This article was written while pursuing The Certificate Course in Intellectual Property Law from Lawsikho.com
Introduction
Fair dealing is a limitation or exception to the rights that are granted to copyrights owners by the copyrights law. It permits certain acts of copying or reproducing the works which are copyrighted under certain circumstances, which if these circumstances were absent, would have led to infringement of copyrights and hence, liable for punishment. Such provisions for carving out exceptions to the copyrights in certain situations have been inculcated in order to create a balance between the rights of the individual owners of the copyrights and the society as a whole.
The fair dealing doctrine allows copying and use of certain copyrighted works for the purpose of research, private study, education, satire, parody, criticism, review or news reporting. Fair dealing allows such copying even without the permission of the owner. The object is to prevent limiting the knowledge and its utilisation to just the owner and allow the rest of the society to also reap the benefits of such knowledge which may help in the growth and development.
The concept of fair use is something that can be found in most of the countries which have been inculcated into their local laws via ratification of the Berne Convention for protection of literary and artistic works. The Berne Convention 1886 is the first major international convention on copyrights. Article 9 (2) of the Berne Convention authorizes national legislation to permit the "reproduction" of protected works "in certain special cases" provided two cumulative conditions are fulfilled:
(a) The reproduction does not conflict with the normal exploitation of the work and
(b) Such reproduction does not unreasonably prejudice the legitimate interests of the author.
The doctrine is also seen in Article 13 of the TRIPS (Trade-related Aspects of Intellectual Property Rights), according to which, "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".
Fair Use Law in India
The fair dealing doctrine of India and the same of colonies of the UK are considered to be of weak imperial import. With an exhaustive list of exceptions under fair dealing, the laws of the UK are perceived as restrictive. Comparatively, the laws of the US are considered more robust. The fair use law of US offers better flexibility. The law in the US is open to created newer exceptions as the time progresses and so does technology.
In India, the laws related to fair use in Copyrights law is statutorily incorporated in Section 52 of the Indian Copyright Act, 1957. There are approximately forty instances which act as an exception to situations of copyright infringement. Section 52 of the act itself does not define what fair dealing is, per se. However, in the case of Hubbard v. Vosper, Lord Denning defined fair dealing as,
“It is impossible to define what is "fair dealing". It must be a question of degree. You must first consider the number and extent of the quotations and extracts.... then you must consider the use made of them... Next, you must consider the proportions...other considerations may come into mind also. But, after all, is said and done, it is a matter of impression."
According to the law in the United States, section 107 of the Code along with the House Report formulates four principles to determine if an act is to considered as infringement or fair dealing,
(i) Whether the purpose and character were educational or commercial
(ii) Nature of copyrighted work
(iii) Substantiality of work
(iv) Effect on the potential market of copyrighted work
While there are around forty instances of fair dealing given in Section 52 of the Copyright Act, 1957, certain important ones, along with landmark and substantial precedents have been deal within this article.
Research, Criticism and Review
Section 52 (1) (a) of the Act says that, with the exception of computer programmes, following acts in relation to work will be considered as fair dealing-
i) Private and personal use, including research.
ii) Criticism or review. Provided that the title of the work and author is identified.
Research Defined:
Dictionaries define research as careful consideration and study of a subject undertaken for the discovery of facts via search and investigation into the related subject matter. In De Garis v. Neville Jeffres Pidder Pty Ltd, the Australian High Court gave the definition that research is a diligent and systematic inquiry or investigation into a subject in order to discover facts or principles.
It is pertinent that an exception for research shall be there in copyrights as research, in all subjects and areas, be it science, sociology, economics or history, is the pillar on which rests the development and growth of society and betterment of life. The researchers should not be burdened with having to waste time seeking permission from owners of copyrights to include their words into the research, causing unnecessary hindrances to their research. Further, research does not cause any hindrances in customary markers for a copyrighted work, which is one of the biggest reasons why the judiciary, as well as legislature, have excluded research.
Photocopying articles from a medical journal for the purpose of distribution of the same to medical researchers was held to be fair use in the case of Williams & Wilkins Co. v. The United States, and also the owner of the copyright had not shown that this act was or purported to be substantially harmful.
Criticism or Review Defined:
The use of some extracts of a copyrighted work for the purpose of critique or review is inevitable. Such use by the reviewer or critic will be covered under fair use and will not attract penalty under copyright law for infringement. As per the laws of the UK, such freedom is accompanied by a precondition that the source should be sufficiently acknowledged. In the Indian copyright act, such a condition is not prescribed.
In Chancellor Masters and Scholars of the University of Oxford v. Narender Publishing House[6], the plaintiff owned copyrights in a two-part series of books, titled "Oxford Mathematics Part A and Part B” which was based on Class IX J&K State Board of Secondary Education Syllabus for mathematics. The Defendant printed and published a series of guidebooks by the name "Teach Yourself Mathematics (fully solved) Part A" and "Teach Yourself Mathematics (fully solved) Part B", wherein they copied all the questions from the book of the plaintiff, providing a step by step solution to the question, and claimed exemption as “review” under section 52(1) of the Act.
The court defined what a “transformative work” is and held that a guidebook comes under this definition and is hence a transformative work. The definition was, that subsequent work is transformative when it is different in character from the previous work. In such cases, whether the copying was whole or substantial becomes immaterial. Further, The Shorter Oxford Dictionary (5th Edition) was referred by the court to review the definition of “review”, which defined it as "view, inspect or examine a second time or again......". Review, with respect to a mathematical work, would encompass re-examination or a treatise on the subject. Going by that, the books published by defendant wherein they have revisited the questions and provided a step by step solution for the assistance of students, have prima facie led to review, thus falling under the exception of fair dealing under section 52 (1) (a)(ii) of the Copyright Act, 1957.
Other Permitted Reproductions Under Section 52 and Landmark Judgments
Section 52 (1) (i)
The reproduction of a copyrighted work without the permission of the owner will not be infringement in cases where,
(i) It is used by a teacher in the course of instruction
(ii) It is reproduced in a question to be answered as a part of an examination
(iii) It is used for the purpose of answering such questions
Illustration:
A teacher distributes copies of an article written by B without his permission to students of her class for the purposes of explaining a topic. The teacher has not infringed the copyright of B.
In a question paper, the examiner quotes a few paragraphs from a work and instructs the students to analyse the work of the author. The examiner has not violated the copyright of the author.
In University of Oxford & Ors. Vs. Rameshwari Photocopy Services, popularly known as DU photocopy case, photocopies of several books were made and consequently combined to create course material. Infringement was claimed by the publishers. And the defence of fair use under section 52 (1) (i) was claimed by the defendants. The court ruled against the publishers but later restored the suit as it felt it important to ensure that the material was being used ‘in the course of instruction’. The publishers, however, withdrew the suit and agreed not to pursue it as they understood the role played by those course packages in the education of students.
Section 52 (1) (m)
Reproduction of any article on any current economic, political, social or religious topic in a newspaper, magazine or other periodicals will not be considered an infringement of copyright except in situations where the owner of copyrights or the author has reserved the reproduction rights with themselves.
The question that with whom will the copyrights of articles written on current issues exist in cases where the author has not reserved the reproduction rights with themselves, arose in the case of The Periyar Self Respect v. Periyar Dravidar Kazhagam. It was held that unless such right has been expressly reserved by the author, no copyrights shall vest with them as a reproduction of such articles on current issues do not fall under infringement copyright and are protected under section 52 (1) (m).
Section 52 (1) (k)
Playing a recording meant to be heard by the public will not be an infringement in following cases,
(i) Playing for residents in residential premises, in a closed room or hall, as part of the amenities provided exclusively or mainly for residents therein.
(ii) Played for activities undertaken for the purpose of an organisation, club or society that does not work for profit.
Illustration:
Playing a sound recording in a mess or hostel common room will not lead to infringement.
However, playing a sound recording in a hotel lobby without the producer’s authorisation is an infringement.
Section 52 (1) (u)
Including following in a cinematographic film will not be considered as an infringement of copyrights,
(i) An artistic work which already permanently exists in the public domain and the public already has access to it.
(ii) Inclusion of an artistic work which is only by way of background and incidental to the principal matters of the film.
Illustration:
There’s a statue drawn and carved by A in a public garden. While shooting for a cinematographic film in that garden, a scene is included where the hero and heroine run around the statue romantically. This won’t constitute an infringement of copyright.
In Independent News Services v Yashraj Films & Super Cassettes, the question was whether a short clip of music or video from a movie can be used for advertisement or commercial purpose. The court held that it is not ordinarily covered under fair use and this defence isn’t available unless the infringement is de minimis or trivial, i.e., where the cost of litigation itself will exceed the damages sought in the suit.
In Ram Sampath v Rajesh Roshan & Others, the question which arose was whether copying a piece of music from one song to another comes under fair use. Facts were such that in the famous Bollywood movie, Krazzy 4, music from an advertisement were copied and put into the soundtrack. Infringement was claimed by music composer of the advertisement, and the defence of fair use was claimed by the filmmakers as the music as only used for six seconds. The High Court of Bombay holding the filmmakers liable said that it led to infringement as those six seconds might be a catchy part.
Special Provisions for Differently Abled
Via the Copyright Amendment Act, 2012, Section 52(1) was amended to make it inclusive of special provisions for the differently-abled. The Section 52 (1) (zb) was included which allowed for the use of differently-abled, either personal, educational or research, adaptation, reproduction or issuance of copies of a work in any format to the public. The pre-condition for this is that it should be done on a non-profit basis by organisations working for the benefit of differently-abled. Further, reasonable measures must be taken by the producers to prevent the entry of such work in the mainstream. Furthermore, under Section 31B, compulsory license after due verification of the authenticity of the applicant can also be granted by the copyright board, to persons working for the differently-abled on a non-profit basis.
Conclusion
The law dealing with fair use is an important provision to promote research and development. It is required not only in the copyrights law but also to provide a stronghold to the provisions of Article 19 of the constitution of India. Since its inception, the law related to fair dealing has come a long way and has only been strengthened and developed to make it more inclusive of each aspect of the society, via subsequent amendments and landmark precedents set by the judiciary. Even after such growth, there is still a long way for it to grow and become less stringent and more inclusive.
References:
S. 52(a), Copyright Act, 1957
Oxford English Dictionary, Vol. VIII
De Garis v. Neville Jeffres Pidder Pty Ltd. (1990) 18 I.P.R. 291
Williams & Wilkins Co. v. The United States, 487 F.2d 1345 (1973)
S. 30 (i), Copyright, Designs and Patents Act 1988
Chancellor Masters and Scholars of the University of Oxford v. Narender Publishing House, 2008 (38) PTC 385 (Del.).
University of Oxford & Ors. Vs. Rameshwari Photocopy Services, (2016) 160 DRJ (SN) 678.
The Periyar Self Respect v. Periyar Dravidar Kazhagam, 2009 (41) PTC 448 (Mad).
Independent News Services vs. Yashraj Films & Super Cassettes, 2013 (53) PTC 586 (Del)
Ram Sampath v Rajesh Roshan & Others, MANU/MH/0240/2009
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