Introduction
The recent decision of the US Supreme Court in the Google v. Oracle[i] (hereinafter referred as “the Google decision”) has brought the discussion on fair use exception to the forefront of the copyright discourse. In 2005, Google acquired Android and to allow millions of programmers familiar with Java programming language to work on its Android platform, Google copied roughly 11,500 words of code from Java SE Program. Oracle America sued Google for patent and copyright infringement for Google’s use of Oracle Java’s Application Programming Interface (API) in its android software. API enables programmers to call upon prewritten computing tasks for use in their own programs.[ii] The case has been pending before the US judiciary since 2010 and has been considered as a watershed moment with regard to copyrightability of software programmes, but Justice Breyer delivering the opinion of the court had narrowed down the issue to whether the fair use exception is applicable to the API code of Java SE, the copyright of which was owned by Oracle America. The Court upheld that the copying of several lines of API code by Google for developing the Android platform can be considered to be permissible fair use. The Court relied on the four-step test, provided under Section 107 of the Copyright Act[iii], to come at this conclusion. The test lays down that in determining whether there is “fair use” of a work, four factors namely, (i) the purpose and character of the use, including whether the use is for commercial purposes or for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work, are to be taken into consideration. After analyzing the four-step test to determine the fair use exception, it was held that the ‘nature of the work’ supported the fair use principle since Google had used the copied APIs to create newer expressions and based on the ‘purpose and character’ test, the use was deemed to be transformative in nature since the programmers had used the code lines to create new creative expressions suitable for the Android platform. Applying the ‘amount and substantiality of the portion used’, it was acknowledged that the portion of code copied is significantly small when compared to the whole. Lastly, it was held that the smartphone application by Google did not cause market substitution for Java SE, but instead provided different market opportunity to Oracle, hence the copying of the code by Google did not have ‘any effect on the market for or value’ of the Java SE. Thus, in essence, the Court recognized the societal importance of the copyright law by upholding the legitimate rights of the users of copyrighted works in creation of newer works.
Obscurity of the Rights of the Users in the Copyright Discourse
The debate revolving around rights of the copyright holders vis a vis rights of the users has been in deliberation from the very inception of the copyright law, but unfortunately in drafting of the copyright law, users have often been ignored and sidelined. Copyright legislations, in general starting from the Statute of Anne 1709[iv] have consciously avoided recognizing users of copyrighted works as a stakeholder. But study of the legislations would indicate that, being a statutory right, copyright has always been considered as a restrictive right granting certain privileges to the copyright holders in terms of exclusive economic rights for a specified period of time. An example of this can be seen in the Statute of Anne wherein the exclusive right of copying was granted for an initial period of 14 years, subject to registration and submission of few copies to the public libraries.[v]
Even though there has not been any specific mention of users’ rights or privilege but judicial decisions have recognized the restrictions/ limitations imposed on the rights of the copyright holders as a mechanism to promote scientific, social and cultural progress in society. The House of Lords in the very first case on copyright law – Donaldson v. Beckett[vi] had categorically held that there was never any notion of literary property in common law and the grant of statutory rights were subject to prescribed limitations. Recognising the relevance of users’ rights, Baron Perrott J. had observed that a purchaser of a literary work, not only got the right to own the paper and ink, but he also got the right to use the ideas as mentioned in the literary work. The US Supreme Court has also in several decisions recognized the social welfare goals of copyright law towards fulfillment of the constitutional mandate to ‘promote the Progress of Science and useful Arts’.[vii] In the early case of Mazer v. Stein,[viii] it was recognized that the ‘economic philosophy’ behind extending exclusive rights to the authors under the copyright law was the most effective method to promote public welfare. In the leading case of Eldred v. Ashcroft[ix],the Court specifically spoke about the importance of users’ rights in the copyright discourse. It categorically held that the copyright law is not a mechanism to create knowledge monopoly. On the contrary, it allows the users of a copyrighted work to make use of any fact or idea which they may acquire from the work. The copyright law has granted specific rights to the users to use the copyrighted work in activities such as criticism, comment, news reporting, teaching, research etc. According to Justice Breyer, users of copyrighted works are often referred to as readers, music lovers, writers, researchers, teachers, historians, journalists, database operators etc.
Recognizing Fair Dealings as Users’ Rights under the Indian Copyright Law
The Indian judiciary has always recognized the importance of Section 52 of The Indian Copyright Act 1957[x] as an integral part of the copyright law. Section 52 has recognized certain usages of copyrighted works which if performed by the users will not be considered as copyright infringements. The specified usages are outside the scope of exclusive rights enjoyed by the copyright holders and the courts have recognized that these limitations on the scope of copyright protection is necessary to promote free speech, liberty of thought and expression and encourage the development of intellectual and creative thinking in men and women. Even the Indian Parliament had specified the necessity to recognize user rights when it observed that ‘If a student wants to do research in copyrighted material, he cannot be charged. If somebody wants to do research in copyrighted material or wants to teach something, he cannot be charged.’[xi] Furthermore, the Indian Supreme Court in the case of Academy of General Education, Manipal v. B. Malini Mallya[xii] had stated that if a user uses a copyrighted work for a purpose which has been specified under Section 52 such as private use, research and teaching activities, criticism or review, then the same will not amount to copyright infringement. The Delhi High Court in University of Oxford v. Rameshwari Photocopy Services[xiii] had further clarified the legal position with regard to users’ rights – ‘if exclusive right to do something constitutes copyright, if it finds mention in Section 52, doing thereof will still not constitute infringement and the outcome thereof will not be infringing copy’. Thus, the above analysis clearly establishes that users’ rights with regard to copyrighted works have been acknowledged by the judiciary in different jurisdictions and the Google decision has further reinforced the same. But, the need of the hour is to establish the rights of the users in the digital space with regard to copyrighted works.
Impact of Digital Technology on Copyrighted Works and Consumptive Behavior of Users
In the last ten years there has been a steady transformation of users’ behavior with the rise of the internet and other forms of digital technology. In today’s world, consumption of various entertainment and cultural works like movies, books, music etc. have shifted from the traditional brick and mortar structures to digitized methods. Online music and video streaming platforms to e-books or audio books have become the more preferred forms of consumption of copyrighted works, but the application of users’ rights in the digital space has become a contentious issue. The changing concept of property and ownership in the digital space and the shift towards the licensing regime based on user registration and unilateral acceptance of terms of usage by the users, as imposed by the various service providers, have made the users extremely vulnerable and subjected them to various unfair terms of usage. In these digital platforms, by means of Digital Rights Management (DRM) technologies and anti-circumvention laws, users are often denied the legal protection which the judiciary had granted to them under copyright law such as first-sale doctrine, fair dealing etc. DRM is the protection of a copyrighted work by means such as encrypting or watermarking to control or prevent digital copies from being shared over computer networks[xiv]. While the anti-circumvention laws prohibit the circumvention of technological barriers for using the copyrighted work in a manner which is not allowed by the copyright holder[xv]. At the same time users’ behavior has also undergone changes in the digital environment from being merely passive consumer to pro-active participant in the cultural dissemination process through acts like sharing, liking, commenting etc. on the social media.
Conclusion
In these changing circumstances, it is important for us to re-visit the digital copyright law debate and advocate for strengthening the rights of the users in the digital space. The Indian Supreme Court in the Anuradha Bhasin v. Union of India[xvi] has recognized access to internet as an integral part of freedom of speech and expression. The citizens have a right to access the internet, and enjoy cultural works in the digital space. Therefore, it is important to ensure that the major copyright holders do not deny access to internet in the garb of protecting copyrighted works. The recent Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 has imposed the obligation on digital intermediaries, including social media intermediaries such as Twitter, Facebook, YouTube etc. to prominently publish the privacy policy and user agreement for access and usage of computer resources.[xvii] The Rules have imposed the specific obligation to adopt due diligence policies which will protect the copyrighted works on the social media platforms and allows the intermediaries the ‘right to terminate the access or usage rights of the users’ for non-compliance with their regulations.[xviii] The Rules have further conferred quasi-judicial powers on the intermediaries whereby they are required to dispose of the complaints within a period of 15 days.[xix] These statutory obligations provide the copyright holders with the authority to file complaints and initiate legal actions against users for unauthorized usages of copyrighted works. The users may be forced to comply with the diktats of these industry players in fear of termination of internet access. It is necessary for the intermediaries to apply various judicially recognized rights of the users, including the usages provided under Section 52 of the Act[xx] and exercise the adjudicating powers in compliance with statutory norms and principles of natural justice. In the absence of a balanced and neutral approach adopted by the digital intermediaries, there is likelihood of a chilling effect on the growth of user generated works in the digital space. In these circumstances it is important to specifically charter out the rights of the users such as right to access copyrighted works for academic and research purposes, fair use etc. so that digital users can access copyrighted materials without unnecessary restrictions and enjoy the fair dealing privileges. In the absence of such recognized set of rights, the digital users will become vulnerable to the arbitrary interpretation of the various rules by the different Grievance Officers appointed by the intermediaries and there will be lack of uniformity in the application of rules and regulations in society resulting in violation of rule of law.
[i] Google v. Oracle, No. 18-956, 2021 WL 1240906 (U.S. Apr. 5, 2021).
[ii] Id.
[iii] U.S. Code, Title 17, § 107.
[iv] Statute of Anne, 1710 (8 Anne. c. 19).
[v] Id.
[vi] Donaldson v. Becket (1774).
[vii] US Constitution Article I, § 8 cl. 8.
[viii] Mazer v. Stein, 347 US 201 (1954).
[ix] Eldred v. Ashcroft, 537 U.S. 186 (2003).
[x] The Copyright Act, 1957, § 52.
[xi] Lok Sabha Debates (May 22, 2012), Tenth Session (Fifteenth Lok Sabha), Vol. XXVI, No. 34.
[xii] Academy of General Education, Manipal v. Malini Mallya, (2009) (39) PTC 393 SC.
[xiii] University of Oxford v. Rameshwari Photocopy Services, (2016) SCC Online Del 6229.
[xiv]Juliana De Groot, What is Digital Rights Management?, Digital Guardian, Oct 15, 2018, https://digitalguardian.com/blog/what-digital-rights-management , last seen on Aug 2, 2021.
[xv] Pamela Samuelson, DRM (And, Or, VS) The Law, Communications of the ACM, Vol. 46, No. 4, (April, 2003), https://cacm.acm.org/magazines/2003/4/6847-drm-and-or-vs-the-law/fulltext , last seen on Aug 2, 2021.
[xvi] Anuradha Bhasin v. Union of India (2020) SCC Online SC 25.
[xvii] § 3, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
[xviii] Id. Section 3(1)(c).
[xix] Id. § 3 (2)(i).
[xx] The Copyright Act, 1957, § 52.
This article has been authored by Dr. Yashomati Ghosh, Associate Professor, National Law School of India University, Bangalore. She was assisted by Ms. Ridhi Gupta, student of RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.