NATIONAL LAW UNIVERSITY ODISHA

INTELLECTUAL PROPERTY RIGHTS

PROJECT TOPIC: FAIR DEALING

Submitted By- Submitted To-

Rajan Kr. Meena Amrendra Ajit
(BA.LL.B./039) Assistant Professor(Law)
 TABLE OF CONTENT

Research Methodology ............................................................................................ 4

Introduction............................................................................................................. 5
Chapter 1: Fundamentals of Fair dealing .............................................................. 7
Analysis of section 52: ........................................................................................... 7
Fair Use in America ............................................................................................... 8
Fair Dealing in India .............................................................................................. 8
Chapter 2: Advancement in Fair Dealing............................................................. 12
INTERNATIONAL CONVENTIONS AND TREATY ........................................ 12
AMENDMENTS ................................................................................................. 13
Chapter3: Judicial response with respect to Fair Dealing .................................. 14
Conclusion ............................................................................................................. 17
Bibliography .......................................................................................................... 18

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 ACKNOWLEDGEMENT

I express my deep sense of obligation and gratitude to Asst. Prof. Amrendra Ajit, for
his helpful guidance and constant encouragement in the preparation of this project.

The documentation has actually helped me in enriching my knowledge on the subject.

The topic along with relevant sections which were discussed at deep lengths in the
class helped me in making this project.

I feel highly privileged to work under the able guidance of Sir and sincerely
acknowledge his efforts in directly and indirectly contributing to this piece of work.

Thank you Ajit Sir!

- Rajan Meena

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 RESEARCH METHODOLOGY

AIM AND OBJECTIVE:

The main ambition of writing this paper is understand the concept of fair dealing in
reference to India as well other countries like USA under copyright law and also
analyses the conflicting legal provision with existing conventions like TRIPs, Berne
Convention and WTC etc.

RESEARCH PROBLEM:

Whether the doctrine of fair dealing as defined under section 52(1) of copyright act
is misused or not?

RESEARCH QUESTIONS:

- What is meaning of fair dealing?

- What kind of work can be claim for copyright?
- What is interpretation done by courts in various cases?

HYPOTHESIS:

Concept of fair dealing has taken by copyright law of USA known as fair use.

RESEARCH METHODOLOGY:

In this project I was primarily relied on the secondary sources like books of copyright
those available in our Library, journals, internet sources and committee reports etc.

SCOPE AND LIMITATION:

The scope of this project was to analyses the doctrine of fair dealing in India with
comparing study of other country as well.

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 INTRODUCTION

Fair dealing is an essential concept in THE COPYRIGHT ACT, 1957. Fair dealing
doctrine is very important for social bargain thought it a society can balance or
certain limits on individual property rights to guarantee the benefits of vision to a
alive culture in other word the purpose of this concept solely to take care of both
authors right as well public interest.

The word fair use or fair dealing is not defined under Copyright Act of 1957 or
anywhere else. Few unproved exercises of copyrighted works for some important
specified reasons are only permissible by law & is acknowledged as a non-
encroachment of that specific copyrighted work.1 The main logic behind this concept
of unauthorized use is the creation of a number of the work handing over of copyright
for the reasons, for instance, private study, research, answers, education, monitoring,
new relationships, & so on. These unauthorized use are defined as fair dealing.2
Therefore, fair dealing is a law that permits duplication of a work that already
copyrighted or protected without the authorization of the owner of copyrighted work.3
Copyright only awarded to the creator of an inventive work that gives him an
exclusive right over its work to use or to distribute. But Fair dealing is one of the
exception of the exclusive right those granted by a copyright to the author. It is
primarily a British concept which is dissimilarity to the concept of American law
known as fair dealing and day by day its becoming more flexible. These impressions
have been acknowledged in both the Berne Convention and the TRIPS Agreement.
This law allows people to reproduction or utilize the copyrighted work, which
however for this exception, would have come as infringement.4 The previous
authorization of the creator is not mandatory. This doctrine become known as an fair
one5 that provides an answer to the person who claim that copyright, without being a
patent, its also not an absolute right.6Because the purpose of Fair dealing is to

1
T. R. Srinivasa Iyengar, THE COPYRIGHT ACT, 1957, Law Book Company (6th Ed., 1977).
2
Id.
3
Id.
4
S.K. Dutt v. Law Book Co and Ors., AIR 1954 All 570
5
Harper & Row Publishers v. Nation Enterprises, 471 US 539
6
Giuseppina D Agostino, Healing Fair Dealing? A Comparative Copyright Analysis Of Canadas Fair Dealing
To UK Fair Dealing And Fair Use, McGill Law Journal, Vol. 53, (months or time incomplete)(2008), p. 309

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 counterbalances the rights of authors or creators with public interests. It is like a
middle way thought which right holders & users (Public) can be uses that idea. Fair
dealing, which is available in UK copyright rule is very qualified and holds an
complete list of exceptions those have been mentioned in the CDPA, 1988. Those
exceptions are: -
a) research or private study
b) reporting current events
c) criticism or review
In reference to India, this is explained under Section 52 of the Indian Copyright Act,
1957 that was broadly borrowed by the UK Copyright Law and has same types of
severity. The specify purposes has been characteristically inferred as complete,
inflexible and assured ever since any use was not declining strictly inside an specified
ground is considered an infringement.7 There is no one single formula to deal with
these kinds cases and each and every case depends on the facts and circumstances.8
Lord Denning M.R., in deciding Hubbard v. Vosper, famously said that:
It is not possible to describe what is fair dealing. It should be a issue of degree.
You have to think first the extent and number of the quotation and extracts. Whether
they overall too many plus too long to take them fair? afterwards you have to think
about the utilize made by them...and also other thoughts can come in mind. But, in the
end of all it should be subject of impression. 9

But doctrine of fair dealing that is an important concept of copyright law has not
been developed in India; till now it only founded in its shaping stage. There is a
certain requirement for an examination on this approach, whether liberal or strict
towards fair dealing. Main problem that was faced with it respect to legislature and
Indian courts not been explored fully the extent of it even it is much needed
exception. A restrictive move places towards the efficiency and authority of this
exception. After as much time not even today Fair dealing has not defined anywhere
in the Act. so, we require a more elaborate method alike USA. In this project, the
judicial statement on fair dealing will confirm how it is step by step developing and
what all requirements to be promoted in its scope.

7
Blackwood and Sons Ltd and Others v. A.N. Parasuraman and Others, AIR 1959 Mad 410
8
ESPN Star Sports v. Global Broadcast News Ltd and Ors., 2008 (36) PTC 492 (Del) (MIPR 2008 (2) 75)
9
Hubbard v. Vosper CA 1971 [1972] 2 WLR 389

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 CHAPTER 1: FUNDAMENTALS OF FAIR DEALING

ANALYSIS OF SECTION 52:

Section 52 (1) some acts are not to infringement of copyright. The subsequent acts
shall not amount to an infringement of copyright, which are:-
1. A fair dealing with a dramatic, literary, artistic or musical work for the purposes of-
a) Review or criticism , whether of that work or of any other work
b) private study or research;

2. A fair dealing with a dramatic, literary, artistic or musical work for the purposes of
reporting current events-
a) by means of photographs or by broadcast or in a cinematograph film
b) In a magazine, newspaper or similar journal.

Enlightenment: This clause not include the publication of speeches delivered in public
under scope fair dealing.

Section 52(2): The requirements of sub- section (1) shall be relevant to the doing of
any act in reference to the translation of a dramatic , literary or musical work or the
adaptation of dramatic, literary, artistic or musical work as they be valid in relation to
the work itself.

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 FAIR USE IN AMERICA

It is defined under Section 107 of the US Copyright Act, 1976 in four factors for
determining fair use:
1. Nature of copyrighted work
2. Substantiality and Amount of the portion used
3. Character and Purpose of work
4. Effect on market value of the original

U.S.A. was adopted this doctrine in 1976 for fast technological advancement. Courts
must as usual adapt this doctrine on a case-by-case basis.10 Fair use is an extra-legal use
of copyright material which is reasonable and expected.11 This concept is now being
imported by many countries. Because of its natural logical reasoning and superior
protection scope.

FAIR DEALING IN INDIA

In India only three fields (private use, research, criticism and review) are accepted
under section 52 for fair dealing:
1. PRIVATE USE:

In India, after 1994 amendment the concept of fair dealing was came in picture first
time for private use including research but it was only limed to the private research
only not for commercial research.12
In case of Syndicate Press of University of Cambridge v. Kasturi Lal & Sons,13 the
Delhi High Court found that:
Law must support research, enterprise and scholarship although such support
should not give at the cost of the rights of a person to defend against the misuse of
what is really a creation of his intelligence and creativity. The law encourages
improvement and innovation but not plagiarism. It is a form of safeguard on the name
10
Lewis Galoob Toys v. Nintendo Inc., 964 F.2d 965
11
T.R.S. Iyengar, The Copyright Act, 1957, Universal Law Publishing Co., New Delhi, 2001, p.52
12
V.K. Ahuja, Intellectual Property Rights in India, LexisNexis Butterworths Wadhwa, New Delhi, 2012, p. 257
13
Syndicate Press of University of Cambridge v. Kasturi Lal & Sons (2006) 32 PTC 487 (Del)

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of copyright and not an obstacle before scholarship. Stealing parts of the unique work
and showing it as own creation be able to in no way be expressed as any type of bona
fide activity or scheme. Scholarship and Research are with no trouble can be
discriminated from plagiarism and imitation.14
In case of Blackwood v. Parasuraman,15 principles were laid down for "private use".
Fair dealing was used for the purpose of private study only. The Respondent was
published some of guides of plaintiffs books but even after it, the Court didnt
accepted and held that private study also covers coping of a book by the student till he
does for own use, or not circulation this copy to anyone even he should not be
circulate it to his classmates. This case was given a restricted meaning of private use.
Similar to this a another case Syndicate of Press University of Cambridge v. Kasturi
Lal,16 also came but the judgement of this case was deferent to this case and held that
infringement, not falling for the reason that Section 52(1)(h) only permits
reproduction only for answering questions during examination only not as a whole.
In case of University of London Press Ltd. v. University Tutorial Press Ltd.17
Peterson J. assured that:
It couldnt be challenged merely that republication of a exclusive righted work was a
fair dealing as it was wished-for use of private study; neither if a creator produced
a volume of questions only for student use, might a different person with impunity
republish the book by way of answers to the questions. Nor case will come in the
explanation of fair dealing.18

1. CRITICISM OR REVIEW:

This defence only available for review and criticism when the act is escorted by an
acknowledgement as needed under Section 52 (1). The sole purpose of this section
specially this provision to protect the interest of a reviewer who wants give his views
or opinion or comments on the copyrighted work so he use extracts from that
particular work. The first case in which concept of Criticism or Review was discussed

14
Syndicate Press of University of Cambridge v. Kasturi Lal & Sons
15
Supra note 4.
16
Supra note 28.
17
University of London Press Ltd v. University Tutorial Press Ltd, [1916] 2 Ch 601
18
University of London Press Ltd. v. University Tutorial Press Ltd

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was the case of Hubbard v. Vosper19 which had discussed already but principle of this
case also being followed in the case of Associated Newspapers Group v. News Group
Newspapers Ltd.20 In which where held that its not at all fair to use copyright
material by a competitor in the trade for its own profit. The motive should be same in
all cases of making of a copy from copyrighted work which should be for the relevant
question not anything else. For the dealing should be fair in criticism, or must be use
for criticism or review purpose only not for any the purpose it dont even accepted if
happened incidental. It is permitted to extract from other equivalent works for the
reason of exemplifying that criticism.21
In Syndicate of Press of University of Cambridge v. Kasturi Lal & Sons22 a very
important precedent was laid down by the Delhi High Court in reference to the fair
dealing especially in case of criticism:
A criticism, guide acknowledges or reviews of the original authors of the work that
they dealing with. A review could be summarised on the original work and also
represent it for examination to a third personality so that such personality could get
an idea regarding the work. A criticism could consider on the merits as well demerits
of that work. A conduct could seek to allow students of the original work to healthier
identify with it by the opinion of examinations. Literally lifting of the wording to the
level of copying the full set of use and the key to such use is able to in no way be
phrased as a criticism, review, or a direct ( guide) to the original work.
In the case of Civic Chandran v. Ammini Amma,23 court held that even the copying is
important it dont amount to infringement till it is meant for ether comment or
criticism. Review or Criticism shouldnt be associated with the literary style only, but
may be for the philosophy, doctrine, events or ideas expressed by the author.
It is not essential that a criticism is done for the whole work it may be selected for a
single aspect is also able of amounting to fair dealing.24
Spoofs also fall within the scope of criticism.25 Because they are a funny type of
social comments, and at the time of deciding whether a spoofs work amounts to a

19 [1972] 2 Q.B. 84
20AssociatedNewspapers Group v. News Group Newspapers Ltd, R.P.C. (1986) 103 (19): p. 515-520
21Supra note 27 at 259.
22 2006 (32) PTC 487 Del
23Supra note 20.
24 Time Warner Entertainment Ltd v. Channel 4 Television Corporation Plc, [1994] E.M.L.R. 1
25 Campbell v. Acuff-Rose Music, 114 S. Ct.(SC) 1164

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valid spoof, it must be explained that that much part of the original movie he taken
was essential for criticism or reviewing those particular scenes of movie.26
In U.K. this issue is yet to be addressed directly by the Courts where it has been
accepted as a possibility.27 But in the U.S.A. this issue is clearly comes under the falls
under the scope of fair use. But in case India, the attitude is not so clear the main
reason of it is that rarely any Indian director made spoof so cases relating to it not
arises before the courts.

2. REPORTING CURRENT EVENTS:

Fair dealing stuff for the purpose of reporting current events either in broadcast
media or print is come in fair dealing or in other word it will be an exception which is
defined under Section 52 (1) (b) of the Copyright Act 1957 because right to freedom
of speech and expression also includes right to know.28In the leading case Ashdown v.
Telegraph Group,29 it held that the scope of reporting current events only limed to
independent event only in case in which a newspaper in printed parts of a top secret
diary minute of a political assembly in this case fair dealing is not to be granted.
It was declined for the reason that the scope of reproduction prepared for the
Respondents commercial welfare. The actions must be present ones and not history.
It has to be only for editorials either.
The Berne Convention has defined certain important provisions which deal with
reporting of current events like Article 2 (8) of this Convention prohibited protection
to news of the day. The same thing also defined in the article 10 of Berne
Convention.

26 Woody Allen v. National Video, (1985) 610 F Supp. 1612

27 Williamson Music v. The Pearson Partnership Ltd [1987] F.S.R. 97
28 Reliance Petrochemicals v. Indian Express Newspapers, (1988) 4 SCC 592
29
Supra note 11.

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 CHAPTER 2: ADVANCEMENT IN FAIR DEALING

The main purpose of allowing an infringing use of the copyrighted work is an

exception of fair dealing is that could bring regarding greater public advantage than
its rejection.30 So, the public be able to use the work that already copyrighted fairly
without involving the authorization or authorization by the copyright owner. And it
has to be balance between two competing and equally major interests i.e. the
monopoly that the authors passes that take actions like an motivation to generate and
such a monopoly should not be come in the means of innovative talent of others or the
privileges of the people to construct upon earlier works.31 The reproduction of a few
part of the work that copyrighted is essential for the reason of private study, research,
news reporting, criticism, review, teaching, etc. suppose if fair dealing is not
authorized subsequently the public will become inactive like there will be no
safeguard for the defensible spreading of information. Than who will look after the
rights of the common people if merely the rights of the owner of copyrighted work
only to be protected?

INTERNATIONAL CONVENTIONS AND TREATY

BERNE CONVENTION:
In this convection mainly three step test was formulated for restriction and exception
for reproduction (copy).
a. It should not inconsistence with the normal exploitation of the work
b. It should be granted in only in special cases
c. It should not unfairly prejudice the lawful interest of the author

30 Stanford Law Review 51, 1633 (1999)

31
Kartar Singh v. Ladha Singh, A.I.R 1934 Lah. 777; Eastern Book Co. v. Navin Desai, A.I.R. 2001
Del. 185

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 TRIPS AGREEMENT:
In this convention only three step test that explained in berne convention extended to
all individual or exclusive rights granted by copyright.

WIPO COPYRIGHT TREATY:

a. Use for reporting current events -use for judicial procedure.
b. Use for the sole reason for teaching and research -quotation for review or criticism.
c. Use for visually and hearing impaired people.

AMENDMENTS

Since independence section 52 has amendment four times.

1. The first development of section 52 was happened in 1983 amendment in which
section 52(1) (b) (ii) was added.
2. After 11 years this amendment was again modified in copyright Amendment Act,
1994.
3. And in 1999 third amendment was came in which slight changes taken place.
4. And last and latest amendment that has came in 2012 and in this amendment some
very important changes happen those are:-
i. For specification a new clause names as clause (1) (a) added in section 52. Which
says if storages of electronic medium are done for a specific reason that storage may
be incidental storage in a computer program is not an infringement of copyright?
ii. In clause (b) and (c) specified was done for fair dealing for use disabled persons.

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 CHAPTER3: JUDICIAL RESPONSE WITH RESPECT TO FAIR DEALING

CIVIC CHANDRAN V. AMMINI AMMA:

This is a case regarding a porody movie in which artistic work of Civic Chandran was
challenged the work that was in question was a drama story that was written by
famous dramatist Thoppil Bhasi. Mr. Bhasi in this drama wrought about the political
or social issue of that period specially individual political party Communist Party of
India before its divide was supported in this drama. So its pretty clear that the drama
will support the political party in assembly election that was going on that time (1957)
in Kerala.
So after victory of Communist Party of India in assembly elections the counter
drama was wrriten by another famous dramatist Civic Chandran which was made it
for the a very burning massage regarding the success of this particular political party
and who they had forgotten the interest of depressed classes who were also
participated in their success but main thing that happen this massage was conveyed by
help of using some parts including the characters and dialogues of earlier drama of
famous dramatist Thoppil Bhasi .
Held: In this court said that even the new drama has taken some content from the
original drama or even the taken the characters and dialogues as well but not exciding
the limits that requited for the criticism of that drama or in other word they only
portion of original drama taken which was really needed for showing common public
who the party has failed in achieving the main objects. So it is for valid criticism and
constituted fair dealing so, it is not infringement of original copyrighted work.
INDIA TV INDEPENDENT NEWS SERVICES PVT. LTD. V. YASHRAJ FILMS PRIVATE
32
LIMITED & SUPER CASSETTES LTD.
This was one of the interesting case which deals which fair dealing. Interesting
because in this case a basing fault of section 52 was came in picture that is supposed
to amended that time when the section was introduced first time in this case mainly

32
India TV Independent News Services Pvt. Ltd. v. Yashraj Films Private Limited & Super Cassettes Ltd, FAO
(OS) 584/2011

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what happen in a singing competition participates singing songs of that particular
movies song that shown on the screen. In this case Yashraj Films claimed for the
infringement of copyrighted work of them.
Held: firstly in this case Delhi High Court simply applied the principle that was given
in the section 52 and give judgment to restraining the channel by broadcasting and
publication of the content of the singing programme. After this common people stated
only a simple question to the court that weather it is not unethical to restraining a
singer by singing a song his song in front of people only because he dont has legal
rights over that song or other person has rights over that particular song. After some
time Division Bench of Delhi High court was realised that previews decision was not
right so they allowed broadcasting of channel by removing restrain of channel.

RUPENDRA KASHYAP V. JIWAN PUBLISHING HOUSE:33

In this case a plaintiff was incorporated in circulated question papers of the CBSEs
examinations, which defendant fights to grip a preventive sanction, and Court
explicitly said that in India statute is representing the copyright law that havent look
after the protection of open investment.
An infringement of copyright under section 52 not only being permissible on the basis
of that in the open interest to infringe a copyright it is declared to be elsewhere.34

DU PHOTOCOPYING CASE:
In this important case till now judgment is not delivered by court the case is
continuously proceedings are going on between photocopying shops that is attached
with DU and leading publishers of content. Facts of this case is that the plaintiff a
photocopier use to do materials for university so university can make this material
available to students of the DU student so as usual the copier also copy of book of
plaintiff and give this copy to students of DU only but the publisher of company filed
a case against Photocopy Service and DU for infringement for their copyrighted
publication (book).
In this case merely two issues were discussed those are:

33
Rupendra Kashyap v. Jiwan Publishing House, PTC 439 Del. (1996).
34
Id.

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1. Is the copying done for allowable purpose?
2. Is it the dealing fair?

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 CONCLUSION

On the broad study of this subject matter I can easily say that such inflexible move
towards the fair dealing ought not be allowed because social and technical changes in
India. It is more than 50 years to copyright law was introduced in Indian but even it
intellectual property rights (IPR) not able to a good shape. So dealing such case strictly
only bases of statute doesnt leave any free space to judicial vision for judging such
cases fairly. I understand that freedom of speech and expression also includes protecting
own work from other but these both aspect should be balance properly. I am not saying
that the provision relating to fair dealing remove completely but simply saying that
doctrine of fair dealing should be flexible and the doctrine of Fair dealing ought be
approved for functions of statute also. If we compare our model to USA model, its
pretty sure that the USA Model is more effective in way of balancing the interest of
owner and public. Even in their system they has problem but they has better system then
our system. The main reason of it is that in India the judicial interpretation didnt taken
place so much or for a effective system it is important because legislation when making
law thought about all possible situation but the errors of law can only be remove after
practice that leads to interpretation and that bring a effective model so it undertake
disputes in a better way. Allowance of Judicial discretion is important because it help in
staying away from any misuse that may be possible by the flexibility and also to have
room for technological changes as well. It would be better if in place of implementing
the doctrine of fair use completely , we implemented an way for growth for fair dealing
also in form of such as approach. And we also following the approach of such as in
deciding deferent-deferent judgements for judging fair dealing , then why we not able to
include these approaches in for of provisions in form of clause. Since we are already
referring to parameters laid down in different judgements to judge fair dealing, why not
incorporate them into the statute and simultaneously introduce a such as clause in the
provision. Because both fair use and fair dealing is base on separate-separate
ideologies respectively; utilitarian principles and natural law theory. So in the views of
authors adoption of fair dealing is better if it is take some concepts of fair use also.
Now in present time its on the hands of legislators to analyse and approach in best way
that can be possible so it provides its best interest to owners as well users.

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 BIBLIOGRAPHY

BOOKS:

1. T. R. Srinivasa Iyengar, THE COPYRIGHT ACT, 1957, Law Book Company (6th
Ed., 1977).

2. V. K. Ahuja, INTELLECTUAL PROPERTY LAW IN INDIA, Lexis-Nexis India

(2009).
3. Raman Mittal, LICENCING INTELLECTUAL PROPERTY: LAW &
MANAGEMENT, Satyam Law International (2011).

ARTICLES:
http://www.slideshare.net/altacitglobal/fair-use-of-copyright

http://www.ijlt.in/archive/volume7/4_Matthan_&_Narendran.pdf

http://en.wikipedia.org/wiki/Copyright_law_of_India

http://nopr.niscair.res.in/bitstream/123456789/6706/1/JIPR%2014(6)%20523-531.pdf

http://www.mondaq.com/india/x/299252/Copyright/Fair+Dealing+In+Copyrights+Is+
The+Indian+Law+Competent+Enough+To+Meet+The+Current+Challenges

STATUTE:
The Copyright Act , 1957

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