Memes and copyright law

Introduction

Memes have become important participants in virtual entertainment in the age of internet humor. Most social media platforms are peppered with characters that, even at first glance, might make you feel a certain way. Internet humor now frequently incorporates memes like “Socially Awkward Penguin,” “Grumpy Cat,” “Derp and Derpina,” and many others.

By their very nature, memes are works that have been plagiarized. However, it appears that the legislation has not yet been examined on this copying. It is essential that we get what internet memes are and what fair use is in order to comprehend the dualism of this issue.

Memes are believed to have started with the development of social media, and in some ways, this is actually true. The popularity of memes has undoubtedly increased in the social media era. However, memes have a history that dates back to a time before the internet was created.

The term “meme” was first used by evolutionary biologist Richard Dawkins in his 1976 book “The Selfish Gene.” A meme is a transmission of cultural meaning from one generation to the next, such as an idea or a value.

It is the cultural equivalent of the gene, the unit of physical inheritance. In identifying whether content has copyright issues or not, it is important to describe under which category the work in question falls.

According to Section 2(c) of the Indian Copyright Act, 1957 and Article 2 of the Berne Convention, “artistic work” is defined as including paintings, drawings, schematics, engravings, photographs, etc. For copyright to apply, the work must be original.

According to Section 13(1) of the Act, the copyright must exist in all “original” artistic works. Although it is a generally accepted notion that for copyright purposes, originality of expression rather than originality of thought is what counts, the precise standards of originality are not specified in the statute.

When a third party commits one of the acts listed in Section 14(c) of the Act as an infringement of an exclusive right, the copyright in any artistic work is said to have been violated. For instance, if someone reproduces the work in any material form without the owner’s permission, they are violating their copyright owner’s right to do so.

This applies even if they are not the owner’s assignee or licensee, or possess any other authority over the work. It won’t be deemed an infringement if a later work is comparable to the copyrighted work but it can be proven that the latter wasn’t copied or reproduced from the former.

In Hindustan Pencil Pvt. Ltd. v. Universal Trading Company the hon’ble court ruled that even if there are minor changes to the allegedly copied artistic work if it is crystal clear that the original artistic work’s key characteristics have been copied, the copyist is responsible for copyright infringement.

An internet meme is essentially the use of another person’s creation for one’s own purposes without the owner of the original work’s copyright’s consent. In most cases, this would be a blatant instance of infringement.

But this might not be entirely true in the case of memes. Memes are often made for different reasons. However, the Fair Use clause may only apply to memes that are produced with the intention of fair dealing.

Defence of fair use

The defence of fair use comes at a time when the work in question is an infringing work. Once an infringement has been established, the next step is to determine whether the copied work was done so as to further “fair dealing.” The Berne Convention enables signatories to specify limitations on the sole right to reproduce.

The various exceptions to infringement are therefore described in Section 52 of the Act. The provision’s language suggests that the provided list is exhaustive and that any actions that do not fall within one of these exceptions would not be regarded as fair use. The circumstances of each case must be considered when determining fair use.

The earliest case to deal with the doctrine of fair use was Folsom et al. v. Marsh et al in which the court laid down three important factors to consider while looking at this doctrine:

• The selection’s nature and purpose,
• The quantity and cost of the materials used, and
• The extent to which it might hurt sales, cut into profits or supplant the original work’s

Exceptions to the doctrine

The judiciary in many cases has said that the right to mock or copy another person through memes is not exclusive and is only granted up to the point where the other person’s rights are unaffected.

There is no defense available in favor of the meme creator if the meme is intended to harm society or if it violates the Right to Privacy guaranteed by Article 21 of the Indian Constitution. In fact, the memer can’t even defend his/her right to free speech and expression, which is guaranteed by Article 19 of the Indian Constitution.

The court in many cases has ordered the defendant to stop sharing such offensive memes. To prevent the meme from spreading to a significant portion of society, the meme’s creator should be identified in the first instance. The right to free speech and expression is unalienable, but it comes to an end when it violates the rights of others.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 state that if the meme is against India’s sovereignty and integrity, security, friendly relations with other countries, etc., the intermediaries (Facebook, Instagram, etc.) may be forced to reveal the identity of the meme’s first originator and a court order can be produced against that person from a competent court under rule 4(2).

References:

1. http://dspace.jgu.edu.in:8080/jspui/bitstream/10739/1443/1/A%20Critcal%20ana lysis%20of%20meme.pdf (last visited: 11/07/2022).

This post has been submitted by Abhishek Bisht a student at Himachal Pradesh National Law University, Shimla.