INTRODUCTION
India’s dynamic digital economy has produced a thriving ecosystem for artists, producers, and entrepreneurs. With the e-commerce sector projected to reach $200 billion by 2026[1]Platforms like Amazon India, Flipkart, and Myntra have become rigorous channels for both established brands and independent sellers. However, this expansion has been followed by two interconnected phenomena that create serious legal concerns: the spread of fan art and the rise in counterfeit items.
LEGAL PERSPECTIVE ON FAN ART.
Fan art and related creative works inspired by famous characters, tales, or visual components of existing intellectual property have a difficult position under Indian copyright law. Unlike the US, which has evolved extensive fair use principles, India’s legal structure gives relatively restricted protections for derivative works.[2]
The Copyright Act of 1957, the cornerstone of Indian intellectual property production for creative works, allows copyright holders exclusive rights to reproduce, distribute, exhibit, and create derivative works based on their original contributions. [3] When fans produce art inspired by copyrighted characters or universes, they risk infringing on these exclusive rights, especially if they are sold. Section 52 of the Copyright Act does provide “fair dealing” provisions, which allow for restricted use of copyrighted content for rational use such as educational purposes.
However, these exceptions are significantly narrower than the “transformative use” doctrine that subjectively safeguards fan artists in other jurisdictions. When fan art is sold commercially on e-commerce platforms, the fair-dealing defence becomes particularly tenuous, as the commercial nature of the activity weighs against a finding of fair use.[4]
For artists generating fan works for sale on Indian e-commerce sites, many ways may reduce the legal risk. Appropriate licenses assist the copyright holders by providing formal licensing arrangements that allow fans to develop and sell derivative works for a charge or royalty percentage. This approach provides clear legal protection.[5] Courts across the world have demonstrated increased tolerance for fan works that modify the original content rather than just duplicating it. Indian courts, while not bound by previous judgments, may evaluate the degree of alteration when assessing probable infringement. [6] Clear disclaimers that plainly say that fan art is unauthorised and not sponsored by the copyright owners may alleviate some consumer misunderstanding, but they do not eliminate infringement liability. Focusing on Public Domain Works guarantees that creating art based on works whose copyright has expired (usually 60 years after the author died in India) avoids copyright difficulties. However, trademark issues may still apply to particular characters or parts.[7]
LEGAL PERSPECTIVE ON COUNTERFEITS.
While fan art exists in a murky area, counterfeits are unambiguous violators of several Indian laws. Counterfeit goods—those that falsely exploit another’s brand or duplicate protected designs—may violate intellectual protection rights, along with consumer protection rights. The enforcement of such laws depends on the jurisdiction within which the rights were formed, however WIPO treaty is globally recognised as the cornerstone of intellectual property laws. The Trademarks Act of 1999 forbids improper use of registered trademarks, including the sale of items carrying counterfeit marks.[8] The Copyright Act of 1957, which protects unique artistic expressions, outlaws the unlawful copying of protected works, such as product packaging and designs. The Designs Act of 2000 protects unique designs applied to objects through industrial processes, covering numerous consumer products marketed online.[9] Finally, the Consumer Protection Act of 2019 outlaws unfair trading activities, such as marketing counterfeit products as authentic products that are protected under intellectual property rights.[10]
Infringement of trademarks and copyrights can result in harsh penalties, including up to three years in prison and hefty fines. Repeat offenders may face much harsher punishments. [11] The Consumer Protection Act of 2019 substantially augmented consumer rights by establishing a Central Consumer Protection Authority, which has the authority to investigate and take action against unfair commercial practices, such as the selling of counterfeits.[12] The Act also streamlined the consumer complaint procedure and enhanced potential compensation.
Consumers who mistakenly purchase counterfeit items on e-commerce platforms have a few options. Some of these redressal rights include – initiating complaints directly with the e-commerce platform, submitting complaints with the Consumer Disputes Redressal Commission at the district, state, or national levels, reporting the situation to the Central Consumer Protection Authority, and filing complaints with the Registrar of Trademarks. [13]
LIABILITIES OF E-COMMERCE PLATFORMS.
In recent years, Indian law has advanced significantly in terms of e-commerce platforms’ responsibility for illegal material. The Information Technology Act of 2000 provides a limited “safe harbour” for intermediaries, protecting them from responsibility for user-generated material under certain situations.[14] However, subsequent judicial decisions and legislative reforms have clarified and, in some cases, expanded platform requirements.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 require intermediaries, including e-commerce platforms, to establish clear terms of service prohibiting users from hosting, displaying, or sharing infringing content. It also includes implementing due diligence measures to prevent the sale of counterfeit goods; and remove infringing content within 36 hours of receiving actual knowledge, typically through a takedown notice.[15]
Recent court decisions reshaped platform obligations. In Christian Louboutin SAS v. Nakul Bajaj & Others (2018), the Delhi High Court held that e-commerce platforms cannot claim intermediary immunity when they take active roles in the selling process, such as providing logistical support or marketing assistance.[16] Similarly, in L’Oréal v. eBay (2018), the court emphasised platforms’ obligations to implement proactive measures to prevent counterfeit sales.[17]
Leading Indian e-commerce platforms have implemented various measures to address counterfeits and intellectual property concerns namely: Project Zero (Amazon India) which Allows brands to directly remove counterfeit listings without platform review, using automated protections based on brand-provided data[18], Brand Protection Program (Flipkart) which offers tools for brands to report intellectual property violations and features product authentication for certain high-value categories.[19] Lastly, verified seller programs have implemented verification processes requiring sellers to provide GST registration, business licenses, and other documentation before listing products.
CONCLUSION
The legal landscape governing fan art and counterfeits on Indian e-commerce platforms remains complex and continues to evolve. While counterfeits violate multiple Indian laws, fan art occupies a more ambiguous position, with limited protection under fair-dealing provisions.
As e-commerce continues to expand in India, we can project more comprehensive legislation and judicial precedents addressing these issues. The government’s ongoing efforts to strengthen intellectual property protection, combined with more sophisticated technological solutions from platforms, may gradually diminish the prevalence of both counterfeit goods and legally questionable fan art.
For now, stakeholders across the ecosystem, from artists to platforms to consumers, must navigate this terrain carefully, balancing creative expression with respect for established intellectual property rights. When in doubt, consulting legal professionals with expertise in intellectual property law remains the wisest course of action.
Author(s) Name: Kavya Assari
References:
[1] India Brand Equity Foundation, E-commerce Industry in India (IBEF, 2023) https://www.ibef.org
[2] Shamnad Basheer, “The Indian Copyright Act: Fair Dealing and Free Speech,” Journal of Intellectual Property Rights, Vol. 18, 2013
[3] The Copyright Act, 1957, Section 14.
[4] The Copyright Act, 1957, Section 52.
[5] Devika Agarwal, “Fan Fiction and Copyright Law: A Primer,” SpicyIP, 2019.
[6] Anupriya Dhonchak, “Transformative Use Doctrine in Copyright Law,” NLSIU Law Review, Vol. 31, 2020
[7] The Copyright Act, 1957, s 22
[8] The Trademarks Act, 1999, s 29
[9] The Designs Act, 2000, s22
[10] Consumer Protection Act, 2019, s 2(47)
[11] The Copyright Act, 1957, Section 63, and the Trademarks Act, 1999, s 103.
[12] Consumer Protection Act, 2019, Chapter III.
[13] Consumer Protection Act, 2019, Chapter V.
[14] Information Technology Act, 2000, Section 79.
[15] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3.
[16] Christian Louboutin SAS v. Nakul Bajaj & Others, Delhi High Court, CS (COMM) 344/2018.
[17] L’Oréal SA & Anr. v. eBay International AG & Ors., Delhi High Court, CS(OS) No. 410/2018.
[18] Amazon India, “Project Zero,” Amazon Brand Registry, 2022.
[19] Flipkart, “Brand Protection Program,” Flipkart Seller Hub, 2022.
