Intellectual Property is regarded as one of the most thought-provoking and unconventional domains in the legal fraternity. And why should it not be? It is a property of intangible creations of human mind! It is something which just can’t be touched, in contrary to the tangible object and things such as; house, car, and a plot of land. The only limit to such property is literally ones’ imaginings, subject to the rules of particular intellectual property to be specific. One’s ‘artistic creation’ is governed and regulated by intellectual property rights. Any creation, whether it is academic or artistic is a work of idea and vivid imaginations. Likewise, it is important to mention that intellectual property protects the work of idea, and not the idea per se. The copyright laws play a significant role in protecting the creative work of such ideas.
Lukose, L. P. (2016) in her paper, “Copyright Issues in Legal Research and Writing” has thrown light upon the copyright issues in research and has observed the ways in which the academicians can safeguard their work from the shackles of copyright violation as well as unwanted plagiarism. As both creators/owners and users of copyrighted information, legal researchers and writers have a dual function in their scholarly endeavour. While using other people’s copyrighted work, they have particular legal rights, obligations, and responsibilities as creators and/or users. As a result, they are frequently confronted with the copyright legislation. Henceforth, it is preferable to become acquainted with copyright law as it is crucial for academicians to exercise their rights as users to the maximum degree possible without infringing on the rights of copyright holders.
Infringement of Copyright in Research
Section 52 of the Copyright Act, 1957 provides with the list of free uses. The sole purpose for having provisions with respect to free use in the Act is to maintain equilibrium with regards to the “interests of copyright owner” and the “interest of the society”. Section 52(1)(a)(i) allows copyright of work for the purpose of private use including research and section 52(1)(h) restricts this use; even if one is copying other work, it should not exceed two passages with bona fide intention and due reference be given to the copyright owner.
In the 1996 case of Rupendra Kashyap v. Jiwan Publishing House it was stated that if a publisher publishes a book for commercial exploitation and in doing so infringes a copyright, the defence under Section 52(1)(a)(i) would not be available to such a publisher though the book published by him may be used or be meant for use in research or private study.
Doctrine of Fair Dealing
When looking at the history of copyright protection for academic research, the concept of copyright protection first emerged with the advent of printing, which allowed literary works to be copied by mechanical processes. Because of the development of technological breakthroughs and new techniques, a class of middlemen emerged who made the first investment in bringing a book to market, namely printers who also served as bookstores and were known in England as “Stationers.” Academic or “scholarly” fair dealing broadens the definition of “fair dealing” to include academic study and writing in the setting of higher education and to enable complete academic study of the works in question, such research will frequently need more substantial parts of copyrighted works than those permitted by basic “fair dealing.” As Copyright Act does not define the words “fair use” or “fair dealing”, the courts have on various occasions referred to the landmark English case Hubbard and Vosper, where Lord Denning clearly outline the description of fair dealing:
“It is impossible to define what is “fair dealing”. It must be a question of degree. You must first consider the number and extent of the quotations and extracts…. then you must consider the use made of them….Next, you must consider the proportions…other considerations may come into mind also. But, after all is said and done, it is a matter of impression.”
In the case of Wiley Eastern Ltd. & Ors. v Indian Institute of Management, a connection between Fundamental Rights and the Doctrine of fair dealing was established. The main aim of Section 52, according to the court, is to guarantee freedom of expression under Article 19(1) of the Indian Constitution, such that research, private study, criticism or review, and reporting of current events are all protected. The court further stated that Parliament did not intend for Section 52 to be a negative prescription of what constitutes infringement of copyright.
The Question of Ownership
According to Section 17 of Copyright Act, except private research work in every other work owner or first author shall be person for whom work is done or under whom the work is done i.e., work in relation employer and employee, the employer shall be the owner of work. Same is the case with Government work. If in case there is a contract which is contrary then the author shall be the owner i.e., employee not employer for his/her work.
James, T. C. (2004) in his paper titled, “Copyright Law and the Academic Community” has highlighted upon the significance of copyright in academic institutions. The copyright issues in the academic institution have not been well recognised. When it comes to copyright issues in academic institutions the most important question is who will be the owner of research articles or papers, dissertation thesis, books etc written by students under the guidance of a mentor. Assuming that the work is creative enough to be acknowledged as literary work, henceforth being eligible for protection under Copyright law. But the primary concern is as to who ought to be the owner/creator of the copyright pertaining to the same, whether the protection would be granted to a student or a research scholar or the mentor, it is observed that the copyright in such circumstances would be available to the student and not the mentor or the research guide.
With respect to boom in the technological advancements, especially in the academic domain, ownership of scholarly research generated in and for educational institutions is expected to pose new difficulties. When it comes to handling copyright issues pertaining to academic research, a basic acquaintance of legal knowledge with respect to copyright laws is a requirement. Henceforth it can be concluded that researchers and scholars from the academic community, including examiners and writers, must exercise caution when engaging in creative activity.
Author: Kriti Pundir, Legal Intern at PA Legal.
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