I’m pretty certain that most people with Facebook accounts in India have seen the Prime Minister’s post on his Facebook page wishing people for Dhanteras on October 21, 2014. While the photograph was visually striking, it appears that someone who knew the photographer tagged him on the post since he didn’t know that his photograph was being used.

In response it appears that Mr. Nepal, changed his cover photo to the now famous image and updated his status staking claim to the image. While he stated that he was honored that his photograph was chosen, his status also said “What will happen to so called copyright issue? He did not ask for the permission. Any suggestion?” (Off the bat, he doesn’t seem very convinced about copyright in images)

Given the support he received and since it was picked up by the media, the PMO clarified its stance on the issue (based on news reports) stating that, the image was freely available so no permission was needed and that the photograph had been used by several websites including the Australian Government’s and that it was available for free.

While this article may seem rather late, given that this took place a week ago, over the course of the last one week, with the articles and the comments on all streams of social media, I’ve seen a lot of arguments for both sides ranging from logical to downright daft and while everyone is entitled to an opinion, a lot of arguments seem to be steeped in misconceptions on the nature and scope of copyright protection. Although my colleague has already written an article on copyright in images, I’ve gone into some of the basic misconceptions that I noticed

  1. If I give the photographer credit there is no copyright infringement

This particular misconception is rather common as both the PMO and Mr. Nepal share this belief.

According to the law of copyright, a photographer has the rights to a photograph that he/she has taken, and only the photographer has rights to make copies of the photograph, communicate it to the public, issue copies to the public and make an adaptation of the work. Copyright infringement is when a person other than the author of the work without a license does anything which is the exclusive right of owner. In this case, it was the exclusive right of Bimal Nepal to post his photographs to the public and adapt it (by inserting the text wishing people for Dhanteras). Anyone else doing this requires a license otherwise it would be deemed copyright infringement even if they do give the photographer credit.

  1. If the image is available on the Internet is it in public domain

Public domain is a very specific concept and quite different from public in general. Works which are in public domain are works in which copyright protection has ceased. This can be because the term of copyright protection has ended or because the author has voluntarily relinquished his/her rights.  So just because you see the image as a result of a google search (google finds quite a bit, even stuff that you want hidden) doesn’t mean that there are no rights associated with the image. So just because Mr. Nepal’s photograph could be found on the internet doesn’t give the PMO or anyone else the rights to post it.

  1. If I don’t use the work commercially it doesn’t amount to copyright infringement

As mentioned above, providing the public with a work to which someone owns the copyright to amounts to infringement, it doesn’t matter if the work was not for profit or for commercial use. The only exception under fair use would be private and personal use (like making Mr. Nepal’s image your desktop wall paper). However posting it to the public is neither private nor personal and certainly comes under the realm of copyright infringement.

  1. The photograph is protected under US law, so it doesn’t affect me in India

As clichéd as it sounds, with the world shrinking, and more importantly, since India is a member of the Berne Convention, works published in any of the countries which are members of the Berne Convention, the Universal Copyright Convention and the WTO countries would be granted the same protection as though they were published in India. In this case, America fits all three and so work published there would be granted the same level of protection as if the work was published in India.

  1. Mr. Nepal’s Facebook page has only 10,000 likes but his picture on Mr. Modi’s page has nearly 500,000 likes, 45,000 shares and 16,000 comments, he should just be happy with that.

While this may not seem like an IP related issue at first, I think it strikes at the heart of Intellectual Property protection. In today’s scenario, where emphasis has been placed on what is unique and distinct, Intellectual Property makes something intangible, tangible, particularly in the field of arts. So even if you are a small time artist, who uploads a video on Youtube to become famous, if the song wasn’t protected, it would be open for someone else to benefit out of it, which isn’t very fair or just. Mr. Nepal, along with his daughter, according to the reports, captured a stunning moment on film, and is entitled to credit and compensation (if he deemed fit) for his work. I’m certain if the agency handling the Prime Minister’s social media account had approached him before using his photo, he may have been happy to let them use it provided they gave him credit or tagged his profile.

While many of the comments got rather political, I think its pertinent to point out that there was an agency or someone handling the Prime Minister’s account, and stating that they screwed up, isn’t treason. Although given that the Government is setting up think tanks on strengthening intellectual property protection in India, it may have made more sense for the agency handling the Prime Minister’s page to seek legal advice and come out with a proper response instead of propagating further misconceptions. Social media is a major force these days and using images and acquiring rights to them is very important. Most often photographers are satisfied with just credit on account of the potential reach of the post. However the fundamental issue is that the photographer is the one licensing his rights – it can be in lieu of credit, or to be tagged on the Facebook page or for compensation but that is his/her exclusive right to decide!

This article has been authored by Navarre Roy, an IP Law practitioner.