The Doctrine of Fair Use in Copyright Law

Genesis

The Doctrine of Fair Use is a concept that originates from the case of Folsom vs. Marsh. Justice Story observed in his judgement, when the courts of law decide on cases like this, they must look to the nature and objects of the selection mode, the quantity and value of material used. The courts need to understand the degree to which such usage may harm the work or decrease the profits for the owner of the copyright.

Today, this doctrine has become one of most popular doctrines in the realm of copyright law. It allows people a positive defense against the infringement of copyright.

Definition

Usually, any type of infringement of copyrighted work goes against the law of the land. However, certain cases of usage of copyright work for various reasons are allowed. The law allows such acts of usage of copyrighted material for the purposes of research , reporting, criticism, commentary and so on.

Indian Perspective

Section 52 of the Copyright Act, 1957, enumerates specific acts or works that are not deemed infringements of copyright, including fair dealing with a literary, dramatic, musical, artistic work, or work that is not a computer programme. This legal provision lists down certain acts which do not constitute an infringement of copyright.

The ideology of Fair Use has now been expanded to cover creations of a musical or cinematographic character, thanks to a subsequent modification to the Copyright (Amendment) Act, 2012. The explanation for this is that, with the exception of work done in the field of computer programming, the scope of what can be called fair dealing under the Indian legal system has become much broader since both personal and private works have been altered in the recent Act.

The court stated, in Blackwood and Sons Ltd. vs A.N. Parasuraman, that the concept of “fair dealing” has a two-fold meaning behind the terminology.

In order for it to be an unfair usage, there must be an intention to compete with the original holder of the copyright, and gain profits from the same.
Unless the alleged infringer had any improper intention, the act would constitute fair dealing.

Global Perspective

The 1710 Statute of Anne, an act of the British Parliament, established copyright legislation to replace the Stationers’ Company’s system of private licensing. The Statute of Anne did not allow for the legal unsanctioned use of copyrighted material. The Court of Chancery created the notion of “fair abridgement” in Gyles v Wilcox, which allowed for the unauthorised abridgement of copyrighted works in certain circumstances. This philosophy evolved into the present notions of fair use and fair dealing throughout time. Fair use was a common-law theory in the United States until 1976, when it was codified in the Copyright Act, 17 U.S. Code, section 107.

U.S. has laid down certain factors under section 107 of the Copyright Act 1976 while analyzing the fair use doctrine.

Purpose of the New Work

The law expressly prioritises beneficial academic goals above commercial ones. As a result, applications for teaching and scholarship are frequently preferred. As a result, activities that are actually confined to the university and support nonprofit education are more likely to be approved. In addition, courts support transformative or non-mirror image copying purposes. A transformative usage is one that adds to or transforms the original work in such a way that it takes on new meaning, expression, or message. Hence, the courts study the situation to determine whether the new work imparts or includes some new commentary or knowledge on the new work.

Nature of the Copyrighted Work

This element analyzes the features of the subject in question. Broadly said, judges have a tendency to treat different types of works differently when it comes to fair use. Just those parts of the material that are pertinent to a fair use purpose should be used. Instructors should carefully consider how “consumable” items, such as test forms and workbook sheets, are used, as they are less likely to qualify as fair use.

Percentage of Original Material Used

Both quantitative and qualitative measurements are used to determine the amount. There are no precise measures of allowed quantities under the legislation. Quantity must be assessed in relation to the overall length of the project and the quantity required to achieve a certain goal. The quantity of money taken from the job should be precisely calculated to meet these objectives.If one copies the entirety of the work, it goes beyond the ambit of fair usage. The legal provisions of our land do not explicitly mention what constitutes a “substantial” part of the copyrighted work. This is judged based on legal precedents.

Effect on the Market Value

This element determines how much a certain use has an influence on the overall market for or value of a copyrighted work. This factor of the market value is inextricably linked to that of the factor of “purpose” of the copywriter work. If the aim of the usage is commercial, for example, any negative market effect caused by that commercial distribution counts against fair use.

Guidelines and Applications

The Delhi High Court, in the case of Super Cassettes Industries vs. Hamar Television Network Private Limited, summarized the broad principles of the Doctrine. Similar principles had been enunciated in other cases as well.
One can’t define the exact intricacies of fair dealing. It is not advisable either.
The court considers it to be a question of fact, degree and overall impression of the new work.
To determine whether the extraction of work from elsewhere falls under the ambit of fair use, the court looks into the extent and the length of the extract.
This Doctrine includes the right to criticize the style of writing, the underlying ideology of the text or the philosophy of the copyrighted work.
Courts should take a liberal approach to determine what should be the scope of “criticism”, or “review” or “current events”.
To determine whether that person made a fair use of the copyrighted work, the courts should employ the standard of a fair-minded and honest person.
It is important to take into consideration the length and the extent of the extracted work. However, it cannot be reduced to simply a quantitative test. It has to have regard for a qualitative aspect. They have to enquire whether the extracted work forms an essential part of the new work. This aspect might be true in the cases of musical work, where only a few notes could make a huge difference to the piece.
The court will not grant the alleged infringer the use of the doctrine of fair use if their new work is in contrary to public policy, i.e., if it is
– Immoral
– Scandalous
– Contrary to family life
– Injurious to public life, public health, public safety or is inimical to administration of justice
– Incites actions that may prove to be harmful to family life and public health and safety.
– The courts of law usually desist from granting injunction based on the principle of freedom of expression. However, – this principle will not protect the alleged infringer from an action that the owner of the copyright for the damages and claim for an account of profit.
– The interest of the public need not be the same as public interest.
– The alleged infringer’s motive is important to determine whether the injunction should be granted.
– Commercial usage of copyrighted property cannot, in and of itself, be considered unfair.
– In certain situations, “transformative use” can be deemed as fair use of copyrighted work.

Applications of the Fair Use Doctrine

• For the purposes of research and Private Study, one may use copyrighted works. It will not lead to the infringement of said work.
• Research, in these circumstances, means private research, and not industrial research.
• Criticisms or Reviewing of a certain piece or literary, artistic or dramatic work do not amount to infringement.
• The doctrine of fair use or fair dealing can be used for the purpose of reporting current events
• The law grants the usage of copyrighted work in certain circumstances with relation to a computer program.
• It is allowed in the transient or incidental storage of a performance of an artist.
• The court grants the reproduction of a work for judicial proceeding protection under the ambit of the fair use doctrine.
• If the Secretariat of a Legislature includes copyrighted work in their own published work, exclusively for the Members of that particular legislature to use, they are protected under the doctrine of fair use.
• Section 52(1)(f) of the Act grants protection to the reproduction of any work in a certified copy made or supplied in accordance with any law for the tim being in force.
• Reading or reciting a reasonable portion of published copyrighted literary or dramatic work does not constitute infringement.
• Publication of small extracts in a collection of non-copyrighted work, only for the purpose of instructional use, does not amount to infringement.
• If a teacher or pupil uses extracts from copyrighted work during the course of instruction, as parts of questions to be answered during an examination, or, in answers to the questions of an examination, they are protected by the doctrine of fair use.
• If educational institutions use copyrighted works during the course of their various activities, it does not amount to infringement of the work.
• If a recording is played for the public
• In an enclosed room or hall for the common use of the residents of a society or residential premises, or
• As part of activities of a club or similar organizations. This does not amount to infringement of a copyright.
• If a club or a society performs a work of art, or a performance, they too are protected by the doctrine.
• If periodicals reproduce articles on current topics, they are not infringing copyrighted work.
• If a library, non-commercial in nature, stores a work on their computers, or any other electronic medium, it does not amount to copyright infringement.
• If any copyrighted work is reproduced for the libraries to use them, it does not amount to infringement of the copyright.
• If previously unpublished works are reproduced or published, it does not amount to copyright infringement.
• If copyrighted works are reproduced or any matter is published in the Official Gazette, Statues, judgements of courts and so on, it is not considered as infringement.
• When the translations of Acts of Legislature are published, they are protected under the ambit of the doctrine of fair dealing.
• If someone publishes, or takes a photograph of or paints an architectural work, they are protected by the doctrine of fair use.
• If someone publishes, or takes a photograph of or paints a sculpture or other artistic works, they are protected by the doctrine of fair use.
• If the author himself uses his own artistic work in circumstances, it is not considered to be infringement.
• If artistic works are incidentally used in cinematograph films, it does not amount to copyright.
• When buildings are reconstructed according to architectural drawings, they cannot be termed as infringement of copyright.
• When a cinematograph film is exhibited after its copyright term in literary, dramatic, musical or artistic work expires, it is no longer an infringement of the copyright.
• Ephemeral recordings for the purpose of broadcast does not amount to copyright infringement.
  In an official ceremony, when a particular work is performed or communicated, it does not amount to infringement of a copyright.
• When works are reproduced in a format that makes it accessible for disabled people, they are granted protection under the doctrine.
• When copies of literary or artistic works are imported for certain purposes, the Ac does not consider it to be an infringement.
• Section 52(2) of the Copyright Act grants protection to any translation or adaptations of copyrighted works mentioned in Section 52(1).