Author: Aditi Pandey, IV year of B.A.,LL.B.(Hons.) from Amity Law School, Noida
Social media has quickly evolved in the past few years from the time when it was used to make worldwide relationships to the time where it used to share content and ideas, presently entire social media has changed it’s algorithm and it is mostly about sharing videos,pictures or media of any kind with a funny or relatable context. Social media has transitioned from personal interaction to sharing of these memes with relatable context,it is possible that a meme creator do not think much about the consequences of the meme,the same does have certain amount of liability.
TYPES OF MEMES AND PROTECTION UNDER COPYRIGHT
First type is where memer(person creating the meme) uses a picture or video to create a meme and the picture which he used is from a TV series,in this case the copyright of the picture lies with the producers therefore if producers of the show can prove that the meme infringes upon their copyright then the can stop it from being shared.
Second type is where the memer has created the meme himself and he has the copyright this will be his artistic work however sharing or reproducing such memes without the prior notice of memer can amount to copyright infringement also if their is any substantial imitation or copy of the original work that would also be copyright infringement.
PROTECTION UNDER FAIR USE ENSHRINED UNDER THE COPYRIGHT ACT, 1957
The copyright act made four rules to determine if such copyrighted work is “fair” or not. Fair use doctrine comes as a legitimate defense from copyright infringement.
First factor- if a meme is created for recreational or internment purposes and there is no commercial benefit in the same therefore most of the memes comes under first factor of fair use doctrine one the other hand if the meme is created for some commercial purposes like for generating revenue or for any promotional purposes without the required permission of the owner of the copyright work then the memer can not claim defense under fair use doctrine and constitute under commercial exploitation.
Second factor- Almost every meme is taken from already published material so to increase its connecting factor with the owner in cases like these the owner of the copyright work has exhausted his right of first public appearance and in this case the memer can claim a defense under fair use doctrine however this doctrine is not helpful if the memer borrows content from unpublished work.
Third factor- if the memer takes a still form of the work line series movies or a joke then the substantial amount is work is not copied from the owner in this case memer can claim defense under fair use doctrine however things will be different if the original work from which the content is borrowed includes a piece of art like single photograph then it would be considered as borrowing the entire artistic work and constitute an infringement.
Fourth factor- Effect on the potential market as stated above memes are created for recreational purposes even though memes created from original work are unique and most often it affects the viewership of the original work the target audience are different therefore memes comes under fourth factor of fair use doctrine.
EXCEPTION TO THE APPLICABILITY OF FAIR USE DOCTRINE
In a plethora of cases, Indian courts have held that the right to criticize is limited and not exclusive. Also it cannot affect the rights of the other person. For instance recently a BJP's youth leader was asked to apologize to the prominent leader CM of West Bengal Ms Mamta Banerjee, for defaming her character by posting a morphed image of her on Social media. The Supreme Court did not give any leverage to the BJP’s leader even though she argued that she did not create the meme and only shared it for humor, the SC held that Freedom of speech and expression cannot be denied at any time, but faces its end when such freedom violates the rights of other people.
According to the Information Technology(Intermediary Guidelines and Digital Media Ethics Code) Rule,2021.if the meme is against the sovereignty and integrity of india the security of the state relations with foreign states then the meme creator/first originator can be identified by the intermediaries by a judicial order.
However if a meme is intended to harm the society or if it violates the Right to privacy enshrined under Article 21 of the Constitution of India and Right to freedom of speech and expression under Article 19 of the Constitution of India then there is no defense available in favour of the meme creator.
COMMERCIAL USE OF MEME
It is understood that commercial use of a meme would not come under the ambit of fair use doctrine, and the owner of the copyrighted work can claim an infringement action against the meme creator however it is important to note that if a corporation is creating its own meme without copying the original work then its circulation even if dine for commercial purposes does not constitute any copyright infringement in fact many companies have made meme marketing a very important and essential part of its marketing campaign.
Nowadays many companies are using memes for commercial purposes to positively promote their business. In these cases the owner of the meme or film also gets more viewership so this would give a positive promotion to both the parties thereby creating a symbiotic relationship between two parties.
MEMO-LOGY LITIGATION IN INDIA
India has no memeology litigation till date further several countries including India have come up with intermediary guidelines to be followed by social media websites such as Facebook and Instagram whereby they are made to maintain a strong surveillance on uploaded content to ensure the protection of right such as the right such as the right to privacy and protection against defamation, In India “Information Technology(Intermediary Guidelines and Digital Media Ethics Code) Rule,2021” were recently enacted by the Ministry of Electronics and Information technology which mandate facebook, instagram to block the access of any unlawful information within 36 hours upon an order from the court or the government.
Memes should always be made for the purpose of fun or entertainment of the audience without violating any rights of the other person, memes usually get the benefit of fair use doctrine if it is created without the intent of commercial exploitation. A copyright infringement occurs when the meme is created without proper authorization from the copyright owner. It is advised to young creators to seek proper approval of the owner before creating a meme.