By: Abhishek Varshney, LLM, IFTM University, Moradabad
Introduction
Copyright law is an essential tool which allows original creators of a work, or the possessor of the copyright the ability to circulate their work in a manner they see beneficial to them. However, there exist some limitations on the copyright of the holders, which exist to balance the interests of the holders and the people at large.1 Often, such doctrines (fair use in the United States and fair dealings in India) exist to bypass the need to get permission of the holders of the copyright, or to use material that is under copyright in contexts which would serve the public good, such as research or education. In different nations, different doctrines, with varying requirements for such reproduction of copyrighted works are in place. This article attempts to take a look at the Fair Use doctrine of the United States, and the Fair Dealings doctrine of India, which is also found in other Commonwealth nations.
India's Fair Dealings doctrine
The Indian Copyright Act of 1957 (ICA) allows certain copyrighted material to be reproduced without the permission of the original copyright holder. The provisions for fair dealings have been mentioned in Section 52 (1a)2 of the ICA, while the rest of Section 52 provides a list of exemptions to infringement. This provision carves out exceptions for certain activities, such as personal research, education (Section 52 1I), and news reporting among other activities. The intention of this provision was to help inculcate scientific growth, by helping the spread of information for research.
Unlike fair use, only if such dealing is permitted by the terms of the applicable (jurisdictional) copyright laws is fair dealing of a copyrighted work not deemed infringement. Essentially, this means that in jurisdictions with fair dealing doctrines, if the material that has been copyrighted is being used, and an exemption for the reasoning of its use is not in the copyright laws of said jurisdiction, irrespective of why or where the material is used.
The concept of fair dealings would be explained by the Kerala High Court in Civic Chandran v. Ammini Amma,3 where the Court held that: "it may be reasonable to hold that the re-production of the whole or a substantial portion of it as such will not normally be permitted and only extracts or quotations from the work will alone be permitted even as fair dealing". The Court, in the same case, would bring forth certain factors to consider if the reproduction constituted infringement. These were:
1. "The quantum and value of the matter taken in relation to the comments or criticism;
2. The purpose for which it is taken;
3. And the likelihood of competition between the two works"
Thus, when attempting to identify if a work fell under fair dealings, the Indian courts would have to take these factors in to consideration.
The question of fair dealings has come up in discourse more lately4, with the three publishing giants, namely, American Chemical Society, Elsevier, and Wiley attempting to prevent Sci-hub, a website that helps access academic and scientific papers, from publishing them as they claim Sci-hub violates their copyright. Sci-hub claims it us protected under fair dealings and Section 52 (1I) of ICA, as they are helping in education, and also by helping in the progress of science.
While it is to be seen in whose favour that case is decided in, Indian courts have generally held that use of protected material for the purposes of education is not a violation of copyright. In the DU photocopy5 case (Masters & Scholars of University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court held that the reproduction of copyrighted material such as course books used in academia don't require a license from their publishers in order to be distributed. Further, in Wiley Eastern Ltd. v. Indian Institute Of Management6, the Delhi High Court opined 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."
Thus, when it comes to cases of research and education, in India, a liberal reading of the provisions of fair dealings is used, so as to not stifle scientific progress in the nation. While the outcome of the trial of the Sci-hub case has not come out, it will definitely play a huge part in the interpretation of fair dealings, and how knowledge can be accessed in India.
That being said, courts have generally taken a more stringent approach when it comes to the application of fair dealings laws in other cases, such as when the argument that the use of copyrighted music in small parts during an entertainment television show would not be considered fair dealings under the provision of porting current events (India TV Independent News Services Pvt. Ltd. v. Yash Raj Films Pvt. Ltd.7)
The Fair Use doctrine of the United States
Fair use is a doctrine, in place in the United States, which allows for the reproduction of copyright protected work to a certain degree (often limited), in order to protect public interest, while balancing the rights of the holders. Commentaries, search engines, critique, satire, news broadcasting, research and education, and scholarly works are all examples of content which is, in general, protected under the fair use doctrine of US copyright law.8
The concept of fair use traces its roots to the 19th century, with the case of Folsom v. Marsh9 generally considered to be the case where the concept of fair use was first laid down by Justice Joseph Story. In Folsom, in an attempt to create a distinct two-volume work of his own, the respondent had reproduced 353 pages from the complainant's biography of George Washington. Charles Folsom, the publisher, filled suit for "infringement of the copyright." The defendant stated that even if the papers were copyrightable, they belonged to the public because they were works of the President and that their work could be considered fair because it resulted in the formation of an essentially new work.
However, the case would be decided in favour of Folsom, with the Court accepting that there was indeed an infringement of copyright here. In this case, Justice Story would also set the foundations for the four-factor test, in use to this day. To quote the judgement, "In short, we must often... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work". These four factors would help to decide if a given work comes under fair use or not. The factor factors are:
1. Purpose and Character of the Use
2. Nature of the Copyrighted Work
3. Amount of Copyrighted Work Used
4. Effect of the Use on Potential Market for the Work
While each of the four factors plays an important role in determining if the work comes under fair use or not, it is the first and fourth factors that are especially important. This is because the primary focus of the first fair use criterion is the purpose for which the reproduced content is being used. A judge is more likely to find that the if defendant's use is non-commercial, academic, scientific, or historical, then it is indeed fair use, because copyright law supports promoting scholarship, research, teaching, and commentary. Similarly, for the fourth criterion, the impact of use on the prospective market for the duplicated work is considered while judging if a work falls under fair use or not. This factor should be taken into account in order to find a balance between the public benefit of allowing the use and the copyright owner's potential financial advantage from denying it.
The four factors would be codified into law in the Copyright Act of 1976,10 under Section 107.
In the landmark case of Sony Corp. of America v. Universal City Studios, Inc.11, the US Supreme Court would rule that making personal recordings of entire television programmes for time-shifting purposes is not an infringement of copyright, but rather qualifies as fair usage. The Court further opined that the makers of home movie recording equipment, such as Betamax and other VCRs are not accountable for violating copyright.
In another landmark case of Campbell v. Acuff-Rose Music, Inc12., the Supreme Court would rule that the first criteria is much more likely to allow the fair usage of material when the use's intent is transformative. Transformative use is a form of fair use that grows on a work protected by copyright in a different way or for a different goal from the original and doesn't violate the copyright of the work's owner.
Finally, in eBay Inc. v. MercExchange, L.L.C13, the Court would define the conditions that a plaintiff would have to prove in order to justify an injunction against the supposed infringed upon material, laying forth a test which must be satisfied for an injunction to be granted.
Conclusion
The concepts of fair use and fair dealings have a few subtle but pronounced differences. Fair use is a wider concept, with more protections against infringement. Fair dealings, however, only protects those infringements which have been written into the copyright laws of the jurisdiction in question. This indicates that regardless of the copier's aim, if a work is duplicated for a reason besides the specified fair dealing reasons, the duplication cannot be a fair dealing. The importance of such laws cannot be overstated. They allow for the general populace to use data for personal use, and for research. Without such laws, it would be much harder to access such data. However, with the evolution of technology, and especially with the advent of the internet, copyright law has come into conflict with said technology. As we move forward, fair use or dealing laws must be modernised as well, so as to reduce the conflict between the stakeholder, namely the holders of the copyright and those who seek the material for legitimate purposes, such as research and education. That being said, laws of fair use and fair dealings in their current form play an essential role as is today: to make sure that in certain cases, one may reproduce copyrighted material without penalty, especially in furtherance of knowledge and education.
References
1 "Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harvard Law Review 281 (1970).
2 THE COPYRIGHT ACT, 1957, § 52 (1A), 52 (1I) ACT NO. 14 OF 1957, Acts of Parliament (India)
3 Civic Chandran and Ors. vs. C. Ammini Amma and Ors. (27.02.1996 - KERHC): MANU/KE/0675/1996 Chandran v. Ammini Amma 1996 PTC 670 (Ker HC) 675-677.
4 Holly Ellise, What Sci-Hub's latest court battle means for research Nature.com (2022), https://www.nature.com/articles/d41586-021-03659-0 (last visited Jul 21, 2022)."
5 The Chancellor, Masters and Scholars of the University of Oxford and Ors. vs. Rameshwari Photocopy Services and Ors. (16.09.2016 - DELHC): MANU/DE/2497/2016 "
6 Wiley Eastern Ltd. and Ors. vs. Indian Institute of Management (01.02.1995 - DELHC): MANU/DE/0694/1995
7 India Tv Independent News Service Pvt. Ltd. and Ors. vs. Yashraj Films Pvt. Ltd. (21.08.2012 - DELHC): MANU/DE/3928/2012
8 William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harvard Law Review 1659 (1988).
9 Folsom v. Marsh, 9. F. Cas. 342 (C.C.D. Mass. 1841)"
10 "The Copyright Act of 1976, 17 U.S.C. §§ 101-810
11 SONY CORPORATION OF AMERICA, et al. vs. UNIVERSAL CITY STUDIOS, INC., etc., et al. (17.01.1984 - USSC): MANU/USSC/0116/1984
12 Campbell v. Acuff-Rose Music, Inc., MANU/USSC/0019/1994
13 EBAY INC. ET AL. vs. MERCEXCHANGE, L. L. C. (15.05.2006 - USSC): MANU/USSC/0043/2006