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INFRINGEMENT OF COPYRIGHT AND DOCTRINE OF FAIR USE –
THE CHALLENGES AHEAD

-Dr.G.B.Reddy*                                                   

Only human beings are capable of creativity. They can be authors, music composers, artists, and designers etc for creating their original works. Naturally, it is they alone, who will be entitled to enjoy the exclusive rights to do or authorize others to do certain acts in relation to literary, dramatic, musical and artistic works, cinematograph films and sound recordings etc. The best way of protecting these works, which form part of literary works in the classification of Intellectual Property Rights, is through the copyright legislation. Copyright is a unique kind of intellectual property, the importance of which is increasing day by day. It does not fall in the category of industrial property. In fact ‘copyright’ was the first intellectual property, which received legal protection in the world. Copyright law unlike patent and trade secret, protects the expression of an idea rather than the underlying idea itself. Unlike patents, the subject matter of copyright is literary and artistic works. All such works are protected as long as these are original expressions of an idea. The idea/expression dichotomy enables others to express the same or similar idea and receive copyright protection as long as the expression satisfies the test of originality.

The most basic right conferred by copyright is the right to exclude unauthorized reproduction of the copyrighted work. Most laws relating to copyright also prohibit certain acts such as performing the work in public, making a sound or audio-visual recording of the work, making a motion picture of the work, broadcasting or publicly communicating the work and translations or adaptations of the work. In addition to these economic rights, most copyright laws recognize moral rights, which normally include the Author’s right to claim authorship and to protect the work from mutilation or distortion. It is said that what is worth copying is worth protecting. This principle is squarely applicable to the protection of copyright in relation to various works like artistic, literary and musical works.

Copyright is the most vulnerable form of Intellectual Property, as it is the most fragile and prone to abuse and theft. Generally it is said that advancement of science and technology improves the standard of life in the society. However in the case3 of copyright protection, the advancement has posed greater challenges for protection of copyright starting from the invention of printing machine sometime in or about 1440 by Johannes Gutenberg of Mainz, Germany. With the advent of reprographic Technology like photocopying and digital era, it has become very difficult to protect the copyright of the authors. Since the protection of Intellectual property is based on the principle of economic reward or incentive to the creator, the authors of the copyrightable works, now feel really insecure in the present environment. Further, the days of believing that ‘copyright is concerned primarily with ‘lonely starving artists’ are gone forever, as the same is concerned with companies ranging from small and not for profit concerns to huge multimedia and publishing conglomerates.

The unique nature of copyright material does not just extend to the printed word, the original medium for which copyright was designed. It also extends to other forms of intellectual expression including audiotapes, video material, and software though in many countries this has been the subject matter of intense debate – broadcasts and much more. In each, and all, of these it is possible for thieves to deprive the copyright owner whilst leaving the original material unchanged and untouched. This is clearly a unique area of theft. Current statistics suggest that the photocopying of copyright material totals around 300000 million pages a year. In recent years, the control of piracy in copyrighted works is becoming a more pressing issue, particularly with the rapidly advancing technologies that facilitate cheap and easy dissemination of these works. The sad thing is that most of the piracy is often sought to be projected as ‘fair use’ or ‘fair dealing’. It is with this background that an attempt is made in this paper to analyze the Indian law relating to copyright, concept of infringement of copyright and exceptions to the same particularly with regard to ‘fair use’ or ‘fair dealing’ of copyright.

National Regime governing Copyright:


In India, the Copyright Act, 1957 is the primary legislation relating to the copyright protection. This Act as amended by the Copyright (Amendment) Act, 1999 contains 79 sections and is supplemented by the Copyrights Rules, 1958 which are 28 in number. It is a comprehensive legislation covering almost all the aspects of the copyright protection in India.

Object of the Copyright Act


The hallmark of any culture is the excellence of arts and literature. In fact the quality of creative genius of artists and authors determine the maturity and vitality of protection. What the law offers is not the protection of the interest of the artist or the author alone. Enrichment of culture is of vital interest to each society and the copyright law protects this social interest. The copyright Act has been enacted to check the piracy i.e., the labour put by the author or the copyright owner may be enjoyed by the deserving authors and copyright owners and not the pirates, who indulge in plagiarism and other undesirable and illegal activities of theft of intellectual property.

Scheme of Legislation

The Copyright Act, 1957 is the primary legislation dealing with the protection of copyright in India. It contains 79 sections and is supplemented by the Copyright Rules of 1958. The Act defines various terms like artistic work, Author, Adaptation, Broadcast, Cinematography film, Computer Program, Copyright society, Dramatic work, Musical work, Performance, and Sound Recording, in the definition clause contained in Section 2 of the Act. Apart from dealing with the copyright, its meaning, ownership of registration, the Act deals with the other aspects like licenses by owners of copyright, copyright societies, performers and Broadcasting and organization rights. The Act provides for a comprehensive scheme to deal with the infringement of copyright and civil remedies for the same.

In the preceding paras, the concept copyright, its subject matter, the legal regime in India governing the same and the extent of copyright protection etc. have been discussed. As it is known, one of the main objects of copyright legislation is to protect the copyright has the exclusive right to do certain acts in respect of the work. The nature of rights and the extent of protection afforded to the owners of copyrights and licenses etc. depends on the nature of the work. Therefore reproduction of the work in any material form, performing the work in public in certain forms are the most usual methods by which the copyright in any work is commercially exploited for profit. If any person, without authority commercially exploits the work for profit, he will be infringing the copyright.

What is infringement?

Under Section 51 of the Copyright Act, 1957, infringement of copyright has been explained, copyright in any work is deemed to be infringed in the following cases –

(i) when any person without a license from the owner of the copyright, or the Registrar of copyright or in contravention of the terms and conditions of a license so granted or of any condition imposed by a competent authority under the Act;
(a) does anything, the exclusive right to do which is conferred upon the owner of the copyright; or
(b) 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 behaving that such communication to the public would be an infringement of copyright; or

(ii) when any person –
(a) makes for sale or hire, or sells or lets for hire, or by way of trade, displays or offers for sale or hire; or
(b) distributes either for the purpose of trade or to such an extent as to prejudicially affect the owner of the copyright; or
(c) by way of trade, exhibits in public; or
(d) Imports into India any infringing copy of the work.


However, as regards importing infringing copies into India, importing one copy of any work for the private and domestic use of the importer, does not amount to infringement.
Infringing Copy

This section further explains that, the reproduction of a literary, dramatic, musical or artistic work in the form of cinematography film will be deemed to be an “infringing copy”.

The term “infringing copy” is defined under Section 2(m) of the Act, as meaning:
(i) in relation to a literary, dramatic, musical or artistic, a reproduction of it, except in the form of a cinematography film;
(ii) in relation to a cinematography film, making a copy of the film on any medium by any means;
(iii) in relation to a sound recording, making any other recording embodying the same sound recording, made by any means;
(iv) in relation to a program in which a broadcast reproduction right subsists under Section 37, the sound recording or a cinematographer film of such program or performance,
if such copy, or sound recording, or reproduction as the case may be, is made or imported in contravention of the provisions of the Act. In other words, the copyright legislation in India follows the principle “what is worth copying is worth protecting.”

Common forms of infringement

The infringement of copyright in a work occurs when one or more of the following acts take place –
(i) reproduction of the work in a material form;
(ii) publication of the work;
(iii) communication of the work to the public;
(iv) performance of the work in public;
(v) making of adaptations and translations of the work and doing any of the above acts in relation to a substantive part of the work.

Principles for deciding infringement of copyright:

The Supreme Court has laid down the following principles, which are self-explanatory, in the landmark judgment of Anand v. Deluxe Films. These principles clearly explain the circumstances and instances pertaining to copyright infringement.

(a) There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
(b) Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyright work. If the defendant’s work were nothing but a literal imitation of the copyright work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one, which at once leads to the conclusion that the defendant is guilty of an act of piracy.
(c) One of the surest and safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
(d) Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
(e) Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the co-incidences appearing in two works are clearly incidental no infringement of the copyright comes into existence.
(f) As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down.
(g) Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work had expressed in idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.

Factors involved in determination of infringement:

It is worthwhile to take note of the factors involved in the determination of infringement of copyright, as explained by well-known author, on Intellectual Property, W.R.Cornish.

In case of copying: (a) Casual connection i.e. the owner must show that there is a casual connection between the original work and alleged infringement copy apart from a sufficient degree of objective similarity between the two works. In case of (b) Subconscious copying (c) indirect copying: In case of substantial copying, factors like unaltered copying, extent of defendant’s alteration, character of plaintiff’s and defendant’s works, nature of plaintiff’s efforts, extent of plaintiff’s work, the possibility of serious interference with the plaintiff’s exploitation of his work land reproduction by the original author, have to be considered.

In other words, copying may be direct, subconscious and indirect. In deciding the nature and extent of copying, all the aforementioned factors would be relevant.

Which acts do not constitute infringements – Statutory Exceptions?

The protection of copyright given to owner or licensee is not absolute. It is subject to certain exception and restrictions. Section 52 of the Act gives a lengthy list of acts under the heading “certain acts not to, be infringement of copyright”, which can be called statutory exceptions to copyright infringement. For the purpose of easy understanding they have been discussed hereunder briefly, with the held of decided cases.

(i) Fair dealing: A fair dealing with a literary, dramatic, musical or artistic work but not being a computer programme, for the following purposes, does not amount to infringement of copyright.

-- Private use, including research; and
-- Criticism or review, whether of that work or any other work.

It may be seen that, it is only when the Court has determined that a substantial part of a literary, artistic, dramatic or musical work, has been taken that any Question of fair dealing arises. Though, once this question arises, the degree of substantiality, that is to say, the quantity and value of the matter taken, is an important factor in considering whether or not, has a ‘fair dealing.’ Further in considering whether dealing with a particular work was fair, it would have considered whether any competition is likely to exist between two works. A fair criticism of the ideas and events described in the books or documents would constitute a ‘fair dealing.’ Publication of confidential information leaked by the third party cannot constitute fair dealing for the purpose of criticism or review.

FAIR DEALING

The Kerala High Court has explained the meaning and expression of “fair dealing” in Civic Chandran v. Ammini Amma. It is only when the court has determined that a substantial part has been taken that any question of fair dealing arises. Though, once the question arises, the degree of substantiality, that is to say, the quantity and the volume of the matter taken, is an important factor in considering whether or not there has been a “fair dealing”? Further, it is thought that, even under the present law, in considering whether a dealing with a particular work was fair, it would have to be considered whether any competition was likely to exist between the two works. But each case will depend on its facts, and what may be fair in one case will not necessarily be fair in other case. Criticism or review may relate not only to literary style but also to be doctrine or philosophy of the author as expounded in his books. A fair criticism of the ideas and events described in the books or documents would constitute “fair dealing.”

FAIR DEALING IN U.K.:

The current Copyright Law of the U.K. is now almost entirely contained in the Copyright Act 1988, the Copyright Designs and Patents Act, 1988 and the case law pertaining to them. The requirement of “substantial taking” prevents the owner from objecting to minor borrowing from his Copyright work. Some of those instances are in relation to research or private study, reporting of current events and criticism or review. By relying almost wholly on specified statutory limitations, British Copyright law differs both from U.S.Law, where the concept of ‘fair use’ has scope that is both general and central, and author’s rights system, which tends to have a general defense or private use. As Cornish points out, in U.K. law while neither ‘fair’ nor ‘private use’ forms a general ground of excusable in relation to the reproduction and related rights, the limitations to public use is written into the very definition of the various performing rights.”

(i) Research or private study: The first fair dealing exception covers purposes of research or private study, which now applies to the Copyright in literary, dramatic, musical and artistic works, and published editions. Other instances which must be read as part of this exception are (a) the more specific exceptions covering certain librarians and archivists (b) the exception for the inclusion of short passages of literary and dramatic works in collections for the school, and the exceptions for the inclusion of short passages of literary or dramatic works in the course of instruction and examination and performing, playing or showing works at schools and (c) for recording broadcasts and cable casts. It can be seen that the rule of defenses is particularly important in the field of education and also that it may in principle cover research in commerce, industry and Government. What is ‘fair’ will presumably depend on the facts and circumstances of each case.

(ii) Reporting current events
: The second fair dealing exception permits all works, other than photographs, to be used for reporting current events. This may be in a newspaper or magazine, in which use sufficient acknowledgement is required. In case of sound recordings, films, broadcasts or cablecasts, no acknowledgement is required. To come within this exception, the event itself must be current and not the pretext for reviving historical information. Therefore in the case of Associated Newspapers v. New Group, it was held that the death of the Duchess of Windsor did not justify an exchange of letters between her and the Duke being published without Copyright license. This exception is of particular importance to public affairs media.

(iii) Criticism or review: The third fair dealing exception that is most general of all, is allowing works to be used for purposes of criticism or review either of themselves or another work. One precondition of fairness in this exception is that the source should be sufficiently acknowledged. The criticism or review may concern the ideas expressed as well as the mode of expression. However it has been held that it cannot be ‘fair’ to publish an unpublished work for this purpose, atleast if it is known that such work had been improperly obtained. Further the courts will not permit wholesale borrowing to be dressed up as critical quotation.”

The guiding principles governing fair dealing in U.K. can be seen from the remarks of Lord Denning, M.R., which are extracted hereunder:

           “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. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, they may be unfair. Next you must consider the proportions. To take long extracts and long comments may be fair. Other considerations may come to mind also. But after all is said and done, it must be a matter of impression.”

Thus, it can be seen that, no question of ‘fair dealing’ arises unless there has been “substantial taking”. Equally the precise manner in which the work is used for criticism, review or reporting current events will be important; it is germane always to ask whether the defendant could have made his point effectively with any “substantial taking.” However, the reprography problem, audio and video copying and computers have posed greater challenges to the Copyright protection, in a way enabling the ‘pirates/infringes to justify their actions under the guise of fair dealing.

Position in U.S.A.:

In U.S.A., Sec.107 of the Copyright Act 1976 deals with ‘fair use’ and it reads as follows:

Limitations on exclusive rights: Fair Use:

Not withstanding the provisions of Sec.106 the fair use of a copyrighted work, including such use by reproduction in copies or phono records or by any other means specified by that section, for purposes such as criticism, comment, news reporting teaching (including multiple copies for class room 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:

 

 
 
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