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PROTECTING FAN FICTION: DOES INDIAN COPYRIGHT LAW NEED AMENDING?

March 15, 2023

* Ms. Arushi Dubey

Many of us have been disappointed at least once in our life with the ending of our favorite books or web series and have wanted to change those endings by giving our own interpretations. Who can forget the colossal disappointment fans felt with the end of the iconic show Games of Thrones or the massive craze over fantasy series like Twilight and Harry Potter? These books and web series have a dedicated fan following worldwide. With the advent of the internet and easy connectivity, these fans have a tool to express their love and pay homage to their beloved books and web series.

This tool is fan fiction which, according to the Merriam-Webster dictionary, means “stories involving popular fictional characters that are written by fans and posted on the internet". Websites like Wattpad and Archive of Our Own or AO3 have catered to not only the tight-knit community of fans but also helped novice writers test their creative skills and have provided voracious readers with an additional option. While this kind of storytelling took birth in the West, it has also taken flight in India. Many Indian fans see fanfictions as an avenue that allows them to engage with free literature and different views on the classics they all love. Though fan fiction is becoming popular, it engages with someone's copyright, not always with permission. This fact is of concern, and various jurisdictions worldwide have addressed it. This blog attempts to analyze the legality of fan fiction regarding copyright law in India while comparing the situation with that of other jurisdictions like the USA and the UK.

The US copyright law defines derivative work as something which is “based upon one or more pre-existing work such as…… dramatization, fictionalization,…… or any other form in which the work may be recast, transformed or adapted.” The UK copyright law states that “a derivative work is a work that is based on another work”. Indian copyright law does not specifically provide a definition of derivative work. This definition can be gleaned from certain judgments like Eastern Book Company & Ors v. D.B.Modak & Anr. A plain reading of this judgment provides an understanding of derivative works under Indian copyright law. As per the judgment, a derivative work makes the contribution of original material to a pre-existing work which leads to recasting, transforming, or adapting the latter. Going by these definitions fan fiction can be classed as derivative works under copyright law. The exclusive right to deal with the original work lies with the work's author. Meaning thereby that the author can restrict others from making derivations of her work without her permission and can even initiate action for copyright infringement.

Fan fictions are not only using literary work in the story but also the characters of the story. The question of whether characters will be given copyright protection was an issue in an interesting case law in the UK (United Kingdom). In the case of Shazam Productions Ltd v. Only Fools, the Dining Experience Ltd & ors, the issue was whether an immersive dining experience based on the popular TV show 'Only Fools and Horses', without taking permission from the copyright owner would amount to infringement. The United Kingdom High Court answered in the affirmative, ruling that copyright would exist in the characters of the TV show which inspired the dining experience. The jurisprudence behind character copyright comes from the USA. Courts over there have developed tests to judge whether to grant copyright protection to characters or not. In one of the cases of Warner Bros v. Columbia Broadcast System, in order for a character to qualify for copyright protection, the "the tale being told" requirement, which specifies that the character must be vital or crucial to the tale being told, must be met. Another test used in the USA is the 'well-delineated test', in which the character must be a well-rounded and well-developed part of the story to be worthy of copyright protection. India also recognizes character copyright. In Malayalam Manorama v. VT Thomas, Kerala High Court ruled in favour of the defendant and pronounced that he would be the owner of the characters of the fictional stories he wrote during employment. In another case, Star India v. Leo Burnett, without the creators' consent, characters from the well-known Indian TV program "Kyunki Saas Bhi Kabhi Bahu Thi" were featured in a detergent commercial. The Bombay High Court ruled that this amounted to copyright infringement. Applying this to the case of fan fiction would mean that amateur fan fiction writers are at risk of being accused of copyright infringement, opening them to the risk of litigation.

At this junction, Defences/Exception to copyright infringement come to the rescue. Fair dealing can be used to protect writers of fan fiction from possible infringement lawsuits. Section 52(a) provides for fair dealing under Indian Copyright law. According to this section, any work used for private purposes, research, criticism, review, and reporting current events would amount to fair dealing and will not be considered copyright infringement. The terms research, private use, criticism, review, etc., are wide-ranging. This means that in most cases, it cannot be definitively decided whether any use will fall under these exceptions are not. In most cases, courts will have to be involved in deciding on the legality of the use. If we take fan fiction to fit it into the broad terms of fair dealing it will definitively not be seen as a private purpose as they get disseminated on the internet. It will not fall under research and reporting for current events. We are left with criticism or review. It will be difficult to put fan fiction in this category as the structure and purpose behind using the original work in fan fiction is neither criticism nor review. As far as Indian copyright law is concerned, there is a full chance that fan fiction writers can be left high and dry.

To avoid such a scenario, India should take a leaf from the book of UK Copyright law. They faced this difficulty and decided to amend their copyright law to ensure a balance between protecting the interests of authors/owners and promoting creativity in society. The Copyright, Design, and Patents Act 1980 (CDPA 1980) under section 30A states that any work used to make a caricature, parody, or pastiche would not be copyright infringement. Fanfiction as a class of work can be easily accommodated as a pastiche. Thus, making it an exception to copyright infringement. India should adopt the same approach and include specific categories of work like caricature, parody, and pastiche in Section 52(a) of the Act. The proposed amendment will serve a two-fold purpose. Firstly, the clarity regarding fair dealing provided by this insertion will lead to a better understanding with fewer people banging on the court doors. It has been left to the court to add categories of work that will amount to fair dealing. As has been the case with the courts recognizing parodies as fair dealing. Secondly, the proposed amendment will lead to a more balanced copyright law in the country.

References:
  1. MERRIAM WEBSTER, Fan fiction Definition & Meaning - Merriam-Webster (last visited Jan 21, 2023).
  2. Bulbul Dhawan, New Form of reading among young adults: A compelling case for fanfictions, FINANCIAL EXPRESS ( February 17, 2017, 1:47 PM), https://www.financialexpress.com/lifestyle/new-form-of-reading-among-young-adults-a-compelling-case-for-fanfictions/2195149/ .
  3. Cornell Law School, https://www.law.cornell.edu/uscode/text/17/101 (last visited on Jan 31, 2023).
  4. UK Copyright Services, https://copyrightservice.co.uk/copyright/p22_derivative_works  (last visited on Jan 31, 2023).
  5. Eastern Book Company & Ors v. D.B. Modak 2008 (36) PTC 1 (SC).
  6. Shazam Productions Ltd v. Only Fools, the Dining Experience Ltd and others, [2022] EWHC 1379 (IPEC).
  7. Warner Bros Pictures v. Columbia Broadcasting System Inc., 104 US P Q 103 (9th Cir 1954).
  8. Sanjana, The intersection between copyright law and fictional characters, IIPRD BLOG  (Jan 31, 2023, 2:48 PM), https://www.mondaq.com/india/copyright/1112382/exploring-copyright-protection-for-fictional-characters.
  9. Malayalam Manorama v. VT Thomas,AIR 1989 Ker 49.
  10. Star India Private Limited v. Leo Burnett (India) Private Limited, 2003 (27) PTC 81 (Bom).
Author:

* Ms. Arushi Dubey
LLM (IPR) King’s College London
Advocate (Punjab and Haryana Bar Association)

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights(ACIPR) and the Centre does not assume any responsibility or liability for the same.