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Project Assignment on: Permitted Acts under Copyright: Fair dealing

Submitted to: Prof. (Dr.) T. Ramakrishna

Submitted by: Shanika Jorwal

1st year LLM (Business Law)


Aim and Objective The aim of this research paper is to understand the concept of Fair Dealing under Copyright Law in India. The object of this paper is to analyse the divergent legal provisions and tests existing in Berne Convention, TRIPs and WTC and India regarding library and archives. Research Problem Whether the principle of fair dealing as laid under section 52(1) is misused or not ? Research Questions - What is copyright? - What work is entitled to protection under copyright? - What is understood by the principle of fair dealing? - What are the articles under Berne Convention, TRIPs and WTC with respect to fair dealing and does India law the three step test? - Cases on fair dealing? Hypothesis That the concept of fair dealing of work helps in expansion of knowledge and promotes creativity. Research Methodology In this paper the student has primarily used doctrinal and analytical methodology of research. She has mainly relied upon the secondary sources, which includes books relating to copyright available in the Library, internet sources, journals, committee reports and magazines. Scope and Limitation The scope of this paper is to analyse the concept related to fair dealing of copyrighted works in India.


What is Copyright?

Copyright is a bundle of rights, which confer a negative right on the part of the registered owner to exclude all the others from using and exploiting his work. It represents multiple rights of the owner like:- Right to Reproduce - Right to Publish - Right to transfer(through license or otherwise) - Right to Perform or communicate to public - Right to make translation or adaptation, etc. What under copyright is protected? Following works are protected: - Artistic - Literary - Musical - Cinematographic film - Sound Record CONCEPT OF FAIR DEALING Provision relating to permitted use of copyrighted work has been laid down under section 52 of the copyright Act,1957 in the form of fair dealing. Ion Section 52(1)- Certain acts not to be infringement of copyright. The following acts shall not constitute an infringement of copyright, namely:(a) a fair dealing with a literary, dramatic, musical or artistic work for the purposes of(i) research or private study; (ii) criticism or review, whether of that work or of any other work; (b) a fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events(i) in a newspaper, magazine or similar periodical or (ii) by broadcast or in a cinematograph film or by means of photographs.; Explanation.--- 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. 1. Subs. by Act 23 of 1983, s. 2 (w. e. f. 9. 8. 1984 )

2. Ins. by s. 18 ibid. (w. e. f. 9. 8. 1984 ) 3. Omitted and Ins. by Act 65 of 1984, s. 3 (w. e. f. 8. 10. 1984 ) (2) The provisions of sub- section (1) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself. In America it is known as Fair use". It is an exception to infringement of Copyright. Fair dealing is an important concept in Indian copyright law. Fair dealing doctrine is a key part of the social bargain at the heart of copyright law, in which as a society we concede certain limited individual property rights to ensure the benefits of creativity to a living culture...Its object is to balance between authors right and public interest. INTERNATIONAL CONVENTIONS AND TREATY: Berne Convention:-Three step test was devised for limitation and exception for

reproduction. -It should be granted in certain special cases -It should not conflict with the normal exploitation of the work -It should not unreasonably prejudice the legitimate interest of the author
TRIPS Agreement:-Three step test extended to all exclusive rights conferred by

copyright. WIPO Copyright Treaty -use for the sole purpose for teaching and research -quotation for criticism or review -use for reporting current events -use for judicial procedure -use for visually and hearing impaired people

Fair Dealing in India includes: Private use, including research

Criticism or review of that work or Reporting current events in a newspaper For judicial proceeding For legislature work For certified copy made under any law For reading in public Use for education course Amateur club and society For current topic in periodical For use of libraries Reproduction of unpublished work For official gazette, judgment of courts Adaptation Making sound recording in certain cases Performance of a work in official ceremony Fair Use and Fair Dealing Fair Use concept of USA - Section 107:The concept of fair use in USA is much wider term than as used in India. The concept of fair use under section 107 of the US copyright law is more flexible than that of India. It does not follow a rigid list as India follows. Fair dealing concept as in UK - Section 30(2) : same as that in India Fair dealing in India - Section 52: stipulates that a fair dealing with a literary work for the purpose of criticism or review, whether of that work or any other work shall not constitute infringement of copyright. It has been observed in M/s Blackwood &Sons Ltd. v. A.N. Parasuraman that in order to constitute a fair dealing there must be no intention on the part of the alleged infringer, to compete with the copyright holder of the work and to derive profits from such competition

and also, the motive of the alleged infringer in dealing with the work must not be improper. AMENDMENTS: Since independence section 52 has undergone 4 amendments. 1. 2. The first minor amendment happened in 1983- where by an explanation below section 52(1)(b)(ii) was inserted. Copyright Amendment Act, 1994 whereby this section was comprehensively amended.

3. Then an amendment in 1999 4. Copyright Amendment Act, 2012 Few are :An explanation has been inserted to clause (1) (a) of section 52 to clarify that storing of any electronic medium for the specific purposes, including the incidental storage of a computer programme which in itself is not an infringing copy, shall not be an infringement Clause (zb) and (Zc) provide for fair dealing in the use of disabled persons. CASES: Hyde Park Residence Ltd. v. Yelland, 2001 LR CH 143 In this case the plaintiff Hyde Park Residence Ltd. Was responsible for security t a Paris Villa which was visited by Diana, princes of Wales and F, the day before their deaths in a car accident on 31st August, 1997. Their arrival and departure from villa and the times were recorded by security cameras on video tape. A few days after the accident one of the employee of the plaintiffs company was instructed to print stills from the recording who latter took a set of prints without the plaintiffs permission and in return for payment, gave them to newspaper which on 2 nd September, 1988 and without the plaintiffs consent, published two prints over third page in a five page article entitled Video Shames. This act of the employee was bought in action by the plaintiff for infringement of copyright against the editor, publisher and the printers of the newspaper and employee. The defendants contention was that the publication was fair dealing for the purpose of reporting current events within the section 30(2) of the Copyright Designs and Patent Act,1988 (English Act)

The court of appeal held that where the application was for the purpose of reporting current events, in determining whether the dealing, was fair it was appropriate to take into account: 1.) the motives of alleged infringer and 2.) the fair mindedness. Civic Chandran v. Ammini Amma In this case the artistic work challeneged in Civic Chandran was not a parody as such. The original work in question was Ningal Enne Communistakki- a well known drama written by Thoppil Bhasi, a famous Malayam playwright. The play dealt with someof the burning social and political problems of those days, specially espoused by the undivided Communist Party of India before its split, and had considerably aided the undivided Communist Party of India to come to power in Kerala in the 1957 assembly elections. On the other hand, the counter drama written by the appellant,Civic Chandran, was intended to convey the message that though the party had succeeded in coming to political power, it had forgotten the depressed classes who were instrument in its success and who had made substantial sacrifices for the party. The counter drama used substantial portions of the original, with some alterations required for its purpose. The characters and dialogues in the original were also reproduced in some instances. The court held that the reproduction was not a misappropriation for the purpose of producing a play similar to the original. Rather, the purpose was to criticize the idea propagates by the original drama, and to expose to the public that it had failed to achieve its real object. It held that since the copying was for the purpose of criticism, it amounted to fair dealing and did not constitute infringement of the copyright. DU Photocopying Case This case - it is a on-going litigation between a group of leading publishers and photocopying shop attached to Delhi University. On one hand there are big publisher and on the other hand this photocopier. The photocopier use to regularly extract from the copyrighted books and makes it available to students. In consequence of which a group of publishers have sued Delhi University and Rameshwari Photocopy Service for copyright infringement of their work. The two issues that come out of this case are 1) is the copying done for permissible purpose? 2) is the dealing fair? CONCLUSION As fair dealing is a limited use of the copyrighted work without authors permission hence this principle should be used to help the interest of the society rather than just a mere defense as in DU photocopying case. India should adopt more flexible concept of fair use as adopted by US.