Memes, Reels, And Fair Use: Why Indian Copyright Law Needs A Social Media Amendment

Introduction

Memes and Reels have become the most used part of today's social media platforms. A meme refers to a video, image, or audio depicted in a humorous manner that is shared between different people on internet. Whereas, Instagram reels or YouTube Shorts refer to short videos ranging from five seconds to three minutes, much like TikTok, made and uploaded on the said platforms. There are many types of reels such as trends, educational tutorials, product demos, story times, skits. The central aim of such social media content is to attract views, form engagement and convert it to sales. Both of them have become an undeniable part of the internet culture and have connected people across countries. They are concise, sharp, and small, pieces of content that have woven itself into the fabric of online connection.

According to a Meta Study, in India, reels are the most widespread video platform used by people. This study took over thousands of people's opinion across India, and it was found that around 95 percent of the people watch reels every day. Reels or Memes are essentially comedic clips shot and uploaded for gaining virality. It is undisputed that a person or brand's social media presence can boost engagement and marketing to this extent. However, this often hits the wall. Content that is created based on borrowed music snippets, song hooks or signature lines, slogans, vanishes instantaneously due to strikes and removals. Celebrities, music labels, and, film production houses protect their content aggressively. This often affects digital content creators whose livelihoods often depends on producing content.

Background on Indian Copyright Law and Fair Use

Copyright Act, 1957 is the central legislation dealing with the copyright regime in India. This is a post-independence law which replaced the British Era's Indian Copyright Act, 1914. The Act protects original artistic works such as literary, dramatic, musical performance, cinematograph films, and grants rights of production, dissemination, public performance. The essential feature of “fair dealing” is enshrined under Section 52 of the Act. This section enlists specific acts that do not constitute infringement of copyright. The American copyright legislation uses the doctrine of “fair use” which is much broader. Indian copyright law's fair dealing is narrow and exhaustive. It only authorises the use of copyrighted materials for private or personal use, criticism or review, reporting of current events, research or private study. Moreover, Indian courts analyse the fairness case-by-case and consider factors like purpose and market impact. This is derived from the American precedent of Campbell v. Acuff-Rose Music¹ which analysed the above two factors and held that parody is a fair use. The Indian Copyright Act has been amended various times such as in years 1983, 1994, 1999, 2012, 2013, and most recently in 2021. The 2012 amendment continues to be the most significant as it has aligned India with international treaties and enhanced performer rights including moral rights such as identification and integrity. It also expanded fair dealing under section 52 to include more works such as films and sound recordings for personal use and added exclusions for disabilities and education. Thus, the ambit of fair dealing was amended significant. Important judicial developments under the copyright regime include R.G Anand v. Delux Films² where the Apex Court held that copyright protects expressions and not ideas. Moreover, the infringement must be substantial and material replica of the original expression, a slight similarity is not adequate. In the context of parody, the case of Civic Chandran v. Ammini Amma³, the High Court of Kerala held that a satire play that copied substantial parts of another play was fair dealing and not infringement. Thus, this case brought a balance between copyright and free speech. Moreover, courts have often linked fair dealing with the fundamental right to free speech under Article 19 (1)(a).

The Doctrine of Fair Use in Copyright

The Doctrine of fair use is a key feature in United States, it allows a controlled use of copyrighted material without the permission of rights holder, thus, balancing creator's rights with public interest. This doctrine is enshrined under section 107 of Copyright Act of 1976. Fair use is permitted for the purposes of criticism, comment, news reporting, teaching, scholarship, and research. This promotes freedom of expression and prevents stringent copyright boundaries, as such a circumstance would hinder critiques, education, and innovation. The principle originated in the nineteenth (19th) century and has since served as a flexible defense against infringement claims. American courts use four factors to determine fair use on a case-by-case basis. Firstly, the purpose and character of the use is analysed. Courts favour not for profit, educational, or those uses that add a new meaning or expression to already existing material over profit- or money-making uses. Secondly, the nature of copyrighted work is analysed. Thirdly, the amount or portion of the use is considered. It is preferable to use modest portions rather than using the heart and essence of the work. Fourthly, the impact on market is considered, this serves as the most crucial factor as it assesses the harm on market.

Gaps and Conflicts in Indian Law

India's copyright law on the contrary uses the doctrine of fair dealing under the provision of section 52. This doctrine often tussles to adapt the new age technology and social media content. Fair dealing in India is limited to specific purposes like private use, criticism, review, research, or reporting current events. This has left minimal space for humorous or satirical memes or reels. Many reels especially in India feature snippets of Bollywood movies such as dialogues or music. This is either present as it is or overlaid with skits. It is imperative to note that memes or reels rarely fit in the binary of “criticism” or “review” especially if most memes/reels are meant for entertainment or non-commercial purposes. Courts have usually interpreted favourably allowing fair dealing. However, section 52 of the act has provided an exhaustive list of fair dealing which does not fit in the current contemporary social media landscape. YouTube and Instagram use systems like Content ID to upload their content without enough contextual review. This results in right holders to trigger mass claims and leads to an overreach. At the end, creators face loss of income through demonetization, removal of content, strikes, or deletion/ban of social media channel. This imbalance has favoured large entities. Companies strictly supervise the use of small snippets even in short-form content. This has disincentivised regional and small creators from producing content. Moreover, putting this into perspective has also harmed the golden right of freedom of speech and expression.

Need for a change

According to a Boston Consulting Group's report “From Content to Commerce: Mapping India's Creator Economy” found that over two million content creators monetize their content and influence billions in consumer spending. The social media landscape is projected to exceed a trillion dollars in consumption spending by 2030. However, the outdated provisions of fair dealing under section 52 of the Indian Copyright law threaten this growth due to legal uncertainty. Thus, an amendment is necessary to protect free expression and speech under Article 19 (1)(a) of the Indian Constitution. Arbitrary copyright strikes harm millions of creators, and fair use must not be equated with piracy. Moreover, millions of Indians have made a livelihood out of content creation and the same should be decided by law rather than algorithms. Thus, in light of this, it is proposed that section 52 of the Act be expanded to make it more social media friendly and introduction of a provision regarding digital fair use to align it with the current digital landscape and legal framework. It is also proposed that a review is undertaken before taking down or removing of content. The nature of content creations and artistic work which is created or generated nowadays is different from traditional forms of artistic works like writing a book or poem and hence, has not been accounted for in previous laws and amendments. As there is a fine line between fair usage and infringement of copyright law, a social media amendment is a need of the hour, and the first step is to expand section 52 of the Act to cover transformative and short duration uses.

Footnotes

1. 510 U.S. 569 (1994).

2. 1978 AIR 1613.

3. (1996) 16 PTC 329 (Ker.)

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