The principle of conditional grants to proprietary rights in any intellectual property is to promote public interest. This is universally recognized and incorporated in intellectual property system. Protection and enforcement of intellectual property rights must:
1. be conducive to social and economic welfare;
2. safeguard an individual’s fundamental rights; and
3. Promote commerce, competition and innovation.
In Copyright Laws exceptions and limitations are provisions which in public interest permit the use of copyrighted works without prior authorization or a license from its owner.
Generally, exceptions and limitations to copyright are subject to a three-step test set out in the Berne Convention for the Protection of Literary and Artistic Works. Briefly stated, the Berne Convention provides that an exception or limitation to copyright is permissible only if:
1. it covers special cases
2. it does not conflict with the normal exploitation of the work; and
3. it does not unreasonably prejudice the legitimate interests of the author.
Standard exceptions and limitations vary from country to country in their number and scope.
In India the provisions of Section 52 of the Copyright Act, 1957 provide for certain acts, which would not constitute an infringement of copyright namely fair dealing with a literary, dramatic, musical or artistic work not being a computer program for the purposes of-
• private use, including research;
• criticism or review ,
• reporting current events in any print media or
• by broadcast or in a cinematographic film or by means of photographs,
• reproduction for the purpose of a judicial proceeding or of a report of a judicial proceeding;
• reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;
• the reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force;
• the reading or recitation in public of any reasonable extract from a published literary or dramatic work;
• the publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions,
• the making of sound if made by or with the license or consent of the owner of the right in the work
THE DOCTRINE OF FAIR DEALING
The term “fair dealing” has not been defined in the Act. It is a legal doctrine, which allows a person to make limited use of copyrighted work without the permission of the owner.
Whether a person’s use of copyright material is “fair” would depend entirely upon the facts and circumstances of a given case. The line between “fair dealing” and infringement is a thin one. In India, there are no set guidelines that define the number of words or passages that can be used without permission from the author. Only the Court as basic common sense can determine this. It may however be said that the extracted portion should be such that it does not affect the substantial interest of the Author. Fair dealing is a significant limitation on the exclusive right of the copyright owner. It has been interpreted by the courts on a number of occasions by judging the economic impact it has on the copyright owner. Where the economic impact is not significant, the use may constitute fair dealing.
The fair nature of the dealing depends on the following four factors:
1. the purpose of use
2. the nature of the work
3. the amount of the work used, and
4. the effect of use of the work on the original
In the case of Kartar Singh Giani v. Ladha Singh, the High court held that:
“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 derive profit from such competition and (2) that unless the motive of the infringer were unfair in the sense of being improper the dealing would be fair.”
RECENT DEVELOPMENTS:
Certain changes were incorporated by way of the Copyright (Amendment) Act, 2012. The existing clause (1)(a) has been amended to provide fair dealing with any work for the purposes of private and personal use with an exception that of a computer programme. With this amendment in force, cinematograph and musical works also came under the ambit of the works to which the fair use provision has been extended to. This amendment further provides for fair use of the work aimed at the benefiting the disabled. It facilitates reproducing, issuing of copies, adapting or communicating to the public any work in any accessible format, for disabled persons to access works including sharing with any person with disability for private or personal use, research or for any other educational purposes.
