The outbreak of this pandemic accompanied a lot of problems in day to day life. This pandemic has brought us into a new normal. This 'new normal' has its majority existence working through online platforms. One such area deeply affected by the present situation and hotly debated in recent times is the issues of e-newspaper. At various places, the disruption regarding the physical disruption of newspaper has seen an increase in the use of e-newspaper, mostly available on the official website of the newspaper. The free forwarding of e-paper has been met by stiff resistance by the newspaper companies. This resistance was displayed by a local Hindi newspaper, Dainik Bhaskar [i], in its report which clearly cautions the readers, more specifically the group administrator of Whatsapp, not to circulate the e-paper PDF in groups, to which stringent action can be taken. This claim came as a surprise, with different opinions on both the side of debate. Several other online platforms like free press journal [ii], came up with another piece that sharing in PDF or any other form of paper is not an illegal act. This double opinion created confusion among the readers. The central organization of the Indian Press, Indian Newspaper Society (INS), gave a clear explanation that there is no problem to circulate the PDF Files which are free but there can be concern over copying a PDF from a paid e-paper. Two aspect of copyright which becomes very important in this scenario is that of first sale doctrine and implied license.
Implied license and the First sale doctrine.
There are instances where various practices on the internet are challenged, creating a conflicting interest between the user and creator. This conflict can generally be resolved through the mechanism of the implied license doctrine, permitting reasonable practices. This area of copyright has been consistently being put under challenge in the wake of the technological development. This development undoubtedly has increased the ambit of copying and transmitting the digital copies. Due to the nature of such infringement, it becomes impossible to have a just solution for such interest. Implied license doctrine, tries to give a just solution by allowing a reasonable exploitation of the work by one party providing an implicit consent for such use. Some arguments were also raised regarding the first sale doctrine application in the present context. First sale doctrine, more precisely, the exhaustion of right doctrine works after the lawful copies of the work have been distributed by sale or other transfer. But the stark difference arises out of the limitation in first sale doctrine which is generally limited only to dispose the original copies, not allowing any other manipulation. Implied license, on the other hand, gives the right to use the copies of the work in a manner feasible, the consent being implied [iii]. Can this implied license be taken as an exception for distribution the PDF files? The answer seems to be in both the sides. The aspect totally makes us agree on the point that the implied license is broader and much flexible, giving wider range of action over the copy. This wider range of action is subject to standard of reasonability. Will this standard of reasonability depends upon the contractual commitments between the parties? If yes, then one can conclude that implied license will only work when there is a contractual relation between the parties, which is not. Even if there is no contractual commitment between the two parties, implied license still persist. But this implied license will only work till the time there is no contractual commitment which clearly specifies the opposite. Therefore, if there is any contract which strictly specifies regarding not to transmit the digital copies further, the person ceases to have an implied license for forwarding the e-copy. Even if the implied license does provide an implicit consent to use the copy in a reasonable manner, it becomes limited as soon as there will be a contractual commitment clearly specifying not to forward [iv].
Copyright act and Information Technology act
Every newspaper has its own copyright over the content as it is their own expression, the idea remains the same. Giving the argument of free speech and the public dissemination of news, which is by default the primary aim of the newspaper, cannot take over the copyright issues under this condition. The relatable confusion does arise over the interplay of Copyright act 1957 and Information Technology act 2000. Many platforms talked about the liability of the Whatsapp group administrator in case there is forwarding of content. There can be no dispute over such an aspect which is already been settled by the court. In Ashish Bhalla vs. Suresh Chawdhary[v], the Delhi High Court ruled that the Whatsapp group administrator is not responsible for the content posted on the group by others. It was a welcome move by the Delhi HC, stating that no one can be held liable for something to which he or she has no control. This is similar to making a manufacturer of the newsprint, on which defamatory statement are published, liable for defamation, even if he or she has no hand in making that defamatory statement. Hence, making group contender liable for this will not be a good idea, as contended by Dainik Bhaskar.
The arguments regarding the Information Technology (IT) act also does not hold good. The Section 79 of the act talks about the exemption from liability of intermediary in certain cases, for any third party information, data or communication. The intermediary in the present case is the social media platform on which the content is forwarded. If we read section 43, it talks about the penalty for damages which occur by accessing or even downloading data from computer. On the other side, if we read section 66B, it also talks about the punishment for dishonestly receiving computer resources. But both the act supplements itself with the word, like 'without permission' or 'dishonestly'. In neither case, the liability of IT act will apply to any of the member of group, since even if the person downloads either freely or by accepting the terms, both instances can't be termed as 'dishonest practice'. But if we read proviso to section 81 of the act, it clearly specifies that this act will not restrict any person from exercising any right under the copyright act or patents act, which ultimately gives an ample scope to newspaper authorities to defend their arguments, leaving less scope for the IT act to interplay.
Talking about the copyright act, some section can be very important for this discussion. Reading section 52(1) (a) (ii) & (iii) provides us with the exemption from infringing copyright if there is a fair deal of work for the purpose of criticism and review or for reporting current events or current affairs. This way copyright does provide an exemption from the infringement process. The same section also provides other instances in favour of newspaper authority. Section 52(1)(c) says that transient and incidental storage or work for the purpose of providing electronic links, access or integration, where such links, access or integration 'has not been expressly prohibited by the right holder', will be exempted from copyright infringement. This section expressly mentions that the storage of a work, for providing electronic link, access or integration will be exempted from the infringement unless there has been an express prohibition by the right holder. Hence, this become crystal clear that if the e-papers come up with a disclaimer, agreeing to which it will be downloaded; section 52(1) (c) ceases to apply. The user will not get benefit of section 52(1) (c). Nevertheless, the user can get benefit of section 52(1)(a)(ii) &(iii), if it can be proved that this forwarding is for the very purpose of criticism or review, which seems impossible in all instances.
Some of the newspaper like The Statesman or The Hindu's e-paper comes up with its terms of not sharing this paper with anyone. Well they also specified that this condition will not apply for purpose of initiating discussion and expressing opinion, thereby giving scope of Section 52(1) (a) (iii) of the copyright act. As soon as the user downloads the e-paper of any newspaper which already has a term of use, the implied license ceases to apply. The user can do anything except circulating it. But on the other side, if it becomes freely downloadable copy, without any term of use, the implied license will act to the extent of even circulating it. This issue can be hotly debated as to what constitutes the 'extent' of implied license. However, in the present condition, this 'extension' is purely dependent upon the terms attached with the paper. It will be a mistake if we consider it as an implicit consent of the copyright holder.
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(Author is pursuing LL.M from Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur)
[iii]. Fischman Afori, Orit, Implied License- an Emerging new standard in Copyright Law, Vol. 25 (2008): 275-325.
[iv]. Renee Zmurchyk, Contractual Validity of End User License Agreements, Appeal: Review of Current law and law reform, Vol. 11 (2006); 55-72.
[v]. Ashish Bhalla v. Suresh Chawdhary, 2016 SCC Online Del 6329