- The Doctrine of Fair Use under the US Act and The Doctrine of Fair Dealing under Section 52 of the Indian Copyright Act, 1957 are exceptions to copyright infringement.
- The Amendment to the Act in the year 2012 has been a stepping stone for providing better clarity to the provision of fair dealing.
- The Courts have validated the interpretation of the term fair use with respect to the facts of the case and not in rigidity with the provisions of the Act.
Human mind’s creativity knows no bounds. The artistic, creative and literary works of a creator is given legal protection by the copyright tag for a specific number of years. It allows the owner to maintain sanctity and originality of the work and ensures that no other person can claim the credit of the work done by the owner.
The basic meaning of the term fair use implies usage of any copyrighted work of an author for purposes such as commenting upon it for criticizing or praising the works of the author or imitating the works of the author which can be done without gaining any consent from the copyright owner. The exact definition of fair use has not been penned down in any legislation or in any judgement. No general rule or guidelines have been created for the purpose of interpretation but the legislators and judges have time and again left the clause for free interpretation according to the needs and circumstances of the case in hand of any infringement.
Section 107 of the US Act mentions the doctrine of fair use to be “the most troublesome in the whole law of copyright” and lays down four factors which would qualify the usage of a copyrighted work to be under fair use:
- The purpose behind the use of the material.
- The nature of the material being used.
- The quantity of the work being used, the portion of the whole work of the owner of the copyright.
- The effect of the use of the work on the marketability of the original material.
Fair Use in Indian Context
In the Indian context the doctrine of fair use is termed as fair dealing. The copyrighted material can be used for the purpose of research, review and commenting on the work of the owner.
The Indian Copyright Act of 1957 in its Section 52 (1) and prescribes under what conditions the usage of a copyrighted work would not fall under infringement of the copyright. The literary, artistic, dramatic and musical works can be used for the purpose of reporting in magazines or newspapers or for broadcasting or cinematography. The usage of the copyrighted work made under law in force, by reproduction by the legislators or in the legal proceedings would not lead to copyright infringement and is thus protected under law. The
Section lays down an elaborate list of the possibilities of fair dealing of the copyrighted material by any person other than the owner.
Even though the Act has specified the exceptions to the infringement in the form of fair dealing, yet there is not a specific definition of the same. The honorable judge in the case of Civic Chandran v. Ammini Amma observed that even with no specific definition the Section 52 (1) (a) and 52 (1) (b) of the Act particularly deal with fair dealing and not reproduction of the copyrighted work. For fair dealing, in case of reproduction of a copyrighted material, only extracts or quotations would be permitted and not the whole or partial reproduction the work.
Lord Dennings in the case of Hubbard v. Vosper has stated that, “It is impossible to define fair dealing and it must be a question of degree. The number and extent of the quotations and extracts must be considered and then the use of the same. The proportions and other considerations should also be considered but it is still a matter of impression.”
So, the one facing the challenge of copyright infringement has two defence mechanisms to adapt, i.e. “challenge the copyrightability of the work or use Section 52 of the Act”.
The subject of musical recordings and cinematograph films were brought under the purview of fair dealing only after the Indian Copyright (Amendment) Act, 2012 was passed. The clause (1) (a) incorporated fair dealing of the copyrighted work in respect of private and personal use excluding computer programming. It also included fair use for the benefit of the disabled and also included the usage of copyrighted material for research and educational purposes.
Folsom v. Marsh
It is the first case of an exception to the infringement of copyrighted work, known to the legal world. The provision of Section 107 of the US Act was codified on the basis of the decision given in this case. This case revolved around the biography of George Washington whose letters were published by the plaintiff. The defendant published the work of the reverend who had copied certain pages from the biography for the production of his own work.
The letters were claimed to be non-copyrightable to which the judge held the opinion that the letters were copyrightable subject matter and usage of even any portion of the same can lead infringement. The claim of the defendant that the usage of a copyrighted material could be fair was though accepted but the claim of the work in question in the case being fair was rejected.
This gave rise to a series of discussion which finally led to the four factors to determine fair use of copyrighted material as codified in the US law.
The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services
The defendants were challenged for copyright infringement of the various publications such as Oxford University Press, Cambridge University Press and its Indian affiliate and Taylor & Francis and its Indian affiliate for photocopy and distribution of the photocopies as course packs. The portions ranged from 5% to 33.25% of the original works which was pleaded by the plaintiffs for permanent injunction to be placed on the defendants.
The Court was of the opinion that usage of copyrighted material for making course packs for the reading of the students would not amount to copyright violation of the publishers. However the question of liability of reproduction of the whole copyrighted material was left unanswered by the Court.
India TV Independent News Services Pvt. Ltd. V. Yashraj Films Pvt. Ltd.
The clips of a movie of the plaintiff were shown in a show broadcasted by the defendants on their channel on the life of singer performing their own songs. The plaintiff claimed violation of copyrights in the show of the defendants. The defendants claimed the defence of fair use under Section 52 of the Act.
The Court prohibited the use of any cinematograph film without proper permission being obtained from the owner. This case was a development for the Indian legal system in the field of copyright infringement which did not observe the case from the rigid and traditional angle of the cases prior to this case.
So far India has been under immense progress steps with regard to fair use in the copyrighted materials aspect in comparison to other countries. Yet the proper dynamics of fair use has not been determined as it is a concept which would stand differentiated in different cases.
The legislators have attempted an amazing step in incorporating and elaborating the exceptions to infringement of copyright under fair dealing in Section 52 of the Indian Copyright Act, which has provided the citizens with a weapon or way to take a legitimate standing in the court of law.
The creativity of the owner has to be protected as it is a gift of the mind but that does not entail any usage of the same when the usage is done fairly as knowledge is not limited and can be exercised for a progressive understanding of the works of the owner of the copyright.