Consentia on International Law and Constitutional Law

THE BOTTLE NECK DIFFERENCE BETWEEN FAIL DEALING AND COPYRIGHT INFRINGEMENT

“Only one thing is impossible for God: To find any sense in any copyright law on the planet.” -Mark Twain

The copyright is a unique Intellectual property right .It is the right that person acquires over a creative work which is result of his intellectual labor[1]. It protects the intellectual labor of a person creating the original work, known as author by ascertaining a protective rights over its further creations [2]. Copyrights protection finds its justification in fair play. When a person creates something that produces with his skill and labor then it belongs to him. Copyright have been bestowed upon the work if it has “sufficient judgment, skill, labor or capital”. It is immaterial whether it has any literal merit[3] . Copyright protect the skill and labor employed by the author in protection of work[4].

 The meaning of “copyright” as defined section 1(2), Copyright Act, 1911 is the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, and is made to include, among the other things’ the sole right to produce or reproduce any translation of the work and to ‘authorize’ any such activity production or reproduction, performance or publication[5], and in accordance with Section 14(a) (i) & (ii) of the Copyright Act a person has the exclusive right to do or authorize a person to do the acts mentioned below with respect to their publications or any substantial part thereof:

  1. To reproduce the work in any material form including the storing of it in any medium by electronic means;
  2. To issue copies of the work to public not being copies already in circulation.

What constitutes an infringement?

A person would be liable for Copyright Infringement if he actively directed, assisted or counseled an infringement committed by another person[6]. It is also an infringement of copyright to grant or purport to grant to another the right to do an act which if done would constitute an infringement of copyright of a third person[7]. Thus, it is an infringement purport to sell the right to print and publish a manuscript where the act apparently authorized would, if done would constitute an infringement[8].  As inferred by a passage from the case of Franz Hansfastaengel v. H.R. Baines and Company[9]decided by the House of Lords, which is to the following effect, “The question may be solved by taking each of the works, to be compared as a whole and determining whether there is not merely a similarity or resemblance in some leading feature or in certain of the details, but whether in keeping view the idea and general effect created by the original, there is such a decree of similarity as would lead one to say that the alleged infringement is a copy of reproduction of the original.”

In order to constitute a copyright infringement, two requisites need to be established as laid down in the case of Eastern Book Company v. D.B. Modak[10] and they are as follows-

a)      There must be sufficient subjective similarity between the infringing copy and the copyright work.

b)      Secondly, the copyright work must be the source from which the infringing work is derived.

It has to be determined whether in a particular case the work is a legitimate use of another man’s publication in the fair exercise of a mental operation deserving the character of original work.[11]

The Fair Dealing exception

The doctrine of fair use or fair dealing is an integral part of copyright law[12]. It permits the reproduction of the Copyrighted work or use in a manner, which, but for the exception carved out and would have thus amounted to infringement of Copyright. It is thus been kept out of the mischief of the copyright law[13]. Fair use hence is the permitted copying of copyrighted material.[14]

In India the Doctrine of fair dealing is statutorily enshrined in Section 52 of the Copyright act 1957. The English copyright act 1852 was held to be applicable in India in the case of Mcmillan v Khan Bahadur Ulama Zaka, even when the act was not made expressly available in India.[15] Indian copyright law is laid down primarily in the Copyright Act 1957.

Subsection (1) of section 52 of the Act enumerates certain acts which do not constitute an infringement of copyright. Sections 52(1) (g), (h) and (i) deal with education in particular and as such, policymakers in India who are interested in ensuring the greatest possible exceptions for educational access should assess whether sections 52(1)(g), (h), (i) and (p) as they stand at the moment, are adequate for supporting the country’s educational policy goals. As it will be shown, some of these provisions were tailored to the requirements of education in an offline world. Today, to fully realize the potential of distance education and digital access, new legal provisions must be introduced Section 52(1)(h), appears to give both teachers and students the right to reproduce any literary work “in the course of instruction”. A liberal construction of this provision would legalise the action of photocopying/scanning complete books — but would at the same time completely destroy the larger objective of copyright law, which is to ensure incentives for authors and publishers to create and publish books.[16] Also, the enumerated purposes under section 52 have been typically interpreted as exhaustive, inflexible and certain, since any use not falling strictly within an enumerated ground is considered an infringement[17].

The words Research and private study were replaced by the word “private use including research by the Copyright (amendment) Act, 1994 what is contemplated by this act is a defense to the person conducting research and private study who while doing so, if dealing fairly with a literary work, may not incur wrath of the copyright being infringed but if a publisher publishes a book for a commercial exploitation and in doing so exploits a copy right then the defense under section  52(a)(1) would not be available to such a publisher though the book published by him maybe used by him or meant to be used in research or private study.[18] Dealing with a work for private study should not involve any publication. Private study covers the case of a student copying out of a book for his own use and not for the circulation of copies among students.[19] The exceptions for educational uses in the Copyright Act of India can be found both in provisions dealing with statutory licenses[20]. The Delhi high court in the case of Chancellor Masters[21] has aptly summed up the policy behind the defence of fair dealing. The court held that ‘fair dealing…legitimized the reproduction of a copyrightable work coupled with a limited copyrighted 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’.[22] The first factor is the amount and substantiality of the portion used in relation to the copyrighted works as a whole[23]. In order to be an infringement of a man’s copyright there must be a “substantial infringement of the work.[24] The Fair Dealing clause of the copyright act as defined in Section 52 (1) creates an exception. As observed in the case of M/S Blackwood and sons Ltd v. A.N. Parasuraman[25]:

“…Two points have been urged in connection with the meaning of the expression ‘fair’, in ‘fair dealing’: (1) that in order to constitute unfairness there must be an intention to compete and to deprive of profit from such competition and (2) that unless the motive of the infringer were unfair in the sense of being improper or oblique the dealing would be fair…”

Also, the enumerated purposes under section 52 have been typically interpreted as exhaustive, inflexible and certain, since any use not falling strictly within an enumerated ground is considered an infringement.[26] The courts have time and again reiterated that it is impossible to develop a single rule of thumb for cases of fair dealing as each case depends upon its own facts and circumstances[27] . The act of copying for an educational purpose was a user entitlement that fell within the “protected” domain of copyright norms, the notion of infringement itself does not arise.

In one respect, the ambit of Section 52(1)(h) is quite wide in that, , it does not lay down any quantitative restrictions.[28]

International perspective

In the case of CCH Canadian Limited v. Law Society of Upper Canada[29], it was held by the court that when claiming “fair dealing” the defendant must show that

1) the dealing was for the purpose of either research or private study and that

2) it was fair.

It was further held that the factors to find out whether the copies were “fair” or not are: the purpose, character, and amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.

The courts in UK have asserted that both research and private study must be for a non-commercial purpose[30].

In Sillitoe v. McGraw-Hill Book Company (U.K.) Ltd[31]., an importer and seller of “study notes” which reproduced a substantial part of a literary work, argued that the notes were intended as a supplementary aid for students engaging in research and private study.  The court held that the seller was unable to invoke the fair dealing exception since it was not itself engaged in private study or research, but was merely facilitating this activity for others. In the case of Copyright Licensing Ltd. v. University of Auckland[32], the court held that the “purpose” must be that of the person “doing the copying”. Since the copiers – the universities – were not themselves dealing with the work for the purposes of research or private study, the copying did not amount to fair dealing. In the case of Basic books, inc v Kinko’s graphics corp[33], the court held that the act of copying involved no literary effort…. to expand upon or contextualize the material copied.

In the Canadian case of Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright)[34], it was held that the copier’s purpose will be relevant to the fairness analysis if the copier hides behind the shield of the user’s allowable purpose in order to engage in a separate purpose – such as a commercial one – that can make the dealing unfair.

In the New Zealand case of Copyright Licensing Ltd. v. University of Auckland[35], several universities provided for copies of copyrighted works to students as part of course packs, and charged the students for these materials through various school fees. The universities argued that the copying constituted fair dealing for the purposes of research or private study. The court held that the “purpose” must be that of the person “doing the copying”. Since the copiers – the universities – were not themselves dealing with the work for the purposes of research or private study, the copying did not amount to fair dealing.

Conclusion

The main crux of the Copyright Act is to protect and safeguard the interests of authors and owners. But in the same manner it’s seen to balance the interest of the society and members of the society so that the protection given to authors should not unnecessarily impinge upon the legitimate acts done by persons acting in good faith.

Thus this said provision has to be interpreted in the light of corresponding benefit which is to be given to the society so as to fulfil the social benefit which is here in this case to be given to children and students by encouraging their talent and enable them to study books and make them available at reasonable costs by any different means such as photocopy or printouts.

Furthermore it is observed that the courts have generally taken a mild stand on guides so far. As the purpose of the guide is only to help the students to understand the meaning, significance and answers that have to be written for the questions therein, it falls four squarely under fair dealing with a literary work for the purpose of private study bonafide intended for the use of educational institutions.[36]

Submitted By

Yashasvi Virendra

3rd year (2011-15)

Harimohana Narayan

2nd Year (2012-16)

Symbiosis Law School, Noida

[1] Danik Bhaskar v Madhusudhan Bhaskar AIR1991 MP 162

[2] Artiben Sashankbhai Vasa vs Sashankbhai Prafulchandra Vasa (2002) 4 GLR 3290

[3] Ahsanali v kazi sayed Hifazat Ali ILR (1956) Nag 378

[4] John v union of India (2003)6 SCC 611

[5] MaungNyiPu v. East End Films AIR 1939 Rang. 266

[6] Falcon v. Famous Players Film Co., (1926) 2 K.B. 474 at p. 499

[7] Evans v. E. Hulton& Co. Ltd., 131 L.T. 534

[8] AIR 1939 Rang. 266 at pp. 270

[9]I.L.R. 1895 A.C. 23.

[10] (2003) 1 ILD 162 (DEL.)

[11] Mohani Mohan Singh v. SitaNath BasakAIR 1931 Cal. 233

[12]The Chancellor Masters and Scholars of the University of Oxford v Narendra Publishing House and Ors, 2008 (38) PTC 385 (Del) at Para 23.

[13] SK Dutt v Law Book Co and Ors, AIR 1954 All 570 at Para 12 and Kartar Singh v Ladha Singh, AIR 1934 Lah 777

[14] Roger Needham, Tape Recording, Photocopy and Fair use, published in Copyright law Symposium No. 10, at pp. 77 to 79.

[15] Nimmer David, fairest of them all and other fairytales of fair use, law &contemporary problems 66 (2003) 263-287

[16] Reddy Prashant, The publishing wars : Destroying the incentive to publish by bringing in wide exceptions to copyright law is only going to ensure few incentives for the publishing industry, BUSINESS STANDARD, Sept. 9, 2012.

[17] Blackwood and Sons Limited and Others v. AN Parasuraman and Ors. AIR 1959 MAD 410

[18] Rupendra kashyap v jiwan publishing house 1996 (38) DRJ 81

[19] 1989 (9) PTC137

[20] Copyright Act 1957, sec. 32 and 32A.

[21]2008 (38) PTC 385 (Del) at Para 23.

[22]2008 (38) PTC 385(Del) Para 33.

[23]Section 107(3) of the US Copyright Statute, 17 USC 107.

[24] SK Dutt v Law Book Co and Ors AIR 1954 All 570 Para 12 and ESPN Stars Sports v Global Broadcast News Ltd and Ors, 2008 (36) PTC 492 (Del)

[25] AIR 1959 MAD 410

[26] Blackwood and sons limited and others v/s AN Parasuraman and ors AIR 1959 MAD 410

[27] ESPS STAR SPORTS v/s global broadcast news ltd and ors 2008 (36) PTC 492 (DEL)

[28] While this may sound radical, other countries’ policies on educational exceptions to copyright have similarly broad scopes. For example, the background paper to the Royal Commission proposed: The UK government should work with British publishers (and other rights holders) and with the governments of least development countries to establish a new system under which the  latter (and local non-profit institutions) are allowed free use, for an initial trial period of 20 years, of copyright-protected hard copy materials for all non-profit educational, research, public health, and other public interest related activities. All literacy programmes and illiterate persons in

whatever setting or situation—a library, a classroom, distance learning, local resource centre, individual user—should similarly be exempted from all copyright restrictions and receive free access.

[29][2004] 1 SCR 339.

[30] G. D’Agostino, “Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use (2008), 53 McGill L.J. 309, at p. 339.”

[31] [1983] F.S.R. 545 (Ch. D.),

[32] (2002) 7 NZBLC 103,585

[33] 758 F Supp. 1522 (S.D. N.Y. 199)

[34][2012] 2 SCR 345.

[35] [2002] 3 N.Z.L.R. 76 (H.C.)

[36] V Ramaiah v k Lakshmaiah, 1989 PTC 137

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