The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.
-Justice Sandra Day O’Connor
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.
Copyright encourages creativity, publication and dissemination of intellectual works, but at the same time it restricts their use and availability. The Doctrine of Fair dealing expresses ideas related to the limitations and exceptions to copyright of the owners.
The Doctrine refers to various situations when exclusive rights granted to authors and owners or other legal assignees under Indian Copyright Act of 1957 do not hold good. These exceptions are also the subject of significant regulation by international treaties.
Indian copyright laws
Copy right is an exclusive right granted to the author of an original work (e.g. literary work, lyrics, movies, computer programmes, paintings and even an architectural building) for a limited period of time.This intellectual property tool is governed by the Copyright Act of 1957 which was based on the Copyright Act 1911, framed by the British before independence. The Act is equally influenced by the Copyright Act 1956 of United Kingdom.
The copy right law in India may be understood by the study of The Copyright Act, 1957, The Copyright Rules, 1958 International Copyright Order, 1999. The important amendments were made in 1983, 1984, 1992, 1994 and 1999, which makes the Act fully compliant with the treaties of the Berne Convention, the Rome Convention and the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS) agreement, the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms , the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Universal Copyright Convention. Because India is a member of the Berne Convention, registration of copyright is not an essential requirement for protecting that right. However, it is open for copyrights to be registered at the office of the Registrar of Copyright
Literary work
Literary work covers the work which is expressed in print or writing, irrespective of the question whether the quality or style is high. Literary work is not defined in the Copyright Act, however the phrase may include maps, chats, plans, tables and compilations. Literary work consists of matter or material or subject, which is expressed in a language and is written down.Though it may not be a comprehensive definition, literary work means any work, other than a dramatic or musical work which is written, spoken or sung and accordingly includes a table or compilation or a computer programme and preparatory design material for a computer program. Copyright subsists in original literary works and relates to the expression of thought, but the expression need not be original or novel.
Its essentials may broadly be enumerated as follow:
The work must not be copied from another work but must originate from the author.
Two authors independently producing an identical work will be entitled for copyright in their respective works.
The emphasis is more on the labor, skill judgment and capital expended in producing the work. It includes tables, compilations and computer programs.
The term of protection for a copyright literary work is the author’s life plus sixty years,which is ten years less than the European Union which provides for life plus seventy years.
Rights in a Literary Work
In the case of a literary work, copyright means the exclusive right of the author. A copyright gives a right to do and authorize the doing of any of the following acts-
i. to reproduce the work in any material form;
ii.to publish the work;
iii. to perform the work in public;
iv.to produce, reproduce ,perform or publish any translation of the work;
v.to make any cinematographic film or a record in respect of work;
vi.to communicate the work by broadcast or to communicate to the public by loud-speaker or any other similar instrument the broadcast of the work;
vii. to make any adaptation of work;
viii.to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clause (i) to (iv).
ix. to issue copies of the work to the public
x. to make any translation of the work.
In the case of computer program
i. to do any acts specified above from clause (i) to (x);
Owner of the copyright in a computer programme enjoys the rights to sell or give on hire or offer for sale or hire, regardless of whether such a copy has been sold or given on hire on earlier occasion.
Infringement of copyright
Infringement of copyright (or copyright violation) is the unauthorized use of material that is covered by copyright law, in a manner that violates one of the copyright owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. All ‘infringing copies’of a work in which copyright subsists are deemed to be the property of the owner of the copyright. The owner can sue for the recovery of possession of the copies.
Copyright in a literary work is deemed to be infringed
(a) When any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under the Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under the Act-
(i) does anything, the exclusive right to do which is by the Act conferred upon the owner of the copyright;
(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright;
(b) When any person-
(i) makes for sale/hire, or sells/lets for hire, or by way of trade displays or offers for sale/hire;
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright;
(iii) by way of trade exhibits in public;
(iv) imports into India, any infringing copies of the work
defence against claims of infringement in literary work
Copyright protects the fixed expression of ideas, but not the ideas themselves. To strike an appropriate and viable balance between the rights of the copyright owners and the interests of the society as a whole, there are exceptions in the law. Many types of exploitation of work which are for social purposes such as education, religious ceremonies, and so on are exempted from the operation of the rights granted in the Act. Thus, in few cases such use does not cause infringement. One such exception is the concept of fair dealing in copyright.
The idea behind the exception is to encourage the free flow of information. Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. If it is not allowed, and permission has to be obtained for every single use of any copyrighted material, it would result in high transaction cost of obtaining information.
Section 52 of the Indian Copyrights Act, 1957, indicates the incorporation of the ‘fair dealing’ doctrine and explains what is not an infringement legally. For example there is no copyright for happenings and events which could be news stories and a reporter cannot claim any copyright over such events because he/she reported it first.
According to Section 52 (1) (a) & (b) of the Copyright Act, 1957, fair dealing as a defence applies only to literary work. However, it should be noted that it applies only with respect to work and not to reproduction of the work.
Fair dealing with a literary work for the purposes of private use including research, criticism or review, making copies of computer programmes for certain purposes or for reporting current events in newspaper magazines does not constitute infringement of copyright.
Fair dealing
“Fair dealing” is the term used to describe the permitted acts under India’s copyright law, in other words, acts that may be carried out in relation to a copyright work without infringing the copyright. Two points have been urged in connection with the meaning of the expression ‘fair’ in fair dealing. Firstly, that in order to constitute unfairness there must be an intention to compete and to derive profit from such competition and secondly that unless the motive of the infringer were unfair in the sense of being improper or oblique the dealing would be fair.Also, where economic impact is not significant, the use may count as fair dealing.
Fair dealing though not formally defined, it is generally accepted to mean that in some circumstances, copying an unsubstantial amount of copyright work would not harm the copyright owner but would be beneficial to the individual copying the work and the society in general.
Fair dealing is thus a defense against an infringement action. An individual may make a single copy, or in theory even multiple copies of a literary work as long as the copying does not damage the legitimate interests of the copyright owner and as long as it is for the person him or herself, and is for one of three purposes: for research or private study; for the purposes of criticism and review; and for reporting current events.
The fair nature of the dealing may depend on following factors:
1. the purpose of use,
2. the nature and amount of the work used, and
3. the effect of use of the work on the original.
Fair dealing with literary work for following purposes does not constitute infringement:
1. Any kind of private use - research (accompanied by an acknowledgement) is regarded in the same category as personal and private use if not exploited commercially.
2. Noted purpose of criticism or review of the works or any other work.
3. Reporting current events in newspapers, magazines and other such periodicals.
4. Reproduction of the work for the purpose of judicial proceeding or its reports.
5. Reproduction of the work in any work prepared by the Secretariat of a Legislature, exclusively for the use of the members of the Legislature.
6. Reading or recitation in public for non-commercial use.
7. Publication in a collection intended for use of educational institutions.
8. Reproduction of the work by a teacher/pupil in the course of instruction, or as part of questions/answers in an examination, or in the course of activities of an educational institution/published to a non-paying audience or for benefit of a religious institution.
9. Reproduction of work for use in public library if unavailable for sale in India.
10. Copies made to advertise the product itself.
Special provisions for computer software setting out exceptions to infringement:
• lawful possessor of a computer programme to obtain any other essential information for interoperability of an independently created computer programme, if that information is not readily available.
• observation, study, or test of functioning of the computer programme in order to determine the principles which underline any elements of the programme while performing such necessary for the functions of the computer programme is supplied.
• making of copies or adaptation of the computer programme from a legally obtained personal copy for non-commercial use and backup copies of computer software.
Limits to fair dealing
Fair dealing should be interpreted by looking at the economic impact on the copyright owner of the use. For e.g. a copyright can subsist in Examination Papers. Also, religious preachers or compilations of discourses come within the purview of literary works. Where the economic impact is not significant, the use may count as fair dealing. However a person’s act is a copyright infringement when no provision under Sec.52 can be attracted.
Further, Multiple copies are not considered fair dealing. Placing another’s copyright images or articles on the Internet is widely considered to be multiple copying and is not considered fair dealing. Such fair dealing may apply to a student using material in his work, but not in multiple copying of the work for class or posting on an intra net. In addition to that copying for a commercial purpose by photocopying, scanning, downloading etc. is excluded from the statutory exception of fair dealing. It is also important to mention here that in copying from e-journals the user is bound by the e- journal licence terms and conditions, which may or may not permit downloading and copying for commercial purposes.
It is also not fair dealing to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program, unless this is done while loading, displaying, running, transmitting or storing the program which the user is entitled to do. Whether a person’s use of copyright material is fair depends on the circumstances of the case and on whether it is accompanied by a sufficient acknowledgement, usually bibliographical details. The line between fair dealing and infringement is a thin one. There are no guidelines that define the number of words or passages that can be used without permission from the author. Only the courts can rule whether it is fair dealing or infringement that is involved.
conclusion
The Indian Copyright Act, 1957, was enacted with a motive of protecting the rights of the original authors. It aimed to encourage and provide incentive to create original works. However in doing so it has remarkably kept equilibrium between such incentives and on the other hand to provide the desired flow of knowledge and information. Copyright laws are enacted with necessary exceptions and limitations to ensure that a balance is maintained between the interests of the creators and of the community.
Fair dealing is the most significant limitation on the exclusive right of the copyright owner. It has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use. Where the adverse impact on the author is only trivial and not significant, the use may count as fair dealing even where copyrighted material may be used without consent. Hence Fair dealing seeks to limit the exclusive right of the owner or author, to some extent, in specic instances of overriding social interest.
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