Introduction
Exemptions for copyright are fundamental to advance development and inventiveness in creating and propelling the world and these have been given as fair use and managing which shifts and chosen by the conditions of the cases. Then again, it forces impediments on the privileges of the copyright holders. Fair dealing doctrine isn’t an encroachment of the right of copyright holder assuming that the use was restricted and innovation or originality of the work is kept up and maintained.[1]
Fair use
Fair use is protection to copyright encroachment and a special case of exception for the restrictive right of the copyright proprietor. Not entirely set up but determined by case to case whether it is fair.it keeps equilibrium and balance in copyright and public space.[2]
The fundamental variables assume a pivotal part in deciding the fair use and managing it, such as the idea or the nature of the work, the impact of utilization of the protected work, a measure or purpose of work duplicated, reason for work replicated. This has been done to adjust the contentions of copyright proprietors and the interests of society.[3]
These variables apply to a wide range of copyrights. On account of Lenz v. Universal Music Corporation[4], the court guarantees to find some kind of harmony and balance between the two contending rights of copyright proprietor and public freedoms.[5]
For many years American legal executive has refined more in fair utilization of copyright and Indian legal executive has encountered much from it as it is a significant piece of copyright.[6]
Also Read: Traditional Knowledge and IPR
Improvement and Development of Fair Dealing of Copyright in India
Fair dealing was first acquainted in 1914 comparative with Section 2(1) (i) of the UK’s copyright act, 1911 that any work for the reasons for private review, research, analysis, survey, review, or paper synopsis would go under the ambit of fair dealing. Indian Legislation of fair dealing under the copyright act, 1957 has its underlying foundations in UK’s copyright act, 1956. Since the fair dealing arrangement under sec 52 has been amended threefold. The last correction in sec 52 was done in the year 1999 into which issues connected with computer programs were examined.[7]
Limitation on Fair Use/Dealing- Substantibility of the Work
Substantiality of the work is a significant variable used to decide if there is an encroachment of copyright or not. The extent of the duplicated work decides the fair managing, the less the sum replicated more the utilization is fair.[8]
The work replicated should not be indistinguishable from the first work and be finished with changes on its own to get away from copyright encroachment and to close function as fair. The work created ought not to influence the market capacities of the first work.[9]
To safeguard the public interest through intellectual property regulation, the fair use doctrine thrived. The security of the public interest taking into account social welfare has prompted the redesigning and extension of the exemption for the protected work as fair use principle. The Idea of fair use changes as indicated by the homegrown or domestic laws of the specific nation and judges decipher and apply as per the nature and conditions of the case in an unexpected way.[10]
Expansion of Fair Use In Public Interest- A Limitation for Copyright Protection
In Rupendra Kashyap v Jiwan Publishing House[11], the court held distinctively that the intellectual property regulation doesn’t characterize or define public interest as protection into it. Encroachment of copyright can’t be absolved or pardoned simply in the reality of public interest.[12]
It can limit and reduce the extent of copyright and the privileges of the copyright holder as an augmentation of constraint. The developing special cases for copyright prompts the expanding constraints on the copyright holder by all, while growing the convention of fair use and dealing covering broadened angles into it. Yet, it is reasonable too in a situation when it doesn’t offset the interest of the owner, then just public interest can be a safeguard against copyright protection. [13]
In Hubbard v Vosper[14], it was held that the question of degree should be considered while characterizing fair managing. After the utilization and the extent are thought of, it should involve an impression from thereon.[15]
In India, the idea of fair dealing isn’t characterized or defined completely, yet in view of judicial law. The precept of fair dealing however obviously characterized in Article 13 of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement which says about Individuals will bind for selective privileges to specific unique cases which don’t struggle with an ordinary double-dealing of the work and don’t preposterously bias the authentic interests of the right holder.[16]
Trips agreement coordinates with the rules so the equilibrium could be kept up with between private individual freedoms with people in general or social privileges. Unfair Intentions to create gain would redirect it from fair use.[17]
Limitations of Copyright Ownership
The privileges of the copyright proprietor are not limitless considering keeping harmony among authors and the public. There are different limits on the freedoms of a copyright holder as fair use, lapse, and so forth. The copyright is for a specific timeframe which gets terminated from that point. This termination impediment lifts the limits on the overall population in utilizing that copyright subsequent to being lapsed.
Before that as well, copyright holders don’t have an unlimited right to direct over it because of the fair use impediment. As there could be no legitimate circles to conclude the fair use and regardless of whether it can turn into an encroachment is absolutely subject to the carefulness of judges.[18]
The Copyright- A Privilege
The conceded copyright gives a selective possession to the copyright holder which honors them to involve that right in practicing the various demonstrations through or into the protected work. Always the first works that are original are given copyright. Copyright accompanies the selected privileges which are safeguarded under intellectual property law. Thoughts or ideas can’t be protected however there should be an articulation or expression for copyright to be allowed.[19]
There are a few rights to a copyright holder, for example, right to repeat or reproduce, right to get ready derivative work, right to distribute the protected work, right to perform, right to show, and right to communicate digitally.[20]
Limitations on the Fair Use Doctrine
To adjust and to safeguard the freedoms of a creator, this fair use restriction with respect to copyright holder also has impediments as a privilege to the copyright holder. Eventually, fair use isn’t plainly characterized and entirely optional with respect to the adjudicator however a few boundaries are there to check whether it isn’t unjustifiable and those are itself a limit on the fair use and the fair managing rule.
Assuming the person and nature of the work is for the extraction of benefit then it would add up to the unjustifiable use. Also, the sum should be less duplicated and not be replicated as a meaningful mixture of the work. Thirdly, it ought not to hurt the showcasing of the copyright and systems of the creator.
In K. Murari v. Muppala Ranganayakamma[21], it was held that bringing about or taking any advantage is to a benefit and would be considered as an out of the line of fair use and would be considered as an unfair use.[22]
Conclusion
The copyright law has a significant loophole in the form of fair use and the loophole into loophole is that it isn’t indicated what exactly as fair use. On the off chance that fair use principle is taken out, it has the pros and cons simultaneously as it might prompt restraining monopolization as a con with respect to the creator however on the other it can give outright security and freedoms from the work being replicated which is an absolute advantage for the creator yet a significant burden for people in general overall stifling the interest in the public domain.
In this way, an analysis can be really drawn out of it that eliminating fair use totally will make awkwardness and imbalance rather loopholes concerning fair use ought to be viewed so a fixed decent measure can be set up depicting fair use and the work outside that rules to be considered as unfair.
All ambiguities under the regulation of fair use ought to be addressed to smoothen the copyright law with the most recent changes and alterations. An appropriate harmony between the general population and holders of copyrights must be kept up with completely if the ambiguities are tended to be addressed under this doctrine of fair use and corrections by the specialists are expected in such a manner. The intellectual property regulation ought to develop with the developing scene to eliminate the lacunas into it.[23]
The encroachment to copyright also has expanded with advancement on the planet because of innovative progressions and further developed forms of the copyright law would react in such manner with diminished intricacies in the fair use tenet.[24]
This article is written by Miss Gurleen Kaur, BA LL.B (Hons.) 3rd year student at Christ (Deemed to be University)
References:
[1] Rajshree Mukherjee Karishma Karnik, Fair Use Law in India under Copyright Act, ipleaders (Feb. 7, 2002, 10:00 PM), https://blog.ipleaders.in/
[2] Ishan Sambhar, India: Concept Of Fair Use And Fair Dealing In Copyright, Mondaq (feb. 7, 2002, 10:20 PM), https://www.mondaq.com/
[3] Ibid, Dipak Rao Sana Singh, Acceptable Use of Copyrighted Material, singhania.in (feb. 8, 2002, 10:30 PM), https://singhania.in/
[4] Lenz v. Universal Music Corporation, 801 F.3d 1126 (9th Cir. 2015)
[5] Saloni G, Critical Analysis Of The Fair Dealing Provision As Under Indias Copyright Law, legalserviceindia (feb. 8, 2002, 10:00 PM), https://www.legalserviceindia.com/
[6] Ayush Sharma, Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or Lex Ferenda?, 14 J. Intellect. Prop. Rights 523, 529- 530 (2009)
[7] Ibid at 524
[8] Id at 525
[9] Dipak Rao Sana Singh, Acceptable Use of Copyrighted Material, singhania.in (feb. 9, 2002, 10:00 PM), https://singhania.in/
[10] Haochen Sun, copyright law as an engine of public interest protection, 16 Nw. J. Tech. & Intell. Prop. 123, 125 (2019) https://scholarlycommons.law.northwestern.edu/
[11] Rupendra Kashyap v Jiwan Publishing House , 1996 (38) DRJ 81
[12] Ayush Sharma, Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or Lex Ferenda?, 14 J. Intellect. Prop. Rights 523, 527 (2009)
[13] Sufiya Ahmed, Fair Dealing in Indian Copyright Law, 26 J. Intellect. Prop. Rights 96, 96 (2021)
[14] Hubbard v Vosper, [1972] 2 Q.B. 84
[15] Ayush Sharma, Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or Lex Ferenda?, 14 J. Intellect. Prop. Rights 523, 525 (2009)
[16] Sufiya Ahmed, Fair Dealing in Indian Copyright Law, 26 J. Intellect. Prop. Rights 96, 98 (2021)
[17] ibid
[18] Plagiarismtoday, https://www.plagiarismtoday.com/, (last visited feb. 10, 2022)
[19] Rajshree Mukherjee Karishma Karnik, Fair Use Law in India under Copyright Act, ipleaders (Feb. 10, 2002, 10:00 PM), https://blog.ipleaders.in/
[20] Goodattorneysatlaw, https://goodattorneysatlaw.com/, (last visited feb. 10, 2022)
[21] K. Murari v. Muppala Ranganayakamma, 1987 (2) ALT 699 (718).
[22] Ishan Sambhar, India: Concept Of Fair Use And Fair Dealing In Copyright, Mondaq (feb. 10, 2002, 10:20 PM), https://www.mondaq.com/
[23] Latha R. Nair, how fair are the fair dealing exceptions under indian copyright law?, 2 Indian J. Intell. Prop. L 171, 178- 179 (2009)
[24] Pamela C. Miller, When Is Fair Use Not Fair?, 19 No. 1 Educational Technology 44, 46 (1979)