“No man was ever great by imitation” – Samuel Johnson

INTRODUCTION

The intellectual property rights are basically those rights that give you monopoly rights, though there are certain limitations to the same. Therefore, it is ensured that while granting these monopolistic rights, the building blocks that promote creativity such as ideas, facts, and abstract knowledge are not restricted. The same has been achieved by the intellectual property law by making sure that certain minimum standards are fulfilled before any intellectual property right is granted to the applicant. For instance, in patent law, there has to be an invention which is non-obvious and has industrial application. Similarly, while granting copyright to any literary, musical, artistic, and dramatic work, it should be ensured that the same is original.

The grant of copyright is necessary to ensure that the effort of the person is protected and to encourage creative expression. Originality is a precondition to the grant of copyright. Thus, in order to be able to receive copyright protection, the work submitted by the applicant has to be ‘original’ and the same should not have been copied from somewhere else. Thus, the sine qua non of granting copyright is originality.

The infringement of an intellectual property right takes place when a person makes unauthorized use of the owner’s work. In the case of copyright, infringement occurs when a person uses the work of the copyright owner without his/her permission. However, there is an exception to this in the form of the fair use doctrine that allows a person to use the work of the copyright owner in a limited manner without the permission of the author. The doctrine of fair use is a well-established principle that puts a limitation on the rights of the copyright owner and is used to limit the monopolistic rights of the owner. This concept emerged as an equitable doctrine and hence, can be used as a defence.  The user in this situation agrees that the work of the copyright owner has been used by him/her without permission, but the same is justified by the user under the fair use doctrine.

FAIR USE UNDER INDIAN COPYRIGHT LAW

The Berne Convention for the Protection of Literary and Artistic Works, 1886 (“Berne Convention”) and the TRIPS Agreement provide for the inclusion of the fair use concept in the national legislations. The Berne Convention provides a three-step test and states that the legislation of countries must provide for the reproduction of work (a) in certain special cases; (b) the reproduction should not exploit the original work, and (c) it should not cause prejudice to the interests of the author.[1] The three-step test provided in the Berne Convention has also been used in the subsequent conventions on intellectual property protection.

In the light of the Berne Convention and other international instruments, the Copyright Act, 1957 (“Act”) under Section 52 lists down the exceptions that would not be considered as an infringement of copyright.[2] This section provides that the following acts shall not constitute an infringement of copyright:

The Act nowhere defines the term “fair dealing” and most of the time the courts refer to the landmark judgment of Hubbard v. Vosper wherein it was observed that “fair dealing” is a question of degree. It further said that first one must look at the number of quotes, then the use of these quotes need to be considered, then the proportion and there may be other considerations too. However, in the end, one needs to look at the impression.[3]

It can be seen that the fair use doctrine does not allow a person to as it is copy the work of the copyright owner. It merely states that a part of the work, such as quotes and expressions, could be used by a person in a manner to ensure that it does not look like that the idea of the copyright owner has been completely snatched away. In order to fall within the ambit of fair dealing, there should not be any intention to compete with the copyright owner and the motive should not be improper in dealing with the work of the copyright owner.[4] Moreover, it is always the original work that gets recognition and no one can ever become great merely by imitation.

It is to be noted that there is a minor difference between the concept of “fair use” provided in the US law and the concept of “fair dealing” as has been provided in the laws of the UK, India, and Canada. The fair use concept is a much broader terminology and a case is decided based on certain ingredients being fulfilled. On the other hand fair dealing is a much-restricted concept in the sense that the use of the work should fall within the list enumerated in the copyright law. Thus, it can be seen that the fair dealing concept is restricted in nature and might not be able to encompass the recent changes and dynamics of digital technology.

ROLE OF INDIAN JUDICIARY

The courts have, in various cases, stated that it is not possible to lay down the principles of fair dealing in black and white terms, as what may be fair in one case may be unfair in the other case.[5] In the case of SK Dutt v. Law Book Co. and Ors.[6] it was observed that in order for an infringement to exist, a substantial portion of the copyright owner’s work should have been copied. The more the work is copied, the lesser the fair dealing can be implied. In the case of RG Anand v. Delux Film and Ors.[7], it was held that defence of fair dealing would not be applicable in case there is a copy of an idea. Thus, for the concept of fair dealing to be applicable, there has to be substantial use of the copyright owner’s work, however, there should be limited use of the work for it to be considered as fair.

The purpose of reproduction has to fall within the list provided under Section 52 of the Act, that broadly being private use including research, criticism, and review. The Court in the case of Academy of General Education, Manipal and Anr. v. B. Manini Mallya[8] observed that there can be fair dealing of a literary or dramatic work for the purposes mentioned in Section 52, there cannot be any copyright infringement. Moreover, it stated that if the performance is done before a non-paying audience which is an amateur club or society then the same will also not be considered as copyright infringement.

The likelihood of competition is another factor that is considered by the courts while considering the fair dealing doctrine. In one of the cases, it was held that if the work of the copyright owner is being used to convey the same information then the same would be unfair.[9]

Thus, it can be seen that though the Act does not define the term “fair dealing” or lay down any criteria, there are several cases that lay down the criteria which can be used to determine a ‘fair dealing case’.

CONCLUSION

The Courts have time and again laid down principles to decide a case involving the fair dealing doctrine, however, it has not yet got the opportunity to address whether the provision governing the same is adequate or not. It can be noted that the fair dealing concept in India is more restrictive than the concept of fair use as has been provided in the laws of the US.

Fair use and copyright are the two sides of the same coin and they need to co-exist. There is a need to explore other areas too looking at the technological developments. The recent issue that has crept up is regarding memes that are used on various social media platforms. The question that arises is that do they infringe the copyright or do they fall within the ambit of fair dealing doctrine? There are four major factors that are considered while establishing a fair use, they are (a) substantial use, (b) nature of the copyrighted work, (c) purpose and character of the use, and (d) likelihood of competition in the market.[10] Thus, while dealing with the abovementioned questions the court can decide the matter by applying these four factors. However, there are still a lot of factors that need to be explored as the same will vary on a case to case basis.

Thus, there is a need to make the approach towards fair dealing a little relaxed, so that the monopolistic rights granted through copyright protection does not limit the rights of others.