User Generated Content, Parody and Memes

In one line

India has no parody exception. A parody, a meme or a remix has to be squeezed into criticism or review, and the closest thing Indian law has to a doctrine of transformative use came from a mathematics guide book.

In the wording a student can write in an exam: section 52 of the Copyright Act, 1957 contains no exception for parody, caricature or pastiche, so a parodist must bring his work within section 52(1)(a)(ii), fair dealing for the purpose of criticism or review, whether of that work or of any other work, and the author's moral right under section 57 to restrain a distortion prejudicial to his honour or reputation may be raised against him besides.

Why the question is difficult

Because a parody must take enough to be recognised. The whole point is that the audience knows what is being parodied, which means taking the recognisable parts.

Because Indian law has no clause for it. Section 52 is a closed list, and parody is not on it. A court cannot add it.

And because two rights are engaged, not one. The economic right, which section 52 might answer, and the moral right in section 57, which section 52 does not touch.

The only door: criticism or review

Section 52(1)(a)(ii). A fair dealing with any work, not being a computer programme, for the purpose of "criticism or review, whether of that work or of any other work".

Two things it gives a parodist. The words "or of any other work", which mean the criticism need not be of the work taken; and the fact that criticism is not confined to literary criticism.

Two things it does not. It requires the purpose to be criticism or review, so a parody made for amusement rather than comment is outside it. And it requires the dealing to be fair, which limits how much may be taken.

And the acknowledgment condition applies. The proviso after section 52(1)(y) requires an act under clause (a)(ii) to be accompanied by an acknowledgment identifying the work and, unless it is anonymous or the author has agreed otherwise, the author.

The transformative use idea

Facts. In The Chancellor, Masters and Scholars of the University of Oxford v. Narendera Publishing House, decided on 17 September 2008, the publishers of a mathematics textbook sued the publisher of a guide book that reproduced the questions from the textbook and worked out their solutions step by step.

Held. The interim injunction was vacated. The purpose and manner of the defendants' use was different from the plaintiffs', and the guide supplied what the textbook did not, the steps of the working, so the work was transformative and amounted to a review within section 52(1)(a)(ii). Review in that clause has to be read in the context of the work: for a mathematical work it can mean re-examination or a treatise on the subject.