Learn about the Fair Use of Copyright for Webinars

All traditional learning techniques have come to a standstill as a result of Covid-19. During the epidemic, they have turned to online learning as an alternative. Since the lockdown limits went into effect, the number of webinars has increased by orders of magnitude. Although privacy invasion has been the main topic of discussion in this virtual context, there is another issue at hand: copyright infringement.

The rights of speakers, organisers, and participants under Indian copyright law will be discussed in this Article, which will explore copyright concerns connected to webinars. While the copyright conditions in the user agreements of the applications in question are always important, it will be assumed for the purposes of this post that the apps do not claim ownership through these user agreements.

Ownership of copyright in the lectures presented by the speakers

If a webinar’s speeches, lectures, and addresses (collectively referred to as “lectures”) are scripted, they are copyrightable as literary works under section 13 of the Act (i.e. written in advance).

According to section 17, the creator of a work is the first copyright owner, but if the work is created as part of a contract of service, the employer is the first copyright owner unless the contract states otherwise (under section 17(c)). Nevertheless, section 17 (cc) makes an exception for speeches or addresses “delivered in public,” stating that the person who focuses on delivering them retains first ownership of the copyright, regardless of whether the speaker is employed by another “person who arranges them” or “on whose behalf or premises they are delivered.” As a result, copyright in the lectures/speeches presented in webinars belongs to the presenters, not the organizers/employers.

It should be emphasised, however, that section 17(cc) only applies to addresses and speeches given “in public.” The Bombay High Court used the English’ character of the public test’ to determine what can be regarded as ‘public’ under the Indian Copyright Act in Garware Plastics v. Telelink (1989). This test differentiates between people that have no common bond other than a desire to attend the work and those who have a private/domestic bond that separates them from the wider public. Though whether an address is public or private depends on whether the audience has a common bond, such as being students at the same institution, if they work for the same business or belongs to them.

The common practise of webinars, particularly instructional ones, appears to be to maintain participation available to anybody, therefore classifying them as ‘public’ according to the criteria. Furthermore, even if the webinar is private, the presenters retain copyright in the lectures they provide unless they do so in the course of their job under agreements related to services or work. In whatsoever case, unless they are the speakers’ employers, webinar organisers do not hold the copyright in the lectures.

The common practise of webinars, particularly instructional ones, appears to be to maintain participation available to anybody, therefore classifying them as ‘public’ according to the criteria. Furthermore, even if the webinar is private, the presenters retain copyright in the lectures they provide unless they do so in the course of their job under agreements related to services or work. In whatsoever case, unless they are the speakers’ employers, webinar organisers do not hold the copyright in the lectures.

Rights of the webinar organisers to record and distribute the webinars

There is no criterion of originality in connection to a cinematograph film (i.e. any work of visual recording) or a sound recording, according to section 13(1) of the Act. However, copyright does not exist in a cinematographic film if a major portion of it is a violation of copyright in ‘any other work,’ and in a sound recording if the underlying work was infringed while creating it. A copyright owner of a literary work has the sole right to create any cinematograph film or sound recording in respect of the work under section 14(a)(iv). As a result, the presenters of a webinar’s lecture have the unique right to produce a visual recording.

This means that anybody (the organiser, a participant, or anyone else) who creates an AV recording of a lecture without first obtaining a permission from the speaker is infringing on the speaker’s copyright. This will make the AV recording an illegal copy (unless the creation of it is authorised under Section 52), and the person producing the recording will have no copyright over that recording, even if they are its effectuator, due to Section 13(3). If the webinar organiser records it with all of the presenters’ permission, the recording will have copyright. And, as its producer (see section 2(1)(uu)) and hence author (see section 2(1)(d)), the organiser would be  its copyright owner.

Fair use; webinar recordings

In some situations, even if a person does not receive a licence from the copyright owners of the lectures that makes a webinar or their recording, for the use of lectures/recording does not constitute copyright infringement under Section 52. Section 52(1)(i) and section 52(1)(ii) are two crucial fair use exceptions that might be used in the case of using webinar lectures/recordings for educational purposes (j).

Section 52(1)(i) relates with a teacher or student reproducing a work “in the course of education.” In the well-known Rameshwari Photocopy case, the Delhi High Court gave the phrase “in the course of teaching” a broad connotation, encompassing all of the actions that a teacher engages in while imparting literacy. The other significant exception is section 52(1)(j), which allows an educational institution to communicate any cinematograph film or sound recording to an audience consisting of its staff, students, parents and guardians of the students, or any other persons connected with the institution’s activities during the course of its activities. So, if a webinar lecture/recording is utilised in the classroom by a teacher or student, or screened as part of an educational institution’s operations, it is not considered copyright infringement.

However, it is important to note that the fair use principles would only apply to the use of webinar lectures/recordings if the recording was created with a permission (explicit or implicit) from the webinar presenters in the first place.

In webinar recordings, what are the rights of participants?

Section 2(n) defines a lecture as an address, speech, or sermon, suggesting that an oration must be extensive and extended to qualify as a ‘lecture’ for the purposes of the Act, and should not be brief, transitory, or of a passing nature. As a result, the participants’ contributions, which are normally in the form of questions or brief comments, are unlikely to be protected under copyright as a lecture.

In addition, copyright law favours protection for long statements over short ones. The Delhi High Court, citing several sources, held in Pepsi Co. v. Hindustan Coca-Cola that there is no copyright in ordinary words and minor works since they lack literary quality. Participants’ contributions are often brief, straightforward, and comprised of commonly used phrases. As a result, copyright protection is unlikely to apply. As a result, they do not have the sole right to create a recording of their contribution, unlike the speakers (unless the contribution qualifies as a copyrightable work).

Conclusion

Fortunately, no copyright conflicts over webinars appear to have emerged to far. Many webinar organisers and presenters are likely to be unaware with the many copyright concerns involved in webinars and would prefer to work out an informal agreement based on mutual understanding. However, an examination of relevant legal rules reveals that determining ownership of various aspects of a webinar might require complicated copyright issues that aren’t typically mentioned orally. As a result, it is critical for organisers and speakers who are concerned about these claims to enter into a formal written agreement that explicitly states the parameters of their participation in accordance with copyright law, in order to avoid future legal conflicts.



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