Is Making Memes Illegal in India?

Memes are a major part of our lives nowadays, considering the long periods of time people spend on the Internet and browsing social media platforms. In today’s era, the meme culture plays a vital role on the Internet and has become an integral part of our society. They hold a sudden now-ness that makes them viral and, thus, gain popularity around the globe in a very short span of time.

Even if someone does not browse the Internet or scroll through social media a lot, they are still highly likely to come across memes through different mediums. This can be through other web applications, through print or digital media or marketing advertisements as well.

What are Memes?

Memes refer to amusing photographic or audio-visual representations created for entertainment and fun. They are usually based on different trending topics of the Internet and built on sarcasm, satire, parody, or simply jokes that use images or snippets from the various types of media available on the Internet.

Origins

The term ‘meme’ originates from the Greek word ‘mimema’, which means ‘imitated’ and was introduced by British evolutionary biologist Richard Dawkins in 1976 in his work, The Selfish Gene. Memes do not have any market value, which means that they cannot be considered a form of merchandise. However, they do have a huge potential for shaping new ideas and giving birth to certain thoughts that can establish a conversational environment.

Meme-related Regulations

Considering memes are created from images and snippets of different media available on the Internet, it would not be out of place to be worried if you are violating any Intellectual Property (IP) right by creating a meme. However, the meme culture generally thrives in the grey zones of intellectual property rights, where creativity and innovation grow irrespective of the lack of protection under the IP regulations.

Under Section 2(c) of the Copyright Act, 1957, creating a meme is deemed to be artistic work that includes painting, sculptures, drawings (which include diagrams, maps, charts, or plans), even engravings on wood, marble, etc. Architecture also falls under the definition of artistic work.

Image or photograph of something or someone is most popularly used for memes, but sharing this without any form of authorization may lead to encroachment.

Memes are basically being copied and shared by everyone on social media platforms, which makes them go viral easily on these platforms. However, people are not aware of whether copying and sharing memes may be considered illegal or not.

• Meme creators invest a lot of their valuable time and hard work in creating such memes and are, thus, protected under the copyright law.
• Simply because the meme creator is usually unknown, it does not mean anyone copying the content is acquitted or safe from any legal proceedings.

Is it Illegal to Make Memes in India?

The answer to the above question falls within the scope of the doctrine of fair use. Provisions under Section 107 of the Copyright Act provide the framework to deem whether something falls under fair use or not.

A few conditions stated under the scope of the doctrine of fair use – that allow individuals to use any copyrighted work in creating any new work, without taking any permission – must be fulfilled.

The four parameters that must be fulfilled in such cases are:

• Purpose of using the meme.
• Amount of the original work to be used.
• The effect it shall have on society.
• Nature of the original work being copied.

After considering the above-mentioned pointers, it can be concluded that there is no specific answer for the question – is it illegal to make memes in India – as it varies from situation to situation. However, there are certain types of memes like criticism, commentary of someone or any research or education-related memes that are generally allowed.

Considering memes do not have any commercial value, they do not fall under the ambit of fair use defense. However, this does not mean that someone’s photograph, artwork or idea can be used by others without their consent.

• The ‘fair use’ defense only works until someone’s privacy is not disturbed.
• Thus, you should get all the necessary licenses and approvals to prevent any kind of legal liabilities or action before creating something or copying the work of another individual in the future.
• In addition, as stated under Section 14 (c) of the Act, the Copyright Law gives the authorized holders the sole authority to authorize someone else to make a replica of their work. For example, if Amitabh Bachchan’s picture is used in a meme, both Bachchan and the photographer shall have the right to that image. Using it without their permission could potentially lead to copyright infringement claims from them.

Note: Although it must be noted that there haven’t really been any cases of copyright claims when it comes to memes. This is basically due to the legal concept of ‘fair use’, which acts as a rescue in cases of copyright infringement.

As per Section 54 (1) of the Indian Copyright Act, 1957, fair use concept is defined as ‘fair dealing with any work.’ A meme shared on any social media platform is deemed as derivative work and only the owner of the copyright has the legal authority to create one or authorize others to reproduce their work.

The copyright, however, is not absolute and irreversible.

For being able to use ‘fair use’ defense in India, creators must fulfill two specific conditions:

• There be no reason to compete with the copyright owner.
• The original photograph/image/video, etc. must not be used inappropriately.

Market Substitution Test

This first criterion is quite easy to pass as the main purpose of the meme is to take a sarcastic or funny take on anything involving someone rather than any attempt to compete with the copyright holder.

Improper Usage

The second criterion deals with the concept of ‘improper usage’, which is basically a term that cannot be defined in a strait jacket definition but needs to be interpreted for different scenarios.

• As memes are usually made for entertainment and amusement purposes, they rarely fall under the category of improper usage unless they are grossly objectionable to the right holder.

The Copyright Act defines four parameters that can be used to deduce whether a meme violates any copyright material or not, even though none of the parameters are conclusive.

• The first consideration is the aim and nature of the usage.
• The second is the type of the copyrighted work created.
• Third is the significance of the specific part that was used to create the meme and its importance.
• The impact of how the meme is used on the prospective target audience for the copyrighted work is deemed as the final consideration.

If you pay attention to the last consideration, you may note that memes are rarely created for commercial purposes and are usually made just for fun and entertainment purposes.

Conclusion

Memes hold little to no economic value and are usually created just for amusement. However, although creating memes for entertainment is fine, using it for any commercial or promotional purposes shall lead to copyright infringement and potential legal complications.