The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
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Fair use allows an individual to reuse copyright-protected material without getting permission from the copyright holder for a limited and transformative purpose. It will include a comment, making a parody, criticize, use for educational or research purposes of the copyright work will not treated as copyright infringement. Fair use is an exception and defense used for the claim against copyright infringement. If an individual use of copyrighted work qualifies as “fair use” he cannot be held liable for copyright infringement.
Fair use doctrine was a judicially create doctrine which owes its origins to the famous case of Folsom v. Marsh[i], where Justice Story observed “we must often, in deciding questions of this sort, look to the nature and objects of the selection made, the quantity and value of the material used and the degree to which the use may prejudice the same or diminish the profits or supersede the objects of the original work.[ii]”
The factors that are taken into consideration for determining if it is fair use or not are the purpose of the use, the nature of the work, the amount of the portion that has been taken, and the effect of the use on the original work. [iii] These are only general guidelines but there is no hard and fast rule it depends upon the case-to-case basis. A judge has the freedom to determine and interpret the fair use defense in a particular case using his intellect.
In India fair use is refer to as “Fair dealing” which dealt with under section 52 of the Copyright Act, 1957. The following not consider as copyright infringement (a) Fair dealing with any work, not a computer programme, for the purpose of-
Fair dealing of copyright work allows an individual to use the original copyrighted work with some value of addition or transformation to it. The transformation in the original work shall not lead to the violation of the copyrighted work. The use can be considered as “fair dealing” if the use is of some portion of the work, or for some education or research work and which does not harm the ability of the owner of the copyrighted work.
In the landmark case of M/s. Blackwood & Sons Ltd. v. A.N. [v]Parasuraman the court explained its view on fair dealing as an exception for copyright infringement. The court said that “in order to constitute a fair dealing there must be no intention on the part of the alleged infringer, to compete with the copyright holder of the work and to derive profits from such competition and also, the motive of the alleged infringer in dealing with the work must not be improper.[vi]’ The user should not try to make improper use of the copyrighted work and should not try to make that original work of his own.
In the case of Civic Chandran v. Ammini Amma[vii], the term “fair dealing” was not defined under the Copyright Act but section 52 1(a) and (b) deals with the work that can be considered as fair dealing. The court further elaborate stating that re-production of whole work cannot consider as fair dealing but only some portion or quotation can be used for creating a work. Further, the court held that “In such cases, a court has to take into consideration (1) the quantum and value of the matter taken concerning to the comments or criticism; (2) the purpose for which it is taken; and (3) the likelihood of competition between the two works[viii]” Here, the court held that the parody will not be considered as copyright infringement as long as it has not been misused.
In the case of India TV Independent News Services Pvt. Ltd. vs Yashraj Films Pvt. Ltd [ix]the plaintiff Yashraj Films filed the case against defendants India TV for using their clips of the movies shown in the background while singers were performing their songs on the show. The plaintiff believe that the use of the scenes from the film. That are show in the background amounts to copyright infringement. On the other, defendants believe that their use comes under the scope of “fair dealing”. And took the defense under section 52 of the copyright act. In this case, Delhi High Court dismissed the defendant’s defense of fair dealing and restrained them from further production or broadcasting of any part of cinematographic films that are a part of the plaintiff’s label.
This battle went for the years, the High court bench set aside the previous order. Which restrained the defendants and uplifted the restrictions. Here, the court said the defendant is not free to broadcast. Any part of cinematographic films that is own by the plaintiff but if he has permission he can proceed. This case has become one of the revolutionary cases which has evolved the conventional approach of court on fair dealing considering the needs of the society.
In the case of The Chancellor, Masters and Scholars of the University of Oxford v Rameshwari Photocopy Services [x]the plaintiff was Oxford University Press, Cambridge University Press, and its Indian affiliate, Taylor & Francis and its Indian affiliate filed a case against Rameshwari Photocopy Services and via Delhi School of Economics, Delhi University for copyright infringement as they were photocopying their publications and distributing to students. They were making course packs by photocopying a certain portion of the book and no the whole book.
The court said that “making course packs for suggested reading for students by photocopying portions of various prescribed reference books does not violate the copyright of the publishers.” Aggrieve by the said order appeal was file before the division bench of Delhi High Court. Which set aside the order and said that ‘fair use’ shall determine on the touchstone of ‘extent justify by purpose’. The matter was in consideration and whether the right to photocopy books for the educational purposes. Will be consider as fair use, but the publishers withdrew their case for any further proceedings.[xi] In every case, the court needs to thoroughly consider all the aspects before considering the work as fair dealing
The scope of fair dealing as an exception is vast and is interpretative. In nature which depends on case to case basis and how the content has been used. Section 52 of the Copyright Act, 1957 provides the list of the work. Which will be consider as “fair dealing” which also has a way beyond the list. The amendment in 2012 in the Copyright Act has carved the way for the concept of fair dealing. In music and cinematographic films. The whole idea behind keeping “fair dealing” as an exception for copyright infringement is to encourage creativity and growth.
[i] 9 F Cas 342 (1841)
[ii] William Z., Nasri, Crisis in Copyright (29, Allen Kent Ed., Marcel Dekker, Inc., 1976).
[iii] Richard Stim, Copyright and Fair use, Stanford University Libraries (2016)
[iv] Sec 52, The Copyright Act, 1957
[v] AIR 1959 Mad. 410
[vi] Id. At 5
[vii] 1996 PTC 670 (Ker HC)
[viii] Id. At 7
[ix] 2013 (53) PTC 586 (Del)
[x] 2016(68)PTC386 (Del)
[xi] The Chancellor, Masters & Scholars of the University of Oxford and Ors v. Rameshwari Photocopy Services and Ors. 2017(69)PTC123(Del)
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