E-Newspapers: A Copyright Conundrum in Times of COVID-19 Pandemic

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This article focuses on the issue of Copyright. It further analyses the circulation of Newspaper PDFs online. The same have found increased relevance in the pandemic times. They have caused a dual industry stance.

Introduction

Newspaper circulation has taken a tremendous hit following the coronavirus lockdown. The same renders it impossible to deliver newspapers due to social distancing norms. Many housing societies have closed their gates to delivery persons and domestic help.

The unique situation poses an unprecedented threat. People stay in their own houses without access to established news outlets. In this era of fake news on platforms such as WhatsApp, the current situation spells disaster. Recently, many News outlets have made a version of their e-paper available online for free.

Such a move for the betterment of the society has had unanticipated consequences. We live in a digital era. Hence, the PDFs made online by news outlets have found their way to Telegram and WhatsApp groups. Such an act has torn the journal industry into two with polar views.

The first consists of the Indian Newspaper Society (INS) and Dhanik Bhasker. They believe that news agencies must take legal action. They should sue such perpetrators and administrators of such groups. An advisory by the INS and a piece by Dhanik Bhaskar have compounded such a stance.

The second group consists of the Indian Express and the Free Press Journal. They state that the downloading of PDFs and circulation does not make one liable to legal action.

Clashing Points

MV Shreyams Kumar is an INS executive committee member. He explains, “The cover price hardly takes care of the cost. Each newspaper costs around ₹ 16-20 per copy. The cost depends on the number of pages and other newsgathering and production expenses. Ads subsidize this cost without which everyone is bleeding. I am also bleeding,”

Tinu Cherian Abraham, a Bengaluru-based media commentator, counters this argument. He says, “a lot of advertisements come to the print media because of the high readership. Not because of the circulation numbers. If readership drops, so will advertisements and revenue. It is important to keep people reading newspapers. Especially until the lockdown gets over and distribution of physical copies improves,”

What we observe here is two different interpretations of the same event. The INS focuses on a fall in revenue due to the dip in physical sales. The lack of subscription to online content due to privacy compounds this problem. The Indian Express focuses on the increase in readership. It may be leverage to higher advertisement fees. The difference is due to management decisions and does not amplify into a legal issue at this point.

Legal Viewpoint

There are two different ways to look at this issue from a legal standpoint. The first is to split the e-papers into two:-

  1. Ones that provide free PDFs online
  2. Ones that provide paid PDFs online

The second manner is two divide e-papers based on their user service agreements:-

  1. Ones that come with a user agreement preventing circulation
  2. Ones that do not come with a user agreement preventing circulation
The PDF Versions

The India Today Anti Fake News War Room (AFWA) conducted an investigation. It discovered that distributing e-paper PDFs free of cost is not illegal. But downloading onto a hard drive and replicating the e-paper or a part of the same in PDFs and forwarding it on Telegram and WhatsApp is illegal. This is due to Section 66B of The Information Technology Act, 2000. Section 66B penalizes dishonestly receiving or retaining any stolen computer resource when the user has reason to believe the same to be stolen.

There is another argument along a similar line when considering paid PDFs of e-papers. The service provider may make it a paywall service and prohibit downloading content. Then the same will also fall under the scrutiny of law.

The Distinctive Element of Circulation of the E-Paper

Now we advance to the second category of user agreement classification. An e-paper’s user agreement act as the distinctive element in determining whether a user can circulate the e-paper.

For example, The Hindu’s e-paper’s Clause 11 of the terms of use, even for those who access the e-paper on a free trial basis. It states that “contents of this e-paper are proprietary and should not be shared with anyone.” From a circumstantial point of view, Hindu e-paper mandates one to log in it via a social media account. Otherwise, one has to make a new account. This is suggestive of how the e-paper service is restricted to a distinguishable user. That is, it is not meant for anonymous transmission.

But, it becomes more confusing when we reach e-papers which do not provide for user agreements. When there are no Terms & Conditions restricting usage, one might think they are free to circulate such copyrighted content.

Implied License

This arises when the copyright owner gives unwritten authorization to another to use that material. This holds true, especially when considering e-papers that do not need user login/creation to read the e-paper.

It arises when anyone can download content without providing any identifying information. The Statesman’s e-paper is a prime example of this offering nothing but a click-wrap agreement. But a user isn’t bound by such a click-wrap agreement dye to the Netscape judgment. The Netscape judgment mandates certain provisions in the T&C to be noticeable. Moreover, the Financial Express confirms this position.

But, one may also argue the converse. There may be an implied license preventing the downloading and circulation of e-papers. This may be due to the reasonable manner of use. Thus, there is no direct method of applying the doctrine of implied license in the case of free e-papers. On one hand, it is problematic to claim that circulating the PDFs on digital platforms is ‘normal use’. On the other, permitting a PDF download and signing a user agreement implies a license to circulate it too.

Fair Use

Section 52(1)(a)(ii) and (iii) of the Copyright Act, 1957 permit users to copy and circulate materials. Provided it is for criticism, review, or reporting of current events. Thus, the limited circulation of specific articles for the purposes of discussion or reporting isn’t unlawful.

The courts decide whether an activity qualifies for the privilege of fair dealing based on the following aspects:

  • the purpose of use;
  • the nature of the work;
  • the amount of the work used, and
  • the effect of the use of the work on the original.

Download and circulation of newspapers do not qualify for the privilege of fair dealing as per the factors. But, for other uses of WhatsApp and Telegram forwards such as educational groups, the Doctrine of Fair Use will apply.

Administrators

The Indian newspaper, Dainik Bhaskar recently threatened legal action against administrators of groups that circulate PDFs of e-papers. But, the same appears to be a blank threat when looked through the eyes of the law.

WhatsApp and Telegram group admins have no control over content forwarded by members. Thus, they are not liable for such forwards. The Hon’ble Supreme Court in R Kalyan v. Janak C Mehta and the Hon’ble Delhi High Court in Ajay Bhalla v. Suresh Chawdhary have struck down the liability of the group administrators.

Furthermore, the issue of a minor’s liability comes into play. A majority of group admins on platforms such as WhatsApp and Telegram are minors. As laid down in the landmark case of Mohori Bibee v. Dharmodas Ghose, a contract entered with a minor is void ab initio. The concept of Copyright licenses also falls under its purview. This overlap between contract and copyright law absolves minors from being liable for forwarding e-papers on social media platforms.

Conclusion

The coronavirus pandemic has affected society at large. Its effects on an already ailing journalism industry have carved out unfathomable wounds. The industry stands split on the issue of e-papers. While the industry may threaten legal action, one can dismiss it as a toothless tiger. Unless there is an outright forwarding of PDFs in contravention to the terms and conditions.

We as informed citizens can definitely do our part in securing unbiased media for the coming generations. From simple tasks such as disabling Ad Blockers to subscribing for the service provided. This will help us to sustain the fourth pillar of democracy.


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