BANNING OF ONLINE SHARING OF E-PAPER BY REHAN AHMAD

Impact of Covid-19 is seen in every sector of the economy; many experts predict that the world will be witnessing a big recession in coming years. It has affected every sector of the economy, be it public or private sector, one of such industries is the news printing industry. Indian Newspaper Society (INS) has requested the central government to provide a strong stimulus financial aid as the industry is likely said to have lost over 4,000 crore in the last two months and further will suffer losses of up to 15,000 crore in the next six to seven months. Indian Newspaper Society wrote a letter to the Information and Broadcasting Secretary and said that the newspaper industry is among the worst affected in India and has hardly any revenues from either advertising or circulation in this lockdown. INS also demanded to lessen the five per cent customs duty on newsprint. According to the data provided by INS, it is clear that newspapers provide direct and indirect employment to almost 9-10 lakh people and over 18-20 lakh people respectively. They also requested the central government to provide two year tax holiday for newspaper establishments, 50 per cent increase in advertisement rate of Bureau of Outreach and Communication and 100 per cent increase in budget spend for print media. Many restrictions came along with the announcement of the lockdown; the physical distributions of the papers were restricted. Most of the newspapers started offering online browsing on their websites. They offered free trials and even gave the PDF version of the day’s paper which eventually led to tons of newspaper forwarding on social media platforms. Later Dainik Bhaskar came up with a report stating that the sharing and downloading of PDF or e-papers is illegal and further also stated that actions can be taken against the Whatsapp group admin for not putting an end to such circulations of PDFs.

The central organisation of the Indian Press i.e. Indian Newspaper Society (INS), came forward and said that “if a media house gives free PDFs of e-paper, then circulating them is not illegal.” However, in the report by India Today, the INS president stated that “It is okay to forward PDF files which are free, but it is not okay to copy a PDF from a paid e-paper service and forward it. Basically, it is being targeted for aggregators who are trying to increase their traffic because of other newspapers; it is piracy.[1] Moreover, this was recognized as the result of an alleged advisory issued by the Indian Newspaper Society (INS) to its members. This led to a lot of discussion about the legal position among netizens; also many members were warned by their social-media group administrators against such forwards. Many questioned the liability as they didn’t have any control over the posts done by the members. Most of the people questioned the opinion of the INS as many of their publication members were voluntarily sharing their publications on social media in PDF versions. The whole scenario made people wonder if this peer pressure among the members of INS would help as the main motto of the members was to gain loyal readership and to reach out to newer ones. Some newspapers offered free access to their materials in many formats. Parallel to them the technical and legal communities were arguing on how to stop such forwards on a wider scale. Ultimately this resulted in confusion between people during the lockdown, as they were refusing to take the delivery of physical newspapers. Needless to say that the print media is suffering from the growing digital consumption habits of people and the impact on their revenue models. Thus this whole dilemma required a wide angle to be understood.

The copyright owners of the e-papers and its content are the respective newspapers only and any attempt to steal or copy or to circulate it on social platforms is a violation of the Copyright Act[2], most of these PDF copies are fake and give rise to a multitude of legal issues. At the same time, it was not possible to hold social-media group administrators liable for the forwards, as they do not have any control over the group members for posting such contents. In the judgment of Supreme Court in R. Kalyani v. Janak C Mehta[3] and Delhi High Court in the Ashish Bhalla v. Suresh Chawdhary[4] it was held that the liability of the group administrators has been clearly spelt out. In Information Technology (Amendment)Act 2008 (I.T Act)[5] social media platforms define themselves as intermediaries and the roles and liabilities are limited to the same. As mentioned in the Section 79 of I.T Act 2008 and also by the rules notified in April 2011 of these intermediaries, it is clear that they are not liable if they were not responsible for the inception, transmission and reception of content through their networks. But they are bound by publication house or law enforcement to remove some PDF contents if approached.

Any individual who shares such PDFs online or is a part of it that is not sent to them by the media house will be held liable under Section 43 and Section 66B of I.T Act for the breach and a civil case may be filed and compensation can be claimed by the respective media house. However, the publication has to be individual if it has to seek damages and not a member of INS but a different member that might have served at different positions on the matter. Nonetheless to weed out all such content generated and circulated is an impossible task to do, if done practically it will be an exercise of every minute every day to identify such content and to request the intermediaries to remove them, furthermore legal recourse will be implied every time for seeking penalties from such senders. Also the publication will never want to lose its reputation and goodwill in the market as they earn much less from subscriptions as compared to advertisements. The lockdown and the economic instability have caused a problem of losing revenue to digital advertisers and platforms to the newspaper industry.

IndiaToday did a dig on this matter and did a fact-check, further they found that the claim made by Dainik Bhaskar was not entirely true as circulation of free PDFs was not illegal. They stated that as long as the e-paper is free anyone could circulate it. However the question arises here is to what extent are the claims done by both are true?

E-PAPER CATEGORIES

To understand it more clearly, let’s divide e-papers into two categories: (1) those which come with a user agreement, and (2) those which do not. For example, The Hindu’s website clearly mentions the terms of use, related to downloading, copying and circulating. These terms and conditions appear for the people using free trials of e-paper. Hence, even if someone has free access to The Hindu s/he is bound by these terms and conditions and there is no way out. However, Section 52(1)(a)(ii) and (iii) of the Copyright Act, 1957, allows readers to share or copy these materials if it is for the purpose of criticism/review or reporting of current events.

IMPLIED LICENSE

This is the second set of e-papers/PDFs which makes people more confused. If we take the example of the Indian Express newspaper, we will see that the PDF of this paper is available online for free; moreover there are no terms or conditions on the website which hosts these PDFs. However, on the other hand The Statesman’s epaper comes with a short click-wrap agreement but is freely downloadable and hence can be downloaded by anyone. But it is not wrong to look at it from an angle of an implied license to circulate the e-paper, which means that anyone can download the paper without providing any identifying information. Furthermore, the Managing Editor of Financial Express by his Twitter handle affirmed this position and also indicated that these licenses may expire once the lockdown ends. However, it is difficult to decide one way or the other in the absence of this user agreement. The test to decide the limits of an implied license[6] is to check that the questionable act is important to give meaning to the agreement between the parties. Also, for determining the limits of such a license the conduct of the licensor should be relevant.

Irrespective of the fact that the question of implied license is seen in many contexts by the people, it should be cleared that the right to share or circulate is not dependent on whether an e-paper is freely available or not. Instead, it should be contingent on the terms attached to the specific e-paper as well as the existence of an implied license.

REFERNCES
  1. http://archive.vn/6Xl5D
  2. https://epaper.thehindu.com/Home/TermsAndCondition
  3. https://www.dailyo.in/variety/indian-newspaper-society-ins-e-paper-pdf-social-media-group-admins-whatsapp-groups/story/1/32842.html
  4. https://www.indiatoday.in/fact-check/story/is-itillegal-to-circulate-pdfs-of-epaper-1673993-2020-05-03
  5. https://www.ndtv.com/business/covid-19-impact-news-newspaper-industry-could-face-losses-of-up-to-rs-15-000-crore-industry-body-2221806
FOOTNOTES

[1] Chayan Kundu, Fact Check: Is it illegal to circulate PDFs of e-paper?, India Today, May 3, 2020 21:34 IST, https://www.indiatoday.in/fact-check/story/is-it-illegal-to-circulate-pdfs-of-epaper-1673993-2020-05-03.

[2] The Copyright Act, 1957 (Act 14 of 1957).

[3] R. Kalyani v. Janak C Mehta (2009) 1 SCC 516.

[4]Ashish Bhalla v. Suresh Chawdhary (2016) SCC OnLine Del 6329.

[5] The Information Technology (Amendment)Act 2008 (Act 10 of 2009).

[6] Orit Fischman Afori, Implied License – An Emerging New Standard in Copyright Law, Santa Clara Computer and High Technology Law Journal, Vol. 25, 2008.

DISCLAIMER: The views and opinions mentioned are that of the authors and do not necessarily express that of katcheri.in.

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