Introduction
The utilitarian theory, propounded by Bentham, suggests that whatever provides the greatest happiness in the greatest numbers is the right course of action. Thus, Utilitarian theorists, while applying this theory in the realm of intellectual property, often advocate for artists to be provided with some sort of incentive to achieve the greatest happiness in the greatest number while creating their work. This incentive can be in the form of copyright protection that can be provided to an author over their original work.
The rationale behind this argument is that only when an author’s original work remains protected and safeguarded do they have the motivation to produce more innovative and unique creations. Without such protection, works are vulnerable to unauthorized reproduction as the cost of copying a work is lesser than the cost of creating an original work. This would, in turn, lead to the underproduction of work, depriving the society of remarkable works that could have been produced. This also aligns with incentive theory, which is a subset of Utilitarian theory.
Although, on one hand, it is important to safeguard the rights of an author, on the other hand, it is equally important that the work of an author, at some point in time, reaches the public so that the benefit of information and scientific knowledge could reach the doorstep of mankind. To maintain this equilibrium, the law needs to be drafted in such a manner that not only does it provide the authors with protection over their work and provides remedies against infringement of their work, but it also allows the work to be used by the public in a fair manner for the advancement of knowledge. This is where the concepts of fair use and fair dealing come into the picture.
Copyright Protection in India
A Copyright subsists over the work of an author, and in India, copyright is governed under the provisions of the Copyright Act of 1957. Section 13 of the act provides for works in which copyright subsists, and sub-section (1) provides that Copyright shall subsist throughout India in the following classes of work, namely : –
- Original literary, dramatic, musical & artistic works;
- Cinematograph films
- Sound Recording[1]
Section 2 (d) also provides the definition of an ‘author’ under this act to include :
- in relation to a literary or dramatic work, the author of the work;
- in relation to a musical work, the composer;
- in relation to an artistic work other than a photograph, the artist;
- in relation to a photograph, the person taking the photograph;
- in relation to a cinematograph film or sound recording, the producer; and
- in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;[2]
Thus, for every author who creates an original work, Copyright acts as a weapon in safeguarding their work and their rights over that work. In that respect, Section 51 provides for when a copyright is infringed.
What is Fair Use or Fair Dealing ?
The concept of fair use or fair dealing is like an exception to the provisions of any copyright infringement which allows reproduction, copying, or use of an author’s work in certain situations. This means that if a person uses an author’s work as per the conditions provided under the fair use or fair dealing provision, it would not amount to copyright infringement.
As per Section 13 of the TRIPS Agreement – “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.” Consequently, all countries that are members of the World Trade Organization (WTO) are required to adhere to the TRIPS and Berne Convention regulations concerning copyright. As a result, these provisions are typically reflected in their domestic copyright legislation.[3]
The concept of Fair Dealing in India
India has adopted the concept of fair dealing under Section 52 of the act, which provides for certain acts that will not amount to infringement of copyright and is, in a way, an exception to Section 51 of the act.
Section 52(1)(a) specifically uses the word ‘fair dealing’ to provide that if a work is being used for private or personal use, including research; or for criticism or review whether of that or any other work; or for reporting of current events and affair that it would not amount to copyright infringement.[4] The rest of the sub-sections of Section 52 go on to provide further exemptions wherein actions such as reproduction of any work for judicial proceedings[5], or by a teacher or a pupil during the course of instruction[6], or for performance of any activity in an educational institution (including literary, dramatic or musical work)[7], or for storing of work in any medium by a non-commercial public library[8] etc. is allowed and will not infringe upon the rights of any author.
The Kerala High Court in the case of Civic Chandran and Ors. vs. C. Ammini Amma and Ors.(1996) provided certain factors that should be taken into consideration while checking whether the reproduction amounts to copyright infringement or not, namely:-
- “The quantum and value of the matter taken in relation to the comments or criticism;
- The purpose for which it is taken;
- And the likelihood of competition between the two works” [9]
In another landmark case of the University of Oxford and Ors. vs. Rameshwari Photocopy Services and Ors(2016)[10], the concept of Fair dealing was discussed. In 2012, Oxford, Cambridge, and Taylor Francis publishers initiated a legal case against Rameshwari Photocopy Services, located on the Delhi University campus and Delhi University itself. The publishers contended that the creation of course packs, which involved photocopying copyrighted materials, amounted to a violation of the exclusive copyrights held by the authors and publishers. These course packs comprised excerpts from academic publications, including those from the petitioners, which were prescribed as part of Delhi University’s official syllabus. The University compiled a master copy from the original books it had purchased, and photocopies of this master copy were distributed to students by the photocopy shop. The defendants argued that this fell under the exception of Fair dealing under Section 52(1)(i) of the Copyright Act, 1957.[11]
The court here held that “ The basic purpose of Section 52 is to protect the freedom of expression under Article 19(1) of the Constitution of India so that research, private study, criticism or review or reporting of current events could be protected.” The court here also highlighted that “ “the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’. In other words, the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education.”[12]
Thus, the importance of the concept of Fair dealing has been upheld time and again by the courts through various precedents.
The concept of Fair Use in the US
A similar concept of fair dealing is termed ‘Fair Use’ in the US. In fact, the concept originated in the US itself and can be traced back to the 19th Century. The case of Folsom v. Marsh [13]is considered to be the first case where this concept was used, and a four-factor test was provided to determine the applicability of Fair use in copyright infringement cases.[14] This includes :
- Purpose and Character of the Use
- Nature of the Copyrighted Work
- Amount of Copyrighted Work Used
- Effect of the Use on Potential Market for the Work
These four factors were later codified and to took the form of Section 107 of the U.S Copyright Act of 1976.
[1] Copyright Act, 1957, S. 13
[2] Copyright Act, 1957, S. 2(d)
[3] Jagdish Wamanrao Khobragade and Anson C J, Fair Use Provisions under the Indian Copyright Act: Awareness Among Librarians of Colleges and Universities in Maharashtra, Journal of Intellectual Property Rights, Vol 27, January 2022, pp 7-15
[4] Copyright Act, 1957, S. 52(1)(a)
[5] Copyright Act, 1957, S. 52(1)(d)
[6] Copyright Act, 1957, S. 52(1)(i)
[7] Copyright Act, 1957, S. 52(1)(j)
[8] Copyright Act, 1957, S. 52(1)(n)
[9] MANU/KE/0675/1996
[10] MANU/DE/2497/2016
[11] Kartik Chawla, Oxford University v. Rameshwari Photocopy Services – Reshaping the Copyright Discourse, The Indian Journal of Law and Technology, Vol. 13, 2017, Pg 66
[12] ibid
[13] 9. F. Cas. 342 (C.C.D. Mass. 1841)
[14] Mihir Wagh, Fair dealings and Fair use: Critically analysing the copyright exemption doctrines in place in India and the United States, Manupatra Articles, Aug 29, 2022