National Conference on National Conference on Limitations and Exceptions to Limitations and Exceptions to

Copyright Law Copyright Law

Sponsored bySponsored by

Ministry of Human Resources DevelopmentMinistry of Human Resources Development

Department of Higher EducationDepartment of Higher Education

Government of India Government of India

Organized by Organized by

HRD Chair on IPR, Centre for IPR Studies, HRD Chair on IPR, Centre for IPR Studies, CUSATCUSAT

CochinCochin

  

Fair Dealing With Fair Dealing With Copyright WorksCopyright Works

Section 52 (1) (a) (b) (f) (m) (n)Section 52 (1) (a) (b) (f) (m) (n)

Copyright Act 1957Copyright Act 1957

Nikhil KrishnamurthyNikhil Krishnamurthy

Senior PartnerSenior Partner

KLAW/ Krishnamurthy & Co.KLAW/ Krishnamurthy & Co.

Digital Technologies/ Digital Technologies/ UsesUses

TataSKY with DVR and Serial Link functionTataSKY with DVR and Serial Link function

CD/ DVD WriterCD/ DVD Writer

DVD DecrypterDVD Decrypter

Mp3 Ripper/ iTunesMp3 Ripper/ iTunes

Bittorrent for Broadcast ProgrammesBittorrent for Broadcast Programmes

YouTube/ Blog – Music PerformanceYouTube/ Blog – Music Performance

Copinger/ Amazon exampleCopinger/ Amazon example

OCROCR

Section 52 (1) (a)Section 52 (1) (a)Certain acts not to be infringement of Certain acts not to be infringement of copyright. -(1) The following acts copyright. -(1) The following acts shall not constitute an infringement shall not constitute an infringement of copyright, namely:of copyright, namely:

(a) a fair dealing with a literary, dramatic, (a) a fair dealing with a literary, dramatic, musical or artistic work [not being a musical or artistic work [not being a computer programme] for the purposes of-computer programme] for the purposes of-

(i) private use, including research;(i) private use, including research;

(ii) criticism or review, whether of that (ii) criticism or review, whether of that work or of any other workwork or of any other work

Copyright Act 1911 – Copyright Act 1911 – Section 2 (1) (i)Section 2 (1) (i)

““Any fair dealing” with “any work” Any fair dealing” with “any work” for the purposes of private study, for the purposes of private study, research, criticism, review, or research, criticism, review, or newspaper summarynewspaper summary

Present in our since 1912 – pre Present in our since 1912 – pre Article 9 (2)Article 9 (2)

De Minimis Non Curat De Minimis Non Curat LexLex

Section 14Section 14

– ““copyright means the exclusive right ... copyright means the exclusive right ... to do ...the ... acts in respect of a work to do ...the ... acts in respect of a work or any “substantial part” thereof”or any “substantial part” thereof”

– Therefore, if act not with respect to Therefore, if act not with respect to substantial part, no need to analyse if substantial part, no need to analyse if use amounts to fair dealing. use amounts to fair dealing.

What is Fair DealingWhat is Fair Dealing

Origins in “fair abridgement” (Guide Origins in “fair abridgement” (Guide Book cases)Book cases)

Not defined – Case by case basisNot defined – Case by case basis

US Copyright law – similar but US Copyright law – similar but broader concept of “fair use”broader concept of “fair use”

Test in Hubbard v. Test in Hubbard v. Vosper (1971) 1 All E.R. Vosper (1971) 1 All E.R.

10231023““It is impossible to define what is ‘fair dealing.’ It It is impossible to define what is ‘fair dealing.’ It must be a question of degree. You must consider must be a question of degree. You must consider first the number and extent of the quotations and first the number and extent of the quotations and extracts. Are they altogether too many and too long extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of to be fair? Then you must consider the use made of them. If they are used as a basis for comment, them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If criticism or review, that may be a fair dealing. If they are used to convey the same information as they are used to convey the same information as the author, for a rival purpose, that may be unfair. the author, for a rival purpose, that may be unfair. Next, you must consider the proportions….Next, you must consider the proportions…. Other Other considerations may come to mind also. considerations may come to mind also. (A)fter all is (A)fter all is said and done, it must be a matter of said and done, it must be a matter of impression….”.impression….”.

Elements in Section 107 Elements in Section 107 US Copyright ActUS Copyright Act

““(1) the purpose and character of the use, (1) the purpose and character of the use, including whether such use is of a including whether such use is of a commercial nature or is for nonprofit commercial nature or is for nonprofit educational purposes;educational purposes;

““(2) the nature of the copyrighted work;(2) the nature of the copyrighted work;

““(3) the amount and substantiality of the (3) the amount and substantiality of the portion used in relation to the copyrighted portion used in relation to the copyrighted work as a whole; andwork as a whole; and

““(4) the effect of the use upon the potential (4) the effect of the use upon the potential market for or value of the copyrighted work.market for or value of the copyrighted work.

Elements in HubbardElements in Hubbard1. Extent of quotations (amount and 1. Extent of quotations (amount and substantiality)substantiality)

2. Consider the use made (purpose and 2. Consider the use made (purpose and character)character)

3. Rival purpose (effect of the use – Civic 3. Rival purpose (effect of the use – Civic Chandran, Oxford v Narendera)Chandran, Oxford v Narendera)

4. Proportion of extract to comment (an offshoot 4. Proportion of extract to comment (an offshoot of 1 and 3)of 1 and 3)

5. Other considerations also (Nature of work ?)5. Other considerations also (Nature of work ?)

6. Overall impression6. Overall impression

Fair Use v Fair DealingFair Use v Fair DealingFair Use – Open EndedFair Use – Open Ended– Fair use, “including” such use by…is not Fair use, “including” such use by…is not

infringement.infringement.– For purposes “such as” criticism, For purposes “such as” criticism,

comment, news reporting…or researchcomment, news reporting…or research– In determining…fair use…factors shall In determining…fair use…factors shall

“include”“include”

Applies to all WorksApplies to all Works

Could be any Exclusive ActCould be any Exclusive Act

Fair Use v Fair DealingFair Use v Fair DealingFair DealingFair Dealing

Restricted to certain PurposesRestricted to certain Purposes– Private use (can whole work be copied ?)Private use (can whole work be copied ?)– Research (can whole work be copied ?)Research (can whole work be copied ?)– Criticism (Quotation - Transformative )Criticism (Quotation - Transformative )– Review (Quotation - Transformative – Chancellor Oxford v Review (Quotation - Transformative – Chancellor Oxford v

Narendera)Narendera)– Reporting current events (Informative)Reporting current events (Informative)

Restricted to certain WorksRestricted to certain Works– LiteraryLiterary– DramaticDramatic– MusicalMusical– ArtisticArtistic

But could be in relation to any Exclusive Act (but See S. 14)But could be in relation to any Exclusive Act (but See S. 14)

Article 9 (2) of BerneArticle 9 (2) of BerneAlong with the recognition of the Along with the recognition of the reproduction rightreproduction right

allowed Member Countries to permit the allowed Member Countries to permit the “reproduction of works”“reproduction of works”– 1. In certain special cases1. In certain special cases– 2. Provided such reproduction does not 2. Provided such reproduction does not

conflict with a normal exploitation of the conflict with a normal exploitation of the work, andwork, and

– 3. Does not unreasonably prejudice the 3. Does not unreasonably prejudice the legitimate interests of the authorlegitimate interests of the author

Article 13 of the TRIPS Article 13 of the TRIPS AgreementAgreement

Also adopts this “three-step” test Also adopts this “three-step” test and provides that Members shall and provides that Members shall confine limitations or exceptions to confine limitations or exceptions to “exclusive rights”“exclusive rights”– 1. To certain special cases1. To certain special cases– 2. Which do not conflict with a normal 2. Which do not conflict with a normal

exploitation of the work andexploitation of the work and– 3. Do not unreasonably prejudice the 3. Do not unreasonably prejudice the

legitimate interests of the right holderlegitimate interests of the right holder

Panel Decision – Art 13 Panel Decision – Art 13 TRIPSTRIPS

Certain “Special Cases”Certain “Special Cases”

CertainCertain– Scope of exception should be knownScope of exception should be known

SpecialSpecial– Exception narrow in quantitative and Exception narrow in quantitative and

qualitative sense – opposite of “normal qualitative sense – opposite of “normal case”case”

Panel DecisionPanel DecisionDoes Not Conflict with “Normal Does Not Conflict with “Normal Exploitation”Exploitation”

NormalNormal– Regular, usual, typical, conventional, but less Regular, usual, typical, conventional, but less

than full use (is, may)than full use (is, may)

ExploitationExploitationMaking use of to extract economic valueMaking use of to extract economic value

If the allowed use enters into economic If the allowed use enters into economic competition then conflictcompetition then conflict

Google v Perfect 10Google v Perfect 10

Panel DecisionPanel DecisionDoes not Unreasonably Prejudice Does not Unreasonably Prejudice Legitimate Interests of Right HolderLegitimate Interests of Right Holder

LegitimateLegitimate– Justifiable, sanctionedJustifiable, sanctioned

PrejudicePrejudice– Harm, injuryHarm, injury

Unreasonable PrejudiceUnreasonable Prejudice– If L or E causes unreasonable loss of If L or E causes unreasonable loss of

incomeincome

Art 13 TRIPS and BerneArt 13 TRIPS and BerneArticle 20 (Berne)Article 20 (Berne)Special Agreements Among Countries of Special Agreements Among Countries of the Unionthe Union

The Governments of the countries of the Union The Governments of the countries of the Union reserve the right to enter into special reserve the right to enter into special agreements among themselves, in so far as agreements among themselves, in so far as such agreements grant to authors more such agreements grant to authors more extensive rights than those granted by the extensive rights than those granted by the Convention, “Convention, “or contain other provisions not or contain other provisions not contrary to this Convention”contrary to this Convention”. The provisions . The provisions of existing agreements which satisfy these of existing agreements which satisfy these conditions shall remain applicable.conditions shall remain applicable.

Article 13Article 13Does Article 13 of TRIPS cover all the Does Article 13 of TRIPS cover all the exclusive rights under Berne, or only exclusive rights under Berne, or only the right of reproduction ? the right of reproduction ?

Does it clarify Berne and therefore Does it clarify Berne and therefore not contrary ?not contrary ?

Does it cover even specific L & Es Does it cover even specific L & Es under Berne ?under Berne ?

Special CasesSpecial CasesPrivate Use (earlier Private Study) – No mention in Private Use (earlier Private Study) – No mention in Berne – Protect Works and regulate re-use in a public Berne – Protect Works and regulate re-use in a public sphere ? Did Berne contemplate or seek to regulate sphere ? Did Berne contemplate or seek to regulate private uses ? Is the Three-Step Test even required ? private uses ? Is the Three-Step Test even required ? Sherlock Holmes example. Import/ download infringing Sherlock Holmes example. Import/ download infringing copy for private non-commercial use – due to non-copy for private non-commercial use – due to non-availability ?availability ?

Research – No mention in Berne – whether covers both Research – No mention in Berne – whether covers both private or commercial researchprivate or commercial research

Criticism, Review, Reporting Current Events (already Criticism, Review, Reporting Current Events (already covered under Berne Arts. 10 (1) and 10covered under Berne Arts. 10 (1) and 10bisbis (2) (2)

Special CasesSpecial CasesNon-publicationNon-publication

– Works out of circulationWorks out of circulation– Works not publishedWorks not published– Delayed-publicationDelayed-publication

Policy consideration – Access to Works Policy consideration – Access to Works and Speed of Availabilityand Speed of Availability

Special CasesSpecial CasesBack-up against loss/ damage (S. 52 (1) Back-up against loss/ damage (S. 52 (1) (aa) (ii)(aa) (ii)

Replace lost/ damaged workReplace lost/ damaged work

Space Shift (CD to CD-R) (S. 52 (1) (ad))Space Shift (CD to CD-R) (S. 52 (1) (ad))

Time Shift (recording of a broadcast) (S. Time Shift (recording of a broadcast) (S. 39 (a) and Proviso to S. 39-A)) [UK 39 (a) and Proviso to S. 39-A)) [UK allows this]allows this]

Format Shift (OCR of a book/ DVD to Format Shift (OCR of a book/ DVD to DivX, CD to mp3) [Gowers Review]DivX, CD to mp3) [Gowers Review]

Special CasesSpecial CasesSoftware - Termination of Support Software - Termination of Support

– Private use – uncompensatedPrivate use – uncompensated– Commercial use – non-voluntary licenseCommercial use – non-voluntary license

For determining suitability of applicationFor determining suitability of application

RecommendationsRecommendationsSection 52 (1) (a) – Berne Arts. 9, 10, Section 52 (1) (a) – Berne Arts. 9, 10, TRIPS Art. 13TRIPS Art. 13– All WorksAll Works– Fair Dealing clarified to include back-up, Fair Dealing clarified to include back-up,

replacement, space/ time/ format-shiftreplacement, space/ time/ format-shift– Reproduction of Works that are not published/ Reproduction of Works that are not published/

delayed in publication/ out of circulation for delayed in publication/ out of circulation for private use and researchprivate use and research

– Include Use of Unsupported Software Include Use of Unsupported Software (uncompensated for Pvt. Use)(uncompensated for Pvt. Use)

– Satire, Parody, Pastiche (/)Satire, Parody, Pastiche (/)

RecommendationsRecommendationsSection 51 (1) (b) – Berne Art. 10Section 51 (1) (b) – Berne Art. 10bisbis (2) – Reporting Current Events(2) – Reporting Current Events– All WorksAll Works– Change broadcast to CTPChange broadcast to CTP– Where applicable, reuse of Work may be Where applicable, reuse of Work may be

of a lesser resolution (eg. Photo, film)of a lesser resolution (eg. Photo, film)– Inclusion of amateur mediaInclusion of amateur media

RecommendationsRecommendationsSection 52 (1) (f) – Berne Art. 10 (1) Section 52 (1) (f) – Berne Art. 10 (1) (Reading or recitation)(Reading or recitation)– Extend permitted act to CTP of the Extend permitted act to CTP of the

reading (Aus)reading (Aus)– Extend to musical works (SA) {YouTube]Extend to musical works (SA) {YouTube]

RecommendationsRecommendationsSection 52 (1) (m) – Berne Art. 10Section 52 (1) (m) – Berne Art. 10bisbis (1) – Reproduction of articles(1) – Reproduction of articles– All subjects (?) – violate Berne ?All subjects (?) – violate Berne ?– Include CTP due to digital environmentInclude CTP due to digital environment– Allow owner of copyright to reserve right Allow owner of copyright to reserve right

of reproduction/ CTPof reproduction/ CTP

RecommendationsRecommendationsSection 52 (1) (n) – Berne Art 2Section 52 (1) (n) – Berne Art 2bisbis (2) (2) – Report of a Lecture– Report of a Lecture– Include in Proviso to Section 52 (1) – Include in Proviso to Section 52 (1) –

identify author and workidentify author and work– Include amateur media/ similar sourcesInclude amateur media/ similar sources

ConclusionConclusion– Whether clarificatory/ new “fair dealing” Whether clarificatory/ new “fair dealing”

provisions for “private use” require to provisions for “private use” require to satisfy the triple test at all ?satisfy the triple test at all ?

– Assuming, for abundant caution, that Assuming, for abundant caution, that they do, endeavoured to set out special they do, endeavoured to set out special cases cases

– Survey of copyright lawsSurvey of copyright laws– Introduce “homestyle” exemptionIntroduce “homestyle” exemption

Questions?Questions?

Thank You.Thank You.