Fair use law refers to certain activities which are exempted from the purview of copyright infringement under the Indian Copyright Act, 1957. Fair dealing is a key component of the social bargain which promotes surrender of limited individual rights of an individual to ensure greater benefit to the society[i]. It aims to establish a balance between incentives to create copyrighted works and circulation to the public. Thus, it seeks to provide access to copyrighted work.
Copyright law serves to confer a bundle of rights on the creator of a work[ii]. It has been considered an important property right since the introduction of the printing press in 1476 by William Claxton[iii].
The exception of fair dealing or fair use was a judge made exception to the mechanism of copyright. The most important one being, Hubbard v. Vosper[iv] in which Lord Denning called it a “matter of impression,” identified based on the degree of use, purpose and proportions. India adopted the Fair dealing laws from the UK Copyright Laws. The UK law was made applicable to India by the Bombay High Court in the 1842 case of McMillan v. Khan Bahadur Shamsul Ulama Zaka[v].
The Indian framework of fair dealing law is considered rigid and conventional as it is restricted to a fixed list of what constitutes infringement[vi]. Thus, it offers certainty but at the cost of flexibility. The Indian courts have over the years agreed to the need for non-restriction of Fair dealing to fixed actions[vii].
The US provision on Fair use unlike the Indian and UK provisions, provides flexibility for its application and has not limited the same to an exhaustive statutory list. The US law on fair use is in close conformity with the exception as outlined in Article 13 of the TRIPS Agreement. The TRIPS Agreement lays down a three-step test for determining fair use[viii]:
- The exception must be special
- It must not be in conflict with normal exploitation
- It must not prejudice the interests of the copyright holders unreasonably.
Hence, the US law on fair use is considered as the fairest and the most suitable adaptation of the exception of Fair Use[ix].
The law does not provide for a definite meaning of what constitutes “fair dealing.” Thus, determination of whether the reproduction of a copyrighted work is protected by the defence of fair dealing is dependent on the facts and circumstances of the concerned matter. The Court has interpreted fair dealing based on the economic impact the usage has on the copyright holder[x]. It imposes significant limitation on the ownership rights over property of an individual. The fair nature of any dealing is dependent on[xi]:
- Nature of the work,
- Purpose of such use,
- Quantum of work used, and
- Impact of such use on the original work.
In Wiley Eastern Limited and Others v. Indian Institute of Management[xii], the Court has traced the purpose of fair dealing to the Constitution. The Court stated that the basic purpose of fair dealing is to protect the fundament right of freedom of expression guaranteed under Article 19(1) of the Indian Constitution. This is to ensure protection of criticisms, research, private study, review and reports.
In Kartar Singh Giani v. Ladha Singh[xiii], the High Court opined that in order to constitute fair dealing: (1) there must not be any intention to compete and derive profits from such competition
(2) the motives of the infringer must not be unfair.
Section 52 of the Indian Copyright Act enumerates acts which do not amount to fair dealing. It includes the following acts cannot be considered as an infringement of copyright of literary, dramatic, artistic or musical works (not being a computer programme):
- Usage of such work privately including for research purposes;
- A criticism or a review of that work or any other work;
- Use of such work for reporting of current events in newspaper, magazine, cinematograph film, photographs or similar periodical;
- For the purpose of judicial proceedings or report of judicial proceedings
- Reproduction of work prepared by the Secretariat of a Legislature or of either House of Legislature for use of its members;
- Reproduction of such work as a certified copy made or supplied in compliance with the law;
- The reading or the recitation in public of an extract from a published literary or dramatic work;
- Publication of said material in a collection bon fide with other non-copyright matter for use by educational institutions;
- Use of sounds if made with or by license of the owner of the right in such work.
To avail the exception of fair dealing, the use must be confined to those enumerated under Section 52 of the Act[xiv].
The Copyright Amendment Act of 2012 brought about significant changes to the Copyright Act of 1957. It incorporated within the purview of Section 52, the fair dealing of digital content by providing greater control over such content to the owners. Thus, only those copyrighted works permitted to be used by the copyright holder can be used by users. Examples of the same are the addition of watermarks, authentication process to access database, encryption, digital lock and so on. This right so granted to the copyright holder is called the Digital Rights Management Provision(DRM).
The inclusion of DRM has successfully reduced free ridership, increased profits to the holder, provides incentive to create more work and allows for better price discrimination strategies based on the needs of the consumer. However, the negative implication of the same are also to be considered. While the benefits are internalised in by the society and the copyright holder, the cost of reduced accessibility is transferred to the users resulting in market failure[xv]. Further it also affects competition and tends to create monopoly.
The Copyright Amendment Act of 2012 also extended the provision of fair dealing to private use of copyrighted work except computer programme. Thus, enabling private use of cinematograph and musical works. The Amendment Act further provided for fair use of work created for the benefit of the disabled. It provides for the reproduction, issue of copies, communication or adaption of any work to the public for access of diabled persons.
Fair use being a technical issue is dealt with based on the facts of each case. The Court has, in Civic Chandran v. Ammini Amma, concluded that a parody does not amount to copyright infringement if not misused or misappropriated. Further, the Court established three tests to determine if a work is an infringement of copyright or not:
1. The quantity and value of content taken for the purpose of criticising or commenting;
2. The purpose for which the same has been taken;
3. The likelihood of competition between the two works.
In Eastern Book Company v. DB Modak[xvi], the issue was whether the copy-edited judgements published in a law reporter if copied constitutes copyright infringement. The defence of fair use under Section 52(1)(q) of Copyright Act under which, reproduction of judgement or orders is considered as fair use, was raised by the defendant. The Supreme Court rejected the ‘sweat of the brow’ approach, referring to the Canadian Supreme Court decision in CCH Canadian Ltd v. Law Society of Upper Canada[xvii]. The sweat of the brow approach essentially confers copyright solely because energy, skill, time and labour has been invested in the particular work. The Court held that the originality of the work is dependent on the selection and arrangement of pre-existing data in a somewhat different character as the original. Thus, the Court established that every effort or use of skill does not result in a copyrightable work. It is only that work which is creative and different in character, involving the use of intellectual efforts and certain amount of creativity, which can be considered as copyrightable work.
The exception of fair use enables the broadcasting, publication or distribution of cinematographic work, owned by the producer[xviii]. It enables the creation of parodies, teasers, publication of criticisms and reporting of current events. It seeks to transfer a portion of individual property rights to the society to ensure the protection of the freedom of expression.
Fair dealings serve to ensure a balance between the individual property rights and those of the public at large by reducing the transaction cost while incentivising the creator. However, the provision of DRM require reconsideration as the costs outweigh the benefits.
The addition of DRM to Fair Dealing laws has transferred the transaction costs to the users. Further, the imposition of criminal punishment provided for violation under the DRM provision of 2 years’ imprisonment and fine is economically inefficient. Thus, the cost incurred is greater than the benefits accrued through this provision. The adoption of civil remedies would have in fact proved more efficient as less enforcement cost will be incurred while creating more deterrence than the present mechanism.
The provision of fair dealing in India is brief and fails to provide a clear definition and application of this defence. In fact, the Calcutta High Court in Barbara Taylor Bradford v. Sahara Media Entertainment Ltd[xix] has accepted the dearth of jurisprudence on copyright matters.
The doctrine of fair dealing is necessary to strengthen and protect the fundamental right provided under Article 19 of the Constitution. However, the present fair dealing law needs to be revamped to suit the modern technological advancements. Such revamping should also provide for the establishment of a cost effective enforcement mechanism.
[i] Association of Independent Video and Filmmakers, Documentary Filmmakers’ Statement of Best Practices in Fair Use (18 November 2005) at 1-2 online; Centre for Social Media, https;//centerforsocialmediaorg/files/pdf/fair_use_final.pdf.
[iii] BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 2 (1967)
[iv] (1972) 1 All ER 1023, p. 1027
[v] (1895) ILR Bom 557
[vi] Mondaq, India: “Fair Dealing” In Copyrights: Is The Indian Law Competent Enough To Meet The Current Challenges?
[vii] Mondaq, India: “Fair Dealing” In Copyrights: Is The Indian Law Competent Enough To Meet The Current Challenges?
[viii] Ficsor M, How much of what? Three-step test and its application in recent WTO dispute settlement cases RIDA, 192 (2002) 253-260
[ix] Nimmer David, Fairest of them all and other fair tales of fair use, Law and Contemporary Problems, 66 (2003) 263-287.
[xii] 61 (1996) DLT 281, para 19.
[xiii] (1935) ILR 16 LAH 103.
[xiv] Blackwood and Sons Ltd. v. A.N. Parasuranam, AIR 1959 Mad 410
[xv] Nick Scharf, Digital Rights Management and Fair Use, 1 European Journal of Law and Technology 2010
[xvi] (2008) 1 SCC 1
[xvii] (2004) SCC 13
[xix] 2004 (28) PTC 474 (Cal), para 56.