One of the mostly unexplored yet integral parts of Copyright Law is permitted use of Copyrighted material. This is an exception through which the Copyright Laws provides a balance between authors’ right and the public interest for the purpose of encouragement of private study and research and promotion of education. Limited portions of a work including quotes is permissible to use without the authority of its owner. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances.
The legal framework of copyright does not absolutely prohibit the use of a copyrighted work, but, in fact, allows a person to use a copyrighted work under certain exceptions. One such exception is “Fair Dealing” under Indian and British law, and “Fair Use” under the US law. These terms are undefined under both US and Indian copyright law but has its spirit captured in legislation with judicially derived factors rendering certain acts not amounting to infringement.
The earliest discussion of fair dealing can be traced to Gyles v.Wilcox, a decision from the Court of Chancery in England in which Lord Chancellor Hardwicke introduced the notion of “fair abridgment.” In the US, Justice Joseph Story laid the foundation for the notion of fair use and abridgment in Folsom v. Marsh with a four-factor test. Today, it stands as the basis for the fair use doctrine now codified under US law. However, until the enactment of the Copyright Statute, 17 USC § 107, in 1976 fair use in US law was only a common law doctrine. One of the earliest Indian cases to discuss unfair use within the domain of copyright was Macmillan and Company v. K. and J. Cooper, which was decided based on the India’s earlier Copyright Act of 1914.[1]
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 under section 52 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.
The publication of a compilation of addresses or speeches delivered in public is not a fair dealing of such work within the meaning of this clause. Thus, Indian law allows fair dealing as a defense for specific acts that would not be deemed as infringement for the four specified categories of copyrighted works (viz. literary, dramatic, musical and artistic works).
US law, in contrast to Indian law, does not specify acts which would be considered fair use; rather it gives a four factor test that must be considered to assess whether an action of exploitation by the person falls within the ambit of fair use.
Following are the factors determining whether the use made is a fair use-
(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 inrelation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for orvalue of the copyrighted work.
As the US statute provides a “test” for assessing whether a particular use lies in the ambit of fair use it gives judges more freedom to assess “fair use” and possibly extend these factors to ever new areas of technology and copyright content. On the other hand, the Indian boundaries defined for “fair dealing” appear to be more societal and friendly to the common man. This being said, however, it appears that the US test may tend to ignore the commercial implications that fair dealing might have upon such use of a work.
[1]Sandeep Kanak Rathod, Comparing US and Indian Copyright Law, JURIST – Dateline, May 28, 2012, http://jurist.org/dateline/2012/05/sandeep-kanak-rathod-copyright.php.