Title - Analysis of section 52 of the Indian copyright act 1957: Surfacing

judicial drift
Issues involved -
1) Does section 52 of the Indian copyright act 1957 infringe rights of the copyright holder?
If it is, up to what extent?

1) Introduction -
As the world is growing and changing fast, so is the increment in copyright
infringement. This has increased anxiety among the copyright holders. So, this
work lays stress to resolve all the questions of the copyright holders. The present
work focuses on the interpretation of fair dealing with the help of various case
laws and relevant legal provisions. The paper has come up with some loopholes
present in the Indian copyright law and discusses them to provide a better
understanding. The primary aim of the project is to analyze the balance between
the rights of copyright holders and public interest in its depth.

2) Purpose and meaning of fair use doctrine -

This part helps in analyzing the purpose of fair use within the Indian copyright
regime, which thereby allows us to define its scope. The rationale for fair use is
the same as that of free speech1 that enables free dissemination of information,
criticism, comment, research, etc. Justice Endlaw, also brought into perspective
that fair use is designed to stimulate activity and progress in the arts for the
intellectual enrichment of public and intended to increase and not impede the
harvest of knowledge and motivate the creative action of authors and inventors to
benefit the society2.

The legislative intent behind this section is to facilitate the cultural activity,
business transactions, improve education, make the law more accessible, and
permit persons with disabilities to access copyrighted content.

The courts view over fair use doctrine in Rameshwari photocopy case3, eastern
book company v. Db modak4 and the chancellor master v. Narendra publishing
house5 is that to constitute fair use the work should not include the substantial
amount or portion of the original work, the work should not harm the commercial
market of the original work, the essence of the work should not be copied, no
matter how small it may be, the character and the purpose of the users need to be
1 Article 19(1) of the Indian constitution
2The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services [2016]
3 Supra note 2
4 Eastern book company v. D.B.Modak, [2008] 1 SCC1
5 The Chancellor Masters and Scholars of The University of Oxford v. Narendra Publishing House and Ors. [2006]
 bonafide. All these factors mentioned above are known as four-factor tests which
is a US-based approach.
The court also states that if 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.6

3) The relation between freedom of speech and expression and fair use provision -
In continuance with the above discussion, the author is trying to analyze the
relation between free speech and fair use. Free speech and expression laid the
foundation of fair use. That's why understanding the relationship is important.
There are conflicting arguments about the relation of copyrights and the right to
free speech and expression. Some of the scholars argue that the rights of free
expression and free speech end from where the copyright law governs. Copyright
law restricts the access of the copyrighted material by granting exclusive rights to
the copyright owner as such there is no freedom to copy the contents from the
copyrighted material. That's why, framers of the copyright law brought the
concept of fair use which allows the people to read and assimilate the information
that is available in the copyrighted material, but exclusion is for ‘using’ the
copyrighted material for different purposes, more precisely for commercialization.
Another argument that is put-forth is that free flow of information is the
requirement for the creation of new knowledge. Original creative work and free
access to new information leading to creating new knowledge are cyclic, as such,
there should not be any conflict between the two.
So, there is no harm to free speech and expression. On its contrary, it raises the
question for the infringement7 of the copyrighted work which is discussed later in
the paper. Therefore we can conclude that the copyright law does not violate
article 19(1)(a) of the Indian constitution both from the perspective of a copyright
holder and public interest.

4) Limitations of fair use doctrine in India-

The author has come up with few limitations which will provide a clear picture as per up
to what extent the rights of the copyright holders are being infringed due to fair use
provision.

➢ Does the term “Private use” under section 52(1) of the Indian copyright act 1957 may
lead to commercially harm the copyright holder?
The private use is for the use of individuals or for the purpose of his own
activities and not for commercialization and circulation among people whether
that group is private or formed for the public purpose8. Depending upon the
circumstances, time, and needs, the meaning of the phrase ‘Private use’ changes
6Supra note 2
7 Section 51 of the Indian copyright act 1957
 and is extendable unlimitedly. As such, there is an ambiguity at every stage to
assess whether the use is private or public. The said ambiguity knocks away the
thin line between the act of fair use and infringement.
Sometimes the use may be private on the initial stage, but consequently, it may be
the foundation on which future business empires may be built. In some cases, the
use of copyrighted material may be protected on the ground of private use, but
later, under the changed circumstances, it may lead to the public use causing loss
to the owners9. As the phrase ‘Private use’ is relative and eradicates the sensitive
difference between fair use and infringement.

➢ How does section 52(1)h of the Indian copyright act 1957 majorly harm the rights of the
copyright holder?
The court in the famous DU photocopy case10 permits photocopying of the
copyrighted material and held that the reproduction of the copyrighted material
comes under the term “in the course of instructions”11. After the interpretation of
the court, many doubts have cropped up that the reproduction can only be done
through photocopying or is it permissible through any other medium. Other
mediums may include( CD, pen drive, emails, and virtual teachings, etc.)12 Virtual
teaching is a big question because the present section is limited to the classroom
teachings and classroom teachings mean face to face learning. However, due to
COVID-19 schools and colleges are forced to teach online. Therefore, online
teaching shall be covered under exception13. Although virtual teaching is
protected yet copyrighted material is in danger especially over YouTube.
Moreover, some authors have permitted14 to use their work still it is objectionable.
Further, if we take examples of online courses, they are required to obtain a
license for the same. However, if the reproduction of any copyrighted material in
the course of instructions takes place, exactly like the DU photocopy case is
8 Reddy, Jayanthi P L, “ COMPARATIVE STUDY OF DOCTRINE OF FAIR USE : LEGISLATIVE AND
JUDICIAL APPROACH”( Shodhganga, 2015) 12_chapter 5
https://shodhganga.inflibnet.ac.in/bitstream/10603/188175/12/12_chapter%205.pdf [46]
accessed on 23/08/2020

9 ibid.
10 Supra note2
11 Section 52(1)h of the Indian copyright act 1957, the term “ in the course of instruction” is well defined
in the DU photocopy case.

12 Supra note 8, [62]

13 Namratha Murugeshan, “CovEducation, Copyright and Fair Use in India”(spicyip, 17 April 2020)
<https://spicyip.com/2020/04/coveducation-and-copyright.html> accessed 23 August 2020
14 Matthew Bultman, “Online Teaching During Pandemic Raises Copyright Concerns”(Bloomberg Law, 3
April2020)<https://news.bloomberglaw.com/ip-law/online-teaching-amid-virus-raises-copyright-
questions>accessed 23 August 2020
 permissible or not is still to be sorted out. On the other side, online courses do not
have territorial boundaries. Apart from that, they do not have limitations as per
the time and people availing of the courses.
Legislation needs to frame strict guidelines regarding the virtual teachings
otherwise it might infringe copyright unlimitedly.
On the other hand, If you analyze online teachings carefully. Copy-paste the
online material is quite an easy thing, people use screenshots, screen recordings,
and many other tools. Therefore, the reproduction of the courses is not far from a
click.

➢ How does the term “religious ceremony” under section 52(1)za infringe copyright?
In a current notification by the copyright ministry15, It is clear that license is not
necessary for the purpose of religious ceremony and the term religious ceremony
does include marriage processions. Apart from the notification, Punjab and
Haryana High Court in the case of Phonographic Performance Ltd. v. State of
Punjab16 held that organizers are required to obtain a license for using sound
recordings in the marriage ceremony. However, some authors contend that the
said activities are permissible under a closed hall17, but most of the marriage
ceremonies are held outside in hotels, banquets, and lawns. Therefore, it is still to
be clarified whether hotels have to obtain a license for the same.

➢ Have the existing authors stopped creating their work because sooner or later their work
is going to be infringed due to fair dealings?
The answer is no. As the fair use doctrine must have infringed copyrighted
content but it does not harm severely. If we compare the existing fair dealing
doctrine with different countries’ ambit of fair dealing is too restricted in India18.
Further, the courts and the newcomers are demanding to enhance the scope of fair
dealing in India. In order to provide flexibility to the users to enhance the
unrestricted flow of creativity19.
15 Hoshiar Singh, “Latest Notice”(copyright Office Government of India, 27 August 2019
<https://copyright.gov.in/Latest_Notice37.aspx>accessed 23 August 2020

16 Phonographic Performance Ltd. v. State of Punjab[2011] (Civil Writ Petition No.7772 of 2011
(O&M))
17 Isha Tiwari, “Your Wedding Sangeet Won’t Violate Any Copyrights, Or Will It?”(KHURANA &
KHURANA, 2 september 2019) <https://www.khuranaandkhurana.com/2019/09/02/your-wedding-
sangeet-wont-violate-any-copyrights-or-will-it/?
utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>accessed 23
August 2020

18 Supra note 8
19 Pragalbh Bharadwaj, “A CRITICAL APPRAISAL OF THE ‘FAIR DEALING’ DOCTRINE UNDER
COPYRIGHT LAW IN INDIA: HIGHLIGHTING THE IMPERATIVE NEED FOR REFORM” (2016) issue 1
volume 2nd <http://sbj.hnlu.ac.in/wp-content/uploads/2018/08/pragalbh-bharadwaj.pdf>accessed
23 August 2020
5) Critical appraisal of the above discussion-
Commence with the first issue of private use, here you can clearly see that in the
initial stage of the private uses it does not harm the rights. Still, if it appears later
that the person has created something which is detrimental then you can easily
knock the door of court for the redressed of your grievance. Thereafter, if we
come to the second issue legislature is bound to allow colleges and universities in
the name of public interest. On the other hand, copyright holders are in danger
because of online courses. So, here we can say that the legislature is lacking to
manage a balance between the interest of the copyright holders and the public at
large. After that, if we look at the third issue hotels and event’s organizers charge
for the copyrighted material they use in ceremonies. Therefore, it is construed that
the courts and legislature have not taken care of public interest properly. The crux
of the above discussion is that if you look at every provision of section 52 of the
copyright act 1957. You will always end up with something that lacks in it. From
the present analysis, it can be concluded that there will always be a need to
balance both public interest and interest of the copyright holder or it can be said
that statutory rights shall not be overlooked.

6) conclusion-
we can conclude that due to the development and modernization of
technologies the need for the review over the fair use doctrine is a never-ending process.
Therefore it is better for the copyright holders not to be worried about it. Other than that
they have courts to approach if copyrights get infringed. However, there are times when
courts and the legislations are required to take the fast actions to provide a proper balance
between the public interest and holders' rights. It is also true that the copyright law of
India is too rigid that it lacks to provide flexibility to the new talents.

7) References-
https://www.mondaq.com/india/copyright/299252/fair-dealing-in-copyrights-is-the-
indian-law-competent-enough-to-meet-the-current-challenges
https://www.ipmall.info/sites/default/files/hosted_resources/IDEA/idea-vol51-no3-
song.pdf
http://ijlljs.in/delhi-university-vs-publishers-aniket-pandey-b-b-a-ll-b-corporate-law-
hons-5th-yr-university-of-petroleum-energy-studies-dehradun-and-apoorv-pandey-b-b-a-
ll-b-hons-3rd-yr-itm-universi/
https://www.mondaq.com/india/copyright/842236/your-wedding-sangeet-won39t-violate-
any-copyrights-or-will-it
https://nslr.in/wp-content/uploads/2019/05/NSLR-Vol-13-Issue-1-No-6.pdf
https://blogs.loc.gov/copyright/2020/03/teaching-from-a-distance-and-copyright-
considerations
https://spicyip.com/2020/04/coveducation-and-copyright.html
https://www.mondaq.com/india/copyright/955608/virtual-teaching-and-copyright-how-
fair-is-fair-use
http://infojustice.org/archives/42200
https://shodhganga.inflibnet.ac.in/bitstream/10603/188175/13/13_chapter%206.pdf
https://blog.ipleaders.in/copyrighted-materials/
http://nopr.niscair.res.in/bitstream/123456789/43407/1/JIPR%2022%285%29%20266-
269.pdf
https://spicyip.com/2019/09/band-baaja-baaraat-copyright.html

All these are last accessed on(23/08/2020)