Rethinking Intellectual Property Rights

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 Intellectual Property?
INTELLECTUAL PROPERTY (IP or IPR)

INDUSTRIAL PROPERTY COPYRIGHTS

TRADEMARKS OR AUTHORS RIGHTS
PATENTS
INDUSTRIAL DESIGNS
GEOGRAPHIC INDICATIONS

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 COPYRIGHT
A SOCIAL PERSPECTIVE

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 WHAT IS COPYRIGHT?
– Right to reproduce

– Right to publish

– Right to perform or communicate to public

– Right to make film or sound recording

– Right to make translation or adaptation

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 WHAT IS PROTECTED

Following WORKS are protected under Copyright

– Artistic

– Literary

– Musical

– Cinematographic films (e.g. video films)

– Sound Recording (e.g. audio tapes and compact discs)

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 Infringement of copyright

Primary infrigement Secondary Infringement

Restricted activity Substantial copy

Causal connection

Facilitate infringement Dealing infringement

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 Limits of permitted use
 Provision relating to permitted use of copyrighted work has been
laid down under section 52 of the copyright Act,1957 in the form of fair
dealing. In America it is known as “Fair use". It is an exception to
infringement of Copyright. The object of fair dealing is to enable the
reproduction of the work to retain public purposes for encouragement of
private study and research and promotion of education. It provides
defenses in an action for infringement of copyright.
 Fair dealing is an important concept in Indian copyright law.
However, despite its importance in the copyright regime and the
importance of the copyright regime to advancement of technology. the
concept remains relatively unexplored in India. It is integral part of
copyright law. Fair dealing doctrine is ‘a key part of the social bargain at
the heart of copyright law, in which as a society we concede certain
limited individual property rights to ensure the benefits of creativity to a
living culture…..’.Its object is to balance between authors right and
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public interest.
 Fair Dealing in Other Countries
 United Kingdom
 Australia
 Canada
 New Zealand
 Singapore

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 International treaties/convention on permitted use
 Berne Convention:-Three step test was devised for limitation and
exception for reproduction.
-It should be granted in certain special cases
-It should not conflict with the normal exploitation of
the work
-It should not unreasonably prejudice the legitimate
interest of the author

 TRIPS Agreement:-Three step test extended to all exclusive

rights conferred by copyright.

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 WIPO Copyright Treaty,1996
 use for the sole purpose for teaching and
research
 quotation for criticism or review
 use for reporting current events
 use for judicial procedure……….
 use for visually and hearing impaired people…

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 Basic principles of fair dealing
 The purpose and character of the secondary use.

 Nature of copyright work.

 Amount and substantiality.

 Effects on the market.

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 Fair dealing u/s.52 of Copyright Act
 Private use, including
research
 Criticism or review of that
work or …..
 Reporting current events
in a newspaper,……
 For judicial proceeding
 For legislature work
 For certified copy made
under any law
 For reading in public
 Use for education course
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 Amateur club and society
 For current topic in
periodical
 For use of libraries
 Reproduction of
unpublished work
 For official
gazette,judgement of courts
 Adaptation
 Making sound recording in
certain cases
 Performance of a work in
official ceremony
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 Other significant FAIR USE exception not
provided under the Act
 For cinematograph film and sound recording
-No provision for research, teaching and private study
-No provision for reproduction in the course of a judicial
proceeding
-“version recording” or “sound alike recording”

 No provision for archival use of literary, dramatic and musical work

by a librarian or archivist

 No provision for using of literary, dramatic, musical, artistic work

for charitable purpose

 The Act overlooks the needs of the visually challenged section of

society

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 Cases on permitted use
 Hubbard v. Vosper (1972)2 QB 84(CA)
 Wiley Eastern ltd and Ors v. IIM
(1995)PTC375
 Gramophone co. of India ltd. V. Super
cassette industries ltd.(1995)PTR64
 Eastern Book Company v. Navin J
Desai(2001)PTC57(Del)
 ESPN Stars Sports v. Global Broadcast News
ltd and Ors.2008(36)PTC(Del)

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 Amendments proposed in 2010 relating to
permitted use
 The making of three dimensional objects from two
dimensional artistic works such as a technical
drawing
 Provision relating to storing of any work in any
electronic medium……
 Provision relating to reproduction of cinematograph
film and sound recording in respect of judicial
proceeding, legislature…..
 Provision for disabled person of society
 other significant provision for the interest of public
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 Unfairness in the fair use exception
 There has not been any challenge to the Act before any judicial
authority in India till date relating to the adequacy of the fair use
provisions in view of the public interest in accessing the protected
works. Most of the decided cases relating to fair use in India have
raised the issue whether a particular use of a work amounts to fair
use under the Act.

 The object of this section is to protect the public interest in

accessing the information contained in these works can not be
achieved if fair use provision are not adequate while the proposed
amendments in 2010 attempt to restore the current imbalance that
exist in the Act.

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 Copyright - Digital Medium
 Every accessible or published material on the
Internet is a 'copyrightable" work.
 Protection is provided to all written text materials
graphic images, music and videos
 Graphic User Interface of a website also enjoys
Copyright protection
 Insertion of sec.65A and 65B proposed by
Copyright (Amendment)Bill,2010 will defeat the
concept of fair dealing

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Digital rights management and Copyright

 It is part of WIPO Copyright treaty

 It protects copyright on internet like film, music,
computer games, E-books…..
 It is against the public interest
 It is against the concept of “fair dealing”
 By Copyright (Amendment) Bill, 2010 it is going to
be introduced under copyright Act, 1957

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 Suggestion on fair dealing for protecting
public interest
 It must be dynamic in nature
 DRM should not be incorporated in our Act
 There is need to evolve our own jurisprudence
according to need of our society
 We need another R.G.Anand judgment
 Judiciary must be given chance to interpret sec.
52 for balancing authors interest and public
interest
 It must not be read as merely defenses of an
action for infringement of copyright rather it should
be read in respect of public interest
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 Conclusion
 In conclusion it can be said that fair dealing doctrine is the heart of copyright law. Its
object is to balance public interest in respect of copyrighted work and legislature is trying to
balance between public interest and individual interest by amending section 52 time to time.

 Lastly I would like to conclude by saying that, It is opportune for India to consider
emulating the international copyright practice to accommodate certain widely recognized
exception to enrich our copyright jurisprudence and keep it abreast with international practice

Thanks! Always honour the IP……………

Thanks ! Always honour the IP…

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