Article explains What is Copyright Infringement, What is Exception to Copyright Infringement, Doctrine of Fair Dealing and In which particular Benchmark Judgement was Fair Dealing included.
Copyright infringement refers to the unauthorized use of someone’s copyrighted work. Thus, it is the use of someone’s copyrighted work without permission thereby infringing certain rights of the copyright holder, such as the right to reproduce, distribute, display or perform the protected work.
A copyright is infringed only when an unauthorized person copies a substantial part of the work. While deciding the case, the court also tries to conceive, how an ordinary person will perceive the work.
Section 51 of the Copyright Act specifies when a copyright is infringed.
So all of us must have read and heard about Copyright Infringement, however it is not applicable in every case as such. Section 52 of the Copyright Act, 1957 is about exception to Infringement which is read as “Certain acts not to be Infringement of Copyright”
However as the Section 52 is very vast, we will only write about the same in few parts distributed among many articles. In this particular article we are going to write about Exception in the case of Fair Dealing with any work”.
Section 52 (1) The following act shall not constitute an infringement of copyright, namely, —
(a) A fair dealing with any work, not being a computer programme, for the purposes of—
(i) private or personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.
Explanation — The 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 for the said purposes, shall not constitute infringement of copyright.
The term “fair dealing” has not been defined in the Act. It is a legal doctrine, which allows a person to make limited use of copyrighted work without the permission of the owner.
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. It permits reproduction or use of copyrighted work in a manner, which, but for the exception carved out would have amounted to infringement of copyright. It has thus been kept out of the mischief of copyright law.
The defence of “fair dealing” initially originated and emanated as a doctrine of equity which allows the use of certain copyrightable works, which would otherwise have been prohibited and would have amounted to infringement of copyright. The main idea behind this doctrine is to prevent the stagnation of the growth of creativity for whose progress the law has been designed.
With the passage of time, India has gone through tremendous technological ameliorations but still procures a very limited scope in the law of fair dealing. But if we look towards the west, continuous advancements through innovative interpretations and judicial activism have been introduced in this field.
What is Explanation of Fair Dealing?
Whether a person’s use of copyright material is “fair” would depend entirely upon the facts and circumstances of a given case. There is a thin line between “fair dealing” and infringement.
In India, there are no set guidelines that define the number of words or passages that can be used without permission from the author. Only the Court applying basic common sense can determine this. It may however be said that the extracted portion should be such that it does not affect the substantial interest of the Author.
Fair dealing is a significant limitation on the exclusive right of the copyright owner. It has been interpreted by the courts on a number of occasions by judging the economic impact it has on the copyright owner. Where the economic impact is not significant, the use may constitute fair dealing.
The fair nature of the dealing depends on the following four factors:
1. the purpose of use
2. the nature of the work
3. the amount of the work used, and
4. the effect of use of the work on the original
In the case of Kartar Singh Giani v. Ladha Singh, the High court held that: “two points have been urged in connection with the meaning of the expression fair, in fair dealing (1) that in order to constitute unfairness there must be an intention to compete and to derive profit from such competition and (2) that unless the motive of the infringer were unfair in the sense of being improper the dealing would be fair.”
What Decisions were taken at Berne Convention?
Exceptions to the reproduction right (the 3-step test)
The three step test made its debut in the Berne in 1967, as Article 9(2), for exceptions to the new right of reproduction.
1967 Article 9
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.