With the increase in the number of Internet users, the use of social media has become very common in the modern-day scenario. Social media was created to remove the physical barriers between people and make human interaction easier and barrier-less, but with time social media has become a great platform for sharing content, images, thoughts, beliefs, humorous content, etc. One such humorous content is memes.
Memes are an image, video, piece of text, etc., typically humorous, that is copied and spread rapidly by internet users, often with slight variations & the person who creates a meme is called a “memer”.
Types of Memes and their impact on Copyright Protection
Generally, there are two types of memes:
1) Where the person creating the meme uses images or videos or texts which are already copyrighted by some other creator to create his meme.
For Example, The famous character of “Dwight K Schrute” from the famous web series called “the office” is used by many memers to depict savage and humorous replies.
In the above case the copyright of the image of “Dwight K Shrute” lies with the producer of the web series “the office”. Therefore, if the producer of the web series can prove that this meme is infringing his copyright then the producer can stop the meme from being shared further. The key point, in this case, is to determine whether there is any substantial imitation or copying of the original work and if yes then such memes would constitute infringement.
2) Where the person creating the meme uses images or videos or texts which originally belongs to him to create his memes. Such memes can be termed artistic works as there is a sufficient amount of talent, labor, and judgment involved in the creation of such memes. Hence the creator of such memes can claim copyright on them. But on the contrary sharing, such kinds of memes without the permission of the creator will lead to copyright infringement and the creator of the meme can stop his meme from being shared.
“Doctrine of Fair Use” under The Copyright Act 1957 (Section 52)
“The doctrine of fair use” acts as a good defense when it comes to copyright infringement. Section 52 The Copyright Act of 1957 has enlisted certain grounds to determine whether work is a “fair use” or not. To claim the defense of fair use any one of the following grounds must be satisfied.
- Firstly, it is important to determine whether the purpose of the copied work was to gain a commercial benefit or not. Memes are generally created for entertainment purposes and there is no element of commercial benefit. However, if a meme is created for commercial benefit without the permission of the author then the creator of the meme cannot take the defense of “the doctrine of fair use”. Generally, memes are created for entertainment purposes and hence they satisfy this ground under “the doctrine of fair use”.
- Secondly, it is important to determine the Nature of Copyrighted work, generally, memes are made of already published materials and in such cases, the author of such work has exhausted his public appearance hence the memer can claim the defense of fair use.
- Thirdly, the amount or proportion of copyrighted work used, if a very slight proportion of copyrighted work is used and the substantial portion is not copied then the creator of a meme can take the defense of fair use.
- Fourthly, the effect on the consumers, generally memes are targeted only for entertainment purposes and not commercial gains. Hence memes are protected under this doctrine as they are mostly for entertainment purposes.
The only exception to the defense of fair use is when content is made to harm society or violate an individual’s right to privacy enshrined under article 21 of the Constitution. In these cases, the memer cannot take the defense of fair use and he is liable for legal action.
Memes and copyright infringement have become a very common issue in India, but to date, the courts have not witnessed any meme-related litigation. There have been cases where defamatory remarks have been circulated through memes but as of now, no litigation in India has taken place for copyright infringement with regards to memes. Hence in India, we need better Copyright Protection and new cyber laws to cover such aspects, we need to increase awareness about the Copyright Laws in India and we also need to educate individuals about copyright infringement.
In the year 2021 the parliament took a forward step and passed the “The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which talks about identifying the creator/originator of the content in case an inappropriate content and other ethic codes relating to social media. This step is very useful to curb the infringement of copyright through social media platforms as the originator/creator of the infringing content can now be identified.
1ST LLB, ILS LAW COLLEGE