Doctrine of Fair Use under Indian Copyright Law

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Introduction

Copyright protects and rewards creativity by allowing the creator of an original literary or artistic work to do, authorise, or prohibit specific acts in respect to that work. Copyright is one of the branches or aspects of Intellectual Property Rights, which is an exclusive bundle of legal rights granted to creators of literary, dramatic, musical, and artistic works, as well as producers of cinematograph films and sound recordings, including rights of reproduction, communication to the public, adaptation, and translation of the work. As a kind of encouragement and promotion for continuing creative efforts, the owner of copyright can assign or licence these rights. Infringement of the copyright occurs when any of the aforementioned acts are performed by someone other than the owner of the copyright without permission from the owner.

The grant of Copyright is subject to certain criteria and is only issued for a limited time. The countries that provide Copyright protection to authors, on the other hand, have attempted to strike a balance between the authors’ “sole right of copying” on the one hand and the public’s interest in using the authors’ work on the other. As a result, even when an author has Copyright, his protection is frequently limited. By limiting rights to a set period of time, the copyright system promotes the interests of society as a whole and prioritizes the greatest good for the largest number of individuals. After the copyright term expires, the work becomes public domain, and any act of reproduction of the work by someone other than the author is not considered infringement. The doctrine of fair dealing is another example of these limitations. It is a limitation and exception to the author of a creative work’s exclusive right allowed under section 52 of the copyright Act, 1957. In the case of S.K. Dutta v. Law Book Co. and Ors., the Court observed that It allows the reproduction or use of copyrighted work in ways that would have been considered infringement of copyright if not for the exception carved out. As a result, it has escaped the mischief of copyright law.

Copyright Law with respect to Plagiarism 

Even when the economic rights have expired, the authors have special rights under Section 57. These are unalienable and eternal rights. Paternity and integrity rights are recognised in India, albeit the statute refers to them as “special rights of authors”. Even after the copyright has expired, it is required to credit the source and respect the moral rights of authors as part of academic integrity and honesty. If something was not produced by someone, he should not claim credit for it. When copyright simply protects manifestations of ideas, plagiarism accusations emerge if the researcher fails to give credit to a person who has contributed to the research. Plagiarism occurs when someone steals someone else’s ideas without acknowledging them. If the fair dealing doctrine doesn’t really apply, the author’s consent is necessary in copyright infringement. When a researcher replicates someone else’s work without permission and passes it off as his own, copyright infringement and plagiarism may intersect.

Doctrine of Fair Use

The doctrine of fair dealing is a legal notion that permits a person to use copyrighted work in limited ways without the owner’s permission. It is a significant restriction on the copyright owner’s exclusive right. Section 52 of the Copyrights Act, 1957, incorporates the laws relating to fair dealing.

The courts have relied on the landmark English case Hubbard v Vosper on the question of this exception to infringement on several occasions because the Indian Copyright Act does not define the phrase “fair dealing”. Lord Denning clearly outlined the description of fair dealing claiming that It is impossible to define what is “fair dealing”. It must be a question of degree. He further added that one must first consider the number and extent of the quotations and extracts, followed by the use made of them. Next, consideration must be the proportions, other considerations may come into mind also later, but ultimately it is a matter of impression. 

This theory is an important part of Copyright Law, and it aims to distinguish between legal, bonafide fair uses of a work and a malafide blatant copy. The Berne Convention, as well as the TRIPS agreement, recognise the principle of fair dealing. The Doctrine finds mention under Article 13 of the TRIPS  (Trade Related Aspects of Intellectual Property Rights) Agreement as follows: Members shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the right holder’s legitimate interests.The key objective of this theory is to prevent stagnation in the growth of innovation, which is what the system was enacted for. The Copyright system, it could be claimed, tries to strike a balance between two opposing theories: fairness theory and welfare theory. . Fairness theory is author-centric, promoting authors’ rights by providing them with an exclusive opportunity to profit from their work, whereas welfare theory is more concerned with the interests of society as a whole, ensuring that the authors’ works are available to the public for greater public benefit. The rationale or justification for permitting the exemption of fair dealing is that in rare situations, infringing use of a copyrighted work may serve the public interest better than its complete rejection. In the case of Eastern Book Co. v. Navin Desai, the court observed that A welfare society must strike a balance between two competing and equally important interests: the monopoly of authors that acts as an incentive to create and produce, and the fact that such a monopoly must never come in the way of others’ creative ability or the public’s right to build upon previous works.

When content is derived from unpublished sources, Indian courts have determined that such citation is not “fair use.” If the work is unpublished, any deal is unlikely to be fair, because someone else would almost certainly use it for economic advantage or to take unfair credit. That act provides a strong indication of the motive. In this regard, one of the most fundamental aspects of the Act is that all works are not copyrightable. In the public interest, there are some exceptions to copyright protection, such as court judgements. The Supreme Court of India ruled in Eastern Book Co. v DB Modak that there can be no copyright in the raw text of court rulings and decisions. The Court established a “minimum degree of creativity” as the criterion for copyright protection, and also stated that mere copy editing would not be sufficient to claim copyright. However, in the sphere of knowledge and information, some copyrighted work must be reproduced for the purposes of research, private study, criticism, news reporting, teaching, review, and so on.

Fair Dealing in India

The concept of fair dealing is primarily dealt with in Section 52 of the Copyright Act, 1957. While Section 14 of the Copyright Act enlists the exclusive economic rights of the copyright owners; Section 52(1) running from sub clause (a) to (zc) provides for several exceptions to the exclusive rights of copyright owners. Under the fair dealing clause, a fair dealing with any work (a literary, dramatic, musical, artistic work, cinematographic film or sound recording not being a computer programme) for the purposes of private or personal use; research; criticism or review; for the purpose of reporting current events, current affairs or publicly delivered lecture in media like newspaper, magazine or similar periodical do not constitute an infringement. 

The existing clause (1) (a) has been revised by the Copyright (Amendment) Act, 2012, to provide fair dealing with any work for the purposes of private and personal use, with the exclusion of a computer programme. With the passage of this amendment, cinematograph and musical works were added to the list of works to which the fair use provision was expanded. It also makes it easier for disabled people to access works by reproducing, issuing copies, altering, or disseminating to the public any work in any accessible format, including sharing with anyone with a disability for private or personal use, study, or any other educational reasons.

Because every use or dealing that does not fall clearly within the enumerated grounds as provided in Section 52 is regarded a violation of the copyright, the catalogued purposes made apparent under Section 52 have been understood as exhaustive, inflexible, and definite. It’s worth noting that Section 52 of the Indian Copyright Act separates fair dealing from copyright as one of the affirmative defences, putting the burden of proof on the user once the copyright owner establishes prima facie infringement by demonstrating widespread infringement of copyright of expression.

However, the case of Civic Chandran v. Ammini Amma demonstrates that fair dealing cases in India do not always establish prima facie infringement before considering an application of fair dealing. For research and academic purposes, private study, and knowledge sharing, the fair dealing theory is crucial. The phrase “fair dealing” is not defined in the Indian Copyright Act, hence determining its breadth must be done on a case-by-case basis, which is always a difficult issue for the courts. The Indian and international judiciaries have evolved criteria and theories to decide whether a given dispute is an instance of infringement or fair dealing. As the Indian courts have examined and uncovered the numerous sides of fair dealing, they have repeatedly stated that there is no definitive or exhaustive list of uses that can fall under the ambit of fair dealing; rather, it must be determined based on the facts and circumstances of each case.

The High Court held in Kartar Singh Giani v. Ladha Singh that two points have been urged in connection with the meaning of the expression fair, in fair dealing: 

1) that in order to constitute unfairness, there must be an intention to compete and to derive profit from such competition, and 

2) that unless the infringer’s motive was unfair in the sense of being improper, the dealing would be fair. 

A link was drawn between the Fundamental Rights guaranteed by the Indian Constitution and the aim of the defence of fair dealing in Wiley Eastern Ltd. & Ors. v Indian Institute of Management. The main aim of Section 52, according to the court, is to guarantee freedom of expression under Article 19(1) of the Indian Constitution, such that research, private study, criticism or review, and reporting of current events are all protected. The court further stated that Parliament did not intend for Section 52 to be a negative prescription of what constitutes infringement.

Permissible Purpose Test

For the purposes of a judicial proceeding or a report of a judicial procedure, the exception of fair dealing is also permitted. Under Section 52, a reasonable extract from a published work can be reproduced for sincerely legitimate educational purposes. Similarly, fair dealing is defined as the reproduction of a literary, dramatic, or musical work by a teacher or a student in the course of education; or as part of the questions to be answered in an examination; or in responses to such questions, etc. Fair quotation, excerpts from remarks and criticism, or legitimate abridgements, for example, are all examples of fair dealing.The ‘purpose’ is relevant in all of these cases. The goal must be statutorily permissible in order to use the fair dealing exception. The dealing is not fair if the objective is not educational, intellectual, private, or review but commercial or economic. 

The Supreme Court held in Academy of General Education, Manipal v B. Manini Mallya that a fair dealing of a literary or dramatic work for the purpose of private use, including but not limited to research, criticism, or review, whether of that work or of any other work, does not constitute a copyright infringement.

The Delhi High Court reiterated in The Chancellor Masters & Scholars of the University of Oxford v Narendra Publishing House that the Fair Use provisions must be interpreted to strike a balance between the copyright holder’s exclusive rights and the valid competing interest of enriching the public domain. The Court employed four factor tests from the American Pretty Woman case to decide whether a particular use of a work is fair and so entitled to protection under the fair dealing exception, even if the use does not fall into any of the Section 52 categories. These are the four factors:

(i) The purpose and character of the use (educational purposes or critique etc.); 

(ii) The nature of the copyrighted work – whether the work is eligible for copyright protection in the first place; 

(iii) The substantiality of the portion used in relation to the copyrighted work – the extent and nature of copying done with respect to a work; 

(iv) The effect on the potential market for, or value of, the copyrighted work – whether the new work would adversely affect the market value of the original work.

In The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. (DU Photocopying Case), there is a landmark judgement of the Division Bench of the Delhi High Court that the preparation of ‘course packs’ which includes compilation of photocopies of the relevant portions of different books prescribed in the syllabus, and their distribution to the students by educational institutions does not constitute infringement of copyright in those books under the Copyright Act, 1957, by virtue of Section 52(1)(i) as long as the inclusion of the works photocopied (irrespective of the quantity) was justified by the purpose of educational instruction. In effect, it was decided that photocopying by a teacher in the context of instruction qualified as replication of the work and thus does not constitute copyright infringement.

Qualitative and Quantitative Test: Doctrine of Substantiality

The right to reproduce the entire text is not guaranteed under Section 52. Copyright infringement occurs when a large amount of material is copied. As a result, only a small percentage of a copyrighted work can be reproduced or published under fair dealing conditions. The Copyright Act makes no distinction between what is substantial and what isn’t. The question of substantiality is entirely a qualitative one, based on how unique and vital it is to the entire work. Even a brief excerpt could be crucial to the overall project. Furthermore, fair dealing applies only to acceptable portions, and the larger the copying, the less fair the dealing becomes. . In the case of R G Anand v Delux Films, the court stated that where an idea is developed in a different way, the presence of dissimilarities can negate an allegation of infringement; there can be both qualitative and quantitative tests for determining the substantiality, though the literal number of words copied might not be the determining factor for copyright infringement. 

Conclusion 

To stay up to date on current advancements and create the next generation of creative work, you’ll need access to protected material and expertise. Knowledge is a human right in and of itself. Protection of economic rights in copyrighted work and moral rights, on the other hand, are also basic rights of content creators. Both of these rights must be balanced. As a welfare law, the copyright law attempts to strike a balance. The exceptions and limitations associated with copyright, such as ‘fair dealing,’ are intended to preserve the public interest in having access to the works and knowledge diffusion.

Undoubtedly, “fair dealing” is a necessary doctrine, not only in the Copyright laws but also in strengthening the protection given to the citizens under Article 19 of the Constitution of India. The courts have stated on numerous occasions that it is impossible to come up with a single “rule of thumb” that would apply in all cases of fair dealing because each case is unique and dependent on its own set of facts and circumstances. On a number of occasions, the courts have deemed the public interest to be the most important factor to examine. With the passage of time, India has experienced enormous technological advancements, yet the rule of fair dealing still has a relatively limited scope. However, if we go to the west, continuous improvements have been made in this subject through inventive interpretations and judicial activism. The fact is that the challenge and impediment to this defence is that the Indian courts and legislature have yet to thoroughly examine the scope of fair dealing, which is a crucial exception in the copyright regime.

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