THE FAIR DEALING EXCEPTIONS UNDER INDIAN COPYRIGHT LAWS: A CRITICAL APPRISAL

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THE FAIR DEALING EXCEPTIONS UNDER INDIAN COPYRIGHT LAWS: A CRITICAL APPRISAL

March 24, 2022

INTRODUCTION

Copyright is one of the branches or facets of the Intellectual Property Rights which have an exclusive stack of legal rights which includes the rights of reproduction, public communication, adaptation and translation of work to the creators of literary, dramatic, musical and artistic works and producers of the cinematograph films and sound recordings as well.[1] The legal protection for Copyright will be given to the composer of an original literary or artistic works to do, authorize or prohibit certain acts in relation to kind work, thereby protecting and rewarding the creativity. These rights either licensed or assigned by the owner of the copyright as a way of encouragement and promotional for the continual creative activities. If any of the above-mentioned acts are carried out by a person other than the composer or owner of the copyright, without licence from the composer or owner, it constitutes an infringement of the copyright.

The grant of the Copyright is subject to certain terms and conditions and the same is granted for a specific period of time.[2] However, the countries where the authors enjoy Copyright protection, tried to create balance between the authors “sole right of copying on the one hand and public interest in using the authors” work on the other. Therefore, even when the author enjoys Copyright, his protection is often subject to numerous limits. As the copyright system promotes the interests of society as a whole as well and favours the greatest good for the greatest number of people by limiting such rights to a fixed duration. After the expiry of term of the copyright the work falls into the public domain and any act of the reproduction of work by any person other than the author would not amounts to infringement. Another example of these limits is the “doctrine of Fair dealing”. It is a limitation and also an exception to the exclusive rights granted by the copyright law to the author of a creative work. It also permits reproduction or use of the copyrighted work in a manner, which, but for an exception carved out would have amounted to infringement of the copyright. It has thus been kept out of the “mischief” of the copyright law.[3]

FAIR USE UNDER INDIAN COPYRIGHT LAW

The Berne Convention for the Protection of the Literary and Artistic works, 1886 (“Berne Convention”) and the TRIPS Agreement provides for the inclusion of the use of “fair use concept” in national legislations. The Berne Convention further provides a three-step test and also states that the legislation of countries should compulsory provide for the reproduction of work in the following cases:

 (a) in certain special cases;

(b) the reproduction should not exploit the original work, and 

(c) it should not cause prejudice to the interests of the author.[4]

The three-step test which was provided in the Berne Convention has also been used widely in the subsequent conventions on intellectual property protection.

In light of the Berne Convention and other international instruments, the Copyright Act, 1957 under section 52 pens down the exceptions which would not be considered as an infringement of the copyright. This section also provides the following acts shall not constitute an infringement of the copyright.[5]

The Copyright Act nowhere defines the term “fair dealing” and most of the times, the courts refer to the landmark judgment of hubbard v. vopser [6] wherein it was observed that the “fair dealing” is a question of degree. It further said that the “first one must look at the number of quotes, then the use of these quotes need to be considered, then the proportion and there may be other considerations too”. However, in the end, one needs to look at the impression.[7]

It can also be observed that the doctrine of fair use does not allow any person to as it is copying the original work of the copyright owner. It merely states that “a part of the work, such as quotes and expressions, could be used by a person in a manner to ensure that it does not look like that the idea of the copyright owner has been completely snatched away”. In order to fall within the ambit of ‘fair dealing’, there should not be any intention to compete with the copyright owner and also the motive should not be improper in dealing with the work of copyright owner.[8] Moreover, it is always the ‘original work’ that gets recognition and no one can ever become great merely by such imitation.

The ‘fair use’ concept is a much broader terminology and such case is decided based on certain ingredients being fulfilled. On the other hand, ‘fair dealing’ is a much-restricted concept in the sense that the use of the work should fall within the list of an enumerated in the copyright law. Thus, it can be seen that the ‘fair dealing’ concept is restricted in nature and might not be able to encompass the recent changes and the dynamics of digital technology.

ROLE OF INDIAN JUDICIARY

The courts have, in various cases, stated that it is not possible to lay down the principles of ‘fair dealing’ in black and white terms, as what may be ‘fair’ in one case may be unfair in the other case.[9] In the case of SK Dutt v. Law Book Co. and Ors,[10] it was observed that “in order for an infringement to exist, a substantial portion of the copyright owner’s work should have

been copied. The more the work is copied, the lesser the fair dealing can be implied”. In the case of RG Anand v. Delux Film and Ors,[11] it was held that “defence of fair dealing would not be applicable in case there is a copy of an idea. Thus, for the concept of fair dealing to be applicable, there has to be substantial use of the copyright owner’s work, however, there should be limited use of the work for it to be considered as fair.”

The purpose of reproduction has to fall within the list provided under Section 52 of the Copyright Act, that broadly being the private use including research, criticism, and review. The Court in the case of Academy of General Education, Manipal and Anr v. B. Manini Mallya[12] observed that “there can be fair dealing of a literary or dramatic work for the purposes mentioned in Section 52, there cannot be any copyright infringement. Moreover, it stated that if the performance is done before a non-paying audience which is an amateur club or society then the same will also not be considered as copyright infringement.”

The likelihood of the competition is another factor that is considered by the courts in considering the doctrine of ‘fair dealing’. In one of the cases, it was held that “if the work of the copyright owner is being used to convey the same information, then the same would be unfair”.[13]

Thus, it can be seen that though the Copyright Act does not define the term “fair dealing” or lay down any criteria, there are several cases that lay down the criteria which can be used to determine a ‘fair dealing case’.

APPLICABILITY OF FAIR USE

Fair use is a copyright principle which is based on the belief that the public is entitled to use freely, such portions of a copyrighted material for the purposes of commentary, criticism or parody. In the most general sense or understanding, therefore, ‘fair use’ is copying of the copyrighted material done for limited and “transformative purpose” such as to comment upon, criticize or parody a copyrighted work. Some Generally Accepted Conditions for Fair Use are:

  1. Criticism and Comment: ‘quoting or excerpting a work in a review or criticism for purposes of illustration or comment is considered fair use’.
  2.  News Reporting: ‘summarizing an address or article, with brief quotations, in a news report is fair use’. 
  3. Research and Scholarship: ‘quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author’s observations is not a violation of fair use’. 
  4. Non-profit Educational Uses: ‘photocopying of limited portions of written works by teachers for classroom use is fair use’. 
  5. Parody: ‘a work that ridicules another, usually well-known, work by imitating it in a comic way does not violate fair use’.
  6. Non-commercial Use is Often Fair Use: ‘the fact that a work is published primarily for private commercial gain often weighs against a finding of fair use’. 
  7. Benefit to the Public may be Fair Use: ‘the fair use rule recognizes that society can often benefit from the unauthorised use of a copyrighted work if the result is an informed public or it serves the end of scholarship or education’.[14]

DECIDING FAIR USE

The following aspects are considered while deciding fair use:

  1. The Transformative Aspect: ‘in what manner was the copyrighted material used. Is it a “transformative” use i.e., has the material copied been transformed by adding new expression or meaning to it? Does the so transformed work offer new information or new insight and understanding or is the original material merely copied into it. Criticism, comment, news reporting, research and scholarship and non-profit educational uses are more likely to be considered fair use’. 
  2. The Nature of the Copyrighted Material: ‘whether the work is fictional or factual. The dissemination of facts or information that benefits the public is more likely to be judged fair use. This gives greater leeway to copy from factual work such as biographical works than from works of fiction’.
  3. The Volume and Substantiality of the Work Taken: ‘the greater the portion of a work coped the less likely it is to be treated as fair use. Furthermore, if the material taken forms the crux of the original work, then even if a small portion has been used, it is not likely to be considered fair use’.
  4.  Impact on the Potential Market: ‘this relates to the question of competitive use. If the use potentially affects the sales of the copyrighted work, then it is usually not considered fair use. A prominently placed disclaimer could be of help in deciding fair use in cases where the court is having a difficult time deciding fair use. However, a disclaimer by itself will not help if fair use factors weigh against the alleged infringer. Also, the outcome of a fair trial could be influenced by factors such as the jury’s or the judge’s personal sense of right and wrong as deciding fair use involves subjective judgments.[15]

CONCLUSION

The Courts have time and again laid down the principles to decide a case involving the doctrine of ‘fair dealing’, however, it has not yet got any opportunity to address ‘whether the provision governing the same is adequate or not? It can be noted that the fair dealing concept in India is more restrictive than the concept of fair use as has been provided in the laws of the other nations.

‘Fair use’ and ‘copyright’ are the two sides of the same coin and they need to co-exist. There is a need to explore other areas too which are looking at the technological developments. The recent issue that has crept up is regarding ‘memes’ which are used widely on various social media platforms. The question that also arises is that “do they infringe the copyright or do they fall within the ambit of fair dealing doctrine”? There are four major factors that are considered while establishing the doctrine of fair use, they are (a) “substantial use, (b) nature of the copyrighted work, (c) purpose and character of the use, and (d) likelihood of competition in the market”. Thus, while dealing with the abovementioned questions the court can decide the case by applying these four factors. However, there are still a lot of factors that need to be explored as the same will vary on a case-to-case basis.Thus, there is a need to make the approach towards the doctrine of ‘fair dealing’ a little relaxed, so that the monopolistic rights granted through the copyright protection does not limit the rights of others.[16]

END-NOTES

[1] The Indian Copyright Act, 1957
[2] Ibid
[3] SK Dutt v. Law Book & Co & Ors, (1954) AIR ALL 750
[4] The three step tests of copyrights available at https://www.eff.org/files/filenode/three-step_test_fnl.pdf.
[5] Fair Use: Comparing US and Indian Copyright Law available at
https://www.jurist.org/commentary/2012/05/sandeep-kanak-rathod-copyright/
[6] (1972)2 Q.B. 84
[7] Fair Use Law in India under Copyright Act available at https://blog.ipleaders.in/fair-use-law-india-copyright-act/
[8] M/s. Blackwood & Sons ltd v. A.N. Parasuraman, ALR 410 (Mad. HC:1959)
[9] ESPN Stars Sports v. Global Broadcast News Ltd, 36 PTC 492 (Del. HC:2008)
[10] AIR 570 (All. HC:1954)
[11] AIR 1613 (1978)
[12] 39 PTC 393 (2009)
[13] Supra note 5
[14] The ‘Fair Use’ Rule available at http://www.nolo.com/legal-encylopedia/fair-use-rule-copyright-material-30100.html
[15] Copyright and Fair Use, available at http://fairuse.stanford.edu/overview/fair-use/four-factors/
[16] Defence for Copyright Infringement, available at https://www.cpip.in/blog/opinion/sphere-of-memes-
business-and-ipr/

Author: Naga Lahari, Associate.

Disclaimer: The content of this article is intended to provide a general guide to the subject matter and that the same shall not be treated as legal advice. For any queries, the author can be reached at lahari@samistilegal.in

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