Is It Fair (Use)? De Minimis As Defense In Copyright Infringement
Did you know that the song “Happy Birthday to You” that is sung indispensably at every birthday party was a subject matter of copyright and was claimed to be registered and owned by Warner/Chappell music and its affiliates dating back to 1935, which received millions of dollars as copyright royalties for the same. It was later in the 2013 that the issue was challenged and finally decided by the American courts in 2016 and the song came to public domain. Copyright vests even in the architecture of buildings at common places of public attraction and any photography of such buildings by a common passer-by or a tourist, attracts the payment of royalty to the owner of the copyright in the architectural design under Copyright Laws. But do such people actually pay royalty to the owner of such work of architecture for clicking picture of such building and is the owner entitled to demand such royalties or claim copyright infringement on such photographs or will it be construed to be fair use as an exception to Copyright Infringement? This article analyses these questions in the light of the principle of “De Minimis Non Curat Lex” (law does not concern itself with trifles and the law cares not for small things/ law will not resolve petty or unimportant dispute) and its admissibility as a valid ground of defense in matters of copyright infringement and how the Indian Courts have viewed this principle in its application to decide on issues involving copyright infringement claims
In the year 2011, when the defence of “De Minimis” was taken by the respondents in the case of Super Cassettes Industries Limited and Ors v. Chintamani Rao and Ors., in a combined order for interim relief with respect to three suits, the single bench rejected the defense and allowed interim relief of injunction on the grounds that just as the Copyright Act lays down the specific right vested in each party, the exceptions also are prescribed under the Act specifically and hence a general principle cannot be applied by the courts in the case in hand. One of the parties in the three suits, affected by the interim order preferred an appeal to the divisional bench of the Delhi High Court in India TV Independent News Service Pvt. Ltd. and Ors v. Yashraj Films Pvt. Ltd, [MANU/DE/3928/2012], in which the court, pointed out that copyright law invites the maximum trivial violations, as everyday activities, be it clicking picture of a sculpture or singing birthday songs on a birthday party, are instances of frequency with which minor violations of copyright takes place day after day, throughout the world, and that if each of such action is charged with infringement, the courts would be marooned with litigations only on such trivial violations.
The courts in India while adjudicating cases involving trivial copyright violations, have been very cautious and careful so as not to send an adverse message to the public that trivial violations are always exempted.
The Delhi High Court, laid down five factors for applying ”De Minimis” while adjudicating the matter, where a TV channel was sued for copyright violation by a Bollywood producer when the TV channel had broadcasted a chat show in which the performer/singer had sung a bit from seven songs in which the producer had copyrights. The court after referring to various foreign judgements laid down the factors to be considered on a case to case basis while applying the rule of De Minimis, viz:
(i) the size and type of the harm,
(ii) the cost of adjudication,
(iii) the purpose of the violated legal obligation,
(iv) the effect on the legal rights of third parties, and
(v) the intent of the wrongdoer.
In the above case, the court observed that the performances from the life of a performer could not be separated and in the natural setting of a chat show if she were to sing more than a wee bit, but not substantially the full songs, as long as the singing duration is limited to a minute or so at a time, it would be a case of De Minimis use, and hence the appropriation of the lyrics would not constitute an actionable violation of the copyright in the sound recording. However, the court also observed that where in case the same show had lesser amount of discussion with the performer, and more of singing songs, then the issue would have had to be dealt differently considering the change in intention of the broadcaster, which would be construed to broadcast the sound recording to the public.
Similarly, in 2013, in Saregama India Ltd. v. Viacom 18 Motion Pictures and Ors., the High Court of Calcutta while dealing with a question of copyright infringement in lyrics, wherein four or five words out of a famous Hindi song were rendered by the actor in the film, the Court held that there were no copyright over those four or five words, and that even by assuming that the rendition amounted to copyright infringement of the plaintiff’s lyrics, it had no impact, effect or loss caused to anybody and thus was construed as trivial, minimal and ignored by the court by application of the principle of De Minimis.
Recently, in 2019 the Delhi High Court in Super Cassettes Industries Ltd. v. Shreya Broadcasting Pvt. Ltd, the court relied on the five factors laid down by the divisional bench of the same court in India TV case (discussed above). The court perused the cue sheets submitted by plaintiff, and found that there was atleast 500 minutes of infringement, and hence the defence of De Minimis was not accepted by the court and further compensatory damages were granted in favour of the plaintiff.
While the Delhi High Court in the case of India TV rendered a detailed order as to the application of the principle/doctrine of De Minimis, one should also note the case of Super Cassette Industries Ltd. v. Hamar Television Pvt. Channel, (2011) wherein the single judge of the Delhi High Court, while observing that it is neither possible nor advisable to define the exact contours of fair dealing as the term is not defined in the Copyrights Act, summarised the broad principles to determine “fair dealing”, as below:
(i) It is a question of fact, degree, and at the end of the day overall impression carried by the court;
(ii) In ascertaining whether extracts taken from copyrighted work have been put to fair use, the extent and the length of the extracts may be relevant. Long extracts followed by short comments may in certain circumstances be unfair, while short extracts followed by long comments may be fair. In certain circumstances even small extracts, which are taken, on regular basis may point to unfair use of the copyrighted work.
(iii) While examining the defence of fair dealing, the length and the extent of the copyrighted work which is made use of, is important, however, it cannot be reduced to just a quantitative test without having regard to the qualitative aspect. In other words, enquiry ought to be made as to whether the impugned extract forms an essential part of the work of the person in whom inheres the copyright. This may be particularly true in the case of musical works where a few notes may make all the difference
(iv) The motive of the user shall play an important role in assessing as to whether injunction ought to be granted;
(v) Commercial use of copyrighted work cannot simplicitor make it unfair.
It would be important to apply the above principles for determining De Minimis also.
Most people, engage in trivial copyright violations, which if not for the doctrine of De Minimis, would technically be construed as a violation of law. Though the application of this doctrine is not widespread among the Indian judiciary, the same can be considered as easy and quick mode to resolve trivial copyright violation disputes before the court. However, the application of this doctrine, which on the face of it appears to be a subset of “fair dealing” needs to be ascertained on the facts of each case, for it is not just the quantity of violation that is taken into consideration but all the surrounding aspects including the intention of the violating party, circumstances in which the copyrighted work is used et all. Without discounting the fact that rampant usage of the doctrine without detailed analysis may lead to injustice to the copyright holder and dilute the very purpose of the Copyright Act, well founded decisions by application of the doctrine of De Minimis to the case in hand shall help in speedy resolution of cases possessing trivial copyright infringement issues.
Contributing Advisors
