Fair Dealing Doctrine

Introduction

Intellectual Property Rights are those legally recognised rights so granted for protecting the creations of Human Right. There are various creations, one of them can be the Artistic and literary creation. For protecting such literary and Artistic creation, copyrights which are exclusive rights are granted to the author of that work. The copyrights authorise the copyright holder to exclude others from using that work without any authority. When there are unauthorised uses of such copyright, it amounts to copyright Infringement. Such copyright Infringement invites the legal action against such person who has infringed that copyright. Such Legal Action entitles the copyright holder to get legal remedies in light of the infringement.

Though it is true that copyright Infringement invites Legal Action, yet there are some exceptions when Infringement of copyright of someone, does not invite legal Action. There is a Fair Dealing Doctrine which has its origin from common law. This Doctrine has evolved as Doctrine of equity which allows the use of copyrighted work without authorization but for limited purposes. This doctrine has its applicability in various commonwealth nations. This doctrine permits the dealing with copyrighted work which can be mere use or reproduction but for fair purposes only. The fairness is an important aspect in this doctrine which is a statutory defense available to one who infringes copyright.

This Doctrine has important place within the ambit of copyright law. This Doctrine has different scope and interpretation in different countries. In U.S.A. the doctrine of Fair use is applicable with flexibility and openness. Though, the scope of this doctrine is different, but the purpose is same which is to limit the monopoly of the author so that the society can enhance their knowledge by use such work in manner which is fair and for public interest only. However, this doctrine explicitly denies the use of copyrighted work commercially.

Conceptual Framework

The concept of fair dealing doctrine has been introduced as a defense to the copyright infringement. As far as the definition of this doctrine concerned, it is impossible to define in a context as its applicability varies from case to case. It is pertinent here to look into the famous case in that regard, Hubbard v. Vosper, wherein lord Denning opined that, “The definition of expression ‘fair dealing’ is impossible task, thus the expression must be tested on a question of degree. There is a need to first consider the number and extent of the quotations and extracts. What is the degree then the use of them must be considered.”

The fair dealing principle generally lays down an exception to copyright Infringement. This doctrine is a limitation on the exclusive right of the copyright author. The doctrine of fair dealing is a judicial doctrine which allows the person to use or reproduces the copyrighted work but the aspect involved therein is that such use or reproduction must be fair. There is no straightjacket formula to adjudge Fairness of the use. However, most of the countries gave statutory recognition to this doctrine and furthermore, the purposes for which the copyrighted work can be used, have also been stated in their statutes.

Originally, this doctrine was subjected to very strict interpretation which restricted to only those fair dealings which have statutory recognition. In pursuant to that, the U.K. court laid down two-step test according to which there are two conditions which must be complied with for pleading the defense of fair dealing doctrine.

(1) The purpose for which the copyrighted work is being used, must be enshrined in the statute and

(2) If that purpose is so enshrined, then must be proved as fair.

It means, there was no place for judicial discretion. The Doctrine of fair dealing has been so evolved from the U.K. copyright law, yet the interpretation of the expression Fair dealing is very restrictive and inflexible.

However, it is of relevance to look into the four-factor test so laid down by the Courts in the USA. This test includes four steps as follows-

(1) The reason and nature of use

(2) The quantity and substantiality of the fraction taken

(3) The nature of copyrighted work and

(4) The effect of the use upon the prospective market.

Therefore, it is crystal clear that the concept of Fair dealing doctrine has been initiated as a doctrine of equity and thereupon, evolved to the extent that it found place in the statutes of various countries.

Under International Convention

There are International conventions which recognised the Fair dealing doctrine as an exception of the copyright infringement. The Berne Convention for literary and Artistic works, 1886 is the first major international convention on copyrights. This Convention extended the protection of copyright to works such as choreography, painting, architecture, compilations and derivative works and also industrial designs.

Article 10 of the Berne Convention 1886 recognises the free uses of works. It is provided that Making of quotations from work which has been made lawfully available to the public shall be permissible but the use must be for a justified purpose. It includes quotations from even a newspaper, articles and periodicals in the form of press summaries.

The Article 9(2) of the Berne Convention 1948 authorises the Member countries to permit the ‘reproduction’ of protected works in certain special cases by way of national legislation but following two conditions must be complied with.

(a) The reproduction does not conflict with the normal exploitation of the work

(b) Such reproduction does not unreasonably prejudice the legitimate interests of the author

Article 10 of the WIPO Copyright treaty, provides for the fair use limitation on the exclusive rights of copyright holder. Such provisions are similar to those acceptable under the Berne Convention. The only difference lies in the fact that WIPO copyright treaty extended the limitations and exceptions to the digital environment into the national laws.

Further, The WIPO Performances and Phonograms Treaty 1996 was also signed which provided for the protection of performers and producers of sound recordings. Article 16 of this treaty states about the Member countries can provide for the same kinds of limitations and exceptions for the protection of performers and producers of phonograms as provided for the protection of copyright in literary and artistic works.

Under Copyright Law

In India, currently the copyright is governed by the Copyright Act, 1957. Prior to that, there was Imperial copyright Act, 1911 which was the extension of the British copyright Act, 1911. The concept of fair dealing was similar to that of the British law provision. The fair dealing doctrine is enshrined in the Section 52 of the Copyright Act, 1957. This section has been subjected to various amendments such as The Copyright (Amendment) Act, 1983, 1994, 1999 and the most recent 2012.

Before The Copyright (Amendment) Act, 2012, Section 52(1) (a) and (b) of the Copyright Act, 1957 dealt with the ‘fair dealing’ of the work though the term ‘fair dealing’ has not been defined as such in the Act. Fair dealing has been has been adopted under section 52(1) (a) with respect to a no only the literary but also the dramatic, musical or artistic work. It permits the use of such work for the purposes of research or private study, criticism or review, whether of that work or of any other work whereas section 52(1)(b) provides a fair dealing, with respect to literary, dramatic, musical or artistic Work for the purpose of reporting current events in a newspaper, magazine or similar periodical, or by radio diffusion, in a cinematograph film or by means of photographs.

By The Copyright (Amendment) Act, 2012 the scope of fair dealing doctrine has been extended by following ways-

  • Now, Section 52(l)(a) covers all works (except computer programme). It means it may include now sound recordings and video as well. It enables now the research scholars or others to make copies for research and to use film clips in classrooms, etc.
  • Now, a fair dealing can be done for the purposes of private or personal use, including research; criticism or review, whether of that work or of any other work; reporting of current events, including the reporting of a lecture delivered in public. It explicitly provides that storing of any work in any electronic medium for the purposes mentioned in this clause, including the incidental storage of any computer programme which is not itself an infringing copy, does not constitute infringement.
  • Now, Section 52(l)(zb) has been inserted to permit the fair dealing as to adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format by any person or the organization working for the benefit of persons with disabilities to facilitate access to persons with disabilities to the copyrighted work for private or personal use, educational purpose or research.

Therefore, it is relevant to note that the doctrine of fair dealing has been adopted by Indian courts and legislative but yet the scope of this doctrine has not been fully established.

Fair Dealing Approach: Judicial Approach

It is pertinent to note here that the development of the fair dealing principle has not achieved a developed stage yet it is at its formative stage. In that regard, the role of Indian judiciary has found sufficient place in the development of the fair dealing doctrine.

The most relevant case in which the doctrine of fair dealing has been explained is Ms. Blackwood and Sons Ltd& others v. AN Parasuraman and Others wherein the defence of fair dealing has been claimed on the ground of private study. The defendant published the guides of copyrighted book of plaintiff. The court viewed such publication as copyright infringement and not covered it as fair dealing on the ground that the private study includes the use of work for personal use and it does not permit the circulation of copies. Thereby, this can be observed that the court gave the literal meaning to the term fair and thereby held that the defence would be available on the grounds so laid down in the statute and not on the other ground.

Further, In Blackwood case in order to adjudge the fairness in the fair dealing, the court emphasized on the intention of using the copyrighted work by observing that In order to constitutes a dealing as unfair, Motive to compete is necessary. Therefore, if there is such motive then only it would render the dealing unfair. In the same direction, in the case of Associated Newspapers Group v. News Group Newspapers Ltd. the court further noted the role of motive for which the copy is made for the purpose of determining fairness in the fair dealing doctrine. .

Another landmark judgment of the Kerala High Court in the realm of fair dealing doctrine under the copyright law is Civic Chandran v. Ammini Amma, wherein the key issue which was involved was that whether the use of copyrighted drama for purpose of making counter drama, is copyright Infringement or not. The court answered it negatively and observed that the making of counter drama in the present case was the fair criticism of the copyrighted work, therefore the said act comes under the defence of fair dealing. Further, in this case the court laid down the three-factor test which has developed from four-factor test of U.S.A. for determining the fairness in the fair dealing which are as follows-

  1. Quantum and substantiality of the use of copyrighted work – It means that it must be taken into account that what is the quantity of using the copyrighted work and whether there is a copying of fundamental or substantial portion of the work because if there is larger copying, then it would make the dealing as less fair.
  2. The purpose for which it such work was so used –  As it has already been stated that the purposes so stated in the section 52 of the Copyright Act for those purposes only, the copyrighted work can be used to seek the protection of fair dealing doctrine.
  3. The likelihood of competition –  In ESPN Stars Sports v. Global Broadcast News Ltd and Ors, the court noted that the likelihood of competition arises when the copying work gives such an impression that it leads to the confusion between the two works and such copying is done for rival purposes, then it is not fair dealing.

In the case of Wiley Eastern Ltd and Ors v. Indian Institute of Management, The court linked the purpose of fair dealing with the constitution of India. In this regard, the court observed that the basic purpose of Section 52 of the Copyright Act is to protect the freedom of expression enshrined under Article 19 (1) (a) of the Constitution of India, as it permits the fair dealing of any work to achieve the purposes such as research, private study, criticism or review or reporting of current events could be protected. It has also been established, with respect to section 52 of the Copyright Act it is not intended by parliament to negatively prescribe what copyright infringement is whereas this section affirmatively declares the defences for copyright infringement.

Therefore, it is clear that the Indian courts adopted the strict interpretation of the expression fair dealing by only limit it to the purposes so enumerated in the Copyright Act, 1957.

Conclusion

It is pertinent to note here while concluding that the fair dealing doctrine holds an important position in the framework of copyright law in India though the term has not been so clearly defined. The fair dealing doctrine has its origin from the common law, but it has its place in the copyright framework of various countries just on the ground that it works as a limitation on the absolute rights of the copyright holder. It is of equal importance to permit the fair and justified use of copyrighted work to strengthen the freedom of speech and expression which is the basic foundation of the democratic country. It was noted that Indian copyright framework recognises the fair dealing doctrine to that extent in which it is recognised in the U.K. while the U.S.A. has fair use doctrine which has an element of flexibility in the applicability of this doctrine. Further, the fair dealing doctrine in India has failed to apply in the public interest also because of its restrictive and rigid approach. Therefore, there is a need for a flexible approach to first clarify the purpose, meaning and applicability of fair dealing doctrine as this doctrine is important for the development of copyright jurisprudence in India.

Questions

  1. What is the concept of Fair dealing principle?

Answer- The concept of fair dealing doctrine has been introduced as a defense to the copyright infringement. It is pertinent here to look into the famous case in that regard, Hubbard v. Vosper, wherein Lord Denning opined that, “The definition of expression ‘fair dealing’ is impossible task.”The fair dealing principle generally lays down an exception to copyright Infringement. This doctrine is a limitation on the exclusive right of the copyright author. The doctrine of fair dealing is a judicial doctrine which allows the person to use or reproduces the copyrighted work but the aspect involved therein is that such use or reproduction must be fair. There is no straightjacket formula to adjudge Fairness of the use.

2. Write about the International perspective of the Fair dealing principle?

Answer- Article 10 of the Berne Convention 1886 recognises the free uses of works. It is provided that Making of quotations from work which has been made lawfully available to the public shall be permissible but the use must be for a justified purpose. It includes quotations from even a newspaper, articles and periodicals in the form of press summaries. Article 10 of the WIPO Copyright treaty, provides for the fair use limitation on the exclusive rights of the copyright holder. Such provisions are similar to those acceptable under the Berne Convention. Further, The WIPO Performances and Phonograms Treaty 1996 states about the Member countries can provide for the same kinds of limitations and exceptions for the protection of performers and producers of phonograms as provided for the protection of copyright in literary and artistic works.

3. Whether Indian copyright law has adopted Fair dealing principle?

Answer- Before The Copyright (Amendment) Act, 2012, Section 52(1)(a) and (b) of the Copyright Act, 1957 dealt with the ‘fair dealing’ of the work though the term ‘fair dealing’ has not been defined as such in the Act. By The Copyright (Amendment) Act, 2012 the scope of fair dealing doctrine has been extended, Now Section 52(l)(a) covers all works (except computer programme). It means it may include now sound recordings and video as well. Now, a fair dealing can be done for the purposes of private or personal use, including research; criticism or review, Now, Section 52(l)(zb) has been inserted to permit the fair dealing for the benefit of persons with disabilities to facilitate access to persons with disabilities to the copyrighted work for private or personal use, educational purpose or research.

4. Whether U.S.A. follows the fair dealing doctrine or fair use doctrine?

Answer- In U.S.A. the doctrine of Fair use is applicable with flexibility and openness. Though, the scope of this doctrine is different, but the purpose is same which is to limit the monopoly of the author so that the society can enhance their knowledge by use such work in manner which is fair and for public interest only. However, this doctrine explicitly denies the use of copyrighted work commercially. However, it is of relevance to look into the four-factor test so laid down by the Courts in the USA. This test includes four steps as follows- The reason and nature of use, The quantity and substantiality of the fraction taken, The nature of copyrighted work and and The effect of the use upon the prospective market.

5. What are the steps taken by Indian Judiciary for the development of Fair dealing principle?

Answer- The most relevant case in which the doctrine of fair dealing has been explained is Ms. Blackwood and Sons Ltd& others v. AN Parasuraman and Others wherein the defence of fair dealing has been claimed on the ground of private study. Thereby, this can be observed that the court gave the literal meaning to the term fair and thereby held that the defence would be available on the grounds so laid down in the statute and not on the other ground. Further, In Blackwood case, the court emphasized on the intention of using the copyrighted work by observing that In order to constitutes a dealing as unfair, Motive to compete is necessary. Another landmark judgment of the Kerala High Court in the realm of fair dealing doctrine under the copyright law is Civic Chandran v. Ammini Amma. The court observed that the making of counter drama in the present case was the fair criticism of the copyrighted work, therefore the said act comes under the defence of fair dealing.

References

[1] The Berne Convention for the Protection of Literary and Artistic Works, 1886, Available at : https://www.wipo.int/treaties/en

[2] Ms. Blackwood and Sons Ltd& others v. AN Parasuraman and Others, AIR 1959 Mad 410

[3] Ms. Blackwood and Sons Ltd& others v. AN Parasuraman and Others, AIR 1959 Mad 410

[4] R.P.C. (1986) 103 (19) p. 515-520

[5] 1996 PTC (16) 670.

[6] Deluxe Films. RG Anand v. Delux Films, (AIR 1978 SC 1613)

[7] ESPN Stars Sports v. Global broadcast News Ltd, and Ors, 2008 (36) PTC 492(Del) Para 17

[8] 61 (1996) DLT 281 Para 19.

[9] INDIA CONST. art. 19. [1] Ms. Blackwood and Sons Ltd& others v. AN Parasuraman and Others, AIR 1959 Mad 410


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