HOW FAR IS A FAIR USE DEFENCE IN COPYRIGHT?

HOW FAR IS A FAIR USE DEFENCE IN COPYRIGHT?

INTRODUCTION

Fair use, when used in legal terms relating to Intellectual Property Rights, means using or copying a copyrighted material within a limited scope and without being the first one to get its rights or acquire permission from the rights-holder prior to use such copyrighted material. Fair use is a doctrine first emerged in the case of Folsom vs Marsh in Anglo- American law in 19^th century as a method to provide flexibility and eliminate rigidity from the copyrights law, later it was adopted and promoted in the USA in copyright act of 1976 with the intention to create a balance between the interest of copyright holder and public interest. It is generally used as a defence in cases of “Transformative use” such as criticizing a work, creating a parody, giving an opinion or commenting on a work etc. the law allows to use any work for such purposes. In other words, it is a defence against any copyright infringement claim by the rightful copyright holder of the material so used. Deciding whether the particular use of the material is categorized under the defence of fair use or is it to be treated as a copyright infringement is completely at the discretion of the courts.

FAIR USE AS A DEFENCE IN COPYRIGHTS LAW

To decide whether a case is to be considered under the defence of fair use, the courts are given four guidelines to follow according to which it can be decided if the case is to be treated under the defence of fair use or it should be treated as a copyrights infringement. The four guidelines which courts have to take into consideration are again at the discretion of the courts because of which courts are free to adapt to any guideline depending upon the case to case situations which means that the courts have the freedom to for determination of fair use defence cases. The four guidelines for determining a fair use case are:

1. Nature of the work / copyrighted material concerned in the case;

2. Purpose of use of such material;

3. The amount of portion taken from the concerned material;

4. The effect of use in the market.

The nature of work copied is related to the fact that copying is for the public good so if the material copied is from a factual source such as biographies, encyclopaedia, material from some published work etc then it makes the case stronger and more logical than if a material art of fiction or imagination is copied. The scope of fair use is wider when factual information is copied and that too from a published source. as an author has the right to control the first public appearance of his/ her work so copying published material gives more scope in cases of fair use. Purpose of creating a parody, giving an opinion or commenting on some work, news reporting, criticising, purposes such as research work, scholarship and other educational purpose are allowed by the as legal work and hence any such case regarding the same is granted defence of fair use. The amount of work taken is a key deciding factor of the case the saying “the less the better” is very well presumed in the courts for determining a case of fair use. The courts follow the doctrine of “de minimis” use which means “the minimal use”. By the effect of use in the market the court looks into matters such as the user must not deprive the copyright owner’s income or undermine any new market for the right holder. The guidelines set by the TRIPS Agreement say that the user should not conflict or be contrary to the limits of normal exploitation of the work and must not prejudice unreasonably the legitimate interests of the original right holder. Fair use should not be considered as a license to copy anyone’s work but it is a privilege for the person copying any material to escape from any legal proceeding in the case of copyright infringement. The doctrine of fair use has a fundamental belief according to which the doctrine works on the criteria that “all copying should not be banned”. This doctrine is majorly followed in-laws of countries like USA, UK and INDIA. The doctrine now stands valid according to Section 107 of the Copyrights Law, 1976 of Section 29 and Section 30 of the Copyrights, Design and Copyrights act, 1988 of UK and Section 52 of Copyrights (amended) act, 2012 of INDIA.

Another concept related to the rine of fair use is “Fair Dealing”. It is permitted for a private purpose of research, commenting, criticising, review etc. it is important to note that fair dealing and fair use are just synonyms of the same concept but with different scopes and implementations, there is no major difference between them just the laws made in different countries by their name but the concept is similar of both the doctrines. Many people believe that unauthorized copying of a copyrighted work is permitted by merely acknowledging the source and giving them credit, which is not the actual picture. The acknowledgement may be considered as a defence of fair use but it can be used as protection from copyright infringement damages. So, the safest way to use any material is to ask for prior permission from the right holder and only after getting the permission using such material becomes safe. Fair use in some ways is not good for the right holder but there is a very thin line of difference between infringement and fair use making it completely at the option of the courts to decide fates of the parties involved. But the laws already restrict the amount of material to be copied, and according to the legal interpretation, is very clear that only insubstantial portion of the limit amount of material from the original work comes with the permissible limit of fair use. It can be concluded that the guidelines set by the law to determine the case of fair use differ from case to case and such facts should be given more priority by the courts as they become the key deciding factors of the case.

CASE STUDY: -

India TV Independent News Services Pvt. Ltd. vs Yashraj Films Pvt. Ltd:

India TV broadcasted a show on its channel documenting the life of the singers where the singers were shown to perform their own song however, while such performance was being shown, some lips of a movie scene were displayed in the background. The plaintiff, that is, Yashraj Films Private Limited claimed that such a scene of the movie in the background amounts to infringement of its Copyright as they were the rightful owner of the scenes of the movie having a copyright on the movie. India TV took the defence of fair dealing under Section 52. The Delhi Court dismissed the defence of fair dealing and restrained the defendants from the production, distribution and broadcasting or in any way exploiting any scene of the film, sound recording or part thereof which is owned by the Plaintiff. After a few years of battle, the benches set aside the order passed by the Single Judge and uplifted the restrictions so imposed. But the Appellants were still restricted from using any cinematograph film without the permission of the rightful copyright holder. It was later through the Copyright (Amendment) Act, 2012 that musical recordings and cinematograph films were then brought with the scope of fair dealing.

BY-

GAURAV GUPTA