CHAPTER VII

CONCLUSIONS & SUGGESTIVE MEASURES

7.1. COPYRIGHTS LAW AND INFRINGEMENTS:

The Copyright law plays a profound role in regulating our contemporary lives and shaping of
our sense of self. Our increasing interaction with the copyrighted content has made the
copyright infringements more often. The copying was difficult in good olden days because of
lack of facilities like internet, printing tools and other copying tools. But, the advent of
technologies has facilitated the copying very easily resulting in loss of revenue and benefits
to the owner. The computer technologies have brought the facilities of ‘cut and paste’ culture
in all the areas of works and made the infringements easy. The infringement litigations are
becoming more frequent for the reasons of increased copyright law awareness and
consciousness on one hand and availability of digital content on websites and internets on
other hand in addition to the focus on commercialization of the literary works.

The Copyright Act 1957, a well drafted piece of legislation, covers various aspects of the
copyrights and proved to be the source of rights to the owners successfully. The copyright
jurisprudence that is embedded into the statute has given relevant rights to the owners of the
creative works and also defined the boundaries of the rights and infringement of copyrights.
The Act also provides for the penalties and fines for the said infringements. Unauthorized use
of the creative original works is violation of exclusive rights of the owners and actionable
infringements. The copyright law also covers the contributory and vicarious infringements
attracting the legal suits. Equally, the statute provides various exceptions and fair dealing
defence to the individuals who are in dire need of the original creative work and to balance
the individual interests with that of the social obligations. Though the doctrine of fair use and
fair dealing is considered to be a well accepted tool to protect the interests of the society, it is
being criticized many times for the limitations that it contains. The copyright jurisprudents
are divided on the point of fair use defence arguing that the fair use is detrimental to the
owner’s rights, as they get diluted and others promoting and supporting the doctrine arguing
for further liberalizing and widening the scope of the doctrine.

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7.2. COPYRIGHTS AND FAIR USE EXCEPTIONS

The Copyright Law across the globe has adopted the fair use guidelines given in the Berne
Convention and incorporated in their national laws. However there are different models exist.
The law in China tilts towards the copyright owner by requiring the acknowledgement and
remuneration, even after using the material for the educational purpose1. The copyright law
of Japan has a balanced provisions of fair use and owners rights where as in India, though the
copyright law is considered as a rightly drafted piece of legislation, has a tilt towards the
copyright owner and requires a revisit to suit the present knowledge driven society

The fair dealing concept embedded in the Section 52 (1) of the Copyright Act 1957 is not
absolute. With various limitations surrounding, the fair dealing provisions are proved to be of
not much use. One of the examples is the fair dealing for the purpose of teaching, critical
review, educational and research activities. The Copyright law exempts use of copyrighted
material for educational, research and review purposes and considers them as the fair dealings
and exempts from the infringement purview. Though the reasons are of greater importance
and relevance with the social objectives, many of them have not qualified for the fair dealing
test. There is a requirement of unlimited access to the original creative work for the purpose
of educational instructions and furtherance of research activities. The law does not permit the
photocopying of such material and ultimately the limitations of the provisions of fair use cut
short the objectives of the fair use doctrine, as it causes the commercial loss to the owner at
market place. The fair dealing, the courts opined, is not really fairly dealing. It is always
difficult to prove the fair dealing along with evidence. The market harm is always in a fluid
state and very difficult to prove before the court and convince the judiciary. The US law is a
little wider than Indian law, which says the work which is in question should be
transformative.

The objectives of the copyright law to include the fair dealing exceptions are:

i. To allow creation of new material and avoid costs on creation of existing information
or knowledge

1
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
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 ii. To promote the public interest in access to copyright material or for the purpose of
social benefits, so the law permitted access for library, archive, cultural
institutions and educational purposes.

iii. To avoid the heavy costs on the end users

The fair dealing exceptions incorporated in the copyright law may be of two types:

a. Free use and paid use exceptions: some of the copyrighted material is permitted to
be used without any payment at all and some of the material is required to be paid for
use.

b. Specific or General exceptions: Some of the exceptions are open ended and can be
used as fair practices or fair dealing. And some of the exceptions may be specific,
permitted for certain purposes and specify terms and terms are to be followed
stringently.

7.3. FAIR USE: CONCLUSIONS AND SUGGESTIONS

The fair dealing exceptions do have the flexibility, legislative simplicity and also have some
shortcomings such as, narrow provisions with limited accessibility causing uncertainty and
confusion about the applicability and extent of applicability of exceptions and protection.
Some of the conclusions arrived during the analysis of the fair dealing provisions included in
the Copyright Act 1957 earlier are: The limitations embedded in the fair dealing exceptions
permit the copying of the material for personal use and not for the third party use , though it
is very difficult to distinguish between the third party use and personal use of the material
for the permitted purpose. Other concerns with that follow the fair use doctrine are:

i. The difference between the commercial research and research for study is not clearly
distinguished.

ii. The exceptions are not clear about the time-shifting and format shifting.

iii. Many a time, the judicial interpretations of the terms and reviews could not clear the
ambiguity between the copying leading to infringement and permitted copying under
the fair dealing. As such it becomes more difficult to follow the precedents.

iv. One of the important issues is the scope of the private use or personal use. Pure
personal use and personal productive use are conflicting in nature and the doctrine has

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 not addressed the issue. The thin line between the commercialization and benefitting
from the personal use evaporates frequently causing concern.

v. The fair dealing factors such as ‘nature of the use’, ‘nature of the work’, ‘nature and
extent of the material used’ and ‘effect on the market for the work’ are some of the
terms for analyzing to understand and place under the permitted use or commercial
use of the copyrighted work.

Important Gaps and Shortcomings

Some of the important gaps and shortcomings in application of fair dealing along with
proposed suggestions are discussed hereunder.

a. Section 52(1)(g) and (h) of the Copyright Act 1957 provides for use of copyrighted
material freely for education purposes. However they are eclipsed by the limitations.
One of the limitations is the extent of ‘two passages’ of the same author and other is
one time in five years. The educational institutions are barred to use more than two
passages of an author published in the five years time for quoting purpose. As such
the application of fair dealing has limited application without many benefits. The
entire content description exception in itself is ambiguous. The stakeholders of the
educational institutions, teacher and student are permitted to reproduce the literary,
dramatic, musical or artistic work during the course of instruction and part of
questions and answers of examination. These limitations again curb the requirement
of students and teachers from using their preparations, completing the assignments
and other activities.

i. As such Section 52(1)(g) and 52(1) (h) have 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.

ii. All the material used in education, whether it is primary, school or higher
education material and its relative material has to be made available freely so
that it can be accessed without any hindrance.

iii. For the purpose of regulating the unwanted usage and downloading the
material indiscriminately an ‘end user agreement’ may be created so that the

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 purpose for which it is used may be certified by the user and contractual
obligations are created.

iv. The educational institutions established by the organizations not for profit and
other philanthropists are to be exempted from the infringement arena.
However, the burden of proof for the claim of infringement may be imposed
on the person from such institutions who used the material from the digital
media or from any other sources.

v. There should be depository at national level making it compulsory for

educational institutions and the research institutes to register the new research
documents and material so that there should not be any misrepresentations
about the material used and it will act as a central point of reference for
obtaining the permissions to use the material.

b. Section 52 (1) (i) provides for the performance of literary, dramatic or musical work
by the teachers and staff for the education purpose and the target group should be the
teachers and staff. Any performance by the external members or third party for the
purpose of education and to the teachers and students is not considered as the fair
dealing. On other side, if any act is performed by the teachers and students for the
benefit of the educational institutions having audience from the general public, the act
is not covered under the fair dealing. As such the limitations have curbed the horizons
of the acts even though the performance is for the ultimate benefit of the educational
institutions. As such the provision stated there in Section 52 (1) (i) requires to be
revisited and may be modified to restrict the jurisdiction of the exception to the
private performances which are made in the premises of the educational institutions or
outside the institution, if the ultimate objective is for the purpose of education.
c. In addition to the acts of ‘publication, reproduction and performance covered under
the Section 52 (1) (i), other classes of activities such as translations, abridgements,
converting them into dramatic or cinematographic formats are to be included under
the exception so that the public at large can be benefited.
d. The Act has not defined many terms for effective interpretations. In the first instance,
the exception with more other limitations is in favor of the copyright owner than that
of the public. As such, in order to balance the interests of the parties, the Act has to be

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 further strengthened to have clear definitions of the libraries, mode and method of
copying books and striking of the limitation of ‘three copies’ of the books. The same
provision should be made equally applicable for the books published in India, and but
not available in the market. The availability of books to the user on payment is
important, whether they are printed in the country or outside the country.
e. The aforesaid exception should also be applicable for other formats of the literary
works, music recordings and cinematographic films, documentaries and others in
written formats or digital formats. The ultimate objective of the libraries and the
knowledge banks to make the knowledge available to the generations after
generations, has to be considered as a divine task and the law should play supporting
role in preserving the marvelous contributions of great scholars and thinkers.
f. The objective of the libraries is to preserve, protect and make available the published
and unpublished works of the authors. It is for providing the information to the public
in general and make them aware of the new knowledge created. There may not be any
difficulty with the books published either in the physical formats or digital formats
and available in the market. But, the real game starts with those books which are not
published and manuscripts available in libraries. Sections 52(1) (o) (p) provides
exceptions to copyright protection for the use of books from library. The copyright
law and its exception may be helpful to some extent, but with its limitation of three
copies may not serve the purpose of the exception, as the copies may not be made
available in other libraries and libraries located at other places. Under the present
scenario of the expanded horizons of the libraries which contain not only the books,
but also news papers, magazines, bulletins in printed form and digital form, unless the
exception is modified to suit these works, the exception has no meaning.
g. In the digital world, the libraries are being digitalized and accessibility and copying
of books for the purpose of justified reasons are subjected to memberships, password
protections and so on. As such the fair dealing with the digitalized books is again an
issue of complexity. It may be copied by any person and it will be difficult to
understand the source from where the copying is made. The technology should be so
used that the material should be in readable format so that it cannot be copied.
h. The act of making three copies of the books under the directions of the incharge of
public library is another dimension which requires attention. The limitation to have
three copies has no meaning in the present digitalized world as one copy or more
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 number of copies may lead to further copying and the same can be accessed by a
good number of people at a time and the owner may be put to loss.
i. Translating of books into various other languages is another issue associated with the
library and the Copyright Act 1957 is silent on the act of fair dealing relating to
translation of library books from one language to another with the help of technology.
This provision requires to be revisited in detail in the light of the advanced computer
technologies.
j. The copyright law considers the act of copying by the owners for the purpose of
preserving the data or otherwise as the fair dealing. The most important tools of
copying the material is the computer, hard disks and or other electronic gadgets.
Every computer, after the material copied and transferred into a gadget and the same
will be copied in various parts of the computer and can be recovered even after the
same is completely erased. As such the same is accessible for a person with sound
technology background and it may be used for the commercial purpose.
k. Accessing the software programs or music may provoke reverse engineering and end
up with another competitive product. It is more so in case of the access to the
cinematograph films. On the other hand, restricting the access to the copyrighted
material including the software programs or music may prejudice the interests of the
author and the society. As the activities – ‘access’ and ‘use’ cannot be one and the
same, the copyright law should focus on the aspects and impacts of ‘access’ by
inserting the phrase the ‘fair access’ in addition to the ‘fair use’ so that other works
such as ‘broadcasting, performance, cinematograph films, and the digital contents will
be accessed and then used for the broader benefits of the society. It has to be
remembered that the fair use exception will not protect the acts of accessing of the
copyrighted material with a ploy that the fair access is bundled with fair use or fair
dealing. ‘Use of a copyrighted work and access to it are different animals. US
copyright law focuses almost exclusively on use rights and does not create general
positive access rights. Of course, use rights will nonetheless be effective if authors
choose to give access to works through wide distribution of those works through
publication’2. The argument on the need of inserting the phrase ‘fair access’ in order
to strengthen the copyright law is to be considered.

2
ibid
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 l. The Copyright Act 1957 requires to be reviewed to consider a few more acts as fair
dealing which includes the acts of translating the original books, pamphlets, maps and
other material in to Braille scripts or into audio tapes for the use of visually impaired
people and adding to audio-description to films or broadcasts for visually-impaired
people. The acts of making accessible copies of books, newspapers or magazines for
dyslexic people are to be considered as the fair dealing of the copyrighted material.
m. One of the important exceptions under the fair dealing is the act of reproduction of the
copyrighted material for the purpose of ‘private use’ and ‘research.3’ It is always an
unending dispute because of ambiguity about the private use and public use. What is a
private use is also a question of fact. It is very difficult to segregate the private use
from that of the non-commercialization. In the initial stages, the act may appear to be
non-commercial when it is made for the personal use. A commercial empire may be
build upon the non-commercial personal use. A question that whether ‘Parody’ based
upon the existing copyrighted material is for personal use or not on one count and
what is its reply in the commercial market is another element that needs to be
answered. Whether personal or private use covers the use of entire family or
individual needs? It should be again tested with reference to other factors such as
‘nature of the use’,’ nature of the work’, ‘extent of portions used’. As such the
ambiguity that prevails on the above said area requires to be addressed.

n. In addition to the above said discussion, the law is required to be modified on the
following aspects:

i. To avoid litigations for use and provide alternatives to the consumer and owner
of the copyright and minimize serial infringements unknowingly is desirable. By
establishing a digital depository of articles and books published and unpublished
works and making it compulsory for registration, may avoid unnecessary
copying and also litigations.
ii. Right balancing in protecting the owners and users of the existing work for
creation of new works based on the existing works is necessary. As discussed
earlier, once the cost of the original creation is recovered by the author, he may

3
Section 52 (1) (a) of the Copyright Act 1957.
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 be advised to forgo the rights on the work or made available to the public instead
of restrictive use.
iii. The law should have exceptions which have broad based approach and avoid
scope for narrow interpretations of terms and concepts. The Copyright law is
silent on many terms used in the legislation. As such there is a need to describe
or define them to avoid furtherance/ occurrence of litigations.
iv. Copyrights law should permit the educational institutions and research
institutions to save cost and time effectively for academic and research purposes.
And also make them ready with the applicable rates for reuse of the works so
that the user shall be accessing the information required by him on immediate
payment.
v. Clear distinction between the copying for private use and copying for
commercial use has to be made without any ambiguity. The copying for private
use is a valid defense but later, the new product developed with the copied
material may be used for commercial purpose. It may disallow the owner of the
original work the incentives for his work.
vi. The statute should consider the circumstances under which infringing acts will
not be treated legally as infringing, for reasons having to do with the substantiate
value of what the defendant is doing and independent of arguable harm to the
copyright owner
vii. The statute should be comprehensive with clear conceptual embodiments
defining the boundaries of exceptions and limitations of the doctrine.
viii. The balance between the copyrights of the owners and exceptions, having certain
limitations, should be coherent and have balancing act in accordance with the
policy of the copyrights. The State should make a policy document on the use of
copyright material so that it may lay road to the jurisprudents to discuss the
extent of scope and limitations.
ix. There should be a well-defined mechanism for reconciliation like alternate
dispute resolution methods for resolving the disputes under the Act,to ensure
speedy disposal of cases, leading to the agreeable adjudication for individual,
social and commercial interests of the parties.

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 The aforesaid suggestions are a few changes that may help the fair use to be more
effective.

7.4. Conclusion
The approach to the intellectual property has been changing gradually and concept of
ownership is being narrowed down and assigned to individuals in place of society. Enough
arguments are placed in favor and against the private ownership of the intellectual property.
The argument in favor of individual and personal ownership squabbles that the new
intellectual property and rights belong to those people who invested their sweat of brow and
they should enjoy the fruits of their own creations. Another important argument that prevails
today is that the benefits from intellectual property trigger further new creations and act as
incentives and motivators. People arguing for societal rights on the newly developed
intellectual property say that the author or the inventor during his creation or inventions has
not only utilized his own intellectual capital but also used resources of the society. They
further state that the commercial success of the newly created property depends upon the
extent of patronage from the society. It may not yield any incentives if the society rejects or
dejects the same. 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, the law is made to enforce the
rights of individuals or the owners of the property4. 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 to serve the dual purpose - protection of
individual rights and also interests of the society. There should be striking balance between
the two. But, the 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 trade5’. TRIPS Agreement
has laid down the guidelines in this direction to balance the interests of the individual
members and also remove certain barriers in the international trade.

The age old land mark decision in Folsom v Marsh has given some meaningful direction to
the doctrines of fair dealing and fair use. Fair use is fair, after all, because, that it generates

4
The Preamble of TRIPS Agreement ‘recognizes the intellectual property rights are private rights’.
5
Preamble of TRIPS Agreement
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social benefits that the market can’t otherwise produce6. Fair use is a known departure from
the market. Fair use as a legal matter is more concerned with the concept of distributed
cognition. Fair use is not market curative. The aforesaid land mark decision has given some
edge of copyright law of US among some of other countries. The Australian law is striving to
adopt some of the best practices of fair dealing into their copyright domain.

The cosmetic changes made to the copyright law in India under the shadow of TRIPS
Agreement, with the exceptions inserted into the law, are not serving the purpose absolutely.
The exceptions that are being checked by the limitations at every stage, may be for the
bonafide reasons, have least and marginal benefits. Enough questions and gaps are being seen
during the enforcement of law. As discussed earlier, the fair use concept requires frequent
examination and additions and deletions of limitations with changing time and technology. It
should be revisited in the light of the research and developments, developments in computer
and digital technology. The Copyright law requires to be relooked into to check some of the
ambiguities and misconceptions, for balancing the interests of the individual owners and
interests of the society. The procedures ought to be simplified for the purpose achieving the
objectives for which it is made. If strict scrutiny of the existing law and gaps are not taken
care of before undertaking the task of changing the law, it will be difficult to understand
whether the existing copyright law is fair to the owners/authors or to the society at large.

Copyright is meant to protect the authors’ and artists’ economic interests in their works. But,
the social obligation is more important than the copyright holders monetary losses. If the
society is rich and has exhaustive knowledge base, the people accessing the same will not
mind to pay the royalties to the authors. The act of copying can be a kind of service to the
society instead of damage to the individual benefits. The doctrine of fair use champions for
the rights of public to access the original creative works and as such requires a revisit to the
provisions contained in the Copyright Act 1957.

6
Lydia Pallas Loren, Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission
systems’, 5, Journal Intellectual Property Law, (1997)
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