ANI vs YouTube content creator case: How Delhi High Court may draw a line on ‘fair dealing’ in India

What happened?

ANI last month submitted multiple copyright removal requests, also known as takedown notices, with YouTube regarding the videos published by Mangal on his channel. The news agency claimed that as Mangal used its copyright-protected content unauthorisedly in his videos, they should be taken down from the platform.

To register its complaints, ANI used YouTube’s copyright infringement mechanism under which the platform issues ‘copyright strikes’ in case someone is found to be using copyrighted material without permission, and takes down the alleged copyright-infringing video.

In response, Mangal submitted counter notifications, which are essentially appeals before YouTube seeking reinstatement of the content. He argued that the use of the ANI content was not copyright infringement as it was used under the framework of reporting current events and review/criticism. He also cited that the use was qualified as ‘fair dealing’ under the Indian copyright law.

What is ‘fair dealing’ under the copyright law?

The Copyright Act, 1957 draws an exception under fair dealing, saying certain works — such as literary, dramatic, musical or artistic work — may not be considered as infringement of copyright if used for private use, including research, criticism or review, or for reporting of current affairs and events.

While there has been no definite, straitjacketed definition of such fair use or fair dealing (interchangeably used terms) in Indian law, courts have often resorted to interpreting its scope on a case-to-case basis by considering various factors such as the balance of convenience and the impact felt, including financial/economic of the copyright owner, by such alleged infringement.

For example, ANI, in its copyright and trademark infringement suit, has alleged that Mangal, by providing access to the ANI’s works, is diverting traffic from the ANI News Channel, which impacts ANI’s revenue adversely.

Courts have time and again held the exception of fair dealing. A case in point is TV Today Network versus NewsLaundry, in which the former alleged copyright infringement as the latter had used extracts from the former’s broadcast shows. TV Today also filed a defamation suit against NewsLaundry for using such extracts to disparage them.

However, the Delhi HC refused an interim injunction against the alleged infringing material in July 2022. The court ruled TV Today would not face irreparable injury/harm in the absence of an injunction, given that the videos had been in circulation for a few years, and that balance of convenience was in favour of NewsLaundry.

On the aspect of copyright infringement, NewsLaundry took the defence of fair dealing, to which the court observed that the trial court could examine the validity of such defence on several parameters. These include: “whether the comments were devoid of malice; they were honestly made; and in public interest; the reproduction was of short excerpts; there was some creative input of the copier/reproducer; they constituted criticism and review, and there was no blatant act of copying.”

Notably, YouTube has taken down Mangal’s videos under California’s Digital Millennium Copyright Act (DMCA), and not the Indian law.

What has happened in the court hearings so far?

One notable development came during the hearing of ANI’s case against Mangal before the Delhi HC. In this case, apart from other allegations, ANI accused the YouTuber of not only infringing on their copyright but also using disparaging remarks against the news agency.

Staying away from the issue of copyright and trademark infringement, the Delhi HC adjudicated only on the aspect of trademark disparagement. It asked Mangal to remove the disparaging remarks from his video.

The court gave the directive based on an argument by Mangal, during the Delhi HC hearing, in which he had said that usage of ANI’s content would not be considered as infringement using the ‘de minimis’ principle, a legal concept that exempts minor or trivial matters from legal scrutiny.

Using the principle to assess infringement is easier and less time-consuming compared to say, determining fair use. Indian courts have broadly outlined five factors to be considered under the de minimis principle. These are: the size and type of the harm; the cost of adjudication; the purpose of the violated legal obligation; the effect on the legal rights of third parties (for example viewers of say Mangal’s videos); and the intent of the wrongdoer.