EXCEPTIONS TO COPYRIGHT INFRINGEMENT: THE LAW AND JUSTIFICATION

The Author, Charuprita Guru is a 3rd year, BA LLB (Hons.) student at  Alliance University, Bangalore. She is currently interning with LatestLaws.com. 

AN OVERVIEW OF COPYRIGHT INFRINGEMENT - THE PATH TO ANOMALY:

The Copyright Act, 1957 manifests two facets to its essence of prime establishment. One being the exclusion of others from gainfully exploiting a work with originality expressed by the owner in order to streamline the fruits of his labour to be attained by him without reasonable hindrances and the other being inclusion of public in this domain who derive certain rights in the form of permitted uses in the work, as mentioned in Section 52 of the Act. This dual dimension of objectivisation of the Act leads to notable exceptions to infringement too. Defences to validate or negate infringement are available to suit circumstantially and  according to the nature of the case.

From the utterance of the Act, it is evident that if a user of the work uses any of the exclusive rights as against the owner of the copyright, without the prior permission of the Registrar of Copyright, he shall be deemed to have infringed on the owner’s undivided interests. In a nutshell, infringement of copyright is an invasion into a private realm owned and occupied by the owner of the copyright.

Under the Copyright Act, 1957, the essence of Section 51 deliberates that a work is said to be infringed if an act is contravening the conditions of the license so granted or the act is disrupting the exclusive rights of the copyright holder or maliciously communicating the work to the public. The language of the law therefore leaves its interpreters with perspectives on the intricate understanding of infringement and definite exceptions to it through defences and judicious reasoning.

EXCEPTIONS TO COPYRIGHT INFRINGEMENT:

Copyright allows and disallows explicit acts of discovery. Philosophically, all versions are not photocopies. Value addition plays a very significant role in determining the uniqueness in the work. In essence, the world is all about building up or developing upon existent factors of life. But the line is drawn when the violation of non judicious use

creeps in. Thus, legally, the exceptions to copyright infringement exist to strike a balance between the interests of the copyright owner and the good of the society at large. These exceptions broadly are classified into common law and statutory exceptions.

Common law exceptions are perceived as denial of works whose sustenance affects or is contrary to the public interests. Statutory exceptions are more specific and explain the permissible uses of a copyrighted work under the title ‘permitted uses’ which is crafted in Section 52 of the Copyright Act.

Social standards and public interests are dynamic. In the due course of time, these ideals have remained non static and variant. Hence, the nature of copyright protection also has evolved alongside the divergence. It is significantly apparent in the emergence of exceptions to copyright infringement, while not to be looked thought the lens of evolution but the variety of cases and the pertinent circumstances.

It is essential to list the variety of situations that were prevalent in the categorisation into infringement and non infringement that eventually leads to strong legal defences against charges of copyright infringement. Permitted acts in relation to copyright include fair dealing of the work and face to face or virtual instruction based learning and enlightenment. These exceptions primarily emerged through the educators who were particular in propagating knowledge that was once discovered by scholars, in order to pass on the legacy of awareness, while fair dealing branched out another area called ‘parodising’ the work through satirical and metaphorical expressions to open the blind spots of the public, thus delimiting the copyright protection arena.

DEFENCES PROVING EXCEPTIONAL:

FAIR USE of the work-

Use of the defence of fair use of the work requires screening through four substantial factors determining the fairness of the reproduction which was established as follows:

• The purpose and character of the use
• The nature of copyrighted work
• Substantial amount of original work used up and
• Value of the work in the public domain

The four factor test must be considered to assess whether an action of exploitation by the claimant falls within the ambit of fair use or not. These factors facilitate the examination of the work by checking on whether it adds new expression or meaning to the original work, or whether it merely is a copy of the related original work. Courts typically focus on whether the use is transformative. The articulation of this exception to defend a subsequent work’s authenticity is relevant while considering the faith determination behind the work. The technicalities of this doctrine rely on the true intention of the intending copyright claimant. This focuses the correctness of the use of fair use as a defence to crawl out of the infringement allegation. Credits to respective sources while having to quote them into another work to fulfil analysis criteria of the current paper is an essential requirement, despite the fact that it is claimable under the doctrine of fair use when alleged as an infringed copyrighted work. The legitimacy of the earlier work from which certain portions have been quoted or referred is equally important to the quantum of replication in the subsequent work. Through such an approach, copyright owners’ rights are balanced. Branches to fair use constitute uses like referencing for research purposes, reviewing or criticising a piece of established work, reporting contemporary events through print media, through cinematographic works or photographs for broadcasting, reproducing   the judicial proceeding or of a report of the judicial proceeding, publishing or reproducing any musical, literary, dramatic or artistic work, or any other work of subsequent creation backed by bona fide intentions for the sake of genuine purposes by the license or consent of the owner of the work.

A landmark or benchmark judgment is often resorted to as a precedent to ascertain the amplitude of ‘fair’ in the concept of dealing is the case of Kartar Singh Giani v. Ladha Singh, wherein the High court held that there must be an intention to constitute unfairness or to compete or earn profits unlawfully and the nature of the motive ought to be backed by unfair intentions and otherwise would be held fair.

PARODY-

Parody is the permitted ridicule that is done to criticise a work’s lacuna/ae or satirise the content to reveal a truth or message, though not to hurt the intentions and expression of the original work’s copyright holder. This expression falls under the confines of fair use defence.

Law, in the view of streamlining exceptions to copyright infringement, ascertains common use of fair dealing defence in adjudicating or clearing off allegations against the person charged with infringement. The exception to infringement of copyright is used by persons to protect themselves and the originality of work, its authenticity and to encourage future endeavours involving creativity and innovation.

EXCEPTIONS IN ESSENCE:

Flexibility from copyright infringement is exercised by undergoing the three step test convened by the Berne Convention which is as follows:

A limitation or exception from copyright infringement is permissible only if it:

• Comes under the purview of special cases.
• Does not intervene the reasonable standard of exploitation within accepted bounds and
• Does not arbitrarily predilect the legitimate interests of the author.

A broad overview of the exception operated under the different types of works are as follows:

Literary works

The precision and predictability in the produced version decide the degree of exception to infringement exercisable. As long as the user stays within the prescribed limits, he stays out of infringement claims. A safe harbour can only be resorted only if the duplication of the original work is done within permissible limits or thresholds.

Sound Recordings and Musical Compositions

The cumulative amount of reproduction of a sound recording should not exceed the safe harbour which is the licit limit for reproduction. Protected materials can only be recreated or used further with permission or license. The selection and arrangement of the musical composition for the sake of sampling can also be done only within sanctioned limits of reproduction or recreation or reference.

Audiovisual works

The nature of medium used to propagate or market the original work restricts the reproduction and thereby ascertains permissible limits of exercisable exceptions to copyright infringement. Allowed limit for competition amongst derivative works ought to come under the purview of exceptions to copyright infringement of the audiovisual work.