Is Minor Usage of Media Material Copyright Infringement?

De Minimis in Copyright

De minimis’ refers to a trivial legal violation that is insufficient to warrant legal remedy – it follows from the legal maxim ‘de minimis non curat lex’ which translates into ‘the law does not concern itself with trifles’. 

Where an act of potential infringement of a work has been deemed de minimis, it means that copying has occurred to such an insignificant extent, that it falls short of the qualitative and quantitative threshold necessary to be achieved in order for the act to amount to copyright infringement. Accordingly, when the supposed ‘infringement’ or ‘copying’ is too trivial or inconsequential, a claim of de minimis may prove to be useful in defeating such a claim of copyright infringement.

Over recent years, the courts have come across a growing number of minor infringements of copyright wherein the Indian courts have accepted de minimis principle as a valid defence to a claim of copyright infringement.

De Minimis in India: From Strict to Liberal Interpretation

The Indian judiciary’s first tryst with de minimis came in the case of Super Cassette Industries and Ors. v. Chintamani Rao (2011) wherein a Single Judge of the Delhi High Court rejected the defence of De Minimis by stating that Indian copyright law lays down specific rights vested in each party while also specifying the exceptions to infringement. Accordingly, since the defence of De Minimis has not been incorporated in the statute, the Single Judge held it cannot constitute a valid defence to an infringement claim under law.

However, in the 2012 judgment of India TV Independent News Service v Yashraj Films, the High Court of Delhi recognised that the de minimis maxim applies in copyright law as a valid defence to a claim for copyright infringement.

In this case, the celebrated Bollywood singer Vasundhra Das was invited to a talk show ‘India Beats’, broadcast on India TV. During the course of the show, she sang small bits of nine songs previously performed by her for different Bollywood films, based on request. A live orchestra was also present to provide the backing musical score as she sang. Additionally, video clips from the respective movies were also played for some of the songs wherein only parts of the song were performed and not the entire song. The issue before the Court was whether the legal doctrine of de minimis non curat lex can be used in a copyright law context to fight a claim for infringement in India.

Defining the contours of de minimis principle the Court held , 

“the Rule of Law loses its meaning if it does not run close to the Rule of Life. Trivial prima facie violations of copyright are commonplace. Three features of the Copyright Law are largely responsible for this. First, any type of work that is fixed and contains even a modicum of creativity is copyrightable. Second, copyright attaches to these works automatically without the need for registration. Third, the statutory rights of copyright owners are wide. Thus, every photograph taken by a tourist which includes an advertisement or an artwork would technically be a copyright violation.  Even singing Happy Birthday at a restaurant would be a copyright violation. Absent fair use, all these people would be violating the law.” (Paragraphs 52 and 53)

The court in this case laid down the following factors to be considered in order for an infringing use to qualify as De Minimis:

  1. The size of the use and the type of harm it may cause.
  2. The cost of adjudication of the matter. During such an analysis, the court may look at the cost of adjudicating the matter and do a comparative analysis with the amount of harm such use can cause.
  3. The purpose of the violation
  4. The effect on the legal right of third parties, herein the court may look at the potential effect the infringement may have on the market value of the copyrighted work.
  5. The intent behind the infringing use.

The judges also observed that the outcome might have been different if there was less chatting and only performance of songs during the entire show. However, the total airtime was 45 minutes and the singing lasted a sum total of less than 10 minutes, that is, very little usage compared to the whole programme.

Further Developments in Indian Case Law

In  Saregama India Limited v/s Viacom 18 Motion Pictures and Ors (2013) the Plaintiff Saregama had filed the suit against Viacom on the grounds that its film ‘Special 26’, had infringed the Plaintiff’s copyright in the lyrics and music of the song ‘Mere Sapno Ki Rani’, which featured in the film Aaradhana. This was due to a scene where one of the lead actors uttered about 4-5 words from ‘Mere Sapno Ki Rani’, over a period of less than 7 seconds.

The Court denied relief to Saregama firstly on the ground that there was no infringement in the music since the words were not narrated in the particular melody of the original; second, there was no originality in just the words ‘Mere Sapno Ki Rani’ and third, the use of less than 7 seconds was de minimis and not worthy of a legal claim. The Learned Judge further observed

Let us assume that the rendition of those four words was infringement of the plaintiff’s copyright in the lyrics. It has no impact, no effect and causes no loss to anybody. It is trifling. It is minimal.”

The Delhi High Court in Super Cassettes Industries Ltd. v. Shreya Broadcasting Pvt. Ltd (2019), relied on the five factors laid down by the divisional bench of the same court in India TV case. The court perused the cue sheets submitted by plaintiff, and found that there was at least 500 minutes of infringement, and hence the defence of De Minimis was not accepted by the court and further compensatory damages were granted in favour of the plaintiff. As of now, there is no quantitative standard as to the amount of infringement that shall fall within the de minimis exception, and it will be judged on a circumstantial basis.

The concept of De Minimis in India, even though at a nascent stage, has significantly reduced frivolous litigations initiated for minor violations of copyright. This principle also provides an alternative defensive path, in cases where S.52 of the Indian Copyright Act falls short.

Author: Neha Uppin, Legal Intern at PA Legal.

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