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FAIR USE OF LITERARY WORK

U/S 52 OF

THE COPYRIGHT ACT,1957

(Project towards partial fulfillment of the assessment in the subject of General

Principles of Intellectual Property Rights Law)

Submitted By: Submitted To:

Vikram Singh Rajpurohit (707) Mrs. Abhilasha Kumbaht

U.G.-VIth

Semester Faculty of Law,

B.B.A., L.L.B (Hons.) National Law University

National Law University, Jodhpur

Summer Session

(January - May 2011)
http://www.nlujodhpur.ac.in/mrmurthy.htm


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TABLE OF CONTENTS

S.N Chapter Pg

1. Acknowledgement 32. What is a Copyright 43.

Difference from Trademarks & Patents.4

4.Who can Copyright

5

5.Duration of a Copyright

5

6.Works covered under the Copyright Act

5

7.Things that cannot be Copyrighted

6

8.Infringement of Copyright

6

9.Conventions that protect Indian work in Foreign Countries

6

10.Copyright & Fair Use

7

11.Doctrine of Fair Use

8

12.Copyright Act, 1957 & Doctrine of Fair Dealing

9

13.Doctrine of Fair Use: Global View

11

14.Berne Convention and TRIPS Agreement

13

15.Contractual Restrictions on Fair Use

14

16. Conclusion 2117.

Bibliography23


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ACKNOWLEDGEMENT

This project could never have been possible without co-operation from all sides. Contributions of

various people have resulted in this effort.

Firstly, I would like to thank God for the knowledge he has bestowed upon me.

Secondly, I take this opportunity to express my gratitude to the Faculty of Law of NLU, specially

our subject teacher Mrs. Abhilasha Kumbhat. She has constantly helped and guided me in the

compilation of this project.

Thirdly, I would also like to thank the entire library staff for providing me with the various

sources of information that I utilized during the course of my project ,thereby, helping me to

complete this endeavor of mine successfully.
http://www.nlujodhpur.ac.in/memberprofile.php?mid=101http://www.nlujodhpur.ac.in/memberprofile.php?mid=101


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What is a Copyright.

A copyright is an exclusive right given to the author of an original work for a specified number

of years. There are three classes of work for which a copyright can be applied originalliterary, dramatic, musical, and artistic works, including software programs; cinematograph

films; and sound recordings.

The owner of the copyright has the exclusive right to, or to authorize others to, reproduce the

work, issue copies of the work to the public, perform the work in public, communicate the work

to the public, make cinematographic film or sound recording in respect of the work, make

translations of the work, and make adaptations of the work.

According to Rodney D Ryder of Preconcept, Copyright is the only right that accrues upon

creation, that is, for example, if you write a story or create a computer software, you are entitled

to protection from the minute you create the work.

A copyright is valid not only for the particular country that you are in, but all over the world, due

to the Berne Convention, an international agreement governing copyright that requires its

member countries (members of the Berne Union) to recognize the copyright granted by other

signatory countries in the same way it recognizes its own.

Difference from Trademarks & Patents.

There are three types of protection available for intellectual property copyright, patent, and

trademark. While patents protect inventions and improvements to existing inventions and

trademarks protect brand names and designs, a copyright protection is for literary, artistic, and

musical work.


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Who can Copyright

Copyright is granted to the author of an original work in the classes mentioned earlier. An author

would be, In the case of a literary or dramatic work, it is the person who creates the work; in thecase of a musical work, it is the composer; in the case of a cinematographic film and sound

recording, it is the producer; in the case of a photograph, it is the photographer; and in the case of

computer-generated work, the person who causes the work to be created is the author.

Duration of a Copyright.

A copyright on literary, dramatic, musical, or artistic work is valid for the lifetime of the author

plus 60 years after his or her death. For all other types of work, including anonymous work, the

copyright is valid for 60 years from the year it was published or produced. After the copyright

expires, the material enters the public domain and can be used freely by anyone.

Works covered under the Copyright Act

a) Original, literary, dramatic, musical, and artistic works:

Literary: Any form of written work, tables, compilations, computer programs, etc Dramatic: Work that can be enacted Musical: Combination of melody and harmony Artistic work: Visual art (painting, sculpture, drawing, etc.)

b) Cinematograph films: A visual recording, which is a combination of various arts and music

(for example, soundtrack, acting, dancing, etc.)

c) Sound recording: Recording of sound regardless of the medium or method in which such

recording is made


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Things that cannot be Copyrighted.

The term original has a narrower meaning when it comes to the copyright law. It is important

to note that the copyright law does not seek to protect ideas, but only unique expressions.

For example, if you are creating an action adventure gaming software, you cannot copyright the

idea of action adventure gaming software, but your versions of it, for example, The Legend of

Zelda Series or Tomb Raider Series. The reason behind this is, if ideas are protected, it would

lead to blocking them from further development.

There can be no copyright in subject matter, themes, plots, historical or legendary facts, titles by

themselves, or names, short word combinations, slogans, short phrases, etc.

Infringement of Copyright....

A copyright is said to be infringed under two conditions.

One, when a person who does not have a copyright license does something that only theowner of the copyright has the exclusive right to, such as making copies, selling, etc.

Two, when a person permits the use of a place for the communication of a copyrightedwork to the public without permission and for profit.

Conventions that protect Indian work in

Foreign Countries...

Berne Convention for the Protection of Literary and Artistic Works Universal Copyright Convention Convention for the Protection of Producers of Phonograms against Unauthorized

Duplication of Their Phonograms

Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement


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Copyright & Fair Use

It is impossible to define what is fair dealing. It must be a question of degree. You must

consider first the number and extent of the quotations and extracts. Are they altogether too many

and too long to be fair? Then you must consider the use made of them. If they are used as a basis

for comment, criticism or review, that may be a fair dealing. If they are used to convey the same

information as the author, for a rival purpose, that may be unfair. Next, you must consider the

proportions. Other considerations may come to mind also. (A)fter all is said and done, it must

be a matter of impression..1

Statutory Defenses for the copyright infringements are known as fair use provisions. These fair

use provisions provide some limited exceptions to the rights of the authors. Reproduction of the

current economic, political, religious and social issues in a newspaper, magazine, etc is one of

the exceptions given under the Section 522 of the Indian Copyright Act.

The relationship of copyright and fair dealing can have diverse interpretations of users' rights.

These users may be teachers, researchers, reviewers, critics, journalists or correspondents,

academicians or any other information agents and information service providers (not necessarily

individuals).

The interpretation, even if it is legitimate, may affect the so-called users' objective. Differences

of interpretation result from diverging perspectives on copyright's role to a work. Legal liability

of this interpretation is always weighted against the potential benefits on the part of the society.

Fair use right for education and research has taken the shape of a movement. There are issues

related to open source software to promote fair use, or issues that emphasize fair use only. This

does not necessarily mean that owners' right should be renounced in its totality.

1Hubbard v. Vosper(1971) 1 All E.R. 1023

2Narayanan P, Copyright and Industrial Designs, 3rd edn (Eastern Law House, Kolkata), 2002, p. 8.

The three amendments brought to Section 52 have been via Copyright (Amendment) Act, 1983 (Act 23 of 1983),

entered into force 9 August 1984, Copyright (Amendment) Act, 1994 (Act 38 of 1994), entered into force 10 May

1995 and 1999 (Act 49 of 1999), entered into force 15 January 2000. The explanation clarifies that the publication of

a compilation of addresses or speeches delivered in public is not a fair dealing of such work within the meaning of

this clause.


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Doctrine of Fair Use

Generally, copyright owners have the legal right to prevent the reproduction of a copyrighted

work, and to demand royalty (payment) when copyrighted work is reproduced. A strictenforcement of these rights may hinder the dissemination of knowledge and education. Hence,

the doctrine of fair use permits researchers, educators, scholars, etc. to use copyrighted works

without seeking permission or paying royalties.

To put it in another way, a copyrighted work may be used fairly for certain legally permitted

purposes without infringing the rights of copyright owners. This exemption can be used only for

research, education, criticism, bonafide private use etc.

This is not a right to use somebody elses work in anyway, but this doctrine can be taken as a

defense against accusations of infringement, if the use of a copyrighted work was a reasonable

fair use.

If a use is challenged by the owner as infringement, then it will be the users burden to prove that

his/her use was a fair use.3

If the violation is for fair purposes and non-commercial, non-exploitative purposes, it cannot be

penalized. The author can copyright the work only when it is original. To prove or establish

originality is the pre-requisite for the action for violation and secondly the defence available to

the defendant is 'fair dealing'.

In India, fair use of literary copyrighted work is permitted by virtue of section 52(1) of the

Copyright Act which provides that fair dealing can be done for private study, review, criticism,

research etc. No consent of the owner is required for any sort of fair dealing. If a person can

bring the action in the ambit of section 52(1), then it will not constitute infringement.4

3Nimmer David, Fairest of them all and other fairy tales of fair use, Law & Contemporary Problems, 66 (2003)

263-287.4Burrell Robert,Reining in copyright law: Is fair use the answer? Intellectual Property Quarterly, 4 (2001) 361-

388.


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Copyright Act, 1957 & Doctrine of Fair

Dealing5

Copyright encourages creativity, publication and dissemination of intellectual works, but at the

same time it restricts their use and availability. Copyright allows the ability of some intellectuals

to receive monetary benefits for their efforts. At the same time it requires educators to pay a fee

for the works of the other authors for the part of their effort.

The Copyright Act of 1957 was based on the Copyright Act of 1911, framed by the British

before independence. It is also equally influenced by the Copyright Act of 1956 of the United

Kingdom.

The important amendments were made in 1983, 1984, 1992, 1994 and 1999, which makes the

Act fully compliant with the treaties of the Berne Convention, the Rome Convention and the

Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS) agreement. The

amendment of 1999 extends the provision of Copyright Act to nationals of all member countries

of the World Trade Organization (WTO).

The Doctrine of Fair Use6 expresses ideas related to the limitations and exceptions to copyright

of the owners. The Doctrine refers to various situations when exclusive rights granted to authors

and owners or other legal assignees under Indian Copyright Act of 1957 do not hold good.

These exceptions are also the subject of significant regulation by international treaties. Section

52(1) of Copyright Act, 1957 specifies certain legitimate uses of copyrighted works without

being charged for infringement. It requires that the works used should be identified with the

author of the works. Various other fair dealing uses are noted in the Section on Assignment and

licensing which do not cause liability if conforming to conditions set by Copyright Board.

5Pan Mohammad Faiz, "Legal Doctrine of 'Fair Dealing' in Various Countries", 05-10-2006 at

http://faizlawjournal.blogspot.com/2006/10/fair-dealing.html6

Kenneth D. Crews, Copyright, Fair Use and the Challenge for Universities - Promoting the Progress of Higher

Education (Chicago and London, The University of Chicago Press, 1993), 2, 21 - 25


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Section 52(1) gives a detailed explanation as to what is not an infringement under literary work,

and explains the doctrine of fair dealing or fair use. These provisions balance the interests of

community with those of individual authors, and permits spread and dissemination of

knowledge:-

Any kind of private use of literary work - research is considered in the same category aspersonal and private use if not exploited commercially.

Noted purpose of criticism or review of the literary works. Reporting current events in newspapers, magazine, periodical. Making the copies in adaptation of a computer program by the lawful possessor of a copy

of such computer program.

The reproduction of work for the purpose of judicial proceeding or for purpose of a reportof a judicial proceeding.

The reproduction of work in any work prepared by the Secretariat of a Legislature,exclusively for the use of the members of the Legislature.

The reproduction of the work in the certified copy to be used as per requirement of Lawor Rule of the country.

The reading or recitation in public for non-commercial use. The publication in a collection, where the collection is intended for use of educational

institutions.

The reproduction of a work by a teacher or a pupil in the course of instruction, or as partof questions or answers in an examination or in the course of activities of an educationalinstitution or published to a non-paying audience or for the benefit of a religious

institution.

The reproduction of a work for use in public library (not more than 3 copies) if notavailable for sale in India.

The Karnataka High Court justified the provisions of balance between the rights of authors

and interests of society7. The provisions under Section 52(1) are intended to ensure that the

monopoly rights should not be detrimental to the larger interests of general public. It is a

perfect balance of the statute till the technological advances broke down this balance.

7Gramaphone Co. of India v. Mars Recording Pvt Ltd2000 PTC 117 (Kar)


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Doctrine of Fair Use: Global View8

Limitations and exceptions to the exclusive rights granted to authors or owners are regulated by a

number of international treaties. These international treaties are the harbingers of harmony in theglobal view of copyright world.

Art 9(2) of the Berne Conventionauthorizes the national legislation to allow the reproduction of

protected work 'in certain special cases' under the following two conditions:

Reproduction does not conflict with normal exploitation of the work; and Reproduction does not unreasonably curb the legitimate interest of the author (Berne

Convention, 1983).

Art IV, Paragraph 2 of the UCC9 allows the Member States for exceptions to the rights of a work

under the conditions:

They do not conflict with the spirit and provisions of the Convention; They accord a reasonable degree of effective protection to each of the rights - namely

reproduction right, the public performance right and the broadcasting right.

Both views support each other. Limitations and exceptions to copyright are named "Fair

Dealing" doctrine in many countries including India, and "Fair Use" doctrine in United States.

American concept of "fair use" is a bit more flexible compared to its sister "fair dealing"

doctrine.

The copyright as a legal concept was introduced in the United Kingdom's Statute of Anne in

1709. During the course of time, the Court created a doctrine of "fair abridgement" for

authorized reproduction, which later became known as "fair dealing". This law cannot be applied

to any act which does not fall within one of the permitted use categories.

Doctrine of Fair Use tries to achieve a socially optimal level of protection to provide the rightful

owner his due while leaving the public with sufficient information vital for the progress of the

8Shefalika Ghosh Samaddar, Fair Dealing in Copyright: The Matsya Purana Version

9www.unesco.org/culture/laws/copyright/html_eng/page1.shtml


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society. Thus the right of the owner can be violated to facilitate education, research and

dissemination of knowledge for social, economic and cultural progress.

Under the United Kingdom's Copyright, Designs and Patents Act, 1988 (CDPA), "fair

dealing in literary work" is defined as "private study and criticism and review and newsreporting".

10In case of review and criticism, one precondition of fairness being that the source

should be sufficiently acknowledged. Again the 2003 amendment reduced the research fair

dealing exception to non-commercial research only.

Under Crown - The Australian Copyright Act, 1968, the grounds of fair dealing are as follows:

Research and study- Section 40 provides the protection under fair dealing for use ofliterary work for Research and study.

Review and criticism- Section 41 of The Australian Copyright Act, 1968. Reporting the news- Section 42 of The Australian Copyright Act, 1968 Legal advice.- Section 43 deals with use of copyright material in Judicial proceeding.

Under the provisions of fair dealing in the Copyright Act, Chapter 63 of Singapore Statutes, a

certain amount of copying for the purpose of research or education is permissible as long as it is

a "fair dealing". Again, a fair dealing for the purpose of criticism or review, reporting of news,

judicial proceedings or professional advice would not constitute an infringement.

In the United States11, the fair use doctrine is codified in Copyright Act, 1976 under Section

10712

. The Act also considers the factors to be considered in determining whether the use made

of a work in any particular case is a fair use or not.13. Section 1109(2) of Copyright Act 1976says that performance of non dramatic literary work shall not infringe the special right of author

if- (A) the performance or display is a regular part of the systematic instructional activities of a

governmental body or a nonprofit educational institution; and (B) the performance or display is

directly related and of material assistance to the teaching content of the transmission.

Article 14 ofIndonesian Copyright Act keeps special provision of using or copying an official

symbol of state and national anthem with the original character.

10

S 29.3011

Giuseppina D'Agostino,Healing fair dealing? A comparative copyright analysis of Canada's fair dealing to UK

fair dealing and US fair use, McGill Law Journal, 53 (2008) 309-363.12

The US Copyright Code, 17 USC 107 (2000) provides that the fair use of a copyrighted work for purposes such

as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or

research does not infringe copyright.13

Section 107 of the US Copyright Statute lists four factors courts must consider in determining whether a

particular use of a work is a fair use: (i) Purpose and character of the use, (ii) Nature of the copyrighted work,

(iii) Amount and substantiality of the portion of the work used, and (iv) Effect on the use of the new work on the

potential market for the copyrighted work.


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Article 15(a) of Indonesian Copyright Act provided that the use of a work of another party for

the purpose of education, research, scientific thesis, report writing, criticising or reviewing an

issue, provided that it does not prejudice the normal interest of the Author. And Article 15(d) of

the same Act provided that reproduction of literary work in Braille for the purposes of the blind

shall not infringe the copyright of author unless such reproduction is of a commercial purpose.

The global view of fair dealing is an enumerated set of possible defenses against an action for

infringement of an exclusive right of copyright. Though United States and India have a bit

different concept of fair dealing, but most of the countries around the globe are in unison as far

as factors related to teaching and education is concerned.

Berne Convention and TRIPS Agreement

The Berne Convention and TRIPS Agreement permit exceptions for fair use of copyrighted works.The availability and scope of the exceptions remain, for the most part, subject to national law.

The Berne Convention, being the first international convention on the protection of literary and

artistic works, provides that any type of use, but for the purposes of private use, educational and

scientific research, etc. shall be subject to authorization and payment. Exceptions for fair use

have been mentioned in various specific conditions, namely

Art. 2bis (2) regarding press reporting of publicly given addresses; Art. 10 regarding quotation and use of work for teaching; Art. 10bis regarding reproduction of current affair articles and use of work in reporting

current events;

Art. 11bis (3) regarding ephemeral recording by broadcasters.However, the three-step-test set out in Art. 9 (2) of the Convention

14 is the general guidance

for member states to codify the fair use doctrine. Member States of the Convention can provide

exceptions

in certain cases; which do not conflict with a normal exploitation of the works; and do not unreasonably prejudice the legitimate interests of the author.

Although the TRIPS Agreement requires all the WTO members to comply with Art.1 to 21 of

14Ficsor M,How much of what? Three-step test and its application in recent WTO dispute settlement cases, RIDA,

192 (2002) 111-251.


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the Berne Convention (which includes Art. 9 (2)), the Three-Step-Test has been reinforced in

Art. 13 of this Agreement which does not confine exceptions only to the right of reproduction

but to all internationally recognized exclusive rights.

Under the WIPO Internet Copyright Treaty, the need to maintain a balance between the rig hts

of authors and the larger public interest, particularly education, research and access to

information, as reflected in the Berne Convention has been re-proclaimed.15 The Three-Step-

Test has been adopted again in Art. 10 of WCT.

15The Preamble of the WIPO Copyright Treaty (1996).


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Contractual Restrictions on Fair Use

In 1996 the Seventh Circuit Court of Appeals in the US decided one of the most significant cases

of copyright law.

In this case, the court had to decide whether contractual restrictions that broaden the

bundle of rights granted by copyright law placed by copyright owners on the use of

their information are enforceable. The applicant sought to limit contractually the right

of users to distribute information contained in a database.16

The ProCD case was significant because Information of all kinds (scientific data, educational

texts, financial data, music, movies, or and even legal opinions), is increasingly being licensed to

users online, The Internet reduces transaction costs, it conceivably allows vendors of

information to license every bit of information they control. In fact, licensing arrangements,

supported by technological means of monitoring, may entirely replace the copyright regime with

private regime based on contracts.17

The ProCD Case18

Matthew Zeidenberg purchased copies of ProCD's SelectPhone CD-ROM, which combined a

database of telephone listings with a computer program for accessing the listings. Zeidenberg

didn't not sign any contract, though the box containing ProCD's database did indicated on the

outside that the CD-ROMs was subject to a licensing agreement enclosed. The terms of that

license were given inside the box and also appeared on the user's screen every time the user ran

the software. The license provided that users should not make the software and listings available

to other users. Zeidenberg uploaded the telephone listings stored on the CD-ROM discs to his

computer, combined it with his own original search engine, and made the listings available to

16ProCD Inc. v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996)

17Pamuela. Samuelson, Will the Copyright Office Be Obsolete in the Twenty-First Century?13 CARDOZO ARTS &

ENT. L.J. 55, 60-61 (1994), 60-6118

Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of Contract


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Internet users. ProCD filed suit, seeking an injunction against continued violations of the

licensing agreement.

The license at stake was a "Shrink-wrap License.19 The rationale of this practice was that

copyright law sufficiently protected the interests of the publishers in such transactions. As new

distribution technologies arose, licenses became more prevalent in mass distribution markets.

Uncertainty regarding computer program copyrightability, and the scope of such copyrights, led

vendors to use shrink-wrap licenses with mass-market software.20

Book publishers have also begun to use licensing agreements. Licenses are now used not only by

the software industry but also by books publishers. A purchaser of a book may expect to read it

as many times as she wishes, to quote its text, or to use its excerpts. Some may also wish to

reproduce a few pages from a book in a library for later reading or reference and so on. These

types of uses reflect our expectations when we purchase a book, and they are all considered "fair

use" under copyright law. Yet books in recent years include statements that re-define the terms

under which they are being purchased.

For example, a book may include the following terms on its cover: Except for the quotation of

short passages for the purposes of criticism and review, no part of this publication may be

reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic,mechanical, photocopying, recording, or otherwise without the prior permission of the

publisher.

Shrink-wrap licenses and book licenses are both contractual arrangements regarding the

intellectual property aspects of goods. While the purchaser of a book or a CD-ROM may acquire

ownership of the physical copy of the work she has purchased, she receives only limited use

privileges in the copyrighted materials.

19Shrinkwrap licenses would normally include provisions regarding proprietary rights, warranties, and limitations

on users' rights. Shrink-wrap licenses are standard form contracts attached to mass-market software. The term"shrink-wrap" refers to the transparent plastic in which mass-market software is often sealed. Copies of mass-market

copyrighted works were traditionally distributed without a license, simply carrying the familiar copyright notice.20

Mark A. Lemley,Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239 (1995)


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Copyright law distinguishes between rights in a '"work of authorship,"', the intangible aspect of

a work, and rights in its tangible manifestations in a tangible medium. A book purchaser

becomes the owner of the book, but receives no copyright in it. The publisher remains the

copyright owner, and copyright law prevents any unauthorized reproduction or public

distribution of the work. The question is whether the bundle of rights retained by the copyright

owner in intellectual property are determined by law or whether they may be redefined by the

parties to a contract.

The district court in the ProCDcase found no binding contract between the parties. The court

determined that Zeidenberg did not accept the terms of the license. Furthermore, the district court

decided the contract was unenforceable because it conflicted with copyright policy. Licenses that

prohibit the distribution of public information, the court held, "step into territory already coveredby copyright law." If such provisions were enforceable they "would alter the 'delicate balance' of

copyright law" and "allow parties to avoid copyright law by contracting around it."21

The court of appeals disagreed. The appellate court found that the purchase of the software was

subject to the license. The contract itself was formed when Zeidenberg accepted the terms of the

license in the manner specified by ProCD-by using the software. In doing so, Zeidenberg was

performing an act that ProCD (the offeror) proposed to treat as an act of acceptance.

The court held that "terms and conditions offered by contract reflect private ordering, essential

to the efficient functioning of markets." The court recognized that "some applications of the law

of contract could interfere with the attainment of national objectives,", but concluded that the

"general enforcement of shrink-wrap licenses of the kind before us does not create such

interference." As a general matter, the court found any "simple two-party contract" (whether

generous or restrictive in its terms) to be enforceable.

The conflicting opinions of the two courts in the ProCD case demonstrate the potential conflict

between copyright policy and freedom of contract. They reflect different approaches to the

regulation of information. The approach taken by the district court perceives copyright law as a

comprehensive, mandatory arrangement that restricts the freedom of the parties to contract

21The legal doctrine under which the court held the license unenforceable was the preemption doctrine.


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around it. The opinion of the court of appeals, by contrast, reflects a perception of copyright law

as a set of "default rules" that in most cases should allow the parties to replace the statutory

scheme with a contractual arrangement of their choice.

While the first approach is concerned with preserving the "social bargain" regarding the use of

information as reflected by copyright law, the latter emphasizes "freedom of contract" as a means

for reaching efficient functioning of the information market.

Indian Express Newspaper (Bombay) Pvt Ltd., Jagmohan22

A reporter of Indian Express, Mr. Ashwini Sarin investigated into the flesh trade in Madhya

Pradesh. He then wrote series of articles exposing the prostitution trade and involvement ofbigwigs from politics and police department on 27th, 29th, and 30th April 1981 and 2nd May

1981. Then Mr. Vijay Tendulkar scripted a play by name 'Kamla' totally based on the Indian

Express exposure, and staged the play for 150 times in 32 cities and in seven languages.

Jagmohan Mundhara, a film producer planned to produce a film on the same theme from the

same writer Vijay Tendulkar.

Journalist Ashwini Sarin and the Indian Express newspaper complained that Jagmohan and Vijay

infringed their copyright. The Indian Express contended that, when serious of sensational reports

resulted from sweat of brow of the journalists, and forms an effective expression of what was

happening around, why not it be protected. How that is others could make capital out of it

leaving the original authors of the exposure without any protection to theirwriting.

The Bombay High Court held that there could not be any copyright in an event which actually

taken place. The Court observed: "There is distinction between the materials upon which one

claiming copyright has worked and the product of the application of his skill, judgment, labour

and literary talent to these materials. The ideas, information, national phenomena and events on

which an author expends his skill labour, capital, judgment and literary talent are common

property and are not the subject of the copyright".

22AIR 1985 Bom 229


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This judgment ignored the skill, capital, talent and labour invested by the journalist besides his

skilful expression in the form of investigative story and simply termed the incident as national

phenomena and finally refused the copyright to journalists. The Court should have recognized

the way the national phenomena or tragic happening in society was creatively reported by the

journalist alerting the authorities. The justice could be ordering Vijay Tendulkar and Jagmohan

to acknowledge the efforts and risk of Journalist and secure his permission on reasonable

payment of a share in their proceeds. If not it would amount to permitting a theatre and cinema

person to commercially exploit an expression of idea which is not their own, which is against the

spirit of copyright regulation.

Periyars Works Case

After the enactment of the Indian Copyright Act, 1957, in Periyar Self Respect Propaganda

Institution v. Periyar Dravidar Kazhagam23, the judiciary has had few occasions to examine the

scope of Section 52 (1) (m) which allows the reproduction of the current economic, political,

religious and social issues in a newspaper magazine etc.

Facts of the Case

Periyar is known as a well-known social revolutionist who started a journal named Kudi

Arasu. He had written number of books also. Most of the works of Periyar had been sold at a

low price and sometimes they were distributed at free of cost. His works including Kudiyarasu

journals are available in nearly 31 places including National Archives, Delhi University Library,

Connemara Library, Chennai, Thanjai Pagutharivu Kazhagam etc.

V. Anaimuthu, one of the trusted disciple of the Periyar and also one of the Respondents of this

case collected Periyars Kudiyarasu and other magazines from 1925 to 1938 and initially

released three volumes in the year 1974. In 2008, Respondents made advertisements for

releasing rest of the Periyars work in 27 volumes and requested the public to register their

names in order to get the copies.

23MANU/TN/1723/2009


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After seeing that advertisement, the appellant filed the present case by alleging that the

Respondents proposed reproduction of Periyars works would infringe its copyright (by way o f

ownership) over Periyars work. The Respondents claimed that they are free to reproduce

Periyars work under Section 52 (1) (m) of the Act.

Decision of the Single Bench

After hearing both side arguments, Court rejected to grant interim injunction against the

Respondents. The Court accepted the Respondents arguments with respect to the assignment

issue and held that the proposed re-production of Periyars work by the Respondents would fall

within Section 52 (1) (m) of the Act.

As a result, the Plaintiff challenged the order passed by the single bench before the division

bench.

Division Bench Judgment

Division bench upheld the single bench judgment relating to Section 52 (1) (m)

Discussion/Interpretation

It is very evident from the judgment that Section 52(1) (m) says that reproduction of an article

which speaks about the current economic, current politics, current social issues or current

religious topics is permitted to be reproduced.

Then, the question is that whether the reproduction is allowed in all mediums? The provision

answers that the reproduction of an article is allowed only in a newspaper, magazine or other

periodicals. Therefore, it is clear that a single article can only be re-produced and the same

should also be only in a newspaper, magazine or other periodicals and not in other forms. It

means that other forms of reproduction such as re-production in a book and etc. are not allowed.

Further, the provision says that if a person has expressly reserved his rights for the above said re-

productions, then no one shall be allowed to reproduce it. So if a person has not reserved his

rights for such reproduction, then others are free to reproduce it in such modes as provided by the


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section, not beyond that. In such cases, the author cannot enforce his rights against such

reproductions. However, the provision does not prevent the right holder to take action against the

infringers or it does not prevent the right holder to enjoy his copyright and exploit the same by

way of other modes of reproduction.

In the present case, the Court says that if the author has not expressly reserved his rights for such

reproduction, no copyright will be there over the work. The Court, further, held that the

Respondents proposed reproduction would fall within the scope of Section 52 (1) (m).

Going by the provision, a single article which relates to the current economic, politics, social and

religious can only be reproduced. The word current shall not be interpreted based on the

timings of the publication. It needs to be interpreted based on the social relevance. 24

If so, Periyars works can be considered as current social, political as well as religious topics

because even today they are very relevant to the social conditions which exist in Tamil Nadu.

Therefore, there is no dispute that whether Periyars works can be considered as current social,

political as well as religious topics. Now, the question is whether the proposed re-production is a

single article or collections of articles. From the facts of the case, it is very clear that the

proposed reproduction will cover entire works of Periyar from 1925 to 1938. Therefore, the

proposed re-production is not a single article; it is a collection of articles. From the Section, it is

also very evident that the provision does not permit the reproduction of the whole work. It allows

others to reproduce a single article and also it allows such reproduction only in a newspaper,

magazine or other periodicals. Thus, the proposed reproduction of Periyars works cannot fall

within the ambit of Section 52(1) (m) of the Act. Therefore, it is possible to argue that, the

judiciary has failed to understand the notion and scope of Section 52 (1) (m) of the Act.

Decision of the Court is acceptable. However, the reasoning based on which the judgment is

delivered cannot be acceptable for the above said reasons.

24N.S. Gopalakrishnan, Intellectual Property Laws, A.S.I.L. (2009)


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Conclusion.

Though the Indian courts have borrowed the US born 'factor analysis method', in the assessment

of fair dealing the Indian judiciary has only considered issues concerning fair dealing in eachcase in limited context. It is therefore left without much opportunity to take a holistic view of

how these issues may interact together or an analytical view of how these issues may be broken

down. The courts have not been able to explore other factors, such as, bad faith because they

have not come at issue. Though such factors may not have been explicitly highlighted as a

potential factor, the silence, however, does not mean that such factors cannot feature in future

cases.

Rather than incorporating fair use by the introduction of factor analysis method in the Indian

Copyright act, Indian courts should rather seek to build on distinctive features of its fair dealing

regime, such as its policy preoccupations and other factors for determining fair dealing and

helping to introduce an element of flexibility.

The approach of Indian courts may sometimes be very rigid or limited but is a very cautioned

and discipline one. The notion of exceptions to Copyright infringement which had in the past

been largely premised on a narrow interpretation of its scope, the Indian courts have now

broadened its scope.25

Both the Indian and the US legislation aim to maximize the promotion of creativity and

dissemination of information at the same time. Fair dealing & fair use both appear as defenses to

otherwise closed monopoly in the legislation. But the real differences between India and the US

counterparts can be traced ultimately in the policy preoccupations of the respective courts. The

provision of fair dealing in the Indian act is Brief and does not define the meaning of the

application of defense. The provision of fair use in the American act, on the other hand, is more

elaborate, culminated from extensive judicial reflection. The American act is Flexible and open

for further advancement and is also intended by its legislature. Indian legislators, designing

certainty, have chosen the Conservative approach and the Indian judicial jurisprudence is

reflective of this approach.

25Indian Perspective on Fair Dealing under Copyright Law by Ayush Sharma NLIU Bhopal


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Today, more than ever before, we need a theory that defines the boundaries of the freedom of

contracts in the context of copyright law. In the past, copyright law was limited to contexts in

which contracting was impossible or was prohibitively expensive; in fact, copyright law arose to

address the inability of contractual means of exclusion. However, copyright may now become

crucial for defining the balance between owners and users. Just as legal intervention in the

market for information was originally necessary to allow the exclusion of non-payers, legal

intervention in the market is now necessary to allow the inclusion of non-payers. The need to

secure general access to information will require maintaining copyright schemes in contractual

regimes.

The courts and the law should allow the expansion of the scope of fair use and thus enlarge the

need for dissemination of information freely throughout the world without any barriers at any

stage. It is the duty of the state and society to see that the dissemination is permitted by the wider

practice of doctrine of fair use. The fine balance between the rigour of copyright and flexibility

of fair use has to be maintained. The great advantages must be in tune with avoiding the great

disadvantages of this global regulation.

The strict enforcement of stricter law of copyright should not result in loss of general storehouse

of knowledge, because copyright seeks to stock the knowledge and not to lock it. Too long and

broad monopoly for copyright will not help promotion of knowledge and learning, which is the

real purpose of copyright regulation. The copyright law should not be viewed solely as an

economic regulation, and its priority should not be the protection of economic rights alone. The

public interest in public dissemination as the basic purpose of law must always be kept in mind

while dealing with questions and disputes over this regulation, whether global or local.


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Bibliography.

Book Sources

Centre for Intellectual Property Rights Research and Advocacy (CIPRA), National LawSchool of India University, Bangalore, Information Technology Related Intellectual

Property Rights,2ndEd., 2005

David I Bainbridge,Intellectual Property, Pitman Publishing, London, 4th ed., 1999. William Landes and Richard Posner, "An Economic Analysis of Copyright Law,"Journal

of Legal Studies 18 (1989): 325.

Ku, Farber & Cockfeld, Cyberspace Law: Cases and Material, Aspen Law & Business,New York, 2002.

Justin Hughes, "The Philosophy of Intellectual Property,"Georgetown Law Journal 77(1988): 287

Singh Yatindra J., Cyber Laws, Universal Law Publishing Co. Pvt. Ltd., Delhi, 2003. The Copyright Act, 3rd edn (Law Publishers India, Allahabad), 1995 Jeremy Waldron, The Right to Private Property (Oxford: Clarendon, 1988). Smith J.H. Graham, Bird & Bird,Internet Law & Regulation, 3rd ed., Sweet & Maxwels,

London, 2002.

URL Sources

www.ssrn.papers.com http://www.nolo.com/legal-encyclopedia/article-30090.html http://www.chillingeffects.org/fairuse/faq.cgi. http://www.theregister.co.uk/2003/07/20/deep_links_are_legal/
http://www.ssrn.papers.com/http://www.ssrn.papers.com/http://www.nolo.com/legal-encyclopedia/article-30090.htmlhttp://www.nolo.com/legal-encyclopedia/article-30090.htmlhttp://www.chillingeffects.org/fairuse/faq.cgihttp://www.theregister.co.uk/2003/07/20/deep_links_are_legal/http://www.theregister.co.uk/2003/07/20/deep_links_are_legal/http://www.chillingeffects.org/fairuse/faq.cgihttp://www.nolo.com/legal-encyclopedia/article-30090.htmlhttp://www.ssrn.papers.com/

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