Memes Vis a Vis Infringement of Copyright

In a country like India where social-media has become an integral part of life, every person having a multimedia phone is accessing one or more social media app. Over these social media the user shares content through internet. Among the various types of content shared over social media, ‘meme’ is one of the popular and commonly shared content. The process of creation or circulation of memes is made by the users, without bothering about, that devoid of permission of the person whose data is consumed for such memes it will amount to infringement of copyright.

The current work is doctrinal and investigation is supported by the documents and information available on internet. The objective of the work is to analyse the infringement of copyright through memes. 

Background

Due to the rapid competition among internet service providers in India, the data is now available at very low price and it has resulted in an enormous growth of approx 462 million internet subscribers in India in 2019. Out of these almost 250 million people are actively using social media platforms. These social media platforms, not only provide a user, to publish their interest through various contents but also it grant communication with many addressees

Among the varieties of content shared over the social media one is Memes, they are created on various topics ranging from current trend to political views. The term Meme was first time used in 1976, by a British evolutionary biologist, Richard Dawkins in his book named selfish gene, where he used the term to define the spread of ideas and cultural phenomena. As per its recent consumption by social media users, a meme can be identified as, any combination of picture or cinematographic film portion, overlaid with some witty texts. A meme is a derivative work which is derived from the original work of some other person. The main concern with these memes is that are they infringing the copyrights of an original author. 

Memes: Their Creation

In modern days, it is a complete research process to make a meme. A person willing to create a meme has to do research over the current trend thereafter he has to collect material for content and arrange necessary tools such as computer based software’s or some online tools thereafter meme is created. The important part of this whole research is collection of material for content. The material used in making a meme are stand alone pictures, videos, screen captures of cinematographic films and TV serials

Meme and Brands

Memes are also used by many brands in order to attract the customers; various well-known companies are using memes for promoting and marketing of their products. A new trend is emerging in many companies regarding setup of a new department especially for developing and creating memes they are hiring meme engineers. Thus meme creation is not limited to fun or hobby but has expanded its roots for earning the profit. 

Copyright and Memes

The Section 13 of the Copyright Act, 1957 provides the detail of original works in which copyrights subsists. Thus an original work may be protected by copyright law after getting registered under this Act, while Section 14 of Copyright Act 1957, states that Copyright means exclusive rights which permit an owner himself or to authorize someone to do certain acts with respect to specified work or substantial part of the work. 

Thus, if a meme contains pure original work it may get protection of copyright under this act and such meme will be considered as an Artistic work.

In another scenario if a person has obtained licence to use the copyright protected work from the author and creates a meme, in such case the meme creator along with the copyright owner of original work, will be the joint owner after getting the work registered under the Copyright Act 1957. 

 

Doctrine of First sale and Copyright

The doctrine is a Common Law doctrine according to which the rights of owner get exhausted after the first sale is made by him. But this doctrine is not applicable under Section 14(d) and 14(e) of the Copyright Act 1957, as can be construe from the existence of word “many” in the sub sections of aforementioned sections.

The copyright owner in case of cinematographic films and sound recordings have complete power and control over subsequent sale or hire of such works even they are already in circulation in market

Since this doctrine is not applicable so where a meme carries any substantial portion of a cinematographic film which is safeguarded by copyright, then in such content, the consequences of infringement may take place.

 

Memes and Infringement of Copyright Issues

Though the rights granted for copyright owner are neither absolute nor exhaustive, still the rights are meant be obliged. In general all memes do not infringes the copyright as many of them are covered beneath the doctrine of fair use, but some memes are accused for the infringement of copyright

To institute the question of infringement, in first instance, the dissecting of every element used in creation of Meme it is to be done, thereafter it shall be scrutinized by the law governing copyrights. 

According to Section 13 (1) of the Copyright Act, 1957, the copyright shall subsist throughout India in the following classes of work namely-

  1. Original literary, dramatic, musical and artistic works;
  2. Cinematograph Films; and
  3. Sound recordings.

Also according to Section 14 of the Act, Copyright means the exclusive rights, subject to the provision of the Act, to do or authorize the doing of any of stated acts, in respect of a work or any substantial part 

Thus firstly the component of memes is screened under Section 13 and thereafter they are scrutinized under Section 14 of the copyright Act, 1957. Once it is established that the material used in creating the meme is copyright protected under the Section 13 and Section 14 of the Act, it is further screened whether the segment contains substantial section of the protected original work or not? The question about what is substantial is very difficult to define and it varies from case to case.

The next step is to ascertain that whether the Content used is causing infringement and lastly it is analysed whether a meme is created for fair use or not. The doctrine of fair use is recognized under Section 52 of the Act, which states certain acts are not the infringement of copyrights. 

In order to define whether the content created is for fair use or not, it has to be scrutinized by the four factor test which was laid down in an American case of Campbell v, Accuff- Rose Music.  The test states that to be decisive regarding the fair use of work following factors shall be included: 

  • First, the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  • Second,  the nature of the copyrighted work;
  • Third, the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • Fourth, the effect of the use upon the potential market for or value of the copyrighted work.

Though these factors are helpful in determining the fair use, they cannot be used in isolation, collective and holistic use of these factors may provide better assessment of applicability of doctrine of fair use 

Thus from this it can be observed that in order to institute a suit regarding infringement of copyright, the owner of copyright has to establish satisfactory argument, whereby after screening and analysing through the aforementioned measures the Court if pleased, may provide relief to the claimant. 

 

Remedies for Infringement of Copyrights

Under Copyright Act, 1957 both civil and criminal remedies are available for the infringement of their copyrights, chapter XII of the Act deals with civil remedies while chapter XIII illustrate the provision concerning offence.

Section 62 states that the any suit for infringement of copyright in any work or if there is infringement of any other right covered under the Act, shall be instituted in District court having Jurisdiction. While Section 70 declares that no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of first class shall try any offence under this Act.

 

Conclusion

Usually memes do not have any commercial value and they in general, get the defence of fair use. Along with this, all memes do not infringe copyright but some memes do. As can be noticed that in the Copyright Act, 1957 there is no specific provision available for the protection of copyright in subject matter of memes, but this will not prohibit the author to institute the law suit regarding infringement of his copyrights and challenging the accused.