CHAPTER : V

COMPARATIVE STUDY OF DOCTRINE OF FAIR USE :

LEGISLATIVE AND JUDICIAL APPROACH

Copyrights are the exclusive rights. They are absolute rights and unauthorized use amounts to
infringement. This absoluteness creates monopolistic rights thereby depriving society from
new creations as they are under exclusive control of copyright owners. It is in this context the
doctrine of fair use existed, so as to put a check on monopoly of copyright owners. It is a
limitation on absolute rights of owners. The doctrine of fair use is a valid and well accepted
defence for copyright infringements.

Fair use is a judicial doctrine that refers to a use of copyrighted material. It is an important
and well established limitation on the exclusive right of copyright owners. The doctrine of
‘fair use’ permits the use of copyrighted material for certain specific purposes even without
the permission of the copyright owners. The object of the doctrine of ‘fair use’ is not to
confine the knowledge within the control of the copyright owner and deprive the society from
its use when the society deserves the right to utilize the knowledge for the common use. At
the same time, the doctrine does not encourage commercialization of the copyrighted
material. Therefore any unauthorized use having impact on commercial benefits of original
holder is considered as infringement but not the ‘fair use’ and action can be taken on the
infringer. This is justified as the owner of the copyrighted material has spent his energies and
resources for creation of new work and therefore he deserves the right to get the commercial
benefits. It is also a disputed issue to distinguish the fine line between the infringement and
fair use of the copyrighted material.

5.1. INTERNATIONAL CONVENTIONS AND FAIR USE

The concept of fair use is accepted by the laws of all countries and incorporated into their
respective legislations by the ratification of Berne Convention for the protection of literary
and artistic works. The Berne Convention 1886 is the first major international convention on
copyrights. The Convention’s scope and application embraces literary and artistic works
which includes every production in the literary, scientific and artistic domain, irrespective of

235
the mode of expression. It included protection to works such as choreography, painting,
architecture, compilations and derivative works and also industrial designs. It also includes
protection for published and unpublished works.

Article 10 of the Berne Convention discusses about certain free uses of works. It states that it
shall be permissible to make quotations from work, which has been made lawfully available
to the public, provided it is fair practice and its use does not exceed the justified purpose,
including quotations from newspaper, articles and periodicals in the form of press
summaries.1Further it depends on the legislation of the countries of the convention, to permit
the utilization, by special agreements existing or to be concluded between them, to the extent
justified by the purpose, of the literary/artistic works by way of illustration in publications,
broadcasts /sound/ visual recordings for teaching, provided its use is fair use. The Article
10bis states that the member countries may incorporate in their legislations to permit the
reproduction by the press, the broadcasting or the communication to the public by wire, of
articles published in newspapers/periodicals on current economic, political or religious topics,
and of broadcast works of the same character in which the reproduction is not reserved
expressly, provided the source is clearly indicated. The legal consequences of a breach of this
obligation shall be decided by the country where protection is claimed. Further it shall be for
the member countries to make legislation to determine the conditions for the purpose of
reporting current events with respect to those literary/artistic works seen or heard to the
extent justified for information purpose, be reproduced and made available to the public by
means of photography, cinematography, broadcasting/communication to the public by wire.
The Article 9(2) of the Berne Convention 1948 authorizes the national legislation to permit
the ‘reproduction’ of protected works in certain special cases but subject to fulfillment of two
conditions. They are:

(a) The reproduction does not conflict with the normal exploitation of the work

(b) Such reproduction does not unreasonably prejudice the legitimate interests of the
author.

After the Berne Convention, the Universal Copyright Convention came into force on
September 6th of 1952 and Paris Convention 1971. Article 13 of the Convention addresses
fair use and states that the members shall confine limitations or exceptions to exclusive rights

1
www.wipo.int/treaties/en last visited on 9.12.2014
236
to certain special cases which do not conflict with a normal exploitation of the work and do
not unreasonably prejudice the legitimate interests of the right holder.2 The WIPO Copyright
Treaty covers copyright protection for computer programs, databases as intellectual works,
and digital communications over the world-wide Internet and other computer networks.
Article 10 of the WIPO Copyright treaty also discusses about the similar limitations and
exceptions which are acceptable under the Berne Convention. But the only difference is the
limitations and exceptions are further extended to the digital environment into the national
laws where the contracting parties are permitted to devise new exceptions and limitations that
are appropriate to the digital network environment. The WIPO Performances and
Phonograms Treaty 1996 cover protection for performers and producers of sound recordings.
Article 16 of this treaty discusses about the limitations and exceptions. The contracting
parties may, provide in their national legislation the same kinds of limitations and exceptions
with regard to the protection of performers and producers of phonograms, in connection with
the protection of copyright in literary and artistic works. They shall confine any limitations
and exceptions to rights provided for in this treaty to certain special cases which do not
conflict with a normal exploitation of the performance or phonogram and do not
unreasonably prejudice the legitimate interests of the performer or of the producer of the
phonogram. 3 India is a signatory to Berne Convention and UCC but it has yet to sign the
WCT and WPP Treaties.

The WIPO Copyright treaty was affected by passing of the Digital Millenium Copyright Act
1998 of US. The provisions of both the treaties were incorporated in this Act. It provides
exemptions from Anti-circumvention provisions for nonprofit libraries, archives, educational
institutions under certain circumstances. In general, it limits Internet service providers from
copyright infringement liability for simply transmitting information over the Internet. But
however the service provider’s, are expected to remove material from users' websites that
appears to constitute copyright infringement. It limits liability of non-profit institutions of
higher education, when they serve as online service providers and under certain
circumstances for copyright infringement by faculty members or graduate students. It is clear
from the above that international instruments recognize certain limitations to the exclusive
rights such as fair use.

2
www.Worldtradelaw.net/uragreements/tripsagreement last visited on 11.12.2014
3
www.wipo.int/treaties/en last visited on 11.12.2014
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5.2. FAIR USE AND US COPYRIGHT LAW

5.2.1. The Evolution of the Concept of Fair Use

The Statute of Anne was used as the Model for the US Federal Copyright Act 1790. Congress
passed the first copyright statute in 1790 and later on revised copyright law in 1831, 1870,
1891, 1909, and 1976 due to significant changes in technology. Almost all the countries have
enacted special legislations to deal with the copyright issues as compliance of the Berne
Convention. In a landmark case, Falsom v Marsh (1841) 4 Justice Story said that the law
relating to abridgements and reviews, which was then applicable in England had also been
received intact in the US. The Judge while considering a two- volume condensation of the
original twelve volume work of the writings of George Washington, he stated that a reviewer
may fairly cite largely from the original work, if his desire is to really and truly use the
passages for the purpose of fair and reasonable criticism5. Further he agreed that a fair and
bonafide abridgement of an original work was not a piracy, provided that there was a real,
substantial condensation of the materials, and intellectual labor and judgment bestowed
thereon. 6 In the above case Justice Story cited with approval the English cases on
abridgement7and concluded that despite the value of new work to the school libraries, it was
an infringement as the defendant had taken the most valuable parts of the work and therefore
it was a bonafied infringement. The judge further recognized the foundation of the modern
US law of fair use and stated that in deciding questions of this sort, one should look to the
nature and objects of the selections made, the quantity and value of the materials used, and
the degrees in which the use may prejudice the sale and diminish the profits, or supersede the
objects of the original work.8 It is called the four factor test. But while applying the test there
remained some uncertainity in determining whether a use is fair or whether it is infringement
while dealing with the precise interpretation regarding the answers for the questions asked.
The difficulty was in determining fairness whether it should be decided by examining

4
9 F.Cos.302(1841). This case has developed the Doctrine of ‘Fair Use’ which is later embedded in Section 107
of the Copyright Act and four factor test for understanding the nature of the copying and to find out whether the
copying comes under the coverage of ‘fair use’or not.
5
Folsom v. Marsh 6 Hunt Mer. Mag. 175, 2 Story 100, 9 F.Cas. 342, No. 4901 (9F.Cas.342(C.C.D Mass.1841)
(No.4,901) at 344.) refer also Gray v Russell10 F.Cas.1035(1839)
6
Falsom v Marsh at 345.
7
Bramwell v Halcomb(1836) 3 My & Cr; 737 40 ER 1110; Sounders v Smith(1838) 3 My & Cr.711;40 ER
1100; Mawman v Tegg(1826)2 Russell 385;38 ER 380; Wilkins v Aikin(1810) 17 Vesey 422;34 ER
163;Roworth v Wilkes(1807) 1 Campbell 94;170 ER 889; Lewis v Fullarton (1839) 2 Beav 6; 48 ER 1080.
8
Falsom v Marsh 9 F.Cas 342(C.C.D.Mass.1841) (No.4,901) at 348.
238
allegedly infringed work that interfered with the market or by determining whether there had
been a significant investment of labor in the new work. The question arose as whether each
factor should be given equal importance or should one be given prominence over the other.
This question continued to complicate the modern law of fair use. The US Supreme Court in
Williams & Wilkins Company v The United States9had to decide about an infringement action
brought by Williams &Wilkins, a medical publisher against the department of Health,
Education and Welfare, on behalf of the National Institutes of Health (NIH) and the National
Library of Medicine (NLM) on the issue that these institutions (NIH&NLM) were making
unauthorized photocopies of articles from several Williams & Wilkin’s journals. The NIH
library offered a photocopying service, upon request of a person, by providing photocopy of a
journal article held in its collection. The NLM participated in an inter library loan system,
pursuant to which it would frequently provide photocopies of certain articles to other
libraries. In this case despite the evidence that a large volume of copying was taking place,
the debate over the nature of fair use provision inclusion in the new copyright law began. Fair
Use was finally codified in the new US Copyright Act 1976 which took effect from
1stJanuary, 1978. The 1976 Act was a comprehensive revision of the copyright law in title 17
of Copyright and Related Law 2011. According to Sections 102 Copyright protection
subsists, in accordance with this title, in original works of authorship fixed in any tangible
medium of expression, now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid of a machine or
device. Works of authorship include the following categories: (1) literary works; (2) musical
works, including any accompanying words; (3) dramatic works, including any accompanying
music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audio-visual works; (7) sound recordings; and (8) architectural
works. (b) In no case, does copyright protection for an original work of authorship extend to
any idea, procedure, process, system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or embodied in such
work. These works are said to be general works there are also other works like compilations
and derivative works10nationality and origin of published and unpublished works11copyright

9
Williams & Wilkins Company v The United States 487 F.Supp 2d 1345(1973); affirmed by the US Supreme
Court in 420 US 376(1975)
10
Section 103 of Copyright and Related Law, Title 17 of United States Code 2011
referhttp://copyright.gov/title17/92chap1.pdf
239
in restored works (section 104A) and United States Government works (section 105). 12
Further section 106 provides that except sections 107 to 122, the owner of copyright under
this title has exclusive rights in their works. Sections 107 to 122 of the Act provides
limitations on exclusive rights, that is fair use. According to section 107 “Notwithstanding
the provisions of Sections 106 and 106 A, the fair use of a copyrighted work, including such
use by reproduction in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting, teaching including multiple
copies for classroom use, scholarship, or research, is not an infringement of copyright”. In
determining what is fair use in a particular case depends on four factor test that was laid
down in Falsom v Marsh case. They are as follows:

1. The purpose and character of the use, Including whether such use is of a commercial
nature or is for non-profit educational purposes; S. 107(1)USCA

2. The nature of the copyrighted work;(S.107(2) USCA)

3. The amount and substantiality of the portion used in relation to the copyrighted work
as a whole;( S.107(3) USCA)

4. The effect of the use upon the potential market for or value of the copyrighted
work.13(S.107(4)USCA)

Therefore the four factor tests enlisted in the 17 USC, 107 of the Copyright Act 1976 of US,
act as limitation to the application of the ‘doctrine of fair use’ and strengthen the copyrights
of the owners/authors. The purpose and character of the use, nature of the copyrighted works,
and substantiality of the works copied, effect upon the income generation of the copyright
owner are the four important factors which limits the use of the copyrighted works. 14 But it is
very difficult to distinct between fair use and infringement in a particular case. The
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright
Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts
in a review or criticism for purposes of illustration or comment; quotation of short passages

11
Section 104 of Copyright and Related Law, Title 17 of United States Code 2011
referhttp://copyright.gov/title17/92chap1.pdf
12
Section 105 Copyright and Related Law ,Title 17 of United States Code 2011
referhttp://copyright.gov/title17/92chap1.pdf
13
ibid
14
www.copyright.gov last visited on Nov 18 2014.
240
in a scholarly or technical work, for illustration or clarification of the author’s observations;
use in a parody of some of the content of the work parodied; summary of an address or
article, with brief quotations, in a news report; reproduction by a library of a portion of a
work to replace part of a damaged copy; reproduction by a teacher or student of a small part
of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings
or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work
located in the scene of an event being reported.15The fundamental test for the fair use /fair
dealing in India or Australia is the ‘non-commercial use’ of the works. If the works are used
for any commercial purpose, irrespective of amount generated, the use amounts to the
infringement.

Again in the year 1984 the US Supreme Court in Sony Corporation of America v Universal
City Studios16also known as Betamax case, it was alleged by the Universal City Studio that
Sony Corp which manufactured Video Cassette Recorders had consumers who have been
recording some of Universal’s copyrighted works that had been exhibited on commercially
sponsored television and thereby infringed on their copyrights, and that Sony was liable for
such copyright infringement because of their marketing of the VCRs .Sony Corp argued that
the making of individual copies of complete television shows for purposes of time shifting
does not constitute copyright infringement but is fair use. Universal City Studios claimed that
Sony was manufacturing a device that could be used for copyright infringement, and argued
that they were liable for any infringement that was committed by its purchasers. In defense to
the law suit, Sony argued that they weren't responsible for what users were doing with the
VCR tapes. Further Sony Corp argued that, though they created a product that enabled users
to potentially violate copyright laws, they did not directly violate any copyright infringements
themselves. The Trial Court findings were, that non-commercial home use recording was
considered “fair use” even if the tape’s contents were copyrighted programs. The District
Court concluded that non-commercial home use recording of material broadcast over the
public airwaves was a fair use of copyrighted works and did not constitute copyright
infringement. It emphasized the fact that the material was broadcast free to the public at
large, the noncommercial character of the use, and the private character of the activity
conducted entirely within the home. It also concluded that Sony could not be held liable as a

15
ibid
16
464 US 417,104 S.Ct 774(1984)
241
contributory infringer even if the home use of a VCR was considered an infringing use. The
District Court noted that Sony had no direct involvement with any Betamax purchasers who
recorded copyrighted works off the air. The Court of Appeals reversed the District Court‘s
judgment on respondents’ copyright claim. It did not set aside any of the District Court‘s
findings of fact. Instead, it concluded as a matter of law that the home use of a VCR was not
a fair use because it was not a "productive use." It therefore held that it was unnecessary for
plaintiffs to prove any harm to the potential market for the copyrighted works, but then
observed that it seemed clear that the cumulative effect of mass reproduction made possible
by VCRs would tend to diminish the potential market for respondents‘ works. On the issue of
contributory infringement, the Court of Appeals first rejected the analogy to staple articles of
commerce such as tape recorders or photocopying machines. It noted that such machines
"may have substantial benefit for some purposes" and do not "even remotely raise copyright
problems." The Court of Appeals reversed the decision of District Court. So in turn, Sony
Corp appealed the Appellate Court’s decision.

The U S Supreme Court reversed the decision in favor of Sony by referring to patent law (35
U.S.C. §271(c)) and found that one who sells a 'staple article' or commodity suitable for
substantial non-infringing use is not liable for contributory copyright infringement (Sony
Corp)17 . The court stated that though the VCR could potentially enable owners to violate
copyright infringement, the VCR had other uses as well that did not violate copyright laws.
Therefore Sony was not responsible for the actions of customers who purchased their VCR
product. This case said to have had a significant economic and social impact on both current
and future businesses and United State's society. The decision in this case not to hold Sony
liable for creating a device for copying paved the way for the introduction of MP3 players,
digital recorders, CD burners and peer to peer technologies into the market.

In Harper & Row Publishers Inc.ET AL v Nation Enterprises 18 in the year 1985 Justice
O’Connor of US Supreme Court deciding on unauthorized publication took the commercial
use test one step further. The case is about the unauthorized publication of extracts from the
memoirs of President Ford. The facts of the case are during Feb 1997 former President
Gerald R Ford contracted with petitioners Harpers & Row and Readers Digest to publish his

17
https://supreme.justia.com/cases/federal/us
18
471 US 539, 556, 105, S.Ct.2218, 2228, 85L.ED.28, 588(1985) Dr. T Vidya Kumari, ‘Copyright Protection
Current Indian &International Perspectives’ Ed 2004, Publishers ASIA LAW HOUSE, P 17.
242
memoirs. The memoirs contained significant unpublished material concerning Watergate
crimes. Mr. Ford’s pardon granted to former president Nixon and Mr Ford’s reflections on
that period relating to morality and personalities with whom he had contracted as a President.
The authors claimed special rights which include the exclusive rights to license any excerpts
of the work which are called as “first serial rights”. After two years when the memoirs were
nearly completed the petitioners negotiated a pre-publication licensing agreement with the
Time Magazine. The Time Magazine had paid US $25,000 for the right to publish a brief
excerpt of 7,500 words from the unpublished autobiography. The issue featuring the excerpts
was agreed to be published one week before the release of the books to the books stores. This
exclusivity was an important consideration and it was agreed to maintain the confidentiality
of the manuscript and the right to renegotiate the second payment was retained by the Time
Magazine. Just two to three weeks before the Time Magazine could release the excerpted
material it was found that a unidentified person gave to the Editor of the Nation a political
commentary magazine an unauthorized manuscripts of the memoirs and he released this
excerpts as “real hot news story” There was no independent commentary, research, or
criticism in part and the only motive was to release sensational news by publishing in
advance the Ford memoirs even before it was released to the public. The petitioners filed a
suit alleging conversion, tortuous interference with contract and violations of Copyright Act.
The District Court rejected the contention of the Nation that their news item was a fair use of
the copyrighted work and that the article contained new facts. The magazine published its
article for profit and their unauthorized use had caused the agreement by the copyright
owners with the publishers to cancel and thus diminished the value of copyrighted works.
Justice O’Connor adopted the District Court’s finding that the Nation, took what was
essentially the heart of the book based on the assessment of what was the most interesting
part of the book in terms of information conveyed, rather than what was reproduced. The
Court awarded the damages of $12,500. In appeal the second circuit reversed the decision.
The majority found that the purpose of the article was news reporting and that the original
work was factual in nature and the 300 words that were original that were appropriated by the
Nation were in relation to the 2250 word piece and the impact on the market was minimal.
Therefore the Nation’s borrowing of verbatim quotations merely lent authenticity to this
political significant material complementing the reporting of the facts. The Court of appeals
held that as the material was politically significant the news worthiness of the work cannot be

243
subjected to the Copyright Act and this statute cannot impede with harvest of knowledge so
circumscribed use of copyrighted words. The Apex Court agreed that the copyright cannot be
intended to increase and not to impede the harvest of knowledge. The limited grant that is
given for a copyright is a means by which an important public purpose may be achieved. The
Nation admitted to have copied verbatim quotations of the author’s original language which
is of 300 to 400 words. The defense raised by it was ‘fair use’ which was a privilege given to
the public to use copyrightable material in a reasonable manner without the consent of the
author. The question was on the issue of the scope of the defense of fair use and the necessity
for conveying information relating to matters of high public concern. The defense of fair use
is said to be a mixed question of law and fact. So the question is whether the article published
by the Nation constitutes a fair use had to be decided in the light of four factors. i.e., i) the
purpose and character of use; ii) the nature of the copyrighted work; iii) the substantiality of
the portion used in relation to the copyrighted work as a whole, and iv) the effect on the
potential market. The Court while looking into the purpose of use identified that the Nation
used the copyrighted work to report it as a form of news which is considered as fair use and it
also felt that the Nation went beyond simple reporting and the publication was purely
commercial and therefore it was not proper to exploit the privilege that is granted to the
owner of copyright as it was unauthorized first publication of a noted personality’s
copyrighted expression. The Court looked into the next factor that is nature of the
copyrighted work and expressed that “A Time to Heal” was an unpublished historical
narrative/Autobiography and the quotes contained facts. Moreover the Nation had used all the
phrases of the author’s works were unpublished that the Nation had no right to use his
expression and it clearly shows that it had infringed copyright holder’s works. The Court
considering the third factor that is the amount and substantiality of the portion used felt that
the words actually used were not in substantial number but the words expressed were the
focal points of the article and its expressive value of the excerpts is of more value and
therefore is infringement. Finally the Court checked into the last factor i.e., effect of the use
on the market. The trial Court felt that the release of the excerpts made a determinable impact
on the value of the copyrighted work. The effect is the ‘Time Magazine’ cancelled its project
of releasing a series of articles and refused to continue the contract with the author. But the
Court of Appeal did not accept the decision of trial Court and opined that there was no casual
communication between the contract and the unauthorized publication by the Nation. When

244
the matter came up before Supreme Court it held that there was a definite link as the authors
had assured the ‘Time Magazine’ that there will not be any other publication caused
interference with the original contract therefore it cannot be fair use. The Supreme Court felt
that the amount of material infringed is not the criteria but the resulting impact of the
infringement on the potential market shows that the use constitutes infringement 19.

Again in the year 1992 in another case, the US Court of Appeals, 9th Circuit Court in Los
Angles News Service v Jullo20, clarifies that impact of copying on the potential market is
important. Even small amount of copying, if it is the most valuable part of the work, it is not
protected by the defense of fair use. The Court said that although the defendant’s news
clipping service copied only a small amount of the raw video footage shot by the plaintiff, it
was the most valuable part of that footage. The news clipping service could not justify its
copying of footage owned by the plaintiff which had been licensed to various news providers
and broadcast as part of news items on television on the basis of fair use.

The Napster was a free download application where music MP3s could be downloaded,
uploaded, and traded free of charge. The idea behind it was that people had a right to share
their music with others and Napster was simply providing a means of doing so. But it ended
up by costing the Music Industry millions, as it lost royalties because the recording studios
and artists were not giving permission for their music to be distributed freely. A&M Records,
the nation’s largest recording company, filed a lawsuit to stop Napster from facilitating any
further free music transmissions. As per the Federal Copyright Code, specific exclusive rights
are given to musicians for their works. Under Title 17 Section 106, these exclusive rights
include the right to reproduce the copyrighted work in copies or phonorecords. It also
includes the right to prepare derivative works based upon the copyrighted work and to
distribute copies or phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending. This paved the way for modern
construction of copyright protection for musicians. This is evident from Napster case. In the
Napster case21, entire case revolves around the “MP3” files which means files stored in a
standard format for storage of audio recordings in a digital format. These MP3 files are

19
Ibid
20
973 F Supp 2d 791(1992)(9th Cir)
21
Dr. T.VidyaKumari’s Copyright Protection current Indian & International Perspectives, Ed 2004,Published by
Asia Law House, p-240-246.
245
created through a process called “ripping”. This ripping software allows a computer owner to
copy an audio compact disc directly on to a computer’ shared drive by compressing the audio
information on the CD into the MP3 format. Then the MP3’s compressed format allows for
rapid transmission of digital audio files from one computer to another by electronic mail or
by any other files transfer protocol. Napster facilitated the transmission of MP3 files between
and among the users by way of peer-to-peer file sharing process. It allows its users to
makeMP3 music files stored on individual computer hard drives available for copying by
other Napster users by way of internet. Secondly, it helps in search from MP3 music files
stored on other user’s computers and transfer exact copies of the contents of other user’s MP3
files from one computer to another via internet. These are made available by Napster free of
charge from its site and Napsters network servers and server-side software. It also provides
technical support for the indexing and searching of MP3 files as well as for its other functions
like chat room to discuss music and directory where participating artists can provide
information about their music. But before this a user must have access to Napster’s internet
site and download the music share software to his individual computer. As soon as the
software is installed, the user can access the Napster system and also one has to register with
the Napster system by creating a ‘user name’ and password. The registered user, if he wants
others to have access to his files he has to create ‘user library directory’ on his computer’s
hard drive. Then the user will save his MP3 files in the library directory. Then he has to log
into the Napster system by using user name and password. After that the music share
software searches his user library and verifies that the files are properly formatted. Then the
MP3 files can be uploaded from the user’s computer to the Napster servers. But the content
of these files remains stored in the user’s computer. From the Napster server, the user’s files
are stored in server side library under the user’s name and becomes part of a ‘collective
directory’ available for transfer. It allows the user to locate other user’s MP3 files through
search function and its ‘hotlist’ function. After finding the requested MP3 files, the Napster
server software obtains the internet address of the requesting user and the internet address of
the ‘hot user’ i.e that is the user with available files. After that, the Napster servers
communicate the host user’s internet address to the requesting user. The requesting user’s
computer uses this information to establish a connection with the host user and downloads a
copy of the contents of MP3 file from one computer to the other over the internet, ‘peer-to

246
peer’. A downloaded MP3 files can be played directly from the user’s hard drive using
Napster’s Music share program or other software.

The plaintiffs A&M Records Inc., claim was that the Napster users are engaged in the
wholesale reproduction and distribution of copyrighted works and that was infringement of
the copyrighted works. The District Court ordered an injunction to stop the infringement of
the copyrighted works. Napster made an appeal and the Court then asked A&M Records Inc.,
to satisfy two requirements to bring action against Napster. First, to show ownership over the
allegedly infringed material and secondly they must demonstrate that the alleged infringers
violated at least one exclusive right granted to the copyright holders. This was sufficiently
proved by the A&M Records. Napster users clearly infringed two of the exclusive rights of
copyright holders rights to reproduction and the rights of distribution. Napster contended that
its users did not directly infringe the A&M Record’s copyrights because they have made a
fair use of the material. Their plea was that the users made temporary copies of work before
purchasing and the users accessed the sound recording through Napster system and
downloaded the music to hear later as a personal use i.e., by way of sampling and space
shifting (method of storing files to use it later).The District Court after hearing the Napster
defense of fair use examined it under four factors that is purpose of use, nature of use,
substantial portion used, and effect of it on the potential market. After listening to the
arguments, the court analyzed all four factors in their case report. Two of the factors were
found to not favor fair use for Napster. The nature of the use was the first that the court called
into question. As per the doctrine of fair use, individuals can freely use music when the
purpose is to educate, report, or comment on the music. The court found that Napster’s use
did not fall under any of these exceptions. In fact, the court explained that because Napster
does not somehow change the works for a specific utilized purpose, their use is not proper.
The other part of the test that Napster failed was the purpose of the use. According to the
court, while Napster did not charge its users for the software or use of their site, the company
was still gaining money through ads on their software. This meant that their use was for a
profit and, therefore, could not be considered fair use. Napster in this case raised the plea that
it was unaware of the infringing use of the downloaded works. But the plaintiff stated that
Napster had both actual and constructive knowledge that it users exchanged copyrighted
music. In such case, law does not insist that the contributory infringer required to have
specific knowledge of any particular infringement and therefore it cannot escape liability by
247
taking the plea that it was unaware of the infringing use of the downloaded works. Because
Napster had the right and ability to supervise the users conduct. It could very well block the
user and the right to refuse service and terminate any program at its discretion. It was held
that Napster failed to exercise its right to police its system and its failure to prevent the
exchange of the copyrighted material amounts to contributory infringement. Another defense
taken by Napster was that their activity is permitted under the Audio Home Recording Act of
1992 and under the Digital Millennium Copyright Act. It contends that the MP3 file
exchanging is a type of non-commercial use protected from infringement actions by this
statute. It is not liable for users, non actionable exchange of copyrighted musical recordings
as per the statute. The district court rejected its argument by stating that Audio Home
Recording (AHR) Act is irrelevant as the plaintiffs did not bring an action under the Act and
moreover the Act does not cover the downloading of MP3 files. This decision was accepted
by the Appellate Court. It said that the definition of audio recording devices cannot be
interpreted as devices to make digital audio recordings and that there is no provision for
interpreting the term ‘digital music recordings’ to include songs fixed on computer hard
drives and as such unauthorized downloading of music is not permissible under AHR Act.
Napster then took the defense of safe harbor a defense available for internet service provider.
The claim of Napster as per definition under section 512(d)(2) of the (DMCA) that the
copyright owner should give official notice of the infringing activity and procure a detailed
report of the infringing activity from the Napster. The court did not accept the contention and
said that DMCA provisions do not apply as there was massive unauthorized downloading and
uploading of plaintiffs copyrighted works and it was necessary to grant injunction in favour
of plaintiff. It also argued that the plaintiffs were aware of the technology and had provided
the consumers with the technology designed to copy and distribute MP3 files over the
internet and therefore waived their right to exercise exclusive control over their creation and
permitted distribution ofMP3 files. The district court was not convinced with the argument.

The court of appeals held that Napster had committed repeated acts of infringement. The
result was an order from the court that Napster may not facilitate the free transfer of any more
music. After the decision Napster, has reconstructed their entire system and also said to be

248
the first facilitator of legal song downloading program where songs can be purchased for an
amount that includes royalties to the artist. 22

The US Supreme Court in Campbell v Acuff-Rose Music, Inc23 decided on parody factor of
fair use. This case is about the rap parody of the author Roy Orbison/William Dees Song Oh,
Pretty Woman. The author assigned the rights of the song to Acuff-Rose Music Inc,
registering the songs copyright protection (Campbell). A case is filed against the parody band
consisting of Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs, are
collectively known as ‘2 Live Crew’ who created a parody of the Oh, Pretty Woman. After
creation of the rap parody, the manager of the ‘2 Live Crew’ requested the original song’s
creator to give the Live Crew licensing permission to use the tune for a parody. Live Crew's
manager also said they would credit the ownership and authorship of the original song to
Acuff-Rose and the authors. They were willing to pay a fee for the use they are going to
make and also enclosed a copy of the lyrics and recording of ‘2 Live Crew’s song. But the
Agent of Acuff Rose refused to grant permission. Inspite of the refusal ‘2 Live Crew’ went
ahead and released records, cassette tapes, and compact discs of "Pretty Woman" in a
collection of songs entitled "As Clean As They Wanna Be”. Almost a year later, after nearly
a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew
and its record company, Luke Sky Walker Records, for copyright infringement. The District
Court decided in favor of ‘2 Live Crew’ by stating that though it had commercial use, the
song was no bar to fair use and that 2Live crew’s version was a parody so it is a play on the
words substituting the original lyrics with other ones in order to parody it and that it was
unlikely that ‘2 Live Crew's song could adversely affect the market for the original. The
Court held that 2 Live Crew’s song made fair use of Orbison’s original. But the Court of
Appeals reversed and remanded and held that its "blatantly commercial purpose prevents this
parody from being a fair use. The court granted certiorari to determine whether commercial
parody is fair use. When the case came up to SC, Justice Souter critical of the approach of
Court of Appeals and stressed that all the four factors are to be considered together rather
than in isolation and said that when applying fair use doctrine to parodies and critical works,
it is necessary to keep in mind the goal of copyright law that is to promote science and arts.
The Court opined that when a parody aims at a particular original work, the parody must be

22
United States Court of Appeals,9th Cir, No.00-16401 D.C.CV-99-O5183-MHP.
23
510 US 569;114 S.Ct 1164 (1994)
249
able to “conjure up” at least enough of that original to make the object of its critical wit
recognizable. 24 This means for recognizing the work, the original’s most distinctive or
memorable features have to be incorporated in the current work. The Court concluded that
the Court of Appeals was in error in finding that the commercial nature of 2 Live Crew’s
parody is unfair as it found no such evidentiary presumption available to address the first
factor or fourth factor in determining whether a transformative use, such as parody, is a fair
one. The Supreme Court reversed the judgment of the Court of Appeals and remanded the
case. On remand the parties settled the case out of court.

An another parody case - Suntrust Bank v Houghton Mifflin Company25, came up before The
US District Court in the year 2001. The facts of the case are : The plaintiff Suntrust Bank is
the trustee of the Mitchell Trust which is the holder of Copyright in “Gone with the Wind”
which is said to be the best selling books in the world since its publication in 1936. The
author Alice Randall has written a book called “The Wind Done Gone” and claims that her
novel is a critique of “Gone With the Wind” which gives a picture about slavery in the Civil
War era of South America. She picked suitable characters, scenes, plot from the first half of
the book “Gone with the wind” into her book. The plaintiffs after knowing this filed a case
against the defendants for copyright infringement and tort of passing off. The contention of
plaintiff is that the defendant had copied the core characters, the characteristic trades, famous
scenes, verbatim dialogues and descriptions and other special elements from their classic
works of their book. The defendant Houghton Mifflin the publisher of “The Wind Done
Gone’ did not contest the case ,but stated that there is no substantial similarity between the
two works and it claimed protection under the doctrine of fair use, saying that it is parody of
“Gone with the Wind”. The District Court granted an injunction in favour of the plaintiffs and
restrained the defendants from further production, display, distribution, advertising, sale, or
offer for sale of “The Wind Done Gone”. The Court further stated that the plaintiffs
established their claim under copyright laws as Sun Trust owned a valid copyright in their
classic works “Gone with the Wind and the defendants Alice Randal copied the original
elements of the book, exploited the characters and the story line and therefore infringed the
copyrights. Houghton Miffin, the defendant publisher appealed against district court decision
and he argued that he is entitled to take the defense of fair use protection as parody. Vacating

24
ibid
25
136 F.Supp 2d 1357 (2001)
250
the district court injunction order, the appellate court opined that prior restraint is
unconstitutional and remanded the case for consideration and the Federal Circuit Court of
Appeals held that the action of defendants amounted to fair use. The Court said that the
injunctive relief cannot be granted when parodists have not gone beyond the boundary of fair
use. People, in general have the right of comment and criticism. The right that the owner can
claim is limited in time and also limited to the extent of expression of any idea. The work can
be used by general public under the doctrine of fair use and it includes purposes such as
criticism, comment, news reporting, teaching, scholarship/research. Further it opined that an
injunction can be granted to protect the copyright over a work provided the copying amounts
to piracy of a copyrighted specific criticism and rejoinder to the slavery that was in vogue and
that the use of the elements depicted in “Gone With the Wind” was transformed by them
culminating in a parody. They also clarified that their derivative work has not caused any
harm to the potential market/value of the original copyright of “Gone With the Wind” and
that they had not used substantial portion of the plaintiff’s works and therefore claimed a
defense of fair use.

In a recent case Lenz v. Universal Music Corp.26 often called the “dancing baby” lawsuit in a
federal appeals court of San Francisco on September 14th, 2015 affirmed the District Court
decision that copyright holders must consider whether a use of material is fair before sending
a takedown notice. The facts of the case are, on February 2007 Stephanie Lenz posted on
YouTube a twenty-nine second clip of her children dancing to Prince's "Let's Go Crazy." The
Electronic Frontier Foundation (EFF) represents Stephanie Lenz, who back in 2007 posted a
29-second video to YouTube of her children dancing in her kitchen. The Prince song “Let’s
Go Crazy” was playing on a stereo in the background of the short clip. Universal Music
Group sent YouTube a notice under the Digital Millennium Copyright Act (DMCA),
claiming that the family video infringed the copyright in Prince’s song. EFF sued Universal
on Lenz’s behalf on ground of misrepresentation under DMCA and sought a declaration from
the Court that her use of the Copyrighted song was non-infringing and according to DMCA
17 U.S.C. § 512(c)(3)(A)(v), the copyright holder must consider whether use of the material
was allowed by the copyright owner or the law. EFF argued that Universal abused the DMCA
by improperly targeting a lawful fair use. The United States Court of Appeals for the Ninth

26
572 F. Supp. 2d 1150, 1153–54 (N.D. Cal. 2008) also Lenz v Universal Music Corp et al, 9th U.S. Circuit
Court of Appeals, Nos. 13-16106, 13-16107.decided on 14th September 2015
251
Circuit ruled that copyright holders like Universal must consider fair use before trying to
remove content from the Internet. It also rejected Universal’s claim that a victim of takedown
abuse cannot vindicate her rights if she cannot show actual monetary loss. The EFF Legal
Director Corynne Mc Sherry said this ruling sends a strong message that copyright law does
not authorize thoughtless censorship of lawful speech,” and we are pleased that the court
recognized that ignoring fair use rights makes content holders liable for damages.”27 Further
he said it "sends a strong message that copyright law does not authorize thoughtless
censorship of lawful speech.28

5.2.2. Limitations on Exclusive Rights: Fair Use under the US Copyright Law

The current US Copyright and Related Law, Title 17 2011 in respect of doctrine of fair use
provision is similar to the guidelines in Falsom v Marsh case. The limitations of exclusive
rights i.e. fair use are incorporated in Sections 107 to 122. These sections deals with
limitations and scope of exclusive rights. Section 107 states “Notwithstanding the provisions
of sections 106 (exclusive rights in copyrighted works) and 106A (rights of certain authors to
attribution and integrity) the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of copyright”. In determining
whether the use made of a work in any particular case is a fair use, the factors to be
considered shall include—(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for non-profit educational purposes;(2) the nature of the
copyrighted work;(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and (4) the effect of the use upon the potential market for or
value of the copyrighted work. It further says that the fact that a work is unpublished shall not
itself bar a finding of fair use if such finding is made upon consideration of all the above
factors.

Reproduction by libraries and Archives (section 108): It is not an infringement of

copyright for a library or archives, or any of its employees acting within the scope of their
employment, to reproduce not more than one copy or phonorecord of a work, except as

27
https://www.eff.org/cases/lenz-v-universal;https://www.eff.org/document/9th-circuit-opinion-lenz visited on
September 15, 2015.
28
http://www.reuters.com/visited on September 15,2015
252
provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the
conditions specified by this section. 29 Section 110 of the Copyright and Related Law 2011
provides for certain acts as not infringements of copyright which includes the performance or
display of a work by instructors or pupils in the course of face-to-face teaching activities of a
non-profit educational institution, in a classroom or similar place devoted to instruction,
unless, in the case of a motion picture or other audio-visual work, the performance, or the
display of individual images, is given by means of a copy that was not lawfully made under
this title, and that the person responsible for the performance knew or had reason to believe
was not lawfully made except with respect to a work produced or marketed primarily for
performance or display as part of mediated instructional activities transmitted via digital
networks, or a performance or display that is given by means of a copy or phonorecord that is
not lawfully made and acquired under this title, and the transmitting government body or
accredited non-profit educational institution knew or had reason to believe was not lawfully
made and acquired, the performance of a non dramatic literary or musical work or reasonable
and limited portions of any other work, or display of a work in an amount comparable to that
which is typically displayed in the course of a live classroom session, by or in the course of a
transmission, if—subject to conditions. The secondary transmission of a performance or
display of a work embodied in a primary transmission is not an infringement of copyright30.
Except in the case of a motion picture or other audio-visual work, it is not an infringement of
copyright for a transmitting organization entitled to transmit to the public a performance or
display of a work, under a license, including a statutory license under section 114(f), or
transfer of the copyright or under the limitations on exclusive rights in sound recordings
specified by section 114 (a) or for a transmitting organization that is a broadcast radio or
television station licensed as such by the Federal Communications Commission and that
makes a broadcast transmission of a performance of a sound recording in a digital format on a
no subscription basis, to make no more than one copy or phonorecord of a particular
transmission program embodying the performance or display subject to conditions.31. Certain
actions are excluded from the scope of exclusive rights in sound recordings with limitations
and section115 deals with scope of exclusive rights in non-dramatic musical works;

29
Section 108 of the Copyright and Related Law 2011, www.copyright.gov/titile17
30
Section 111 of the Copyright and Related Law, 2011
31
Copyright and Related Law 2011,www.copyright.gov.title 17refer full section 114

253
compulsory licensing for making and distributing phonorecords. Notwithstanding the
provisions of section 106, it is not an infringement for the owner of a copy of a computer
program to make or authorize the making of another copy or adaptation of that computer
program provided:(1) that such a new copy or adaptation is created as an essential step in the
utilization of the computer program in conjunction with a machine and that it is used in no
other manner, or (2) that such new copy or adaptation is for archival purposes only and that
all archival copies are destroyed in the event that continued possession of the computer
program should cease to be rightful. (b) Lease, Sale, or Other Transfer of Additional Copy or
Adaptation. Any exact copies prepared in accordance with the provisions of this section may
be leased, sold, or otherwise transferred, along with the copy from which such copies were
prepared, only as part of the lease, sale, or other transfer of all rights in the program.
Adaptations so prepared may be transferred only with the authorization of the copyright
owner. (c) Machine Maintenance or Repair. It is not an infringement for the owner or lessee
of a machine to make or authorize the making of a copy of a computer program if such copy
is made solely by virtue of the activation of a machine that lawfully contains an authorized
copy of the computer program, for purposes only of maintenance or repair of that machine,
if— (1) such new copy is used in no other manner and is destroyed immediately after the
maintenance or repair is completed; and (2) with respect to any computer program or part
thereof that is not necessary for that machine to be activated, such program or part thereof is
not accessed or used other than to make such new copy by virtue of the activation of the
machine. Use of certain works in connection with non-commercial broadcasting and its
limitations is not considered as the infringement. Section 119 deals with limitations on
exclusive rights in secondary transmission of distant television programming by satellite
subject to certain limitations. In the case of a work lawfully reproduced in useful articles that
have been offered for sale or other distribution to the public, copyright does not include any
right to prevent the making, distribution, or display of pictures or photographs of such articles
in connection with advertisements or commentaries related to the distribution or display of
such articles, or in connection with news report 32 .Section 120 deals with the Scope of
exclusive rights in architectural works. It discusses the permissible acts like (a) Pictorial
Representations Permitted. The copyright in an architectural work that has been constructed
does not include the right to prevent the making, distributing, or public display of pictures,

32
Section 113 (c) of the Copyright Act 2011
254
paintings, photographs, or other pictorial representations of the work, if the building in which
the work is embodied is located in or ordinarily visible from a public place.(b) Alterations to
and Destruction of Buildings. Notwithstanding the provisions of section 106(2), the owners
of a building embodying an architectural work may, without the consent of the author or
copyright owner of the architectural work, make or authorize the making of alterations to
such building, and destroy or authorize the destruction of such building. Section 121
discusses about limitation on exclusive rights over reproduction for blind and other people
with disabilities. It states that reproduction of the copyrighted work in Braille and distribution
to the blind persons use is not considered as the infringement. It is not an infringement of
copyright for a publisher of print instructional materials for use in elementary or secondary
schools to create and distribute to the National Instructional Materials Access Center copies
of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of
the Individuals with Disabilities Education Act that contain the contents of print instructional
materials using the National Instructional Material Accessibility Standard (as defined in
section 674(e)(3) of that Act), if—(1) the inclusion of the contents of such print instructional
materials is required by any State educational agency or local educational agency; (2) the
publisher had the right to publish such print instructional materials in print formats; and (3)
such copies are used solely for reproduction or distribution of the contents of such print
instructional materials in specialized formats.

5.3. FAIR USE AND COPYRIGHT LAW OF UNITED KINGDOM

In UK, the concept of ‘fair use’ is known as the ‘fair dealing’. It is a common law defense
available to a person using the copyrighted material just like fair use doctrine of the US. The
first Copyright Act in England is called the first Copyright Act in the World which was
passed in 1709 called the “Statute of Anne”. The Courts have created a doctrine called
‘Fairness Abridgement’ in the case of Gyles v Wilcox 33 . This case being the base for
evolution of concept of fair use, it is necessary to know the facts of the case. Gyles, was a
bookseller who had published a copy of Mathew Hale’s ‘Pleas of the Crown’. After the initial
publication, the publishers Wilcox and Nutt hired a writer named Barrow to abridge the book
and said to renamed as ‘Modern Crown Law’. After knowing this Gyles sued for
infringement and sought for stay on the book’s publishing, stating his rights are infringed

33
3Gyles v Wilcox, Barrow, and Nutt, 3 Atk 143; 26 ER 489 (Court of Chancery (England) 1740).
255
under the Statute of Anne. The issue for deciding in this case was whether or not
abridgements of a work were pirated copies or whether they fall under new work. This case
was presided by Lord Hartwicke and he said abridgements fell under two categories “true
abridgements" and "coloured shortenings". True abridgements presented a true effort on the
part of the editor, and by this effort, constituted a new work which did not infringe upon
the copyright of the original. Leaving it to literary and legal experts to decide, Hardwicke
ruled that Modern Crown Law was not a true abridgement, but merely a piracy. This case
became a precedent and established a common law doctrine of ‘fair abridgement’ and is cited
in many cases and finally evolved as ‘fair use’. It is in this case that it was recognized the
difference between copyright of author and publishing rights, thereby encouraging production
of new and useful works. Then came the Imperial Copyright Act 1911 which did not discuss
about fair dealing and after that the Copyright Act 1956 came into existence. The Copyright
Act 1956 provides general exceptions under Section 6 from protection of literary, dramatic
and musical works. Section 6(1) says No fair dealing with a literary, dramatic or musical
work for purposes of research or private study shall constitute an infringement of the
copyright in the work. Again Sub section (2) says No fair dealing with a literary, dramatic or
musical work shall constitute an infringement of copyright in the work if it is for the purposes
of criticism or review, whether of that work or of another work ,and is accompanied by
sufficient acknowledgement. Further Sub section (3) No fair dealing with a literary, dramatic
or musical work shall constitute an infringement of copyright in the work if it is for the
purpose of reporting current events (a) in a newspaper, magazine or similar periodical, or (b)
by means of broadcasting, or in a cinematograph film, and, in a case falling within the
paragraph (a) of this subsection, is accompanied by sufficient acknowledgment. The
copyright in a literary, dramatic or musical work is not infringed by reproducing it for the
purposes of a judicial proceeding or for the purposes of a report of a judicial proceeding. The
reading and recitation in public by one person of any reasonable extract from a published
literary or dramatic work, if accompanied by a sufficient acknowledgement, shall not
constitute an infringement of the copyright in the work provided that this sub section shall not
apply to anything done for the purposes of broadcasting. The copyright in a published literary
or dramatic work is not infringed by the inclusion of a short passage there from in a
collection intended for the use of schools if (a)The collection is described in its title, and in
any advertisements thereof issued by or on behalf of the publisher, as being so intended (b)

256
and the work in question, was not published for the use of schools and (c) the collection
consists mainly of material in which no copyright subsists and(d) the inclusion of passage is
accompanied by a sufficient acknowledgement but again this does not apply if two or more
excerpts of same author are taken published by the same publisher within period of 5yrs
immediately preceding the publication of the collection. By virtue of an assignment or
license, a person is authorized to broadcast a literary, dramatic or musical work from a place
in UK or in another country to which section 2 of this Act applies but apart from this
provision would not be entitled to make reproductions of it in the form of record or of a
cinematograph of a film, the copyright in the work is not infringed by his making such a
reproduction of the work solely for the purpose of broadcasting of the work at the same time
this section does not apply if the reproduction is used for further reproduction or any other
than the purpose of broadcasting as per assignment/licence (b) and the reproduction is not
destroyed before the end of the period of 28 days beginning with the day on which it is first
used for broadcasting the work in pursuance of assignment/licence as agreed upon. Apart
from these sections there are other special provisions stated in Sections 7 to 9 of the Act
which provides for special exceptions with respect to libraries and archives. No fair dealing
with an artistic work for purposes of research/private study, criticism/review shall constitute
an infringement in the copyright of that work /another work, if it is accompanied by sufficient
acknowledgement whether the work relates to painting, drawing, engraving,
photograph/cinematograph of film or relating to any sculptures, architecture etc. Section10 of
the Act provides for special exception in respect of copyright of artistic work relating to
industrial designs registered under the Registered Designs Act 1949 and do not constitute
infringement.34

For the first time fair dealing was defined by Lord Denning in Hubbard v Vosper35 opined
that “It is impossible to define what is ‘fair dealing.’ It must be a question of degree. One
must consider first the number and extent of the quotations and extracts. Are they altogether
too many and too long to be fair? Then one 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. This
case sets out the main test for fairness. If the defendant shows that it falls in the enumerated

34
See www.legislation.gov.uk last visited on 29.11.2013
35
(1971) 1 All E.R. 1023; 1972 2 QB.84 at 94-95 or
257
purpose of fair use it is for the defendant to show that the dealing is fair. Next, one must
consider the proportions…. Other considerations may come to mind also. But after all is said
and done, it must be a matter of impression”.

After that a committee under the Chairmanship of Justice Whit Ford reviewed the existing
law on copyright and designs and submitted its report in the year 1977 and he made several
recommendations for amendments of law, which do not fall under infringement. Sections 29
36
says fair dealing in a work for the purposes of private study /research is permitted . Sub

section (1) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of
research for a non-commercial purpose does not infringe any copyright in the work provided
that it is accompanied by a sufficient acknowledgement.37 Further sub sec (1B) is also added
stating that no acknowledgement is required in connection with fair dealing for the purposes
mentioned in subsection (1) where this would be impossible for reasons of practicality or
otherwise. Sub section (1C) fair dealing with a literary, dramatic, musical or artistic work for
the purposes of private study does not infringe any copyright in the work. Sub section (2) Fair
dealing with the typographical arrangement of a published edition for the purposes (of
research or private study does not infringe any copyright in the arrangement38.Sub section (3)
Copying by a person other than the researcher or student himself is not fair dealing. Sub
section (4) It is not fair dealing—(a) to convert a computer program expressed in a low level
language into a version expressed in a higher level language, or (b) incidentally in the course
of so converting the program, to copy it, but these acts being permitted if done in accordance
with section 50B (decompilation)39.(4A) It is not fair dealing to observe, study or test the
functioning of a computer program in order to determine the ideas and principles which
underlie any element of the program (these acts being permitted if done in accordance with
section 50 BA (observing, studying and testing) 40 .However, in 2003, the 1988 Act was
amended to exclude commercial use from the definition of fair dealing. Section 30 of the Act

36
S. 29(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.
2003/2498), reg. 9(a), (with regs 31-40)
37
S. 29(1B)(1C) substituted (31.10.2003) for s. 29(1A) by The Copyright and Related Rights Regulations 2003
(S.I. 2003/2498), reg. 9(b) (withregs. 31-40)
38
Words in s. 29(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.
2003/2498), reg. 9(c) (with regs. 31-40)
39
S. 29(4) inserted (1.1.1993) by S.I. 1992/3233, reg. 7
40
S. 29(4A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg.
9(d) (with regs. 31-40)
258
deals with (1) Fair dealing with a work for the purpose of criticism or review, of that or
another work or of a performance of a work, does not infringe any copyright in the work
provided that it is accompanied by a sufficient acknowledgement and further 2003 copyright
and related rights regulation says (provided that the work has been made available to the
public 41 .) (1A) for the purposes of subsection (1) a work has been made available to the
public, if it has been made available by any means, including—(a) the issue of copies to the
public;(b) making the work available by means of an electronic retrieval system;(c) the rental
or lending of copies of the work to the public;(d) the performance, exhibition, playing or
showing of the work in public;(e) the communication to the public of the work, but in
determining generally for the purposes of that subsection whether a work has been made
available to the public no account shall be taken of any unauthorised act.42(2)Fair dealing
with a work (other than a photograph) for the purpose of reporting current events does not
infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied
by a sufficient acknowledgement. (3)No acknowledgement is required in connection with the
reporting of current events by means of a sound recording, and ( film or broadcast where this
would be impossible for reasons of practicality or otherwise.)43

The Copyright Act 2003 and related rights regulation provides for the some of the provisions
relating to fair dealing. Section 31 deals with incidental inclusion of copyright material that is
copyright in a work is not infringed by its incidental inclusion in an artistic work, sound
recording, (film or broadcast is included.)44, nor is the copyright infringed by the issue to the
issue to the public of copies, or the playing, showing, (or communication to the public)45, of
anything whose making was, by virtue of sub section (1), not an infringement of the
copyright. A musical work, words spoken or sung with music, or so much of a sound
recording or broadcast (CRR Regulation 2003) as includes a musical work or such words,
shall not be regarded as incidentally included in another work if it is deliberately included.

41
Words in s. 30(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.
2003/2498), reg. 10(1)(a) (with regs. 31-40
42
S. 30(1A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg.
10(1)(b) (with regs. 31-40)
43
Words in s. 30(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.
2003/2498), reg. 10(1)(c) (with regs. 31-40)
44
Words in s. 31(1)(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.
2003/2498), reg. 2(1), Sch. 1 para. 3(1)(d)(e) (with regs. 31-40)
45
Words in s. 31(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003
(31.10.2003), reg. 2(1), {Sch. 1 para. 6(2)(b)} (with reg. 31-40)
259
Section 31A further discusses about making a single accessible copy for personal use. It deals
with the visually impaired and blind people who were granted an exception. Sections 31B to
74 provides a list of activities which do not fall under infringement.

These legislations enacted in the United Kingdom brought several changes in the copyright
law of that country. Another interesting case of fair use is Princess Diana case. Hyde Park
Residence Ltd v Yelland46 came up before the High Court, Chancery Division in the year
1998 when Princess Diana died in a car accident. The plaintiff was the Hyde Park Residence
Ltd. which provided security services to Mr. Mohammed Al Fayed and his family. Princess
Diana visited Villa Windsor of Mr. Fayed on 30th Aug 1997 just one day before she was
killed in an accident. The video security system at the villa had recorded her photos on her
arrival and departure from the villa. An employee at the villa named Murrell before his
resignation from the employment had taken the photos and gave these photos to two local
newspapers, The Sunday Times and The India Daily Mirror. Then the Sun Magazine
published the copies of the photos and the plaintiffs filed a suit for infringement of copyrights
over the photos. The defendants (the editor, publisher and printer) claimed that they were
entitled to publish the photos in public interest and that they did not violate the Copyright Act
1988 and there was a valid defence available under section 30(3) of the said Act .The issue
was whether publication of photos after one year of the incident can be considered as fair use
or not as the news was no longer of any current interest. Moreover Murrell was paid for the
photos and it was not fair dealing with the Sun as he had not given in the public interest. The
High Court held that there is a common law defence of public interest which answers to
disclosure of confidential information. The court said that the defence can be raised in the
context that it communicates information that is of genuine public interest. Further the court
opined that the disclosure of information should be proportionate to public interest. On an
examination of facts it was seen that only two days before the publication in the Sun
magazine, Mr. Fayed had published in the Daily Mirror the proposition that there had been a
visit made by the Princess to the villa for two hours. It was argued that the photos published
was important as it was reporting current news and so the publication falls within the defence
of ‘fair dealing’ as it was published in public interest. The photographs in this case had been
copied, sold and republished. It is opined by the court that even if some degree of use would
be fair dealing, excessive use can render the use unfair. Moreover it said that the basis of the
46
Dr.T.VidyaKumari – Copyright Protection Current Indian and International Perspectives-2004 ED-p-129
260
defence of public interest in a breach of confidence action cannot be the same as the basis of
such defence to an action for infringement of copyright. In an action for breach of confidence
the foundation of the action can fall away if that is required in the public interest, but that can
never happen in a copyright action. 47 The courts have an inherent discretion to refuse to
enforce copyright .The court stated that it would be entitled to refuse to enforce copyright if
the work is: (i) immoral, scandalous or contrary to family life; (ii) injurious to public life,
public health and safety or the administration of justice; (iii) incites or encourages others to
act in a way referred to in (ii). The attempt to establish a public interest defence failed.48
Hence it was not considered as fair use.

In Beloff v Pressdram 49 it is opined that the drawback of fair dealing is that it is only
permitted if it is listed in Copyright Designs & Patent Act 1988(CDPA) which means it is
irrelevant whether the dealing is fair in general or fair for a purpose not specified in the Act.50
If a dealing falls within one of the purposes specified in the CDPA, its fairness must be
shown. What is fair is however not defined in the Act. It is rather a question of degree and
impression. 51 To determine fairness, guidance can be taken from previous cases which
developed factors. The importance given to these factors depends on the circumstances
surrounding the infringing act and therefore varies as per the case in question.52The quantity
and quality of what has been taken from the copyrighted work has to be looked into.53

5.4. FAIR DEALING: COPYRIGHT LAW OF CANADA

Canada passed its first colonial Copyright Statute in 1832 but was subject to imperial
copyright law established by Britain until 1921. After that the 1832 Act was repealed with

47
Swark.co.uk/hyde park residence ltd vs yelland –new-group-newspaper-news-international-ltd-murell-ca-
updated on feb23rd 2013 last visited on 16.12.2013.
48
swarb.co.uk/hyde-park-residence-ltd v.yelland-new-group-newspaper-news-international-ltd-murrell-ca-10-
feb-2000 updated on feb 23rd 2013 .last visited on 16th December 2013.
49
Beloff v Pressdram, (1973) 1 All ER 241(262) (Ungoed –Thomas J) Burell (IPQ) 2001

50
Beloff v Pressdram, (1973) 1 All ER 241(262) (Ungoed –Thomas J) Burell (IPQ) 2001, 361(362), Bentlyl
Sherman,Intellectual Property Law2, 193; Copinger,Para.9-07; Dworkin/Taylor,Blackstone’s guide to CDPA,71
51
BBC v BSB Ltd,(1992) Ch 141 (149) (Scott J); Beloff v Pressdram, (1973) FSR 33 (61) (Ungoed-Thomas J
);Hubbard v Vosper,(1972) , 2 QB 84 (94) Lord Denning MR.)
52
Bainbridge, Intellectual Property,197; BentlylSherman, Intellectual Property Law, 194; Torremans,
Intellectual Property Law, 253 et seq.
53
Hubbard v Vosper,(1972) , 2 QB 84 (94) Lord Denning MR.); Bentlyl Sherman, Intellectual Property Law,
195.
261
minor changes and was enacted as The Copyright Act 1841.54 Canadian Parliament passed
the country’s first domestic copyright legislation, called as the Copyright Act 1921 which
came into effect in 1924. The new Canadian legislation was almost identical to the
British Copyright Act of 1911. Between 1924 and 1988 and 1997 the Act saw only minor
amendments to its provisions. The international agreements on copyright law had great
impact on copyright law in Canada. Firstly it was the Berne Convention1886 which lays
down minimum standards of protection and also duration of protection for authors in literary,
dramatic, musical and artistic works. Only few changes in Berne Convention were accepted
by Canada. In the year 1964 on May 18th another international convention for the Protection
of Performers, Producers of Phonograms and Broadcasting Organizations (Rome
Convention) came into force and Canada also signed it. But then after, the 1971 version of
Berne Convention was accepted by Canada. Further the bilateral and multilateral free trade
agreements in 1989 between US and Canada brought changes in the copyright law in Canada.
Because of these agreements the cable and satellite companies were made to pay for the
retransmission of works included in distant broadcast signals. Later North American Free
Trade Agreement was entered into and the Copyright Act was further amended in 1994. In
the year 1996 two international treaties, the WIPO Copyright treaty and WIPO Performances
and Phonograms Treaty came into existence and Canada signed it in the year 1997. These
treaties are concerned with copyright protection in digital age. Reforms were proposed for the
original Copyright Act 1922 in 2005 and 2008 by the government to incorporate the
provisions of these treaties. The current Copyright Amendment Act 2012 has made several
changes as per the international agreements. The fair dealing provisions of the Copyright
Amendment Act 2012 has included three more defenses, apart from research, private study,
criticism or review and news reporting, it included education, parody and satire as defences to
infringement. In the traditional school of thought the scholars, practioners and the Courts
considered fair dealing as a defense to copyright infringement. Traditionally, the user had to
prove that the action falls in one of purposes i.e research or private study, criticism or review,
and news reporting and secondly that the action was fair and is used for purpose of
criticism/review and news reporting and also it is necessary to acknowledge the source. Pre

54
Gendrequ, Ysolde (2008). An emerging intellectual property paradigm: perspectives from Canada. Edward
Elgar. pp. 110–111. ISBN 978-1-84720-597-1.
262
CCH case, no Canadian courts accepted defense of parody to a claim of copyright
infringement. The question was whether parodies infringe copyright in Canada?

The first Canadian case that dealt parody as a defense to a claim of copyright infringement
was in Michelin-Michelin & Cie v CAW Canada National Automobile 55 , Aerospace
Transportation and General Workers Union of Canada(CAW Canada) considered the issue of
parody. The Michelin Tire Company sued a union for copyright infringement arising from its
use of the Michelin Man (Bibendum) logo in leaflets distributed during a labour dispute. The
defendants (CAW) argued that their version of Bibendum was a parody, and, as a result,did
not infringe copyright. It argued that parody is protected under the fair dealing defense.
Specifically, it argued that the category of criticism should be interpreted in such a manner
that would encompass parody. The burden of proof was on the defendants but they were not
successful the Court ruled that parody was not an exception to infringement under the
Canadian Copyright Act as parody was not synonymous to criticism. The Court refused to
rely on US case law allowing parody under fair use. It was opined that even if the Court had
US case law fair dealing it would still fail as two requirements are not met as the authors
name and source was not mentioned, neither there was a fair treatment. The Court referring to
in this case said that exceptions should be strictly interpreted and that fair dealing in
particular has an exhaustive set of grounds under CCA. Teitelbaum J., of Federal Court (Trial
Division), rejected the argument that he should “give the word ‘Criticism’ such a large
meaning that it includes parody”. The Judge stated that in interpreting criticism in such a
manner that encompasses parody, he would be “creating new exception to copyright
infringement, a step that only parliament has the jurisdiction to do”. As a result judge rejected
the contention that parody is a defense to copyright infringement.

Two years after Michelin judgment, the Quebec Court of Appeal in Productions Avanti Cine
Video Inc. C. Favreau56 dealt with an allegation of copyright infringement in which parody
was argued as defense. Favreau allegedly infringed copyright by creating a pornographic film
entitled “La Petite Vite” that substantially copied the most original and important elements of
‘La Petite Vite’ highly original and very well known situation comedy which is most popular
series in the history of Quebec television. In a concurring judgment Rothman J addressed
55
1997, 2 F.C. 306
56
1999, 177 D.L.R. (4th) 129

263
Favreau’s claim that parody could act as a defense to copyright infringement in certain
circumstances. Respondent’s only serious defense of his use of characters, costumes and
décor created in “La Petite Vie” in a defense of fair use of these elements for purpose of
parody .. With respect, he said I see nothing in “La Petite Vite” that could possibly be
characterized as parody. Clearly, its purpose was not to parody “La Petite Vie” but simply to
exploit the popularity of that television series by appropriating its characteristics, costumes
and décor as a mise-en-scene for respondent’s video film. Parody normally involves
humorous imitation of the work of another writer, often exaggerated for purposes of criticism
or comment. Appropriation of work of another writer, often exaggerated for purposes of
criticism or comment. Appropriation of work of another writer to exploit its popular success
for commercial purposes is quiet different thing. It is no more than commercial opportunism.
The line may sometimes be difficult to trace, but Courts have a duty to make the proper
distinction in each case having regard to copyright protection as well as freedom of
expression. The Judge said in this case the respondent was on wrong side of that line.
Eventhough Rotham J. hinted at the potential applicability of a defence of parody to a claim
of copyright infringement, Pre CCH, Mitchelin is the only Canadian case to have addressed
the particular issue of whether the fair dealing defence (and, particularly, the fair dealing
category of criticism) provides protection for parody.

In Boudreau v Lin57case no fair dealing was recognized for ‘private study’ with regard to
substantial use of portions of students work in a professor’s paper. In this case the Court dealt
with fraudulent nature of dealing. The defendant in this case was a professor of University of
Ottawa deleted the students name from the paper, replaced it with his own along with that of
an associate and presented the paper at a conference and sold copies of the paper to other
students. The professor made only minor changes to the paper by removing certain graphs
and tables and replaced it with textual explanations and made minor bibliographic changes
and changed the title. The court concluded this can hardly be said as fair dealing and
mandated that the defence be restrictively interpreted. So far the defense to copyright

57
Boudreau v. Lin et al.(1997), 150D.L.R. 324, 1997 Carswell Ont 3747, 75 C.P.R. (3d) 1, 38 O.T.C. 39, 38
O.T.C. 39 (Ont. Ct. Gen. Div.)
264
infringement, such as fair dealing, were seen as limitations on the copyright holder’s
exclusive rights, and were generally interpreted restrictively.58

In 2004, however in CCH et al; the Supreme Court of Canada, signaled a dramatic shift in the
way that copyright defenses should be interpreted. The Supreme Court of Canada in CCH
Canadian Ltd. v Law Society of Upper Canada 59 , ruled that the Law Society of Upper
Canada did not infringe copyright because its Great Library request based ‘reproduction
services’ fell within the fair dealing doctrine. The Court in this case gave a different
dimension to fair dealing by calling it as ‘Users right’. But then this case has been criticized
for creating uncertainty about its scope. The appellant Law Society maintains and operates
the Great Library at Osgoode Hall in Toronto. This library is a reference and research library
with one of the largest collections of legal materials in Canada. The Great Library provides a
request-based photocopy service for Law Society members, the judiciary and other
authorized researchers. Legal materials are reproduced by this library staff and delivered in
person, by mail or by facsimile transmission to requesters by way of ‘custom photocopy
service.’ The Law Society also maintains self service photocopiers in the Great Library for
use by its patrons. The respondent publishers in 1993 filed a suit for copyright infringement
against the Law Society, seeking a declaration of subsistence and ownership of copyright in
specific works and a declaration that the Law Society had infringed copyright when the Great
Library reproduced a copy of each of the works. The publishers also sought a permanent
injunction prohibiting the Law Society from reproducing these works as well as any other
works that they published. The contention of Law Society is that their action is not
infringement for the reason that a single copy of a reported decision, case summary, statute,
regulation or a limited selection of text from a treatise is made by the Great Library staff, or
one of its patrons on a self-service copier, for the purpose of research. It argued that the Law
Society does not authorize copyright infringement by maintaining a photocopier in the Great
Library and moreover it also posted a notice warning that it will not be responsible for any
copies made in infringement of copyright. On hearing, the trial court allowed the publishers
action in part, by finding that Law Society infringed copyright in certain woks and also

58
Refer Robertson v Thomson Corp.(2004) 72 O.R(3d) 481 CA Para.36; Michelin case;Boudreau v.Lin;Allen v
Toronto Star Newspapers. Ltd(1997) 36 O.R(3d) 201(Ct.J, (Gen.Div). Div.Ct.) a case pre CCH et al; which took
a liberal approach to the fair dealing defense.)
59
CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13; See http://scc-
csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en
265
dismissed its counter claim. The Court of appeal allowed the publishers’ appeal in part,
holding that all of the works were original and therefore covered by copyright. It dismissed
the Law Society’s cross-appeal. The Supreme Court of Canada ruled that the Law Society of
Upper Canada did not infringe copyright because its Great Library request based
‘reproduction services’ fell squarely within the Great library access policy and permissible
acts of the fair dealing doctrine. The Great Library provided copies of such work to lawyers
and other authorized persons to assist them with advising clients, giving opinions, preparing
legal documents and arguing cases. The SC stated that Section 29 of the CCA and other
exceptions should be interpreted more broadly and not restrictively and if it for the research
purpose, then a large and liberal interpretation has to be given in order to ensure that users
rights are not unduly constrained and are not limited to non-commercial or private contexts.
But the court did not say that commercial research is fair dealing. The Court said, the lawyers
carrying on the business of law for profit were held to be conducting no infringing research
and the onus to prove that the dealing is fair falls on the law society. The Court while
deciding the case applied all the six factors the purpose (and commercial nature) of the
dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the
nature of the work, and the effect of the dealing on the work.60 While dealing with the first
factor that is purpose of fair dealing. The court assessed the real purpose or motive in using
the copyrighted works. As per the Great Library access policy, the patrons making the request
must state the purpose of use and where any ambiguity arises the matter must be referred to
reference librarian. This helped the court to decide on the purpose factor and the court
concluded that the policy provided reasonable safeguards that the materials were being used
for the purpose of research and private study. The next factor the court dealt is character of
dealing, that is how the works were dealt. If multiple copies are widely distributed it is unfair
but in this single copy was made available to individuals of legal profession. The Court also
stated that if the copy is destroyed after use this may favour a finding of fairness. The third
factor the court dealt is the amount of dealing it noted that for the purpose of research or
private study it may be essential to copy the entire academic article or an entire judicial
decision. But this wholesale inclusion would not likely be available for the purpose of
criticism or review in the case of literature. In case of research and private study wider scope

60
Giuseppina D Agostino-Hearing Fair Dealing ? A Comparitive Copyright Analysis of Canada’s Fair Dealing
to UK Fair dealing and US Fair use article published in Mac Gill Law Journal, Vol.53,2008-p-320 to 324.
266
given under the court’s reading of fair deal. On the amount of dealing the court relied on
Great library’s access policy in determining the institution would exercise discretion to
ensure fair dealing and that there was no evidence that the court received and supplied
multiple copy requests. The court decided based on the user’s practice. The fourth factor
court discussed is the alternatives to fair dealing whether there was an alternative available?
A court may decide against fair dealing, firstly when a non copyrighted work was available as
an alternative and secondly when the use of the copyrighted work was not reasonably
necessary to achieve the ultimate purpose. For example, if criticism would be equally
effective without reproducing the copyrighted work, this may weigh against fair dealing. In
this case, the court stated that there were no alternatives to the Toronto based Great Library’s
photocopying service because twenty percent of this library patrons were based outside
Toronto and researchers were not allowed to borrow materials from the Great library
therefore justifying the need for copying. The court focused on the access of works and not
on no copyrighted works. Fifth factor was with regard to the nature of work. The court stated
that if a work is unpublished, the dealing may be morefair in that its reproduction with
acknowledgement could lead to a wider public dissemination of work serving the goals of
copyright. The court said that Great library satisfied this factor as the work in question were
essential to legal research and were subject to access policy, which states the patron’s
purpose in accessing the works must be research, private study criticism, review or use in
legal proceedings. The sixth factor which was dealt by the court is the effect of the dealing on
the work. If the work in question competes for the market of the original work, it is found to
be less likely to be fair. The court felt that this factor is less important than others while in
UK, this factor is considered to be more important. Further, the Court felt that there was no
evidence to show it affected the publishers market and moreover the publishers continued to
publish new report series and other legal publications during this period of request based
copying. But to prove this the Law Society had the evidentiary burden and it lacked access to
about the effect of dealing on the publishers markets. The decision suggests that the onus may
be reversed if the defendant cannot access market impact evidence. Reversal of onus on
publishers would be fair as they are in better position to access such records as it would
involve crystal ball gazing. The Court in this case considered fair dealing as defense to user
more as a right of user and an integral part of copyright law, while fair dealing is denoted as
an exemption or exception or as defense prior to CCH. In this case the court took a liberal

267
approach and opined fair dealing should not be given restrictive interpretation, it was more in
alignment with the US flexible approach to fair use. Further the Court stated that new
purposes, including parody could be included in the Canadian Copyright Act under
enumerated grounds in the light of real purpose or motive in using the copyrighted work. The
counsel for CCH argued in the beginning of the case in 1993 that libraries, archives and
museums were not included as exceptions in CCA but it still would prefer to rely on the fair
dealing doctrine under section 29 and if the library is not able to make a ground under this
then only it would prefer to specific exception section under 30.2 of the Copyright Act for
library exemption. Critics of this case wanted to know where does the creator fit in this CCH
case and said it would not be applicable to other creative domains, where revenue from the
copyrighted work is often the creators sole source of income. Though CCH championed users
right but felt that this oversight may affect the future rulings as this case dealt with legal
professionals as creators and not as musicians, freelance authors or bloggers and they had
opined that would the Court give the same ruling for other categories of creators? or not.

The Courts gave a liberal interpretation relating to news reporting in Allen v Toronto Star
61
Newspapers Ltd Jim Allen, a freelance photographer sued a newspaper publisher for
reproducing a magazine cover containing a photograph of Sheila Copps. The use by the
Toronto Star on March 10, 1990 of a photographic reproduction of the November 1985 cover
of Saturday Night was related to current news, the leadership aspirations of Ms. Copps. The
other photo used to illustrate the feature article on Ms. Copps portrayed her in a more
traditional political appearance in 1990. It was therefore apt for the newspaper to contrast the
image she was willing to project in 1985. The change in her image was the thrust of the
article. The cover was not reproduced in colour as it was the original. Its cover was
reproduced in reduced form. The news story and accompanying photos received no special
prominence in the newspaper. They appeared on an inside page of an inside section. These
factors are indications that the purpose of its reproduction of the cover was to aid in the
presentation of a news story and not to gain an unfair commercial or competitive advantage
over Allen or Saturday Night. Both the sides gave conflicting testimony on industry custom,
the Ontario Court of Justice ruled that the photographer held copyright in the photo, and not
in the cover which was created by the magazine. Allen’s copyright in the photo is not
disputed but in appeal a question arose as how a copyrighted material legitimately be utilized
61
1997,36 O.R(3d)201(Div.Court)
268
in the creation of new work. The trial Court held that fair dealing defence in news reporting
applied in this case. The Division Court overruled stating that fair dealing does not apply to
entire copyrighted work. The Court looked into the nature and purpose of use which included
news reporting as fair dealing. The Court considered the CCH market substitute criteria but
concluded by stating that the photograph was not used to gain an unfair commercial or
competitive advantage over the plaintiff or the magazine Saturday Night. Moreover the Court
also allowed in CCH a fair dealing in a commercial context. In this case a liberal approach is
made by making the following assessments. i.e the purpose of a relaying current event was
allowed in a commercial context. The nature of work as an entire work, such as photograph
was fair dealing and that the magazine did not seek to gain commercial advantage over the
original work and therefore market substitute criteria was not satisfied. The Courts
conclusion regarding extent of work copied differs from its earlier decision in Zamacois v
Douville62 in which the same Court held that the reproduction of entire newspaper article was
not fair dealing for the purpose of ‘criticism’. The defendants unsuccessfully argued that the
article was necessary because another article published in the same edition criticized the work
and of current interest on an economic and political topic. The Court found that a person
could not reproduce an article in full for the purpose of criticism without the authors
permission.

The Supreme Court of Canada in Province of Alberta (Education) v. Canadian Copyright

Licensing Agency (Access Copyright) 63while dealing with the issue in the appeal is whether
the photocopies made by the teachers of the excerpts in the textbooks was considered fair
dealing or not the court had to check if it fell under the exception ‘research’ or ‘private
study’. The CCLA represents the authors and publishers of literary and artistic works. It
allows the reproduction of works by issuing licences and collecting and distributing royalties
to affiliated copyright owners. But if licensing or royalty agreements with users of the printed
works could not be reached the CCLA has the option to apply to the Copyright Board to
certify a royalty in the form of tariff. Teachers in schools frequently made photocopies of
excerpts from textbooks and from CCLA copyrights’ collection. The CCLA wanted to revise
the royalty scheme in the agreements as between the provinces and the Ontario School
Boards. But when the scheme is opposed it applied to the board for tariff. Though teachers

62
Zamacois v. Douville [1943] 2 D.L.R. 257
63
http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/9997/index.do; citation 2012 SCC 37
269
act fell under the exception of ‘research and private study’, the copyright board held that it
did not constitute fair dealing and were therefore subject to royalty. When the case came up
before the federal Court of appeal it upheld the copyright board’s decision that the copies
were not fair dealing and the first step is to determine whether the dealing is for the allowable
purpose of “research or private study. The second step assesses whether the dealing is “fair”.
The Court stated that there is no dispute that the first step of the test set out in CCH was met
and that the dealing photocopying fell under the purpose of research or private study. The
Court looked into the second step of the test, namely, whether the copies were “fair”
according to the factors set out in CCH the purpose, character, and amount of the dealing;
the existence of any alternatives to the dealing; the nature of the work; and the effect of the
dealing on the work. While discussing the purpose of the work the Court opined that whether
the dealing is for an allowable purpose, the relevant perspective is that of the user/student.
Then secondly it is of the copier/teacher but this will be relevant only if the copier hides
behind the shield of the user’s allowable purpose in order to engage in a separate purpose on
the part of the teachers in this case. They have no commercial motive providing copies to
students. The SC has gone through the approach of the copyright Board. The Board
concluded that the predominant purpose was that of the teacher as the copier. This meant that
the purpose was instruction, not research or private study. Copyright Board draws a
distinction between copies made by the teacher at the request of a student and copies made by
the teacher without a prior request from a student. Then the SC checked into the next factor
‘amount of dealing’ Copyright Board’s approach to the “amount of the dealing” factor was
also flawed. It was found that teachers only copied short excerpts of each textbook; the Board
was required to determine whether the proportion of each of the short excerpts in relation to
the whole work was fair. This factor is not a quantitative assessment based on aggregate use,
but an examination of the proportion between the excerpted copy and the entire work. The
fourth factor is ‘alternatives to the dealing’ is buying textbooks for every student is not a
realistic alternative for teachers copying short excerpts to supplement student text books in
the light of Board’s finding that teachers only photocopy short excerpts to complement
existing textbooks. The fifth factor is ‘effect of the dealing’- The SC stated that there was no
evidence to show that photocopying short excerpts resulted in decline in textbook sales.
Moreover, the Board’s finding that the teachers’ copying was limited to short excerpts of
complementary texts, makes it difficult to see how the teachers’ copying competes with the

270
market for textbooks. The dissenting judges stated - Whether dealing is fair is a question of
fact. The CCH factors help assess whether dealing is fair, but they are not statutory
requirements. The Copyright Board’s application of these factors to the facts of a case should
be treated with deference and a reasonableness standard should be applied on judicial review.
In this case, the Board made no reviewable error in principle. The Supreme Court stated that
“the Board’s analysis of the amount of the dealing remained focused on the overall
proportion of the copied pages of a work in relation to the entire work over a period of time.
Its analysis of the character of the dealing focused on the fact that multiple copies of the same
excerpt are made, at any one time, to be disseminated to a whole class. There is no basis to
disturb the Board’s assessments of these factors. The Board’s analysis of alternatives to the
dealing was not unreasonable. Furthermore, in a case where numerous short excerpts of the
work are taken, the fact that there are no non-copyrighted alternatives will not automatically
render dealing fair. The Board’s conclusion that the dealing competes with the original work
to an extent that makes the dealing unfair is unsupported by evidence and unreasonable.
However, no one CCH factor is determinative and the Board considered the purpose of the
dealing and the amount of the dealing to be the most important factors, therefore this error is
not sufficient to render the Board’s decision unreasonable. The Board’s decision was
intelligible, transparent and justifiable and cannot be said to fall outside of a reasonable range
of outcomes”.64

The Supreme Court of Canada in Society of Composers Authors and Music Publishers of
Canada v. Bell Canada,65 case discussed the scope of fair dealing. The issue dealt in this case
is whether ‘previews of music’ fall under the fair dealing. The case is regarding the online
music service providers giving customers the ability to listen to free previews of musical
works prior to purchase of musical works and about the Collective society seeking to collect
royalties for use of previews. The facts of the case are: Appellants - The Society of
composers, authors and music publishers of Canada represent the composers, authors and
music publishers and therefore it administers their performing and communication rights. The
Respondents are Bell Canada the Internet service Providers. The society filed the proposed
tariffs with the Copyright Board for the determination of royalties to be paid when the

64
Ibid
65
http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/9996/index.do;citation- SCC 36, [2012] 2
S.C.R. 326
271
musical works are communicated to the public via internet. The Board agreed that society
was entitled to collect the royalties for the downloading of musical works but not for the
previews. The Federal Court of Appeal upheld the Board’s decision and again on appeal the
case came up before Supreme Court of Canada. The Supreme Court of Canada dismissed the
case stating that previews fell under the scope of fair dealing section 29 of the Copyright Act.
The two step test for fair dealing laid down in CCH is referred. The first test is to determine
whether dealing is for the purpose of either “research /private study” under section 29 of the
copyright Act and second test is to assess whether the dealing is ‘fair’. The Court on deciding
whether previews fall under the purpose of research analyzed from the perspective of the
consumer as the ultimate user and not from the view point of online service provider. The
Court said that the Copyright Board is correct in considering previews from the perspective
of consumer in conducting research to identify which music to purchase. The Court said
limiting research for creative purposes only is not correct and this fair dealing exception
should be interpreted liberally and not restrictively. The Court while determining whether the
dealing is fair, checked into all the factors like purpose, character, amount of dealing, the
existence of alternatives to the dealing, the nature of work and the effect of the dealing on the
work. The Court said that the service providers facilitate the research purposes of the
consumer and there are reasonable safeguards to ensure that the previews are being used for
this purpose and the Board properly concluded that previews constitute fair dealing. Dealing
with the second factor, the character of dealing, the Court said that the users do not keep
permanent copy of the preview, as it is streamlined and automatically deleted from the user’s
computer, once it is heard by them. As such, there is no duplication or dissemination of
copies. The Court while checking the next factor, it said that the “amount of the dealing”
factor should not be assessed on the basis of the aggregate number of previews that are
streamed by consumers. It should be assessed by looking at the proportion of the preview in
relation to the whole work, not the aggregate amount of music heard through previews.
Streaming a preview of several seconds is a modest amount when compared to the whole
work. The Court while dealing with existence of alternative factor said that, there are no
alternatives to the dealing that as effectively demonstrate to a consumer what a musical work
sounds like. Therefore previews are reasonably necessary to help consumers research what to
purchase. Unless a customer locates and identify the work and purchases, the work will not
be disseminated. Short, low quality previews do not compete with, or adversely affect, the

272
downloading of the works themselves. Instead, their effect is to increase the sale and
dissemination of copyrighted musical works. It is therefore held that the the previews
therefore constitute fair dealing under the Copyright Act.66

The Copyright Amendment Act 2012 of Canada deals with the concept of fair dealing under
the following sections. More clearly it means exceptions to infringement. They are
incorporated in the Act as general exceptions and specific exceptions, from the following
sections 67 .Section 29 of the Act discusses about fair dealing for the purpose of research,
private study, education, parody or satire which does not infringe copyright. Section 29.1
deals with fair dealing for the purpose of criticism or review which does not infringe
copyright if the following are mentioned: (a) the source; and (b) if given in the source, the
name of the (i) author, in the case of a work, (ii) performer, in the case of a performer’s
performance,(iii) maker, in the case of a sound recording, or (iv) broadcaster, in the case of a
communication signal. Further Section 29.2 deals with fair dealing for the purpose of ‘news
reporting’ which does not infringe copyright if the following are mentioned: (a) the source;
and (b) if given in the source, the name of the (i) author, in the case of a work,(ii) performer,
in the case of a performer’s performance, (iii) maker, in the case of a sound recording, or (iv)
broadcaster, in the case of a communication signal. The Act also provides certain actions as
specific exceptions to infringements such as reproduction of copyrighted material for private
use, as back-up copies, educational purposes, as news and commentary etc. It is not an
infringement of copyright for a person with a perceptual disability, for a person acting at the
request of such a person or for a non-profit organization acting for the benefit of such a
person to (a) make a copy or sound recording of a literary, musical, artistic or dramatic work,
other than a cinematographic work, in a format specially designed for persons with a
perceptual disability; (b) translate, adapt or reproduce in sign language a literary or dramatic
work, other than a cinematographic work, in a format specially designed for persons with a
perceptual disability; or (c) perform in public a literary or dramatic work, other than a
cinematographic work, in sign language, either live or in a format specially designed for
persons with a perceptual disability. It is not an infringement of copyright (a) for an author of
an artistic work who is not the owner of the copyright in the work to use any mould, cast,
sketch, plan, model or study made by the author for the purpose of the work, if the author

66
ibid
67
htpp://laws-lois.justice.gc.ca last visited on 20.12.2013
273
does not thereby repeat or imitate the main design of the work; (b) for any person to
reproduce, in a painting, drawing, engraving, photograph or cinematographic work (i) an
architectural work, provided the copy is not in the nature of an architectural drawing or plan,
or (ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work
of artistic craftsmanship, that is permanently situated in a public place or building; (c) for any
person to make or publish, for the purposes of news reporting or news summary, a report of a
lecture given in public, unless the report is prohibited by conspicuous written or printed
notice affixed before and maintained during the lecture at or about the main entrance of the
building in which the lecture is given, and, except while the building is being used for public
worship, in a position near the lecturer;(d) for any person to read or recite in public a
reasonable extract from a published work;(e) for any person to make or publish, for the
purposes of news reporting or news summary, a report of an address of a political nature
given at a public meeting; or (f) for an individual to use for private or non-commercial
purposes, or permit the use of for those purposes, a photograph or portrait that was
commissioned by the individual for personal purposes and made for valuable consideration,
unless the individual and the owner of the copyright in the photograph or portrait have agreed
otherwise. Further permitted acts (2) It is not an infringement of copyright for a person to do
any of the following acts without motive of gain at any agricultural or agricultural industrial
exhibition or fair that receives a grant from or is held by its directors under federal, provincial
or municipal authority: (a) the live performance in public of a musical work; (b) the
performance in public of a sound recording embodying a musical work or a performer’s
performance of a musical work; or (c) the performance in public of a communication signal
carrying (i) the live performance in public of a musical work, or (ii) a sound recording
embodying a musical work or a performer’s performance of a musical work. Further
permitted acts (3) No religious organization or institution, educational institution and no
charitable or fraternal organization shall be held liable to pay any compensation for doing any
of the following acts in furtherance of a religious, educational or charitable object: (a) the live
performance in public of a musical work; (b) the performance in public of a sound recording
embodying a musical work or a performer’s performance of a musical work; or (c) the
performance in public of a communication signal carrying(i) the live performance in public
of a musical work, or (ii) a sound recording embodying a musical work or a performer’s
performance of a musical work.

274
5.5. FAIR USE: COPYRIGHT LAW OF AUSTRALIA

The Australian Copyright law originates in British Copyright Law by British Parliament
through Australian Courts Act 1828. The British Statute of Anne 1709 which provided
copyright protection to books was incorporated into the copyright law of Australia. The first
Australian copyright statute enacted at the federal level was the Copyright Act 1905. Then in
the year 1912 Australia adopted the British Imperial Copyright Act 1911. During 19th century
it was extended to paintings, drawings and photographs as well. Later on the Australian
Copyright Act 1968 came into force on 1st May 1969. This Act came into existence after the
British Imperial Act ceased to exist. The Act also incorporated new exceptions like the
private copying exceptions to allow people to record most television or radio program at
home to watch at a later time with family or friends, and to format shift their music which
means to make copies from CDs on to personal computers and portable music players such as
iPods .

Section 40 of the Act deals with fair dealing for purpose of research or study. Fair dealing
with literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic
or musical work, for the purpose of research or study does not constitute an infringement of
the copyright in the work. A fair dealing with a literary work (other than lecture notes) does
not constitute an infringement of the copyright in the work if it is for the purpose of, or
associated with the work or adaptation is reproduced. According to Section 41 of the Act says
fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a
literary, dramatic or musical work, does not constitute an infringement of the copyright in
the work if it is for the purpose of criticism or review, whether of that work or of
another work, and a sufficient acknowledgement of the work is made. A fair dealing with a
literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic
or musical work, does not constitute an infringement of the copyright in the work if it is for
the purpose of parody or satire. A fair dealing with a literary, dramatic, musical or artistic
work, or with an adaptation of a literary, dramatic or musical work, does not constitute an
infringement of the copyright in the work if (a) it is for the purpose of, or is associated with,
the reporting of news in a newspaper, magazine or similar periodical and a sufficient
acknowledgement of the work is made ;or (b) is for the purpose of, or is associated with, the
reporting of news by means of communication or in a cinematograph film. The playing of
a musical work in the course of reporting news by means of a communication or in
275
a cinematograph film is not a fair dealing with the work for the purposes of this section if the
playing of the work does not form part of the news being reported. There are also certain
other acts from sections 43 A B C to 44 A to E which do not fall under infringement.

The US, UK and Canada judiciary and the international instruments played an important role
in developing Fair Dealing /Fair Use doctrine. This doctrine is developed in the last decade
because of technology and the internet use of public through search engines because of
dissemination of knowledge. The USAFTA agreement and CLRC recommendations and
reports saw legislative changes in copyright law. The incorporation of general and specific
exceptions on fair dealing in the Australian copyright law helped the concept of fair dealing
to develop. Several amendments were made to the Australian Copyright Act to meet the
challenges of internet age. The Australian Courts have interpreted the concept and applied the
fair dealing concept in certain case studies.

5.6 FAIR USE AND COPYRIGHT LAW OF INDIA

Fair dealing is an important concept and is an integral part of Indian copyright law. The
concept is yet to be explored in India when compared to fair use doctrine developed by the
US and English Courts in the past few decades. In the process of achieving the objective of
providing the knowledge to the society, the Copyright Act 1957 has devised various
provisions limiting the ‘exclusive rights’. India is also a member of international conventions
and agreements and as such had incorporated exceptions into its copyright law wherever
necessary and to the extent of requirement.68 It has always been recognized that in certain
cases limitations or exceptions should be placed on the exercise of the scope of established
rights. The reasons given for imposition of such restrictions may be based on considerations
of public interest, prevention of monopoly control, etc.69 While the expression limitations and
exceptions generally denote restrictions on the exercise of copyright, Professor Sam
Ricketson splits up limitations and exceptions70 into three heads. Those limiting protection
altogether (limitations), those providing immunity from infringement (exceptions) and those
allowing access subject to payment and compliance with their conditions. The Copyright Act
1957 has the provisions of ‘limitations and exceptions’ as envisaged by the international
68
Articles 2bis and 10bis of the Berne Convention and Article 13 of the TRIPS authorizes the member countries
to design the copyright law of nations and insert provisions confining ‘limitations or exceptions to exclusive
rights’.
69
Cf Sterling, J AL, World Copyright Law, Sweet & Maxwell, London, Edition 1998, page 350.
70
www.wipo.int/edocs/mdocs/copyright/en/sccr_17_www_111472.ppt.
276
conventions more specifically the Berne Convention and the TRIPS Agreement. The Act
further limits the scope by granting the exclusive rights to ‘certain types of works’ which are
specified in Section 13 of the Act. The limitations to the rights are available in the Chapter V
(Sections 22 to 29) of the Act which denotes the tenure of the copyrights for each class of
work. Though the word ‘exceptions’ is not used in the Copyright Act 1957 specifically, but
are provided as immunities to the infringer 71 from the liability of infringements. The Indian
Courts have discussed these exceptions in number of cases, but could not develop the concept
on par with English courts.

5.6.1. Legislative History of Fair Dealing in India

In India fair dealing concept is drawn from UK legislation. The English Copyright Act 1842
was applicable in India initially. The earliest legislation in India relating to copyright is the
Indian Copyright Act, 1847 enacted during the East India Company’s regime. This Act was
in operation from 1847 to 1911. Then the Imperial Copyright Act 1911 came into force which
extended throughout the British dominion and was brought into force in British India with
effect, from 31.10.1912. This Act was replaced by the Indian Copyright Act of 1914 which
was in force when India became a sovereign independent nation in 1947 and continued to be
in force thereafter for another decade before it was replaced by the Copyright Act, 1957.72

The concept of fair dealing was introduced in 1914 with an equivalent provisions stated in
section2(1)(i) of the UK Copyright Act 1911 which states that copyright would not be infringed
by any fair dealing with any work which is for the purposes of private study, research, criticism,
review or newspaper summary. 73 Under the provisions of the Act only original work was
protected by copyright law. Protection was available for a period of 25 years. The infringement
was not considered as a criminal offence under the Act but it authorized the owner of the
copyright to destroy the infringing copies and prescribed penalties for infringement of copyright.
After independence in 1947, need was felt to consolidate the law on copyright, keeping in mind
the technological developments and international conventions and therefore the current Indian
Copyright Act was passed in 1957 as an independent and self contained law.74

71
Section 52 of the Copyright Act 1957 enumerates various acts which shall not constitute an infringement of copyrights.
72
Ayush Sarma, ,Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or Lex Ferenda? Published
in Journal of Intellectual Property Rights Vol.14,November 2009 page 523 to 531.
73
UK, 1&2 Geo V, Clause 46 Section 2(1)(i), Burrell Robert, Reigning in Copyright Law: Is Fair use the
answer? Intellectual Property Quarterly, 4(2001) , 361-388.
74
Statement of Objects and Reasons, Indian Copyright Act 1957
277
5.6.2. The Copyright Act 1957 of India

The scope of fair dealing was incorporated in the statute of 1957 from its inception. Later
section 52 which deals with fair dealing is amended thrice75in the years 1983,1984,1994 and
activities like private research and dealing with computer programs and their copying by a
lawful processor were incorporated into the provision and making sound recordings of any
literary, dramatic and musical works in certain circumstances were declared to constitute fair
dealing. The amendment in 1983 introduced section 32A for grant of compulsory licenses for
reproduction of an edition of literary, scientific or artistic work, where copies are not made
available in India or have not been put on sale in India for a period of six months after the
expiration of certain prescribed periods from the date of the first publication. 76 Section
31A77was inserted which deals with unpublished works where the author is dead or unknown
or owner of copyright cannot be traced, any person wishing to publish material or translation
thereof may advertise his proposal and apply to Copyright Board for permission which would
grant such permission and fix an appropriate royalty. The royalty could be deposited in a
public account for a specific period so as to enable the owner of copyright or his heirs,
executors or the legal representatives to claim such royalty at any time. A new section 31B is
inserted for providing for compulsory license for the benefit of persons with disability. Any
person working for the benefit of persons with disability on a profit basis or for business may
apply to Copyright Board, for a compulsory license to publish any work in which copyright
subsists for the benefit of such persons. Section 31D is another new section inserted which
deals with issue of statutory licences for broadcasting of literary and musical works and
sound recordings. The rates of royalty to be paid to the copyright owner will be different for
radio and television broadcasting. A new section 31C is included which makes statutory
license for cover versions more difficult. A cover version can now be made after five years
unlike two years period prior to amendment. The person making cover version is not entitled
to make any alterations on the literary or musical work. Previously alterations were allowed if
they were reasonably necessary for the adaptation of the work but now they are allowed if it

75
The three Amendments brought to Section 52 have been via Copyright (Amendment) Act, 1983(Act 23 of
1983), entered into force 9th August 1984, Copyright (Amendment ) Act, 1994(Act 38 of 1994) ,entered into
force 10th May 1995 and 1999(Act 49 of 1999), entered into force 15th Jan 2000.
76
Copyright Act, 1957, Section 32 A. The period prescribed are :a) seven years for work relating to poetry,
fiction, drama, music or art; b) three years for work relating to natural science, physical science, mathematics or
technology and c) five years for any other work. The authority for granting license is Copyright Board.
77
Section 31A.
278
is technically necessary for the purpose of making the sound recording. However, some safe
harbor provisions have been provided for service providers by covering transient or incidental
storage under fair dealing provisions.78The important amendment is with regard to extension
of fair dealing to all works. Section 52 (1) (a) is amended and the ambit of fair dealing is
widened. Earlier fair dealing applied to literary, dramatic, musical or artistic works but now it
is extended to all works like sound recordings and cinematograph films also except computer
programs. This will allow persons to make personal copies of songs and films, copies for
research or to use film clips in class.

5.7 COPYRIGHT ACT 1957 AND FAIR DEALING : A CRITICAL STUDY

The section 52 of the Copyright Act 1957 deals with the ‘certain acts’ as ‘acts not to be
infringements’. The acts which are not considered as infringement of copyrights include ‘act
of fair dealing’ act of reproduction and publication, act of performance and sound recording’.
These acts are considered as exceptions to infringements of copyrights. These exceptions are
applicable to ‘all type of works’ which include literary works 79 , sound recording, and
cinematograph films, architecture, performances etc. These exceptions are again subject to
some limitations. The exceptions provided therein act against the interests of the author as
they dilute their rights. The objective of providing exceptions is for the benefit of the society
which is the larger objective of the copyright law. In Wiley Eastern Limited and Ors v Indian
Institute of Management80; the court clearly traced the purpose of defense of fair dealing to
the Indian Constitution: The basic purpose of section 52 is to protect the freedom of
expression under Art 19(1) (a) of the Constitution of India so that research, private study,
criticism or review or reporting of current events could be protected. Section 52 is not
intended by parliament to negatively prescribe what infringement is. Section 52 lays down
the affirmative defences for copyright infringement and the onus of proving the defences is
on the user once the copyright owner establishes prima facie infringement by substantial
copying of expression.

78
Ibid, section 52(1)(b) and section 52(1)(c).
79
Section 13 of the Act refers to the ‘works’ which are protected under the copyright law and section 52
enumerates ‘acts’ which are exempted in relation to the various types of the works.
80
61 (1996) DLT 281 Para 19 other citation 1995 IVAD Delhi 990, 61 (1996) DLT 281, 1995 (35) DRJ 522

279
The analysis of the provisions or exceptions laid in section 52 of the Act helps us to
understand whether the exceptions are fair to the author or not. Section 52 of the Copyright
Act, 1957 deals with approximately fourty actions which shall not constitute an infringement
of copyright. The acts that do not constitute infringement i.e in particular the general
exceptions can be discussed under the following heads.

5.7.1. Copyright Exception –Works used for private use including research, criticism or
review (Section 52(1)(a))

The act of ‘a fair dealing with literary, dramatic, musical or artistic work not being a
computer program for the purposes of ‘private or personal use’ including research, criticism
or review, whether of that work or of any other work,81 the reporting of current events and
current affairs, including the reporting of a lecture delivered in public shall not constitute the
infringement of copyright. In the first case, ‘acts are considered as fair dealing’ only when the
‘works’ are used for the purpose of ‘private use including research’. The term ‘private use’ is
a very significant but the term is not defined in the Act. The copyright law explains that using
of the copyrighted material for the purpose of research; criticism and review are part of the
private use. But precisely, it can be stated that the ‘private use’ is for the use of individuals or
for the purpose of his own activities and not for commercialization and circulation among the
people whether that group is private or formed for the public purpose. Depending upon the
circumstances, time and needs, the meaning of the phrase ‘private use’ changes and is
extendable unlimitedly.

The meaning of ‘fair dealing’ has been explained by Kerala High Court in Civic Chandran v
Ammini Amma.82 The Court in this case has determined that it is only when a substantial part
has been taken that any question of fair dealing arises. Once the question arises, the degree of
substantiality, that is the quantity and the volume of the matter taken, is an important factor in
considering whether or not there has been a ‘fair dealing’. Further even under the present law
in deciding whether a particular work is fair, it would have to be considered whether any
competition was likely to exist between the two works. But each case will depend on its facts,
and what may be fair in one case will not necessarily be fair in other case. Criticism or review
may relate not only to literary style but also to be doctrine or philosophy of the author as

81
Section 52 1(a) of the Copyright Act 1957
82
1996 PTC (16) 670.
280
expounded in his book. A fair criticism of the ideas and events described in the books or
documents would constitute ‘fair dealing.’

The Act has not defined the word ‘research’ and therefore its meaning has to be ascertained
from ordinary English usage. According to Funk and Wagnall’s English dictionary ‘research’
is said to mean ‘diligent protracted investigation especially for the purpose of adding to
human knowledge, studious enquiry. 83 Research according to Oxford dictionary means,“a
search or investigation directed to the discovery of some fact by careful consideration or
study of a subject; a course of critical or scientific inquiry” 84 . In E.M.Forster v.
A.N.Parsuram85 the facts of the case are Mr E.M. Forster, the English Novelist, published “A
Passage to India” a work of fiction. Certain exclusive rights of publication in this work were
assigned by Mr.Foster to Edward Arnold (Publishers) Ltd by an agreement in March 1924. In
1955 to 56, the University of Madras prescribed “A Passage to India” as a text book for the
students taking the B.A degree. Mr A.N. Parsuram published a guide-book for students to the
novel “A Passage to India” in December 1954. An action has been filed against Parsuram by
Mr Forster and Messers Edward Arnold (Publishers) Ltd. The judge held that there was no
such infringement by substantial reproduction of the original novel and that the guide-book of
Mr Parsuram amounted to an “Independent literary efforts on his part”. The suit is dismissed
in the light of these findings. It is contended by appellants that Guide book is misleading and
an invasion of their rights as the unwary purchasers might purchase this cheaper priced book
under the delusion that thereby there were acquiring the original work itself in a cheap
edition. But it was argued that there is no copyright in the title and it is clear from the sub title
that they were acquiring, not the original work, but a ‘Guide for University Students’. The
introduction consists of 15 pages, and includes studies of the life and works of Forster, as a
novelist of the story in outline and the plot as analysed by the respondent. It is followed by
section headed ‘Textual Essays’ from pages 16 to 57. Very skillfully arranged, sequenced
according to incidents and ‘character sketches’ and ‘character contrasts’ pages 61-88 they
comprise all the main characters in the novel. There are general essays as Forster’s
conceptions, his philosophy of life, racial issue involved in the novel, element of religious

83
Ms.Blackwood and Sons Ltd &others v A N Parasuraman and Others AIR 1959 Mad 410
84
Oxford English Dictionary,Vol.VIII, In De Garisv.NevilleJeffresPidder Pty Ltd. (1990) 18 I.P.R 291 the
Australian Court defined research as the diligent and systematic inquiry or investigation into a subject in order
to discover facts or principles.
85
AIR.1964 Mad,331 at pp.331,333,334- refer LAL’S Commentary on the Copyright Act 1957 –p-461
281
symbolism in it and significance of title. This is sufficient to show that the guide book is
really some kind of commentary upon the original work, designed to enable university
students to give effective answers to questions that may be set in the University Examination
upon their study on the novel. The purpose for which it is made is for the B.A students to
answer questions upon its plot, theme, personalities and incidents. It is clear that either from
the principle of substantial reproduction, or even qualitative reproduction as far as the verbal
expression of the original work goes there has been no infringement. It is well known that in
literary reviews very small proportion of verbatim quotations from an original work is always
permitted in the interests of fair criticism. Further, it is said that even if the guide book is
taken in its entirety, it can by no means said that such a proportion has been exceeded.

In Kartar Singh Giani v Ladha Singh86 the Court observed on ‘research and scholarship’
“All laws which put a restraint upon human activity and enterprise must be construed in a
reasonable and generous spirit. Under the guise of copyright, a plaintiff cannot ask the Court
to close all the avenues of research and scholarship and all frontiers of human Knowledge”.
Therefore, this exception is very important for researchers in all walks of life whether
science, sociology, economics or history as the onus of development of society in theory and
practice rests on the researchers. The researchers do not have to waste time in seeking
permissions from copyright owners before making use of their work and rather they can go
ahead from where the earlier copyright owner had stopped. Moreover the legislator and
judiciary excuse ‘research uses’ on the ground that they do not hamper the customary markets
for a copyrighted work. In Williams & Wilkins Co. v. United States87 the Court held that it
was fair use for the defendant to photocopy articles from plaintiff’s medical journals for
distribution to medical researchers because the copyright owner had not shown that it was, or
would be, substantially harmed by the practice.

The terms ‘Criticism or Review’ means an act done for criticizing and reviewing any work, it
becomes sometimes inevitable to use extracts from the work reviewed or any other work. The
use of such extracts by the reviewer or critic is not an infringement if the source is
sufficiently acknowledged though the Indian Act does not prescribe such a condition but it is
followed in practice. But in UK, it is mandatory that the source is acknowledged as per
CDPA 1988; section 30(i). In Chancellor Masters and Scholars of University of Oxford v

86
A.I.R 1934 Lah,777 at p.781
87
487 F.2d 1345 (1973)
282
 88
Narender Publishing House the plaintiff claimed copyright in the book “Oxford
Mathematics Part A and Part B ” based on the syllabus for class IX of J&K State Board of
Secondary Education. Defendants copied all the questions of the plaintiff’s book and
prepared a guidebook titled ‘Teach Yourself Mathematics (fully solved) Part A’ and ‘Teach
Yourself Mathematics (fully solved) Part B’. The guidebooks provided step by step approach
to finding answers to the questions. The defendants claimed exemption under section 52(1)(a)
as their work fell under ‘review’ of the writing book. The Court held that by writing a guide
book a “transformative work” comes into existence. A subsequent work is transformative
when it is different in character from the previous work. If the work is transformative then it
does not matter that the copying is whole or substantial. It further held that ‘review’
according to the Shorter Oxford Dictionary (5th Edition) means “view, inspect or examine” a
second time or again. In the context of a mathematical work a review could involve
reexamination or a treatise on the subject. In that sense, the defendants revisiting the
questions and assisting the students to solve them by providing the ‘step by step’ reasoning
prima facie amounts to a ‘review’ thus falling within the ‘fair dealing’ provision of section
52(1)(a)(ii) of the Act. In Super Cassettes Industries v Hamar Television Network Pvt Ltd89,
In this case the plaintiff carries on business under T series Brand of music cassettes sought an
injunction against defendant, a Bhojpuri channel restraining it from broadcasting its
copyrighted works. The defence taken by the defendant is section 52(1)(a)(i) and (ii) claiming
that the alleged broadcast was in the nature of “review, preview, or for reporting current
events”. The court decided the case in favor of the plaintiff and summarized the broad
principles of law which were articulated in the judgments on the aspect of fair dealing they
are –(i) It is neither possible nor advisable to define the exact contours of fair dealing; (ii) It is
a question of fact, degree, and at the end of the day overall impression carried by the court.
(iii) In ascertaining whether extracts taken from copyrighted work have been put to fair use,
the extent and the length of the extracts may be relevant. Long extracts followed by short
comments may in certain circumstances be unfair, while short extracts followed by long
comments may be fair. In certain circumstances even small extracts, which are taken on
regular basis may point to unfair use of the copyrighted work. (iv) The right to deal fairly
with the copyrighted work includes the right to criticize not only the style, but also the

88
2008 (38) PTC 385 (Del)
89
2011(45) PTC 70 (Del)
283
underlying doctrine or philosophy of the copyrighted work. This means criticism could be
both ‘strong’ and ‘unbalanced’. But then malicious and unjustified criticism may give the
aggrieved party a cause for instituting an action for defamation but it would certainly not
confer a right founded in copyright. (v) In ascertaining as what would constitute reporting of
‘current events’ courts ought to adopt a liberal approach. (vi) To distinguish fair dealing the
standard employed ought to be that of a ‘fair mind’ and ‘honest person’. In case of musical
works the test is that of ‘lay hearer’. (vii) In examining the defence, the length and the extent
of copyrighted work which is made use of is important. Both quantitative and qualitative
aspect to be taken. (viii) Even though the copyrighted work contains confidential information
the court would desist from injecting the use of such work if it is in public welfare. But the
Court would not grant an injunction in favor of the person who inherits the copyright if it is
contrary to public policy, i.e., if it is a) immoral b) scandalous c) contrary to family life d)
injurious to public life, public health, safety or, is inimical to administration of justice and
incites an action which endangers (c) and (d) above. (ix) The principle of freedom of
expression will protect both information and ideas. Freedom of expression includes both right
to publish and right to receive information. In certain circumstances the public interest may
be so overwhelming that courts may desist from granting injunction based on the principle of
freedom of expression in matters of public interest because at times public interest may
demand the use of very words to convey the message to public however it does not
necessarily protect the infringer public interest and what interests the public need not be the
same. xi) Motive of the user shall play an important role in accessing as whether injunction
ought to be granted. xii) Commercial use of copyrighted work cannot simplicitor make it
unfair. xiii) ‘Transformative use’ may be deemed in certain situations as fair use of
copyrighted work.

In Distillers Co.(Biochemicals) Ltd v Times Newspapers Ltd 90 it was held that a ‘fair
criticism’ of all the ideas and events described in the documents in questions would be a “fair
dealing”. The copying of reported cases by the writers of legal text book now, no doubt falls
to be in the proviso of fair dealing. Also criticizing a work in a foreign language, it is now
permissible to quote from an English translation though there is no criticism of the translation
as such. Again in criticizing one work, it is permissible to quote from other comparable work

90
(1974) 3 W.L.R. 728- refer Lal’s Commentary on Copyright Right Act 1957, Published by Delhi Law House ,
5th Edition 2013, –p-464
284
for the purpose of the criticism. In John Stone v Bernard Jones Publication Ltd91 it was held
that if the work is set out and criticized, that is enough to bring the matter within the words,
‘purposes of criticism’ and it is not essential that the source should be acknowledged or
should be attributed to the author.92

5.7.2. Copyright Exception and Computer Programs-Section 52(1) (aa) In relation to

computer programs, the acts which are not considered as the infringements are –Utilizing the
computer programs for the purpose of which it is supplied for or making of copies of
computer programs as backup copies purely as a temporary protection against the loss,
destruction or damage of the computer program.93 Seeking information essential for operating
inter-operability of an independently created program.94Act of observation, study or test of
functioning of the computer program, 95 and adoption of computer programs.96

The above said acts are considered as the act of fair dealing provided the acts are undertaken
by the lawful possessor of a copy of such computer program and use of the copies or
adoptions for the purpose for which the original software program is supplied. Thus,
‘purpose’ is one of the important elements to assess whether ‘the act of copying’ is valid or
not and whether it amounts to infringement. The original source material for copying should
be lawful and copying should be made only for the purpose of backup copies. In other words,
it should be for the private use only and not to commercialize them or for the use of others.
The words ‘making of copies’ have not limited on the number of copies. As such, the number
of copies to be made should be for the purpose of safe keeping and preservation. Copying for
‘any other purpose’ and ‘copying from any other sources’ and for the purposes other than the

91
1938 Ch, 599.
92
Copinger & Skone James, on Copyright , Published by (London: Thomson Reuters Sweet & Maxwell) 12th Ed
,.Paras, 517,518,p.208
93
Section 52(1)(aa) deals with the making of copies or adaptation of a computer program by the lawful
possessor of a copy of such computer program,from such copy- i) in order to utilize the computer programme
for the purpose for which it was supplied, or ii) to make back up copies purely as a temporary protection against
loss, destruction or damage in order only to utilize the computer program for the purpose for which it is
supplied, inserted by Amendment Act of 1994 which came into force from May 10th 1995.
94
Section 52 (1) (ab) deals with doing of any act necessary to obtain information essential for operating inter-
operability of an independently created computer program with other programs by a lawful possessor of a
computer programme provided that such information is not otherwise readily available.
95
Section 52(1)(ac) deals with the observation, study or test of functioning of the computer program inorder to
determine the ideas and principles which undeline any elements of the program while performing such acts
necessary for the functions for which the computer program was supplied.
96
Section 52(1)(ad) the making of copies of adaptation of the computer program from a personally legally
obtained copy for non-commercial personal use.

285
purpose for which it is supplied amounts to infringement and is not covered by the exception
of ‘fair dealing’. The analysis of the above provisions relating to the fair dealing of computer
programs poses some of the unanswered questions like, the meaning and scope of phrases
‘the purpose for which it is supplied’, ‘lawful possessor’, ‘legally obtained copy’ and
‘making and adaptation of copies’. The meaning and scope of the phrase ‘the purpose for
which it is supplied’ is not defined in the Act. The software products may have many more
purposes of creation and sometimes the programmer writes the program for one purpose and
user may use the same for different purposes than that purpose for which it is made. As such
it is difficult to know and understand the meaning of the phrase ‘purpose for which it is
supplied’ if it has more than one purpose. A question arises as whether using the software
program for different purposes by a person amounts to infringement? If a person who has
legally obtained the software program, uses the same programs by making some modification
to it for his own private use, whether it amounts to infringement or not is not covered under
the exception of ‘fair dealing’. Motive to compete is necessary in order to constitute a dealing
‘unfair’ if there were such motive it would render the dealing unfair if the works were not
intended to compete, this would not set at rest all questions concerning ‘fair dealing’.97

The terms ‘lawful possessor’ and ‘legally obtained copy’ are vulnerable to various
interpretations as the Act has not defined them. A person will be a lawful possessor if he
takes possession of the software program lawfully i.e., with a consent of a person who
purchased for his personal purpose. If a counterfeited copy comes into the possession of a
person on payment of valid consideration without his knowledge, can it be considered as
‘legally obtained copy’? Generally the software programs are licensed to use on payment. A
licensee who obtained the program for value consideration is a lawful possessor of the
program. If he sub-licences to another person for a certain temporary period and if the sub-
licencee takes possession on payment, whether he is the infringer? The Act is also silent on
the interpretation of the phrase ‘making of copies and adoption of copies’. The Act does not
make any limitation on the number of copies that can be had by the lawful possessor. Being
the owner of it, he can make copies in any format that is compatible to him as there is no
restriction. He can make copies for the purpose of postponement of enjoyment to future and it
does not amount to infringement as the enjoyment is the purpose for which it is purchased
and copies are made for the purpose of personal enjoyment and not for circulating in the
97
Ms. Blackwood and Sons Ltd& others v AN Parasuraman and Others AIR 1959 Mad 410
286
public. As a result, format shifting takes place’. It should be remembered that the important
limitation that is laid down in the Act about making of the copies, i.e. copies of the works
should be made with an objective to protect the same from the loss, destruction and damage
of the program. The copies made should be used as back-up copies. Even the scope of the
term ‘adaptation’ of the computer program is ambiguous in interpretation. Other terms used
in these subsections also leave some ambiguities in understanding the scope and application
of the ‘fair dealing’ when applied to the software programs as they are protected under the
copyright law.

However, if the ‘acts’ are interpreted in the ambit of normal meaning and understandings
specifically with reference to the ‘purposes’ which should not be commercial and utilized for
private purposes, then they will be considered as ‘fair dealing’. If the acts are for commercial
and public purposes, then they are not protected under the plea of ‘fair dealing’. Even after
having some grey areas and leaving the scope of varied interpretations, other terms used
therein such as ‘non-commercial use’ ‘private use’ and ‘purposes for which it is supplied’
regulates the scope of the use of copyrighted software and brings under the coverage of ‘fair
dealing’.

5.7.3. Copyright Exception - Reporting of Current Events- Section 52(1)(a)(iii): The acts
of fair dealing also includes the use of the copyrighted material, ‘in relation to the literary,
dramatic, musical or artistic work’ for the purpose of reporting ‘current events’ ina
newspapers, magazine or similar periodicals by means of broadcasting, cinematograph film
98
and or photographs’. The important elements to consider ‘the acts as the fair dealing’
includes the purpose and usage for which it is reported’. The limitation for such usage is that
the subject matter should be of ‘current events’ in nature. Again the provisions are silent on
the ‘extent of the usage’ and the scope of ‘current events’. The doctrine is equally applicable
for the broadcasting and cinematograph reporting. The report of performance of performers is
also protected under the coverage of fair dealing doctrine. The proviso to the exception limits
the application of doctrine to the activities of ‘compilation of addresses or speeches delivered
in the public places’. Thus the publication of a compilation of addresses or speeches

98
Section 52(1)(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.
287
delivered in public is not to be considered as a fair dealing of such work by cl (b) 1983
amendment.

5.7.4. Copyright Exception: Section 52(1) (b)99. It deals with the transient or incidental
storage of a work or performance purely in the technical process of electronic transmission or
communication to the public; for the purpose of providing electronic links, access or
integration, where such links, access or integration has not been expressly prohibited by the
right holder, unless the person responsible is aware or has reasonable grounds for believing
that such storage is of an infringing copy. Provided, that if the person responsible for the
storage of the copy has received a written complaint from the owner of copyright in the work,
complaining that such transient or incidental storage is an infringement, such person
responsible for the storage shall refrain from facilitating such access for a period of twenty
one days or till he receives an order from the competent court refraining from facilitating
access and in case no such order is received before the expiry of such period of twenty one
days, he may continue to provide the facility of such access.

5.7.5. Copyright Exception: Reproduction of Judicial Proceeding (Section 52 (1)(d))

Article 9 of the Berne Convention permits ‘the reproduction of ‘such works’ in certain cases
provided such reproduction does not conflict with a normal exploitation of the work and does
not unreasonably prejudice the legitimate interests of the author.100 The convention empowers
the member countries to frame the law to this effect to suit the domestic requirements.
Copyright Act 1957 has some of the provisions which permit the reproduction of public
documents. Section 35 of the Indian Evidence Act 1872, defines the public records as the
‘record of transactions maintained by the public authorities.’ The office of the Public
Information of UK defines the public records as ‘Records’ for the purposes of this guidance,
are the records of central government in the United Kingdom and its constituent countries,
and of the central courts of law, including bodies under the government such as the national
museums, the National Health Service and National Regulatory Authorities. 101 The public
records may be published and unpublished records. The Crown in the case of UK, Federal
Government in US holds the copyright. They may waive, with or without certain conditions.
99
Section 52(1)(b)(c ) inserted by Copyright Amendment Act, 2012(Act No.27 of 2012) Section 32(ii), dated 7th
June 2012.
100
Article 9(2) of the Berne Convention which is known as the one of the ‘three test factors’ to understand the
fair use of the copyrighted material.
101
www.opsi.gov.uk
288
The government and other public authorities create a number of records, documents and other
papers worth of protection. The government or the public authorities may hold copyrights on
such records / documents and exclude others from using the same. In England, the copyrights
are held by the Crown on all the documents / records developed by the departments of
government. Just like any other living person, the Crown may waive the protection to certain
documents and permits the access of such document. The said grant of waiver amounts as an
exception to the general rule of granting of protection to the copyrighted works.
Understanding the limits and limitations of use and ownership of public records and defining
the legal sense is very difficult.

The Copyright Act 1957 has some of the exceptions to such public records and enables the
reproduction of such material subject to the terms and conditions of waiver or as exceptions.
The ‘purpose of usage of such material’ is important to get consideration as an exception.
One of the important exceptions available under section 52 (1)(d) of the Act says the
reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial
proceeding or for the purpose of a report of judicial proceeding’. The exception is available to
102
few classes of copyrights such as the literary work, dramatic, 103 musical and artistic
work 104 only and not applicable for the performance rights, cinematographic works and
broadcasting rights. The exception is available for ‘reproduction’ and the reproduction of
such material should be used for the purpose of judicial proceeding or to use as a part of
report of judicial proceeding. The ultimate objective of exception is to avoid the commercial
exploitation of the copyrighted material. In Eastern Book Company v DB Modak 105 the
question before the Court was whether the copying of copy edited judgments as published in
plaintiff’s law report by the defendant amounted to copyright infringement and whether the
copying constituted fair dealing under the section 52 (1)(q) sub clause (iv) of the Act, which
excludes the reproduction or publication of any judgment or order of a Court, tribunal or
other judicial authority from the scope of copyright infringement. The Indian Supreme Court

102
Section 2(o) of the Copyright Act 1957 defines the literary work to include computer program, tables and
compilations including computer databases.
103
Section 2(h) of the Act defines the dramatic work as to include any piece of recitation, choreographic work or
entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise
but does not include a cinematograph film.
104
Section 2 (c) of the Act defines the artistic work to mean (i) a painting, a sculptur, a drawing (including a
diagram, map, chart or plan) an engraving or a photograph, whether or not any such work possesses artistic
quality;(ii) a work of architecture and (iii) any other work of artistic craftmanship’.
105
( 2008) 1SCC 1, AIR 2008 SC 809,(2007) 13 SCR 182, 2008 (36)PTC1.
289
followed the approach laid down by Canadian Supreme Court in CCH Canadian limited v
Law Society of Upper Canada which rejected the ‘sweat of the brow’ 106doctrine, and held
that the work must be original in the sense that by virtue of selection, coordination or
arrangement of pre-existing data contained in the work, a work somewhat different in
character is produced by the author. Thus, Indian law also followed it and stated that not
every effort or industry, or expending of skill, results in copyrightable work, but only those
which create works that are some what different in character, involve some intellectual effort
and involve a certain degree of creativity. So Indian Court also noticed two positions as in
CCH case one is ‘sweat of brow’ and other ‘modicum of creativity’ like in that case it also
gave higher footage to modicum of creativity. As per section 52 (1)(q)(iv) of the Act, the
judgments delivered by courts are in public domain and there is no copyright in the original
text of the judgments.

5.7.6. Section 52 (1) (e) of the Act provides for the exception to the copyright protection
for the 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 exception granted therein is shadowed by a limitation
followed by it. The exception is only for the ‘reproduction or publication of literary, dramatic
or music or artistic work’ and it is permitted to be included or used ‘in any work prepared by
the Secretariat of Legislature or Legislative Houses’. The exception is operative only when
the ‘work’ prepared by using the copyrighted works should be for the ‘exclusive use of the
members of that legislature’. Even the ‘work’ is not permitted to be used by the members of
other legislative houses other than the members of the house or houses for whom it is either
produced or published. Though the exception is granted to the use of copyrighted material,
the limitation attached are balancing the interests of the owners and that of the society. i.e the
legislative houses. For example: the Secretariat of Rajya Sabha prepares a report for the
members of Rajya Sabha. The office of any ministry provides copies of the report to the
members of Lok Sabha and all their government officers without the permission of the
Secretariat of Rajya Sabha. The office of the ministry infringes the copyright of the
Secretariat of Rajya Sabha.

106
Sweat of brow’ doctrine means one who spends time, energy, skill and labour in creating a work only he has
the right to reap the benefits.
290
5.7.8. Section 52(1)(f) of the Act provides for further exception of supply of certified
copies– ‘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’. This exception also has
specific and focused application coupled with a limitation. The said exception entitles
reproduction of some of the specified types covered under copyright law such as literary,
dramatic or musical work and excludes artistic works and cinematographic from the scope of
exception. The limitation embedded to the exception enables the plea of exception only to
that material which forms the part of the ‘certified copy’ prepared or supplied in accordance
with the provisions of any law in force. If the law does not permit such matter to be included
in the certificate copy, then the exception is not applicable and any use of the matter amounts
to infringement of copyrighted material.

Section 52(1)(m) deals with the reproduction of ‘an article’ in newspapers, magazines, or
other periodicals, is permitted as an exception to the general principle of protection of the
copyrighted material. The reproduction is subjected to the limitation that the article should be
on current topics in the areas of economics, politics, social and religious topics or
disciplines.107 The reproduction is not permitted, if the author of the article expressly restricts
the copying of the article for publication and also holds the rights for himself.

In the Periyar Self Respect v Periyar Dravidar Kazhagam108,the issue involved was as if the
author does not reserve the right of reproduction with him for articles written by him on
current issues then who is the owner of copyright for those articles. The facts of the case
were: Periyar was the founder of Self Respect Movement in 1926. It started a newspaper
“kudiyarasu’. He published various articles and write-ups covering political, economical and
social issues in this newspaper. Periyar died intestate and there was no material to show that a
copyright had been reserved by him as an author of those articles. The Court held that it is no
doubt that the true overall owner of the copyright has right akin to the right to property, but
at the same time, in a work, if made public then it should be made available subject to a
reasonable term. In the present case, it has been made clear that the author of “kudiyarasu’
that is the late Periyar was the owner and the articles published in the newspapers mostly
related to the then existent economical, political, social and religious topics. Therefore, unless
the author had expressly reserved his right of reproduction, no copyright will vest with

107
Section 52(1)(m) of the Copyright Act 1957
108
2009 (41) (PTC) 448 (Mad)
291
anyone as reproduction of such articles cannot constitute an infringement of copyright as per
section 52(1) (m).

It recognizes the reporting of any lecture delivered in public in the newspapers or magazines,
as report of an event is not considered as the infringement of copyright. ‘The publication in a
newspaper, magazine or other periodical of a report of a lecture delivered in public’the
reporting of any information or happening or event is not a copyright infringement and is
considered as an exception as the reporting does not claim the ownership instead its quotes
the name of the author or the owner of that particular lecturer.

The performance or communication of any copyrighted literary, dramatic or musical work or

sound recording made in public during the religious ceremonies or official ceremonies of
state or central government or local authorities is not considered as copying but is protected
as an exception to the general principle of protection. 109 Thus the copyright law provides
exceptions for the performance, communication, reporting and reproduction of copyrighted
materials in certain cases which projects that the law is not in favor of giving the absolute
rights to the copyright owner instead it is balancing the interests of the owners and also public
in general. But, the limitations for reproduction operate in favor of the copyright owner and
not in the interests of the public or the society. Though the ‘public records’ appears to be of
‘public’ but by applying the law that is in operation in UK, the government is the owner of
the public records unless specifically it is specified for the use by the public free of cost and
permission. Otherwise, just like ‘Queen’ in UK, the President of Indian Republic will be the
owner of such records. The process of keeping the public records by the government
organizations and agencies further strengthens this argument.

5.7.9. Section 52(1) (g) of the Act deals with the reading or recitation in public of any
reasonable extract from a published literary or dramatic work. The use of copyrighted
material from a published literary or dramatic work by way of ‘reading’ or ‘recitation’ of
such material in public does not amount to infringement of copyrights. 110 This exception is
applicable only to the literary and dramatic work and not other types of the copyrights. The
interpretation of the term ‘public’ also raises enough questions regarding the extent of
gathering which can be considered as the ‘public’.

109
Section 52(1) (za) of the Copyright Act 1957
110
Section 52(1)(f) of the Copyright Act 1957.
292
As per section 52 (1), the performance of a literary, dramatic or musical work by an amateur
club or society 111 is considered as an accepted exception to the general protection of
copyrights. Eventhough this exception is backed by a limitation. The performance is
considered as an exception only when it is given to non-paying audience and for the benefit
of the religious institution. In order to invoke the defense, the individuals claiming the
defense of exception under this have to establish prima-facie evidence that they used the
112
same for the purpose of criticism. This exception is applicable only to the literary,
dramatic and musical work and does not include the cinematographic works.

Making or publishing or reproduction of painting, drawing, engraving or photograph of a

work of architecture or display of a work of architecture situated in public place or any
premises to which the public has the access113 is not considered as infringement of the rights
of owner . It is considered as an exception to the right of protection, as it involves the skills
and talents of individuals in expressing the ideas. If the artist or the owner of the original
painting makes copies of the original painting by keeping the original painting in his custody
and sells them commercially and supplies some of them free of cost to the temples, it will not
tantamount to installing the original painting/work in the public and public has no right to
reproduce the same with a plea of exception under the copyright law.114

Reconstruction of a building or structure according to the plans, drawings and designs of an

owner with his consent or licence is not considered as the infringement.115 In addition to the
above exceptions, the law permits the rerecording of music and video films or
cinematographic films with the consent of the copyright holder without making any changes
to the original recording or cinematographic films and by disclosing the names and addresses
of owner of copyrighted works, year of its first publication and also the name addresses of the
persons making copies.

5.7.10. Copyright exception for Educational use- Providing education116 for the citizens of
a country is one of the important priorities across the globe. To provide a quality education is

111
Section 52(1)(l) of the Copyright Act 1957.
112
Civic Chandran v Ammini Amma, 1996 PTC (16) 670
113
Section 52(1)(s,t,and u) of the Copyright Act 1957
114
The Daily Calendar Supplying Bureau v The United Concern, AIR 1967 Mad 381(DB)
115
Section 52(1) (x) of the Copyright Act 1957.
116
The law lexicon defines the education as ‘education is the bringing up; the process of developing and training
the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the
293
a misson. It is a deliverable process connoting the process of training and developing the
knowledge, enriching skills and character by way of instruction. The instruction includes the
delivery of knowledge by way of dissemination of knowledge. The newly created knowledge,
unless it is disseminated has no meaning as it may not be put to use. But, with the shift in the
thought process and approach to the knowledge, commercial values are attributed and the
creators of knowledge started restricting the others from using the same. The emergence of
the copyright law has drawn a ‘red line’ and created some hurdles initially in accessing and
using the knowledge learnt. The resources of the knowledge sharing in the process of training
and learning are under scanning of the copyright law, resulting in scarcity of the resources on
one hand and monopoly of the knowledge in few hands on the other hand, which is against
the interests of the society at large. Various variables like the paucity of resources,
commercial interests of the owners of the knowledge and disseminators, converted the
education as a profit making machine. A debatable relationship between the education,
knowledge creation and the copyright law is evolving globally.

The preamble of the first statute of copyright law ‘The Statute of Anne’ explains the
objective of copyright law as ‘an act for the encouragement of learning, by vesting the copies
of the printed books in the authors or purchasers of such copies’. 117 The first statute of
copyright law is clear that it is to encourage the learning by using the books. It is true, before
the first phase of copyright law reforms, the copyrights were granted only for the first
publication and later they are considered as the public property and all others are allowed to
access the material for certain specific purposes.. The copyright laws are allowed to have
general exceptions for the use of the copyrighted material for education purposes.
‘Developing countries should be allowed to maintain or adopt broad exemptions for
educational, research and library uses in their national copyright laws.118The Article 10(2)119
of the Berne Convention articulates and recommends for inclusion of exception in the

instruction received at school, or college but the whole course of training moral, intellectual and physical; is not
limited to the ordinary instruction of the child in the pursuits of literature’. It also further states that ‘it is the
process of training and developing the knowledge, skill, mind and character of students by formal schooling’.
117
www.copyrighthistory.com/anne.html
118
http://www.iprcommission.org/papers/text/final_report/chapter5htmfinal.htm.
119
Article 10(2) of the Berne Convention-‘It shall be a matter for legislations in the countries of the Union, and
for the special agreements existing or to be concluded between them, to permit the utilization, to the extend
justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound
or visual recordings for teaching, provided such utilization is compatible with fair practice’.
294
national copyright laws to the grant of copyrights by permitting the use of copyrighted
material for the ‘teaching purpose’.

The Copyright Act 1957 has incorporated exceptions to the copyright protections in section
52 as ‘acts which are not to be considered as the infringements’. Section 52(1) (g)120 permits
the use of the copyrighted material as ‘publication in a collection for the purpose of bonafied
use of educational insitutions’. Section 52(1)(h) 121 permits the ‘reproduction of copyrighted
material by a teacher or pupil in the course of instruction, or as part of questions to be
answered or answers to such questions’. Section 52(1)(i) 122 permits the ‘performance of
literary, dramatic or musical work by the staff and students of the educational institutions as
part of educational activities if the presence of the students, staff, parents and guardians of the
students and other persons who are directly connected with the educational institution’. The
above provisions permit the ‘publication’, ‘reproduction’ and ‘performance’ of the literary,
dramatic, musical or artistic work and also musical works, sound recordings and
cinematograph films. The educational institutions, teachers, students are permitted to use the
copyrighted material published or even unpublished works. Section 52(1)(p)123 permits the
reproduction of copyrighted material kept in the library for the purpose of research or private
study.

The limitations in case of Section 52 (1 )(i) are (i) the exception of reproduction is permitted
only if they are used in the course of instruction.(ii) by teachers and students.(iii) as part of
the questions or answers.

The limitations do not promote the exceptions but confines the users only ‘in the course of
instructions’ and reproduction which is not otherwise permitted. Even inserting the

120
Section 52(1)(g) reads as ‘the publication in a collection, mainly composed of non-copyright matter bonafide
intended for the use of educational institutions, and so described in the title and in any advertisement issued by
or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves
published for the use of educational institutions, in which copyright subsists.
121
Section 52(1)(h) ‘the production of literary, dramatic, musical or artistic work (i) by a teacher or a pupil in
the course of instruction or (ii) as part of the questions to be answered in an examination; or (iii) in answers, to
such questions.
122
Section 52(1)(i) the performance, in the course of the activities of an educational institutions of a literary,
dramatic or musical work by the staff and student of the institutions ,or of a cinematograph film or sound
recording, if the audience is limited to such staff and students, the parents and guardians of the students and
persons directly connected with the activities of the institutions or the communication to such an audience of a
cinematograph film or sound recording’.
123
Section 52(1)(p) ‘the reproduction for the purpose of research or private study, or with a view to publication,
of an unpublished literary, dramatic or musical works kept in a library, museum or other institution to which the
public has access’.
295
exceptions into the copyright law serves no purpose. The copyright law favors the owners
and restricts the use of the material for other than the educational instruction purpose. The
exception embedded in the section 52(1)(i) is also not an absolute one. It has a limitation of
performing the same to the limited audience of the educational institution and the audience
should include the students, teachers, staff, parents and guardians of the students. It is not
open for the general public. It is not even permitted for the audience of the students and staff
of other educational institutions.

The Box limitations to the exceptions tilt the balance of interests of the public to the
copyright owners and make the exceptions very narrow. In addition to it, enough ambiguities
are also created in the application of the above provisions. The phrase ‘in the course of
instruction’ opens a Pandora’s Box that whether it limits to the classroom instruction or is it
available to the instruction on the distant mode. The classroom instruction involves face-to-
face instruction whereas in case of distance education, communication of instructions is
involved and the communication may be by a regular mail or by internet, CDs, or by video-
conferences. The phrase ‘course of instruction’ does not indicate the time limit; it may be
even for decades. Other terms used in the Sections 52(1)(h) such as the ‘teacher’ and
‘student’ also opens up the debate, as they are not defined in the Copyright Act. The meaning
of the above terms, can be applied either to a limited meaning of ‘teacher or student’ enrolled
in the educational institution traditionally or any person who is using the educational
institution as media of learning. It further restricts the use of the material as part of ‘questions
and answers’ session only and not for any other mode of imparting education. Use of multiple
copies of a copyrighted material in the class rooms under the disguise of the education usage
for cost is not considered as compatible with the fair use practice in US.124

These exceptions guarded by the limitation may satisfy the tests envisaged by the Article 10
(2) of the Berne Convention and tilt the convenience in favour of Copyright owner. However,
there is a requirement of revisiting the provisions for better use and balancing of the interests
of the public and the owners. The ultimate aim of providing the exception is pointing towards
the non-commercial use and for the use of non-profitable education institutions, has to be
incorporated so that, the misuse of the materials by unscrupulous people under the disguise of

124
Princeton University Press v Michigan Document Services, 99 F.3d at 1389
296
the copyright exceptions may be checked and the interests of the public and also the
copyright owners are to be balanced.

The Copyright Law of most of the countries across the globe has adopted the guidelines
given in the Berne Convention and incorporated in their national laws. The law in China tilts
towards the copyright owner by requiring the acknowledgement and remuneration, even after
using the material for educational purpose. 125 The Copyright Law of Japan has balanced
provisions whereas in India, though the copyright law is considered as a rightly drafted piece
of legislation, it has a tilt towards the copyright owner and requires revisit to suit the present
knowledge driven society. It is necessary to examine the provisions of 52 (1)(g)(h) and (i) to
make the exceptions more flexible on line with the concepts of ‘fair dealing’ and ‘fair use’.
The limitation of ‘two passages’ contained in the proviso of section 52(1)(g) has to be looked
into to quote the material which is the subject matter of the discussion. The facility should be
given to all classes of works. Section 52(1)(h) has to be amended to include the fair access of
the material instead of the reproduction of the material during and for the purposes of
questions and answers of the students and teachers. Instead, it is justified to limit the
reproduction of material. All the material of education, whether it is primary school or higher
education material and its relevant material has to be made available freely so that it can be
accessed without any hindrance. For the purpose of unwanted usage and downloading of the
material an ‘end user agreement’ may be created so that the purpose for which it is used may
be certified by the user and contractual obligations are created. The educational institutions
are to be exempted from the infringement arena. However, the burden of proof for the claim
of infringement may be imposed on the person who used the material from the digital media
or from any other sources. Section 52(1)(i) may be modified to restrict the jurisdiction of the
exception to the performances which are made in the premises of the educational institution.
In addition to the acts of ‘publication, reproduction and performance, other classes of
activities are to be included under the exception so that the public at large can be benefited.

125
Lawrence Liang, ‘Exceptions and Limitations in Copyright Law for Education : ‘An Assessment, Paper
presented in the National Seminar on Copyright Law at Cochin’ on 14&15 May 2009.
297
5.7.11. Copyright Exceptions: Library Usage (Section 52 (1)(o))

Section 52 (1)(o)126 of the Copyrights Act 1957 contains the exception applicable to the acts
relating to the libraries. It empowers the libraries to make three copies of the books for the
use of the library. This exception is not absolute. The prerequisites for attracting the
exception are-

i. The number of copies to be made is limited to the maximum of three only,

ii. The copies are to be made under the directions of the persons in charge of a public
library,

iii. The copies should be made for the use of the public library,

iv. The copies are to be made only when the said book is not available in India for sale.

The shelter under exception is provided only when the above conditions are met with.
Otherwise, the act of making copies amounts to infringement. In addition, Section 52(1)(p)
permits the reproduction of unpublished literary, dramatic or musical works kept in a library,
museum or other institutions to which the public access is made. Copying is permitted only at
the direction of the in charge of the library.

The approach to the intellectual property has been changing gradually and ownership is being
narrowed down to individuals in place of societal property. Enough arguments are placed in
favour and against the owning of the intellectual property by individuals. The argument in
favour of individual and personal ownership is that the new intellectual property and rights on
them should belong to those people who invested their ‘sweat of brow’ and enjoy the fruits of
his own creations. They claim that when resources of the society are being used to
commercialize the new intellectual property, the society should also get some rights. Initially
in order to protect the individual rights of the authors/owners, law is made to enforce the
rights of individuals or the owners of the property.127 The law also provided some exceptions
to the general protection of the rights, for the benefit of the society. The objective of law, in
relation to the intellectual property rights, is dichotomous-protection of individual rights and
also interests of the society. There should be a striking of balance between the two. But, the

126
Section 52 (1)(O) states that –‘the making of not more than three copies of a book(including a pamphlet,
sheet of music, map, chat or plan) by or under the directions of the person in charge of a public library for the
use of the library if such book is not available for sale in india.’
127
The Preamble of TRIPS Agreement ‘recognizes the intellectual property rights as private rights’.
298
growth and liberalization of international trade is striving to dilute the intellectual property
law when they say –‘the measures and procedures to enforce intellectual property rights do
not themselves become barriers to legitimate trade’.128

By a study of fair use of USA and Fair Dealing of UK, Canada, Australia and India, it is
understood that ‘fair use’ concept is an open ended concept which means it allows any use of
work to be fair pursuant to a set of factors which help in decision making process and is given
broad and flexible approach ultimately helping the users. Whereas ‘fair dealing’ is applicable
only to a work used for one of a closed list of enumerated purposes, it is characterized as
restrictive, featuring an exhaustive list of defined exceptions. It is felt that the US fair use
defense is said to offer flexibility at the expense of certainty, fair dealing on the other hand, is
said to offer certainty but is very rigid. 129 In UK too the weighing between the different
factors can vary depending on the facts in the case in question. A fair use test offers to more
flexibility when compared to fair dealing provisions which are limited to specific set of
purposes of the use.130 The most important feature of the Fair use doctrine is its applicability
to all kinds and uses of copyrighted work. Therefore, it can be applied to endless variety of
cases and courts can apply it to new situations and develop it case by case. It becomes easy to
apply the fair use doctrine to even new demands created by the digital environment because
of its dynamic nature. Good example is the Google Book Search case in US Courts where the
flexibility of fair use doctrine can be seen. Google scans into its search database books and
other material from the libraries it has understanding that when a user enters a search query
online Google’s Book Search the search engine searches the full text of books that are stored
in the digital database. In response to search query, the user will browse public domain works
but only some pages or some sentences of text in books that are still covered by copyright are
visible. Both the actions fall within the scope of doctrine of fair use under US fair use
doctrine. Fair dealing lacks comprehensive coverage and therefore may cause unfairness
against digital technology and the dynamism of the information society. Then the much
appreciated fair use doctrine also has disadvantages as the doctrine fails to provide concrete

128
Preamble of TRIPS Agreement/www.wto.org
129
Justice Laddie, Copyright: Over Strength, Over Regulated. Over Rated, European Intellectual Property
Review, 18(5)(1996) 253-260.
130
Copinger,para. 9-07; Laddie, EIPR(1996),253(258);cf.Gervais, The reverse three step test, 27;Weatherall.Fair
use, fair dealing,8 (for Australian Law)
299
guidance for the parties131 and fosters litigation, 132 if the interpretation of fair use defence
depends considerably on judge’s personal perspective. 133 Therefore the balancing process
between the copyrights owners and the public interest in dissemination of knowledge gets
influenced by the relative copyright expertise by the court and the personal value system of
individual judges.134The scholars criticize the doctrine of fair use for absence of consistent,
principled application. In US, fair use doctrine, there is advantage to add new purposes to the
scope of the doctrine whereas for UK gives a catalogue of specifically defined exceptions to
add new uses or purposes it requires legislative activity that can be done only by Parliament.

131
Bently ,Dig. Tech. L.J (1999), 2;Carroll Fixing fair use 13 et seq.,36;Leaffer, Ohio St.L.J.62(2001), 849(855).
132
Bently, Dig. Tech.L. J (1999), 2;Weinreb,Fordham L.Rev 67(1998-99) 1291 (1309).
133
Ayers U.Pitt L. Rev.62(2000-2001)49 (76) DratlerU.MiamiL.Rev 43(1988),233 (255 et seq.), Laddie,
EIPR(1996) 253(258);cf.Leval, Harv.L.Rev 103(1990),1105(1106 et seq.).
134
Dratler, U. Miami L.Rev.43(1988) 233(255et.seq.);okediji, colum. J.Transnat 39 (2000), 75 (119).
300