May 6, 2021

Copyright Infringement and its Exceptions

Copyright

When Copyright is infringed

Section 51(b) (iv) states: “Copyright in a work shall be deemed to be infringed when:

  1. any person, without a license granted by the owner of the Copyright or the Registrar of Copyrights under this Act, or in violation of the conditions of a license so granted or of any conditions imposed by a competent authority under this Act-
  2. Does anything, the exclusive right to which is conferred on the owner of the Copyright by this Act.
  • When any person-
  • Make for hire for sale, sells or lets for hire, or trade displays or offers for sale or hire
  • Distributes either for commercial purposes or in such a way as to harm the owner of the copyright.
  • By way of public trade shows.
  • Imports into India of any infringing copies of the work (omitted by Act 65 of 1984, S.3 (effective 8-10-1984))

 

The Doctrine of Fair Dealing

The word “fair dealing” was not set out in the Act. The law permits a person to use copyright work in limited numbers without the permission of the owner. Fair trade is an exception and limitation to the exclusive right granted to the author of a creative piece by copyright law. It enables copyrighted work to be reproduced or utilized in a way which, however, would have amounted to a violation of copyright for the exception. It was thus excluded from copyright law’s misfortune.

Initially the defence of “fair dealing” emerged as a doctrine of equity allowing certain copyright-proof works to be used, which would otherwise have been prohibited and would have constituted a violation of copyright. The main idea behind this doctrine is that the creativity growth whose progress the law has been designed should not be stagnated. Over time, India has undergone enormous improvements in technology, but still has a very narrow scope of fair trade law. However, if we look westward, continuous progress has been made in this field through innovative interpretations and legal activism.

 

Explanation of Fair Dealing

This would be entirely up to the facts and circumstances of a particular case whether a person uses the copyright material “fairly.” There is a narrow line between ‘fair trade’ and violation. In India, the number of words or phrases that can be used without authorisation by a person is not defined by specific guidelines. This can only be determined by the Court using basic common sense. However, it can be said that the extracted portion should not affect the Author’s significant interest.

Fair trade is a considerable constraint of the copyright owner’s exclusive right. On a number of occasions, the courts have interpreted it by assessing the financial impact on the proprietor. In the absence of significant economic impact, the use can be a fair deal. The fairness of the deal depends on the four factors that follow:

  • The purpose of the application
  • The work’s nature
  • The quantity of work used
  • The impact of the work on the original

We must all have read and heard about the infringement of copyright, but this does not apply in any case as such. The exception to Section 52 of the Copyright Act of 1957 which is read as, “Certain acts not infringed on copyright.” However, since Section 52 is very extensive, only in few parts distributed among many articles will we write about the same. We’ll write about Exception in Fair Dealing with any work in this special article.”

Section 52(1) the following act shall not constitute an infringement of copyright, namely, —

fair dealing with any work, not being a computer programme, for the purposes of—

  • Private or personal use, including research;
  • Criticism or review, whether of that work or of any other work;
  • The reporting of current events and current affairs, including the reporting of a lecture delivered in public.

Explanations—The storage of any work in any electronic media, including by-laws of any computer program which does not itself constitute a breach of copy for the purpose set forth in this clause, shall not constitute a breach of copyright.

Section 52: Certain acts not to be infringement of copyright

(1) The following acts shall not constitute an infringement of copyright, namely:—

(a) a fair dealing with a literary, dramatic, musical or artistic work 1[not being a computer programme] for the purposes of— 1[(i) Private use including research;]

(ii) criticism or review, whether of that work or of any other work; 2[(aa) the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy— 1[(aa) the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy—”

(i) in order to utilise the computer programme for the purpose for which it was supplied; or

(ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer programme for the purpose for which it was supplied;] 3[(ab) the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available; 3[(ab) the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available;”

(ac) the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied;

(ad) the making of copies or adaption of the computer programme from a personally legally obtained copy for non-commercial personal use;]

(b) a fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events—

(i) in a newspaper, magazine or similar periodical; or

(ii) by 4[broadcast] or in a cinematograph film or by means of photographs. 4[broadcast] or in a cinematograph film or by means of photographs.” 5[Explanation.—The publication of a compilation of addresses or speeches delivered in public is not a fair dealing of such work within the meaning of this clause;]

(c) the reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding;

(d) the reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;

(e) the reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force;

(f) the reading or recitation in public of any reasonable extract from a published literary or dramatic work;

(g) the publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists: Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years. Explanation.—In the case of a work of joint authorship, references in this clause to passage from works shall include references to passages from works by any one or more of the authors of those passages or by any one or more of those authors in collaboration with any other person;

(h) the reproduction of a literary, dramatic, musical or artistic work—

(i) by a teacher or a pupil in the course of instruction; or

(ii) as part of the questions to be answered in an examination; or

(iii) in answers, to such questions;

(i) the performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and student of the institution, or of a cinematograph film or a 6[sound recording], if the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution 7[or the communication to such an audience of a cinematograph film or sound recording]; 8[(j) the making of sound recordings in respect of any literary, dramatic or musical work, if—

(i) sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work;

(ii) the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf: Provided that—

(i) no alterations shall be made which have not been made previously by or with the consent of the owner of rights, or which are not reasonably necessary for the adaptation of the work for the purpose of making the sound recordings;

(ii) the sound recordings shall not be issued in any form of packaging or with any label which is likely to mislead or confuse the public as to their identity;

(iii) no such sound recording shall be made until the expiration of two calendar years after the end of the year in which the first recording of the work was made; and

(iv) the person making such sound recordings shall allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such sound recording: Provided further that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this clause, the Copyright Board is, prima facie satisfied that the complaint is genuine, it may pass an order ex parte directing the person making the sound recording to cease from making further copies and, after holding such inquiry as it considers necessary, make such further order as it may deem fit, including an order for payment of royalty;

(k) the causing of a recording to be heard in public by utilising it,—

(i) in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or

(ii) as part of the activities of a club or similar organisation which is not established or conducted for profit;]

(l) the performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution;

(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;

(n) the publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public;

(o) the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a public library for the use of the library if such book is not available for sale in India;

(p) the reproduction, for the purpose of research or private study, or with a view to publication, of an unpublished literary, dramatic or musical works kept in a library, museum or other institution to which the public has access: Provided that where the identity of the author of any such work or, in the case of a work of joint authorship, of any of the authors is known to the library, museum or other institution, as the case may be, the provisions of this clause shall apply only if such reproduction is made at a time more than 9[sixty years] from the date of the death of the author or, in the case of a work of joint authorship, from the death of the author whose identity is known or, if the identity of more authors than one is known from the death of such of those authors who died last;

(q) the reproduction or publication of—

(i) any matter which has been published in any Official Gazette except an Act of a Legislature;

(ii) any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter;

(iii) the report of any committee, commission, council, board or other like body appointed by the Legislature, unless the reproduction or publication of such report is prohibited by the Government;

(iv) any judgment or order of a court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the Tribunal or other judicial authority, as the case may be;

(r) the production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunder—

(i) if no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or

(ii) where a translation of such Act or rules or orders in that language has been produced or published by the Government, if the translation is not available for sale to the public: Provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorised or accepted as authentic by the Government; 10[(s) the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture;]

(t) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any premises to which the public has access;

(u) the inclusion in a cinematograph film of—

(i) any artistic work permanently situate in a public place or any premises to which the public has access; or

(ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film;

(v) the use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any would, cast, sketch, plan, model or study made by him for the purpose of the work: Provided that he does not thereby repeat or imitate the main design of the work; 11[***]

(x) the reconstruction of a building or structure in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed: Provided that the original construction was made with the consent or licence of the owner of the copyright in such drawings and plans;

(y) in relation to a literary, dramatic or musical work recorded or reproduced in any cinematograph film, the exhibition of such film after the expiration of the term of copyright therein: Provided that the provisions of sub-clause (ii) of clause (a), sub-clause (i) of clause (b) and clauses (d), (f), (g), (m) and (p) shall not apply as respects any act unless that act is accompanied by an acknowledgement—

(i) identifying the work by its title or other description; and

(ii) unless the work is anonymous or the author of the work has previously agreed or required that no acknowledgement of his name should be made, also identifying the author; 12[(z) the making of an ephemeral recording, by a broadcasting organisation using its own facilities for its own broadcast by a broadcasting organisation of a work which it has the right to broadcast; and the retention of such recording for achival purposes on the ground of its exceptional documentary character;

(za) the performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority. Explanation.—For the purpose of this clause, religious ceremony including a marriage procession and other social festivities associated with a marriage.]

(2) The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself.

 

Fair Dealing was used in this particular Benchmark Case Judgement

The High Court held in the case of Kartar Singh Giani v. Ladha Singh that “two points in relation to the meaning of fair expression were raised, in fair dealings:

  • An intention to compete with and profit from such competition was necessary in order to be unfair.
  • An infringement unless the infringer’s motive was unfair, in the sense of being wrong the dealer.

Exceptions to the reproduction right (the 3-step test)

The three step test made its debut in the Berne in 1967, as Article 9(2), for exceptions to the new right of reproduction.

1967 Article 9

  1. The authors of literary or artistic works protected by this Convention have the exclusive right, in any way or in any form, to authorize the reproduction of those works.
  2. It is up to legislation in Union countries, where this work does not conflict with the normal use of the work and does not irrationally prejudicial to the legitimate interests of the author, to enable the copying of such work in certain special cases.
  3. For the purposes of this Convention, any sound or visual recording shall be treated as a reproduction.

Recent Developments

The Copyright Act (Amendment) 2012 included some of the modifications. Any work for personal and private use with the exception of a computer program has been subject to the current clause (1) (a). With this amendment, film and music were also subject to the works to which the provisions on fair use were extended. This amendment was implemented. This amendment also ensures that work for the benefit of the disabled is fairly exploited. It makes it possible for disabled people to access works, including sharing them with any disabled person, for private or personal use for research or any other educational purpose, to reproducing, publishing copies, adapting or communicating any work to the public.

More Case Laws

These famous court cases have generated a major public copyright discourse—how we handle it, what it means, and why we all should look after it.

  1. Rogers vs. Koons

A photograph of a couple holding a line of puppies in a row was photographed by Art Rogers and sold to be used in greeting cards and other similar products. In the process of making an exhibit about the banality of everyday items, renowned artist Jeff Koons crossed Rodgers’ photographing internationally and used this as a set of image-based statues. Koons sold several of these structures and made a considerable profit. Rodgers sued Koons for copyright when he discovered the copy. Koons answered by saying that parody is fair use.

Result: The Court held that the two images were similar enough and that the copy would be recognized by a “typical person.” The defence of Koon was rejected on the grounds that he could make the same statement with a more generic source, without copying the works of Rogers. Koons had to pay Rodgers a currency settlement.

Significance: This is one of the famous cases of the issue of appropriation art that included a major issue in the world of art. Can you build on the work of others to make your own original work? And if you do, is that derivative work? He also mentioned the question of photography as an art, was photography just a documentation of the world? Of course, neither of these issues has been fully addressed, but has also, in many cases, become a reference.

  • The Associated Press vs. Fairey

During President Obama’s first run for presidential election in 2008, renowned street artist Shepherd Fairey created the Hope poster. The design quickly symbolized Obama’s campaign, which was technically independent but with his approval. The photos of the Association Press reportedly based on the design by AP freelance company Mannie Garcia were disclosed in January 2009 with the AP demanding compensation for their use in works of Fairey. Fairey answered by advocating fair use and claimed that his work did not diminish the value of the original photograph.

Results: In January 2011, the artist and the AP press arrived at a private settlement, part of which was divided into profits.

Significance: Although there was not a court case and a true verdict, in these battles with copyright this case created a lot of talk about the value of work. The work of Garcia could never have reached the level of fame if not for the poster of Fairey. Garcia himself said he was «so proud of the photograph he had done and the result Fairey had», yet had a problem with Fairey’s picture taking, without permission and without credit, the originator of the picture.

  • Cariou vs. Prince

A known appropriation artist, Richard Prince transforms the works of others into a new meaning in his own work. Prince took 41 photographs of Patrick Cariou’s photo book for an exhibition at the Gagosian Gallery and claimed it was fairly utilized for his creation of a new meaning from the photographs. Cariou claimed it was not fair use but a violation of copyright.

Results: In 2011, a judge decided in favour of Cariou, claiming that Cariou’s changes in photographs were not important enough to make a change — fair use. The case is in appeal at the moment but the final decision has still not been reached.

Significance: The initial decision for Cariou in this case has created enormous divisions in the artistic community. It raises questions concerning artistic intent and the subjectivity of art and asks “Who this judge is to decide whether the appropriate artwork has sufficient meaning for its consideration as fair use” when every individual who viewed it could interpret the art differently. This is still the case for the jury.

Police power to seize copies of the violations:

Any officer who is not under the rank of a sub-inspector may seize copies without a warrant to be issued before a Magistrate if he is satisfied that an offense under section 63 is committed in relation to an act of infringement of copyright.

Summit:

Copyright is designed to safeguard the rights of original owners and to offer their creativity and diligence economic benefits. While it is not required to register work, it is recommended that the idea is registered as soon as it becomes a written document and there is strong evidence before the court in the event of an infraction. The 1957 Copyright Act and its amendments aim at protecting the rights and interest of creators and property owners as well as the interests of everyone else. Copyright and copyright rules 1958 protect the rights and interests of creators and owners. It should be noted that the Act is a comprehensive regulation on the pillar that does not stolen the works of the owners. This Act is drawn up in line with the English and American laws on intellectual property. This Law provides both the owner and the ‘work’ with safeguards.

Importation of Infringing Copies

Section 53 states: Importation of Infringing Copies

  1. On application by the owner of the copyright in any work or by his duly authorized agent, and upon payment of the prescribed fee, the Registrar of Copyrights may, after making such inquiry as he deems fit, order that copies made outside of India of the work, which if made in India would infringe copyright, shall not be imported.
  2. Subject to any riles made under this Act, the Registrar of Copyrights or any person authorized by him in this behalf may enter and examine any ship, dock, or premises where any of the copies referred to in subsection (1) may be found.
  3. All copies to which any order issued under subsection (1) apply are deemed to be goods whose import is prohibited or restricted.

Section 53-A states: Resale share right in original copies –

  1. In the case of resale for more than ten thousand rupees of the original copy of a painting, sculpture on drawing, or original manuscript of a literary or dramatic work or musical work, the author of such work, if he was the first owner of rights under Section 17, or his legal heirs, shall have a right to share in the resale price, notwithstanding any assignment of copyright in such work.
  2. The share referred to in subsection (1) shall be determined by the Copyright Board, and the Copyright Board’s decision in this regard shall be final:
  3. Provided, however, that the Copyright Board may establish different shares for different types of work:
  4. Provided, however, that in no case shall the share exceed 10% of the resale price.
  5. If a dispute arises concerning the rights granted by this section, it shall be referred to the Copyright Board, whose decision shall be final.

Exceptions- Three main exceptions are commonly used by educators in the case of copyright law: fair use, face-to-face instruction and virtual education. Without the permission of the copyright owner and possible charges, the exemptions allow the use of the work. When the use is not covered by face-to-face instructions or virtual instructions, fair use is commonly used since it is much wider and flexible.

It is the person who uses the job to determine which exception applies. It should be a deliberate decision, not a default decision. The exemption and good faith determination of that use of a copyrighted work is authorized with one of these exceptions is the responsibility of all members of the Purdue University community. A good faith determination means that a person has to understand, articulate and reasonably apply the exception he selects to their particular situation. If none of the exceptions apply, permission for the use of the work should be sought.

Copyright violation remedies

  • Civil correction: pursuant to Section 55 of the Copyright Act of 1957, the owner is entitled to all such remedies by injunction, damages & accounts in cases where copyright in any work has been violated.
  • Criminal redress: The copyright owner is entitled under Section 63 of the 1957 Copyright Law to prosecute a contravener in which a penalty can be extended to at least 6 months, with a fine of Rs. 50 000, extending to two lakhs.

If the accused has proven that he was not aware of the infringement and had no reasonable reason to believe that copyright was subsistent in the work at the date of its infringement, the complainant is not entitled to any rectification in the circumstances that the defendant considers reasonable for all or any portion of the profits made by it through the sale of the infringing copies.

Author Details: Kartikey Garg (Galgotias University)

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