DOCTRINE OF FAIR DEALING IN THE INDIAN COPYRIGHT LAW
This article has been authored by Nandini Gupta a 4th year student at University Institute of Legal Studies, Panjab University
Copyright laws in India have been based on the English common law and statutory law. The present Copyright Act, 1957 (“Act”) replaced the 1914 Copyright Law and was made in compliance with the Berne Convention, 1886 and the Universal Copyright Convention, 1952, India being a member to both of the conventions.
Copyright Infringement is the unauthorized use of someone’s copyrighted work, thereby infringing the rights of the copyright holder. Section 51 of the Act states the conditions for copyright infringement. But copyright is not an absolute right and the law covers three types of limitations –
· Temporal Limitation
· Non – Voluntary Licenses
· Fair Dealing
The Doctrine of Fair Dealing
The doctrine of fair dealing, though nowhere defined, is an exception to the infringement of copyright. It states the conditions which define extent to which a copyrighted material can be used. In consonance with the UK Copyright laws, India has adopted the concept of Fair Dealing as well. On the other hand, the same concept is known as ‘Fair Use’ under U.S. Copyright laws. This legal doctrine originally emanated as a doctrine of equity by allowing the use of certain copyrighted works which otherwise would have been prohibited.
Lord Denning in the case of Hubbard v Vosper held fair dealing to be inevitably a matter of degree. He said –
“You must consider first the number and extent of the quotations, and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, they may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression.”
The first case of ‘Fair-Use’ in the United States of America was Folsom vs Marsh wherein four factors were laid down to determine whether a work would come under Fair Use or not by Justice Story. They were –
· The nature and object of the selections made.
· Nature of the original work.
· The amount of the work used.
· The degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.
The above factors were then codified under Section 107 of the US Copyright Act, 1976.
In the Indian law, Section 52 of The Copyright Act, 1957 deals with the doctrine of fair dealing. This legal doctrine enables a person to use someone else’s works in a limited sense without infringing the provisions of the Act. This way due credit is given to the creator of the original content while upholding the content’s originality.
It lays down certain works which would not 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 purposes of[i] –
2. Criticism or Review – The UK Copyright Act seeks proper acknowledgment of the source. Such practice is not followed in India.
3. Reporting of current events in print media.
4. Permitted Reproductions of Legislative materials – It was held in Eastern Book Company v D.B. Modak by the Supreme Court that judgements delivered by the courts are in public domain and there exists no right of copyright over them.
5. Reproduction of work by a teacher or a pupil in the course of study or through answers to questions.
6. Permitted reproduction of articles in print media – The question of ownership of copyright in articles where the author does not reserve the right of reproduction arose in the case of The Periyar Self Respect v Periyar Dravidar Kazhagam. The court held that if the author has not reserved the right of reproduction, no copyright will vest with anyone and reproduction of such articles would be an infringement.
7. Making or publishing a drawing, painting, photograph by an architect or the works of architecture.
8. Making or publishing artistic work to which public has access.
9. Inclusion of any artistic work situated in a public place in a cinematograph film.
10. Making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge for the use of the library if such book is not available for sale in India.
11. Permitted use of computer and computer programmes - Transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public.
The scope of the doctrine was amended in the year 2012 with the passing of the Copyright (Amendment) Act 2012. Prior to the amendment, fair dealing only covered the rights in relation to “literary, dramatic, musical or artistic works”, but now covers all sorts of works, except computer programmes. For example, cinematograph films and sound recordings are also included in the ambit of fair dealing. This would allow people to make copies of films or songs for research purposes.
The meaning of ‘Fair Dealing’ and whether a person’s use of content is fair or not depend on the facts and circumstances of each case. There are no set guidelines for the ascertainment of Fair Dealing in India. The Courts apply basic common sense to determine this. Judging the economic impact on the copyright owner is one of the main factors used by the courts to determine fair dealing. Where the economic impact is insignificant, the use can be called fair dealing. The fair nature of the dealing depends on the following four factors:
· Nature of the Work
· Purpose of usage.
· Amount of the work that has been used.
· The effect of use of the work on the original.
The Indian law on ‘fair dealing’ is a conventional and rigid one due to the existence of an exhaustive list under Section 52. Any use of content beyond the contours of that list would amount to infringement of copyright as laid down in the case of Blackwood and Sons Ltd and Others v AN Parasuraman and Ors. It has been time and again observed by the Indian Courts that establishing a thumb rule on the law of fair-dealing is impossible as each case has its own merits.[ii]
In the case of India Tv Independent News Services Pvt. Ltd v Yashraj Films Private Limited, the issue of dispute was a TV Show broadcasted by India TV wherein documentaries were shown on the life of singers and they would sing their own songs. While they sang, movie clips of scenes would be shown in the background. The plaintiffs contented that this was an infringement of their copyright. The defendants claimed that it would constitute as fair dealing under Section 52. A Delhi Court restrained the defendants from distributing, broadcasting, publishing or in any way exploiting any cinematograph film, sound recordings or a part thereof which belonged to the plaintiffs. Now, it is bizarre that a person who actually sings the song has no right over it and is not even allowed to sing his own song on a public platform. But as this use did not fall within the exhaustive list of Section 52, there existed no remedy.[iii] The litigation in this case continued for years before finally, in an appeal order, the Honourable Delhi High Court felt the need to go beyond the conventional approach of dealing with Section 52. The Court set aside the previous judgement and uplifted the restrictions. However, it was stated that the defendants could not still broadcast any cinematograph film without prior permission. This judgment was a pioneer step which indicated that courts need to move beyond the traditional approach and should implement necessary changes.
The purpose of incorporating Fair Dealing under Section 52 was to protect the freedom of expression of citizens under Article 19, in order to liberate and protect works of research, criticism and reporting. This was laid down in Wiley Eastern Ltd and Ors v Indian Institute of Management.But in the absence of set guidelines, Indian Courts have been seen going back to the judgment of Hubbard v Vosper for the definition of Fair Dealing. Though it is difficult to lay down a rigid structure to be followed in the ascertainment of fair dealing, the lack of one has given the doctrine a limited approach. In this era of constant content creation where consumption of content has increased manifold, it is important that this legal doctrine be re-examined and its contours be defined.
[i] Alka Chawla, ‘Law of Copyright’ (Lexis Nexis, 2020) [ii] Ayush Sharma, ‘Indian Perspective of Fair Dealing under Copyright Law : Lex Lata or Lex Ferenda’ (Journal of Intellectual Property Rights, November 2009) <http://nopr.niscair.res.in/bitstream/123456789/6706/1/JIPR%2014(6)%20523-531.pdf> [iii] Vaibhavi Pandey, ‘ Fair dealing in Copyrights: Is the Indian Law Competent Enough to Meet the Current Challenges?’(Mondaq, 13 March 2014) < https://www.mondaq.com/india/copyright/299252/fair-dealing-in-copyrights-is-the-indian-law-competent-enough-to-meet-the-current-challenges>