Doctrine of Fair Use and Fair Dealing – Intellectual Property Right Laws

Doctrine of Fair Use and Fair Dealing under the Intellectual Property Right Laws in India. (Comparative study)

THE DOCTRINE OF “FAIR USE” AND “FAIR DEALING”

ABSTRACT

Fair Dealing is a basic piece of intellectual property law. In the worldwide setting, the Fair Dealing precept has been a state of steady conversation for quite a while now. Be that as it may, the issue of Fair Dealing is one of the least investigated regions of Intellectual Property Law in India. The Fair Dealing special cases gave in the Indian Copyright Act are exceptionally restricted and insufficient in contrast with global copyright practice. In addition, the Indian Courts have seen the reasons listed in the Indian Copyright Act as thorough and like to carefully hold fast to the reasons specified in the Act. The creator calls attention to that the fixed and inflexible methodology taken by the Indian Courts has neglected to present the much required component of adaptability.

AN INTRODUCTORY OVERVIEW OF THE CONCEPT OF ‘FAIR DEALING’

The main purpose why a copyright is granted is to offer the creator or the maker of a creative and original work an exclusive right over its subsequent use and distribution.[1] In order to balance the competing interests of the society and that of the copyright holders, certain exceptions are provided in the Copyright Act in favour of the society in general.[2] The Copyright Act[3] of India also clearly provides for exceptions[4] to this exclusive right to balance the two competing interests.

The concept of fair dealing was brought about to function as one of the defences to this exclusive right granted through a copyright to the author of a creative work.[5] The concept of fair dealing has also been recognised in the Berne Convention[6] as well as the TRIPS Agreement.[7] The rationale or justification for allowing the exception of fair dealing is that on certain specific occasions an infringing use of the copyrighted work may bring about greater public good than its absolute denial.[8] While attempting to look at the definition of fair dealing, it is pertinent to make reference to the famous case of Hubbard v. Vosper[9] where Lord Denning specifically pointed out: “It is impossible to define what is ‘fair dealing.’ It must be a question of degree. 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…Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression.”

As per the principle of fair dealing, the reproduction or use of a copyrighted work is permitted by law, which would otherwise have amounted to an infringement of copyright of the content owner. The concept of fair dealing finds its roots in the doctrine of equity and thereby allows the use of certain copyrightable works, the usage of which would otherwise have been illegal and would have amounted to a clear breach of the copyright of the owner. The prior permission of the author of the content is also not required. The fair dealing concept functions as a limitation and exception to the exclusive and in a way monopolistic right granted by copyright law and thus it happens to be an integral part of the copyright law.

In various jurisdictions, the courts have attempted to set out the test to check for the fairness in fair dealings. One very famous case which finds relevance here with regards to our present discussion is the Canadian case of CCH Canadian Ltd. v. Law Society of Upper Canada[10] where the court set out the test involving two steps. The first step of the process is to establish whether the dealing was for the permissible purpose of “research or private study” under Section 29 of the Copyright Act of Canada, “criticism or review” under Section. 29.1 or “news reporting” under Section 29.2 of the same Act. The second step of the process is for assessing whether or not the dealing is “fair.”

FAIR DEALING IN INDIAN COPYRIGHT LAW

Even before the English Act was expressly made applicable in India, the Bombay High Court had pronounced the Copyright Act of the United Kingdom to be applicable in India in the case of McMillan v. Khan Bahadur Shamsul Ulama Zaka.[11] The concept of fair dealing was first brought about in India in a statute in the year 1914. That statutory provision of fair dealing was but a mere copy of the similar provision of the statute present in the United Kingdom. The said statutory provision 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. The present Copyright Statute of India which was passed way back in 1957 also had extensively borrowed from the new Copyright Act of UK of the year 1956.

The concept of fair dealing is primarily dealt with in Section 52 of the Copyright Act, 1957. This section has been subjected to amendments many times since 1957. This section was first amended by the Copyright (Amendment) Act of the year 1983, and subsequently by the Copyright (Amendment) Act of the year 1994 and of the year 1999 and finally by the most recent Copyright (Amendment) Act of 2012.

The provision under section 52 makes it clear that for the „dealing‟ to be “fair,” the purposes have to fall within the statutorily established purposes of private use, research, criticism and review as categorically provided under Section 52 of the Copyright Act of India. Even though this section of the Copyright Act primarily deals with the doctrine of  “fair dealing” and provides for when the dealing is considered to be fair; still, the term “fair dealing” has not been defined anywhere in the Copyright Act, 1957. The said section does the job of specifying what shall not amount to a violation of copyright.

The 2012 amendment to the Copyright Act was brought in order to generally extend these provisions. This amendment has, inter alia, extended the fair dealing provision to cinematograph and musical works. The provision under Section 52 (1)(a) has been subjected to amendment in order to provide fair dealing with any work for the purposes of private and personal use with the exception of it being a computer programme. Another new clause under Section 52(1) (w) brought through the 2012 amendment provides that the making of 3D object from a 2D layout shall not constitute infringement of the copyright. Further, clause (zc) of Section 52 added by the 2012 amendment has been introduced to provide that importation of literary or artistic works such as labels, company logos or promotional or explanatory material that is incidental to products or goods being imported is to be under the umbrella of exceptions.

The catalogued purposes made clear under Section 52 have been characteristically interpreted as exhaustive, inflexible and definite since any use or dealing which finds itself not falling firmly within the enumerated grounds as specified in section 52 is considered to be an infringement of the copyright

It is important to note that the Indian Copyright Act under the provisions of Section 52 slices out fair dealing from copyright as one of the affirmative defences which places the burden of proving the defences upon the user once the copyright owner establishes prima facie infringement by showing extensive breach of copyright of expression. However, as it is clear from the case of Civic Chandran v. Ammini Amma[12] the fair dealing cases in India do not at all times establish prima facie infringement before taking into consideration an application of fair dealing.

THE POSITION OF INDIAN JUDICIARY WITH REGARDS TO THE DOCTRINE OF FAIR DEALING

Cases dealing with this doctrine have been rare in India until the recent decades. Even in the present day, only a mere handful of cases dealing with this issue arrive to the courts. This part of the piece takes a look at the cases where the concept of ‘fair dealing’ has been talked about and discussed in the Indian courts. The Courts have on various occasions made it clear that it is absolutely impossible to come up with a certain „rule of thumb‟ which would find its application in all the cases of fair dealing as each and every case depends upon its own varied facts and circumstances. However, the courts consider the interest of the public to be paramount consideration.

In the case of Wiley Eastern Ltd and Ors v. IIM[13] the court noted and drew a connection of the purpose of the defence of fair dealing with the Constitution of India. The court pointed out that the basic purpose of Section 52 of the Copyright Act is to protect the freedom of expression prevalent under Article 19 (1) of the Constitution of India – so that purposes like research, private study, criticism or review or reporting of current events could be protected.[14]

Another famous case law where fair dealing doctrine was discussed and principles for determining what makes up “private use” were laid down was the case of Blackwood v. Parasuraman In this particular case, fair dealing defence was claimed for the purpose which was stated to be of private study. In this case, the defendant took the liberty of publishing guides of the plaintiff‟s books but the Court in this particular case rejected it. The court subsequently went on to hold that the purview of private study covers the student copying the book for his own personal use, and that it certainly does not include circulation of copies among other students. Clearly, the court in this case had given a very restricted meaning to the fairness of the dealing. It was in this very case that the Court stated that in order to receive protection the use must be one enumerated in the statute under “fair dealing”.

In Blackwood case the court gave two points with regards 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, and;

2) Unless the intention of the infringer were unfair, in the sense of being improper or oblique, the dealing would be fair.

Basically, the test given in the Blackwood case serves to find whether the use is likely to damage the potential market or the value of the copyrighted work. If substantial and important works are duplicated then the intention of the infringer to use the effort and labour of the copyright owner for his own profit can be noticed apparently.

The Courts in India have also held that an infringement of Copyright cannot be permitted merely on the ground that it has been claimed in the interest of the public. It has been noted by the courts that the law as to copyright in India is governed by a statute which provides no relief whatsoever for considerations of the use being in public interest[15].

Another relevant case in this regard is the case of Civic Chandran v. Ammini Amma[16] in this case, it was held that even if the copying of a work is substantial it would not be infringement if it is for the purpose of criticism.

Clearly, the Indian Courts have viewed the purposes enumerated in the Indian Copyright Act as exhaustive. Even though only a mere handful of cases dealing with this issue arrive to the courts the above case laws make it clear that the courts in India prefer to strictly adhere to the purposes enumerated in the act and they give the provision a restricted interpretation.

FAIR USE DOCTRINE IN THE U.S.

The term “fair use” finds its origins in the United States. The courts created a doctrine of “Fairness Abridgement” in the famous case of Gyles v Wilcox[17], which eventually evolved into the modern concept of “fair use” in the US. The fair use of a copyrighted material is the extralegal use which is usual, reasonable and customary. The doctrine of fair use functions as a limitation to the exclusive right which is granted by copyright law to the author of a creative work. In the US, Justice Joseph Story is credited with the laying down of the foundation for the fair use doctrine in the famous case of Folsom v. Marsh with a four-factor test.

US law does not specify acts which would be considered fair use; rather it gives a four factor test that must be considered to assess whether an action of exploitation by the person falls within the ambit of fair use. The “four factor test” is used for assessing whether a particular use lies in the ambit of fair use, as against an exhaustive list of activities that constitute exceptions to copyright.

The test appears to be applicable across the board, irrespective of the nature of the work protected by copyright.

So, the four factors for determining fair use as given under section 107 of the US Copyright Act, 1976[18] are:

1. a) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. b) the nature of the copyrighted work;
3. c) the amount and substantiality of the portion used; and
4. d) the effect of the use upon the potential market value of the copyrighted work.

It is further pointed out in the provision that the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Clearly, the Copyright Act of 1976 of USA is very flexible and open-ended for further development and that is believed to be the intention of its legislators. The fair use doctrine is now being imported by many countries around the world because of its innate logical reasoning and better protection ambit. Unlike fair dealing, fair use is a more flexible model. It allows the exceptions provided to be expanded in order to cater to the requirements of the ever growing technological and economic practices in the general society.

The fixed and rigid approach taken by the Indian Courts has failed to introduce the element of flexibility which is provided in the Fair Use doctrine present in the United States legislation. It is to be noted that the fair use doctrine is based on utilitarian principles and fair dealing is based on the natural law theory where the author is of supreme consideration. It is rather unfortunate that the fair dealing provisions in the Indian Copyright laws are so restrictive in nature that they are asphyxiating the copyright system. Such constraining and restrictive provisions are calling into question both the credibility and effectiveness of the laws dealing with the same. A restrictive approach puts the credibility and efficiency of this exception into question. Therefore, there is a requirement of reform in the copyright provision in order to make it a more elaborate and wider scheme. It is proposed that the provisions should be moulded to be somewhat on the lines of the provisions present in the US, that is, the doctrine of fair use.

CONCLUSION

To conclude, it is clear that fair dealing is an integral part of the copyright law. It can be said without any doubt that “fair dealing” is an essential doctrine, not only with regards to the Copyright laws but also with regards to strengthening the protection guaranteed under Article 19 of the Constitution of India. However, the role of the fair dealing doctrine in the overall scheme of copyright law is still to be defined in India. Several elementary and fundamental issues such as its role, purpose, meaning and application are also yet to be addressed by the courts in India. Although it cannot be denied that the purview of the Indian concept of fair dealing is large and the list of exceptions provided comprises of various activities still the exceptions provided are becoming redundant in the contemporary times due to the rapid technological and societal advancements.

Such a rigid approach to fair dealing should not be followed in India keeping in mind the technological and societal progress and confining fair dealing doctrine to such strict interpretation of statutes would leave no room for judicial creativity. Thus, to that effect, a model similar to fair use model of US should be worked out. However, it is not in any way suggested that the fair dealing provisions be completely done away with but simply that the flexibility of the “fair use doctrine” should be adopted into the Indian practice.

Finally, by bringing forth the reforms, and by making the fair dealing defence flexible and open-ended, but with guarantees for rights holders, a credible copyright system would be created and much needed legitimacy and balance can be brought back to the copyright regime.

[1] Miller v. Taylor, (1769) 4 Burr 2303 (2335).

[2] Luis C Schmidt, The Changing Face of Copyright, 34 COPYRIGHT WORLD 190 (2009)

[3] The Indian Copyright (Amendment) Act, 2012

[4] The Copyright Act, 1957

[5] Stephen M. Mcjohn, Fair dealing and Privatization in Copyright, 35 SAN DIEGO L. REV. 61 (1998).

[6] The Berne Convention for the Protection of Literary and Artistic Works, 1886.

[7] TRIPS Agreement, art. 13.

[8] B.J. Damstedt, Limiting Locke: A Natural Law Justification for the Fair Use Doctrine, 12 YALE LAW JOURNAL 1179 (2003).

[9] CA 1971 [1972] 2 WLR 389

[10] (2004) 1 SCR 339.

[11] (1895) ILR Bom 557.

[12] 1996 PTC 16 670.

[13] 61 (1996) DLT 281 Para 19.

[14] INDIA CONST. art. 19

[15] Rupendra Kashyap v. Jiwan Publishing House, 1996 (38) DRJ 81 Para 24.

[16] Civic Chandran v. Ammini Amma, I.l.R 1996 Ker 670

[17] (1740) 26 ER 489.

[18] Copyright Act, 17 U.S.C

Author: Anindya Bhan,
Navrachana University, 5th Year Law Student