This Article is written by Deepanshi, a Third-Year Law Student of Indian Institute of Management Rohtak

Introduction

Complete restraint on reproducing or accessing a copyrighted work without permission might lead to more harm than gain to the copyrighted object and can have counterproductive effects on the cycle of innovation, restricting access to or use of available information for paving the way to new findings. Intellectual Property Rights are a commercial law and are aimed to provide the right to exclude the right holder but the very aim of Intellectual Property Rights and protection was to encourage and incite the zeal for innovation. The fair-use or fair dealing concept allows limited use for certain purposes balancing the deadweight loss created by the copyright. Thus, fair dealing helps furnish and facilitate the efficiency of copyrights.1

‘The doctrine of fair use need not be so mysterious or dependent on intuitive judgments. Fair use should be perceived not as a disorderly basket of exceptions to the rules of copyright, nor as a departure from the principles governing that body of law, but rather as a rational, integral part of copyright, whose observance is necessary to achieve the objectives of that law. Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. On the contrary, it is a necessary part of the overall design. Briefly stated the use must be of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.’2

As noted by Judge Pierre N. Leval fair use is an integral part of the copyright landscape and is essential to fulfill the aim of the law which is to incentivize innovation and creativity.

History

Abridgement Doctrine: As laid down in the case of Gyles v. Wilcox 1741, ‘A real and fair abridgment, … may with great propriety be called a new book, because the invention,

learning and judgment of the author are shown in it, and in many cases, abridgments are extremely useful.’3

Abridgment, as in abbreviating or summarizing, a lengthy work is a task requiring skill and labour, thus it is legal and free of piracy. It also protects the rights of the one who is abridged as if he is the author of an original work.4

The above-stated doctrine was overturned by the case of Falson v. Marsh 1841 which is also one of the first fair use decisions. This case laid down the four-factor test for determining fair use. “the question of piracy, often depends upon a nice balance of the comparative use made in one of the materials of the other; the nature, extent, and value of the materials thus used; the objects of each work; and the degree to which each writer may be fairly presumed to have resorted to the same common sources of information, or to have exercised the same common diligence in the selection and arrangement of the materials.” 5

The citation would be considered fair even if a large portion of work is copied if the intention was to use these ‘paras’ for genuine criticism. Another aspect is that, if it is evident that the individual is citing the essential and core aspects of the original work with the intent to replace the use of original work or capture the place of original work in the market, such work would be considered as an infringement of the copyright under the law.

Thus to consider the infringement of copyrights, the following factors shall be considered:

• Nature and object of the portion copied

• The quantity of material copied

• Value of the material utilized, if it forms the core/essence of the original work

• The degree to which the usage may damage the sale, reduce profits, or overtake the objective of the original work.6

Falcon v. Marsh was cited time and again as a precedent to conclude what might or might not be considered fair use. This ultimately led to the codification of the fair use doctrine in the US Copyright Statute. 7 It is also to be noted that the use shall be transformative to be considered fair dealing/ fair use.

In Hubbard v Vosper, the English Court held that "fair dealing" cannot be precisely defined, as it depends on the circumstances of each case. The Court provided practical guidelines for determining fair use, starting by looking at how much of the original work was reproduced and how it was used—whether for commentary, critique, or review. The Court recognized

That, even with significant reproduction, the use could still be considered "fair dealing" if it serves these purposes.8

However, the Court also pointed out that reproducing even short excerpts could be illegal if the use wasn't proportional. Ultimately, the Court emphasized that these factors are not exhaustive and that deciding what constitutes fair dealing often comes down to "a matter of impression," which must be judged based on the specific facts of each case.9

Right to exclude

The fundamental right which is the essence of a property is the right to exclude And the right to alienate, both are against the society or the public in general i.e. right in rem. It prevents any interference or disturbance from a third party and allows the author to enjoy the ownership of the work, be it monetization, commercialization, sale, marketing, etc.

The idea that property is fundamentally about the power to exclude is rational. If we begin with the right to exclude, we can then define other aspects of property by clarifying what this exclusion entails. However, this power to exclude isn't something that can just be inferred from other property rights—it stands on its own as a core principle. By thinking through this, it becomes clear that the right to exclude is at the heart of how we understand property.10

The use shall be Transformative.

Oxford University Press v. Narendra Publishing House

The four-factor test used by American courts highlights the importance of how the work is transformed. In cases like this, courts should assess whether the allegedly infringing work serves a different purpose from the original or merely replicates its function. For a work to be considered transformative, it needs to offer something new and not just be a superficial change that keeps the same core elements. This criterion is key in determining fair use because it connects to the other three factors in the test.

If the work is truly transformative, the extent of copying—whether partial or complete—might not be as significant. A transformative work is less likely to compete directly with the original, meaning it may not negatively affect the original work’s market share. In this case, the court compared both the plaintiff’s textbooks and the defendant’s materials, and several important points emerged:

1. The theory sections of the plaintiff’s textbooks were not copied.

2. The plaintiff’s books do not provide step-by-step solutions to the problems in each chapter; instead, they encourage students to think critically and solve the problems using the provided

Material and theories.3. The defendant’s copies do not include theoretical explanations for problem-solving.

4. The defendant’s materials do contain questions and answers taken from the plaintiff’s textbooks.

5. The defendant’s works offer a detailed, step-by-step approach to solving the problems.

These distinctions are critical in assessing whether the defendant's work is transformative and thus qualifies for fair use. The plaintiffs' materials do not provide a step-by-step guide for solving problems, whereas the defendants' books do. On the other hand, the defendants' books lack the theoretical and explanatory content that the plaintiffs' textbooks offer. The defendants use the questions and answers from the plaintiffs' materials to illustrate their problem-solving process but with a different purpose in mind. Their books are designed for students who struggle with the subject.

The defendants use the questions from the plaintiffs' textbooks distinctly, and their books focus more on demonstrating solutions rather than explaining the theory behind them. Because of this transformative approach, the defendants' works can be considered a "review" under Section 52 (1) (a) (ii) of the Act. The term "review" should be understood in its specific context. The plaintiff's copyright claim is based on their work being classified as "literary." Therefore, any review or commentary on a mathematical work, like the defendants' materials, should be evaluated within this context as well.11

Protection of Ideas

In RG Anand v Deluxe Films, the Supreme Court made it clear that copyright laws do not protect ideas themselves, but only the specific way those ideas are expressed. The Court also set a standard for identifying "colorable imitation," or when something is an infringement.

‘One of the surest and the safest tests 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.’12

It was further held that:

‘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.’

13

Exhaustive and inflexible nature of fair dealing exceptions

In Tekla Corp v Survo Ghosh, the Delhi High Court rejected the fair use defense in a software infringement case. The Court emphasized that Section 52 of the Copyright Act is both "exhaustive" and "inflexible" regarding the exceptions to copyright infringement, meaning that courts cannot go beyond the limits set by the law. Additionally, the Court ruled that if a software copyright owner imposes restrictions that violate Section 52, even though a contract, those restrictions are not legally enforceable.14

Fair dealing in the Music Industry

In Super Cassettes Industries Ltd v Hamar Television Network Pvt Ltd, the defendant broadcasted a segment of the plaintiff's copyrighted music, leading the plaintiff to file a lawsuit for copyright infringement and seek an injunction. The defendant argued that their use fell under the fair dealing provisions of Section 52 of the Copyright Act of 1957. The court observed that:

‘If the utilization of a copyrighted work does not meet the criteria outlined in Section 52, it will be considered an infringement and will not be exempted as an exception. If a particular use does not align with the conditions specified in this section, it will be deemed an infringement, subject to legal consequences and remedies available to the copyright owner.’15

The Court ruled that the defendant's use of the plaintiff's music did not qualify as fair dealing. Consequently, the defendant was prohibited from using the plaintiff's copyrighted material.16

Fair dealing in Judgements

Court judgments, no matter how well-written, are not protected by copyright laws. This was confirmed by the Supreme Court of India in Eastern Book Company v Modak, where it ruled that using or reproducing parts of judgments is considered fair use and does not amount to copyright infringement. However, the Court also clarified that headnotes created by a publishing house are protected by copyright, meaning they cannot be freely copied.17

Fair Dealing and new technologies

The Sony Corp. of America v. Universal City Studios case is a landmark decision that applies fair use to modern technology, highlighting the challenges of determining its scope in this area. In the case involving the Betamax videocassette recorder, the U.S. Supreme Court applied the "staple article of commerce" standard from patent law. This standard means that selling a product capable of copying copyrighted works doesn't count as contributory infringement if the product is commonly used for legitimate, non-infringing purposes or has significant lawful uses.

The Court recognized the concept of "time-shifting"—recording TV shows to watch later—as a fair use of Betamax for non-infringing purposes. There was little evidence to suggest that this practice would harm the commercial interests of copyright holders. The Court noted that time-shifting is a non-commercial, nonprofit activity and even suggested that it could benefit copyright holders by expanding their audience to people who couldn’t watch a show when it first aired.

The Court ruled that recording TV shows for personal use at home constitutes fair use, as long as it doesn’t negatively impact the market or value of the original work. This decision reflects the idea that Congress has the power and responsibility to promote technological advances that affect the copyright market.

In essence, developing a technology that could potentially be used for copyright infringement isn’t considered infringement as long as it also has significant non-infringing uses. This holds even if the developer is aware or should be aware that the technology could be used for illegal copying. However, this principle—the "staple article of commerce doctrine"—doesn’t apply to new technologies that are primarily used for commercial copying, unlicensed reproduction, or distributing copyrighted works to unauthorized people, especially if such uses harm or could harm the copyright holder’s market interests.18 19

Public Interest and Fair Use

The defenses of public interest and fair dealing are different and are evaluated separately. Fair dealing is a legal defense specifically for copyright infringement, while public interest is a broader defense rooted in common law, not limited to copyright issues. The public interest defense allows for the release of information that may breach national security, break the law, or expose serious issues like fraud, statutory violations, or public harm, including health risks and similar concerns. In such cases, public interest can outweigh private rights, like copyright, which are also legally protected.

On the other hand, fair dealing depends on the specific circumstances and overall impression of the case. Factors considered include the proportion of the quoted material to the commentary, whether the work is unpublished, and whether it has been circulated but not made publicly available.20

Conclusion

The essence of Fair dealing is aptly captured in section 52 of the Copyright Act of 1957 which perfectly captures and concludes this paper. This section allows the use of certain

Copyrighted works under specific conditions, including guidelines for fair dealing. Although the term "fair dealing" isn't defined in the law, it refers to the use of copyrighted material in ways that don't violate the rights of the copyright holder. It's not an absolute right but is limited by legal conditions and purposes. In some parts of India, this concept is also referred to as "fair use." Essentially, it lets individuals use a copyrighted work to a certain extent without needing the owner's permission, but defining what qualifies as fair dealing can be complex.

To determine whether an action qualifies as fair dealing, a four-factor test is often used. This legal evaluation considers the following key aspects:

1. The purpose and nature of the use,

2. The type of copyrighted work,

3. The amount of the work that was copied, and

4. The potential impact on the market for the original work.

Certain activities are specifically listed in the law as exceptions to copyright infringement. These exceptions provide a legal basis for using copyrighted content without the need for explicit permission from the copyright owner. Examples include using material for research or private study, providing critique or review, reporting on current events, reproducing content for educational purposes, or making backup copies of computer programs for personal use. These exceptions help define the boundaries of fair dealing within the legal framework.21 22

REFERENCES

1 N S Nappinai, ‘Fairuse and copyright’, Lexis Nexis <https://advance.lexis.com/api/document?id=urn:contentItem:5WCN-X931-FBN1-241H-00000-00&idtype=PID &context=1523890 > accessed 5 September 2024

2 Leval PN, ‘Towards a fair use standard’, (1990) 103 Harv. L. Rev. 412-417
3 Gyles v. Wilcox (1740) 26 ER 489

4 Matthew Sag, ‘The pre-history of fair use: English copyright from 1710 to 1828’, BERKLEY LAW < https://www.law.berkeley.edu/files/Sag.pdf> accessed 4 September 2024

5 Falson v. Marsh (1841) 17 U.S.C.

6 ibid

7 United States Code 17, s. 107
8 Hubbard v Vosper (1972) 2 Q.B. 84

9ibid

10 ibid 4
11 Oxford University Press v. Narendra Publishing House (2008) (105) DRJ 482

12 RG Anand v Deluxe Films (1978) 4 SCC 118

13 ibid
14 Tekla Corp v Survo Ghosh (2014) AIR Del 121

15 Super Cassettes Industries Ltd v Hamar Television Network Pvt Ltd (2011) (45) PTC 70 (Del)

16 ibid

17 Eastern Book Company v Modak (2008) 1 SCC
18 J. Star, ‘Conceptual Issues in Fair Use and File Sharing under Copyright Regime - A Glimpse’ (2014) 7 MLJ, 28

19 Sony Corp. of America v. Universal City Studios (1984) 464 U.S. 417

20 ‘Fair use and public interest’, LEXIS NEXIS < https://advance.lexis.com/api/document?id=urn:contentItem:5WGF-68S1-JT42-S4RW-00000-00&idtype=PID& context=1523890 > accessed on 5 September 2024

21 The Copyright Act 1957, s.52

22Shristi Choudhary, ‘Copyright Law in India: An Analysis of the Copyright Act, 1957’, SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4694983> accessed on 5 September 2024