Monkey Selfie Case- Significance to Copyright Act, 1957

INTRODUCTION

With the settlement [1] between David Slater i.e. wildlife photographer, and PETA another copyright dispute comes to an end leaving numerous unsettled principles and unanswered doubts. This makes Intellectual Property an indecisive, irresolute, unstable and unsteady concept. Despite being numerous treaties and conventions intellectual property is one of the most dynamic concepts in the international law.

Past century witnessed a bonanza in the area of “Intellectual Property Rights”. Since the signing of Paris and Berne convention the intellectual property saw a significant levitation as a concept. Eventually both the conventions combined to become The United International Bureau for the protection of Intellectual property which is precursor of world intellectual property organization.

Since WIPO the concept of Intellectual property has been taken and defined by numerous treaties, conventions and charters which eventually resulted in TRIPS agreement that settled a common norm for intellectual property in the international law. However TRIPS agreement was not itself sufficient in addressing every aspect of Intellectual Property which became evident in the modern times.

Naruto V David Slater popularly known as “The Monkey Selfie case” is one among the copyright issue which excited the legal fraternity across the globe.  This has happened for the first time when a monkey has taken a selfie using the camera that too without any pre-training. This incident is novel and exciting. However the more exciting thing is the legal dispute and the claim of copyright for the photograph.

Being one of its own kinds of dispute it has attracted lot of attention from jurists. Though the case was decided by US court but it gained popularity worldwide. It showed the scope of new challenges for the copyright law.

Also the incident ended at a very confusing note i.e. the settlement between the parties (PETA and David Slater) leaving behind more tricky questions and disputes related to copyright Though it may not be instinctive, this issue is likely to be a recurring one. Animal-created copyrighted works are merely the tip of the iceberg; the target may not always be a monkey.  Yet, when the issue is dissected and closely examined, it is clear that these types of legal arguments will come at a greater frequency as technology advances.

Though India has not witnessed any of such case but being a part of global society India is also vulnerable to such disputes. Indian society is advancing in every aspect whether socially or in terms of technology. Being a developing economy there’s a scope of development in every sector including science and technological advancement.

Such copyright disputes were never imagined at the time of legislation of Copyright laws in India. Thus it is required to study the “Monkey Selfie” case in lieu of Indian Copyright laws and find out possible solutions for Indian law to deal with such case or any other case of similar copyright dispute, if arise in future.

 This research is based on studying and learning about the challenges posed by the monkey seflie case for the copyright laws across the globe and its significance to the Indian copyright law by thorough study and analytical comparison. The Researcher has tried to find possible solutions of “Monkey Selfie Case” according to Indian Laws, if ever happened in India.

Facts Of The Case

On July 2011, news sources around the world were overwhelmed with the image of a smiling monkey. The picture is that of a crested black macaque monkey living in a national park of North Sulawesi, Indonesia. The picture was taken with the camera of British nature photographer David Slater, who was there on a three-day trip to take pictures of monkeys in June of 2011.

 During the second day of shooting, Slater followed a group of 25 monkeys until they stopped at a place to rest, groom and play; he noticed that the they were friendly and sociable, and the braver members seemed interested in his photographic equipment. Initially, he setup one camera with a self-timer, but the monkeys took it away. After rescuing it, he positioned it in a different way. In his own words:

“I wanted to keep my new found friends happy and with me. I now wanted to get right in their faces with a wide angle lens, but that was proving too difficult as they were nervous  lens, settings configured such as predictive autofocus, motor wind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens.” [2]

The session lasted half an hour and produced hundreds of pictures, but only a few were in focus and usable, but three of them in particular was spectacular. Slater selected these and contacted the Daily Mail, who seemed interested in those pictures. Daily Mail published the story with no delay, which was then picked up by other news sources. The monkey pictures were an instant hit online, the smiling monkey particularly becoming incredibly popular in social media.

 The selfie subsequently went viral on the Internet, mainstream television and radio, eventually landing on the Wikipedia page for the specific monkey species. Slater asked Wikipedia to remove the pictures from the site but it was refused claiming that the pictures were taken by the monkey and were in the public domain. Wikimedia argued that copyright law in the United States holds that works originating from a Non-human source cannot claim copyright. However, this argument is puzzling, as thousands of copyrights are claimed by non-human corporate entities on daily basis.

Slater filed an application to the Copyright office in USA, who rejected the application by saying that picture was taken by a monkey and thus slater cannot claim copyright to it. Also Monkey is not a human being and doesn’t fall in the definition of an author mentioned in country’s copyright law.

Slater, then also offered an alternative view, which potentially solves the monkey selfie riddle, stating, "You could look at it like this: The monkey was my assistant." Under this view, the work is copyrightable, as the monkey was acting as an agent of the photographer to create the work.' Examining the situation under this view lends itself to common law agency principals.

However, almost four years after the original legal battle, a new player joined the argument. People for the Ethical Treatment of Animals ("PETA"), on behalf of the monkey who took the selfie, filed a federal lawsuit against Slater claiming that the monkey is the author of the selfies.' While Slater claims his right to present and subsequent royalties in the selfies, PETA claims that Naruto the Monkey is in fact the one entitled to those rights.' PETA described Naruto i.e. the monkey who took the selfie, an ingenious and smart creature who became aware of camera stuff by experiencing these things due to human exposure in the jungle where he lives.

PETA justified their action by presenting Naruto as a personality which is supported by David Slater himself in his book “The Wildlife Personalities”.

In the Court they said “Naruto and all crested macaques are highly intelligent, capable of advanced reasoning and learning from experience. Like other primates, including humans, Naruto and all crested macaques have stereoscopic color vision with depth perception and are vision dominant. As a result, visual images, including seeing their reflection in a motor bike mirror or camera lens, are intensely interesting experiences for them. Also like humans and other primates, Naruto possesses grasping hands and opposable thumbs with the ability to move his fingers independently. Because he has fingernails instead of claws, he can bring his fingers together in various manipulatory configurations, including picking up and processing foods, grooming other macaques by removing very small ectoparasites as part of a social bonding exercise integral to the macaque community, and extensive acrobatic climbing and swinging from trees. As such, Naruto’s use of his hands in any activity results from his intentional, purposeful, and concentrated action, not mere happenstance or accident.” [3]

PETA filed the lawsuit in the capacity of “NEXT FRIENDS” to Naruto who takes care of him and all other animals across the globe. According to PETA Naruto should have been given the Copyright of the photo and PETA should be declared the protector of his copyright as his next friends.

Decision

The ninth circuit court of California ruled in the favor of Mr. Slater by dismissing the suit filed by the PETA. William H. Orrick, J stated that Copyright protection does not extend to an animal. There is no such precedent where a copyright has been granted to an animal. Thus Naruto is not entitled for the copyright.

To the points raised by PETA regarding the personality of an animal the judge replied “the argument of next friends i.e. PETA that this result is antithetical to tremendous public interests in animal art should be made in front of Congress not the court. While Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act”.[4] As of now there is no legislation in the country which protects animals as an author of a copyright.

Present Situation

A settlement has been reached in the lawsuit. Under the deal, the photographer whose camera was used agreed to donate 25% of any future revenue from the images to charities dedicated to protecting crested macaques in Indonesia, lawyers for an animal rights group said. Although it is not clear that how much money he has to pay to PETA.

“PETA and David Slater agree that this case raises important, cutting-edge issues about expanding legal rights for non-human animals, a goal that they both support, and they will continue their respective work to achieve this goal,” Slater and PETA said in a joint statement.

Thus the present dispute namely “The Monkey Selfie case” has come to an end with no clear-cut winner, leaving the question of who owns the copyright to monkey selfie alive.

Copyright in India

Indian Copyright Act is based on TRIPS agreement and that’s why its principles and definitions are identical. Subject-matter of copyright according to Indian law therefore is:-

Copyright subsists only in certain classes of work i.e.

• Original, literary, dramatic, musical and artistic works
• Cinematographic films, and
• Sound recordings[5] 

An “Artistic work” means painting a sculpture, a drawing, an engraving or a photograph; whether or not any such work possess artistic quality, a work of architecture and any other work of artistic craftsmanship.[6]  

“Photograph” includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of cinematographic films.[7] 

A photograph is taken as a copyrightable property as it requires special skills to click the perfect shot. A professional photographer is a well-trained person with quality equipment. It takes expertise and precision to create a photograph.

In Associated Publishers V. Bashyam[8] it was held that, a portrait based on two photographs could become the subject of copyright if it is original, and produced a result different from the photographs.

The word “work” is defined in the copyright act as “a literary, dramatic, musical, artistic work, a cinematographic film and a sound recording.[9] However, there is no definition of the word “Original” in the legislation of USA, UK and India.

The courts are often faced with the facts where they have to decide whether a literary, dramatic, musical or artistic work before it is original or not. The judiciary thus formulated tests to determine originality of work as per the facts of the case.

Test of originality

The courts in their judicial decisions have determined several tests to acknowledge the originality of the work. Although test of originality depends upon the facts of the case but the basic principles of each test is same. For a work to be original, it is important that it should not have been copied.

It was held in Macmillan v Cooper,[10] “For a work to original, it should be the product of the labour, skills and capital of one man which must not be appropriated by another, not the elements or the raw materials, upon which the labour and skills and capital of the first had been expanded. To secure the copyright for the product, it is necessary that the labour, skills and capital should have been expanded sufficiently to impart to the product of some quality or character which the raw material did not posses and which differentiated the product raw material.”

The word original does not imply any originality of ideas, but merely meant that the work in question should not be copied from some other work and should originate from the author being the product of his labor and skills.[11]  

Delhi High Court in Eastern Book Co. V. Navin J. Desai,[12]  held that head notes of law reports can be original literary work if they are prepared by the author using his own skills, labor and judgment. This is known as “Sweat of brow” test .i.e. to claim copyright an author has to show some sort of work done by him.

Also in Eastern Book Co. V. D B Modak,[13] Supreme Court held that “to claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of mere skill and labour.”

This means the work of compilation must have a flavor of “creativity” to be called as original. This is “Minimum Creativity” test which replaced the sweat of brow test.

Concept of Authorship

 “Author” means,-

• in relation to a literary or dramatic work, the author of the work;
• in relation to a musical work, the composer;
• in relation to an artistic work other than a photograph, the artist;
• in relation to a photograph, the person taking photograph;
• in relation to a cinematograph film or sound recording, the producer; and
• in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.[14]  

From all the above definitions it is clear that the term “Person” is very important in the definition of an author as a person can only become an author. A person is a being, to whom the law attributes personality in accordance with reality and truth.

A human being must satisfy two conditions in order to be a person in law, namely, he must be a living human being and he must be recognized by the state as person so he must not be a slave in the absolute control of his master or otherwise civilly dead as a monk who has renounced the world.

This is just the definition “Natural Person” not “Legal Person”. Legal personality may be said to refer to the particular device by which law creates, or recognizes units to which it ascribes certain powers and capacities. Persons are the substances of which the rights and duties are the attributes. It is in this respect that persons possess judicial significance.

A legal person has a real existence but its personality is fictitious. Personification is essential for all legal personality but personification does not create personality. Personification is a mere metaphor. It is used merely because it simplifies thought and expression. A firm, a Jury, a bench of judges or a public meeting is not recognized as having a legal personality. The animus is lacking in their case.

As per Indian Law “Person” shall include any company or association or body of individuals, whether incorporated or not.[15] The copyright act, 1957 though not define a person but follow the definition given by general clauses act, 1897 as other acts do.[16] 

The definition of person provided in General Clauses Act, 1897 is inclusive in nature and applies to every other act unless anything repugnant provided in the subject or context.[17]  

The definition of “person” in Section 3 (42) of the General Clauses Act is undoubtedly illustrative and not exhaustive. The well-known rule of interpretation regarding such inclusive definitions has always been to treat the other entities, which would not otherwise have come strictly within the definition, to be a part thereof, because of illustrative enactment of such definitions.

It is clear from the definition that the word “Person” has very wide meaning in Indian Law. It was held by Supreme Court in S.K. Gupta v. K.P. Jain & Anr[18] where a definition uses the word "includes", as contrasted from "means", the word defined not only bears its ordinary, popular and natural meaning but in addition also bears the extended statutory meaning.

Also, Indian Law does not have a settled common definition of an Animal. Wildlife Protection act, 1972 defines an animal as “it includes amphibians, birds, mammals and reptiles and their young, and also includes, in the cases of birds and reptiles, their eggs.” 

As per this definition an animal includes all mammals which suggest that human being is also a part of this definition. A man is also referred as a social animal. However, Indian Penal Code defines animal as “any living creature, other than a human being.” [19] 

The word person, therefore includes all human and non-human entities like corporations, an association of persons, body of individuals, firms and companies whether incorporated or not. However, it is not clear in Indian law that an animal shall be included in the definition of a person or not.

Conclusion

India has not witnessed any case like “Monkey Selfie” so far but that doesn’t mean India is not vulnerable to such disputes in future. With growing economy and technological advancement, there is a large scope of such copyright disputes in future.

India is creating new mayhem and establishing new records in the area of science and technology. There’s an ample amount of enthusiasm about robotic science and space science among Indians which is expected to grow in coming times resulting in growth of new research and inventions.

Saudi Arabia recently gave citizenship to a lady robot named Sophia.[20] This is one of its own kinds of human achievement. The robot is able to speak and perform basic human activities. At her launching event she interacted with the audience and entertained their queries. She said "I am very honored and proud of this unique distinction." This creates a lot of buzz about future robotic development. Also it is the same robot which once said that she would destroy the human race,[21] which suggests that she is able to understand the meaning and functioning of society and human desire of name and fame.

Now we have a robot performing the same functions as human being. Interacting with people with passion and entertaining them with logical answers. However this creates an uncertainty regarding copyright law. Who will be the copyright owner in copyrightable work done by Sophia? Whether it will be Saudi Arabian government? Whether the creator of Sophia i.e. Mr. David Hanson?? Whether Sophia herself?

No copyright law across the globe has answer to this query as at the time when these copyright laws were enacted there were no such development in science and technology. But with new technological advancement and inventions, these copyright laws are becoming outdated.

The level of sophistication found in technology is quickly on the rise; non-human beings are already creating copyrightable works. With such creations will come ambiguity of authorship. This makes it imperative for the Legislators and Copyright offices across the globe to revisit the scope of authorship and its purpose in their copyright law respectively among which India is not an exception.

India traces its copyright law from England and being common law countries all USA, UK and India has identical Copyright laws. Also being a part of TRIPS and Berne Conventions the basis of legislations is same in all these countries. This brings all of them to identical situation when exposed to such copyright challenges.

In India subject matter of copyright is original literary, artistic and dramatic law. Original suggests the work of an author. The whole point of discussion lands on the definition and scope author in the eyes of law.

The definition of author in Indian Copyright act is vague and inclusive. It suggests that the author can be a person, who creates copyrightable work. However the word person itself not has a settled definition but an inclusive one in general clause act. This gives scope to disputes like “Monkey Selfie” to emerge.

It is not clear in Indian law that an Animal is included in the definition of person or not. If an animal is considered as a person he will also fall in the definition of author and vise-versa.  The definition of an animal itself differs from one act to another, where sometimes it excludes humans but other times it includes all the mammals which indirectly include humans.

In 2014 Ministry of Environment and Forests, put a ban on the use of dolphins in marine circus by recognizing them as “Non-Human Person”. The government actually did not actually declared dolphins as non-human persons but issue the following statement

“Whereas cetaceans in general are highly intelligent and sensitive, and various scientists who have researched dolphin behavior have suggested that the unusually high intelligence; as compared to other animals means that dolphins should be seen as ‘non-human persons’ and as such should have their own specific rights and is morally unacceptable to keep them captive for entertainment purpose.” [22]

This puts the Situation of Indian law on animal being a person or not, in ambiguity. Also this makes India vulnerable to future disputes like “Monkey Selfie” as the definition of the “author” in copyright act depends upon the definition of “person”.

Indian copyright Act nowhere mentioned that a non-human can be an author of the copyright but the definition of author includes the word “person” which includes non-human entities like corporations, partnership firms and association etc.

It can be said that a monkey can never get copyright in India as it is for Humans or institutions controlled by Humans but we cannot pre-assume a result without a Trail. There is a full scope of Non-Human authors in Indian Copyright Act. The government becomes the first owner of the copyright when a work is done for it whether under a contract for service. Similarly Firms, Corporations and associations are getting the copyright on daily basis. With this argument it’s not wrong to say that an animal can also be the owner of a copyright for a work created by it.

India needs to focus on its copyright act and modify it to face the challenges of future. India is going to witness cases like robot created work, monkey selfie and many more in future. It is better to be prepared for such day as it will be a chaotic situation later on, same as it happened in United States.

Indian copyright laws need to clarify their stands on non-human copyright owners and the scope of the definition of non-human copyright owners. It is required to limit the scope or redefine the term “Person” as it would have solved half of the puzzle in present case, if happened in India.

It is suggested that India should put an eagle’s eye on these developments in copyright laws across the globe and modify its domestic laws according to the requirements and prepared for future. Monkey Selfie case had shared the same fate if happened in India, reason being identical nature of laws and the novelty & uniqueness of the case.