gang, which sampled the bass riff from Chic’s Good Times.10

In the 1980s era, sample based Rap and Hip-Hop music, earlier considered underground,witnessed massive popularity after being signed by major record labels.11 The most notable example would be “Amen Break”, a six-second drum break from a recording of soul music group called The Winstons.12 It is perhaps the most well-known sample as it has been used in numerous recordings since the 1980s13 and it is said to be responsible for being the basis of various genres of electronic music such asdrum and bass.14

In the Late 1990s – Early 2000s, India also saw the emergence of remix culture as old Hindi songs were subject to catchy beats which were often accompanied by videos featuring scantily clad women.

Now the era of remixes and mashups has taken the internet by storm. Millions of remixes and mashups are uploaded on the internet every day.

2. CHALLENGES FOR THE AMATEUR ARTIST

The concept of remixes faces its own challenges, the primary being the moral rights of the creator. The Berne Convention supports the original artist instead of the amateur creator15, most of the original authors file for copyright infringement when even a little part of their work has been used, citing prejudice to their reputation. The concept of idea/expression dichotomy does not apply to music as it does on other arts because of the fact that it is nearly impossible to

9Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity 76 (The University of Georgia Press 2006). 10Id at 91 11 Run DMC’s version of Aerosmith’s Walk This Way (1986) among others, would be the perfect example of an 80s rock-rap remix. The aforementioned trend continued well till the mid-1990s. 12 Ellen Otzen, Six seconds that shaped 1,500 songs, http://www.bbc.com/news/magazine-32087287 (Retrieved on April 1 2015). 13 List of songs that sampled the recording, available at http://www.whosampled.com/The-Winstons/Amen,- Brother/. 14Josh Jones, The “Amen Break”: The MostFamous 6-Second Drum Loop & How It Spawned a SamplingRevolution,http://www.openculture.com/2013/03/the_amen_break_the_most_famous_6second_drum_loo p_how_it_spawned_a_sampling_revolution.html (Retrieved on April 1 2015). 15 Berne Convention, Art. 6bis: “the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification […] which would be prejudicial to his honor or reputation.”

objectively differentiate between both. Going by extremes no music can be similar to other because there will be an element of difference on the basis of the idea which was behind it and the expression as it came out. Since there is only a finished product which can be assessed as idea and expression both. Hence the threshold of judging the amateur content is much higher.16

However it is not entirely true that international conventions are always prejudicial towards amateur creators.17 In an era and industry that have grown accustomed to "property talk,"lawsuits have become frequent tools for resolving disputes over authorship, ownership, and originality.18

It is helpful to think of remixes as musical forms of “fan fiction,” amateur creative writing and artistic productions.19 Implicit in both musical collage and fan fiction cultures is the concept of the “public life” of a work: once it has been created and released to the public, it ceases to be the sole property of its creator.20 Just because images from a cinematographic work are mixed with a specific song does not mean that the public will stop purchasing either of them. On the contrary, such remixes or mash-ups may constitute free publicity for the pre-existing work.21 "The system is designed to promote innovation, but the consequence of granting a limited term monopoly22 is that restrictions are put on what others can do."23 The restriction, in the view of the authors is prima facie unfair because putting restrictions and granting monopoly is sure to stifle creativity as music is art and creativity being the fuel to the soul of artists.

2.1. THE FAIR USE DEBATE

The copyright law of United States provides for usage of copyrighted material without the

16 Siva Vaidyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it ThreatensCreativity119 (Reissue edition New York University Press 2003) 17TRIPS Agreement, Art. 13: “certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder” the use of the work by an amateur artist would not constitute “normal exploitation.”

18Supra note 13 at 128. 19Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity 79 (The University of Georgia Press 2006).

20Id. 21Rostama, supra note 4. 22 WIPO Intellectual Property Handbook: Policy, Law and Use available at: www.wipo.int/about- ip/en/iprm/pdf/ch2.pdf. 23 Rabecca Martin, Remix Culture: A Rights Nightmare , available at http://www.abc.net.au/catapult/indepth/s1645533.htm

author’s permission in case of a fair use.24 Whether the use of copyrighted material is done in a fair manner is decided by the Court on case-to-case basis. The Courts relies on four factors while deciding on the usage as provided25: Advocates of remixing argue that sampling of copyrighted recordings constitutes fair use because the resulting collages extend beyond mere copying to function as cultural critique.26

Demers has criticized fair use for being an affirmative defense as the burden of establishing the defense remains with the defendants. The plaintiff in an infringement suit does not have to prove that the borrowing was “unfair”; rather the defendant must prove that it was “fair”.

As a result, most cases end up being settled out of Court due to high litigation costs and time issues. She also states that there is a difficulty in establishing what “fair” means.27

Lessig believes that fair use is an area of law’s failure, it is designed to limit the scope of copyright regulation.28 He goes on to state that it is nothing but an extraordinarily complicated balancing act, and a totally inappropriate burden for most amateur creators. He suggests that the concept should be simplified in a way that even a kid can understand it. Fair use could do its work better if legislature followed in part the practice of European copyright systems. Specifically, it could specify certain uses that were beyond the scope of copyright law while retaining the flexible character of the existing concept because it encourages the development of

24 Stephanie Lenz v. Universal Music Corp., UNIVERSAL MUSIC PUBLISHING INC., and UNIVERSAL MUSIC PUBLISHING GROUP, Case No. 5:07- cv-03783-JF, January 24, 2013. 25US Copyright Act of 1976 § 107: 1. Purpose and Character of the work i. Transformative Quality – Whether the work is the same as the original or innovation has transformed the work into a new art? ii. Commercial relevance – Whether the amateur creator is getting monetary benefit or is it for nonprofit, educational or for personal usage only? 2. Nature of the work – Mostly a factual work is likely to be made use of in a fair manner compared to a creative work 3. Amount or substantive part of material used - Copying nearly all of the original work, or copying its "heart," may weigh against fair use. 4. Effect on the market of the original work – If the original work is used in such a way that the new work replaces its value in the market, it cannot be called fair use.

26Demers, supra note 16 at 119. 27Id. at 120.

28Lessig, supra note 3, at 266-268.

law.29

Lessig has termed deregulation as the most obvious change to restore a copyright law that leaves “amateur creativity” free from regulation. Regulation could be avoided most simply by exempting “noncommercial” uses from the scope of the rights granted by copyright, copies of professional work should continue to be regulated in the traditional manner.

Deregulation does not mean supplanting fair use but it aims to exempt an area of creative work from the requirements of fair use or the restriction of copyright, it would remain a critical part of any professional creativity.

SCOTUS’ ruling in Campbell v. Acuff-Rose Music, Inc.30 is highly relevant as it brought commercial works in the ambit of fair use if it is in consonance with its other essentials. The case involved a song by hip-hop group 2 Live Crew, Pretty Woman, a parody of Roy

Orbison’s Oh, Pretty Woman. The 2 Live Crew version was a ‘cover’ of the original and it also borrowed its famous opening guitar motive. The original lyrics were replaced by humorous lyrics. However, the ruling was eventually remanded to a lower Court and it wasdecided out of Court. It was observed that Courts must employ the doctrine so as to “avoid rigid application of the copyright statute as it would stifle the very creativity which the law is designed to foster.31 The Campbell ruling continues to act as a template for subsequent decisions.32

The most important recent development for the remix and appropriative art culture is Cariouv. Prince33wherein the defendant created a series of art works incorporating the plaintiff’sphotographs. The defendant copied the original photographs and used a variety of transformations including blurring or sharpening, adding content, compositing multiple

29Id.

30510 U.S. 56 (1994).

31Id. at 577. 32See Castle Rock Entertainment, Inc. v. Carol Publishing Group, 50 F.3d 132, 142 (2d Cir. 1998)

333d 694 (2d Cir. 2013).

photographs together or with other works etc.34 upon appeal, the Second Circuit reversed the District Court’s decision, finding that most of Prince's works were indeed transformative and thus constituted fair use.35 It held that appropriation artwork need not comment on the original to be transformative. The Court then found 25 of 30 works to be transformative fair use under its newfound principle and remanded the case to the lower Court for reconsideration of the remainder. However, in March, 2014, this matter was also settled out of Court.

2.2. CREATIVE COMMONS The strongly held opinion of some that it's in the public interest to make information free, has been the catalyst for a nebulous movement that's pushing for information and material to be more accessible.36 The Creative Commons Licence has come forward as a response which gives the original artists the right to choose in what forms and ways their work can be used by the aforementioned amateur creators. “It’s actually a movement that allows creators to decide how much of their information can be made public, and gives them an opportunity to make it more available than what the copyright legislation outlines,37”says Jessica Coates of the Australian Centre for Creative Commons. And rightfully so, she goes on to suggest that instead of using the clichéd “All Rights Reserved” the artists under Creative Commons should use “Some Rights Reserved” hence promoting wider utility of their creation.

3. CASE STUDIES

3.1. DEAN GRAY Dean Gray is a DJ-duo based in Australia specialising in parodies and remixes of famous albums.38 In December 2005 they released their new album online titled American Edit a remix of American Idiot, an album by San Francisco based punk-rock band Green Day which made the

34 In March 2011, the District Court held that Prince's works were infringing as these works were not transformative, in part because the defendant did not claim to be commenting upon the original works of the plaintiff. 35 Barry Werbin, The ‘Transformation’ of Fair Use After Prince v. Cariou, ART & ADVOCACY, Volume 16, Winter 2014, available at http://www.herrick.com/publications/the-transformation-of-fair-use-after-prince-v-cariou/. 36 Rabecca Martin, Remix Culture : A Rights Nightmare , available at http://www.abc.net.au/catapult/indepth/s1645533.htm 37 Jessica Coates of the Australian Centre for Creative Innovation at Creative Commons Global Summit 2015, Seoul, South Korea 14-17 October 2015. 38About the Artist Dean Gray, available at http://bootiemashup.com/sf/deangray.

band one of the most selling music artists of the generation. Due to the remix nature of this famous album, the Dean Gray version of it became an instant hit online but also caught the eye of the Warner Bros. Music Ltd. the record label of Green Day. The label sent a ‘cease and desist’ notice to Dean Gray sparking an outrage among the online community. Around 400,000 petitions were signed against the album being taken down from the internet and Green Day itself said in a press release that they liked the music and it was quite flattering. But the fact remained that the label owned the rights of the album, hence the album still is not allowed to remain on the internet.

3.2.THE GREY ALBUM

In 2003, Brian Burton, aka DJ Danger Mouse, mixed an a cappella version of Jay-Z’s 2003

Black Album with instrumental parts from the Beatles’ 1968 White Album, resulting in whathe called the Grey Album. He also released some physical promotional copies of the same. Later, he received a cease-and-desist letter from EMI, the copyright owner of the Beatles’

White Album. EMI also threatened legal action to any individuals who sold or transmitted copies of the Grey Album over eBay or through file-sharing networks.

This led to a public backlash against the EMI in the form of an event called “Grey Tuesday” which involved protests EMI’s threats by inviting participants to download free copies of the impugned album. It saw support from media and university radio stations who also aired the album. However, In March 2004, DJ Danger Mouse complied with the cease-and-desist letter and stopped selling and distributing copies of the album.

These two cases are just the tip of the iceberg. Many artists are forced to cease the distribution of their work because a major record label “owns” the rights to the music.However, with the increasing support of these artists has led to a free content movement where they are demanding “a much broader right, a right to mashup and remix material – to take on the role of producers – to cut, paste, sample of jam with content, in order to produce something which is distinctive of

their own social and creative innovation.”39

4. LEGAL POSITION ON REMIXES

The legal position on the remix culture and the rights of amateur artists has been confusing. A close analysis of the situation prior to the Copyright (Amendment) Act, 2012 reveals that the copyright laws have transcended from being creative-friendly to more of ownership-friendly. The only remedy which were available with the original musicians are available were the compliance of condition under Section 52 (1)(j) (prior to the amendments) which were not more than the formalities required under Copyright Act, 1957. In other words, judiciary had nodded indirectly to the remixes.40

But this situation has changed after Section 31C was introduced by the Act of 2012. It has been inserted with a view to protect the rights of musicians by protecting them against copyright infringement through remixes.41

It follows without any doubt that due to very nature of the act of remixing, it will have its fair share of litigation. Most cases are of unauthorized sampling in recording. An interesting thing is that most of these lawsuits end by way of out of Court settlements rather than a judicial pronouncement. A famous early example is when Queen and David Bowie sued American rapper Vanilla Ice, for illegally sampling the bassline and piano part of the song Under Pressure in his breakthrough hit, Ice Ice Baby in 1990. The dispute eventually reached an out of Court

39 Damien O'Brien and Brian Fitzgerald, Mashups, remixes and copyright law, INTERNET LAW BULLETIN 9(2): 17-19 (2006).

40Gramophone Co. of India v. Super Cassettes Industries Ltd., 1996 PTC(16).

41Copyright (Amendment) Act, 2012, Section 31C: The section mainly lays down six principles for a remix to escape from being copyright infringing: 1. Consent or license from the owner of the right and same medium of cover version as that of the original version. 2. Prior written notice to the owner for version recording is required and the royalty shall be paid in advance at the rate as specified by the Copyright Board and for a minimum of 50000 copies. 3. A cover version cannot be reproduced until the expiration of 5 years from the date it was actually made. 4. Cover version shall have to mention that it is a cover version and shall not contain he name or depict in anyway any performer of an earlier sound recording of the same work. 5. A person cannot make any alteration in the literary or musical work which has not been made previously by or with consent of the actual owner. 6. Alteration in original recordings are only allowed for technical purpose now, however, previously it was allowed for adaption of the work.

settlement, which resulted in Queen, and David Bowie receivingwriting credits for it.

Grand Upright Music, Ltd v. Warner Bros Records Inc.42turned out to be the game changerfor the music industry. In 1991, Grand Upright Music sued Marcel Hall (Biz Markie),

Warner Records, and Cold Chillin’ Publishing for unauthorized sampling of Gilbert O’Sullivan’s Alone Again (Naturally) (1972) in Biz Markie’s Alone Again (1990) on the album “I Need a Haircut”. The impugned sampling comprised the three title words sung by the rapper and usage of the recording of O’Sullivan’s piano accompaniment. The presiding Judge, Kevin Duffy not only granted an injunction against the defendants, effectively pulling out the song from future releases of the album but he also made a reference to the Seventh Commandment of the Bible thou shalt not steal. Judge Duffy then went on to refer the matter for criminal prosecution due to the defendants' intentional copyright infringement which was a more serious. However, no criminal charges were filed and the dispute was settled out of Court.

The Grand Upright ruling had a lasting impact on various other artists as well who made sample-heavy music. After the ruling, prior sample clearance was viewed as an industry norm.

However, the ruling was not free of criticism. Critics have pointed out that the Biblical reference demonstrates the Judge’s bias against the defendants while deciding the matter.43

The decision has also been termed as an “if understanding on the part of this judge of the facts and issues before him in this case.”44

The legal position post the Grand Upright ruling was perceived to be concrete but Courts showed a more flexible approach, deciding copyright issues in matters of appropriation art on a case-to- case basis. A notable example is of Newton v. Diamond,45 wherein a District Court in California found that the Beastie Boys’ use of a three-note portion of James

42780 F. Supp. 182 (S.D.N.Y. 1991). 43The Copyright Infringement Project of UCLA Law and Columbia Law School, available at http://mcir.usc.edu/cases/1990-1999/Pages/granduprightwarner.html

44Id. 45204 F. Supp. 2d 1244 (D.C. Calif. 2002

Newton’s flute piece Choir was not infringement because the borrowed notes were not original enough to warrant copyright. Other examples of a case-by-case approach include Tuff ’N’ Rumble Management Inc. v. Profile Records Inc.,46 and Williams v. Broadus.47

However, this approach was put to rest in 2004 in Bridgeport Music, Inc. v. DimensionFilms48wherein the plaintiff accused the rap group N.W.A of illegally sampling itsrecording of Funkadelic’sGet off Your Ass and Jam. The impugned sample comprised of a repeated, three- note electric guitar arpeggio. A Tennessee District Court, as in Newton, had earlier ruled that the sample, was a de minimis sample requiring no clearance.49 However, The Sixth Circuit Court overturned this ruling. The Court stated: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

5. CONCLUSION

From the inception of art to the present era of modern technology; artists have been reinvigorating earlier works by adding a pinch of their creativity and talent. When an amateur musician samples an existing song, his main motive is to be as creative as possible so that the music he makes has a different impact. Hence the motivation comes from creative thinking and channelizing that into reality through talent. In the course of this whole essay, we have proven the fact that remixing requires a lot of creativity. Jason Schultz of Electronic Frontier Foundation contends, – ‘this is a battle over creativity, do we want a world where the law criminalises that?’50

The idea-expression dichotomy and the concept of property does not apply to music in a linear fashion. But due to the obsession of “owning” the work by Record labels and artists, a lot of creativity is stifled by lawsuits. However, there are tools such as the concept of fair use and

4642 U.S.P.Q. 2d (S.D.N.Y. 1997). 47U.S. Dist. LEXIS 12894 (S.D.N.Y. 2001). 48410 F.3d 792 (6th Cir. 2005). 49Bridgeport v. Dimension, 230 F. Supp. 2d 830 (MD Ten. 2002). 50 Michael Hill and Jennifer Dudley, Do the mixed-up movie mash, THE COURIER MAIL, Thursday March 9 2006, at 17.

creative commons licensing, but their scope is very much limited.

Hence cases like American Edit and the Grey Album controversy have become commonplace. The legal framework in our country among many has failed to support the amateur creators in protecting their creative endeavours. But, there is still hope for a change as large number of people, organisations and jurists are supporting remixing of existing songs. Will there ever be a free sampling era in the music industry where artists create without any hindrances? That, only time will tell. But the authors being avid fans of music, sure hope so.

Do You Copy? Roger1

In an interview in 1994, Steve Jobs, when asked whether he had stolen the idea of the Graphic User Interface (GUI) from Xerox, famously quipped “Picasso had a saying, ‘Good artists copy, great artists steal’2.

Apparently, Picasso practiced what he preached. Pablo may have borrowed the phrase from the Russian conductor Igor Stravinsky who once said, ‘Lesser artists borrow, great artists steal’.3 Mr. Stravinsky, an appreciator of the arts, clearly had T.S. Elliot in mind, who in turn had once stated, “Immature poets imitate, mature poets steal”4. This may have been influenced by an article written by W.H. Davenport, who, almost comically enough, was referring to the poet Alfred Tennyson (who, according to Davenport, “Constructed his verses using the efforts of his artistic antecedents as a resource.”) when he wrote in 1892, “That great poets imitate and improve, whereas small ones steal and spoil.5”

What we have above is an extended version of Chinese whispers. It’s a perfect illustration of how information and data is transmitted and shared. As we pass it on, it gets distorted and transforms. We put a little of ourselves in it. We make it our own. And this doesn’t just apply to quotes; it’s everywhere, from language and music, to religion and style. We reference it, we rearrange it, and thus, we’ve remixed it.

It is my contention that data is transformed in two ways, viz., consciously and subconsciously.

1 Nikhil Joseph Zacharias, 2nd year B.A.Ll.B. (Hons.), Symbiosis Law School, Pune. The author can be reached at [email protected]. 2 Christopher Dernbach, Steve Jobs: Good artists copy great artists steal, YOUTUBE (April 20 , 2016), https://www.youtube.com/watch?v=CW0DUg63lqU. 3 PETER YATES, TWENTIETH CENTURY MUSIC; ITS EVOLUTION FROM THE END OF THE HARMONIC ERA INTO THE PRESENT ERA OF SOUND, 41 (Pantheon Books New York 1967). 4 T. S. ELIOT, THE SACRED WOOD: ESSAYS ON POETRY AND CRITICISM, 114 (Methuen & Company Ltd. London 1920). 5 W. H. Davenport Adams, Imitators and Plagiarists (Part 2 of 2), THE GENTLEMAN’S MAGAZINE, June 1892, at 627, 628.

When done consciously, the person transforming the data, is aware of the precedent model, and consciously changes it for whatever reason he has. An example can be made from the Indian Constitution, which is essentially a hodgepodge of various constitutions selectively chosen from around the world.

When done subconsciously, the aforementioned example of Picasso comes to mind. The person transforming the data may have come across it before, but on relaying or transmitting the data, he subconsciously changes it, subtly, but substantially enough to transform it. This subtle change is by no means done on purpose, it occurs due to human error or ignorance. In certain cases, the transformer genuinely believes his work to be original. This is a scientific phenomenon and is called Cryptomnesia6. It is a memory bias whereby a person may falsely recall generating a thought, an idea, a song, or a joke, not deliberately engaging in plagiarism but rather experiencing a memory as if it were a new inspiration.

Remixing information isn’t new; we’ve been transforming data ever since we could make it. Data was primarily transformed for one simple reason; the world was a bigger place back then, devoid of airplanes and the internet, so the message couldn’t be transmitted directly in its pure form. It was shared promiscuously, handled precariously, and guarded protectively, all of which moulded it and mixed it and muddled it in the process, much like a game of Chinese whispers. For example, the German word ‘Kaizer’ and the Russian word ‘Czar’, both meaning ‘Emperor’, are both corruptions of the name of the Roman Emperor Caesar. News of Caesar’s victorious conquests would have reached the messengers of different kingdoms, who would’ve had their own languages and dialects. Anyone who’s ever tried to pronounce their name in a foreign country would understand what ensues. These messengers proclaiming the news of a great conqueror to the masses would’ve inadvertently mispronounced the name, transforming it to a synonym for a great leader. As more of these ‘deviations’ build up, a language is promoted and developed, around which, a culture is formed.

6 Maria Popova, The Psychology of Cryptomnesia: How We Unconsciously Plagiarize Existing Ideas, BRAIN PICKINGS https://www.brainpickings.org/2014/09/26/cryptomnesia-psychology-of-writing/ (last updated Sept. 26, 2014).

This is the central premise of the remix culture; using existing data and transforming it to create and promote a sense of identity. The English language itself stands testament to that. It has borrowed, transformed and corrupted words of other cultures and mingled it into theirs. Four out of the seven days of the week are named after Norse gods of Scandinavia. ten of the 12 months are of Roman design. The letters are Latin, and the numbers, Arab. And yet, there is a definite attribution of identity to the English language. It has given us Shakespeare and J.K. Rowling, Wodehouse and the Beatles. It has created and promoted a culture by absorbing and adopting the cultures of others. And that is where the power of remix lies.

The glue that holds society together is more often than not, its culture. However, culture and society are fluid concepts, so as one changes, the other follows suit. A catalyst of cultural change is remixing. The Roaring 20’s and the psychedelic 60’s were periods marked by great leaps in art, music, cinema and literature, with the likes of Hemingway, Dali, Bugnel, F.Scott Fitzgerald in 20’s and Kerouac, Kesey, Kubrick and Hendrix in the 60’s respectively. Both these periods witnessed the confluence of multiple cultures and ideologies. This period of cultural opulence can be traced back to many factors; post-war peace, economic boom, and the popularity of ‘speak-easies’ in defiance of prohibition being some of them. However, one cannot refute the effect that advances in technology had on the movement. The 20’s marked a period of great leaps in music recording and media technology. Music was no longer the realm of concert halls and information was no longer isolated to where it had originated. With all this exchange of information and art, the 20’s mixed and combined existing art forms and ideologies to create new dynamic ones that still exist today; the Surrealist and Art Deco movements that emerged in the 20’s were influenced and inspired by the Dadaist movement7 of the 1910’s, whereas the music that had become almost synonymous to the time, Jazz, is itself a merge of African-American slave hymns, Afro-Cuban rhythms and European instruments.

The 60’s followed a similar trajectory. The baby boomer generation born after WW2 was exposed to a variety of advanced media. The popularity of television and the advertising that followed it, inspired and influenced the rise of Pop Art (which itself was influenced by the aforementioned Dadaist movement), headed by the likes of Andy Warhol and Roy Lichtenstein.

7 Oxford Art Online, Dada and Surrealism http://www.oxfordartonline.com/public/page/themes/dadaandsurrealism

Traditional American cinema had lost its appeal. The new demographic was young and educated. They were intrigued by the likes of European art wave and Japanese cinema, with their more human subject matter and their audacity to film sexuality. Hollywood took notice of this, employed similar techniques to attract the masses, and inadvertently evolved the nature of cinema forever in the process. Music wasn’t spared either. A new interest in Orientalism as well as the comeback of Jazz and Blues led to the development and popularity of Rock music, forever changing our notions of culture and sexuality.

I mention these decades because they have special relevance to the Indian scenario. Many parallels can be drawn from the aforementioned decades, with the period of change that India is undergoing right now. Much like the 20’s and 60’s India is going through a period of economic boom. Also, owing to the liberalization policies of the 90’s, and the rise of the Internet, India is now exposed to foreign media, much like the technological advancements made in the 20’s and 60’s. They were also a period of rebellion and sexual revolution, as seen in the ‘Flappers8’ of the 20’s and the ‘Hippies9’ of the 60’s, a trend which is also noticeable in the youth of India today. If the pattern is to be believed, this period promises to be a time of great cultural change and significance, provided, however, that the factors remain the same, the key factor being the liberty to remix.

Remixing in the earlier decades faced fewer legal hurdles primarily, because, well, it was hard enough as it was. Procuring records and tapes was far more arduous at the time, and the effort of experimenting and remixing them? Almost Herculean. The transformation was a slow and gradual one, and therefore, rarely blipped on the radar of companies that owned the right to the songs. However, with the advent of the internet and the popularity of sampling, that changed completely. Sampling is the act of taking a portion, or sample, of one sound recording and reusing it as an instrument or a sound recording in a different song or piece. In its genesis, sampling was often committed without permission from the original artist, however, as the genre grew, and with it album sales, the original artists began to initiate legal action, claiming

8 Jennifer Rosenberg, Flappers in the Roaring Twenties, ABOUT EDUCATION http://history1900s.about.com/od/1920s/a/flappers.htm (last updated June 28, 2016). 9 The Editors of Encyclopædia Britannica, Hippie, ENCYCLOPEDIA BRITANNICA http://global.britannica.com/topic/hippie (last updated Feb. 9, 2015).

copyright infringement. And this is where the problem lies. According to the judges of the 6th circuit in America, sampling even two seconds of another song could land you in the soup.10 Two seconds. That’s the time it took you to say ‘two seconds’. That’s just ludicrous. Nor is it an isolated judgment. The Federal Court of Justice of Germany referred to the case while judging a similar case, and held there too that copyright had been infringed.11

Thankfully, the majority of copyright cases have been dealt with prudence and wisdom, with judges balancing both, the property rights of the original artist and the creative liberties of the other. Although it has yet to eradicate arbitrary judgments, the American courts employ a series of tests and standards to gauge whether or not the work in question infringes copyright. These tests and standards will be spoken of in detail later.

Coming back to the subcontinent, we must realize that India stands on the precipice of change. Our cinema is getting bolder, our literature more engaging , and our music more diverse than ever. The change is welcome after decades of repetitive, near stagnant levels of progress in the arts. If we are to sustain this progress, then we have to emulate what lawmakers did in the 20’s and 60’s in the States with regards to copyright law; nothing. We must understand that the harbingers of change in 60’s America weren’t established famous artists, they the new kids, the rookies, the amateurs. The artists who have come to define the 60’s initially dabbled in the arts out of passion and enthusiasm and not in pursuance of lucre. They represented the zeitgeist of the times, and in doing so directed the path of culture away from corporate conservatism, to dynamic liberalism, a path, if emulated by Indian culture, would benefit it greatly.

Woody Allen’s first movie was an English parody dub of an actual Japanese movie12, while Francis Ford Coppola’s was an adaption of an Edgar Alan Poe story. His first job was to edit and dub a Russian movie, to which he cheekily added footage of ‘monsters in the shapes of penises

10 Bridgeport Music v. Dimension Films, et al., 410 F. 3d 792 (6th Cir. 2005).

11 Metall auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.), B.G.H. 20.11.2008 (I Z.R. 112/06). 12 Wikipedia, What’s Up Tiger Lily, https://en.wikipedia.org/wiki/What%27s_Up,_Tiger_Lily%3F (last updated July 26, 2016).

and vaginas’13. If Woody and Francis had attempted that today, they’d be sued for copyright infringement, on the basis of denying the ‘moral right’ of the original artist, (a concept which will be explained later) and they’d probably stop making movies lest they rack up another law suit. The ramifications of this on cinema had that been the case is irrefutable, as is the lesson that we’ve learnt from these doyens; for a culture to thrive, amateurs must be given the liberty to create and sample from existing work.

To paraphrase one of Coppola’s most famous movies, That’s an offer you can’t refuse.

While discussing the laws and legislature involved in the field of copyright law, it is essential that we pay our dues to the cornerstone of it all, The Statute of Anne.

The Statute is an act passed by the British Parliament in 1710, and is considered to be the first statute to provide and regulate copyright. Although now repealed by the Copyright Act of 1842, it is still praised for the utilitarian principles it espouses, and for its foresight in recognizing the need to balance between the interests of the author and that of the public. Prior to the act, the concept of copyright did not exist, and the majority of the printing rights were vested upon the publishers, and not the authors. After numerous vociferous campaigns (led in part by literary giants like Jonathan Swift and Daniel Defoe) to curb the powers given to the publishers and to empower the authors, the parliament struck down the old laws and enacted the statute, which, among other things, invested the power of copyright into authors, and laid out how long that power was to exist (14 years for works made before the act, and 21 years for works made after the act). However, lobbying by publishing groups enabled the statute to enact some rather backward laws through amendments and extensions. One addition stated that it was illegal to import books from foreign countries. Later, in an attempt to prevent the inflow of cheaper books from Ireland14, the law was further extended to books initially written in the UK but which were now being published abroad.

13 DAVID ELROY GOLDWEBER, CLAWS & SAUCERS: SCIENCE FICTION, HORROR, AND FANTASY FILM 1902-1982: A th COMPLETE GUIDE (Lulu Press Inc. June 12 2012). 14 ISABELLA ALEXANDER, COPYRIGHT LAW AND THE PUBLIC INTEREST IN THE NINETEENTH CENTURY (Oxford and Portland: Hart Publishing 2010).

The statute finally met its end when it was repealed by the Copyright Act of 1842. The importance of the Statute lies in the fact that it was used as a template for similar statutes across the world. Thereby, by analyzing the statue, we gain an understanding of the essence of copyright law, and what the intentions of the law-makers were. The passage of the Statute was initially much welcomed, ushering in "stability to an insecure book trade" while providing for a "pragmatic bargain" between the rights of the author, publisher and public intended to boost public learning and the availability of knowledge. They sought to accomplish this by introducing

1) A limited period of copyright 2) A legal deposit scheme, where publishers had to deposit some of their books in the Universities of Oxford and Cambridge.

Although the effectiveness of the Act is questionable, the intentions must be lauded. From the very birth of copyright law, it’s been established that the rights of the public are to be considered as much as the rights of the artist. There’s something else that we can take away from this; the abuse of law by a greedy, power-hungry third party. In the 18th century, it was the publishing companies, now, it’s the Corporations and Sample Trolls.

FOR WHOM THE SAMPLE TROLL TOLLS

As technology developed, so did the laws, with the implementation of the Berne Convention, the WIPO Copyright Treaty, Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Digital Millennium Copyright Act (DMCA) in the United States and numerous others. However, much like the publishing companies of yore, the laws have been have been manipulated and abused by sample trolls and corporations who seek easy profits. “Sample Trolls”, according to Prof. Tim Wu of Columbia University, “are companies that hold portfolios of old rights (sometimes accumulated in dubious fashion) and use lawsuits to extort money from successful music artists for routine sampling, no matter how minimal or unnoticeable. The sample trolls have already leveraged their position into millions in settlements and court damages, but that's not the real problem. The trolls are turning copyright into the foe rather than the friend of musical innovation.” Sample trolls primarily sue big targets in pursuance of greater damages,

however, and especially after emerging victorious in high-profile cases15, they’ve seemed to induce a chilling effect on the industry, discouraging amateur and new artists who fear they don’t have the means to settle in or out of court. ‘That doesn’t sound too bad’, you might think. If they were sampling from other musicians, now it’ll give them added impetus to come up with their own originals right? The answer, is a big resounding ‘no’. As I’ve stated again and again, if you dig deep enough and search hard enough, eventually, everything is a remix. George Harrison, one of the phenomenal fab four, was sued for infringement for his song ‘My Sweet Lord’, which the plaintiffs claimed copied the Chiffon’s “He’s so fine”16. George insisted that the song was his own creation, but after having heard “He’s so fine”, he acknowledged the similarity between the songs. In Harrison’s own words, “Why didn’t I realize?” What George Harrison experienced is the aforementioned phenomenon of cryptomnesia. For a tragic human error, it cost Harrison almost 1.6 Million dollars, and left him ‘paranoid’ to come up with new material. Pity, “My Sweet Lord”, ranked 460th on Rolling Stones “500 Greatest Songs of All Time”17. Lord knows what he would’ve written next.

I fear I may be painting the subject darker than it really is. For every case won by a sample troll, there are numerous other examples where the judiciary restores our faith in it. However, this begs the question, “Isn’t that pretty arbitrary?”. Yes, yes it is. But across the world, jurists and judges have formulated standards to gauge whether a work has infringed another, and if so, they’ve provided defenses to protect the rights of the infringing artist.

In the Commonwealth there exists a concept called ‘Fair Dealings’, which is similar to an American concept called ‘Fair Use’.

15 Grand Upright Music v. Warner Bros. Records, Inc., 780 F. Supp. 182 - Dist. Court, SD New York 1991. 16 Bright Tunes Music v. Harrisons Music, 420 F. Supp. 177 (S.D.N.Y. 1976). 17 The Editors of Rolling Stone, 500 Greatest Songs of All Time, ROLLING STONE http://www.rollingstone.com/music/lists/the-500-greatest-songs-of-all-time-20110407 (last updated April 7, 2011).

A fair dealing with any work (except computer programmes) is allowed in India for the purposes of -

1. private or personal use, including research,

2. criticism or review,

3. reporting of current events and current affairs, including the reporting of a lecture delivered in public.

Although the ambit of fair dealing hasn’t been clearly defined, it has been greatly discussed in cases, with the majority of the cases favouring the defendants. It’s just one of those things where ambiguity aids in the administration of justice.

Fair use is a legal doctrine only in the United States. It permits limited use of copyrighted material without acquiring permission from the rights holders. Fair use is distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright. Examples of fair use in United States copyright law include commentary, search engines, criticism, parody, news reporting, research, and scholarship.

The essence of whether something can be considered fair use boils down to this.

1) Is the infringement substantial? 2) Is there any creative element employed by the infringing artists? 3) Does it harm the Moral Rights of the original artist? 4) Would the publishing of the work prove detrimental to the original artist?

To answer the above questions, further tests and standards have been devised:

1) The concept of de minimus non curat lex (or the law does not care for trifles) was the rule of thumb till it was effectively thrown out the window in the Bridgeport case in the 6th

Federal Circuit. However, the judgment is widely considered unpopular and is not binding on other circuits. 2) Jurists have devised tests to gauge whether the works are substantially similar. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague. Two methods are used to determine if unlawful appropriation has occurred: the "subtractive method" and the "totality method". 3) Moral Rights are provisions brought by the Berne Convention. It basically states that the original artist is entitled with some ‘moral rights’ and if he can prove that the infringing work in some way vilifies or destroys the expression of the original, he can sue. Eg. Using a conservative artists imagery for a pornographic magazine without his permission. 4) This speaks for itself. If the copying artists benefits from what is essentially the labour of the original, the latter can sue.

While answering the above questions, if they all lean in favour of the copying artist, then fair use is accepted.

Remixing is vital. That isn’t hyperbole. It is important to acknowledge Remixing as an art-form for numerous reasons.

1) As mentioned earlier, it’s engrained in our culture, we’ve been doing it for years. Almost every single human idea and art-form has arisen out of a remix of pre-existing art-forms and ideologies. Trying to curtail this tendency is like trying to tell a child to shut up. He’s just not going to. Which brings us to our next point; 2) It’s run amok. To a society that has normalized sampling (and to a lesser extent, piracy), effective legislation is going to be difficult to achieve. Introducing stricter sampling laws would probably be akin to the prohibition of alcohol in the US in the 20’s, it’s going to be flouted. Instead of tackling the problem, it’s necessary to understand and embrace the problem, like the legislation of Canada.

The summary of my stance on the matter can be stated thusly. ‘All artists borrow, some of them steal’. It is bearing that in mind that law makers should formulate laws and judges give verdicts.

Retelling of Hindu Epics as an Aspect of Traditional Cultural Expression: Preservation of Traditional Literature accorded by Intellectual Property Rights1

Abstract

The paper begins by elucidating the relevance of Hindu mythologies, which are considered a tactical and demonstrable way for gathering a massive following and changing the climate of thought of the society. However, since these epics were scripted centuries ago, the original approach towards the narration of these tales is based in orthodox, patriarchal and conformist mind-sets. With the passage of time, people delved into traditional battles and started interpreting these myths in their own versions, which were formed through ingrained beliefs in newly developing religions and cultures. In order to prove this, the paper draws links between mythologies and religions in order to establish that different forms of myths are carved out of different types of religions and traditional knowledge base. This further supports the argument that people have gradually come up with forms of Hindu epics that characterise traditional cultural expressions, as is expounded in the next segment of the paper. One such expression has a feminist undercurrent, as a consequence of which these myths are used to reach out to the masses to communicate concerns of women subordination in the society. A classic example of this approach is found in the version of Ramayana scripted by Devdutt Pattanaik who chooses the character of Sita and her point of view to narrate the entire story. A review of his book ‘Sita’ will be put forth in order to also highlight the precise manner in which different retellings of Ramayana, based in different times and cultures, are composed. Finally, the appropriateness of judging the cultural veracity of various forms of traditional literature in the background of intellectual property regime will be analysed.

1 Sasha Malpani, Student, WBNUJS, Kolkata.

Introduction

Indigenous and local communities cherish traditional knowledge as a part of their fundamental cultural identities. Preserving distinct knowledge systems is crucial for their future welfare, sustainable development and intellectual and cultural vitality. For such communities, traditional cultural expression forms part of a holistic world view, and is intimate to their ways of life, spiritual values and customary legal systems.2

The justification for protecting cultural expressions rests on the grounds of fundamental justice and the ability to preserve and control one’s traditional heritage. Since various areas of traditional knowledge have potentially lucrative applications, there is also an expectation of the right to receive fair returns on what their communities have established.3 However, there are several challenges that confine traditional knowledge holders from acquiring their claims. Threat to the cultural survival of communities, migration, and encroachment of modern lifestyles and disruption of traditional ways of life are some examples of such challenges. Thus, either through acculturation or diffusion, many traditional practices, beliefs and knowledge have been irreversibly mislaid.

Through the medium of this essay, the theme of preservation of traditional knowledge and folklore with the application of IPR will be encapsulated. The main research question that the paper focuses on answering is how contemporary forms of Hindu epics are perceived and impacted as elements of traditional cultural expressions in light of their age-old evolution. In furtherance of this objective, the author attempts to argue that distrusting the authenticity of such forms of traditional literature is not in consonance with the common aim of enriching and augmenting the cultural ethos of a certain society.

2 INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE, BOOKLET NUMBER 2,. 3 The Assembly of First Nations Position on Traditional Knowledge is contained in its Resolution No. 27/2003, http://www.afn.ca/resolutions/2003.htm.

“Myths might be defined simply as other people’s religion” - Linking Mythical Adaptations to Cultural Backgrounds

While folktales may be understood as traditional literature of secular nature, myths are sacred narratives that are considered to be accounts of true events that occurred in the past by many religious groups.4 They illustrate directly, more than other forms of evidence, the behaviour of people, societal customs and institutional norms. Mythologies are alternatively referred to as other people’s religion in this context because different religions interpret mythic metaphors as references to hard fact. The Ramayana, which represents not just a story, but an allegory, symbolises the teachings and values of ancient Hindu sages whose ideas were principled on the base of righteousness and dharma. Different communities have recreated such notions of dharma and righteousness and evolved their own principles to generate their cultural heritage and identities.5

Consider the example of the literature produced by Samhita Arni. Her book, ‘Sita’s Ramayana’, illustrated by Moyna Chitrakar, is a widely popular graphic novel version which is closely associated with the Patua folk art form. Patua is a caste of people that reside in West Bengal and are primarily painters by trade and profession. In the Patua tradition, artists paint a series of images on a scroll, which is unrolled and referred to while the story is recited or sung or danced.6 In Sita’s Ramayana, the image of Sita is presented with wide eyes that reinforce the centrality of Sita’s character and importance in the retelling. Another version of this myth told from the feminist perspective was by a Bengali artist by the name of Chandrabati who produced her work in the 16th century. According to her, the songs and narratives composed were the creation of women, who sang as they worked inside their homes and outside, and who undoubtedly identified with Sita’s womanly suffering and fortitude.7 Such illustrations encouraged the readers to empathize with the female protagonist and develop a more exposed outlook. Thus, through these two works of the Ramayana; the first graphic novel format of presenting visual information

4 Judy Moreillon, INTO CULTURAL AUTHENTICITY IN TRADITIONAL LITERATURE: SITA’S RAMAYANA WOWLIT.ORG (2013), http://wowlit.org/blog/2013/04/29/inquiry-into-cultural-authenticity-in-traditional-literature-sitas-ramayana/. 5 Id. 6 M.K.A. SIDDIQUI, MARGINAL MUSLIM COMMUNITIES IN INDIA 279-93 (1st ed. 2004) 7Supra note 4.

paralleled the Patua tradition of visually recounting texts as a series of scenes and the second one, through its decidedly feminist perspective, succeeded in highlighting the misfortune that can transpire from disharmony between spouses and its agonising consequences to women, children, and ordinary people when their lives are determined by rivalry between powerful men.8

Evidence of Traditional Cultural Expression in Hindu Epics

Traditional cultural expressions, often the creation of inter-generational social and communal creative processes, replicate and ascertain a community’s history and its ethnic and social values. Situated in the centre of a community’s identity, cultural heritage is constantly recreated as traditional artists and practitioners continue to bring fresh perspectives to their work. Tradition becomes not only about imitation and reproduction; its essence also starts to develop in innovation and modernisation within the traditional framework. Hence, traditional creativity is marked by a dynamic interplay between collective and individual creativity.9

The best form of illustration for such cultural expressions may be found in mythologies and folklores. Handed down from one generation to another either orally or in writing, they reflect a community’s cultural and social identity and consist of characteristic elements of a group’s heritage. Created by individuals and communities that are communally recognised as having the right, responsibility or permission to do so, such expressions are created not for commercial purposes, but to mobilize religious and cultural manifestation. In order to keep their heritage alive, communities continue to evolve, cultivate and refabricate such folklore. Expressions of traditional culture may be tangible, intangible, or most usually, a combination of the two – often leading to a final product defined as a mixed expression of folklore. Verbal expressions such as folk tales and symbols, expressions by action such as folk dances and plays, musical expressions

8 Id. 9 Intellectual Property and Traditional Cultural Expressions/Folklore, Booklet Number 1, World Intellectual Property Organisation, WIPO Publication No. 913(E) ISBN 978-92-805-1363-9.

such as instrumental music, different productions of folk art and architectural forms are illustratively what constitute forms of traditional cultural expressions.10

The Indian epics, the Ramayana and Mahabharata, may be described as lengthy narrative poems concerning details of heroic deeds and events significant to our culture and nation. They are some of the oldest surviving epic poems on earth that refer to canons of Hindu scripture and form part of ‘itihasa’ and ‘mahakavya’.11 Hero-worship forms a fundamental characteristic of Indian culture and it has thus lent itself readily to a literary tradition that manifested itself abundantly in the Indian epic literature.12 Originally composed in Sanskrit by the identified authors Valmiki and Veda Vyasa respectively, the Ramayana and Mahabharata have been recreated by countless communities in different languages corresponding to their people’s behaviours, societal customs, institutional norms, traditional beliefs and taboos. Thus, it is established that different forms of traditional cultural expressions are evident in Hindu epics as well. The subsequent segment of the essay will aid in illustrating this with an example.

A Review of ‘Sita’ by Devdutt Pattanaik – A Classic Example of Diverse Adaptations

About the Book:

Sita: An Illustrated Retelling of the Ramayana joins agrowing tribe of books of Indian epics retold. Devdutt Pattanaik, who by education is a medical doctor, by profession a legal consultant and by passion a mythologist, in his own style and custom, has re-woven through his novel India’s most popular tale of Ramayana. His book retells the story of Ramayana by approaching Ram through the speculation of Sita, for it assumes that Sita had extraordinary powers in a world of patriarch epics.13 While the illustrator Devdutt Pattanaik has revealed in an interview his

10 Id. 11 AMARESH DATTA, ENCYCLOPAEDIA OF INDIAN LITERATURE (Sahitya Akademi, 1998). 12 HORACE HAYMAN WILSON, THE VISHŃU PURÁŃA: A SYSTEM OF HINDU MYTHOLOGY AND TRADITION (J. Murray, Germany). 13 DEVDUTT PATTANAIK, SITA (Penguin Group, New Delhi, India 2013).

thoughts on how like most epics created in or outside of India14, Ramayana portrays Sita as a character created to ingrain values of sacrifice and subservience to a husband, he personally believes that it is not a form of literature designed to celebrate or encourage gender oppression as many Western academics radically project.15Thus, through a feminist viewpoint, the book provides meticulous details of Ramayana by highlighting Sita’s childhood, her stay in the forest, her interaction with the women of Lanka and her connection and emotions with the Earth.

Form of writing:

Pattanaik’s novel cannot be categorised as yet another simplistic retelling of the Ramayana. Besides assuming a feminist perspective and providing illustrations for most themes of every chapter in the book, the author has also incorporated a unique facet to his idea of the story. In addition to the main plot of the story, the book has taken into account all different forms of Ramayanas recreated from the 1st century to the 19th century, especially versions made popular in South East Asia.16 He presents this by concluding each brief chapter of the book with a box that provides varying accounts of a particular incident that took place in that chapter. Thus, through this myriad information, it is possible for the reader to get an insight into different versions of the story that are not widely popular.

Appraisal & Criticism:

The reviews for Pattanaik’s work have met with both high appraisals and criticisms. The book has been successful in beautifully encapsulating the detailed events that led to the creation of the entire story and hence, despite its feminist approach mostly through Sita’s eyes, no chief aspect of the story has been excluded. The book has also been commended for expressing vividly the emotions of every character in every episode of the narration. This has been achieved by using the style of writing that involves dialogues and direct conversations between the characters. Another positive attributed to the story is the simplistic style of writing that has been achieved by

14For instance, the Iliad, the Odyssey, the Bible, the Mahabharata. Also, Shakespeare was not kind to women in his work of literature ‘Taming of the Shrew’. Socrates was unfair to women. Buddha abandoned his wife and child to find ‘freedom from suffering’. Shankara and Ramanuja and other Vedanta acharyas saw women as temptations. Confucius saw women as subservient to men. 15 MANISHA PANDE, 'In world of patriarchal epics, Sita had extraordinary powers, says mythologist Devdutt Pattanaik' DNA INDIA (New Delhi, November 26, 2013). 16 INDO-ASIAN NEWS SERVICE, 'Book Review: Understanding the Ramayana through Sita’s eyes' THE INDIAN EXPRESS (New Delhi, 2014).

scripting short chapters specific to small, albeit chief, incidences. By avoiding a convoluted take on the story, Pattanaik has made the story gripping for even readers who might otherwise not be interested in Indian mythology. Most of all, the book has received accolades for presenting an enormous amount of information by summarizing stories and portrayals of Ramayana from all over the world.17

However, critics have also looked upon these alternative folk stories and narrative variations that Paula Richman, who specialises in the study of the Ramayana, has spent decades gathering, as “distracting factoid boxes” that destroy the key essence that Pattanaik has attempted to provide to his form of the story.18 According to their analysis, Pattanaik places the complexity of the living text derisively amidst his supplementary narrative, almost as if he fears causing offence to an imaginary unquestioning devotee.19 In other words, although made to appear like it centres on Sita’s life, the book has more than the necessary number of sub-plots and sub-themes which distract the readers and dilute the main narrative. Another angle which comes under attack is the author’s claim of feminist methodology to the story. The book has been categorised as yet another contemporary, and fast-growing, attempt to retell an epic from a woman’s eyes, but has simultaneously been criticised for not matching the standards set by other such sub-genres, for instance, ‘Palace of Illusions’ written by Chitra Banerjee Divakaruni.

Relevance to Traditional Cultural Expressions:

Regardless of whether the interpretation of Pattanaik’s work has been done in a positive light or negative, it remains a fact that this piece of writing makes for a classic example of what might be considered an illustration of traditional cultural expression. The demonstration of many oral, visual and written retellings composed in different times, in different places, by different poets, each trying to solve the mystery of Ramayana in their own way, reflects the sentiments, principles, ethics and beliefs of the community to which they belonged. It mirrors the culture, identity and heritage of traditional or indigenous communities that interpreted the theme of one epic, Ramayana, in a thousand different ways.

17 Id. 18 TRISHA GUPTA, 'Book Review | Sita: An Illustrated Retelling of the Ramayana' LIVEMINT (New Delhi, 2013). 19 Id.

Cultural Authenticity in Traditional Literature: Idea-Expression Dichotomy in the Intellectual Property Regime

A reader always seeks to gain an insight into the truth about the subject matter of a work of literature and thus, the author(s) must have a sense of openness and willingness to explore how folktales and mythologies can be shared among people accurately and authentically. In this regard, consider the idea-expression dichotomy that is widely popular in the intellectual property regime. Intellectual property protection plays a role in the domain of expressions of folklore by enabling communities to market artisanal products, commercialize their tradition-based creations and strengthen their cultural diversity. It also assists in certifying origin of arts and crafts through certification trademarks and combating the passing off of fake products as authentic through the laws of unfair competition, for instance.20In the context of Hindu epics communicated through cultural expressions as elaborated above, the central story of Ramayana is an idea that has been reproduced by different communities in their own wayswhich isdesignated astheir individual expression. It is only when the idea is expressed in a protectable form that it can be granted a copyright. Therefore, it is not the idea but the expression which is protected. Different renderings of the Ramayana principally recount the narrative of Valmiki, but there are versions that emphasise peripheral stories and philosophical expositions. Aside from versions retold in Sanskrit, there are regional, foreign and contemporary accounts of the epic that are depicted through forms like screen, stage, music and even comic series.21 Illustratively, thematic adaptations such as Khmer shadow theatre of Lkahon, Mapilla songs of the Muslims in Kerala, tradition of Yakshagana and Wayang shadow puppetry of Indonesia interpret the Ramayana through different perspectives specific to their culture.22 For instance, the Buddhist version is prominent for depicting Ram and Sita as two siblings who get married. The rationale behind this may be found within early Buddhist literature that depicted sibling marriages as a common symbolic imagery to exemplify purity of a dynasty.

In my opinion, the question of authenticity of literature in this regard must be directed only towards the earliest and original version of the Ramayana as produced in Sanskrit by Valmiki. Academicians, experts and enthusiasts have been deliberating since time immemorial about

20Supra note 9. 21 BANERJEE, MANALI, "The Ramayana as Ravana saw it" HINDUSTAN TIMES (New Delhi: HT Media 2011). 22 "A Different Song" THE HINDU (New Delhi, August 12, 2005).

whether Ramayana is indeed a true history. Regardless of how opinions differ, the fact remains that the present does not have a definite answer on the authenticity of that piece of literature, and the future might never be able to prove it either. Thus, to question the legitimacy and veracity of the countless versions of the Ramayana produced all over the world does not do justice to the purpose and ambition behind creating these culturally opulent forms of literature on which the indigenous and folkloric structure of a society rests. Recognition and acceptance of the countlesstraditional expressions helps us understand how different cultures interpret the same story. Hence, it grants an opportunity for the people to draw comparative analyses of different cultures that ultimately is the key to progressing in the field of social sciences.

Conclusion

The impetus for creation of artwork remains important in ceremony because it makes for an important step in the preservation of important traditional customs. It occupies the normal part of the daily activities of the members of a particular tribe and also represents an essential art of the cultural community of the tribe. Traditional cultural expressions are produced and maintained, not as an end or a product in themselves, but rather as a part of the cultural activity and sustainability of a particular traditional and indigenous group. If Karma constitutes the central idea of Mahabharata, Ramayana focuses on Dharma, which is defined as human potential, and not righteous conduct. It signifies the superlative of what may be achieved by humans in a world where the context is always changing, standards are always changing and everyone has diverse views on the same issue. Modern thoughts are based deeply in scientific testimonies and hence, are primarily rational and universal. Consequently, the legitimacy of the existence of Hindu epics is widely questioned. Perhaps if the idea that Hindu mythology is steeped in Western thought, which is strongly shaped by Greek mythology and biblical mythology, is recognised more extensively, there will be further acceptance of the authenticity of these literatures. Just as there are diverse versions of the same story of Ramayana, there are varied opinions on its expediency. However, human cultures over the ages have experimented, innovated and developed different styles of Indian epics. They have become more than a repository of the knowledge of dharma, and reflect human understanding, culture, art and expression of love. The purpose behind developing stories, dances, music, art and shows based on one theme is not to invite a set of

opinions on whether it is right or wrong to do so, rather it is to generate a sense of tradition, belonging and custom to a cultural assemblage. In conclusion, while Hindu epics are a definitive manifestation of forms of cultural expressions, initiating an inquiry into their roots is equivalent to encumbering the traditional and heritage growth and ornamentation of a society. Traditional knowledge and its forms of expressions must be seen as an inseparable whole.