Image from here
Factual Background
The Bombay High Court recently granted interim anticipatory bail to actor and content creator Sherlyn Chopra, who was charged by the Mumbai Police’s cyber cell for uploading pornographic and obscene videos online. The Court directed the actor to cooperate with the investigation, report at the police station daily from March 15-17, and directed the police to report to it on the next date of hearing, which is March 23. In this post, I use this case to comment on the larger conversation regarding the use of copyright law as a remedy in cases where people’s private images/videos are shared online without their consent.
Chopra has been charged with offenses under Section 292 (sale of obscene material) of the Indian Penal Code as well as provisions of the Information Technology (IT) Act and Indecent Representation of Women Act upon a police complaint by Madhukar Keni, a retired Customs and Central Excise official.
During the bail hearing, the 37-year-old actor claimed that she was a victim of piracy and that the videos were uploaded without her consent. As per Section 75 of the IT Act, the statute applies to offences committed outside of India by any person if the act or conduct constituting the offence involves a computer located in India. According to Chopra’s lawyer, Advocate Charanjeet Chandrapal, the videos were meant for a subscription-based paid international portal and not free websites accessible in India. He also claimed that the alleged obscene content was created by a UK-based company of which Chopra is a director.
Does Chopra own Copyright in the allegedly Obscene content circulated?
The ruling in the case of Sex Style v. Abutbul by the Israeli Magistrate Court in Herzliya is a case in point on this issue. The case concerned a plaintiff who was a producer of pornographic content and who sued the defendant for copyright infringement. The Court held that even though the plaintiff’s content would have been protected by copyright, such protection would not be extended to it because of its immoral nature and contravention of Israel’s Penal Code. In some case, English Courts have also refused to enforce copyright in works that were ‘grossly immoral’ or those that were created in ‘disgraceful circumstances’.
As far as Indian law is concerned, as discussed previously on the blog in more detail (see here and here), a combined reading of Section 2(y) and Section 13 of the Copyright Act, 1957, demonstrates that for the subsistence of copyright in a work, the statute does not prescribe any requirements regarding its contents apart from originality. This makes the legislative intent regarding copyright protection of illegal works clear (as argued by Haber in the US context), particularly when contrasted with the Trade Marks Act, 1999 and the Patents Act, 1970 which contain provisions that expressly prohibit protection of marks or inventions as per criteria such as obscenity and morality.
However, the general principle of ‘no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act’, referred to by the Delhi High Court in the copyright case of Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd., may apply to preclude a Court from enforcing all rights of an owner under copyright law when the underlying work is illegal or immoral.
As per Aniruddha Majumdar, the cases that are not patently illegal and lie elsewhere on a broad spectrum of illegality raise certain concerns regarding the denial of wholesale copyright protection to the works in question. The punishment for works that are obscene is already prescribed as per the Indian Penal Code, which constitutes a sufficient disincentive for the creation of these works. The test for obscenity in Indian Courts entails a subjective determination and so does the definition of what constitutes an offence under the Indecent Representation of Women Act. This Act prohibits as a bailable offence, indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner. ‘Indecent’ refers to the depiction of the figure of a woman; her form or body or any part in a way which has the effect of being indecent, derogatory or denigrating to women, or is likely to deprave, corrupt or injure the public morality or morals. As per Section 4(a)(1), depictions in the interest of science, literature and art of a certain kind are exempted from the purview of this Act. Crucially, what is respectable is not judged from the point of view of the woman but from the standard of the ability to corrupt public morality. Given our culture and public morality, the object of attack has always been sexually suggestive representations of women, which reinforces the notion that only sexless women are deserving of respect. The law imposes a repressive puritanical culture in the name of doing away with the objectification of women, without accounting for the circumstances of the publication. If Chopra’s claims that she did not upload the content on a website accessible in India succeed, it is the uploader (responsible for circulating it in India) who would be liable for both copyright infringement as well violation of the Indecent Representation of Women Act.
Activists have noted that the harms arising out of non-consensual sharing of intimate images (NCII), particularly in regions where colonial laws prohibiting obscenity can criminalize victims of NCII for creating ‘immoral content’, are often considered to be self-inflicted. However, these moralistic notions of women-who-transgress-social-norms-deserve-no-legal-remedy should not translate into a complete denial of copyright protection to victims for the works in question.
If Chopra can successfully assert copyright ownership of the content created by the UK Company in which she is a Director, there would be an expectation of limited, geography-based circulation and control over publication, reproduction and communication to the public.
Image from here
Can Copyright Law Offer a Remedy?
This case raises important questions regarding authorship in NCII and whether copyright law can offer a remedy. When the NCII is a selfie, the assertion of authorship by the victim is typically easier since most jurisdictions would recognize the victim as the author of the image and the owner of the copyright subsisting in it. This may not be so straightforward when the NCII constitutes a recorded work where the creator may be different from the subject captured.
John Tehranian notes in this regard that the connection between fixation and authorship, and intention and joint authorship empowers copyright holders to shape and control the representation of the bodies of women and other minorities while suppressing counterhegemonic narratives that resist these marginalising and dominant representations. This reifies the male gaze as per the traditional lines of activity of the male author as against the passivity of the observed female muse/object. Similarly, Anthea Kraut demonstrates that assignment of copyright in choreography depends heavily on the dancer or choreographer’s position in the social hierarchy governed by race, gender and class. This reveals the racialised character of propertisation which treats some bodies as “fungible commodities” while according the status of creators or “possessive individuals” to others. Copyright’s authorship as well as the moral rights vested in it, privilege the rights of the ‘mastermind’ behind the camera as opposed to the person captured in front of it. This is also evident by the Ninth Circuit’s reasoning in the famous U.S. case of Garcia v. Google, which involved a plaintiff who was portrayed in a film without her knowledge. She tried to prevent the film from being viewed publicly by claiming sole authorship over her individual performance in the work. The Court expressed sympathy for her but held that her claim was only meant to suppress speech and as such could not succeed when premised on copyright law instead of privacy, emotional distress or tort law. This judgment has been criticised for courts’ use of free speech rhetoric to arrive at arbitrary outcomes since almost every take-down action in copyright law is as speech suppressive as the remedy sought by Garcia.
Suggestions and Drawbacks
Given the liquid nature of information on the internet, and its capability of being communicated across vast distances, the harms to victims of NCII are exacerbated in our current technological environment. In these circumstances, the urgent priority of most victims is to ensure expeditious and permanent removal of their NCII from the internet, for which copyright has emerged as an unlikely but effective remedy. Unlike privacy law, which is still evolving, copyright law has been regionally and internationally harmonized over time.
There have been proposals to recognise victims of NCII as at least the joint authors of the content that features them, since the interest and value in this content often arises entirely out of the subject appearing in them instead of any other party’s contributions. Another proposal is to create a new exclusive right in intimate images, vesting in the subject who can prohibit the distribution, performance, display (including the private distribution, performance and display) of the content concerned. Yet another proposal is that copyright enforcement in such content must be conditional upon affirmative proof that its recording entailed the full consent of its subjects who were informed that this content would be widely distributed. Yin Harn Lee cautions that these proposals could lead to highly fragmented copyright ownership, making the transfer and exploitation of rights more complex and expensive. He suggests a remedy that would make a less fundamental change to authorship in copyright law, drawing on the terms of the settlement in the case of Chambers v. DCR, where the claimant successfully obtained injunctive relief against the defendant in the tort of misuse of private information. The claim was based on the defendant’s non-consensual distribution of the claimant’s private sexual images. This remedy, akin to the well-established remedy of delivery up ‘in aid of’ an injunction, gives the court the discretion in suitable cases, to direct the defendant to assign any copyright they may have in the images to the claimant, to enable the claimant to compel the removal of NCII from third-party websites.
The notice-and-takedown provisions under copyright law may help victims directly contact website owners hosting the content and compel its removal instead of approaching the police and other state authorities, who often engage in victim blaming, shaming and revictimization. For instance, Section 66E of the IT Act is a targeted provision that punishes privacy violations (though limited to the capture and publishing of ‘private areas’) and Section 67 and 67A penalise the publication and transmission of obscene material (moralistic concerns instead of prevention of cyber harassment animate this provision which also often curbs legitimate sexual expression). However, the nature of the criminal justice system in India which is particularly hostile to women, combined with deep seated social stigma that results in underreporting of sexual offences, may make some victims prefer copyright law over remedies under criminal law.
Conclusion
Finally, copyright law only provides an ad hoc solution to victims whose private images/videos have been shared online without their consent. This mischaracterizes the harm caused to them as a mere infringement of their intellectual property. For instance, the Judicial Magistrate in Tamluk, Medinipur in West Bengal in the case of State of West Bengal v. Animesh Boxi @ Ani Boxi (Case No. GR: 1587/17) likened non-consensual sharing of sexual images online to “virtual rape”. Vrinda Bhandari and Anja Kovacs lauded this judgment despite the term “virtual rape” suffering from definitional problems and being unsatisfactory. This is because the judgment endeavours to bridge the rift between online and offline gender-based violence, which currently limits our understanding of the harms arising out of online abuse against women. It is unsettling that resorting to intellectual property law’s property-based reasoning may be the most effective method of safeguarding victims’ rights in real time absent a more comprehensive, unified set of measures and their victim friendly implementation on the ground.