바카라�Unethical, But Lawful바카라�: The ANI Vs YouTubers Dispute In A Nutshell

After Mangal바카라�s video was widely shared, ANI filed a suit for defamation and disparagement against him and some people who shared his video (like Kamra and Zubair) at the Delhi High Court. As a result, the court directed Mangal to remove certain references to ANI, which the defendant has since complied with. Meanwhile, ANI has also filed a second suit against Mangal, alleging illegal and unauthorised reproduction of 10 videos on his channel. It also alleges the unauthorised use of ANI바카라�s logo on the YouTube channel.

According to Mumbai-based advocate Hiren Kamod, the concept of 바카라�fair use바카라�often cited by YouTubers to reproduce IP in their work바카라�is not something we find in Indian statutes. It바카라�s a concept found in the US copyright laws. In fact, the Copyright law, 1957 (the main statute to decide most IP-related cases in India) includes a concept called fair dealing. The difference is crucial and fundamental, as Kamod explains it.

The US laws list the following four parameters for what qualifies as 바카라�fair use바카라�: what is the purpose or character? What is the nature of the work? What is the amount of copyright work used? And, what effect does it have on the potential market? On the other hand, fair dealing is listed under section 52 of the Copyright Act, 1957, where it identifies three specific instances which can be deemed exceptions to copyright infringement: Private or personal use, criticism or review바카라�whether of that work, or something related바카라�and for reporting current affairs and events.

바카라�What becomes crucial is the context in which the ANI clips were used in a YouTuber바카라�s video,바카라� notes Kamod. 바카라�If I바카라�m making a video which is not to report on current affairs, but for educational purposes, then it won바카라�t remain an exception u/s 52(1)(iii).바카라�  He adds that it doesn바카라�t matter if the video is monetised or not바카라�if the instance of a video is not covered among the exceptions under the Copyright Act, it amounts to infringement.

Anumita Verma, who specialises in IPR and practises in Delhi HC, explains the de minimis principle, where if the IP component amounts to a fraction of the total video바카라�like maybe seven seconds of a clip in a 30-minute video바카라�then the courts might not take cognisance of it at all. In Mangal바카라�s case, the ANI clips he mentions using are seven seconds and eleven seconds, in videos with durations of 18 minutes and 38 minutes respectively. "Generally when de minimis is applied by the Hon바카라�ble courts in specific cases then a possibility of not entertaining at all comes in the picture. In the instant case , there are other reliefs sought like trademark disparagement and infringement, which give it바카라�s different connotation."

However, Kamod notes that there are exceptions to the de minimis principle--where courts don바카라�t simply look at the amount of work, but also its qualitative attribute. 바카라�For example, Sweet Child O바카라� Mine (by Guns 바카라�N Roses) is a nine-minute song, but that guitar intro is so distinct that if I play the first 10 seconds, it will qualify as infringement,바카라� he says. 바카라�It바카라�s not a quantity thing anymore, because you바카라�re taking the hook of the composition.바카라� He also reminds us of the Ram Sampath vs Rakesh Roshan case around Krazzy 4 (2008), where a song in the film was plagiarised from Sampath바카라�s jingle for Sony Ericsson. It was a seven-second hook, for which Sampath was awarded Rs 2 crore in the ruling.

It바카라�s a subjective thing, says Kamod바카라�the dispute between ANI and the YouTubers will depend on how one interprets the individual facts of the case. For example, can YouTubers바카라�who curate and collate information from existing news sources to make explainers on current topics바카라�be deemed as 바카라�reporting바카라� on an issue? 바카라�It would require the court to take a liberal stance, 바카라� where they바카라�re willing to expand the meaning of reporting beyond the traditional sense, also including curating a well-rounded news package from across multiple sources,바카라� Kamod states. 

Verma opines that YouTubers can바카라�t be bracketed as those 바카라�reporting바카라� on a matter and therefore can바카라�t be included in the exceptional instances under section 52(1)(iii). 바카라�A simple collation is not your work바카라�if it바카라�s assimilating the works of others, then it might be crucial to note the usage. If it바카라�s like 10-11 seconds in a 20-minute video, then the courts might deem it de minimis. But if it creates a huge prejudice towards my trademark, then I might take steps,바카라� says Verma.

What do lawyers think of the lump sum amounts being demanded by ANI from YouTubers?  Doesn바카라�t it sound slightly murky, if nothing else? 바카라�The copyright laws allow the IP owner to claim revenues and/or damages. It바카라�s a remedy given in the Act,바카라� notes Verma. 바카라�One can either seek a share of the revenue or claim damages. You either buy the said license or pay the damages.바카라�

Verma highlights that an aggrieved IP owner can demand anything as damages바카라�it doesn바카라�t have to be 바카라�reasonable바카라�. 바카라�One can ask under a wide variety of things: mental agony, sullied reputation, legal fees etc,바카라� confirms Verma, 바카라�But the court looks into profits, how much revenue one has made from said work, and accordingly they will calculate the actual damage. There바카라�s a formula.바카라�

Kamod admits there being a power differential between an agency of ANI바카라�s stature and individual YouTubers. Therefore, the financial demands raise a moral judgement. 바카라�ANI knows they바카라�re able to demand whatever they want바카라�what might cost Rs 10. they바카라�re demanding Rs 100 for it,바카라� says Kamod. 바카라�They shouldn바카라�t be doing it. But under the law, if the creators aren바카라�t excluded under Section 52, then ANI has the right to do business the way it sees fit. If a creator uses their licensed work, then they바카라�re within their rights to demand Rs five lakhs, Rs 50 lakhs or Rs five crore.바카라�

A lot depends on how the courts rule ANI바카라�s second suit against Mohak Mangal on copyright infringement. 바카라�According to me, only one YouTuber, who is sure that their content falls under section 52(1)(iii) 바카라�if they go to the court, and take on ANI, then they could set a precedent,바카라� says Kamod. 바카라�It바카라�s ethically wrong of course, but is it unlawful? I don바카라�t think so. It바카라�s a free market바카라�Aamir Khan바카라�s latest film바카라�s satellite rights have sold for Rs 200 crore. Tomorrow TV channels will claim extortion. Where does it end?바카라�