This article has been written by Ms. Ekagrata Kalra, a 4th year student of Vivekananda Institute of Professional Studies, GGSIPU.
Introduction
The legal concept of copyright gives authors, musicians, artists, and other creators protection over their creations. According to the Copyright Act, it is the solely reserved right to carry out or authorize others to carry out specified acts with respect to original literary, dramatic, musical, and artistic works, cinematograph films, and sound recordings, including computer programs. For a specific period of time, it grants the holder some exclusive rights to manage the reproduction of works of authorship, including books, music, paintings, songs, and movies. The purpose of copyright is to shield the creator of a work from any unauthorized duplication or commercialization of their work. On the one hand, copyright offers authors and creators exclusive rights, but on the other, it lays forth various restrictions on those rights.
Fair dealing is a crucial component of copyright law that has been extensively explored around the world. The law that typically protects any content that is thought to be copyrighted under the Indian Copyright Act, 1957, makes an exemption for the idea of fair use. The distinction between a true and authorized fair use of a work and a malicious and obvious replica of the work is exceedingly fine.
What is Fair Use Provision of Copyright
In the case of Hubbard vs Vosper it was held that, in the line of dealing with the concept of Fair Dealing, Lord Dennings has stated that “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”.
An exception to a creator’s rights known as fair use permits limited uses of copyrighted content without the creator’s consent. The fair use concept guards against a strict interpretation of copyright laws that would undermine its primary goal of promoting creation.
The fair use provision covers the reproduction of literary, dramatic, musical, or artistic works for legitimate review, teaching, or research as well as for broadcast, cinematograph film, or photographic documentation of current events. It also covers the use of performance or broadcast excerpts for reporting current events. Fair use also includes the act of a legitimate possessor creating copies or adapting a computer program for the purposes for which it was given or as a way to provide temporary relief from the program’s loss, destruction, or damage.
Fair use allows for the legal, unauthorized citation of or inclusion of copyrighted content into the works of other authors.
Fair Use under the Indian Copyright Act
Section 52 of the Copyright Act of 1957, which serves as the legal framework for the Indian government, outlines certain acts or works that cannot be regarded as copyright infringements, including fair dealing with a literary, dramatic, musical, or artistic work that isn’t a computer program for the purposes of-
- For the purposes of
(i) “private or personal use, including research;
(ii) criticism or review, whether of that work or of any other work; and
(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public, fair dealing with any work that is not a computer program is permitted.
- the brief or accidental recording of a work or performance for the sole purpose of technical electronic transmission or public communication;
- Except in cases where the person in charge is aware or has a good faith belief that the storage is of an infringing copy, temporary or incidental storage of a work or performance for the purpose of providing electronic linkages, access, or integration is not banned by the right holder.
- the copying of any work for a court case or to report on a court case;
The use can qualify as fair dealing if the economic impact is minimal. The following four considerations determine whether a transaction is fair:
- the purpose of use;
- the nature of the work;
- the amount of the work used, and
- the effect of use of the work on the original.
In the case of R.G. Anand v. M/s Deluxe Films and Ors,, the Supreme Court of India held that the fair dealing with a copyrighted work for the purpose of criticism or review does not infringe the copyright in the work.
In University of Delhi v. Oxford University Press, The Delhi High Court in this case held that the reproduction of copyrighted materials for the purpose of conducting examinations by educational institutions would fall within the ambit of fair dealing under Section 52(1)(i) of the Copyright Act.
Similarly in Indian Performing Rights Society Ltd. v. Eastern Indian Motion Pictures Association , The Supreme Court held that the use of copyrighted work for the purpose of reporting news or current events does not amount to copyright infringement.
Further in Krishika Lulla and Ors v. Shyam Vithalrao Devkatta and Ors, The Bombay High Court in this case held that the use of copyrighted work for the purpose of creating a parody would be covered under the fair dealing provisions of the Copyright Act.
These case laws provide a glimpse into how the Fair Use Provision of Copyright is interpreted and applied in India. They highlight the importance of balancing the interests of copyright owners and users, and provide guidance on the permissible uses of copyrighted materials under the fair dealing provisions of the Copyright Act. It is important for individuals and organizations to be aware of these case laws while dealing with copyrighted works in India.
Global Perspective on the Fair Use Provision
Fair use, or its equivalent provisions such as fair dealing, are present in the copyright laws of many countries around the world. While the specific details of the provisions may differ from one jurisdiction to another, they generally aim to balance the interests of copyright owners with the interests of users.
In the United States, fair use is a statutory provision that allows for the use of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The four factors used to determine whether a particular use is fair include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for or value of the copyrighted work.
In the European Union, the equivalent provision is called “quotation right” or “citation right,” which allows for the use of parts of copyrighted works for the purpose of criticism or review. The European Union also recognizes certain exceptions for educational and research purposes, as well as for libraries, archives, and museums.
In Australia, fair dealing provisions allow for the use of copyrighted works for purposes such as research, study, criticism, and review, as well as for reporting news. The goal and nature of the use, the nature of the copyrighted work, the quantity and quality of the portion used, and the impact of the usage on the potential market for or value of the copyrighted work are all considerations taken into account when determining whether a certain use is fair.
In India, fair dealing provisions allow for the use of copyrighted works for purposes such as criticism, review, news reporting, and research. The aim and nature of the use, the nature of the copyrighted work, the quantity and quality of the portion used, and the impact of the usage on the potential market or value of the copyrighted work are all factors taken into account when determining whether a given use is fair.
Overall, fair use or fair dealing provisions provide important exceptions to the exclusive rights of copyright owners, while also promoting creativity, innovation, and access to information. While the specific details may vary from country to country, the underlying principles of balancing the interests of copyright owners and users remain the same.
Conclusion
Copyright is essential to protecting the rights of creators and incentivizing innovation, but the Fair Use Provision allows for the limited use of copyrighted materials without permission or payment. However, the application of the Fair Use Provision can be complex, and it is often necessary to seek legal advice to determine whether a particular use is fair or not.
In conclusion, the Fair Use Provision of Copyright is an important aspect of the intellectual property laws. It allows for the limited use of copyrighted materials for certain purposes without permission or payment. The four factors used to determine whether a particular use is fair or not provide a flexible framework for determining the appropriateness of a particular use. By striking a balance between protecting the rights of creators and promoting creativity and innovation, the Fair Use Provision helps to ensure a vibrant and dynamic cultural landscape.
References
- U.S. Copyright Office. (n.d.). Fair Use. https://www.copyright.gov/fair-use/
- 17 U.S. Code § 107 – Limitations on exclusive rights: Fair use. (n.d.). Legal Information Institute. https://www.law.cornell.edu/uscode/text/17/107
- Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. (2001). https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001L0029&from=EN
- Australian Copyright Council. (n.d.). Fair Dealing. https://www.copyright.org.au/acc_prod/ACC/Information_Sheets/Fair_Dealing.aspx
- Copyright Act, 1957. (1957). http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Copyright_Act_1957.pdf
- Singh, S., & Bhandari, S. (2018). Fair dealing under Indian Copyright Law: An analysis. Journal of Intellectual Property Rights, 23(6), 420-429. https://www.researchgate.net/publication/330045369_Fair_Dealing_under_Indian_Copyright_Law_An_Analysis
- Fitzgerald, B., & Fitzgerald, A. (2014). Copyright law, digital content and the internet in the Asia-Pacific. Springer. https://link.springer.com/book/10.1007/978-981-287-010-3
- Guibault, L., & Wiebe, A. (2016). Copyright limitations and exceptions in international treaties: A comparative analysis of the three-step test. Edward Elgar Publishing. https://www.elgaronline.com/view/9781785364764.xml
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