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When the lockdown restrictions came into effect, the physical distribution and door step delivery of newspapers became affected. Faced with these constraints, most newspapers started offering free trials on their websites for e-papers and even free PDFs of the day’s paper.
This also led to a surge in e-papers getting forwarded on social media by individuals, rather than newspapers themselves. Newspaper Dainik Bhaskar then came out with a piece claiming that downloading and circulating PDFs of e-papers was illegal. This was perhaps a result of an alleged advisory issued by the Indian Newspaper Society (INS) to its members. The advisory took the position that downloading, modifying and/or circulating e-papers were illegal and members should take strict legal action against this.
IndiaToday did a fact-check on this. As per it, the Dainik Bhaskar claim was not entirely true because circulation of free PDFs was not illegal. Thus, the thrust of the IndiaToday fact-check was that as long as the e-paper was free, one could circulate it.
To what extent are the claims of Dainik Bhaskar and IndiaToday true?
Categories of E-Papers
For our analysis, let us divide e-papers into two broad categories: (1) those which come with a user agreement, and (2) those which do not. I have consciously chosen this classification, instead of a paid/free (as the India Today fact check does) one. This is because a newspaper’s terms and conditions act as the distinguishing factor in deciding whether one can circulate an e-paper, irrespective of whether it is free or not. This should become clearer from the discussion below.
The Hindu’s e-paper falls into the first category as their website clearly mentions the terms of use, including in relation to downloading, copying and circulating. These terms appear even for those who access the e-paper on a free, trial basis. For instance, following is their term in relation to sharing/circulating copies:
“Content sharing: The contents of this e-Paper are proprietary and should not be shared with anyone. This condition doesn’t apply to sharing individual articles on social media websites for the purpose of initiating discussions and expressing opinions.”
Thus, even if you receive free access to The Hindu, you are normally bound by these terms as they do not provide any exceptions. The fact that the Hindu e-paper requires you to access it through a social media account or create a new account too may be indicative of how the service is limited to an identifiable user and not meant for circulation.
Outside of these terms, the fair dealing provisions in Section 52(1)(a)(ii) and (iii) of the Copyright Act, 1957 allow users to copy/circulate these materials, if it is for the purpose of criticism/review or reporting of current events. Thus, limited circulation of individual articles for the purposes of discussion and/or reporting should not fall foul of the Act. Even here, whole sale downloading and circulation of e-papers (as opposed to specific reports/stories) may not pass scrutiny, unless it is accompanied by any material which makes the use transformative.
Implied License?
It is the second set of e-papers/PDFs which is shrouded in confusion. For instance, the complete PDF of Indian Express newspaper (along with its business news counterpart, Financial Express) is available online now for free. One can simply download them without having to log in or provide any user information. Moreover, I could not find any terms or conditions on the website which hosts these PDFs.
On the other hand, The Statesman’s e-paper, which too is freely downloadable, comes with a short click-wrap agreement: “Circulating any copies of this publication or part thereof, is ILLEGAL and strict legal action will be taken against individuals”. Thus, although one can freely download the paper itself, there is a clear prohibition on circulating it.
Courts have in the past held that if a user is being bound by certain license terms, they have to be given reasonable notice of the same. In the case of The Statesman, it would appear that users are free to do what they wish with the PDF as long as they don’t circulate it.
Does this mean that in the case of newspapers with no terms at all, like the Indian Express, users get the right to circulate? In the absence of a written user agreement, what are the terms one is bound by?
One way to look at it is that there is an implied license to circulate the e-paper. Such a term may be implied from the fact that anyone is free to download the paper without providing any identifying information. Moreover, the Managing Editor of Financial Express too seemed to affirm this position on a Twitter discussion about circulating e-papers. Nevertheless, his clarification indicated that such a license may expire once the lockdown ends.
In the absence of a user agreement though, it is difficult to conclusively decide one way or the other. We will then have to place reliance on the doctrine of implied license. The vital test to determine the limits of an implied license is to see if the act in question is important to give meaning to the arrangement between the parties. Moreover an implied license exists so that the licensees can make normal use/exploitation of a product that is licensed to them. Also, the conduct of the licensor is relevant to determining the limits of such a license.
A useful decision in relation to implied licenses is Field v. Google, where the Plaintiff sued Google for ‘caching’ his works. Caching involves storing a copy of the pages that Google indexes. As an archive of these pages, users can access the cached page for a copy of the page even when the original website is down.
The Plaintiff argued that Google was in infringement of his content every time a user accessed Google’s cache for his works. Nevertheless, the Court held that Google had an implied license to cache the Plaintiff’s works. Since websites could always easily opt-out from having their content cached (by using a meta-tag) and this had become a well known standard within the industry, the Court held that Google had an implied license to cache the Plaintiff’s works.
Thus, if the websites failed to opt-out, it was implied that Google had the license to cache their pages. Such an interpretation stems from the fact that it is almost impossible for Google to individually reach out to each website owner.
There is no straight forward way to apply the concept of implied license in the case of free e-papers and their PDFs. On one hand, it is difficult to argue that circulating the full copy en-masse on digital platforms can be considered as normal use of the product. On the other, one could always argue that allowing a PDF to be freely downloaded, without any user agreements, implies a license to distribute it too. This makes even more sense when read in conjunction with the purpose for which these e-papers are being allowed to be freely accessed – more publicity for newspapers when physical distribution is difficult. Moreover, in cases where newspapers themselves are actively encouraging circulation of PDFs (as in the case of Financial Express), there is an even stronger argument in favour of an implied license to circulate.
Conclusion
Whichever way one looks at the question of implied license, it should be clear that the right to circulate is not dependent on whether or not an e-paper is freely available. Instead, it is contingent on the terms attached to the specific e-paper as well as the existence of an implied license.