By Kiran Kirti Rath
The traditional way of distributing news through the delivery of newspapers suffered a huge setback due to the coronavirus pandemic. The distributors were unable to access their customers and many customers feared touching newspapers as they believed they would get infected. The conventional way of getting news has now been taken over by technology. In today’s digital era the dissemination happens virtually with social media and instant messaging applications. The online mode of circulating information has now become the primary source of communication.
The publishing houses have been able to adapt to the new change, they have started e-newspapers on their websites, but this led to a spike of newspapers getting circulated freely all over social media platforms without any approvals from copyright owners. This violation has raised a copyright debate. Copyright is an exclusive legal right that is given to the author for a fixed number of years to distribute, print, and publish their material. It is the legal means of protecting the originator’s work from getting distributed, published, or used without their consent. 
Due to the copyright infringement, the Indian newspaper society sent an advisory to protect the interest of the newspaper industry in which it threatened to take legal action against any person who circulates an e-newspaper. To prevent piracy, the society has suggested its members build some product features like limiting the downloading of the PDFs of e-newspapers and inserting an invisible user identifier code to trace back the individuals who have circulated the PDFs illegally. The issue of distributing the downloaded PDFs of e-papers was first raised by Dainik Bhaskar and discussed with a piece that warned the administrators of WhatsApp and Telegram to be cautious about the dissemination of e-newspapers on their platform.
The published piece by Dainik Bhaskar stated that downloading and sharing copies of e-papers is illegal and the group admins and individuals will be held accountable for this illegal distribution on social media platforms. This might be the result of the alleged advisory made by the Indian Newspaper Society. However, the allegation isn’t entirely correct as the circulation of free e-papers is not illegal. As long as the e-papers are free, any individual can circulate without any legal interference. But if the e-papers can be accessed only after payment, the circulation of such papers is considered illegal.
CATEGORIZATION OF E-PAPERS
The terms and conditions of newspapers are very important when it comes to deciding whether the circulation of e-paper is allowed, irrespective of whether it is free or not.
The E-papers can be categorized into two types:
1. THE ONES WITH TERMS AND CONDITIONS OR USER AGREEMENT
For instance, The Times of India has stated that the subscription includes:
Articles can be shared as links through email, Facebook, and Twitter.
It doesn’t allow PDF of page/publication to be shared or downloaded.
Pages cannot be printed or clipped.
Another example can be of The Hindu, it has mentioned on their website the terms of sharing and disseminating copies even for the ones with free trials. It states that the contents are proprietary and shouldn’t be shared with anyone. This condition doesn’t apply to individuals who are sharing articles on social media websites to express opinions and commence discussions.
The Dainik Jagran terms and conditions state that there is copyright ownership concerning the content of the newspaper. The users are not allowed to use the content for commercial purposes and are restricted from downloading.
Taking all these examples into consideration, it can be well understood that almost all newspaper houses with terms of us have similar copyright regulations and unauthorized circulation of e-newspapers is a violation of contractual obligation and copyright.
2. THE NEWSPAPERS WITH NO USER AGREEMENT
This set of newspapers brings a debate because of the confusion that these free e-newspapers bring. The PDF of such newspapers is available online for free downloading without any user information. The Indian Express is of the newspapers with no written terms and conditions.
In such a situation where anyone can download the copy without providing their information, there lays an implied license with the user to circulate the copy of the e-newspaper. This doctrine of the implied license becomes notable with the absence of user agreement.
ACTIONS TAKEN BY COURTS
The Courts have been actively passing injunction orders to prevent the illegal circulation of e-newspapers. In the case of Bennett Coleman Co Ltd. v. WhatsappInc. And Ors, the Plaintiff is the owner of Times of India, and they filed a copyright infringement case against the instant messaging applications, WhatsApp and Telegram, claiming that they were circulating the e-newspapers of the Plaintiff without authorization, hence infringing the copyrights.
The plaintiff's publications are of high reputation. The news articles published in the plaintiff's newspapers are published with credit to the specific named source. Such news articles and contents published on the plaintiff's website as well as in its newspapers constitute "the original literary work" within the meaning of copyright thereby being entitled to copyright protection under Section 14 of the Copyright Act. Plaintiff is the exclusive owner of the copyright of said literary works, possessing the rights to reproduce the same in any material form and to protect from infringement of its copyright.
The Delhi High Court issued notices to WhatsApp, Telegram, and other Defendants who were allegedly involved in enabling the circulation of the e-newspapers of the Plaintiff and granted an ad interim injunction in favor of the Plaintiff, restraining the Defendants, including the well-known social networking platforms WhatsApp and Telegram from copying, reproducing, adopting, distributing, transmitting, disseminating, etc., in any manner that infringes the rights in the e-newspapers published by the Plaintiff through any website/portal.
In the case of Jagran Prakashan Limited v. Telegram FZ LLC & Or, the Delhi High Court gave an ex parte interim order and directed instant messaging application Telegram to remove the channels that were involved in the illegal distribution of e-newspapers of Dainik Jagran in PDF format in their platform.
The Dainik Bhaskar has been very cautious about piracy and to restrain their contents and articles from getting circulated illegally in PDF format they have adapted a feature that doesn’t allow the users to download the newspaper in PDF format. The newspaper could only be read in a digital form.
Plaintiff claimed that there were certain channels on Telegram that were sharing e-newspapers in PDF format. The court found the case to be prima facie in the favor of Plaintiff and granted an interim injunction to Telegram. Therefore, the court has been very supportive of the newspaper houses in prohibiting the unauthorized circulation of e-newspapers.
Section 52 of the Copyright Act of India in accord with Article 13 of TRIPS (Trade-Related Aspects of Intellectual Property) states:
“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”.
With the emergence of technology in the digital era, the need to have a fair dealing is largely upheld. It is also important to pay attention to the latter part of Article 13. It states that use doesn’t conflict with new exploitation should work and shouldn’t unduly prejudice the legitimate interests of the originator. The Court observed that the use of PDF copies of e-newspapers on applications such as WhatsApp and Telegram has led to a loss of visitors on news publishing websites.
Section 14 of the Copyright Act is subject to fair dealing. As per the act, no person without the permission of the author of the work has the right to reproduce, publish or disseminate the work to the public. The copyright owner can sue for remedies, including injunction, damages, and profits.
Section 43(b) of the Information Technology Act, 2000 states that “if any attempt is made to destroy, delete or alter any information residing in a computer resource, or diminish its value or utility, it is illegal. This person will be liable to pay damages by way of compensation to the person so affected”.
In section 63 of the Copyright Act, the punishment for copyright infringement is stated. It establishes that any person who knowingly infringes the copyright on work or any other right conferred by the Act, will be punished with imprisonment for a period of not less than six months, but it may extend to three years, and the fine which will not be less than Rs. 50,000 (USD 660) but it can be extended to Rs. 200,000 (USD 2,640). Other criminal provisions are also mentioned in sections 63A, 65A, 65B of the Act.
It can be concluded that the circulation of e-paper doesn’t depend upon the paper being available for free or on subscription, but it is dependent on the terms and conditions. Newspaper houses should revise their copyright policies with specific wording about copyright infringement through dissemination in messaging applications. The general public should also be made aware of the consequences of such illegal actions by posting the notice issued to individuals who have committed this crime online. This publicity will create awareness among the people to know that there are legal consequences for copyright infringement.
 Aayushi Agarwal, Circulation of E-Newspapers: Illegal under Copyright Law?. Available at: https://thecompany.ninja/e-newspapers/# Vrinda Sehgal, Courts recognize the growing trend of copyright infringement through mobile applications and social media, https://www.lexology.com/library/detail.aspx?g=0d331cff-16d8-4df7-8ba9-1e1555636305.  Diganth Raj Sehgal, Is circulation of free e-newspapers permitted under Copyright law, https://blog.ipleaders.in/circulation-free-e-newspapers-permitted-copyright-law/#Classification_of_E-Papers.  Bennett Coleman Co. Ltd v. WhatsApp Inc. & Ors. [CS (COMM) 232/2021 & I.As. 6565-6567/2021].  Jagran Prakashan Limited v. Telegram FZ LLC & Or, CS(COMM) 146/2020 & I.A. 4073/2020
Author- Kiran Kirti Rath
Second-year law student
Xavier Law School, XIM University, Bhubaneswar