Fair Use Of Copyright

Srilakshmi

Attorney

Presentation Synopsis

• Basics of Copyright• Fair Use of Copyright• Fair Use Analysis• Fair Use in the Indian Context• Case Study

Basics of Copyright

• Copyright is a form of intellectual property that gives the author of an original work exclusive right for a certain time period in relation to that work.

• Copyright applies to any expressible form of an idea or information that is substantive and discrete and fixed in a medium.

• Copyright is described under the umbrella of intellectual property along with patents and trademarks.

Basics of Copyright

• The Statute of Anne, enacted in 1709 was the first real copyright act, and gave the authors rights for a fixed period, a fourteen year term for all works published under the statute, after which the copyright expired. Copyright has grown from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly every modern industry, covering such items as sound recordings, films, photographs, software, and architectural works.

• The 1886 Berne Convention first established recognition of copyrights among sovereign nations. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation. As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works.

Use of Copyright

• A copyrighted work may be used or copied under certain conditions:

• public domain -- work belonging to the public as a whole, works with an expired copyright or no existing protection;

• permission -- prior approval for the proposed use by the copyright owner;

• legal exception -- use constitutes an exemption to copyright protection– like parody for example; or

• fair use -- use for educational and non-commercial purposes with certain restrictions. 

Fair Use of Copyright

• Fair use is a doctrine in copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. The term "fair use" originated in the United States, but similar principle of fair dealing, exists in other common law and civil law jurisdictions.

Fair Use

• The specific use of a work is probably "fair" if:– It involves only a relatively small portion

of the work.– It is for educational or other

noncommercial purposes.– It is unlikely to interfere with the

copyright owner's ability to market the original work.

– It is Published.

Fair Use Of Copyright - Factors

• Purpose of use: Use of copyrighted material for the purpose of criticism or review of another work or its performance or reporting current events, does not amount to infringement. (However, it should be accompanied by an acknowledgement).

• Nature of work: This refers to the characteristics of the work that has been used. If a major part or essential feature of the work has been used, it amounts to infringement. But if only few features of the work are used which does not affect the original, it does not amount to infringement. It should also be taken into consideration whether the work is published or unpublished, and whether circulated or not in case of an unpublished work.

• Amount of work: Both the quality and quantity of the copyrighted work used have to be considered to measure whether it has been copied. Even if only a small portion is copied, and it is a substantial part of the work, it is infringement. For instance, to take a long extract and attach short comments may be unfair; but to take short extracts and attach long comments may be fair.

• Effect of Work: The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original.

Fair Use Analysis

• A classic example is quoting a few sentences or paragraphs of a book in a class paper. Other uses may also be fair, but it is almost never fair to use an entire work, and it is not enough that you aren't charging anyone for your particular use. It is also not enough to simply cite your source (though it may be plagiarism if you don't).

Fair Use Analysis – Fair Use Purpose

Favoring Fair Use

• Teaching• Research• Scholarship• Nonprofit educational

institution• Criticism• Comment• News reporting• Transformative or

productive use (changes the work for new utility)

• Parody

Opposing Fair Use

• Commercial activity Research

• Profiting from the use• Entertainment• Bad-faith behavior • Denying credit to original

author

Fair Use Analysis – Fair Use Nature

Favoring Fair Use• Published work• Important to

favored educational objectives

Opposing Fair Use• Unpublished

work• Highly creative

work (art, music, novels, films, plays)

Fair Use Analysis – Fair Use Amount

Favoring Fair Use• Small quantity• Portion used is not

central or significant to entire work

• Amount is appropriate for favored educational purpose

Opposing Fair Use• Large portion or

whole work used• Portion used is

central to work or "heart of the work

Fair Use Analysis – Fair Use Effect

Favoring Fair Use• User owns lawfully acquired or

purchased copy of original work• One or few copies made• No significant effect on the

market or potential market for copyrighted work

• No similar product marketed by the copyright holder

• Lack of licensing mechanism

Opposing Fair Use• Could replace sale of

copyrighted work• Significantly impairs market

or potential market for copyrighted work or derivative

• Reasonably available licensing mechanism for use of the copyrighted work

• Affordable permission available for using work

• Numerous copies made• You made it accessible on the

Web or in other public forum• Repeated or long term use

Fair Use Analysis

• Fair Use is the most significant limitation on the exclusive right of the copyright owner. It has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use; where the economic impact is not significant, the use may count as fair dealing.

Fair Use – Indian Context

• According to Section 52 of the Copyright Act 1957, certain acts are not to be infringement of Copyright.

• Fair Use is not defined in the Copyright Act, 1957. Further Section 52 (1) deals with, fair dealing as a defense applies only to literary, dramatic musical or artistic work. It should be noted that fair dealing applies only with respect to work and not to reproduction of the work. Reproduction of the work or substantial part of the work will not be permitted; only quotations or extracts from the work will be permitted.

Case Law

• In Syndicate Press of University of Cambridge & Anr. v. Kasturi Lal & Sons, 2006(32) PTC 487 (Del.), the plaintiffs were reputed publishers with an international standing and were holding all rights with regard to the publication Advance Grammar in Use by Martin Hewings. The subject work had been prescribed and used in several institutions and universities the world over and was inter alia prescribed by Guru Nanak Dev University, Amritsar also for the students of Bachelor of Arts Part I, II and III. The international price of the book was about $ 29 but it produced a low price edition at the price of Rs 95 approx. US $2. The cause of action arose when the defendant had published three books, which contained brazen copies of the reproduction of the subject work including exercises and answer keys. The defendant had also copied the scheme of the exercise, answers and placement of topics.

• An ex-parte order of ad-interim injunction was passed in favour of the plaintiff. The defendants appeared after notice and contented that it published approved books by various universities including GNDU as well as guide books and had previously published guide books for the students of GNDU. The guides completely elucidated and clarified the English paper as per the syllabus. The plaintiffs book was in one volume whereas their book was in three volumes and thus the case fell within the exception clauses under Section 52 of the Act. The guides were published for the benefit of the students under the public domain and this was done in the nature of research work/review. The plaintiffs presented extracts of their work as well as defendant's subject work.

• It was held that since the defendant's book was not a criticism or review, none of the exceptions under Section 52 could be attracted and that as such the defendant's act amounted to copyright infringement.

Case Law

• In the matter of Academy of General Education, Manipal and Anr. v. B. Manini Mallya 2009 (39) PTC 393 (SC) in appeal from the Karnataka High Court' verdict.

• The supreme court held that:• "When a fair dealing is made, inter alia, of a literary or dramatic

work for the purpose of private use including research and criticism or review, whether of that work or of any other work, the right in terms of the provisions of the said Act cannot be claimed. Thus, if some performance or dance is carried out within the purview of the said clause, the order of injunction shall not be applicable. Similarly, appellant being an educational institution, if the dance is performed within the meaning of provisions of clause (i) of sub-section (1) of Section 52 of the Act strictly, the order of injunction shall not apply thereto also. Yet again, if such performance is conducted before a non-paying audience by the appellant, which is an institution if it comes within the purview of amateur club or society, the same would not constitute any violation of the said order of injunction."

Case Law – Parody

• Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).

• A movie company used a photo of Demi Moore who posed pregnant and nude for Vanity Fair magazine; and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning.

• Important factors: The movie company’s use was transformative because it imitated the photographer’s style for comic effect or ridicule.

Case Law

• Mattel Inc. v. Walking Mountain Productions (2004)

Mattel brought copyright, trademark and trade dress infringement claims against the artist; all were dismissed

To Summarize

• Whether a persons use of copyright material is fair depends on the circumstances of the case. The line between fair use and infringement is a thin one. There are no guidelines that define the quantum of copyright material that can be used without permission from the author. Only the courts can rule whether it is fair use or infringement that is involved. A copy should be such that it does not affect the substantial interest of the owner.

Thank You