What are the 4 fair use exceptions to copyright in India?

This blog has been authored by Ishaan Saluja a first year law student at Hidayatullah National Law University, Raipur

Introduction

“Under Section 107 of the Copyright Act 1976, allowance is made for fair use for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.”

You may have come across this phrase at least once in your lifetime; maybe as the disclaimer of a YouTube video, or in the footnotes of study modules while preparing for entrance examinations. Why is this phrase used as a disclaimer or mentioned on different materials or along with content?

This exact provision of fair use is given in the Copyright Laws of the US, as mentioned above, under section 107. We have a similar, but not exactly same, provision in India which acts as an exception to infringement under copyright laws. India adopted the approach of Fair Dealing similar to the UK copyright laws. The same is given under Section 52 of the Indian Copyright Act 1957 (herein after referred to as the Act). The said provision is not very old in the Indian Copyright Laws, and the clause of “fair dealings” was added to the Act by the Copyright (Amendment) Act, 2012. This exception does not provide the right to the other party to use the whole of any copyrighted work, upon which the owner has exclusive right. However, it allows the party to use some part of the work with some additions to the original work.

Doctrine of Fair Dealing under Indian Law

The Copyright Act lays down that a person who has created an original work has an exclusive right over the work, and any other person cannot use the same work without the permission of the original owner. The kind of works included is given under Section 13 of the act. But Section 52 of the Act, as mentioned above, provides for a limited use of the said work for some select purposes, without the permission of the original owner of that work. This very provision is known as the “Doctrine of Fair Dealing”, acting as an exception to infringement under the Act.

Section 52 of the Act is somewhat narrow in nature when compared to Section 107 of the US copyright laws, which uses the doctrine of Fair Use. The ambit of Fair Dealing is not sufficiently explained in the Indian Laws. The court over the period of time have developed its ambit taking into consideration the various facts and circumstances of each case. Thus, the scope is very subjective in nature. The question in front of the court is regarding the extent to which an original work may be used by some other person without the permission of the original owner of the work.

Ambit of Fair Dealing

A variety of factors influence the use of copyrighted works that are protected by the provision of fair dealing. The primary consideration is how the copyrighted material will be used. Secondly, it is determined by the nature of the task. When an integral part or feature of a copyrighted work is used, it cannot be considered fair use or fair dealing. If only a few elements of a copyrighted work are used without causing harm to the original work, it does not constitute infringement and falls under the purview of fair dealing. Another important consideration is the impact of such copyrighted work’s use. It must be determined whether the specific use of the copyrighted work has a significant impact on the owner's competition (Messrs Blackwood and Sons Ltd. and others v. A.N. Parasuraman and others) and whether the specific use of the copyrighted work will harm the copyrighted work's potential/original market.

The copyrighted work must be replicated in such a way that it conforms to the framework of fair dealing, resulting in a transformative work created with one's own expertise and labour. The amount of change or imagination involved in a copyrighted work varies according to the characteristics of the content and other external factors. It must be done in such a way that the copyrighted work is only used to aid or facilitate the creation of the end result. The patented work should not constitute a significant portion of the material produced. It is an infringement to produce a “substantial part thereof” of a patented work without permission. As a result, copyrighted material must be reused in such a way that it is transformative when compared to the original work used in the final material prepared, as defined by fair dealing.

The test for fair use was also observed in the case of Civic Chandran v. Ammini Amma, wherein, the court mentioned the factors to be taken into consideration as follows-

1. “The quantum and value of the matter taken in relation to the comments or criticism;

2. The purpose for which it is taken; and

3. The likelihood of competition between the two works.”

Copyright Infringement and Covid Lockdown

When the world was hit by the corona virus, people all over the world had to adopt some stringent measures which they had never done in their lifetime. The lockdown across the globe resulted in obstruction to the work of each and every sector, including education. All the universities, schools and colleges had to adopt a new way of imparting education, which the Indian education system was not familiar or well acquainted with. Thus, a lot of questions came up regarding the use of materials in the online mode of teaching and infringement of the rights of creators.

Are recorded lectures, uploaded on YouTube, which use copyrighted material for education purpose saved under the ambit of fair dealing, since the physical aspect of class is absent at present?

While the exemption under the Indian Copyright Act does not specifically mention online education, it is well established in the DU photocopy case that, the scope of section 52 is not exclusive to classroom teaching but encompasses the whole phase or curriculum of education, which will include digital learning. In any event, online courses will be included under classroom schooling because the shift in medium was imposed upon us as a result of the pandemic and is still the primary replacement for regular physical classes. Beyond that, as long as the replication is seen to be necessary for instructional teaching, the exception would apply, regardless of the medium of use.

Is the usage of the digital library, where the university or schools upload textbooks which they use in classroom, also exempted under copyright law?

There is a dire need to share not only the study modules, but also all the other resources which are required for the students to carry on their studies and research as they are forced to stay off-campus due to the prevailing situation. Even in these dire circumstances, the Copyright Act fails to clear the questions about the establishment of digital libraries. The 2012 Copyright Amendment Act added Section 52, which allows a “non-commercial public library” to preserve a digital copy of works it also owns a tangible copy of for the purpose of preservation. Although this allows for the preservation of a digital copy, it does not address whether the copy will be distributed or communicated. Is such right to distribution or communication implied, at least in cases where the hard copy has been misplaced or is otherwise inaccessible? What is the point of this clause if it does not? Furthermore, the Copyright Act employs terms such as “non-profit library,” which adds to the debate over whether academic libraries are covered by the exemption or not.

Conclusion

It could be reasonably argued that the test for determining whether a patented work is a Fair Use of such work or not varies from case to case, since the evidence must take precedence over the rules. Though the legislature has attempted to make legislation on this principle more versatile yet precise, section 52 of the Copyright Act, 1957 in India provides a valid ground for the public to rely on for the time being, as it has been able to provide a decent foundation. Further, the whole purpose of allowing exemption to copyright rights is to encourage ingenuity and growth that can be translated and expressed in a variety of new ways, allowing people to achieve certain levels of imagination while paying careful attention to the original work.