Does the Indian Law fairly describe the doctrine of Fair Dealing? An insider into the Indian and U.S. Copyright Laws
The Copyright Act is designed to promote the creativity, rather than curbing it. It is a composite structure of exclusive rights with certain exceptions and limitation, granted to the author of the creativity for reproduction of the created work to get the financial benefits by exercising such rights, but encourages the innovation. So, a fundamental element of the Copyright law is that it does not grant the author of a literary work protection on ideas and facts. The Act is premised on the promotion of creativity through sufficient protection. These limitations and exceptions enumerated under the Act is to prevent the stagnation of the growth of creativity. So long as the creativity or innovation gets the protection of those limitations and exceptions of the copyrighted work, it does not amount to the infringement. If a person creates a work, without the due permission, by exercising the rights granted to the copyrighted work, then such a creativity is an infringement. So, unlike the other legal rights, Copyright is not an absolute right, but it is a right with exceptions and limitations, which differ from country to country. Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In a simple language, it is nothing but using the copyrighted work, which, but for the exceptions and limitations carved out would amount to infringement of the copyright of the author of the Copyrighted work. That is why in US Copyright laws, this is called as “Fair Use”.
In the Indian perspective the Copyright as a right derives its basis from Article 19(1) (g) 5 and Article 300 A of the Constitution of India. So, any restrictions, limitations or exceptions to a person’s right to the enjoyment of copyright cannot be anything more than a reasonable restriction Such restrictions manifests in the provisions relating to the Fair dealing/Fair use, which is an important concept in the Copyright Act. Despite its importance in the Act, especially in view of the emerging new technology regime, the concept is not explored fully in India. It is impossible to define, what Fair Dealing is. It is based on the doctrine of equity. In India the doctrine of Fair Dealing is enshrined in the Section 52 of the Copyright Act, 1957. Before this Act of 1957, the Indian Copyright Act of 1914 was totally governed by the Imperial Copyright Act, 1911 which was essentially extension of the British Copyright Act, 1911.Even though the concept of the Fair Dealing was introduced in 2014 Act. But,because of the limited power of the Indian legislation, the concept was nothing but the reproduction of the Section 2(1) of the UK Copyright Act of 2011. The current statute, i.e. The Copyright Act, 1957, which has the elaborated concept of the Fair Dealing was passed by the legislation of the independent India to suit its needs. However, most of the principles and the language was extensively borrowed from the UK Act. The fair dealing provisions under the Copyright Act, 1957 state that certain acts will not amount to an infringement of copyright. Under the Copyright Amendment Act, 1994, additional fair dealing provisions were introduced. Later various amendments to the Copyright Act has vast implications on the concept of the Fair Dealing.
Indian law too, in relation to the Copyright infringement and fair dealing is interesting. As the Indian Copyright Act does not have the clear definition of the Fair Dealing, the Indian courts while analyzing the doctrine of the fair dealing primarily draw the approaches of the Laws of UK, US and Canada. It is worth mentioning that most of the decisions by the Indian Judiciary on the Fair Dealing was based on the concept that the Copyright is designed on the utilitarian or public benefit rationale. The courts in India have on various occasions referred to the authority English case Hubbard v Vosper on the subject matter.
“It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must first consider the number and extent of the quotations and extracts…. thenyou must consider the use made of them… Next, you must consider the proportions… other considerations may come into mind also. But, after all is said and done, it is a matter of impression.”
In India Section 13 of the Copyright Act states about the originality. The Content of what is meant by the originality has undergone a paradigm shift from the days of “a sweat of the brow” as enunciated in the case of University of London Press vs University Tutorial press. While recognizing this shift and following the approach of the Canadian case law , the Supreme Court of India, in the case of Eastern Book Company vs DB Modak, noticed two positions in dealing with fair dealing, i.e.(1) the sweat of the brow and(2) a modicum of creativity. Thus, our judiciary too recognizes the Copyright is a statutory right and shifted from the natural rights theory attached to the Copyright. The honorable Supreme Court in the case of Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. held:
“…the owner of a copyright has full freedom to enjoy the fruits of his work by earning an agreed fee or royalty through the issue of licenses. But, this right…is not absolute. It is subject to right of others to obtain compulsory license as also the terms on which such license can be granted.”
“…in our constitutional scheme of statute, monopoly is not encouraged. Knowledge must be allowed to be disseminated. An artistic work if made public should be made available, subject of course to reasonable terms and grant of reasonable compensation to the public at large.”
Since the Copyright is a negative right tothe other and its exceptions and limitations in other words the fair dealing constitutes a positive right available to the public at large. It clearly shows that in India the fair dealing is a part of the public policy in India. However, it is not clear from the pronouncements of the Indian Courts on this subject whether fair dealing will be classified as a
The doctrine of fair dealing, being a one of the most important concept of the Copyright Laws, which draws clear boundary for legitimate use of the Copyrighted work and the mollified use of it, was enshrined in the Article 13 of the TRIPS (Trade Related Aspects of Intellectual Property Rights) which runs as follows:
“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”.
Because of the Berne Convention on Copyrights and the TRIPS all the members of the WTO were mandated, to give this doctrine of fair dealing in their territorial Copyright legislations, even though they differ from one another. While some of the legislations are keeping a rigid approach, the others have kept their doors open to embrace any new act which can be treated as fair dealing.
The Indian and UK copyright laws regarding fair dealing are often characterized as very limited and restrictive as they work in accordance with an exhaustive list of actions which come under the scope of fair dealing. Although, the fair dealing is undefined in the US laws too, the approach with regard to it under the US laws is very liberal. The liberal approach of fair dealing is captured in the spirit of the legislation itself. In the US legislation of the Copyrights judicially derived factors are listed under Section 107, rendering certain acts not amounting to infringement. US law, in contrast to Indian 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 statutory language provides that:
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction incopies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
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.
So, the US law provides a “test” to make out certain use falls under ‘Fair Use” rather than exhaustive list of activities that constitute the exceptions to the Copyright. It is to be noted that the US doctrine of “fair use” is considered to be the fairest of all as it is the most closely designed law with the TRIPS.
The importance of the fair use still remains to be defined fully in the Indian Copyright regime. With the passage of time, India has been witnessing the major technological ameliorations, but still has a rigid approach in the law of fair dealing. Judicial activism is needed in this field to suit the atmosphere of advanced technology regime. Undoubtedly, doctrine of Fair dealing is important to strengthen the right of the citizen granted under Article 19 of the Indian Constitution. When there is certainty in the other provisions are seen, the conservative approach reflects in the Section 52 of the Act can be liberalized.
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