How Fair is the Fair Use?

By: Rohit Singh - Patent attorney and head of patents/ AGIP India Office
Tina Canneth - Head of trademarks/ AGIP India Office

Copyright protection is granted to authors of various types of works, inter alia, literary, dramatic, musical, computer programmes, cinematographic films and artistic works. The copyright protection provides a bundle of exclusive rights to its authors. Any use of such rights requires a permission from the author and a failure to obtain the same leads to infringement.

Between this black and white of copyright protection, exists a grey area – the fair use clause; which looks after the interest of public in accessing any protected work. This fair dealing / fair use permits the unauthorized copying of a copyrighted work, without getting into trouble, provided that the act of copying is for a larger good – in the interest of society.
The principle of ‘fair dealing’ is enshrined in Sections 39 and 52 of the Indian Copyrights Act. While section 39 deals with acts not infringing broadcast reproduction rights and performer’s rights, section 52 lists the acts that do not constitute infringement of copyright. 

According to Section 52 the Fair dealing exception applies to the use of literary, dramatic, musical or artistic works in the context of:
•research or private study [52(1)(a)];
•a Government document or law [52(1)(d & e)];
•the public recitation of certain extracts of a work [52(1)(g)];
•the use of the work by educational institutions, teachers or students in the course of instruction [52(1)(i)];
•the use of the work by non-commercial clubs [52(1)(l)];
•using the work to report current events by way of newspapers, magazines, periodicals, radio, or through photographs in a cinematographic medium [52(1)(m)];

The scope of Section 52 has been widened by a legislative amendment in 2012 to include special exceptions with respect to the use of cinematographic works and sound recordings; the transient or incidental storage of electronic works that might occur in the process of electronic transmission or communications; the adaptation or modification of copyrighted work so as to be made more accessible to persons with disability; certain exceptions with respect to non-commercial public libraries; and technical drawings meant to be used in the construction of three-dimensional works.

Fair Dealing has not been defined in the Act. However, it is a legal doctrine which allows a user to make limited use of copyrighted work without the permission of the owner.

The High Court of Madras in M/s. Blackwood & Sons Ltd. v. A.N. Parasuraman in 1959 held that there should be no mens rea to compete with the copyright holder and derive benefits from the copyrighted work. For the defense of fair dealing to succeed, following two conditions should be met:
1.No mens rea to compete with the copyright holder;
2.There should be no improper use of the copyrighted work.

The High Court of Delhi in The Chancellor, Masters & Scholars of the University of Oxford & Ors. Vs. Rameshwari Photocopy Services & Anr (September 2016) recognized the socio-economic realities of India by upholding the access to education. The Leading publishers, Oxford University Press (OUP), Cambridge University Press (CUP) and Taylo & Francis (T&F) filed a lawsuit against Delhi University and Rameshwari Photocopy Service, the licensed photocopier for creating and distributing course packs to the students of the University. The defendant was making course-packs by photocopying and compiling major portions from relevant textbooks. 
The Court noted that there no dissimilarity between a student issuing a book from the University of Delhi and copying the same and the defendant doing the same job, as long as the copy was made for private use.

It was held that the defendant was not a competitor as they were only making compilations of small portions of prescribed textbooks. This was protected under Section 52 of the Copyrights Act.

The High Court of Delhi in Syndicate Press of University of Cambridge v. Kasturi Lal & Sons (2006) observed that: 

“Law should encourage enterprise, research and scholarship but such encouragement cannot come at the cost of the right of an individual to protect against the misappropriation of what is essentially a product of his intellect and ingenuity. The law encourages innovation and improvement but not plagiarism. Copyright is a form of protection and not a barrier against research and scholarship. Lifting portions of the original work and presenting it as one’s own creation can in no way be described as any form of bona fide enterprise or activity. Research and scholarship are easily distinguishable from imitation and plagiarism.”

Copyright laws play a vital role in the internet age, especially with respect to content creation. There is plethora of information that is available on internet, which might or might not be copyrighted. The reference to online Copyright issues can be found in The Copyrights Act 1957 and The Information Technology Act 2000 (IT Act). 

The rise of the internet has led to developing a vast repository of data residing across servers, which constitute publicly available information. The process of automatically extracting information from publicly available servers is termed as data extraction. The process of data extraction can take a toll on the resources of the websites, which try to impede this process by using various technologies, like CAPTCHA.

Data extraction involves copying and therefore activating the Copyright laws. Section 52(aa) of the Copyright Act allows copying or making backup copies or adaptation for the purposes for which the program was supplied to the user.  Also, it is allowed to make back-up copies as a temporary protection against loss, destruction or damage to use the program for the purposes for which the program was supplied.

Section 10A of the IT Act relate to the validity of contracts formed through electronic means on the internet. So the formation of contract is solely by electronic means, by virtue of which a liability for all infringing actions can be assessed.

The concept of fair dealing is still at a very nascent stage in India and requires a strict analysis of approach in interpreting (strict or liberal) the fair dealing clause. A probable reason for adopting the fair dealing doctrine is that India attaches tremendous importance to research and study.  Indian Courts need to develop the distinctive features of its fair dealing regime as the Copyright jurisprudence is waiting to be further developed to address fundamental issues about the purpose, meaning and application of the Indian law on fair dealing.