Doctrine of Fair Dealing - Balance of Conflicting Interests
By Aditya Vats Sharma
INTRODUCTION
The author of any literary, dramatic work, the artist of any artistic work or the producer of any cinematographic film or sound recording, as well as the composer of any musical work is free to enjoy a number of rights in relation to their work, exclusive only to them or to any other person or organisation, to whom such rights have been either assigned or licensed. But only in the case of the assignment of rights, would the assigned party enjoy complete monopoly over the copyright owner’s work, as the license only grants a limited number of rights to the licensee, which are regulated by the original owner of the work.
These exclusive rights, that the owner of a particular work enjoys, are prescribed by the Copyright in the said work. WIPO (World Intellectual Property Organization) defines Copyright as a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.¹ The Copyright Act, 1957 does not provide a proper definition of Copyright in the definition clause of the Act, but it defines copyright in one of the sections² as an exclusive right, subject to the provisions of the Copyright Act, 1957 to do or authorise the doing of any of the acts in respect of a work or any substantial part thereof, as follows-
In the case of a literary, dramatic or musical work, not being a computer programme, to reproduce the work in any material form including the storing of it in any medium by electronic means, to issue copies of the work to the public not being copies already in circulation, to perform the work in public, or communicate it to the public, to make any cinematograph film or sound recording in respect of the work, to make any translation of the work, to make any adaptation of the work or to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi).³
In the case of a computer programme, to do any of the acts specified in clause (a), to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme, provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.⁴
In the case of an artistic work, to reproduce the work in any material form including the storing of it in any medium by electronic or other means or the depiction in three-dimensions (3D) of a two-dimensional (2D) work or the depiction in two-dimensions (2D) of a three-dimensional (3D) work, to communicate the work to the public, to issue copies of the work to the public not being copies already in circulation, to include the work in any cinematograph film, to make any adaptation of the work, to do in relation to adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv).⁵
In the case of a cinematograph film, to make a copy of the film, including a photograph of any image forming part thereof; or storing of it in any medium by electronic or other means, to sell or give on commercial rental or offer for sale or for such rental, any copy of the film, or to communicate the film to the public.⁶
In the case of a sound recording, to make any other sound recording embodying it including storing of it in any medium by electronic or other means, to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording, or to communicate the sound recording to the public.⁷
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.⁸ Although, obtaining a copyright for any literary, artistic, musical work or a cinematographic film or a sound recording etc. protects such a work from any unauthorized use by any individual or an organization other than the owner of the copyright, but such a work protected by copyright can still be used in whole or as a derivative part of any other work or project, without the permission or the authorization of the owner of copyright, and such a use would not constitute an infringement of the copyright in such a work and in no way would be an illegal act, provided that the copyrighted work is not being exploited or used for any monetary gain, which could in turn harm the monetary opportunities or monetary gain of the owner of the copyright. This phenomenon is known as the Doctrine of Fair Dealing. 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 favor of the society in general.⁹ The concept of fair dealing has also been recognized in the Berne Convention¹⁰ as well as the TRIPS Agreement¹¹.
The Doctrine of Fair Dealing is primarily followed and is recognized in Commonwealth countries, but it does have a corresponding version in American Copyright law as well, which is known as the Doctrine of Fair Use.
DOCTRINE OF FAIR DEALING
While endeavoring to understand the definition of fair dealing, it is appropriate to look at the observations of Lord Denning in the famous case of Hubbard v. Vosper¹², where he 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 observations of Lord Denning¹³, it can be inferred that in order to understand, whether there exists any fair dealing in any work, what must be considered is the degree of use or the extent, to which the work has been used in the sense that, whether the use is too much or too less. Apart from this, what must also be seen is in what sense the work has been used and what impression such use of the work leaves in the mind of the perceiver about the novelty of the derivative work. This definition, though has helped to somewhat define Fair Dealing, it is a very vague and imprecise definition, since it does not clearly define as to what is Fair Dealing, or what constitutes fair dealing or which uses of the work are exempt from the domain of infringement of copyright and only delves into the extent of the use of the work and though it has tried to define certain aspects to consider while deciding the nature of the work, it still leaves out various other considerations and leaves it a bit ambiguous.
Numerous attempts have been made to define the term Fair Dealing, such as in the case of S.K. Dutt v. Law Book Co and Ors¹⁴, the Court stated that, “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 court in the case of Harper & Row Publishers v. Nation Enterprises¹⁵ stated that, the concept of fair dealing finds its roots in the doctrine of equity. It 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.¹⁶
The court in the case of Kartar Singh v. Ladha Singh¹⁷, stated their observations that, “fair dealing concept functions as a limitation and exception to the exclusive and in a way monopolistic right granted by copyright law”.
The court in the case of The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House and Ors¹⁸, stated that Fair Dealing is an integral part of the copyright law.
In the case of Pro Sieben Media AG v. Carlton UK Television Ltd¹⁹, it was pointed out by the court that English fair dealing provisions “define with extraordinary precision and rigidity the ambit of various exceptions to copyright protection.” Therefore, it states that in accordance with the law in operation in the UK, for a fair dealing defense to be effective there is a 2-step test, that the purpose must be enumerated in statute, and then, if it is enumerated in the statute, it must be shown to be fair. If either of the 2 condition is not fulfilled, the defense falls flat. It can be noticed from a bare interpretation of the above, that fair dealing is only accepted for very specific and clear uses.
In various jurisdictions, the courts have attempted to set out the test to check for the fairness in fair dealings.²⁰ However, it is important to note that the most commonly known and generally used test is known as the 4-factor test, which was laid down by the Courts in the USA. They pointed out that, the four steps involved in this test are basically-²¹
1. The reason and nature of use.
2. The quantity and substantiality of the fraction taken.
3. The nature of copyrighted work.
4. The effect of the use upon the prospective market.
The concept of fair dealing, in the copyright framework of the United Kingdom is very restraining in nature and contains an exhaustive list of exceptions, which have been defined in the CDPA, 1988²². In practice, this exhaustive list of exceptions in the UK legislation for fair dealing is very rigid in nature and is disproportionately inflexible.²³ The Copyright Act, 1957 which has been widely borrowed from the UK Copyright Law presents the same sort of rigidity in the matters of fair dealing.
FAIR DEALING IN INDIAN COPYRIGHT LAW
The concept of fair dealing was first introduced in India in a statute in the year 1914.²⁴ But, even before the introduction of the concept of Fair Dealing in India under the Indian Copyright Act, 1914, the Bombay High Court, in the case of McMillan v. Khan Bahadur Shamsul Ulama Zaka²⁵ held that the English Copyright Act, 1842 was applicable in India. The provision stated 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 1956.²⁶
The concept of fair dealing is primarily dealt with in Section 52 of the Copyright Act, 1957. This section has been amended a number of times since 1957. This section was first amended by the Copyright (Amendment) Act, 1983, and subsequently by the Copyright (Amendment) Act, 1994 and 1999 and finally by the most recent Copyright (Amendment) Act of 2012.
Section 52 of the Indian Copyright Act, 1957
Section 52 of the Indian Copyright Act, 1957 states that certain acts would not constitute infringement of copyright. Section 52(1) prescribes a list of acts, which shall not constitute an infringement of copyright.
Section 52(1)(a) provides for the Doctrine of Fair Dealing, and it states that a fair dealing with any work, not being a computer program, for the purposes of private or personal use, including research, criticism or review, whether of that work or of any other work, the reporting of current events and current affairs, including the reporting of a lecture delivered in public would not constitute infringement.
The Explanation appended to the section states that the storing of any work in any electronic medium for the purposes mentioned in this clause, including the incidental storage of any computer program which is not itself an infringing copy for the said purposes, shall not constitute infringement of copyright.
The provisions under Section 52 makes it evident, that for the applicability of the concept of Fair Dealing, the acts or the purposes would have to fall within the statutorily established purposes of private use, research, criticism and review as firmly provided under Section 52 of the Indian Copyright Act, 1957. Albeit, the Section primarily deals with the doctrine of Fair Dealing and provides for when the dealing is considered to be fair, but the term “Fair Dealing” has not been defined anywhere in the Act. However, the said section does specify as to what shall not amount to the violation of copyright.
The 2012 amendment to the Copyright Act was brought in order to generally extend these provisions. This amendment has, among other things, extended the fair dealing provision to cinematographic films and musical works. The provision under Section 52(1)(a) has been amended 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 program.
The categorized acts or purposes as under Section 52 have been interpreted as exhaustive, inflexible and definite since any use, act, purpose or dealing which does not fall definitively within the enumerated grounds as specified in the section, is considered to be an infringement of the copyright.
There have been numerous judicial pronouncements, which has helped further the development of the Doctrine of Fair Dealing in United Kingdom, India as well as laid the groundwork for the development of the Doctrine of Fair Use in United States of America.
Some relevant Indian judgments are as follows-
Wiley Eastern Ltd & Ors. v. Indian Institute of Management²⁷
In this case, the court noted and drew a connection of the purpose of the defence of Fair Dealing with the Constitution of India. The court stated that the basic purpose of Section 52 of the Indian Copyright Act, 1957 is to protect the freedom of expression prevalent under Article 19 (1) of the Constitution of India, in order for purposes such as research, private study, criticism or review or reporting of current events could be protected. The court further pointed out that Section- 52 is hardly intended by Parliament to unconstructively stipulate what an act of infringement is.
Blackwood & Sons Ltd. & Ors. v. A.N. Parasuraman & Ors.²⁸
In this case law, the Doctrine of Fair Dealing was discussed and principles for determining what makes up “private use” were laid down. In this case, fair dealing defense was claimed for the purpose which was stated to be of private study. As per the facts of the 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 stated 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. 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”.
The court gave 2 points with regards to the meaning of the expression “Fair” in the term “Fair dealing”. The court stated that-
In order to constitute unfairness, there must be an intention to compete and to obtain profit from such competition.
Unless the intention of the infringer were unfair, in the sense of being improper or oblique, the dealing would be fair.
Essentially, the test given in the Blackwood case²⁹ helps to find, whether the use is likely to damage the potential market or the value of the copyrighted work, and 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 is also to be considered.
Civic Chandran v. Ammini Amma³⁰
In this case of, 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.
Reliance Petrochemicals v. Indian Express Newspapers³¹
In this case, the court held that Fair Dealing for the purpose of coverage of current events in print mode or broadcast media is also an exception under Section 52(1)(b) of the Indian Copyright Act, 1957, because a person has the right to know.
CONCLUSION
From the above, it can be understood that fair dealing forms an essential and important part of the copyright law. It is also clear that this concept of Fair Dealing is not very advanced or developed in India, but with the various amendments and judicial decisions, the Doctrine has found a solid footing in the copyright legislature of our county and is evolving further and its scope is expanding with every judicial pronouncement. The Doctrine is necessary in order to bring about a balance or harmony between the conflicting monopolistic interests of the Author and the creative interests of the society at large. The Doctrine helps promote creativity in the society leading to a wide variety of creative and astonishing works, which without the existence of the Doctrine of Fair Dealing might not have been possible. Thus, the Doctrine plays a vital and important role in both the promotion of creativity and the evolution and development of the Copyright law at municipal as well as international level to promote as well as protect such creative works.
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[1]What is Copyright? WIPO, https://www.wipo.int/copyright/en/. (last accessed Aug 14, 2020)
[2] The Copyright Act, 1957 (Act 14 of 1957), S. 14.
[3] The Copyright Act, 1957 (Act 14 of 1957), S. 14(a).
[4] The Copyright Act, 1957 (Act 14 of 1957), S. 14(b).
[5] The Copyright Act, 1957 (Act 14 of 1957), S. 14(c).
[6] The Copyright Act, 1957 (Act 14 of 1957), S. 14(d).
[7] The Copyright Act, 1957 (Act 14 of 1957), S. 14(e).
[8] Miller v. Taylor, (1769) 4 Burr 2303 (2335).
[9] Luis C Schmidt, The Changing Face of Copyright, 34 Copyright World 190 (2009).
[10] The Berne Convention for the Protection of Literary and Artistic Works, 1886.
[11] TRIPS Agreement, Art. 13.
[12] [1972] 2 WLR 389.
[13] Alfred Thompson “Tom” Denning, Baron Denning (1899–1999) was the most celebrated English judge of the 20th century and was known as “the people’s judge” for his willingness to override precedent to do what he saw as justice and for his simply-worded judgments.
[14] AIR 1954 All 570.
[15] 471 US 539.
[16] Giuseppina D‟ Agostino, Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to UK Fair Dealing and Fair Use, 53 MCGILL LAW JOURNAL 309 (2008).
[17] 1934 SCC OnLine Lah 277.
[18] 2008 (38) PTC 385 (Del).
[19] [1997] E.M.L.R. 509, 516.
[20] T.G. Newby, What’s Fair Here is Not Fair Everywhere: Does the American Fair Use Doctrine Violate International Copyright Law? 51 Stanford Law Review 1633 (1999).
[21] Rich Stim, ‘Measuring Fair Use: the Four Factors’ Copyright & Fair Use, Stanford University Libraries (2010), http://fairuse.stanford.edu/overview/fair-use/four-factors. (last accessed Aug 14, 2020).
[22] Copyright, Designs and Patents Act, 1988.
[23] Justice Laddie, Copyright: Over-strength, over-regulated, over-rated, 18 (5) European Intellectual Property Review 253 (1996).
[24] The Indian Copyright Act, 1914 (Act 3 of 1914), S. 2(1)(I).
[25] (1895) ILR Bom 557.
[26] Narayan P, Copyright and Industrial Designs 8 (3rd ed. Eastern Law House, Calcutta 2002).
[27] 61 (1996) DLT 281 Para 19.
[28] AIR 1959 Mad 410.
[29] Blackwood and Sons Ltd. And Ors, vs. A.N. Parasuraman And Ors. AIR 1959 Mad 410.
[30] 16 PTC 329 (Kerala).
[31] AIR 1989 SC 190.
The author is a Year V BBA LL.B student at the JIMS Engineering Management Technical Campus, GGSIPU.
Disclaimer: Any academic content published in Legis Sententia will be for informational and academic purposes only and shall not be reflective of the views of the Department of Law, University of Calcutta or the Editorial Board thereof or any other institution but only the views of the authors concerned.
