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DE MINIMIS PRINCIPLE

INTRODUCTION:-

In India, the Copyright concept was evolved in recent years. Under the Copyright Act, of 1957, many rights were discussed such as the Author’s moral Rights, the Performer’s Rights, and so on…In this blog, we are going to discuss some rights that can be claimed by the person who infringes a copyright of the real owner/author of a particular work i.e., the De Minimis Principle which was brought from the Latin term “De Minimus Non-Curat Lex”   means “ the law does not concern itself with trifles and  the law cares not for small things/law will not resolve the petty or unimportant dispute.” This principle is not a statutory one but the judiciary organ develops this principle through Judicial Activism and this was used in copyright infringement cases in the US as well as in India. Let’s see some of the cases related to copyright infringement and see how this principle was used by the Judiciary.

APPLICATION OF DE MINIMIS PRINCIPLE:-

  • BY THE COURT OF INDIA:-

The De Minimis Principle was first origin / used in the case of INDIA TV INDEPENDENT  NEWS SERVICES VERSUS  YASHRAJ FILMS PVT.LTD.,[1]he court explained the concept of the De Minimis Principle and laid down the five points for applying this principle in future cases such as in the following:-

  1. The extent of usage of the author’s work and how much harm it causes to the original work[2].
  2. The cost of adjudication of the matter and a comparative analysis of the depth of harm which causes the original work[3].
  3. The objective of the violation[4]
  4. The impact on the legal right of third parties and the court may look at may have on the copyrighted work’s market value to examine the infringement effect[5].
  5. The mens rea beyond the infringing usage of the original work[6].

In the aforementioned case, the court explained that a performer’s life could not be separated from the performance in any promotion of that particular film or any program telecast by the TV channels like Super Singer/ interview for promo of the film but the performer hasn’t substantially right to sing the full songs, as long as the singing i.e., the performer’s right is limited to a minute to sing a song in that program at that time[7], it would be considered as a case of De Minimis use. Thus, the portion of the lyrics would not violate the copyright in the sound recording[8]. Though, the court noted that if the show had less discussion about the performer’s entertainment activity, the issue would have had to be handled differently due to the broadcaster’s intended change and which would be construed to broadcast the sound recording to the public.[9]

Similarly, in the case of Saregama India Limited Versus Balaji Motion Pictures Limited and others[10], the respondents use this principle as a defence against the petitioner. But the bench held that the petitioner has prima facie of the case. During the suit was pending, the respondents were prohibited to exploit and use the petitioner’s copyrighted works such as musical and literary works and sound recording of the song “Var DhagalaLagliKal” from the cinematograph film “Bot Lavin Tithe Gudgulya,” in their upcoming film ‘Dream Girl’. If the petitioner uses any of the copyrighted work, it would amount to an infringement of the respondent’s copyright and also the respondents are definitely prohibited from using and including any portion of the impugned song subject of this hearing in their film and/or using it for any other purpose.

Recently in the year 2019, this principle was used as a defence by the advocate appears in the case of Super Cassettes Industries Ltd. v. Shreya Broadcasting Pvt. Ltd.,[11] wherein the Delhi High Court reviewed the cue sheets submitted by Super Cassettes which helps the court to determine whether Shreya Broadcasting had infringed nearly 500 minutes of Super Cassettes copyright works on different circumstances without obtaining any appropriate licence from Super Cassettes. So the defence counsel for this case used the De Minimis Principle as a defence and the court rejected the defence and further held that Shreya Broadcasting have to pay Rs. 21,00,000/- to Super Cassettes company as compensation.[12]

  • BY THE US COURT:-

The US court also applied this principle in various cases which came before them for copyright infringement. Let’s see some of the Us cases related to this principle. In the case of “Newton V Diamond[13]Plaintiff James W. Newton wrote and sing a song and he licenced all of his rights to a record company (“Company”). But The licence granted the sound recording only; all the remaining rights which relate to the song’s composition were retained by Newton. Defendants Michael Diamond and others who were members of a rap and hip-hop group (“Performers”) got permission to access a portion of Newton’s song’s sound recording from the company but not from the plaintiff. The recording was used by the Performer for three notes separated by a half-step over a background note that lasted approximately six seconds. Newton did not grant the Performers permission to use the underlying composition. Newton filed a copyright infringement lawsuit in federal district court against the Performers and others. The Performers filed a motion for summary judgement, which the district court granted, concluding that no licence to the underlying composition was required because the musical notes in question lacked sufficient originality to warrant copyright protection. The district court also determined that, even if the sampled segment of the composition was original, the Performers’ use was insignificant and thus not actionable. Newton filed an appeal and the US court held in favour of Newton and the performer’s defence of the de minimis principle was not accepted as an exception. The US court further explained the applicability of this principle that A copyrighted work is considered de minimis if the average audience would not identify the appropriation. This observation reflects the relationship between the de minimis maxim and the general test for substantial similarity, which also looks to the response of the average audience, or ordinary observer, to determine whether a use is infringing. To say that a use is de minimis because nobody would recognize the appropriation is to say that the works are not significantly similar[14].

Similarly in the case of “Bell v. Wilmott Storage Services, LLC[15]” the panel reversed the district court’s judgement which was based on the de minimis principle as a defence. The Perfect 10 server test was used, and the panel concluded that Wilmott’s server was continuously transmitting the image to those who used the specific pinpoint address. As a result, the Wilmott server transmitted and displayed the photo without obtaining any permission/consent from the plaintiff and also was made available to the public by the way of its servers and website. The panel also determined that the “degree of copying” was an exact/complete replica of the copyrighted Indianapolis photograph and considered as an infringement work. As a result, there is no place for an investigation into whether there was de minimis copying. The Ninth Circuit of the US court issued an opinion to clarify the principle of de minimis for copying any statutory copyright work. Thus, the de minimis concept is correctly applied to determine whether so little of a copyrighted work has been copied that the allegedly infringing work is not substantially similar to the copyrighted work and then that will not be considered as a copyright Infringement[16].

CONCLUSION:-

The defence of the De Minimis Principle is not accepted in every case. It will be applicable in certain cases only. So, whenever any person used any work of the original author must obtain a license is the best option for the rapper or remix in any film or music or any other work by any third person otherwise, he might need to pay compensation to the producer of the cinematograph film, author of the literary and musical work, the sketchers, the photographer or any other person who harm any work which was created through the computer-generated. In the current digital era, we can’t determine which work should be considered Fair use or De Minimis. So, it is totally in the hands of the judiciary to use this principle as per the circumstance of every copyright infringement case.

Author(s) Name: Ratchitha Kumar M.S (Government Law College, Madurai)

References:

[1] India TV Independent  News Services v  Yashraj Films Pvt. Ltd. (2013) (53) PTC 586

[2]Vishvesh Kumar, ‘India: De-Minimis In Copyright Law-Trivial Or Proceed To Trial’ (Mondaq, 25 December 2022) <https://Www.Mondaq.Com/India/Copyright/1097844/De-Minimis-In-Copyright-Law–Trivial-Or-Proceed-To-Trial> accessed 11 January 2023

[3]Ibid

[4] Ibid

[5] Ibid

[6] Ibid

[7] Sapna Chaurasia and Krishi Shah, ‘Doctrine of De Minimis Vis-À-Vis Copyright Infringement’ (Lexology, 05 January 2022) <https://www.lexology.com/library/detail.aspx?g=9ba2ad51-d587-44e9-979d-bbbbeb266ec1> accessed 11 January 2023

[8] Ibid

[9] ‘Is It Fair (Use)? De Minimis As Defense In Copyright Infringement’ (IR Global, 14 August 2020) <https://www.irglobal.com/article/is-it-fair-use-de-minimis-as-defense-in-copyright-infringement/> accessed 11 January 2023

[10]Saregama India Limited v Balaji Motion Pictures Limited and Other (2019) SCC OnLine Del 10036.

[11]Super Cassettes Industries Ltd. v Shreya Broadcasting Pvt. Ltd (2021) Cs(Comm) 90/2021

[12] Sapna Chaurasia (n 7)

[13] Newton v Diamond 349 F.3d 591 (9th Cir.2003)

[14] Ibid.

[15]Bell v Wilmott Storage Services 12 F.4th 1065 (9th Cir. 2021)

[16] Ibid.