CONCEPT OF FAIR USE IN INDIA

INTRODUCTION

Before using copyrighted content, the most important thing to consider is whether your use is fair. It is a legal doctrine which permits a person to use any work which is protected under the Act with limited usage of such work so as to maintain the sanctity and originality of such work as well as the registered proprietor of the work. In India, Section 52 of the Copyright Act, of 1957 deals with ‘fair dealing’ which works in consonance with the doctrine of ‘fair use’.

Copyright law presents a balance between the interests and rights of the author and that of the public in protecting the public domain, or to claim the copyright and protect it under the copyright statute. There is no copyright in facts per se as facts are not created nor have they originated with the author of any work which embodies these facts. The issue of copyright is closely connected to that of commercial viability, and commercial consequences and implications.

INTERPRETATION OF SECTION 52: DELHI HC

The Delhi High Court in the case of Super Cassettes Industries Limited v. Chintamani Rao, observed the following elements of fair usage and fair dealing:

“82.

(i) It is neither possible nor advisable to define the exact contours of fair dealing;

(ii) It is a question of fact, degree, and at the end of the day overall impression carried by the court;

(iii) In ascertaining whether extracts taken from copyrighted work have been put to fair use, the extent and the length of the extracts may be relevant. Long extracts followed by short comments may in certain circumstances be unfair, while short extracts followed by long comments may be fair. In certain circumstances even small extracts, which are taken, on regular basis may point to unfair use of the copyrighted work.

(iv) The right to make fair use or to deal fairly with the copyrighted work includes the right to criticize not only the style, but also as the underlying doctrine or philosophy of the copyrighted work. In this regard criticism could be both “strong” and “unbalanced”. Such criticism by itself will not result in forfeiture of the defence of fair dealing. Malicious and unjustified criticism may give to the aggrieved party a cause for instituting an action for defamation but it would certainly not confer a right founded in copyright.

(v) In ascertaining as to what would constitute reportage of “current events” or would fall within the ambit of “criticism” or “review”, Courts ought to adopt a liberal approach;

(vi) In discerning as to whether a person has made fair use of copyrighted work, the standard employed ought to be that of a “fair minded” and “honest person”. In the case of musical works the test would be that of a “lay hearer”;

(vii) While examining the defence of fair dealing, the length and the extent of the copyrighted work which is made use of, as indicated in clause 3 above, is important, however, it cannot be reduced to just a quantitative test without having regard to the qualitative aspect. In other words, enquiry ought to be made as to whether the impugned extract forms an essential part of the work of the person in whom inheres the copyright. This may be particularly true in the case of musical works where a few notes may make all the difference;

(viii) Even though copyrighted work may contain confidential information, the courts would desist from injuncting the use of such work if it is in public weal. Though there is a difference between a breach of confidence as against infringement of copyright, the Court would not grant an injunction in favour of the person in whom inheres the copyright if it is contrary to public policy, that is, is:

(a) immoral;

(b) scandalous;

(c) contrary to family life;

(d) injurious to public life, public health, safety or, is inimical to administration of justice; and

(e) incites an action which endangers (c) and (d) above.

(ix) The principle of freedom of expression will protect both information and ideas. Freedom of expression includes the right to publish and receive information. Public interest may in certain circumstances be so overwhelming that courts would not refrain from injuncting use of even “leaked information” or even the right to use the “very words” in which the aggrieved person has copyright, as at times, public interest may demand the use of the “very words” to convey the message to public at large. While the courts may desist from granting injunction based on the principle of freedom of expression, this would, however, not necessarily protect the infringer in an action instituted on behalf of the person in whom the copyright vests for damages and claim for an account of profits;

(x) Public interest and what the interests the public need not be the same;

(xi) The motive of the user shall play an important role in assessing as to whether injunction ought to be granted;

(xii) Commercial use of copyrighted work cannot simplicitor make it unfair; and

(xiii) Lastly, “transformative use” may be deemed in certain situations as fair use of copyrighted work.”

FAIR-USE INTERPRETATION: SUPREME COURT

The Supreme Court observed in the case of R.G. Anand v. Deluxe Films:

“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.”

Further, in the same case, it was held that:

“33. The doctrine of fair use then, legitimizes the reproduction of a copyrightable work. Coupled with a limited copyright term, it guarantees not only a public pool of ideas and information but also a vibrant public domain in expression, from which an individual can draw as well as replenish. Fair use provisions, then must be interpreted so as to strike a balance between the exclusive rights granted to the copyright holder, and the often competing interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativity, and the same time must discourage blatant plagiarism. It, therefore, must receive a liberal construction in harmony with the objectives of copyright law. Section 52 of the Act only details the broad heads, use under which would not amount to infringement. Resort, must, therefore be made to the principles enunciated by the courts to identify fair use.

34. One crucial test, of the four-factor test, as developed by the American courts, is the transformative character of the use. The Courts should in cases like the present ask whether the purpose served by the subsequent (or infringing) work is substantially different (or is the same) from the purpose served by the prior work. The subsequent work must be different in character; it must not be a mere substitute, in that, it not sufficient that only superficial changes are made, the basic character remaining the same, to be called transformative. This determination, according to the Court is closely knit with the other three factors, and therefore, central to the determination of fair use. If the work is transformative, then it might not matter whether the copying is whole or substantial. Again, if it is transformative, it may not act as a market substitute and consequently, will not affect the market share of the prior work”.”

ANALYSIS & CONCLUSION

The Delhi High Court has given the judgement in the year 2011 but the same has not been substantiated by the Supreme Court whereas it has given its judgement in the year 1978 which talks about some creativity. But this limits the scope of the doctrine of fair use. The Delhi HC has given an inclusive as well as exhaustive list for fair use and has given a bigger picture of the said doctrine. It is apt to mention that in the case of LIC v. Professor Manubhai D. Shah, it was held that Every free citizen has an undoubted right to lay what sentiments he pleases before the public; to forbid this, except to the extent permitted by Article 19(2), would be an inroad on his freedom. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest. It is manifest from Article 19(2) that the right conferred by Article 19(1)(a) to subject to the imposition of reasonable restrictions in the interest of, amongst others, public order, decency or morality or in relation to defamation or incitement to an offence. It is, therefore, obvious that subject to reasonable restrictions placed under Article 19(2) a citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a).

Hence, in the light of Article 19(1)(a), there is a need to expand the usage of the doctrine of fair use and there is a need for the apex court to look into the same as per the needs of the changing time.