Concept of Fair Use: Copyright and Creative Expression
The article 'Concept of Fair Use: Copyright and Creative Expression' explores the concept of fair use in the context of copyright law and its implications for creative expression.
The article 'Concept of Fair Use: Copyright and Creative Expression' explores the concept of fair use in the context of copyright law and its implications for creative expression. Fair use is a legal doctrine that allows for the limited use of copyrighted material without permission from the copyright holder. The article further distinguishes between fair dealing and fair use pertaining to the legal aspect.
The Indian Copyright Act of 1957 was enacted, and it came into effect in January 1958. Since then, it has undergone six amendments in the years 1983, 1984, 1992, 1994, 1999 and 2012. India's first copyright law after independence was the Copyright Act of 1957, and six changes have been made since then. The most recent modification was made in 2012 with the passage of the Copyright (Amendment) Act. The Indian Copyright Act, 1957, as amended from time to time, and the Indian Copyright Rules, 1958, serve as the legal framework for copyright in India.
Concept of Fair Use in Copyright
Indian Copyright Act, 1957 (hereafter referred to as the "Act"), which protects content that is thought to be protected by copyright, makes an exception for the doctrine of fair dealing. It is a legal principle that allows someone to use any work that is protected by the Act with a limited amount of usage of that work in order to preserve the uniqueness and sanctity of that work as well as the registered owner of the work.
In the broadest sense, fair use is any copying of intellectual property done for a specific, "transformative" reason, like parody, critique, or comment on a work that is protected by intellectual property. What then constitutes a "transformative" use? Be mindful that millions of dollars in legal expenses have been spent trying to clarify what constitutes fair usage if this definition sounds nebulous or imprecise.
International Convention and Fair Use
The Berne Convention on the Protection of Literary and Artistic Works has been ratified, recognising and incorporating the concept of fair use into international law. The first significant international convention on copyrights was the Berne Convention of 1886.
Certain free uses of works are outlined in Article 10 of the Berne Convention.
(1) Quotations from a work that has already been lawfully made available to the public are acceptable as long as they are made in accordance with good faith and do not go beyond what is necessary to serve the intended purpose. This includes press summaries made from quotations from articles in newspapers and periodicals.
(2) The use of literary or artistic works by way of illustration in publications, broadcasts, or sound or visual recordings for teaching, to the extent justified by the purpose, shall be subject to legislation in the countries of the Union and to special agreements existing or to be concluded between them, provided that such use is consistent with fair practise.
(3) Reference to the source and the author's name, if it appears on the work, must be made whenever it is used in conformity with the preceding paragraphs of the Article.
Article 9(2) of the Berne Convention grants national legislation the right to allow the "reproduction" of protected works in some circumstances, but only if two requirements are met. As follows:
(a) The reproduction does not prevent the work from being used as intended.
(b) Such reproduction does not unfairly harm the author's legal interests.
Fair Use: Provision in India
In accordance with Section 52 of the Indian Copyright Act of 1957 provides the following acts shall not constitute an infringement of copyright, namely,-
(a) a fair dealing with any work, not being a computer programme, for the purpose of-
(i) private or personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public;
Difference between Fair Dealing and Fair Use
The terms "fair dealing" and "fair use" in relation to user rights under copyright law are linked. However, it's crucial to recognise that fair dealing and fair use are distinct concepts with distinct meanings and purviews as determined by various legal systems. It is difficult to clearly express both the similar and different underlying principles of fair dealing and fair use. The purpose of the following quick comparison is to only provide a general overview of some of the fundamental parallels and divergences between fair dealing and fair use.
In common law nations including Great Britain, Canada, Australia, and New Zealand, copyright legislation provides an exception for fair dealing from copyright infringement. According to the copyright laws in these nations, fair use of a copyrighted work does not constitute infringement if it is expressly permitted by the law. This means that regardless of the copier's intention if a work is duplicated for a reason other than the authorized fair dealing purposes, the copying is not considered fair dealing. The concept of fair dealing is narrower and more specific than fair use.
In the US the doctrine of fair use is employed. Fair use of a work protected by copyright is not considered a copyright infringement, according to Title 17 of the United States Code. Instead of limiting the boundaries of actions that may be considered fair dealing, Title 17 offers an open-ended list of reasons.
The existence of regulatory advice on how to assess the fairness of dealing or use is another area of difference. The Supreme Court of Canada established a two-stage analytical framework to evaluate fair dealing in CCH Canadian Ltd. v. Law Society of Upper Canada, 1 SCR 339 where the second step outlines six fairness elements. The court acknowledged that the relevance of the elements may vary from case to case and that some circumstances would necessitate taking into consideration factors other than the six listed.
Contrarily, the fair use clause in American copyright law specifies four criteria that must be taken into account when making a fairness determination: 1) the intent and type of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used; and 4) the impact of the usage on the potential market or value of the work.
Fair dealing is a legal defence to copyright infringement in the United Kingdom. Only a few uses are covered by fair dealing protection, including news reporting, criticism, and private study (both must be for non-commercial purposes). These categories are not exhaustive. The Copyright, Designs and Patents Act of 1988 does not care whether the use of copyrighted work is fair generally or fair for a purpose that is not specifically mentioned in the Act; protection is only provided if it fits into one of these categories.
India TV Independent News Services Pvt. Ltd. v. Yashraj Films Pvt. Ltd, 2013 (53) PTC 586 (Del)
The defendant, India TV, aired a programme on its channel that followed the lives of singers. In this programme, the singers were seen performing their own songs, but as the performance was being filmed, movie scene clips were played in the background. A scene from the movie playing in the background, according to the plaintiff, Yashraj Films Private Limited, violated the copyright. Under Section 52, the defendants asserted the fair dealing defence. In an appeal from the above order, the Hon'ble Bench of Delhi High Court also felt the need to disregard the traditional way of dealing with Section 52 of the Copyright Act. The Panel set aside the order issued by the single Judge and encouraged the restrictions so enforced. This legal battle lasted for years, during which time various angles and viewpoints were taken into consideration. The Appellants were however not allowed to broadcast any cinematograph films without the necessary authorization. The Copyright (Amendment) Act of 2012 expanded the definition of fair dealing to include cinematograph films and musical recordings.
By ignoring the strict and conventional approach and implementing the required modifications, the Indian legal system advanced in the area of fair dealing under copyright through the handling of this case.
It may be reasonably argued that the criteria used to decide whether a copyrighted work is being used in a fair manner does vary from case to case because the importance of the facts should always take precedence over the letter of the law. Section 52 of the Copyright Act of 1957 establishes a legitimate case for the public to rely on this provision for the time being, even though the legislature has tried to make the legislation on this notion more flexible but precise.
India has so far been successful in establishing a solid foundation because the whole point of having a copyright exception is to foster growth and creativity that can be transformed and expressed in a variety of novel ways. This will motivate people to develop such levels of creativity while carefully taking into account the original copyrighted work.
 Indian Copyright Act, 1957
 Berne Convention for the Protection of Literary and Artistic Works (1886)
 The Copyright Rules, 1958