An Overview Of The Fair Use Exemption Under The Copyright Law, 1957

Coverage of this Article

KEY TAKEAWAYS

-Copyright is an exclusive right granted to the owner over their creative works like literary, artistic, musical works, computer programs, sound recordings, films, etc.

INTRODUCTION

-Copyright refers to the protection of the creator's work from being copied by others. The purpose of copyright laws is primarily to protect the author of a copyrighted work from unauthorized replication or exploitation by others.

INFRINGEMENT OF COPYRIGHT

-Section 51 of the Indian Copyright Act, 1957 states that a copyright is infringed when any person does anything without getting the permission of the copyright holder, which only the copyright holder is authorized to do.

DOCTRINE OF FAIR USE UNDER THE INDIAN COPYRIGHT ACT, 1957

-The doctrine of fair use in simple terms enables a person to utilizea copyrighted work in limited ways without the owner's permission.

JUDICIAL INTERPRETATION

-A landmark case under copyright to cite here is the case of Eastern Book Company v DB Modak (2008),the Court had to decide whether the defendant's copying of copy-edited judgments as published in the plaintiff's law report constituted copyright infringement and whether the copying constituted fair dealing under Section 52(1)(q) (iv) of the Act, which prohibits the reproduction or publication of any judgment or order of a court, tribunal, or other judicial authority.

CONCLUSION

-The primary objective of the fair dealing/fair use exception is to prevent stagnation in the creation of new ideas.  

KEY TAKEAWAYS

Copyright is an exclusive right granted to the owner over their creative works like literary, artistic, musical works, computer programs, sound recordings, films, etc.

An idea cannot be protected under copyright because people can have the same ideas; it is only the implementation of the ideas that could be protected under copyright law.

Fair use is an exception to the exclusive right granted to the owner of the creative work. It permits the use of copyrighted work provided some level of value addition to the original work has taken place. 

A few examples of fair use exceptions are criticism, comment, news reporting, teaching, scholarship, and research. 

INTRODUCTION

Copyright refers to the protection of the creator's work from being copied by others. The purpose of copyright laws is primarily to protect the author of a copyrighted work from unauthorized replication or exploitation by others. It's imperative to note here that ideas and concepts have no copyright; copyright only exists in the material form in which the ideas are expressed. Thus, adopting someone else's ideas is not a copyright violation. 

The key rationale for protecting expressions rather than ideas is to ensure that ideas can freely flow because ideas are far too precious to be protected by copyright and if been protected would put a stop to creativity and innovation. In other words, the idea-expression dichotomy was created to ensure that the expression rather than the idea is protected. To understand better, let's take, for instance, two authors may have the same idea, but the method they express themselves, that is, the way they put their thought down in a tangible form, is what distinguishes the book. Therefore, it is the form in which a particular idea is expressed that is protected by law. This article will provide an overview of when copyright infringement occurs, followed by a detailed analysis of the doctrine of fair use exception.

INFRINGEMENT OF COPYRIGHT

Section 51 of the Indian Copyright Act, 1957 states that a copyright is infringed when any person does anything without getting the permission of the copyright holder, which only the copyright holder is authorized to do. Before understanding the infringement of copyright and the exceptions present it is important to note that, as per Section 13(1) it is seen that, copyright shall be allowed if there any Original literary, dramatic, musical, and artistic works, Cinematograph Films, Sound recordings, etc. Thus, the owner of the copyright has an exclusive right to do certain acts in respect of the work being copyrighted. So, if any person who is not authorized does any kind of activity that affects the owner of the work, then he will be infringing the copyright which brings us to the question of what constitutes an infringement. It is said that copyright in a work is considered as an infringement, only if a substantial part is usedwithout authorization and what is substantial would not be the same in each case and would differ based on the facts of the case. A very well-known example to cite here on infringement of copyright is that, if a lyricist copies a very catchy phrase from another lyricist’s song, then there is likely to be an infringement even if that phrase has been copied is short.

Having understood, what constitutes an infringement of copyright it is imperative to note that there are certain exceptions to infringement as well which are referred to as the doctrine of fair dealing that would be discussed subsequently in detail. To give a brief, fair dealing is a limitation or an exception to the owner of the work who has an exclusive right under the law. Under this exception, a specific type of use of copyrighted material is allowed without it being termed as an infringement of copyright. Although this exception is present where one could use the work of the other without it being termed as infringement, it attempts to distinguish between a valid, bonafide fair use of a work and a malafide copy of the same and then come to a decision on the facts of the case. 

Further, section 52 of The Copyrights Act, 1957, deals with the laws related to fair dealing but to date there is no proper definition for the term “fair dealing” under the act. The courts have on various occasions referred to the landmark case of Hubbard v Vosper (1972)where the issue of this exception to infringement was looked into. It was held that it’s impossible to define what is "fair dealing" and stated that, first we must consider the number and extent of the quotations and extracts being done. Thereafter, there arises a need to check if they are used as a basis for comment, criticism, or review, which may be fair dealing but if they are used to convey the same information as the author, for a rival purpose, it would be considered unfair.  Lastly, it was observed in this case that having looked at the basis of use, the amount of extract is taken it is a matter of impression would it be taken into consideration whether it is fair use or for unfair means. 

DOCTRINE OF FAIR USE UNDER THE INDIAN COPYRIGHT ACT, 1957

The doctrine of fair use in simple terms enables a person to utilizea copyrighted work in limited ways without the owner's permission. However, this term has not been defined in the Copyrights Act and can only be determined through the interpretation of the courts. It is to be understood here that the Court would primarily consider whether or not the original authors' interests had been harmed in any way. In the case of Kartar Singh Giani v. Ladha Singh (1934),it was observed that for there to be unfairness, there must be a desire to compete and profit from that competition should be the motive. Butthe dealing would be considered fair unless the infringer's motive was unfair in the sense of it being inappropriate. 

Further, the provisions of the Indian Copyright Act 1957, was inspired by the provisions of Statutes in the USA and UK. As already stated, section 52 of the Copyright Act, 1957 discusses the principle of fair use and provides for "Certain Acts that are not an infringement of Copyright". The exceptions can be narrowed down as follows:

(a) Research work, which may include quoting an author's work, a newspaper or a book, or a statement made by a court in judicial proceedings, or any other kind of published work. 

(b) Summarizing any data or information utilized in the media (journalism).

(c) Featured in cinematic films or photography.

(d) Any published literary, dramatic, or musical work is reproduced or recited and will be carried out in compliance with the law.

(e) Using the information in educational institutions without a profit motive, i.e., for knowledge transfer.

(f) Any parody in which a person is imitated for amusement rather than to defame or plagiarize.

JUDICIAL INTERPRETATION

A landmark case under copyright to cite here is the case of Eastern Book Company v DB Modak (2008),the Court had to decide whether the defendant's copying of copy-edited judgments as published in the plaintiff's law report constituted copyright infringement and whether the copying constituted fair dealing under Section 52(1)(q) (iv) of the Act, which prohibits the reproduction or publication of any judgment or order of a court, tribunal, or other judicial authority. Further, the question before the court was how much work should be done on "raw" judgments to make them copyright able and is mere copy-editing and making corrections enough to the judgment. The Supreme Court observed that the work to be copyrightable must be original "in the sense that the author produces a work somewhat different in character by selection, coordination, or arrangement of pre-existing data." The author must produce content with "exercise of his skill and judgment" to claim copyright in a compilation, which may not be creative in the sense that it is not unique or non-obvious, but it is not just the product of merely labor and capital.

In reference to the above-mentioned observation, the court stated that simply copy-editing would not constitute a valid work for copyright because it would not involve "creativity," but expertise used in writing head-notes, footnotes, and editorial remarks would result as a valid act for copyright."Hence, the Hon’ble Supreme Court in this particular case held that the respondents are prohibited from copying head notes, footnotes, and editorial remarks appearing in the law journals of the appellant.

Further, the amount and substantiality of the portion used in connection to the copyrighted work as a whole has generally been stated and applied by the courts while looking into the doctrine of fair dealing. Thus, while acknowledging the idea-expression dichotomy, the Hon’ble Supreme Court held in a well-known case titled RG Anand v Delux Films and Ors (1978),that there can be no copyright in an idea, subject-matter, themes, plots, or historical or legendary facts, and that copyright violations in such cases are limited to the form, manner, and arrangement and expression of the idea by the author of the copyrighted work.

An important observation to highlight in the case RG Anand is that the court explicitly stated, where the same idea is developed differently, it is clear that because the source is the same, there will be similarities, and that in such a case, the courts should determine whether the similarities are on fundamental or substantial aspects based on the mode of expression used with regards to the copyrighted work.

Secondly, as previously stated, the aim and the nature of use need to be taken into account on deciding if there is an infringement or it is an exception to copyright. Section 52 as already discussed, lays forth a comprehensive list of ways copyrighted work could be used and would fall under the ambit of fair dealing. 

A few examples of fair use exceptions like stated are criticism, comment, news reporting, teaching, scholarship, and research. But here it is pertinent to note that, by the Copyright (Amendment) Act of 1994, the phrases' research or private study' were substituted by the words 'private usage including research.' The significance of this amendment is that it now provides a defense to anyone performing research or private study who, in doing so, is dealing fairly with a literary work but on the other hand if a publisher publishes a book for commercial exploitation and infringes a copyright, the publisher's defense under Section 52 would be invalid, even if the book produced by him is used or intended for use in study or education. Hence, what needs to be understood here is that there must be no publication when dealing with a work for private study because as the term says, it refers to a student copying from a book for personal use and not for publication or circulation of the same to the public. 

CONCLUSION

The primary objective of the fair dealing/fair use exception is to prevent stagnation in the creation of new ideas. Under the copyrights law, the concept of fair dealing is vital for enabling exceptions to copyright protection, fostering growth and creativity, and encouraging people to achieve levels of inventiveness while maintaining the originality of the copyrighted work. In India, fair use provides a list of exceptions that are not regarded as infringements. 

 Further, it is evident that the Indian legislation on fair dealing is quite narrow and constrained in comparison to the United States which is more detailed and flexible but, the United States' fair use law has its own gray areas and shouldn't be relied on blindly as well. Moreover, the point to note here is that the courts have also stated that there is no way to come up with a "rule of thumb" that can be used consistently to determine the fair use of any work and depends on the facts and circumstances of each case. Hence, to conclude in my opinion there is a need for the Indian courts and the legislation to thoroughly examine the scope of fair dealing as it is a crucial exemption to the copyright law.