In the world of social media where people are hooked onto reels, memes and tend to click pictures, vlog their experiences, and post the same on their respective social media handles such as Instagram and Facebook, they unknowingly tend to infringe copyright of multiple owners on multiple occasions in multiple jurisdictions.

For instance, certain restaurants follow a practice of wishing the guests on their birthday through a small performance by their waiters singing “Happy Birthday” in a special manner. The guest records the performance and posts it on his/her Instagram account without obtaining the express consent of such waiters. Under the Copyright Act, 1957 the waiters will be ‘performers’ and thereby the said waiters have the exclusive right to make recordings of their performance and communicate it to public, and the act of the guest to record the performance without consent of the waiters and further post it on a social media platform technically amounts to copyright infringement[1]. Since it is copyright infringement, it can be enforced in courts, but the questions that arise are should such claims actually be enforced by a court of law and is it cost effective to adjudicate such claims? One of the answer to such an issue is the principle of De Minimis.

The principle of De Minimis is a common law principle that has been derived from the Latin term ‘De Minimis Non Curat Lex’, which means that the law does not care for, or take notice of, very small or trifling matters[2]. This principle is not statutorily recognized by most countries in the world. However, courts in India and United States of America (“USA”) amongst some other countries, have used this principle and assessed its applicability on case-to-case basis. Accordingly, this principle is largely based on judicial precedents around the world.

Factors for the De Minimis doctrine vis-à-vis Copyright Infringement laid by Hon’ble Delhi High Court:

The Indian Copyright Act, 1957 (“Copyright Act”) does not give any statutory recognition to the doctrine of de minimis. This principle, in relation to the Indian copyright law, was first discussed in 2011, by the Delhi High Court in Super Cassettes Industries Limited & Ors. v. Chintamani Rao & Ors[3] wherein a news channel called India TV, used certain copyright works such as sound recordings and clips of films produced by Super Cassettes’ and Yash Raj Films’ respectively without obtaining appropriate licences and defended its action to be covered under fair dealing as embodied in Section 52(1)(a) and 52(1)(b) of the Copyright Act[4] wherein any copyright work used for the purpose of reporting current events would not amount to copyright infringement.  The Learned Single Judge of the Hon’ble Delhi High Court rejected the fair use defence inter alia, on the grounds that the Copyright Act provides for specific rights vested in a copyright holder along with specific exceptions thereto and a general principle outside the scope cannot be applied by the Court;    This was taken in appeal by India TV[5] and the primary questions before the Division Bench were

1. whether use of a single line from a song from a film produced by Yash Raj Films (“YRF”) would amount to copyright infringement and
2. whether singing a few lines from different songs of films produced by YRF, by a singer, who originally sung the songs in the films, in a chat show would constitute copyright infringement.

Whilst the Division Bench allowed the appeal and set out the three (3) approaches adopted by courts for applying the de minimis principle to copyright law i.e. (i) substantial similarity analysis (ii) the fair use analysis and (iii) applying de minimis where violation is ascertained to be trifling unimportant or insufficient. The Division Bench analysed the pros and cons of all three approaches in detail and laid down the following factors to be considered for applying de minimis as a defence for copyright infringement:

1. The size of the use and the type of harm it may cause: While considering the defence of de minimis, the size and harm caused by such infringing use has to be ascertained by the Courts. To use de minimis as a defence, the size of such use must be miniscule, and no significant harm should have been caused to the copyright owner by such miniscule use of the copyright work.
2. The cost of adjudication: The courts should consider the cost of adjudication in the event an infringement claim would be filed against such use. In order to qualify an infringing use as de minimis, the social cost of adjudicating such copyright claim must be much higher in comparison to the total benefit arising from such claim.
3. The purpose of the violated legal obligation: The Courts, while considering the defence of de minimis for any infringing use, should ascertain and consider the purpose of the infringing use. In order to qualify for the defence of de minimis, it should be ascertained that there is no wrongful purpose of the infringer for such infringing use.
4. The intent of the wrongdoer: While determining de minimis cases, the Courts should consider the motive of the accused. In the event, it is established from the facts of a case that the accused did not have any malafide intention such as to steal or appropriate something which belonged to other person for accused’s own benefit, such use shall qualify for the defence of de minimis.
5. The effect on the legal rights of third parties: The infringing use, in order to qualify for de minimis defence, must not affect or cause any kind of significant harm or loss to any third parties.

Relying upon the aforesaid factors, the Division Bench held that the use of lyrics from a sound recording owned by YRF for an advertisement of “Sab Golmal Hai” by India TV, was trivial and attracted the defence of de minimis as the harm caused due to such infringement was trifle since the use was only five words from five stanzas; India TV’s intent was not to steal but to educate the public by raising consumer awareness and basis YRFs stance that it would charge Rs. 10,000/- as license for such usage, the Division Bench concluded that the amount was too trivial in comparison to the social cost of adjudication.

Regarding the second issue of the singer singing songs owned by YRF during India TV’s chat show-“India Beats”, the Division Bench held that when a celebrity participates in a discussion or a talk show which involves public interest, such celebrity would be entitled to refer to the milestones achieved by the celebrity in his/her life and it would be a case of de minimis use when such celebrity who is a performer sings small portion of the songs while discussing his/her life as one cannot separate from the life of the performer his/her performances and hence the appropriation of the lyrics would not constitute an actionable violation of the copyright in the sound recording. However, the Division Bench cautioned, that this defence has to be applied on a case-to-case basis with abundant caution.

The principle of de minimis was recently also used as a defence in Super Cassettes Industries Ltd. v. Shreya Broadcasting Pvt. Ltd., wherein the Delhi High Court, in light of the aforementioned five factors, perused the cue sheets submitted by Super Cassettes and held that since Shreya Broadcasting had infringed nearly 500 minutes of the Super Cassettes copyright works at different occasions without obtaining any appropriate license from Super Cassettes, such use did not qualify for the defence of de minimis and ordered Shreya Broadcasting to pay compensatory damages of Rs. 21,00,000/- to Super Cassettes.

It is pertinent to note that the courts in India have been very cautious and careful while adjudicating cases involving trivial copyright violations, so as not to send an adverse message to the public that trivial violations of copyright are always exempted. As other defences, there is no straitjacket formula to apply the defence of de minimis in infringement claims. The defence of de minimis cannot be applied as a precedent and has to be ascertained strictly on a case-to-case basis after consideration of all the surrounding factors in relation to the infringement.

U.S.A Jurisprudence for De Minimis principle vis-à-vis Copyright infringement:

The U.S.A Court applied the De Minimis principle in Gayle v Home Box Office[6]  wherein Gayle's graffiti was captured in the footage of a TV Show called Vinyl, when a character from the show was shown walking on the streets. The Court held that since the use of Gayle's work was so limited, it was a de minimis claim that was almost frivolous in nature. However, this was largely because the graffiti was barely visible while viewing the clip in real-time and hardly recognisable when the video was paused.

Further in a recent case, Bell v. Wilmott Storage Services, LLC[7], the Ninth Circuit, clarified the role that the de minimis concept plays in copyright infringement cases i.e. de minimis is to be ascertained and applied on basis of the amount of copyright work that has been infringed and not just on the basis of the minimal use of such infringed copyright work.

Conclusion:

In the current digital era, the lines between actual infringement and trivial infringement have blurred and it has become increasingly difficult to ascertain what level of infringement would constitute actual infringement and what can be allowed as fair use or de minimis. The path of de minimis shall be trodden very carefully by the Courts to protect the interest of all parties involved and ensure that the applicability does not in any manner undermine the ownership of the copyright owners.

[1] Section 51 read with Section 38A of the Copyright Act, 1957

[2] https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law-Dictionery.pdf

[3] Super Cassettes Industries Limited & Ors. v. Chintamani Rao & Ors., 2282/2006

[4] Section 52(1)(a) - “a fair dealing with a literary, dramatic, musical or artistic work for the purposes of— (i) Private use including research; (ii) criticism or review, whether of that work or of any other work;"; Section 52(1)(b)- “a fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events—(i) in a newspaper, magazine or similar periodical; or(ii) by broadcast or in a cinematograph film or by means of photographs.”

[5] India Tv Independent News Service Pvt. Ltd. & Ors. Vs. Yashraj Films Pvt. Ltd. (2013 (53) PTC 586 (Del))

[6] Gayle v. Home Box Office (2018 WL 2059657)

[7] Bell v. Wilmott Storage Services, LLC. 19-55882 (9th Cir. 2021)