THEME: SPECIAL EDITION ON INTELLECTUAL PROPERTY, ENTERTAINMENT AND MEDIA LAWS
IMAGE RIGHTS OF FAMOUS PERSONS VIS-À-VIS RIGHT TO PRIVACY: AN ANALYSIS UNDER THE INTELLECTUAL PROPERTY LAWS IN INDIA AND OTHER COUNTRIES
Akanksha Jumde & Nishant Kumar
Emerging as an interesting legal trend in India, Publicity or Personality rights of celebrities are contributing to the development of Indian Entertainment law, thereby establishing the need for legal scholars and academics to study the implications of these unique rights. Publicity Rights have their origins in other common law jurisdictions and arose in response to the presence and influence of the cinema industry. Primarily derived from the right of privacy, publicity rights in India have arisen mainly out of judicial precedents related to unauthorized usage of the various aspects of the celebrity persona, whose appearance or likeness have been unduly exploited for commercial gain by advertisers and brands alike. Unfortunately, the current Indian intellectual property regime seems insufficiently equipped to deal with this issue and its consequences. Judicial decisions in this area have been sporadic, leading towards the need to develop more lucid statutory language for enforcing this right and possibly, a distinct regime of publicity rights. With the ever increasing recognition afforded to publicity rights in courts across jurisdictions, the author aims to focus on answering some of the above mentioned questions with the hope that they will culminate in a response to address the question of whether we need a separate rights regime for publicity rights or whether the existing legal infrastructure proves sufficient. The author concludes that Indian approach to publicity rights is constitutional rather than commercial, and, similar to more developed jurisdictions such as U.S., a dual approach needs to be adopted for better enforcement of publicity rights. There is therefore, an urgent need to recognize persona as a commercial rather than right of human dignity.
Celebrity rights are exclusive rights which are different from other rights. It is more of a property right than a personal right which each celebrity enjoys. The increase in consumer’s demands and role played by media has not only led to development of entertainment industry but has also increased the craze for the celebrities. The enthusiasm among the public to know more about the celebrity brings in a question of protecting the right of the celebrity. Considering the celebrity right as a property, it becomes susceptible for unauthorized trespass. The paper tries to study the various aspects of celebrity rights especially focusing on Indian perspective vis-à-vis the laws existing in other countries. The method opted for the study is descriptive analytical in nature and depends mainly on the secondary sources of information which include books, articles, Acts etc. Thereafter, it seeks to identify the existing gaps in our legal regime and suggests areas which require more protection so as to strengthen the current legal framework in India in this regard.
AN UNDERSTANDING ON COPYLEFT AND ENFORCEABILITY OF SUCH LICENSE AGREEMENTS
Copyright has one of the most fashionable legal tool of recent time. Every author tries to create a monopoly over his/her work. Copyright law has gone through a series of changes to become author friendly and granting sufficient rights to authors over their work. While the copyright law was gaining confidence, there were a group of people who were not very excited about these rights. They believed in distribution of work and collaboration between authors for better community. They revolted against the copyright law by creating something called copyleft. Copyleft is a philosophy where the authors believe that their work should remain free and everyone should be able to gain access to their work, use it, modify it and redistribute it. They used the existing copyright regime to convert it into a dispense rights rather than curtail them. In this paper, I have tried to present an overall understanding on what is copyleft and then compare it with the existing copyright laws. At first instance it seems that copyleft is opposite to copyright but I have tried to present how copyleft works within the copyright regime and not against it. The copyleft has not been legally recognised through a legislation, thus creating a doubt a on its enforceability and validity. I have tried to present a compilation of different laws and cases which would elaborate how copyleft agreements are valid contracts and can be enforced under copyright law sand contract laws. Establishing copyleft agreement as a valid contract would provide the licensor and licensee more trust and belief in the philosophy and help them gain certainty for the protection of their rights. Copyleft is a Marxist approach to combat the proprietary software models to break the girdle of monopoly and provide and spread knowledge to the masses.
FAN FICTION AND THE FAIR USE DOCTRINE UNDER COPYRIGHT LAW
Fan fiction is not an entirely new concept but it has certainly been reinvented and pushed to the forefront in this digital age. The world as we know it has changed tremendously in leaps and bounds with the evolution of internet; but changes in law haven’t always followed in as rapid a succession. Internet is a platform that brings together people with similar interests and ideas. This means that traditional means of fandom communication such as ‘fanzines’ are now out-dated and replaced by ‘fan sites’. It is not unusual for one to watch a movie or a TV show or read a book and feel that certain aspects of it could have gone differently; when these feelings are reproduced in the form of writing it becomes fan fiction. Fan fiction incorporates the characters, the setting, and the environment of the original work. The author of fan fiction uses the original storyline as a backdrop for his/her work. This use can be considered an infringement of the intellectual property rights of the original author, in particular the copyrights of the original author. Copyright law has been formulated in order to protect the creative and economic interest of the original author. While fan fiction for long remained obscure and in background and was allowed to develop without much hindrance from copyright laws. The thrust that internet has given to it has resulted in it being pushed to the mainstream and its wide spread prevalence means that it can no longer be written off and pushed to the side. While fan fiction has traditionally been written and published for no charge, there has been a recent increase in the number of fan fiction works that are commercial and written for profit. The question before law is now to decide how much of the original work should be protected under the ambit of copyright laws in order to ensure that the original author’s creative and economic interests are protected. The law also needs to ensure that its presence in the form of copyrights do not hinder the development of creativity in the society. It is also important to note that most works which garner such interest and fan activities are those which belong to the sci-fi or fantasy genres. The article is divided into seven sections (or headings), first of which introduces the topic. Second explains the meaning as well as the history of fan fiction, the third section explains how authors of fan fiction have changed their mode of publication form fanzines to websites and blogs on the internet and the role that mass media plays in fan fiction. The fourth considers the new species of fan fiction i.e. commercial fan fiction and its impact on copyright law. Next section explains fan fiction with respect to one of the more widely phrased copyright law, that of the US. Section 107 of the Copyright Act of the US, deals with the Fair Use Doctrine, which is an exception to copyright infringement. Similarly, the Indian Copyright Act, 1957 has Section 52 which details acts which do not fall within the purview of infringement of copyright. Section 52 has been discussed in the sixth section of the article with a brief historical run down of the copyright law in India. The last section sums up various aspects that have been discussed in the article and presses on the need of a suitable law on fan-fiction balancing various conflicting interest.
RIGHT TO BE FORGOTTEN: A CRITICAL AND COMPARATIVE ANALYSIS
Shreya Bansal & Deboleena Dutta
Data in the internet age irreversibly records the digital footprints of data subjects as well as their shadows giving it the power to exponentially circulate the data once uploaded on the web. There has been a recent desire expressed by the politicians, the legal practitioners, the researchers and the scholars for a need to recognise the right to be forgotten as a conjecture of the natural human right of right to privacy conferred upon every individual in this digital age. The foundation of the right to be forgotten was laid down in the European Union. The entire trajectory of the erasure right, from the conception to the legal framework, is of utmost importance to put in perspective the importance and necessity of the right. The United States has critiqued it openly, despite having the underlying essence of this right in various judgements. United States, being a strong proponent of freedom of speech and a vocal opponent of censorship, is trying to find a place for right to be forgotten that does not infringe upon any of its central values. There is almost a spectrum whose one end talks about personal dignity reflected through the ideals upheld by E.U. laws and the other end is the overt stance of United States, which respects liberty and freedom of an individual the most. Considering the two ends, it is difficult to position India because of its conflicting judicial decisions and an ambiguous stand on right to be forgotten. However, the recent right to privacy judgement has opened avenues for the creation of explicit laws on right to be forgotten. It is now widely believed that the individuals must have the right to erase the information available on the internet related to them, which has the potential to damage their reputation and past actions which can scar the present and future life prospects. Criticism has been raised that this right is in direct conflict with the two essential rights, i.e. right to free speech and expression, and right to information. Thus, it is imperative to draw a fair balance between these inconsistent rights by means of an appropriate regulatory mechanism.
The digital age has changed the trend from forgetting things to remembering things permanently and our digital identities are shaped by the online interactions leaving behind permanent digital footprint. In the early days of the internet, people were concerned with the technical details of sharing information. Now, people are concerned with the removal of their personal information. As of now an individual has control over his or her own words, images, videos from digital records but the question arises with regards to the removal of information which isn’t under the direct control of an individual. This question can be answered by introducing the right to be forgotten as recognised by the European Union and few other countries. This paper in the various chapters it is divided in deals with the origin, the relation between the right to privacy and the right to be forgotten, the conflict between freedom of speech and this right, various data protection measures in India, the need for right to be forgotten. However, erasing the digital footprints from the data stores of private companies like Google, Facebook and other internet archives becomes significant. This paper will bring out the need for the introduction of the right to be forgotten through which a request can be made to these companies to delete such irrelevant and outdated information about any individual. Countries like European Union, Spain, United States have partially accepted this right and the Indian judiciary has accepted the right to be forgotten in certain cases. The European Union being the first country to have accepted it has incorporated it in the form of directives and data protection policies. This article brings out various bills for the protection of sensitive personal data that is debated in India. This paper brings out the brief discussion of the right to privacy case (Aadhaar case) and the other case in Karnataka High court through which the right to be forgotten is creeping into Indian Law. This paper, briefly analyses the case, Mario Costeja Gonzalez v. Google Spain SL & Google Inc. where the European Court of justice first recognised the right to be forgotten. The contrast between the European Union and the US traditions of data privacy are brought out. The question regarding the extent of applicability of this right is also addressed in this paper as the complete acceptance of this right would lead to censorship of information available online which would lead to abuse of the right. Therefore, suggestions regarding various other alternatives that the search engines could take such as de-ranking system to protect personal details of an individual being shared by another individual from public access are discussed. This paper covers mainly, the reasons and the form of acceptance of the right to be forgotten, the fine tuning that is required in implementing this right and the extent up to which it would be acceptable in the Indian scenario.
Dominance and monopoly have never proved out to be beneficial for the end consumer in any market; similarly, the present scenario prevailing within the media industry is that of leverage and mastery of some behemoths of the industry over the commodity called “Information”. The congestion caused by the influx of various media outlets and channels for the dispensation of information from various forums and sources has been the result of the supremacy of some few organizations exercising what has been termed as cross mediaownership. This paper analyses this phenomenon of monopoly and the ownership pattern of such organizations and shows how they are connected to the political and business worlds and what influence this has caused upon them. The media is often referred to as the fourth pillar of democracy which separates the grain from the chaff for the common masses in order so that they can conceive in their opinions and participate in the democratic process of debate but when the media which is the ultimate information source is bent then it results in serious ramifications adversely affecting the democratic setup of the nation. This paper elucidates that how the control mechanism in the hands of a few individuals from the upper echelons of the society blur the public perception and promote misconception. The research also seeks to understand the trends in cross media ownership and its corollaries. Showcasing the hazards of such trends in a democratic country the paper establishes the need for a statutory regulatory mechanism which is requisite in order to curb the menace of this evil. The paper also suggests ways by which the concerned authorities can exercise their powers within the law in order to put in place and regulate this extremely significant sector of an intrinsically democratic nation like India without hampering its functioning and also without violating the fundamental right of free speech.