Fair Use Doctrine
Before diving into fair use doctrine, it is very important to understand what copyright means-
“Copyright is a type of intellectual property right, in which the owner has the exclusive right over the original work. Copyright protects the expression of an idea, not an idea itself. Artistic work, musical, literary, dramatic, sound- recording, and cinematograph film are the categories in which Copyright obtained. The owner of the copyrightable work has the exclusive right to use and distribute the work.”
Fair use is a doctrine of U.S copyright law. In simple words, fair use means copying the copyrightable work or reproduction of work without the permission of the owner. Fair use is one of the limitations to copyright and acts as a defense as it allows certain acts that will not amount to infringement which would otherwise be copyright infringement. Much before the concept of fair use was codified under title 17 section 107 of the copyright act 1976, the principal was still used in many cases as the common law doctrine. Title 17 provides an open-ended list of purposes that may be fair use instead of listing a finite list of purposes defining the bounds of acts that may be fair dealing.
Folsom v. Marsh widely regarded as the first “Fair Use” case in the U.S where Justice Story observed: “We must often in deciding question of this sort, look to the nature and object of the selection made, the quantity and the 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”.
The broad categories that fall under fair use are:
- Parody
- Criticism
- Review
- News Reporting
- Teaching
- Research
Section 107 of the U.S copyright code mentions four factors for determining whether a work comes under the ambit of fair use or not-
1) Purpose and character of the use
2) Nature of the copyrighted work
3) Amount and substantiality of the portion of the work used and
4) Effect of the use on the potential market or value of the work.
These four factors were derived from the opinion of Joseph Story in the case of Folsom v. Marsh.
Fair Dealing Doctrine is commonly applicable in India and UK law. Fair dealing is an exception and a defense to copyright infringement layout in the copyright law of common law jurisdictions. This doctrine was initially called the doctrine of equity through which individuals can reproduce or use copyrighted work in a manner, which, except for the exception carved out would have amounted to an infringement of copyright. The motive behind this doctrine is to prevent immobility of the growth of creativity for whose progress the law has been designed. The concept of fair dealing in Indian and UK copyright law is very restrictive, limited, and not properly defined as the act only works upon an exhaustive list. Section 52 of the copyright act, 1957 defines fair dealing. As the concept of fair dealing is not properly defined in the Indian copyright act, the Indian courts refer to the English case of Hubbard v Vosper on the matters related to fair use. The words of Lord Denning during this case lay down the descriptive outline of fair dealing-
It is impossible to define what is “fair dealing”. It must be a question of degree. We must first consider the number and extent of the quotations and extracts, then we must consider the use made out of them. Next, we must consider the proportions. But, after all is said and done, it is a matter of impression.”
The Indian courts concluded that the decisions related to fair dealing can be decided depending upon the facts and circumstances of every case. In Indian judgments also the court acknowledged the US principal to be validly applicable to Indian cases as well.
If the copyrightable work is used without permission it amounts to infringement under section 51 of the act. However, there are certain acts which will not constitute infringement listed under section 52 (1) of the act. In order to ensure that the rights of the copyright holder are not prejudiced, there are a number of factors taken into consideration and if that factor gets satisfied then the copyright owner can exercise their rights and at the same time, others can also use the work so that both the parties are benefited. Therefore, to keep a balance between both parties defense of fair use was introduced. Concept of fair dealing is specifically mentioned under Section 52(1)(a) of the Copyright Act,1957, which states that there are certain acts which will not amount to copyright infringement such as:
- Research
- Criticism or review
- Reporting current event
- Teaching
- Reproduction of work etc.
Fair dealing was firstly observed in the Indian case of India TV Independent News Services Pvt. Ltd vs Yashraj Films Pvt. Ltd & Super Cassette Ltd where the defendant “India TV” broadcasted a show depicting the life of a singer while the journey was shown the clips of the movies were also been shown. The plaintiff claimed that such act amounts to infringement, where the defendant argued that such use of copyrightable material amounts to fair dealing under section 52 of the act. The court held that the defendant cannot use such material as such use does not come within the exhaustive list provided under section 52.
Parody: Fair Use Or Infringement
Parody is defined as “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule.” Parody employs humor in commentary and criticism and section 52 (1) (a) of the act 1957 lay down certain acts which will not amount to copyright infringement one of which includes the use of copyrighted work “for purposes like criticism or comment”. However, a parody needs to pass four-factor analyses to determine whether it constitutes fair use or not. If a person uploads a video of a parody on their YouTube channel which has too much original composition and lyrics and because of which sounds too much like the original, is less likely to qualify as fair use.
One thing which needs to be remembered while making a parody is that the new work must not be a replacement of the original work for such use to constitute fair dealing. Therefore, the copied work must not generate income as a result of the original work losing out financially, and the parody must not defame or lower down the reputation of the original work. We come across so many YouTube channels uploading parodies of songs, movies, etc they are all protected under the act if condition followed.
Review And Criticism
Section 52(a)(ii) of the Copyright Act clearly states that criticism and review made on any literary, dramatic, musical, or artistic work will not amount to infringement, but that review must not affect the original work and must not defame or deceit anyone. We see so many reviews being made on films, songs, or books, they are all protected under fair dealing. To obtain protection under the act, it must contain more review and less of the original content. The main purpose of making reviews or criticism is that the general public reaps benefits from the review, which is enhanced by including a number of the copyrighted material.
Memes
Memes are a picture, video, piece of text, etc typically humorous in nature that’s copied and spread rapidly by Internet users, often with slight variations. Memes are made from the pictures of the character of a film or an independent existence and since they are humorous in nature, they are part of the parody. Memes are protected under the defense of fair dealing as long as memes/parodies are transformative work and satisfy the four-factor test.
Cover Songs
Cover version simply means new performance or recording of the original song using different instruments and artist voice with no change in lyrics. Earlier cover songs were protected under fair dealing as per section 52(1)(j) of the act 1957, with the amendment in 2012 section 31C was added which stated that for making a cover version of the songs one need to obtain a license from the original owner if not then will amount to infringement. Therefore, the cover songs we listen to on YouTube channel need to acquire a license and then can be monetized accordingly. Cover songs do not fall under fair use doctrine.
One of the earliest cases of cover version was Gramophone Co. Of India Ltd. Vs Super Cassette Industries Ltd In which the plaintiff had produced version recording of the song titled ‘Hum Aapke Hai Kaun’ and the rights were assigned to Rajshree Production Pvt. Ltd. The defendant too had launched the song with the same title, design, color scheme, get up, and lay-out. It was held by the court that the defendant needs to first obtain a license from the plaintiff to make the cover version of the song.
Conclusion
The concept of fair dealing is of very much importance not only in copyright law but also in strengthening the protection given to citizens under Article 19 of the constitution. But still, Indian laws related to fair dealing are very limited and restricted as compared to fair use doctrine of US copyright code which is more elaborative and extensive. Indian courts from time to time adapt the US approach in its cases along with section 52 however this concept of fair dealing needs to be more defined and enlarged by the legislator.
