Concept And Scope Of “Fair Dealing” Under Copyright Act, 1957

Introduction

Copyright is a privilege which grants exclusive rights to the author[1] to use his work or to authorize others to use his work. A copyright grants a number of rights to the author of the copyrighted work including reproduction of work and gaining financial benefits from it. If any person uses such work without the permission of the author, then it amounts to the infringement of the copyright.

However, just like any other right, a copyright is not an absolute right. Our legal framework has been designed as such to not impose absolute restrictions on the use of such copyright. One such exception to the use of the copyright is “fair dealing”.

What is Copyright?

The Indian Copyright Act, by the virtue of Section 13, grants protection by the way of copyright, to the following classes of works:

1. Original literary, dramatic, musical and artistic works;
2. Cinematographic films;
3. Sound recording.

The concept of copyright stems from the US Constitution, the framers of which believed that granting exclusive rights over the original works of the author would enhance and promote the progress of science and useful arts.

The primary purpose of copyright is to reward the authors for their work and protect such work from theft or reproduction without giving due credit to the author. It also helps the authors to reap rewards for their work like economic benefits and due acknowledgment and credit. Furthermore, the general public can also receive benefits from the work of the author, while at the same time giving acknowledgment to the author.

Certain Acts which do not Amount to Infringement of Copyright

Section 52 of the Indian Copyright Act, 1957 deals with certain exceptions in the use of copyright. Sub-section 1 lays down the acts which do not amount to the infringement of copyright, which is as follows:

Fair dealing in any work, which is not a commuter program, for the following purposes:

1. Private and personal use, including research;
2. Criticism or review, whether of that work or any other work;
3. The reporting of current events and current affairs, which includes a lecture delivered in public.

Scope of Fair Dealing

In the case of Blackwood v. Parasuraman, the Court gave two points in relation to the meaning of the expression “fair” in the term “fair dealing”:

1. In order to constitute unfairness, there must be an intention to compete and to obtain profit from such competition;
2. Unless the intention of the infringer were unfair, in the sense of being improper and oblique, the dealing would be fair.

Therefore, for an act to amount to be an infringement of copyright, an unfair or mala fide intention is an important ingredient. Merely use of the copyrighted work in an improper manner cannot amount to infringement of copyright.

In the case of Associated Newspapers Group v. News Group newspapers Ltd., the Court laid down that it is not fair or just to allow a rival or a competitor to use some other author’s copyrighted work for their own benefit. Moreover, the Court added that the most pertinent question to be considered in such a case is the intention of the infringer. So, it is clear that for the dealing to be fair in criticism as mentioned in Sub-section (1) of Section 52 of the Copyright Act, the use ought to be only for the purposes of review or criticism and not for any other beneficial purposes. It is permissible, however, to quote from other similar works for the purpose of exemplifying the criticism.

Idea-expression Dichotomy

A copyright is a right, which is given only to original works and not to the novelty of ideas. No copyright exists for an idea. Copyrights subsist only in a material form which an idea is translated into. The primary reason to grant a copyright to the expressions and not the idea to ensure and encourage the free flow of ideas. Copyright to an idea would eventually bring creativity and innovation to the standstill

In the case of RG Anand v. Deluxe Films[2], the plaintiff was the author of a play called “Hum Hindustani”. In the year 1954, the defendant Mohan Sehgal sent a letter to the plaintiff expressing his desire to make a movie based on the play written by the plaintiff. The plaintiff and defendant met and discussed the enters play. However, the defendant did not commit to the plaintiff but made a movie titled “New Delhi”. When the plaintiff saw the movie, he came to the conclusion that the movie was based on the play that he has written.

So, the plaintiff filed a suit against the defendant and asked for a permanent injunction and damages. Both the District Court and the High Court ruled against the plaintiff on the finding of the facts. The plaintiff filed an appeal in the Supreme Court where the Court laid down that the film cannot be considered to be an infringement of copyright. The reason behind the finding was that though the idea behind the movie and the play were the same, but the manner in which both were portrayed was different. Hence, there cannot be copyright infringement.

Conclusion

Copyright, like any other legal right, is not an absolute right. Certain exceptions are laid down the Copyright Act, 1957 which includes fair dealing in such copyright. One of the ingredients that have to be fulfilled for the use to be an infringement is a mala fide intention to use the copyright for competition or benefit. Mere adaptation of an idea and turning it to an original expression based on that idea cannot be an infringement of copyright. It is important to mark these exceptions by the legislation because it enhances the flow of creativity in the country. When there is rigidity in the grant of such rights, it leads to stagnation in innovation. India, being a developing country, needs fluidity in these rights so that growth can be observed at a higher rate.

[1] Section 2(d) of The Copyrights Act, 1957 defines “author”:

1. The author of the work in relation a literary or a dramatic work;
2. The composer in relation to a musical work;
3. The artist in case of an artistic work other than a photograph;
4. In relation to a photograph, the person taking the photograph;
5. The producer in case of a cinematograph film or a sound recording; and
6. In relation to any other literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created.

[2] AIR 1978 SC 1613

This Article is Authored by Arushi Gupta, 5th Year – BALLB Student at DES Law College, Pune University.

Also Read – Fair Use Under Copyright Law