The Legal Position of Screenshots and Screen Recordings from the Point of View of Copyright Law

Introduction

In today’s era, screenshots and screen recording have become a way part of our life. It is so common that we don’t even think twice before engaging in the practice; be it taking a screenshot or a screen record of a video, film, post or even a tweet.
Technological advancements and easy access have gradually blurred the line between copyright infringement and fair dealing of copyrighted works. Beyond doubt, technology and copyright have formed a mutually dependant relationship and this interdependency has necessitated copyright laws to adapt and evolve alongside the rampant growth of technology. The question that we are left with is, whether the dissemination of copyrighted works through screenshots or screen recordings can be protected under the present legal regime or not?

Legal[Image source:Gettyimage]

Misuse of Screenshots and Screen Records

Primarily, one might take screenshots or screen record any work for personal use, which does not amount to infringement. However, the issue arises when these are used without any proper authorization. With the advent of social media, many users have started engaging in infringement without even being aware of its legal implications.

Plagiarism vs Copyright Infringement

From uploading screen-recorded movie scenes to posting entire live performances of artists, not all reproduction is sheltered under the umbrella of fair dealing. A lot of users deem it fit to provide credit, assuming it to be enough but they fail to draw a distinction between plagiarism and copyright infringement while doing so.

While copyright covers the expression of an idea, plagiarism covers the passing off of ideas. So, in the absence of any specific legal provision, the crux of the matter remains. In theory, the unauthorized use of a screenshot containing an article or even words of another person, or a screen recording of an original work; all of which are not in the public domain, can amount to both plagiarism and copyright infringement. Nonetheless, due to no explicit framework and limited judicial interpretation, the practical outcome has been judged case to case.

Fair Dealing and Fair Use

As surprising as it may sound, the terms “fair use” and “fair dealing” are in fact not synonymous. Fair use is exclusive to the United States, whereas, fair dealing belongs to the common law jurisdictions. In their entirety, fair dealing is an exception to copyright infringement and fair use is a limitation of the exclusive rights granted to the original owner or author.

Fair use considers four elements; the purpose and character of use, the nature of the copyrighted work, the amount or substantiality used and the effect. In India, the term “fair dealing” has not been defined under the Copyright Act but has been elucidated in Section 52(1), where only a work’s extracts or portions can be reproduced under its ambit for the purposes of criticism, research and review. In the case of Civic Chandran v. Ammini Amma, it was observed that in instances of fair dealing, the court considers the purpose, the quantum or value taken, and the likelihood of competition between the original and the reproduced work.

Present Framework

In India, Section 2(c) and section 25 of the Copyright Act provide photographs protection as an artistic work. However, the act is silent on screenshots of such photographs. Ordinarily, under the Indian statute, the original author is the first owner, and if such a picture is reproduced in the form of a screenshot, for any other purposes other than to review, criticize or research, the original owner of the picture can sue for copyright infringement; irrespective of the fact that credit was given to the photographer or not. In a recent American case, Yang v. Mic Network, Inc., a photograph licensed to the New York Post for an article was used through a screenshot. Mic Network took and used a partial screenshot of the original article in its own publication, the screenshot so taken contained the photographer’s work. The United States District Court determined whether or not the present case was protected under the fair use doctrine and considered the four essentials in the process. The concept of copyright is to promote and protect knowledge, and the fair use doctrine is its direct by-product. Hence, any secondary work which adds value to the original in any manner and transforms the same would be protected under fair use. The District Court held the use of the screenshot as fair use as it was “transformative”. The screenshot was “significantly cropped” and fulfilled its purpose as a critical and satirical piece on the original article, ultimately outweighing its commercial purpose.

In the Canadian case of Davydiuk v. Internet Archive Canada and Internet Archive, the Federal Court discussed if copyright can extend to a screenshot, when it has been taken from a video or if it is “purely a mechanical exercise not capable of copyright protection.”While the court never did come to a conclusion for the question above, the court did observe that there needs to exist some skill and judgement while taking and using a screenshot for it to amount to copyright infringement.

Conclusion

The legal position of screenshots and screen records still lies undetermined; however, this ambiguity should not act as a deterrent towards seeking protection.Prospective interpretations of the Copyright Act in context of the issue at hand can broaden the scope and the basic understanding of the present provisions. Unquestionably, there is a crucial need for an amendment in the Act.

Author: Saiesha Dhawan,  in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

 

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