Legally Speaking | Turbulence for Netflix’s IC-814 as it runs into legal trouble

Copyright infringement in simple terms is the use of someone’s creation without their permission. But in law, things are seldom simple. The main issue lies in determining who owns the right and who can use the creation. The law itself recognises certain means in which someone can use a copyrighted material.

The owner of the copyright can grant licenses defining the extent and duration of the use of his work. Illayaraja, for instance, is fighting the companies which had secured licenses to use his recordings from the producers claiming that he, being the author of the songs is the owner.

The other way copyrighted work can be used is through what is termed fair use. This includes private or personal use for research, reporting of current events, and reproduction for judicial proceedings among other things.

Fair use is determined by a court based on the facts of the case. Courts look into the quantum of material taken and the purpose for which it was taken. For instance, the Delhi high court in India TV Independent News Service Pvt v. Yashraj Films Pvt. Ltd noted that the use of a song for just three seconds would not amount to an infringement. In the same judgment, it noted that a singer singing a few minutes from her song in an interview would not amount to an infringement but clips from the film which featured the song could not be shown without permission. In India, the law is clear that commercial exploitation of the content will disentitle the application of the fair use doctrine.

In the United States, courts look into four factors to determine fair use. These are:

• The purpose and character of the use
• Nature of the copyrighted work
• The amount and substantiality of the portion taken
• The effect of the use on the potential market

In determining the use of the work, the courts see if the original work has been transformed in some way i.e. is it a transformative work. A transformative work may still claim fair use despite being commercially sold.

Netflix is no stranger to copyright infringement suits. The streaming platform’s true crime documentary series Tiger King has also been embroiled in a legal battle in the United States. Like the claim of ANI, Timothy Sepi claimed that Netflix had used video footage filmed by him without his permission. The US district court on April 27, 2022, dismissed the suit because Sepi did not have the copyright for 7 of the videos used since they were made for hire and the 8th video was covered under the defence of ‘fair use’. The court noted that the makers of the documentary had provided their views while using the 8th clip and the same could be considered ‘transformative work’.

On appeal, the Denver appeal court concluded that there was no ‘transformative’ in the 8th video clip and remanded the matter back to the lower court to determine if Netflix had violated the fair use doctrine. The court noted that the commentary in Tiger King was not on the video but on the character seen in the video which could not termed transformative work. The undisputed commercial character of the use by Netflix was also a big factor behind the court's decision to rule that the fair use defence did not apply.

This decision many feel made documentary filmmaking a very difficult enterprise. The worry expressed by documentary filmmakers was that often copyright owners are not accessible or quote exorbitant prices making it very difficult for new filmmakers with limited financial resources to make a film.

One of the fears expressed by the International Documentary Association after the decision was that now copyright holders could control discussions on history and culture and convert copyright into a form of private censorship. Noting severe repercussions on the impact of such an interpretation the Motion Picture Association, the International Documentary Association, the Film Independent and a host of media law professors appealed, and recently the Denver court of appeal agreed to re-hear the parties.

The Indian series has been embroiled in controversies from the beginning with criticism of white-washing and distortion of historical events. The Netflix India content head was summoned by the ministry of information and broadcasting to explain the alleged contentious aspects of the web series. It is in this light that ANI advocate Siddhant Marwah stated before the court, “This series has been criticised for whitewashing Pakistan’s role… I don’t wish to be associated with such a series… I don’t want to be associated with such a series seen as anti-national in the public eye, a PR job for ISI. Highly unpatriotic”

Netflix on the other hand contended that ANI had given the footage of the hostage crisis to Reuters which had licensed it to other companies. It is from these companies that producers of the series secured the footage. ANI challenged the contract by claiming that Reuters had been given the license to use the footage only for an international audience and not India.

The Delhi high court, as of now has refused to grant any interim relief to ANI and is slated to hear the petition on Friday. Whether there was infringement or not, depends on the terms of the license agreement which the producers are relying on and the rights conferred by ANI to these licensees.

Copyright law is a tricky area and requires a fine balance. While creators need to be protected, the protection also should not be such that it prevents creation.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.