PROJECT WORK SUBMITTED ON BEHALF OF PARTIAL

FULFILMENT OF REQUIREMENT OF THE DEGREE OF

B.A. L.L.B(H)

HUMAN RIGHTS LAW PROJECT WORK

COPYRIGHT RELATION WITH HUMAN RIGHT

Submitted toMr. Ashutosh Tripathi

Human Rights Faculty

Submitted by
Gurpreet Singh
A11911111029,
Section A
Semester

Acknowledgment

I Gurpreet Singh student of Amity Law School-2, Noida semester 7, section-A

want to express my special thanks and gratitude to Mr. Ashutosh Tripathi for
entitling me this project work on COPYRIGHT RELATION WITH HUMAN
1

RIGHT. While researching on this topic I came to know about so many new
things. Secondly I would also like to thank my parents and friends who helped
me a lot in finalizing this project within the limited time frame.
Thank you.

TABLE OF CONTENTS
1.
2.
3.
4.
5.
6.
7.

Introduction
Human Right & Intellectual Property Right
Human Right, contribution to knowledge and Intellectual Property Right:
Copyright & Right to Education
The link between copyright law and education
The fundamental hurdle: the cost of learning materials
Oxford & Cambridge University Publishers v Rameshwari Photocopy

Services
8. Fair dealing of copyright laws in India
9. Bibliography

1. Introduction
Human rights and Intellectual Property rights, especially patent right
regime, are two branches of law that have overcome their initial shyness
of each other and are now becoming increasingly intertwined by the day.
These two subjects have developed in virtual isolation from each other for
several decades. However, during the past few years, there have been a
plethora of international standard setting activities, which have begun to
explore the nooks and crannies that represent the common haunts of
patent law on the one hand and human rights law on the other. Patent
rights have now spread throughout the world by virtue of an intrinsic
network of bilateral, regional and multilateral treaties like World Trade
Organisation etc. and the extensive usage of such rights that resulted
from this spread has had an inevitable effect on human rights. Perhaps an
appropriate example will be the implications for the right to health.
The aim of a human rights approach to patents can be expressed as a
desire to obtain an inherent balance between the moral and economic
rights of inventors and the wider interests and needs of the society. An
integral component of intellectual property, patents emerged into the
global limelight only during the 20th century. In the words of Carla Hesse,
The concept of intellectual property the idea that an idea can be owned
is a child of the European Enlightenment. A whole array of contrasting
rights, some statutory, some common law, some equitable, protect
creative patentable inventions for varying periods of time, against use by
others of the same. Human rights, on the other hand, mean those basic
rights and freedoms to which all humans are entitled, like the right to life
and liberty, freedom of thought and expression, and equality before the
law, those basic standards without which people cannot live in dignity.

2. Human Right & Intellectual Property Right

The relationship between human rights and contributions to knowledge
has been at the centre of important debates over the past several years.
The International Covenant on Economic, Social and Cultural Rights
(Covenant) is in many ways the most crucial legal instrument through
which the relationship between the two fields can be examined. Firstly, it
recognises, for instance, the rights to health and food which are some of
the rights whose realisation can be affected in developing countries that
adopt or strengthen intellectual property rights frameworks based on the
commitments they take under the TRIPS Agreement or other intellectual
property rights treaties.
Secondly, it recognises at Article 15(1)c the need to reward individuals
and groups that make specific intellectual contributions that benefit
society. It must be noted at the outset that the rewards which are
recognised under the Covenant are not related to existing intellectual
property rights regimes. There may be cases where the realisation of this
right may be effected through existing intellectual property rights but on
the whole, there is no necessary correspondence between the rights
recognised in the Covenant at Article 15 and existing intellectual property
rights. This is important as it indicates that the Covenant provides a basis
for the recognition of all intellectual contributions and not only the ones
that fit within the existing intellectual property rights paradigm. In other
words, Article 15(1)c is broad enough to accommodate the claims of
traditional knowledge holders for instance.
The Committee on Economic, Social and Cultural Rights which oversees
the implementation of the Covenant decided to examine in more detail
the relationship between contributions to knowledge and human rights
several years ago. The Committee started by focusing on the impacts of
existing intellectual property rights on the realisation of human rights.
This culminated in the adoption of a Statement issued in 2001.
Subsequently, the Committee undertook the preparation of a politically
and legally more significant document in the form of a General Comment.
5

Its adoption is expected at the next session of the Committee in

November 2004. This General Comment which would in practice replace
the 2001 Statement will constitute an authoritative interpretation of
Article 15(1)c of the Covenant. Unlike the 2001 Statement, the proposed
General Comment focuses mostly on the rights of individual contributors
to knowledge and gives little space to questions concerning the impacts of
intellectual property rights on human rights.

3. Human Right, contribution to knowledge and

Intellectual Property Right:
There are at least two ways in which links between human rights,
contributions to knowledge and existing intellectual property rights can be
analysed. Firstly, existing intellectual property rights can have impacts on
the realisation of human rights recognised in the Covenant such as the
right to food or the right to health. These can be positive or negative
impacts depending on the specific legal regime which is introduced. In the
context of the introduction and strengthening of intellectual property
rights standards brought about through the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS Agreement) in developing
countries, intellectual property rights raise a number of concern with
regard to their impacts on the realisation of human rights in general and
the right to health and to food in particular.
Secondly, the Covenant includes at Article 15 a number of rights which
are related to culture and science. Article 15(1) is particularly important
and reads as follows:
The States Parties to the present Covenant recognize the right of
everyone:
a) To take part in cultural life;
b) To enjoy the benefits of scientific progress and its applications;

c) To benefit from the protection of the moral and material interests

resulting from any scientific, literary or artistic production of which he is
the author.
The relationship between human rights and intellectual contributions was
a topic of debate during the drafting of the Covenant. Subsequently, it
only came back into the limelight as a result of problems faced by
developing countries in the context of their implementation of the TRIPS
Agreement. In the past decade, there has been increasing interest for
these questions and different bodies have addressed certain aspects of
the issue. The Sub Commission on Human Rights has, for instance, come
to the conclusion that:
since the implementation of the TRIPS Agreement does not adequately
reflect the fundamental

nature and indivisibility of all human rights,

including the right of everyone to enjoy the benefits of scientific progress

and its applications, the right to health, the right to food, and the right to
self-determination, there are apparent conflicts between the intellectual
property rights regime

embodied in the TRIPS Agreement, on the one

hand, and international human rights law, on the other.

Following what became a highly public controversy concerning access to
drugs, medical patents and the right to health in the context of the price
of HIV/AIDS drugs in sub-Saharan African countries most affected by the
epidemics, the ESCR Committee decided to first adopt a statement on
intellectual property rights and human

rights in 2001 as a first step

towards the adoption of a General Comment. The 2001 Statement was

adopted in the wake of the collapse of the case filed by pharmaceutical
companies against the South African government for attempting to limit
their patent rights and the Doha Health Declaration adopted by the 2001
Ministerial Conference of the WTO. In this

Statement, the ESCR

Committee specifically argued that the protection of the moral and

material interests of authors must be balanced with the right to take part
in cultural life also introduced at Article 15. It argued that intellectual
property protection must serve the objective of human well-being which is
7

primarily given legal expression through human rights. In other words,

intellectual property regimes should promote and protect all human rights.
More specifically, the Committee stated that any intellectual property
rights regime that would make it more difficult for a state to comply with
its core obligations in relation to the right to health and food would be
inconsistent with the legally binding obligations of the concerned state. In
other words, the Statement was clearly concerned with the impacts that
intellectual property rights can have over the enjoyment of human rights.
The proposed General Comment was meant to build on the Statement
and to provide a more elaborate interpretation of the relationship between
human

rights

and

intellectual

property

rights.

The

first

general

characteristic of the draft General Comment is that it adopts a much

narrower focus than the Statement. Firstly, it focuses only on questions
related to the recognition of intellectual contributions as human rights and
only makes passing comments on the impacts of existing intellectual
property rights on the realisation of human rights in general. Secondly,
even within the context of this narrow framework, the draft General
Comment carves itself an even narrower niche by focusing exclusively on
sub-paragraph (c) of Article 15(1). In other words, it focuses on the
interests and rights of the individual author and inventor and leaves aside
the other parts of Article 15(1) which focus on everyones right to benefit
from the development of science and to enjoy their own culture.
The rest of this article examines in more detail some of the main issues
that arise from the existing draft General Comment. It first analyses some
issues related to the recognition of intellectual property rights as human
rights and then examines questions concerning the impact of existing
intellectual property rights regimes on the realisation of human rights.
Finally, it also examines some ways in which an intellectual property rights
approach to human rights could be made more relevant in todays world.

4. Copyright & Right to Education

Copyright is a legal right created by the law of a country, that grants the
creator of an original work exclusive rights to its use and distribution,
8

usually for a limited time, with the intention of enabling the creator (e.g.
the photographer of a photograph or the author of a book) to receive
compensation for their intellectual effort.
Copyright is a form of intellectual property (as patents, trademarks and
trade secrets are), applicable to any expressible form of an idea or
information. It is often shared, then percentage holders are commonly
called rightsholders legally, contractually and in associated "rights"
business functions. Generally rightsholders have "the right to copy", but
also the right to be credited for the work, to determine who may adapt the
work to other forms, who may perform the work, who may financially
benefit from it, and other related rights.
The Copyright Act, 1957(Act No. 14 of 1957) governs the laws &
applicable rules related to the subject of copyrights in India. Copyright
Law in the country was governed by the Copyright Act of 1914, was
essentially the extension of the British Copyright Act, 1911 to India, and
borrowed extensively from the new Copyright Act of the United Kingdom
of 1956. All copyright related laws are governed by the Copyright Act,
1957. The Copyright Act today is compliant with most international
conventions and treaties in the field of copyrights. India is a member of
the Berne Convention of 1886 (as modified at Paris in 1971), the Universal
Copyright Convention of 1951 and the Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. Though
India is not a member of the Rome Convention of 1961, WIPO Copyrights
Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT),
the Copyright Act is compliant with it.
The Right to Education, envisioned at first as a Directive Principle of State
Policy under the Indian Constitution, has now become a fundamental right,
enshrined in the Constitution. Its implementation under Central and State
legislation is still under way, but its evolution in fact extended over
decades, and was initiated by the judiciary.

In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and

Ors. [1981] AIR 746 1981 SCR (2) 516, 1981 SCC (1) 608 1981 SCALE (1)
79 the Court laid down the foundation for the fundamental right to
education, with its interpretation of the right to life, embedded in Article
21 of the Indian constitution. It outlined a broad vision of the right to life:
The right to life enshrined in Article 21means something much more
than just physical survival. Every limb or faculty through which life is
enjoyed is thus protected by Article 21 and a fortiori, this would include
the faculties of thinking and feeling. The right to life includes the right to
live with human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing oneself in diverse forms
The right to education is a universal entitlement to education, recognized
in the International Covenant on Economic, Social and Cultural Rights as a
human right that includes the right to free, compulsory primary education
for all, an obligation to develop secondary education accessible to all, in
particular by the progressive introduction of free secondary education, as
well as an obligation to develop equitable access to higher education,
ideally by the progressive introduction of free higher education. The right
to education also includes a responsibility to provide basic education for
individuals who have not completed primary education. In addition to
these access to education provisions, the right to education encompasses
the obligation to rule out discrimination at all levels of the educational
system, to set minimum standards and to improve quality of education.

5. The link between copyright law and education

The incredibly high costs of educational materials in the developing world,
and the prevalence of piracy, the importance of copyright law for
developing countries is clear. Developing countries must structure their
copyright laws in ways that maximize the availability of low cost books, as
well as the ability of educational institutions to provide learning materials
through distance learning programs without having to pay prohibitively
high royalties.
10

The link between copyright and learning is indeed an old one, and the free
dissemination of knowledge and culture has always informed the
normative spirit. of copyright law. The first copyright statute, The Statute
of Anne, was titled An Act for the Advancement of Learning.
This approach which emphasized public interest in the circulation of
knowledge was the philosophical basis for granting limited exclusive rights
to authors. Today, the concern for the public interest has been recognized
by all major international institutions and clearly articulated in all major
instruments tasked with the global regulation of copyright.
However, as Amy Kapczynski, in her insightful survey of the access to
knowledge

(A2K) movement argues, the framing of debates

on

intellectual property (IP) is vital.30 For the past two decades, IP has been
framed only from the perspective of private property and the rights of
copyright owners. This has created an imbalanced system, biased towards
IP rights owners.
As P. Bernt Hugenholtz and Ruth Okediji put it:Unfortunately, the idea of public interest in copyright has tended to focus
on one aspect, namely the maximum protection of creative enterprise
through the grant of exclusive rights to authors. The other component of
public interest that of ensuring optimal access to creative works and
stimulating broad dissemination of knowledge and downstream creativity
has been historically left to the discretion of individual States, thus
producing a patchwork effect with respect to copyright limitations and
exceptions.
As such, it is essential to frame international copyright provisions in a
way that redirects copyright back to its historical purpose of securing the
public interest. Recently support has grown for such a shift, for framing IP
in a human rights context. The access to knowledge and access to
medicine movements reflect this growing consensus. For our purposes,
recounting the public interest provisions embedded in international IP
instruments will help make the case for such reframing IP in this way.
11

Even though the Agreement on Trade-Related Aspects of International

Property Rights (TRIPS) is primarily a trade agreement, its provisions
cannot be divorced from the larger objectives that the agreement lays out.
These include the recognition, in the agreements of intellectual property,
including developmental and technological objectives." More specifically,
Articles 7 and 8 point to other factors that member states are to take into
account

in

implementing

their

TRIPS

obligations.

Article

titled

Objectives, provides:
The protection and enforcement of intellectual property rights should
contribute to the promotion of technological innovation and to the transfer
and dissemination of technology, to the mutual advantage of producers
and users of technological knowledge, and in a manner conducive to
social and economic welfare, and to a balance of rights and obligations.
It is clear from the wording of the article that copyright protection is
justified insofar as it achieves the goal of social and economic welfare.
Article 8(1) then provides that member states may, in formulating or
amending their laws and regulations, adopt "measures necessary to
protect public health and nutrition, and to promote the public interest in
sectors of vital importance to their socio-economic and technological
development, provided that such measures are consistent with the
provisions of this Agreement." Article 8(2) further allows for "appropriate
measures... consistent with the provisions of this Agreement" that may be
needed to prevent the abuse of intellectual property rights (IPRs) or
"practices which unreasonably restrain trade or adversely affect the
international transfer of technology." It is clear from these provisions then,
that when interpreting TRIPS in the light of the agreements object and
purpose, it is necessary to weigh the interests of rights holders against
other competing public interests, such as educational and developmental
concerns. In other words, it would be mistaken to adopt a maximalist prorights view.

12

The access to knowledge agenda has also been complemented by an

institutional recognition of developmental needs. As a result of lobbying
by developing countries, the World Intellectual Property Organization
(WIPO) adopted the Development Agenda which is more receptive to the
needs of developing countries. The agenda seeks to further the goals of
the UN Millennium Declaration (2000) to which it explicitly refers for policy
direction. Of particular relevance, paragraph 6 of the Declaration states:
Global challenges must be managed in a way that distributes the costs
and burdens fairly in accordance with basic principles of equity and social
justice. Those who suffer or who benefit least deserve help from those
who benefit most. Furthermore, the Declaration affirms a commitment to
ensuring that the benefits of new technologies, especially information
and communication technologies are available to all. The Declaration and
related Millennium Development Goals (MDGs) point to the centrality of
education to development in setting the goal of universal primary
education.
Furthermore, the Declaration affirms a commitment to ensuring that the
benefits of new technologies, especially information and communication
technologies are available to all. The Declaration and related Millennium
Development Goals (MDGs) point to the centrality of education to
development in setting the goal of universal primary education.
As a UN agency, WIPO is bound to observe the principles of the
Millennium Declaration. Given that the Millennium Declaration and the
MDGs both recognize education as essential to development, the
international IP regime must be guided by educational goals.
The implementation of the Development Agenda by WIPO provides an
important opportunity for Member States to collectively discuss limitations
and exceptions to IP law. The exceptions and limitations that should
receive priority in these discussions are those which best advance the
Development Agenda. These include exceptions and limitations with

13

respect to education, libraries, translation, interoperability and access by

sensory disabled persons.
Increasing efforts in this area have, however, been directed at the
articulation of a core set of explicit limitations and exceptions and its
integration into the current multilateral system in order to counteract the
ever-expanding panoply of proprietary rights of copyright owners. WIPO,
the key institution responsible for the development of substantive
standards of international copyright law, has recently commissioned
several studies on limitations and exceptions reflecting some of these
efforts.
Building on these proposals, the recommendations for a Development
Agenda adopted in October 2007 contain a number of education-related
mandates.

6. The fundamental hurdle: the cost of learning

materials
It is impossible to understand the challenges facing education in India
and the critical importance of copyright law to itwithout putting the
costs of learning materials into perspective. There is a common
assumption that the cost of books in India is relatively low, and hence
affordable. However, a recent study on prices of books using a
comparative purchasing power analysis reveals otherwise.
This exercise yields several insights. First, absolute prices of books may
often be higher in the global South than in the global North. Second,
consumers in the South have to commit significantly higher proportions of
their income to buy these books. Third, if consumers in the United States
had to pay the same proportion of their income towards these books as
their counterparts in South Africa and India, the results would be
ludicrous: $1027.50 for Mandelas Long Walk to Freedom and $941.20 for
the Oxford English Dictionary. It is instructive then, to note that the
prospect of paying $440.50 for Roys God of Small Things in the United
States is manifestly alarming, whereas, paying $6.60 for the book in India
14

(which in Indian terms is exactly the same value as $440.50 in the United
States, by this logic) is not treated with similar outrage.
A

recent

study

conducted

by

the

Ministry

of

Human

Resources

Development (MHRD) details the extent of copyright piracy in India:

Book piracy, in India, primarily depends on two factors, namely, the price
of the book and its popularity. These two factors positively contribute to
piracy. Piracy is generally confined to foreign and good indigenous books
because these books are demanded in large quantities and are also priced
high. The types of books pirated mostly are medical, engineering and
other professional books, encyclopedia and popular fictions. The piracy is
also widespread with respect to books published by National Council of
Educational Research & Training (NCERT), National Open School and
Board(s) of Secondary Education. These books even if priced low are
having large demand. Besides the above, piracy in the form of mass
photocopying of books is largely prevalent in India, especially in and
around educational institutions. Students borrow books from libraries and
then get these photocopied from the photocopier kept at the institution
where from the books are borrowed.
It is clear then that without some means of reducing the costs of books,
piracy will continue apace, and education will continue to be hobbled.
Reforms to Indias Copyright Act may succeed in this respect where global
attempts have failed.

7. Oxford & Cambridge University Publishers v

Rameshwari Photocopy Services
Accompanying a team conducting a raid against a photocopying shop
outside AIIMS a few years ago a copyright lawyer had a moment of
revelation akin to the apocryphal story of St Pauls conversion on the road
to Damascus when Paul was asked by God Why do you persecute me?.
In this case even as the photocopier was being arrested he defiantly
turned to the lawyer and said If I dont sell these photocopies where do
you think your doctors are going to come from? The lawyer in question is
15

now a leading expert on copyright and public interest and one wonders
whether a similar question posed to the lawyers representing Oxford and
Cambridge University Press would evoke a similar change of heart
especially if they considered their own route to becoming lawyers. The
fact of the matter is that in most academic disciplines textbooks are
extremely expensive and unaffordable for the average student and if one
attempted to buy all the books which are prescribed for a course it would
mean that only very few privileged students would afford an education in
India. While one often hopes for a commonsensical change of heart from
lawyers and copyright owners one cannot bank on it which is why the law
in India has a number of provisions which allow for exceptions and
limitation to copyright law. The educational use exception in India is
indeed one of the widest in the world and designed to address the needs
of education in a developing country. Cambridge and Oxford university
press along with Francis and Tailor have filed a copyright infringement
petition against Rameshwari Photocopy services and the Delhi university
claiming that the course packs that are distributed are in violation of
copyright. Describing the course packs as infringing and pirated copies
the petitioners have claimed damages to the tune of sixty lakhs. The
inflated damages sought is not surprising at all and works within the logic
of the assumption that every photocopy is a lost sale but aside from this
dubious assumption inflated sums are usually a part of the shock and awe
tactics that copyright owners use to establish a test case.
Lets understand how course packs work and then examine the law on the
point. Most students will testify that the university library have a
maximum of one to three copies of books that are shared by hundreds of
students and the course pack is therefore an institutionalized practice to
ensure that all students have access to learning materials. This has been
the subject of much controversy in many countries but particularly so in
the United States, and any one who has studied in the US will know the
severe restrictions that are placed on the ability to provide course packs
even as students pay a hefty sum for textbooks. One of the clearest
16

exceptions in copyright is the fair use exception which legalizes certain

acts without the permission of copyright owners, and within fair use the
education exception is what governs photocopying and the creation of
course packs. Of the four principles in the US one of them include the
effect of the use upon the potential market for or value of the copyrighted
work. This is a principle that has been used to effectively narrow fair use
in the US. Unlike the US which has a set of principles guiding fair use in
India we follow the English system of fair dealing which enumerates a set
of statutory exceptions and in India there are two important provisions
which allow for educational exceptions. Sec. 52(1)(i) allows for the
reproduction of any work by a teacher or a pupil in the course of
instruction or as a part of questions or answers to questions. Further Sec.
52(1)(a) allows for a fair dealing with any work

(except computer

programs) for the purposes of private or personal use, including research.

It is therefore very much within the rights of the university and the
students to create course packs and to access photocopies of academic
texts and articles in the course of instruction. The fact that the Copyright
Act in India does not lay down any quantitative restrictions when it comes
to personal use or educational use even though such restrictions operate
for other kinds of usages is indicative of the intention of the policy makers
to ensure that there is adequate access to learning materials. Rameshwari
Photocopy services is integrated within the university system by account
of the fact that it operates on the basis of a license provided by the
university which mandates the price and nature of services and it would
make sense for the university and the photocopiers to have a unified
stand since what is at stake is not just the future of a single photocopying
shop but the future of access to educational materials in India.

The

Supreme Court in the Francis Coralie Mullin case (1981) has held that the
right to life in Art 21 is not just about physical survival and includes the
right to facilities for reading, writing and expressing oneself in diverse
forms. And when Copyright comes in the way of a fundamental right it
clear what should be given precedence.

17

8. Fair dealing of copyright laws in India

The laws relating to fair dealing have been incorporated in Section 52 of
The Copyrights Act, 1957. As the Indian Copyright Act does not defines
the term "fair dealing" , the courts have on various occasions referred to
the authority English caseHubbard v Vosper2 on the subject matter. The
words of Lord Denning in this case lay down a much descriptive outline of
fair dealing"It is impossible to define what is "fair dealing". It must be a question of
degree. You must first consider the number and extent of the quotations
and extracts.... then you must consider the use made of them....Next, you
must consider the proportions...other considerations may come into mind
also. But, after all is said and done, it is a matter of impression."
The Indian laws related to "fair dealing" is always considered rigid and
conventional as it provides an exhaustive list and any use falling out of
the statutory list is considered as an act of infringement. Unlike this, the
US doctrine of "fair use" keeps its doors open for any new exception which
constitutes fair and bonafide use of a copyright work. As the Indian courts
have explored and unveiled the various facets of fair dealing, they have
said that there cannot be a definite or exhaustible list of uses which can
come within the purview of fair dealing but it has to be decided depending
upon the facts and circumstances of each case. Apparently, such
conclusions have been drawn more from the US and UK approaches and
less from the Indian statutory laws.
But apparently, the Indian courts have also started paying attention to the
same. The best example of this development is the case of (INDIA TV)
INDEPENDENT NEWS SERVICES Pvt. Ltd vs YASHRAJ FILMS PRIVATE
LIMITED & SUPER CASSETTES LTD VS..3, where one of the various grounds
of dispute was that the defendants "India TV" broadcasted a TV show
wherein a documentary is shown on the life of singers and they perform
their own son-gs. While the singer sings, clips of scenes from the movies
18

are shown in the background. The plaintiffs claimed that such acts of the
defendants amounted to infringement of their copyright. However, the
defendants claimed that such use of the plaintiff's copyrighted material
constituted fair dealing within the meanings of section 52 of The
Copyrights Act. The Delhi High Court in its judgment restrained the
defendants from distributing, broadcasting or otherwise publishing or in
any other way exploiting any cinematograph film, sound recordings or
part thereof that is owned by the plaintiff. However, if we look at the
present case from a slightly different perspective, there are certain
questions which still remain unanswered. In my opinion the argument of
the counsel for defendant stating that "the singer who has recorded a
song which has gone on to become a hit has a sense of ownership over
such a song, and that it would be very unreasonable-to the point of being
unfair and cruel to the said singer, to say that he/she cannot sing the said
song in a TV or other interactive program in front of an audience, only
because the copyright in the underlying literary and musical works resides
in some other person(s)" also withholds a valid point. But since such use
does not come within the exhaustive list provided under section 52 of the
act, they were deprived of any remedy in the fair dealing laws.
But, after a long litigation saga, in the appeal from the above order, the
Hon'ble bench of the Delhi High Court also felt the need of a diversion
from the conventional approach and thus the decision of the single judge
was set aside and the restrictions thus imposed were accordingly
removed. However, the Appellants were still prohibited from displaying
any cinematographic films without permission.
This judgment indicates that the courts also have started feeling that
there is still much left to look upon, to consider to keep the legislations
hand in hand with the technological and scientific developments going
across the world.

19

20

BIBLIOGRAPHY
1. Oxford and Cambridge University Publishers v. Students of India by
Lawrence liang, 27 august 2012, Kafila.org.
2. http://cis-india.org/a2k/publications/exceptions-limitations-education
3. India: "fair dealing" in copyrights: is the Indian law competent enough to
meet the current challenges? Article by Vaibhavi Pandey.
4. Human Right and Intellectual Property Rights. By Dr. Philippe Cullet

21