Fair Dealing or fair use is an important concept under Copyright Law. It is mainly a well-established limitation and exception on the exclusive right given to the author by copyright law. This concept has been given in the “doctrine of fair use” under the Copyright Act, 1957. The doctrine of fair use is a valid and well-accepted defence for copyright infringement. It is one of the most important aspects of copyright law which draws a line between a legitimate, bonafide and malafide use of the work. In the Article 13 of the TRIPS (Trade-Related Aspect of Intellectual Property Rights) it has been stated that “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”1This doctrine has been given a place in almost all the territorial copyright Legislations of the members.
Fair dealing process has different enactment in different countries. As Example regarding copyright fair dealing the Indian and UK copyright Laws keep a rigid approach and they often considered it as very restricted as they work in accordance with a comprehensive list of actions which falls under the extent of fair dealing. The Doctrine of Fair Use in US is observed as the fairest of all as it is most likely designed by the TRIPS.
This article aims to describe the “Fair Use” under the copyright act and how the concept deprived its significance in Indian cases.
The doctrine of fair dealing: The doctrine of fair use is an integral part of copyright law2 which allows a person to make limited use of copyrighted work without the permission of the owner and protect the material that would be considered to be copyrighted as under the Indian Copyright Law, 1957.
Meaning of fair use: Fair use is a term which has been used in Copyright Protection Act. It allows someone to rescue copyright-protected material under certain circumstances without getting permission from the copyright owner.
Similarly, Fair use is a defence against a claim of copyright infringement. If it uses in a fair way, then it would not be considered as an infringement. It has basically a major limitation on the restricted right of the Copyright owner. Where the financial system is not significant, the utility may comprise fair dealing.
Fair Dealing Process in Indian Law:
Indian Copyright Act doesn’t define the term “Fair Dealing” In the case Hubbard Vs Vosper3 the courts have a variety of occasions referred to the authority. In Indian Laws “Fair Dealing” is always considered as rigid and conservative as it provides a comprehensive list. Section 52(1) of the Indian Copyright Act deals with Fair Dealing/Fair use and it is applicable to all kind of works in which copyright subsists. India has acquired the Fair Dealing concept in cost with the UK Law. Indian and UK Law has a bit different from US Law in this concept. In US law it has been called “Fair Use” but In UK & Indian Law it is called “Fair dealing”. In 1914, Fair dealing was first statutory introduced as a mere duplication of Section 2(1)(i) of the UK Copyright Act provided that copyright would not be infringed by “any fair dealing with any work for the purposes of private study, research, criticism, review or newspaper summary”4 In McMillan Vs Khan Bahadur Shamsul Ulama Zaka case the English Copyright Act 1842 was held to be applicable in India by the Bombay High Court5. In India, certain acts or works cannot be considered as an infringement of copyright namely fair dealing with a literary, dramatic, musical or artistic work not being a computer program for the purpose of:-
1) Private use, including research
2) Criticism or review
3) reporting current events in any print media
4) the replica of any literary, dramatic or musical work in a certified copy made or abounding in agreement with any law for the time being in force;
5) the publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions,
6) the making of sound if made by or with the license or consent of the owner of the right in the work.”
The Indian boundaries were definite for “fair dealing” emerge to be more common and sociable to the general people. While adjudging, if fair dealing was in fact “fair” to the real industrial insinuations that the author suffers, Indian courts have now, comprise vide reference, the Folsom v. Marsh test,
In the Case Indian TV Independent News Services Pvt. Ltd Vs. Yashraj Films Pvt. Ltd6. The defendant claimed that the plaintiff has been violating their works under the Copyright Act. The work was certain movie clips were made by the defendant and plaintiff used those movie clips in their broadcasting channel. The plaintiff took the protection of Fair Use stating that such clips used were very well in accordance with the meaning of section 52 of the Copyright Act. In this case the court, however, pointed the plaintiff that he should not use copyrighted works of the defendant since it considered to be in direct violation under the Act.
In another case, Civic Chandran vs Ammini Amma7 the Court declared that a parody did not comprise as an infringement of copyright provided that it has not been misused or misappropriated. In consonance with this case, the Court recognized three tests which are to be taken into deliberation to conclude work to be an infringement of copyright:
- “the quantum and value of the matter taken in relation to the comments or criticism;
- the purpose;
- the likelihood of competition between the two works.”
Fair Use/Fair Feeling Process in US copyright Law:
The doctrine of Fair Use has been derived from the US Copyright law as the author has mentioned earlier. Section 107 of the Copyright Act provides the statutory framework for determining whether something is fair use and that identifies certain types of uses—such as criticise of the work, comment on any topic, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. The modernism of the Fair use right in US law is like it applies to a list of purposes that is preceded by the opening clause. This has authorized courts to apply it to technologies that never visualized in the original statute as well as Internet search, the VCR, and the reverse engineering of software.
Factors are for Fair use in US copyright Law :
1) Purpose and character of the use :
Mainly Fair use is considered in favour when any person uses another person’s copyrighted work for the use of criticism, news reporting, or commentary. The Purposes of Fair use is considered in “Public Interest” and is favoured by the courts overuses that merely seek to profit from another’s work.
As example: Online Policy Group v. Diebold, Inc8. There is a misconception which is very natural is that any use which earns profit from someone else’s work does not fall under “Fair Use” and that use which earns no profit from else’s work is fall under fair. In reality, some for-profit uses are fair and some not-for-profit uses are not; the result depends on the state of affairs.
Although there is no particular legal doctrine specifying how this is contemplated, several court opinions have cited the newsworthiness of the work in a query when finding in favour of fair use.
2) Nature of the Copyrighted Work :
By examining this factor, a court will look to whether the material any person have used is accurate or creative, and whether it is published or unpublished. Although some informative works such as biographies and news articles are protected by copyright law, their accurate nature means that one may depend more heavily on these items and still enjoy the protections of fair use. If any person takes any remarkable quote from a research report that is more probably to be protected by fair use than quoting e from a novel.
3) Amount and sustainability:
Though there is no such guide which conclusively states how much of a copyrighted work someone can use without having copyright liability, Instead of this courts look how such excerpts were used and what their relation was to the whole work. Even substantial quotations may qualify as fair use in “a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press.
4) The effect upon works value:
This is the fourth factor of the Fair Use under US Copyright Law. According to the court, it is the most important factor, the court will see the market value of the copyrighted work is affected by the use. The analysis under this factor depends on the nature of the original work,
5) Additional Factors: Purpose of the Fair Use in US Copyright Law: Coding
In conclusion, the author must say that undoubtedly fair use/fair dealing is the most important doctrine under the Copyright Act. Not only in copyright law but also it builds up the protection which has been given to the citizen under Article 19 of the Indian Constitution. In India, law related to Fair dealing is very limited but in US the law relating to fair dealing is very elaborate and flexible at the same time. The analysis to resolve a copyrighted work as a Fair Use of such work undeniably differs from one case to another. In the very conclusion, the author would like to submit that the whole protection of fair use which is available in the country is still to be examined.
1 Article 13 of TRIPS(Trade-related aspects of Intellectual Property rights), Law Relating to the Intellectual Property , Dr. B L Wadehra
2 The Chancellor Masters and Scholars of the University of Oxford Vs Narendra Publishing House and Ors. 2008(38)PTC385(Del)at Para23
3(1972) 1 AII ER 1023p. 1027
4 UK, 1&2 Geo V, Clause-46, Section 2(1)(i), Burrell Robert Reining in copyright law: is fair use the answer? Intellectual property quarterly, 4 (2001) 361-388
5 (1895) ILR Bom 557 in Lal, The Copyright Act, 3rd edn (Law Publishers India, Allahabad), 1995, p.6.
6 FAO(OS) 583/2011
7 1996 PTR 142
8 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004)
This article is authored by Farheen Sultana, Fourth-Year, B.A.LL.B(Hons.) student at Haldia Law College.
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