Permitted Uses of Copyright

ABSTRACT

The mental capacity of a person gives rise to certain ideas and innovations at different
times. Creativity is inevitable, be it in any way or form, creativity is always prevalent.
Such creative ideas combine to form intellectual properties i.e., copyrights, trademarks,
patents, and various kinds of Intellectual Property. Obtaining permission for any
Intellectual idea often means having the authority to use that idea that comes under
intellectual property law. Infringing someone’s intellectual property right without their
prior permission may subject to legal action, as the intellectual property rights are
protected under certain laws i.e., Article 2(1) of Berne convention protects artistic,
scientific, or literary work, but one can use someone’s work without license/permission if
their use comes under the doctrine of Fair use. Fair Use is a doctrine often discussed
under intellectual property law that promotes freedom by permitting the unlicensed use
of work/innovation in different cases. The world today is advancing to the point where
everyone will be subject to change. Without educational opportunities and that too equal
ones to everyone, there would be people who would have to be in a state where they
cannot alter themselves because they are living in the parts where they have a very
downsized standard of education. This can be coped with by the emergence of an
international system which makes the copyright structures more lenient and makes
people able to equip themselves, with the required education. The concern is not only
circumscribed with one thing but it furthermore impels people to make progress in life in
terms of their social and political functions, their freedom, and liberty to be given
security. The procedure that is required to make such leniency in copyright systems is
to take steps towards an international system that introduces a certain number of
limitations and exceptions to the said system. This will furthermore allow many
individuals to get access to constantly updating technologies which are anecdote to
exploring multiple ways of spreading, collecting, and repositioning knowledge. The
indispensable element that one needs to consider here is that although these
technologies that are mentioned above are crucial in many ways, there ought to be a
proper phenomenon for keeping the copyright system protected against any inapposite
infringement. Thus, the said exceptions and limitations shall be created in a way that
they are agreed upon on an international level and there prevails some equilibrium in
copyright structure. The question in this project is about permitted uses of copyright,
whether this instrument is promoted or not, if yes, then what will be the outcome.
Permitted uses of copyright may help in the education sector, research methodology,
etc., like permission in copyright uses will enhance the scope and fair use of ideas of
many people. Giving permission doesn’t mean that creation of a person may go in vain,
use may be exceeded, but the name of the creator won’t be compromised at any cost.
Permitting the use of copyright will strengthen the scope of copyright protection globally.
Intellectual property law engages with incorporeal or intangible properties, the owner of
the intellectual property has many exclusive rights to control the utilization and disposal
of intellectual property rights. The concept of intellectual property is not a new subject
any longer. IP may seem to be a modern-era invention, but history witnesses various
recognitions in intellectual property rights and laws, so there are also some
controversies over which inventor was the first intellectual property pioneer, i.e. if we
turn the pages of history we will come to know that first-ever patent was documented in
600 B.C. for some bread loaf, or some historians date the first patent was granted in
1421 a Florence architect for innovating a crane system for transporting and shipping of
marbles, despite these names, the very first person on record who was awarded patent
was John of Utemyn in 1449, he was a glassmaker. He was granted exclusive rights for
the monopoly on producing stained glass by King Henry VI. 1

IP is nothing but an innovation of the intellect faculty of human beings. The term
Intellectual property is evolved from Industrial Property. Intellectual property is a
business asset offering a competitive advantage for others. In a broad sense, IP
includes legit rights that may be the result of intellectual activity in industrial, literary, and
artistic fields. Intellectual Property may be correlated to personal physical property as
they share some common features, like sale, purchase, mortgage, or license. 2
Nonetheless, IP has also some intangible characteristics due to difficulty in identifying
the physical features. Intellectual property can be owned and easily be dealt with, not
only statutory forms of IP but even common-law forms have been recognized as
producing a form of property rights.3

We have briefly discussed the nature of intellectual property, this is mainly centric upon
innovation and the rights of authors, creators and innovators, etc. despite that there are

1 Kwong M, 'Six Significant Moments In Patent History' <https://www.reuters.com/article/us-moments-

patent-idUSKBN0IN1Y120141104> accessed 15 March 2021
2 Mayer D and others, Introduction To The Law Of Property, Estate Planning And Insurance (4th edn,
2012)
3 Leather Cloth Co Ltd V American Leather Cloth Co Ltd [1865] Court of Chancery, 4 De GJ&S 137
(Court of Chancery)
some exceptions, limitations, and permissions in Intellectual Property. Looking into the
Marrakesh treaty4, or article 10 of the Berne Convention 5, a very slight touch to the
limitations and exceptions may be found. Furthermore, Article 10 of the WIPO copyright
Treaty, and the Three-step test also workout towards exceptions, and limitations hence
Permissions. The limitations and exceptions that we discuss could be very effectively
enforced by a three-step test which is not so hard to deal with as has been explicated.
This test in the first place is a derivative of the limitations allowed by the Berne
Convention and additionally by some small magnitude rights of imitations under WCT
and TRIPS. One thing must be clarified that the test is not about giving a pattern or
some convention. The three steps are:
1: That the exceptions do not infringe the significant right of the owner to generate
income.
2: That the exceptions have ample extension.
3: Do not threaten the right-holder in any possible way.

❖ General Object of Intellectual Property Law:

4 Marrakesh Treaty 2013
5 Berne Convention for the Protection of Literary and Artistic Works 1886
The object of intellectual property law is to protect the rights and obligations created by
any lawful means for the betterment of creators and innovators. Often countries
legislate their IP laws to give statutory expression to the moral and economic rights of
owners in their innovations and rights of the public in access to innovations, creativity
and dissemination of its results and to encourage Fair Trading that may play any crucial
part in economic and social development. 6

● Copyright Laws; Limitations and Exceptions

Intellectual Property law is associated with legitimate rights and obligations arose due to
innovative and creative efforts, or commercial or industrial goodwill and reputation. IP
law explains creative ideas and expressions of human intellect that carry commercial
value and liable for legal protection. The legal procedure and mechanism of protecting
IP rights is copyrights, trademark, and patent statutes. Every IP right has a reciprocal
and correlated duty. One cannot be registered without the other. Rights, duties and
obligation rose due to any law are called legal correlatives 7.

The law Copyright provides the creators of artistic work, cultural work or aesthetic work
with a monopoly on the right to make the copies of these products. Historically, the
artistic work like paintings, sculptures, crafting and musical compositions were
protected, but Pacing the modern times, this protection is extended to cover films,
software, applications, and videos. Copyright law protects the copying of original works
i.e. literary work, artistic work, musical work, etc. Copyright is basically the right and
privilege to copy and make use of literary, artistic, aesthetic work by the owner to the
exclusion of others. The working principle of the protection given under Copyright Is
about the expression and ideas. Copyright law doesn’t protect ideas themselves but the
expressive way in which the idea is portrayed. Copyrights protects an historian book on
World War One, but that does not give him (author) the monopoly to write on WWI,
same as the Guernica by Picasso is protected by copyright but copyright doesn’t protect
6 Copyright and Trademark Laws, Relating to Computers, by Pankaj Jain and Pandey Sangeet Rai, First
Edition, 2005.
7 Hohfeld, W.N.: “Fundamental Legal Conceptions as applied conceptions as applied in judicial
reasoning”. Reprinted in part in Lloyd, Lord (of Hampstead), (1979) Introduction to Jurisprudence (4 th
Edn., Stevens) at pp. 260-266.
the events it depicts. Pictorial or literary work may be a proof of distinguishing the
expression and ideas, but in musical works it becomes very problematic. Copyright is
established upon its creation 8, like the creator has copyright instantly as the work comes
into being. Registration is not required.
Like copyright protects the expression, law of patent provides a monopoly in the use of
ideas genuinely. For many reasons the law of patent is one of the most disputed area in
the law and legal theory. Patents are granted for a limited time period (generally 20
years from the date of applying).
The law of Intellectual property not only discusses the monopoly rights acquired, but
also scope of rights in which circumstances they are infringed, and much of the law
concerns the licensing of such exclusive rights and the problems of which licensing may
give rise.

Limitation and Exceptions;

Copyright and author right’s laws contain limitations or exceptions to the exclusive rights
of copyright holders. This results from the public interest in using works for certain
purposes and maintains the balance between owner’s rights and the public good. Most
countries recognize limitations or exceptions allowing the public to use works without
gaining permission and without paying remuneration for teaching, research, and private
copying. The WIPO Copyright Treaty recognizes these differences in national law and
grants Contracting Parties the latitude to provide limitations or exceptions in national
legislation Article 10(1) requires that these limitations and exceptions be allowed in
“certain special cases that do not conflict with the normal exploitation of the work and do
not unreasonably prejudice the legitimate interests of the author.” The Agreed
Statement clarifies that Contracting Parties may extend exceptions and limitations
acceptable under the Berne Convention into the digital network environment and to
devise new exceptions and limitations appropriate in the digital environment. This allows
Contracting Parties sufficient flexibility to keep existing limitations and exceptions while
creating new limitations and exceptions for a digital world.

8 Drafting of deeds and documents by Padala Rama Reddi and Padala Srinivasa Reddy, 17 th Edition
2007, p. 839.
The necessity of an international system for limitations and exceptions is based on the
consequences and outcomes that it brings with itself. The international agents will be
working in a collaborative way to impose the exceptions, exceptions, and limitations of
copyrights. The dependence on national-level interpretations would be eradicated. This
would be possible when the exceptions and exceptions are derived from the procedures
as having been laid down by the WIPO treaties, Berne conventions, and TRIPS.

Benefits in furtherance of such Exceptions and exceptions would be:

● More limpidity and even standards would be given a higher place in terms of
protection on an international level. Which consequently, will unclog the routes
for many things across the region.
● It will help limit the one-sided control over the criterion of the said mechanism.
● Encourage to relieve the state's lowness regarding its institutions.
● To make the emphasis on the reciprocity of two parties or regional locale to be
ineffective.

● Limitations and Exceptions; Doctrine of Fair use?

Fair use may be a legal doctrine that promotes freedom of expression by allowing the
unlicensed use of copyright-protected works in certain circumstances. Fair use of
copyright is permitted by legal frameworks and courts as well, but there is a thin line
difference between fair and unlawful use of copyrighted works, i.e. For educational
purposes, a portion of the text book can be used, or a newspaper or any article can
quote portion of any protected work (mentioning the source of the quote is fair use,
quoting without source is unlawful. Mere few words of citation can erase the line of
demarcation between fair use and unlawful use. To understand the line properly, we
may consider the factors of difference between the two problematic scenarios i.e. Fair
use or unlawful use. In 1992, a Supreme Court Judge from USA said that there are four
factors in determination that whether there was a fair use.
1. Purpose and character of the use, be it commercial or educational.
2. Nature of work
 3. Quantity of portion used
4. Consequences of use on potential market. 9

Fair use doctrine is actually a very slippery defense in entire practice of copyright law,
Time Inc. V. Bernard Geis Associates 10 states, “doctrine of fair use is entirely equitable
and is so flexible as virtually to defy definition”.
Fair use might not be what you expect. Whether or not you’re within the boundaries of
fair use depends on the facts mentioned above. Not all factors got to weigh either for or
against use, however overall the factors will usually lean one direction or the other.

● Limitations and Exceptions; 3 Step Test?

It is broadly believed that copyright holders don’t have unlimited rights. Despite a very
wide set of limitations and exceptions is considered crucial to protect the basic
fundamental rights and privileges of users to proceed with the Intellectual industry and
competition practice. For balanced copyright law, limitations and exceptions are of
utmost importance.
Three steps test is a conclusive test initially introduced by the Berne Convention, which
is based on steps to make the reproduction of any work, legitimate. There are 3
conditions for exceptions and limitations in this test which give rise to legal components
of reproduction.
Berne Convention defines this test under Article 9 clause 2 as “It will
be a matter for law with inside the nations of the Union to allow the reproduction of such
works in sure special cases, provided that such reproduction does not conflict with
a normal exploitation of the work and does not unreasonably prejudice
the legitimate hobbies of the author.11

This important test plays a crucial role in explaining the limited and excepted uses of
copyright, this 3-step test has been quoted in numerous international IP conventions,

9 Drafting of deeds and documents by Padala Rama Reddi and Padala Srinivasa Reddy, 17 th Edition
2007, p. 456
10 Time Inc. V. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968)
11 BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS, Article 9 §
(1971).
i.e. Article 13 of the TRIPS agreement is a very important provision for this, hence it is
very broad and isn’t limited to any specific right.
Interpretation of the 3-steps test is already under discussion, but there is also some
crucial debate going on about how effective test exemptions are, at explaining the
information and knowledge access in some areas, i.e. translation and reproduction of
work is exempted from 3-step test via a system of compulsory licenses, under Berne
12
Appendix on Special Provisions for Developing Countries.

Effects of International Instrument of Permitted Uses of Copyright:

Least of all the objectives achieved from the imposition of these transnational
exceptions and exceptions on copyrights would be:
1. The spread of knowledge would be made more even and equivalent by way of
providing a system in which transnational copyright structures are widely settled
and certain.
2. The exertions related to the propagation of knowledge and information would be
made free of any hampering, through eradication of such obstacles.
3. A sense of competition would be encouraged to open the getaway for different
novelties.
4. The basic liberties would be more easily strengthened through this international
structure.
5. The admission to avail entities of information would be made easier.

12 Berne Convention Appendix on Special Provisions Regarding Developing Countries (1971).