What are Fair Use and Fair Dealing?
Fair Use and Fair Dealing are concepts related to each another, and they both act as exceptions to the general rules of Copyright Law. These two concepts are, however, defined under different legal systems. Fair use is generally used as a defense against infringement in US copyright law, while fair dealing refers to a specific set of pre-defined exceptions to copyright exclusivity, as initially conceived under UK law. However, it must be noted that the terms often overlap in both content and common daily usage, so drawing a hard line between them is likely to be meaningless.
The term fair use is not defined anywhere in the legislation which provides for rules governing Copyrighted works. In the case of Folsom v. Marsh it was observed that “we must often, in deciding questions of this sort, look to the nature and objects of selection made, the quantity and value of the material used and the degree to which the use may prejudice the same or diminish the profits or supersede the objects of the original work”.
With respect to fair use there is no fixed definition to prescribe the extent to which the work or the material of a copyrighted author or creator can be used for the aforementioned purposes, the concept in itself is determined from case to case basis. However, under the US Copyright Law, 4 factors have been laid down to determine the extent of fair use as an exception to the rights granted to the copyright owner.
- The purpose and character of the use, including whether such use is of a commercial nature, or is for non-profit educational purposes.
- The nature of the copyrighted work.
- The amount and substantially of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
Fair Dealing as defined in the UK is also an exception to the Copyright law, and mainly deals with the private use of protected material or content for the purpose of research or criticism or review. Fair dealing extends to reproducing literary, dramatic, musical or artistic work for the purpose of reporting current events in a newspaper, magazine or reporting current events for bonafide review, teaching or research.
Fair dealing cannot be used as an excuse to copy or reproduce works of another, further one cannot obtain protection on the substantial part of the work that has been copied as copyright protection requires reasonable skill and labor to reach the threshold of originality and quality for protection.
Fair Dealing and Fair Use in India
The Indian Copyright Act recognizes fair use and fair dealing under Section 52 carves them out as affirmative defenses, which places the onus of proving the defenses onto the user once the copyright owner establishes prima facie infringement caused by substantial copying of expression. However, in India when it comes to fair use/dealing cases it is not assumed to be a prima facie case of copyright infringement before considering the exception of fair dealing. Courts in India have analyzed the doctrine of fair use/dealing, in which they drew primarily from UK and US approaches.
The Delhi High Court, in the case of Oxford v. Rameshwari, has summed up the policy behind the defense of fair dealing. The Court held that fair use/dealing seeks to strike a balance between the exclusive rights granted to a copyright holder and the often competing interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativity and at the same time must discourage blatant plagiarism.
The motivation behind doing so is similar to that behind the law of patents, where the Patent Act ensures that the Patent Holders rights are not absolute and that his invention is commercialized in the public domain for the benefit of the society at large. Copyright gives exclusive rights, but it is limited to a certain number of years after the death of the author. In India, for every literary work, copyright subsists for 60 years after the death of the author. After the lapse of the stipulated time, the copyright work goes to the public domain.
Due to the existence of fair use/dealing as a doctrine, it is possible to perform news reporting without any obstacles. News reporting about a movie or a book is done to educate the public about the latest developments that have come in the literary field and cinematographic field. The reason behind doing this is to propagate new ideas in the community which result in contribution of more creative works to the existing literature.
Fair use/dealing has become the backbone of libraries. With the introduction of electronic cataloging systems, some libraries even catalog the text found in the blurb of the book. Libraries also offer course packs for students which also comes under the fair use/dealing exception.
More recently, the Indian Copyright Act 1957 has incorporated Section 65A which is titled protection against circumvention of technological measures. Under this tampering with DRM measures is a punishable offense. An E-book which is protected from being printed cannot be printed unless the technological measure is circumvented. This act becomes punishable, although it is allowed as per fair use exceptions under Section 52.
Fair Use/Dealing is an extremely significant doctrine that seeks to create a harmony between two objectives: the interest of the copyright owners and the ability to propagate and develop the intellectual abilities of society by regulating the works that are made available in the public domain.
Author: Nihal Raj, Legal Intern at PA Legal.
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