INTRODUCTION
The law of copyright provides protection to the author’s work against any unauthorized use by other persons. Authors include writers, producers, musicians, artists etc. The Copyright Act 1957 states that authors have the exclusive right to reproduce their work, distribute their work, perform their work in a public place, authorise the translation or adaptation of their work. The Authors may also direct others or grant permission to do any of the tasks mentioned above. However, the rights of copyright are not exclusive and other certain circumstances, the works of the authors can be used without their authorization. This is also provided under Section 52 of the Copyright Act 1957. The concept of Fair Dealing comes into picture in this scenario. It is different from the concept of “Fair Use” that is followed in the United States of America.
ESSENTIALS OF FAIR DEALING
For any copyrighted work to come under “fair dealing”, it is important to ensure that the purposes for which the copyrighted work is used should fall under any of the categories given under Section 52 of the Copyright Act 1957. Second, the use of the copyrighted work must be fair. Fairness would be determined by the quantity of the work used, the impact on the market value of the original work etc. Third, the user of the copyrighted work has to acknowledge the source of the original work, unless there is no requirement of providing attribution by law. Fourth, the copyrighted work must not be used for commercial purposes, unless the user can justify that the commercial nature does not undermine the fairness of the dealing. Fifth, proportionality of the work used is also an important ingredient in determining whether the work falls under “fair dealing” or not. For Example – Using an entire song for a review would not be considered to be fair, but using short excerpts of the song may be.
SECTION 52
Section 52(1)(a) of the Copyright Act states that a fair dealing of any work, not being a computer programme shall not be used considered to be copyright infringement for the following purposes:
- Private or Personal use, including research
- Criticism or review, whether of that work or any other work.
- The reporting of current events and current affairs, including the reporting of a lecture delivered in public.
PRIVATE AND PERSONAL USE, INCLUDING RESEARCH
The main objective behind including this under fair dealing is to recognize the fact that research is important for generating new works. Further, non-commercial use of the copyrighted work for the purposes of study and research does not hinder the incentives or rewards available to the creators of the original work. In the case of Kartar Singh Giani v. Lodha Singh(1934), the court held that laws imposing restrictions on the human actions and nature must be interpreted liberally. Further, the court stated that it cannot block every kind of research under the guise of copyright.
CRITICISM OR REVIEW
This defense is available irrespective of the fact whether the work being criticized is the work reproduced or not. Criticism or Review is against certain aspects of the work or against the whole work itself. When criticizing a particular work, the person is permitted to use other works as a means to enhance his criticism or make justification for a point. However, it is important to note that the quantity of the work being used is proportional. For example – While criticizing a book, a person cannot use large extracts from the book while making his criticism in just two lines. In the case of John Stone v. Bernard Jones Publication Ltd(1938), the court held that if a work is set out and criticized, it would come under the ambit of “purpose of criticism” and it is not essential to attribute the work to the author or provide source of the work.
REPORTING OF CURRENT EVENTS
This defense has been provided to protect the role of the media as the fourth pillar of democracy and to enhance the role of the media in informing the public about matters of general importance. The aim is the balance the rights of the author with that of wider public interest.
FAIR DEALING V. FAIR USE
The concept of Fair Use is prevalent in the USA. It is provided under Section 107 of the US Copyright Act. However, it has not been defined anywhere in the act. It is determined on the basis of the test laid down by the US Supreme Court in the case of Folsom vs Marsh(1841). The four factors to determine whether a work comes under Fair Use are as follows;
- Nature of the Copyrighted Work
- Purpose and Character of the Use
- Amount of Copyrighted Work used
- Impact on the use on potential market for the work
These four factors were codified under Section 107 of the US Copyright Act 1976. In the landmark case of Sony Corp of America v. Universal City Studios(1984), the court held that the making of personal recordings of entire TV programmes for the purposes of time shifting would come under fair usage and not be a copyright violation.
The main difference between fair dealing and fair use is that the latter is much broader in scope. Under Fair Use, a particular piece of work would be deemed to be copyright infringement only if it is based on the four-factor test. The list of the works which would come under fair use is not provided. On the other hand, the list of works that come under the category of Fair Dealing are exhaustive in nature and are mentioned in the copyright legislation of the particular country. For example , in India the defenses under Fair Dealing are given under Section 52(1)(a) of the Act. In Canada , the list of enumerated purposes under which fair dealing would apply is given under Section 29 & Section 29.1 of the Canadian Copyright Act.
IMPORTANT CASE LAWS
In the landmark case of Oxford v. Rameshwari Photocopy Service case(2016), it was held by the Delhi High Court that permission from the publishers of the books is not required for reproducing course packs that is to be used for academic purposes.
In the case of TV Today Ltd v. News Laundry Media Pvt Ltd(2022), the petitioner had filed a case for copyright infringement and defamation with respect to many of the videos and clips used by the defendants belonging to the petitioner. The Court refused to grant an injunction and stated that whether reporting would be covered under criticism or review under Section 52 and be protected against infringement is a question of fact that needs to be decided by a trial court.
CONCLUJSION
Fair Dealing is an essential exception to copyright. Th scope of Fair Dealing is limited to the grounds enumerated under Section 52 of the Copyright Act 1957. These grounds include research, review or criticism, reporting of currents. The concept of Fair Dealing is mostly followed in countries like India, UK, Canada etc. On the other side, Fair Use is much broader in its scope. All works need to go through the four-factor test before it could be examined whether they come under Fair Use or not. The concept of Fair Use is followed in the United States.
Contributed By : Kritavirya Choudhary (Intern)