Doctrine of Fair Dealing in Indian Copyright Law
By Jai Vignesh K, Associate, IP Practice
Introduction:
Copyright is a branch of law that grants the creators (writers, musicians, artists and other creators) protection over their works. The Copyright Act defines it as an exclusive right to do or authorize others to do certain acts in relation to original, literary, dramatic, musical and artistic works, cinematograph film and sound recording including computer program. It gives the holder some exclusive rights to control reproduction of works of authorship, such as books, music, paintings, songs, movies for a certain period of time. The object of copyright is to protect the author of the copyrighted work from any unlawful reproduction or exploitation of his or her work by others. On one hand copyright grants exclusive rights to the authors and creators whereas on the other hand it sets out some limitations on the rights of the authors and creators.
A fair dealing is a limitation on the rights of an owner of the copyrighted work without the permission of the author. A fair dealing with a literary, dramatic, musical or artistic work for the purpose of research or private study or criticism or review, whether of that work or any other work shall not constitute an infringement of copyright. Fair dealing is the legalized copying of the copyrighted work. The term fair dealing has not been defined anywhere in copyright law but the court have time and time again interpreted such works and attempted to decipher the ambit of fair dealing.
Legal provisions for Fair dealing:
Article 13 of the TRIPS (Trade related aspects of Intellectual property Rights) explicitly provides, 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.[1]
Article 9(2) of the Berne Convention also states that it shall be a matter for legislation 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.[2] Given that all countries that are members of the WTO are obliged to comply with the TRIPS articles and the Berne Convention on Copyright, this principle has been enshrined in substantial territorial copyright legislations.
The exception of fair dealing is enacted and understood differently in all countries by their individual laws. In India, standard exceptions or defenses to copyright infringement are listed in Section 52 of Copyright Act, 1957.
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Origin and Development of Fair Dealing:
The Doctrine of fair dealing is an integral part of copyright law. It permits the use of copyrighted work without threat of infringement. The defence of “Fair Dealing” initially originated and emanated as a Doctrine of Equity which allows the use of certain copyrightable works, which would otherwise have been prohibited and would have amounted to infringement of copyright. The chief purpose behind this doctrine is to prohibit the stagnation of the growth and creativity for whose progress, the law has been formulated. This Doctrine is one of the most important aspects of Copyright law which draws a line between a legitimate, bonafide fair uses of a work from a malafide blatant copy of the work.
For the first time it was the UK Copyright Act, 1911 wherein fair dealing was explicitly recognized in the imperial copyright legislation. The Fair dealing provisions provide three important limitations to owner’s rights, namely fair dealing for the purposes of non-commercial research or private study, fair dealing for the purposes of criticism or review and fair dealing for the purposes of criticism or review and fair dealing for the purposes of news reporting.
In India the doctrine of fair dealing has been dealt with under Section 52 of the Indian Copyright Act, 1957 which has been extensively borrowed from the UK Copyright law. Section 52 elaborately incorporates the defense of fair dealing has not been defined anywhere in the Act. A fair dealing with a literary, dramatic, musical or artistic work for the purpose of research or private study or criticism or review, whether of that work or any other work and reporting current events shall not constitute an infringement of copyright. The Copyright Amendment Act, 2012 has extended the ambit of works which can be used for private and personal use by incorporating the words ‘any work’. With this Amendment fair use provision has been extended to cinematograph film and musical works.
Doctrine of Fair Dealing:
The term fair dealing has not been defined in the Act. It is a legal doctrine, which allows a person to make limited use of copyrighted work without the permission of the owner.
Whether a person’s use of copyrighted material is ‘fair’ would depend entirely upon the facts and circumstances of a given case. The line between “Fair dealing” and infringement is a thin one. In India, there are no set guidelines that define the number of words or passages that can be used without permission from the author. Only the Court applying basic common sense can decide this. It may however be said that the extracted portion should be such that it does not affect the substantial interest of the Author. Fair dealing is a significant limitation on the exclusive right of the copyright owner, it has been interpreted by the courts on a number of occasions by judging the economic right of the copyright owner. It has been interpreted by the courts on a number of occasions by judging the monetary impact it has on the copyright owner[3]. Where the economic impact is not significant, the use may constitute fair dealing. Hubbard v Vosper, [1972] 2 Q.B. 84, is a leading English copyright law case on the defence of fair dealing. The Church of Scientology sued a former member, Cyril Vosper, for copyright infringement due to the publication of a book, The Mind Benders, criticizing Scientology. The Church of Scientology alleged that the books contained material copied from books and documents written by L. Ron Hubbard, as well as containing confidential information pertaining to Scientology courses. Vosper successfully defended the claim under the fair dealing doctrine, with the Court of Appeal deciding unanimously in his favour. The judgment given by Lord Denning clarified the scope and content of the fair dealing defence.
Doctrine of Fair Use:
Fair use in the United States is incorporated from Justice Story’s 1841 Judgment in Folsom vs. Marsh 9. F.Cas. 342, which was based on the English fair dealing case law. Congress codified fair use in the Copyright Act of 1976. Section 107 provides that fair use for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use). Scholarship and research is not an infringement of copyright. Section 107 then lists four factors that are to be included in the determination of whether the use made of a work in any particular case is a fair use. In other words, Section 107 sets forth nonexclusive purposes and non-exclusive factors for fair use.
The Four Factors of determining Fair Use is as follows:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole and
- The effect of the use upon the potential market for or value of the copyrighted work.
Factor 1 – The purpose and character of use:
The Fair Use statute itself indicated that nonprofit educational purposes are generally favoured over commercial uses. In addition, the statue explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship or research. But not all nonprofit educational uses are fair. A finding of fair use depends on an application of all four factors, not merely the purpose. Courts also favour uses that are ‘Transformative’ or that are not merely reproductions. Fair use is more likely to be found when the copyrighted work is transformed into something new or of new utility or meaning, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.
Factor 2 – The nature of the copyrighted work:
This factors centers on the work being used, and the law allows for a wider or narrower scope of fair use, depending on the characteristics or attributed of the work. For example, the unpublished nature of work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The courts reason that copyright owners should have the right to determine the circumstances of ‘first publication’. Use of a work that is commercially available specifically for the educational market is generally disfavoured and is unlikely to be considered a fair use. Additionally, courts tend to give greater protection to creative works, consequently fair use applies more broadly to nonfiction, rather than fiction. Courts are usually more protective of art, music, poetry, feature films and other creative works than they might be nonfiction works.
Factor 3 – The amount or substantiality of the portion used:
Although the law does not set exact quantity limits, generally the more you use, the less likely you are within fair use. The amount used is usually evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective. However, sometimes the exact original is not always obvious. A book chapter might be a relatively small portion of the book, but the same content might be published elsewhere as an article or essay and be considered the entire work in that context. The amount of work is also measured in qualitative terms.
Courts have ruled that even uses of small amounts may be excessive if they take the ‘Main content of the work’. For example, a short clip from a motion picture may usually be acceptable, but not if it showcases the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “Exclusive scoop”. On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. On the other hand, a court has ruled that a ‘thumbnail’ or low-resolution version of an image is a lesser amount. Such a version of an image might adequately serve educational or research purposes.
Factor 4 – The effect of use on the potential market for a value of the work:
Effect on the market is perhaps more complicated than the other three factors. Fundamentally, this factor means that if you could have realistically purchased or licensed the copyrighted work, that fact weighs against a finding of fair use. To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably available for purchase or licensing. A work may be reasonably available if you are using a large portion of a book that is for sale at a typical market price. If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect may be easier to prove. Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.
Fair Dealing v Fair Use:
There is a minor difference in the terminology with regard to the concept of fair use and fair dealing. US law uses the term ‘Fair Use’, while the English and Indian law uses the term “Fair Dealing”. In the U.S., the term fair use has been used which is not defined in the U.S. Copyright Act, and it is widely accepted that the definition for the same is open to interpretation by courts on a case to case basis. As a result of the lack of statutory definition, fair use is determined in the U.S. on the basis of Justice Story’s four factor test laid down in Folsom v Marsh, where it was stated: “Look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits or supersede the objects, of the original work.”
Fair dealing is an exception to copyright infringement laid out in the copyright statutes of common law jurisdictions such as Great Britain, Canada, Australia, India and New Zealand. The copyright act of these jurisdictions provide that fair dealing of a copyrighted work will not amount to infringement if such dealing is stated in the Act, which means, if a work is copied for a purpose other than the purposes mentioned in the statutory of fair dealing purposes, the copying cannot be a fair dealing regardless of the copier’s original objective.
Another point of division is the accessibility of statutory guidance on how the fairness of a dealing or use should be judged. Since fair dealing provisions generally lack statutory definitions or regulations specifying how fairness is to be determined, the appropriate approach to assess the fairness of actual dealings with protected works is a matter for the courts to decide.
Fair Dealing under Indian Copyright Law:
The exception of fair dealing is enacted and understood differently in all countries by their individual laws. In India, standard exceptions or defences to copyright infringement are listed in Section 52 of the Copyright Act, 1957. The provision of fair dealing makes it certain that for a dealing to be ‘fair’, the purposes have to fall within the statutorily established purposes of private use, research, criticism and review.
The exception of fair dealing not been defined in the Act but finds its roots in the doctrine of equity[4] and simply put, on the basis of facts and circumstances of a case, it justifies unpermitted use of a copyrighted work. It draws a line between a legitimate, bonafide fair use of a work from a malafide blatant copy of the work[5]. The court in the case of Wiley Eastern Ltd. v. IIM[6] laid down that the rationale of Section 52 and stated that it is to protect the freedom of expression (through research, private study, criticism or review or reporting of current events enshrined in Article 19 (1) of the Constitution of India.
Lord Denning, while attempting to form a definition in the case of Hubbard v. Vosper, said: It is impossible to define what is ‘fair dealing’, It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them, other considerations may come to mind also. But, after all is said and done, it must be a matter of impression.[7]
As yet, India has no rule of thumb or no set laws that determine the amount of work that can be taken without the permission of the creator for it to classify under the exception of fair dealing. The decision in this matter is largely left up to the Court’s discretion, there are certain guidelines based on which the court has to make its decision, amongst which, public interest being of paramount consideration.
As the courts in India have analyzed the doctrine of fair dealing, in which they drew primarily from UK and US approaches, they endorsed certain factors that may be more or less relevant in fair dealing cases and which are not provided by the Indian copyright statute. The Courts have traditionally articulated and applied the following three factors in deciding the cases.[8]
- The Amount and substantiality of the portion used:
In Blackwood case, which involved the reproduction of the work in the form of guides, the court rightfully held that the alleged infringer’s intention is an important but not a decisive factor in determining whether the work in question was copied so substantially that the copying would amount to negative ‘fairness’.[9] The Court took a peculiar stand in SK Dutt v Law Book Co and Ors, where the dispute was based on the use of certain quotations from a work. The Court interpreted the fact of acknowledgement by the authors of the plaintiff’s material to mean that if the authors had made any other use of the plaintiff’s book in compiling their own book, they would have acknowledged it; thus, the copying was held not to be a substantial taking.[10]
- Purpose and Character of the use:
The next consideration relates to the purpose and character of the use. Section 52 of the Indian Copyright Act also sets out an exhaustive list various purposes that fall under the domain of fair dealing. If the purpose of the reproduction is not one of those enumerated in the statute the question of fair dealing would not arise. The major purposes which the act enumerates are: private study, research, criticism and review. In V Ramaiah v K Lakshmaiah, wherein the question was, whether the Act of the respondent in writing the guide is an infringement of the copyright of the owner, the courts were cautioned to keep in mind that defendants pleading fair dealing should not have used the work without out making any independent contribution, in other words, the work must have been transformative.[11]
The Court in Chancellor masters, which again concerned copying for the purpose of guide books, had laid down that while dealing with the issue of fair dealing, a Court should ask whether the purpose served by the subsequent work is substantially different (or is the same) from the purpose served by the prior work. To be called transformative, the subsequent work must be different in character, it must not be a mere substitute.
- Effect on the Potential Market: Likelihood of Competition:
This factor seems to have been a weaker consideration in India. However, in Blackwood case, the Court held that the possibility of competition is all that is necessary for determining infringement of a copyright. In ESPN Stars Sports the Court endorsed the ‘likelihood of competition’ and held that if the work is being used to convey the same information as the author, for a rival purpose, it may be unfair.[12]
CONCLUSION:
From the above, it can be understood that fair dealing forms an essential and important part of the copyright law. It is also clear that this concept of Fair Dealing is not very advanced or developed in India, but with the various amendments and judicial decisions, the Doctrine has found a solid footing in the copyright legislature of our county and is evolving further and its scope is expanding with every judicial pronouncement. The Doctrine is necessary in order to bring about a balance or harmony between the conflicting monopolistic interests of the Author and the creative interests of the society at large. The Doctrine helps promote creativity in the society leading to a wide variety of creative and astonishing works, which without the existence of the Doctrine of Fair Dealing might not have been possible[13]. Thus, the Doctrine plays a vital and important role in both the promotion of creativity and the evolution and development of the Copyright law at municipal as well as international level to promote as well as protect such creative works.
[1] TRIPS: Agreement on Trade-Related Aspects of Intellectual property rights, April 15, 1994.
[2] Berne Convention for the Protection of literary and Artistic Works, September 9, 1886.
[3] https://www.linkedin.com/pulse/exceptions-infringement-under-copyright-act-1957-doctrine-narula
[4] Harper & Row Publishers v. Nation Enterprises, 471 US 539.
[5] Pandey, V. (2014, March 13). ‘Fair Dealing’ In Copyrights : Is The Indian Law Competent Enough To Meet The Current Challenges?
[6] Wiley Eastern Ltd. v. IIM, 61 (1996) DLT 281 Para 19.
[7] Hubbard v. Vosper, CA 1971 [1972] 2 WLR 389.
[8] Civic Chandran, 1996 PTC 16 670. It may be noted that these factors correspond with the fair use factors which find statutory recognition under section 107 of the US Copyright Code, 17 USC §107 as limitations on exclusive rights: Fair use.
[9] AIR 1959 Mad 410 Para 86
[10] AIR 1954 All 570 Para 45.
[11] 1989 (9) PTC 137.
[12] ESPN Stars Sports v Global Broadcast News Ltd and Ors, 2008 (36) PTC 492 (Del) Para 17.
[13] https://medium.com/legis-sententia/doctrine-of-fair-dealing-balance-of-conflicting-interests-ac2ae02c7f7b