Do you know how books are protected? It is commonly understood that a book is the subject matter of copyright, but do you know what copyright constitutes?
World Copyright and Book Day is celebrated on April 23 every year (since 1995) by the United Nations Educational, Scientific, and Cultural Organization (‘UNESCO’) to promote the reading, and publishing of books, and to commemorate several prominent authors – such as Rabindranath Tagore or Lee Maracle. UNESCO has announced that for celebration of the World Copyright and Book Day in 2023, the focus will be indigenous local languages. In keeping with the spirit of the upcoming celebration, an analysis of interesting copyright judgments in key jurisdictions across the world has been provided below.
In simple terms, a copyright is a form of intellectual property comprising an exclusive right granted by law to the author of an original work of authorship – including literary work as well as dramatic, musical, and artistic work. In more technical terms, copyright denotes a (convoluted) bundle of rights (including right to copy, reproduce, distribute, adapt, a work of authorship – as well as the right of the author to defend such rights). The sale of a book to a publishing house, the grant of royalties to its author, the translation, adaptation, or modification of a book etc. is achieved through systematic arrangements of copyright licensing and assignment.
As a part of copyright laws in various jurisdictions, authors are also granted certain inalienable ‘moral rights’. The moral rights of an author include the right of right of attribution (or the right to be claim authorship and to be acknowledged/credited in respect of their work) inclusive of the right to prevent the misattribution of their work to another author as well as the right of integrity (or the right to prevent prejudicial distortions of their work).
While it follows that the treatment of rights granted under law to a copyright owner (and the exemptions thereto) are different across jurisdictions (since a copyright is a territorial right), a number of international treaties and conventions provide for international recognition and protection of works of authorship (which are the subject matter of copyright) as well as recognition of authors ‘moral rights’ – most notably, the Berne Convention for the Protection of Literary and Artistic Works, 1886 (as amended on September 28, 1979) under the terms of which, contracting member-states must provide similar rights and treatment to copyright works of nationals of other contracting member states, as are accorded to domestic copyright owners.
Parallel Imports of Copyrighted Works
To start with, an interesting case in relation to the legality of parallel imports is Kirtsaeng V. John Wiley & Sons, Inc. . For reference, parallel importation means unauthorised import of authentic goods produced in another country with authorization of the copyright holder. Did you know that the treatment of the legality of parallel imports is different across jurisdictions? This is usually determined by the ‘exhaustion’ regime followed by the relevant jurisdiction [The term ‘exhaustion’ here means the exhaustion of exclusive territorial rights of copyright owners (to distribute copies of their copyrighted work) following the first legitimate sale and distribution of their copyrighted works]. In the instant case, the respondent (John Wiley & Sons, Inc.), an academic textbook publisher, claimed copyright infringement due to the unauthorized importation of its textbooks by the petitioner (Supap Kirtsaeng). The petitioner, a Thai national studying in the United States (US), had requested family and friends to purchase and mail him English language textbooks produced by respondent’s subsidiary in Asia for sale in Thailand. Thereafter, he sold the books at a profit in the US (since these were priced much lower rates in Thailand). In a landmark ruling, the US Supreme Court endorsed the ‘international exhaustion’ regime and held in favour of the petitioner. The concept of ‘international exhaustion’ may be understood as the first sale of goods by the copyright owner in any international market, leads to an exhaustion of the rights of the owner to prevent further sale of such goods anywhere internationally.
Parallel Imports in the Digital Age
Further, with the evolution of technology, the ‘digital exhaustion’ regime has become the subject matter of judicial interpretation internationally. An interesting case in this regard is Nederlands Uitgeversverbond v. Tom Kabinet Internet BV . The instant case was filed by various publishers’ claiming copyright infringement due to the re-sale of e-books by users on the e-book trading platform of respondent (Tom Kabinet). In the referenced case, the Court of Justice of the European Union (CJEU) ruled that the sale of an e-book for permanent use (via download on respondent’s platform) was not covered by the right of ‘distribution to the public’ of the copyright owner, thus there was no ‘exhaustion’ of rights by such sale. The CJEU held that the resale of an e-book is thus not permissible without authorization of its copyright-owner.
Translation of Literary Works
Another interesting case of Anil G Karkhanis v. Kirloskar Press & Anr. is particularly relevant to the theme for the World Copyright and Book Day, 2023. Did you know that under Indian copyright laws, a license allowing for publication of translated work without the permission of the author may be granted by a competent court? This is subject to fulfillment of certain conditions – including elapse of a period of seven years from the first publication of the work, a general absence of other translated versions of the work, inability to find the owner of the relevant work (even upon undertaking due diligence), competency of an applicant to translate the work and pay royalties to a copyright owner etc. In the instant case, upon analysis of the evidence submitted by the applicant/petitioner (Anil G Karkhanis), the Bombay High Court recently (vide order dated March 21, 2023) deemed fit to grant the first such license to the applicant for translating the English language book entitled, ‘The Spirit’s Pilgrimage’ into Marathi language. Interestingly, the relevant book is the autobiographical work, documenting the life of Ms. Madeleine Slade (also known as Meera Behn in India), an ardent follower of Mahatma Gandhi.
Fair Use or Copyright Infringement
Lastly, the recent case in relation to e-books is Hachette Book Group Inc. et al v. Internet Archive et al . Did you know that under laws of US, one may share copyrighted works – without copyright infringement – if the use of the work is deemed to constitute ‘fair use’? The instant case was filed by the petitioners (the Hachette, HarperCollins, Wiley, and Penguin Random House publishing houses) claiming copyright infringement due to unauthorized activities of the respondent (the Internet Archive), a non-profit digital library engaged in copying, digitizing and lending out physical books through the process of ‘controlled digital lending’ (‘CDL’) The petitioner inter-alia asserted that the respondent’s CDL activities were infringing, did not qualify as ‘fair use’ and would have an adverse impact on authors/creators and copyright owners if sanctioned by the court. Interestingly, the petitioners’ assertions were backed by amicus briefs filed by various entities representing creators and copyright owners as well as academics. On March 24, 2023, the New York Court hearing the matter concurred with petitioners and held against the respondent. Notably, however, the Internet Archive has already announced its plans to challenge the Court’s decision. It will be interesting to witness the development and interpretation of copyright law by US Courts in the months ahead, if an appeal filed by the Internet Archive.
In light of the above, it is clear that while copyright is key to the protection of works of authorship and the recognition of the contribution of authors, at the same time, the rights of authors are required to be balanced with other fundamental rights and freedoms to allow for accessibility and perpetuation of copyrighted works amongst members of the public. Further, with the rise of the internet and other emerging technologies, it is important that copyright regimes across the world match the pace of technological reforms – and provide for effective protection and enforcement of copyright over the online medium. It will certainly be interesting to witness the development and interpretation of copyright law internationally over the course of the next few years in the face of new emerging technologies such as artificial intelligence and web3 technology.
- Berne Convention for the Protection of Literary and Artistic Works (1979 Amendment Text)
- 568 U.S. 519 (2013)
- (C-263/18) [2020] ECDR 1
- High Court of Bombay vide order dt. Mar 21, 2023 in Commercial Misc. Petition No. 01/2022
- U.S. District Court for the Southern District of New York vide order dt. Mar 24, 2023 in Case No. 1:20-cv-04160