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Fair dealing laws vis--vis India

The laws relating to fair dealing have been incorporated in Section


52 of The Copyrights Act, 1957. As the Indian Copyright Act does
not defines the term "fair dealing.

"It is impossible to define what is "fair dealing". It must be a


question of degree. You must first consider the number and extent
of the quotations and extracts.... then you must consider the use
made of them....Next, you must consider the proportions...other
considerations may come into mind also. But, after all is said and
done, it is a matter of impression."
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.
Fair use is an exception to the rights of the author which allows

limited use of copyrighted material without the author's

permission
(INDIA TV) INDEPENDENT NEWS SERVICES Pvt. Ltd vs YASHRAJ
FILMS PRIVATE LIMITED & SUPER CASSETTES LTD
where one of the various grounds of dispute was that the
defendants "India TV" broadcasted a TV show wherein a
documentary is shown on the life of singers and they perform their
own songs. While the singer sings, clips of scenes from the movies
are shown in the background. The plaintiffs claimed that such acts
of the defendants amounted to infringement of their copyright.
However, the defendants claimed that such use of the plaintiff's
copyrighted material constituted fair dealing within the meanings of
section 52 of The Copyrights Act.
The Delhi High Court in its judgment restrained the defendants from
distributing, broadcasting or otherwise publishing or in any other way
exploiting any cinematograph film, sound recordings or part thereof that is
owned by the plaintiff.
counsel for defendant stating that "the singer who has recorded a song which
has gone on to become a hit has a sense of ownership over such a song, and
that it would be very unreasonable-to the point of being unfair and cruel to the
said singer, to say that he/she cannot sing the said song in a TV or other
interactive program in front of an audience, only because the copyright in the
underlying literary and musical works resides in some other person(s)" also
withholds a valid point. But since such use does not come within the
exhaustive list provided under section 52 of the act, they were deprived of any
remedy in the fair dealing laws.
Fair use exceptions for libraries under Indian copyright law

Indian copyright law provides exceptions to libraries for use of copyrighted works
under the statutory fair dealing provisions of the copyright Act (section 52) as well
as under the judicially created fair use exception. Broadly the law permits use of
copyrighted works by libraries for the following purposes:
Research and education;
Instructions, teaching and training;
Private study;
Enabling access to the disabled;
Activities of education institution;
Review and criticism;
Searching and data mining;
Storage and preservation; and
Access to knowledge.
S.No. ACTION PERMISSIBILITY

1. Photocopying copyrighted books or


materials
(For research, education and/or
private study)

a) Parts of books Permitted

b) Photographing parts of books Permitted

c) Entire books Not Permitted

d) Articles Permitted

e) Charging for photocopying Permitted


S.No. ACTION PERMISSIBILITY

2.
Reproducing copyrighted works/materials

a) Digital copy for storage Permitted


b) Digital copy for searching Permitted
c) Printing digital copies created under (a) and (b) Not Permitted
d) Books not in circulation in India Permitted
e) Printing parts of digital books for course Permitted
pack/course works/ research
f) Printing entire digital books Not Permitted
g) Unpublished Works for private study Permitted
or research
S.No. ACTION PERMISSIBILITY

3. Issuance and/or distribution of


Copyrighted books/ materials

a) To professors, students or
Permitted
members
b) To third parties for private use or
Permitted
research
c) Inter library loan Permitted
d) Access to E-books on library Permitted
platform
S.No. ACTION PERMISSIBILITY

4. Conversion of copyrighted books/ materials


into accessible format for the disabled
a) Creating e-books, audio books, braille Permitted
books etc from the books available in the
library
b) Making copies of materials mentioned
Permitted
in (a)
c) Issuance/ distribution of copies to Permitted
disabled persons
d) Charging for materials mentioned in (a) Permitted
S.No. ACTION PERMISSIBILITY

5. Performance of copyrighted materials


a) Performance in events before
students, staff and parents Permitted

b) Charging for events Not Permitted


S.No. ACTION PERMISSIBILITY

6. Translation of copyrighted works/


materials

a) For purposes of fair use/ dealing Permitted


b) Course packs Permitted
S.No. ACTION PERMISSIBILITY

8. Making and distributing Course Packs


a) Master reference copy Permitted
b) Copies of course pack Permitted
c) Selling course pack Permitted
d) Outsourcing copying/sale of course packs Permitted
e) Combination of copyrighted and public Permitted
domain works Permitted
The statutory framework for fair dealing in India follows the common law and, as
noted earlier, does not define fair dealing per se. The legal provision for fair
dealing provides that:
The following acts shall not constitute an infringement of copyright, namely:
(a) a fair dealing with a literary, dramatic, musical or artistic work for the purposes
of
(i) research or private study;
(ii) criticism or review, whether of that work or of any other work;
(b) a fair dealing with a literary, dramatic, musical or artistic work for the purpose
of reporting current events
(i) in a newspaper, magazine or similar periodical or
(ii) by broadcast or in a cinematograph film or by means of photographs.
(C) The reproduction of any 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

d) The reproduction, for the purpose of research or private study or


with a view to publication, of an unpublished literary, dramatic or
musical work kept in a library, museum or other institution to which the
public has access