FAIR USE OF LITERARY WORK

U/S 52 OF

THE COPYRIGHT ACT, 1957

(Project towards partial fulfillment of the assessment in the subject of General Principles of Intellectual Property Rights Law)

Submitted By:
Vikram Singh Rajpurohit (707) U.G.-VIth Semester B.B.A., L.L.B (Hons.)

Submitted To:
Mrs. Abhilasha Kumbaht Faculty of Law, National Law University

National Law University, Jodhpur Summer Session (January - May 2011)

TABLE OF CONTENTS
S.N 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. Acknowledgement What is a Copyright Difference from Trademarks & Patents. Who can Copyright Duration of a Copyright Works covered under the Copyright Act Things that cannot be Copyrighted Infringement of Copyright Conventions that protect Indian work in Foreign Countries Copyright & Fair Use Doctrine of Fair Use Copyright Act, 1957 & Doctrine of Fair Dealing Doctrine of Fair Use: Global View Berne Convention and TRIPS Agreement Contractual Restrictions on Fair Use Conclusion Bibliography Chapter Pg 3 4 4 5 5 5 6 6 6 7 8 9 11 13 14 21 23

ACKNOWLEDGEMENT
This project could never have been possible without co-operation from all sides. Contributions of various people have resulted in this effort.

Firstly, I would like to thank God for the knowledge he has bestowed upon me.

Secondly, I take this opportunity to express my gratitude to the Faculty of Law of NLU, specially our subject teacher Mrs. Abhilasha Kumbhat. She has constantly helped and guided me in the compilation of this project.

Thirdly, I would also like to thank the entire library staff for providing me with the various sources of information that I utilized during the course of my project ,thereby, helping me to complete this endeavor of mine successfully.

What is a Copyright.
A copyright is an exclusive right given to the author of an original work for a specified number of years. There are three classes of work for which a copyright can be applied original literary, dramatic, musical, and artistic works, including software programs; cinematograph films; and sound recordings. The owner of the copyright has the exclusive right to, or to authorize others to, reproduce the work, issue copies of the work to the public, perform the work in public, communicate the work to the public, make cinematographic film or sound recording in respect of the work, make translations of the work, and make adaptations of the work. According to Rodney D Ryder of Preconcept, Copyright is the only right that accrues upon creation, that is, for example, if you write a story or create a computer software, you are entitled to protection from the minute you create the work. A copyright is valid not only for the particular country that you are in, but all over the world, due to the Berne Convention, an international agreement governing copyright that requires its member countries (members of the Berne Union) to recognize the copyright granted by other signatory countries in the same way it recognizes its own.

Difference from Trademarks & Patents.

There are three types of protection available for intellectual property copyright, patent, and trademark. While patents protect inventions and improvements to existing inventions and trademarks protect brand names and designs, a copyright protection is for literary, artistic, and musical work.

Who can Copyright

Copyright is granted to the author of an original work in the classes mentioned earlier. An author would be, In the case of a literary or dramatic work, it is the person who creates the work; in the case of a musical work, it is the composer; in the case of a cinematographic film and sound recording, it is the producer; in the case of a photograph, it is the photographer; and in the case of computer-generated work, the person who causes the work to be created is the author.

Duration of a Copyright.
A copyright on literary, dramatic, musical, or artistic work is valid for the lifetime of the author plus 60 years after his or her death. For all other types of work, including anonymous work, the copyright is valid for 60 years from the year it was published or produced. After the copyright expires, the material enters the public domain and can be used freely by anyone.

Works covered under the Copyright Act

a) Original, literary, dramatic, musical, and artistic works:

Literary: Any form of written work, tables, compilations, computer programs, etc Dramatic: Work that can be enacted Musical: Combination of melody and harmony Artistic work: Visual art (painting, sculpture, drawing, etc.)

b) Cinematograph films: A visual recording, which is a combination of various arts and music (for example, soundtrack, acting, dancing, etc.) c) Sound recording: Recording of sound regardless of the medium or method in which such recording is made

Things that cannot be Copyrighted.

The term original has a narrower meaning when it comes to the copyright law. It is important to note that the copyright law does not seek to protect ideas, but only unique expressions. For example, if you are creating an action adventure gaming software, you cannot copyright the idea of action adventure gaming software, but your versions of it, for example, The Legend of Zelda Series or Tomb Raider Series. The reason behind this is, if ideas are protected, it would lead to blocking them from further development. There can be no copyright in subject matter, themes, plots, historical or legendary facts, titles by themselves, or names, short word combinations, slogans, short phrases, etc.

Infringement of Copyright....
A copyright is said to be infringed under two conditions. One, when a person who does not have a copyright license does something that only the owner of the copyright has the exclusive right to, such as making copies, selling, etc. Two, when a person permits the use of a place for the communication of a copyrighted work to the public without permission and for profit.

Conventions that protect Indian work in Foreign Countries...

Berne Convention for the Protection of Literary and Artistic Works Universal Copyright Convention Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonograms Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement
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Copyright & Fair Use

It is impossible to define what is fair dealing. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. Other considerations may come to mind also. (A)fter all is said and done, it must be a matter of impression..1

Statutory Defenses for the copyright infringements are known as fair use provisions. These fair use provisions provide some limited exceptions to the rights of the authors. Reproduction of the current economic, political, religious and social issues in a newspaper, magazine, etc is one of the exceptions given under the Section 522 of the Indian Copyright Act. The relationship of copyright and fair dealing can have diverse interpretations of users' rights. These users may be teachers, researchers, reviewers, critics, journalists or correspondents, academicians or any other information agents and information service providers (not necessarily individuals). The interpretation, even if it is legitimate, may affect the so-called users' objective. Differences of interpretation result from diverging perspectives on copyright's role to a work. Legal liability of this interpretation is always weighted against the potential benefits on the part of the society. Fair use right for education and research has taken the shape of a movement. There are issues related to open source software to promote fair use, or issues that emphasize fair use only. This does not necessarily mean that owners' right should be renounced in its totality.
1 2

Hubbard v. Vosper (1971) 1 All E.R. 1023 Narayanan P, Copyright and Industrial Designs, 3rd edn (Eastern Law House, Kolkata), 2002, p. 8. The three amendments brought to Section 52 have been via Copyright (Amendment) Act, 1983 (Act 23 of 1983), entered into force 9 August 1984, Copyright (Amendment) Act, 1994 (Act 38 of 1994), entered into force 10 May 1995 and 1999 (Act 49 of 1999), entered into force 15 January 2000. The explanation clarifies that 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.

Doctrine of Fair Use

Generally, copyright owners have the legal right to prevent the reproduction of a copyrighted work, and to demand royalty (payment) when copyrighted work is reproduced. A strict enforcement of these rights may hinder the dissemination of knowledge and education. Hence, the doctrine of fair use permits researchers, educators, scholars, etc. to use copyrighted works without seeking permission or paying royalties. To put it in another way, a copyrighted work may be used fairly for certain legally permitted purposes without infringing the rights of copyright owners. This exemption can be used only for research, education, criticism, bonafide private use etc. This is not a right to use somebody elses work in anyway, but this doctrine can be taken as a defense against accusations of infringement, if the use of a copyrighted work was a reasonable fair use. If a use is challenged by the owner as infringement, then it will be the users burden to prove that his/her use was a fair use. 3 If the violation is for fair purposes and non-commercial, non-exploitative purposes, it cannot be penalized. The author can copyright the work only when it is original. To prove or establish originality is the pre-requisite for the action for violation and secondly the defence available to the defendant is 'fair dealing'.

In India, fair use of literary copyrighted work is permitted by virtue of section 52(1) of the Copyright Act which provides that fair dealing can be done for private study, review, criticism, research etc. No consent of the owner is required for any sort of fair dealing. If a person can bring the action in the ambit of section 52(1), then it will not constitute infringement.4

Nimmer David, Fairest of them all and other fairy tales of fair use, Law & Contemporary Problems, 66 (2003) 263-287. 4 Burrell Robert, Reining in copyright law: Is fair use the answer? Intellectual Property Quarterly, 4 (2001) 361388.

Copyright Act, 1957 & Doctrine of Fair Dealing5

Copyright encourages creativity, publication and dissemination of intellectual works, but at the same time it restricts their use and availability. Copyright allows the ability of some intellectuals to receive monetary benefits for their efforts. At the same time it requires educators to pay a fee for the works of the other authors for the part of their effort. The Copyright Act of 1957 was based on the Copyright Act of 1911, framed by the British before independence. It is also equally influenced by the Copyright Act of 1956 of the United Kingdom. The important amendments were made in 1983, 1984, 1992, 1994 and 1999, which makes the Act fully compliant with the treaties of the Berne Convention, the Rome Convention and the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS) agreement. The amendment of 1999 extends the provision of Copyright Act to nationals of all member countries of the World Trade Organization (WTO). The Doctrine of Fair Use6 expresses ideas related to the limitations and exceptions to copyright of the owners. The Doctrine refers to various situations when exclusive rights granted to authors and owners or other legal assignees under Indian Copyright Act of 1957 do not hold good. These exceptions are also the subject of significant regulation by international treaties. Section 52(1) of Copyright Act, 1957 specifies certain legitimate uses of copyrighted works without being charged for infringement. It requires that the works used should be identified with the author of the works. Various other fair dealing uses are noted in the Section on Assignment and licensing which do not cause liability if conforming to conditions set by Copyright Board.

Pan Mohammad Faiz, "Legal Doctrine of 'Fair Dealing' in Various Countries", 05-10-2006 at http://faizlawjournal.blogspot.com/2006/10/fair-dealing.html 6 Kenneth D. Crews, Copyright, Fair Use and the Challenge for Universities - Promoting the Progress of Higher Education (Chicago and London, The University of Chicago Press, 1993), 2, 21 - 25

Section 52(1) gives a detailed explanation as to what is not an infringement under literary work, and explains the doctrine of fair dealing or fair use. These provisions balance the interests of community with those of individual authors, and permits spread and dissemination of knowledge:

Any kind of private use of literary work - research is considered in the same category as personal and private use if not exploited commercially. Noted purpose of criticism or review of the literary works. Reporting current events in newspapers, magazine, periodical. Making the copies in adaptation of a computer program by the lawful possessor of a copy of such computer program. The reproduction of work for the purpose of judicial proceeding or for purpose of a report of a judicial proceeding.

The reproduction of work in any work prepared by the Secretariat of a Legislature, exclusively for the use of the members of the Legislature. The reproduction of the work in the certified copy to be used as per requirement of Law or Rule of the country. The reading or recitation in public for non-commercial use. The publication in a collection, where the collection is intended for use of educational institutions.

The reproduction of a work by a teacher or a pupil in the course of instruction, or as part of questions or answers in an examination or in the course of activities of an educational institution or published to a non-paying audience or for the benefit of a religious institution. The reproduction of a work for use in public library (not more than 3 copies) if not available for sale in India.

The Karnataka High Court justified the provisions of balance between the rights of authors and interests of society7. The provisions under Section 52(1) are intended to ensure that the monopoly rights should not be detrimental to the larger interests of general public. It is a perfect balance of the statute till the technological advances broke down this balance.

Gramaphone Co. of India v. Mars Recording Pvt Ltd 2000 PTC 117 (Kar)

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Doctrine of Fair Use: Global View 8

Limitations and exceptions to the exclusive rights granted to authors or owners are regulated by a number of international treaties. These international treaties are the harbingers of harmony in the global view of copyright world. Art 9(2) of the Berne Convention authorizes the national legislation to allow the reproduction of protected work 'in certain special cases' under the following two conditions:

Reproduction does not conflict with normal exploitation of the work; and Reproduction does not unreasonably curb the legitimate interest of the author (Berne Convention, 1983).

Art IV, Paragraph 2 of the UCC9 allows the Member States for exceptions to the rights of a work under the conditions:

They do not conflict with the spirit and provisions of the Convention; They accord a reasonable degree of effective protection to each of the rights - namely reproduction right, the public performance right and the broadcasting right.

Both views support each other. Limitations and exceptions to copyright are named "Fair Dealing" doctrine in many countries including India, and "Fair Use" doctrine in United States. American concept of "fair use" is a bit more flexible compared to its sister "fair dealing" doctrine. The copyright as a legal concept was introduced in the United Kingdom's Statute of Anne in 1709. During the course of time, the Court created a doctrine of "fair abridgement" for authorized reproduction, which later became known as "fair dealing". This law cannot be applied to any act which does not fall within one of the permitted use categories. Doctrine of Fair Use tries to achieve a socially optimal level of protection to provide the rightful owner his due while leaving the public with sufficient information vital for the progress of the

8 9

Shefalika Ghosh Samaddar, Fair Dealing in Copyright: The Matsya Purana Version www.unesco.org/culture/laws/copyright/html_eng/page1.shtml

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society. Thus the right of the owner can be violated to facilitate education, research and dissemination of knowledge for social, economic and cultural progress. Under the United Kingdom's Copyright, Designs and Patents Act, 1988 (CDPA), "fair dealing in literary work" is defined as "private study and criticism and review and news reporting".10 In case of review and criticism, one precondition of fairness being that the source should be sufficiently acknowledged. Again the 2003 amendment reduced the research fair dealing exception to non-commercial research only. Under Crown - The Australian Copyright Act, 1968, the grounds of fair dealing are as follows:

Research and study- Section 40 provides the protection under fair dealing for use of literary work for Research and study. Review and criticism- Section 41 of The Australian Copyright Act, 1968. Reporting the news- Section 42 of The Australian Copyright Act, 1968 Legal advice.- Section 43 deals with use of copyright material in Judicial proceeding.

Under the provisions of fair dealing in the Copyright Act, Chapter 63 of Singapore Statutes, a certain amount of copying for the purpose of research or education is permissible as long as it is a "fair dealing". Again, a fair dealing for the purpose of criticism or review, reporting of news, judicial proceedings or professional advice would not constitute an infringement. In the United States11, the fair use doctrine is codified in Copyright Act, 1976 under Section 10712. The Act also considers the factors to be considered in determining whether the use made of a work in any particular case is a fair use or not.13. Section 1109(2) of Copyright Act 1976 says that performance of non dramatic literary work shall not infringe the special right of author if- (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and (B) the performance or display is directly related and of material assistance to the teaching content of the transmission. Article 14 of Indonesian Copyright Act keeps special provision of using or copying an official symbol of state and national anthem with the original character.
10 11

S 29.30 Giuseppina D'Agostino, Healing fair dealing? A comparative copyright analysis of Canada's fair dealing to UK fair dealing and US fair use, McGill Law Journal, 53 (2008) 309-363. 12 The US Copyright Code, 17 USC 107 (2000) provides that the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research does not infringe copyright. 13 Section 107 of the US Copyright Statute lists four factors courts must consider in determining whether a particular use of a work is a fair use: (i) Purpose and character of the use, (ii) Nature of the copyrighted work, (iii) Amount and substantiality of the portion of the work used, and (iv) Effect on the use of the new work on the potential market for the copyrighted work.

12

Article 15(a) of Indonesian Copyright Act provided that the use of a work of another party for the purpose of education, research, scientific thesis, report writing, criticising or reviewing an issue, provided that it does not prejudice the normal interest of the Author. And Article 15(d) of the same Act provided that reproduction of literary work in Braille for the purposes of the blind shall not infringe the copyright of author unless such reproduction is of a commercial purpose. The global view of fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Though United States and India have a bit different concept of fair dealing, but most of the countries around the globe are in unison as far as factors related to teaching and education is concerned.

Berne Convention and TRIPS Agreement

The Berne Convention and TRIPS Agreement permit exceptions for fair use of copyrighted works. The availability and scope of the exceptions remain, for the most part, subject to national law. The Berne Convention, being the first international convention on the protection of literary and artistic works, provides that any type of use, but for the purposes of private use, educational and scientific research, etc. shall be subject to authorization and payment. Exceptions for fair use have been mentioned in various specific conditions, namely Art. 2bis (2) regarding press reporting of publicly given addresses; Art. 10 regarding quotation and use of work for teaching; Art. 10bis regarding reproduction of current affair articles and use of work in reporting current events; Art. 11bis (3) regarding ephemeral recording by broadcasters.

However, the three-step-test set out in Art. 9 (2) of the Convention14 is the general guidance for member states to codify the fair use doctrine. Member States of the Convention can provide exceptions in certain cases; which do not conflict with a normal exploitation of the works; and do not unreasonably prejudice the legitimate interests of the author.

Although the TRIPS Agreement requires all the WTO members to comply with Art.1 to 21 of
14

Ficsor M, How much of what? Three-step test and its application in recent WTO dispute settlement cases, RIDA, 192 (2002) 111-251.

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the Berne Convention (which includes Art. 9 (2)), the Three-Step-Test has been reinforced in Art. 13 of this Agreement which does not confine exceptions only to the right of reproduction but to all internationally recognized exclusive rights. Under the WIPO Internet Copyright Treaty, the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention has been re-proclaimed.15 The Three-StepTest has been adopted again in Art. 10 of WCT.

15

The Preamble of the WIPO Copyright Treaty (1996).

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Contractual Restrictions on Fair Use

In 1996 the Seventh Circuit Court of Appeals in the US decided one of the most significant cases of copyright law. In this case, the court had to decide whether contractual restrictions that broaden the bundle of rights granted by copyright law placed by copyright owners on the use of their information are enforceable. The applicant sought to limit contractually the right of users to distribute information contained in a database.16 The ProCD case was significant because Information of all kinds (scientific data, educational texts, financial data, music, movies, or and even legal opinions), is increasingly being licensed to users online, The Internet reduces transaction costs, it conceivably allows vendors of

information to license every bit of information they control. In fact, licensing arrangements, supported by technological means of monitoring, may entirely replace the copyright regime with private regime based on contracts.17

The ProCD Case18

Matthew Zeidenberg purchased copies of ProCD's SelectPhone CD-ROM, which combined a database of telephone listings with a computer program for accessing the listings. Zeidenberg didn't not sign any contract, though the box containing ProCD's database did indicated on the outside that the CD-ROMs was subject to a licensing agreement enclosed. The terms of that license were given inside the box and also appeared on the user's screen every time the user ran the software. The license provided that users should not make the software and listings available to other users. Zeidenberg uploaded the telephone listings stored on the CD-ROM discs to his computer, combined it with his own original search engine, and made the listings available to

16 17

ProCD Inc. v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) Pamuela. Samuelson, Will the Copyright Office Be Obsolete in the Twenty-First Century? 13 CARDOZO ARTS & ENT. L.J. 55, 60-61 (1994), 60-61 18 Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of Contract

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Internet users. ProCD filed suit, seeking an injunction against continued violations of the licensing agreement. The license at stake was a "Shrink-wrap License.19 The rationale of this practice was that copyright law sufficiently protected the interests of the publishers in such transactions. As new distribution technologies arose, licenses became more prevalent in mass distribution markets. Uncertainty regarding computer program copyrightability, and the scope of such copyrights, led vendors to use shrink-wrap licenses with mass-market software.20 Book publishers have also begun to use licensing agreements. Licenses are now used not only by the software industry but also by books publishers. A purchaser of a book may expect to read it as many times as she wishes, to quote its text, or to use its excerpts. Some may also wish to reproduce a few pages from a book in a library for later reading or reference and so on. These types of uses reflect our expectations when we purchase a book, and they are all considered "fair use" under copyright law. Yet books in recent years include statements that re-define the terms under which they are being purchased. For example, a book may include the following terms on its cover: Except for the quotation of short passages for the purposes of criticism and review, no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of the publisher. Shrink-wrap licenses and book licenses are both contractual arrangements regarding the intellectual property aspects of goods. While the purchaser of a book or a CD-ROM may acquire ownership of the physical copy of the work she has purchased, she receives only limited use privileges in the copyrighted materials.

19

Shrinkwrap licenses would normally include provisions regarding proprietary rights, warranties, and limitations on users' rights. Shrink-wrap licenses are standard form contracts attached to mass-market software. The term "shrink-wrap" refers to the transparent plastic in which mass-market software is often sealed. Copies of mass-market copyrighted works were traditionally distributed without a license, simply carrying the familiar copyright notice. 20 Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239 (1995)

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Copyright law distinguishes between rights in a '"work of authorship,"', the intangible aspect of a work, and rights in its tangible manifestations in a tangible medium. A book purchaser becomes the owner of the book, but receives no copyright in it. The publisher remains the copyright owner, and copyright law prevents any unauthorized reproduction or public distribution of the work. The question is whether the bundle of rights retained by the copyright owner in intellectual property are determined by law or whether they may be redefined by the parties to a contract. The district court in the ProCDcase found no binding contract between the parties. The court determined that Zeidenberg did not accept the terms of the license. Furthermore, the district court decided the contract was unenforceable because it conflicted with copyright policy. Licenses that prohibit the distribution of public information, the court held, "step into territory already covered by copyright law." If such provisions were enforceable they "would alter the 'delicate balance' of copyright law" and "allow parties to avoid copyright law by contracting around it."21 The court of appeals disagreed. The appellate court found that the purchase of the software was subject to the license. The contract itself was formed when Zeidenberg accepted the terms of the license in the manner specified by ProCD-by using the software. In doing so, Zeidenberg was performing an act that ProCD (the offeror) proposed to treat as an act of acceptance. The court held that "terms and conditions offered by contract reflect private ordering, essential to the efficient functioning of markets." The court recognized that "some applications of the law of contract could interfere with the attainment of national objectives,", but concluded that the "general enforcement of shrink-wrap licenses of the kind before us does not create such interference." As a general matter, the court found any "simple two-party contract" (whether generous or restrictive in its terms) to be enforceable. The conflicting opinions of the two courts in the ProCD case demonstrate the potential conflict between copyright policy and freedom of contract. They reflect different approaches to the regulation of information. The approach taken by the district court perceives copyright law as a comprehensive, mandatory arrangement that restricts the freedom of the parties to contract
21

The legal doctrine under which the court held the license unenforceable was the preemption doctrine.

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around it. The opinion of the court of appeals, by contrast, reflects a perception of copyright law as a set of "default rules" that in most cases should allow the parties to replace the statutory scheme with a contractual arrangement of their choice. While the first approach is concerned with preserving the "social bargain" regarding the use of information as reflected by copyright law, the latter emphasizes "freedom of contract" as a means for reaching efficient functioning of the information market.

Indian Express Newspaper (Bombay) Pvt Ltd., Jagmohan22

A reporter of Indian Express, Mr. Ashwini Sarin investigated into the flesh trade in Madhya Pradesh. He then wrote series of articles exposing the prostitution trade and involvement of bigwigs from politics and police department on 27th, 29th, and 30th April 1981 and 2nd May 1981. Then Mr. Vijay Tendulkar scripted a play by name 'Kamla' totally based on the Indian Express exposure, and staged the play for 150 times in 32 cities and in seven languages. Jagmohan Mundhara, a film producer planned to produce a film on the same theme from the same writer Vijay Tendulkar.

Journalist Ashwini Sarin and the Indian Express newspaper complained that Jagmohan and Vijay infringed their copyright. The Indian Express contended that, when serious of sensational reports resulted from sweat of brow of the journalists, and forms an effective expression of what was happening around, why not it be protected. How that is others could make capital out of it leaving the original authors of the exposure without any protection to their writing.

The Bombay High Court held that there could not be any copyright in an event which actually taken place. The Court observed: "There is distinction between the materials upon which one claiming copyright has worked and the product of the application of his skill, judgment, labour and literary talent to these materials. The ideas, information, national phenomena and events on which an author expends his skill labour, capital, judgment and literary talent are common property and are not the subject of the copyright".
22

AIR 1985 Bom 229

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This judgment ignored the skill, capital, talent and labour invested by the journalist besides his skilful expression in the form of investigative story and simply termed the incident as national phenomena and finally refused the copyright to journalists. The Court should have recognized the way the national phenomena or tragic happening in society was creatively reported by the journalist alerting the authorities. The justice could be ordering Vijay Tendulkar and Jagmohan to acknowledge the efforts and risk of Journalist and secure his permission on reasonable payment of a share in their proceeds. If not it would amount to permitting a theatre and cinema person to commercially exploit an expression of idea which is not their own, which is against the spirit of copyright regulation.

Periyars Works Case

After the enactment of the Indian Copyright Act, 1957, in Periyar Self Respect Propaganda Institution v. Periyar Dravidar Kazhagam23, the judiciary has had few occasions to examine the scope of Section 52 (1) (m) which allows the reproduction of the current economic, political, religious and social issues in a newspaper magazine etc.

Facts of the Case Periyar is known as a well-known social revolutionist who started a journal named Kudi Arasu. He had written number of books also. Most of the works of Periyar had been sold at a low price and sometimes they were distributed at free of cost. His works including Kudiyarasu journals are available in nearly 31 places including National Archives, Delhi University Library, Connemara Library, Chennai, Thanjai Pagutharivu Kazhagam etc.

V. Anaimuthu, one of the trusted disciple of the Periyar and also one of the Respondents of this case collected Periyars Kudiyarasu and other magazines from 1925 to 1938 and initially released three volumes in the year 1974. In 2008, Respondents made advertisements for releasing rest of the Periyars work in 27 volumes and requested the public to register their names in order to get the copies.
23

MANU/TN/1723/2009

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After seeing that advertisement, the appellant filed the present case by alleging that the Respondents proposed reproduction of Periyars works would infringe its copyright (by way of ownership) over Periyars work. The Respondents claimed that they are free to reproduce Periyars work under Section 52 (1) (m) of the Act.

Decision of the Single Bench After hearing both side arguments, Court rejected to grant interim injunction against the Respondents. The Court accepted the Respondents arguments with respect to the assignment issue and held that the proposed re-production of Periyars work by the Respondents would fall within Section 52 (1) (m) of the Act.

As a result, the Plaintiff challenged the order passed by the single bench before the division bench.

Division Bench Judgment Division bench upheld the single bench judgment relating to Section 52 (1) (m)

Discussion/Interpretation It is very evident from the judgment that Section 52(1) (m) says that reproduction of an article which speaks about the current economic, current politics, current social issues or current religious topics is permitted to be reproduced.

Then, the question is that whether the reproduction is allowed in all mediums? The provision answers that the reproduction of an article is allowed only in a newspaper, magazine or other periodicals. Therefore, it is clear that a single article can only be re-produced and the same should also be only in a newspaper, magazine or other periodicals and not in other forms. It means that other forms of reproduction such as re-production in a book and etc. are not allowed.

Further, the provision says that if a person has expressly reserved his rights for the above said reproductions, then no one shall be allowed to reproduce it. So if a person has not reserved his rights for such reproduction, then others are free to reproduce it in such modes as provided by the
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section, not beyond that. In such cases, the author cannot enforce his rights against such reproductions. However, the provision does not prevent the right holder to take action against the infringers or it does not prevent the right holder to enjoy his copyright and exploit the same by way of other modes of reproduction.

In the present case, the Court says that if the author has not expressly reserved his rights for such reproduction, no copyright will be there over the work. The Court, further, held that the Respondents proposed reproduction would fall within the scope of Section 52 (1) (m).

Going by the provision, a single article which relates to the current economic, politics, social and religious can only be reproduced. The word current shall not be interpreted based on the timings of the publication. It needs to be interpreted based on the social relevance.24 If so, Periyars works can be considered as current social, political as well as religious topics because even today they are very relevant to the social conditions which exist in Tamil Nadu. Therefore, there is no dispute that whether Periyars works can be considered as current social, political as well as religious topics. Now, the question is whether the proposed re-production is a single article or collections of articles. From the facts of the case, it is very clear that the proposed reproduction will cover entire works of Periyar from 1925 to 1938. Therefore, the proposed re-production is not a single article; it is a collection of articles. From the Section, it is also very evident that the provision does not permit the reproduction of the whole work. It allows others to reproduce a single article and also it allows such reproduction only in a newspaper, magazine or other periodicals. Thus, the proposed reproduction of Periyars works cannot fall within the ambit of Section 52(1) (m) of the Act. Therefore, it is possible to argue that, the judiciary has failed to understand the notion and scope of Section 52 (1) (m) of the Act.

Decision of the Court is acceptable. However, the reasoning based on which the judgment is delivered cannot be acceptable for the above said reasons.

24

N.S. Gopalakrishnan, Intellectual Property Laws, A.S.I.L. (2009)

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Conclusion.
Though the Indian courts have borrowed the US born 'factor analysis method', in the assessment of fair dealing the Indian judiciary has only considered issues concerning fair dealing in each case in limited context. It is therefore left without much opportunity to take a holistic view of how these issues may interact together or an analytical view of how these issues may be broken down. The courts have not been able to explore other factors, such as, bad faith because they have not come at issue. Though such factors may not have been explicitly highlighted as a potential factor, the silence, however, does not mean that such factors cannot feature in future cases. Rather than incorporating fair use by the introduction of factor analysis method in the Indian Copyright act, Indian courts should rather seek to build on distinctive features of its fair dealing regime, such as its policy preoccupations and other factors for determining fair dealing and helping to introduce an element of flexibility. The approach of Indian courts may sometimes be very rigid or limited but is a very cautioned and discipline one. The notion of exceptions to Copyright infringement which had in the past been largely premised on a narrow interpretation of its scope, the Indian courts have now broadened its scope.25 Both the Indian and the US legislation aim to maximize the promotion of creativity and dissemination of information at the same time. Fair dealing & fair use both appear as defenses to otherwise closed monopoly in the legislation. But the real differences between India and the US counterparts can be traced ultimately in the policy preoccupations of the respective courts. The provision of fair dealing in the Indian act is Brief and does not define the meaning of the application of defense. The provision of fair use in the American act, on the other hand, is more elaborate, culminated from extensive judicial reflection. The American act is Flexible and open for further advancement and is also intended by its legislature. Indian legislators, designing certainty, have chosen the Conservative approach and the Indian judicial jurisprudence is reflective of this approach.
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Indian Perspective on Fair Dealing under Copyright Law by Ayush Sharma NLIU Bhopal

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Today, more than ever before, we need a theory that defines the boundaries of the freedom of contracts in the context of copyright law. In the past, copyright law was limited to contexts in which contracting was impossible or was prohibitively expensive; in fact, copyright law arose to address the inability of contractual means of exclusion. However, copyright may now become crucial for defining the balance between owners and users. Just as legal intervention in the market for information was originally necessary to allow the exclusion of non-payers, legal intervention in the market is now necessary to allow the inclusion of non-payers. The need to secure general access to information will require maintaining copyright schemes in contractual regimes. The courts and the law should allow the expansion of the scope of fair use and thus enlarge the need for dissemination of information freely throughout the world without any barriers at any stage. It is the duty of the state and society to see that the dissemination is permitted by the wider practice of doctrine of fair use. The fine balance between the rigour of copyright and flexibility of fair use has to be maintained. The great advantages must be in tune with avoiding the great disadvantages of this global regulation. The strict enforcement of stricter law of copyright should not result in loss of general storehouse of knowledge, because copyright seeks to stock the knowledge and not to lock it. Too long and broad monopoly for copyright will not help promotion of knowledge and learning, which is the real purpose of copyright regulation. The copyright law should not be viewed solely as an economic regulation, and its priority should not be the protection of economic rights alone. The public interest in public dissemination as the basic purpose of law must always be kept in mind while dealing with questions and disputes over this regulation, whether global or local.

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Bibliography.
Book Sources Centre for Intellectual Property Rights Research and Advocacy (CIPRA), National Law School of India University, Bangalore, Information Technology Related Intellectual Property Rights,2nd Ed., 2005 David I Bainbridge, Intellectual Property, Pitman Publishing, London, 4th ed., 1999. William Landes and Richard Posner, "An Economic Analysis of Copyright Law,"Journal of Legal Studies 18 (1989): 325. Ku, Farber & Cockfeld, Cyberspace Law: Cases and Material, Aspen Law & Business, New York, 2002. Justin Hughes, "The Philosophy of Intellectual Property,"Georgetown Law Journal 77 (1988): 287 Singh Yatindra J., Cyber Laws, Universal Law Publishing Co. Pvt. Ltd., Delhi, 2003. The Copyright Act, 3rd edn (Law Publishers India, Allahabad), 1995 Jeremy Waldron, The Right to Private Property (Oxford: Clarendon, 1988). Smith J.H. Graham, Bird & Bird, Internet Law & Regulation, 3rd ed., Sweet & Maxwels, London, 2002.

URL Sources www.ssrn.papers.com http://www.nolo.com/legal-encyclopedia/article-30090.html http://www.chillingeffects.org/fairuse/faq.cgi. http://www.theregister.co.uk/2003/07/20/deep_links_are_legal/

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