Fair dealing u/s 52 of the copyright act

• JUDGMENT SUMMARY: Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd.
• DATE OF JUDGMENT: 24 May 2010
• BENCH: Rajiv Shakdher, J.

SUBJECT:

The present case deals with the defence of fair dealing available under Section 52 of the Copyright Act. The court has gone further and summarized the broad principles of law on “ fair dealing” enunciated in various judgments.

FACTS:

The plaintiff, Super Cassettes Industries Limited, which runs under the brand T-Series, is engaged in the business of manufacturing and marketing audio cassettes. The defendants, Hamar Television Network Pvt. Ltd., a television network which mainly caters to Bhojpuri audiences and runs a series of entertainment and news channels, including ‘Focus TV’, was broadcasting the copyrighted works of the plaintiff without a license. The plaintiff sought an injunction against infringement of its copyright in cinematographic and musical works, seeking to restrain it from broadcasting copyrighted works of the plaintiff.

IMPORTANT PROVISIONS:

• Section 14- meaning of copyright
• Section 52-Certain Acts not to be an infringement of copyright
• Section 39- exceptions of broadcast reproduction right or performer’s right

ISSUES: 

The main issues in question before the court were:

• Whether the defendants took substantial extracts from the plaintiff’s copyrighted work?
• Whether the use of extracts was fair or not?

ANALYSIS OF THE JUDGMENT:

Plaintiff's Contentions: The plaintiffs submitted that as the sound recording company, it is the first owner of the copyright in musical works and compositions that were produced under its direction and control. The plaintiff alleged infringement of its copyright under S.14(e)(iii), S.14(d)(iii) and S.14(a)(iv) of the Copyright Act concerning sound recordings, audio-visual recordings.

The defence of fair dealing under Section 52 could not be invoked by the defendants as it was not a defence raised with true intentions since the defendants falsely stated that the broadcasts were made before the formal launch of the channel and they continued to violate the plaintiff’s copyrighted works, regardless of receiving notice of the same

Defendant's Contentions: The defendants contended that the maximum length of broadcast at any given point was not more than 40 seconds long and hence cannot be called as indiscriminate use of copyright for commercial exploitation or ‘substantial taking’. The defendants invoked the defence of fair dealing underSection 52(1)(a)(ii) and Section 52(1)(b)(ii) of the Copyright Act by claiming that the alleged broadcast was in the nature of criticism and review and for reporting “current events” underSection 39(b) of the Act.

Court's observations:

The court first cited various decisions to elaborate on the tests advanced for reporting ‘currentevents’.The court then summarized the broad principles of law on “fair dealing” enunciated in various judgments cited before the court in the following manner:

1. It is neither possible nor advisable to define the exact framework of fair dealing.
2. It is a question of fact, degree, and total impression carried by the court.
3. In ascertaining whether extracts taken from copyrighted work have been put to fair use, the extent and the length of the extracts may be relevant. Short comments following long extracts may in certain circumstances be unfair, while long comments following short extracts may be fair. In certain circumstances even small extracts, which are taken, on a regular basis may point to unfair use of the copyrighted work.
4. The right to make fair use or deal fairly with the copyrighted work includes the right to criticize not only the style but also the underlying doctrine or philosophy of the copyrighted work. Criticism might be both “strong” and “unbalanced”. Such criticism by itself will not amount toforfeiture of the defence of fair dealing.
5. In establishing as to what would constitute reportage of “current events” or would fall within the scope of “criticism” or “review”, courts must adopt a liberal approach.
6. In discerning as to whether a person has made fair use of copyrighted work, the standard employed ought to be that of a “fair-minded” and “honest person”. In the case of musical works the test would be that of a “lay hearer”.
7. While examining the defence of fair dealing, the length and the extent of the copyrighted work which is made use of, is important. However, it cannot be reduced to just a quantitative test without having regard to the qualitative aspect. In other words, an enquiry ought to be made as to whether the alleged extract forms an essential part of the work of the person in whom the copyright vests. This may be particularly accurate in the case of musical works where a few notes can make all the difference.
8. Even though copyrighted work may contain confidential information, the courts would refrain from injunction the use of such work if it is in public welfare. Although there lies a difference between a breach of confidence and infringement of copyright, the court would not grant an injunction in favour copyright owner if it is contrary to public policy, i.e., if it is- (a) immoral, (b) scandalous, (c) contrary to family life, (d)injurious to public life, public health, safety or is contrary to administration of justice, and (e) encourage an action which threatens (c) and (d) above.
9. The principle of freedom of expression protects information along with ideas. It includes the right of publishing and receiving information. Public interest may in certain circumstances be so profuse that courts would not hesitate from granting an injunction onthe use of  “leaked information” or the right to use the “very words” in which the aggrieved person has copyright, as, at times, the public interest may require the use of the “very words” to convey the message to the public at large. However, this would not necessarily protect the infringer in an action instituted on behalf of the copyright for damages and claim for an account of profit.
10. Public interest and what interests the public need not to be same.
11. The motive of the user shall play a vital role in assessing as to whether an injunction should be granted.
12. Commercial use of copyrighted work cannot simpliciter to make unfair.
13. “Transformative use” may be considered in certain situations as fair use of copyrighted work.

The court observed that the qualitative test is as important as the quantitative test and so rejected the defendant’s contention that a mere 40-second broadcast, cannot be termed as ‘substantial takings’. 

The Court after applying the lay hearer testheld that the extracts taken were substantial and the alleged purposes for which the copyrighted works were used by the defendants did not fall within the exceptions provided in S.52(1)(a)(ii), S.52(1)(b)(ii) or S.39(b) of the Copyright Act. The musical works in respect of which the plaintiff claimed copyright had no relevance to the nature of the programmes telecasted by the defendants. The works were neither used for criticism or review nor were essential for coverage of current events.

The court concluded by observing that repeated occasions of infringement by the defendants would result in a reasonable cause for grant of aggravated damages at trial.

Conclusion:

The Court in the present case relied largely on US and UK principles of “fair use” and “fair dealings” and pursued to incorporate them in its reading of Section 52 and Section 39 exceptions. The principles of fair dealing summarized in the judgment have been affirmed and cited by the courts of India in several decisions.