Doctrine of Fair Dealing: Meaning, importance and Case Laws

This article titled ‘Doctrine of Fair Dealing in the Cyberspace’ aims to understand an exception to the list of rights granted.

I. Exception to Copyright – Doctrine of Fair Dealing

Section 52(a) of the Copyright Act[1] provides for exceptions to infringement in the form of ‘fair dealing’.

The term fair dealing refers to the use of literary, dramatic, musical or artistic work for private uses including research, criticism, review and for the purpose of reporting current events in a newspaper, magazine or similar periodical, or by broadcasting or cinematographic film or by means of photographs. These acts as considered to not infringe the existing copyright and are instead, considered as fair use of copyright work.

The defence of fair dealing initially originated as a doctrine of equality which allows the use of certain copyrightable works, which would have otherwise been prohibited and would have ideally amounted to an infringement of copyright. The central idea behind the doctrine is to prevent the stagnation of the growth of creativity for whose progress the law has been designed.

The doctrine of fair dealing is enshrined in Article 13 of the TRIPS Agreement and the Berne Convention on Copyright. Most territorial copyright legislations have given place for this doctrine in their law, however, there’s still a difference if the individual laws of fair dealing enacted in different countries.

As compared to the US, the Indian copyright law is often regarded as very limited and restrictive since there is an exhaustive list of actions which come under the scope of fair dealing. Thus, the Indian law of fair dealing work strictly within the framework of the enlisted actions and as adopted by Section 52.

Indian Courts have since explored and unveiled the facets of fair dealing and are now coming to the conclusion that there cannot be a definite or exhaustible list of uses which can come within the purview of fair dealing.

They further stated that it would be much fairer when the decision is based on the facts and circumstances of each case. In a case tried by the Delhi High Court[2], the plaintiff claimed that the defendants amounted to an infringement of their copyright wherein the defendants broadcasted a TV show with a documentary on the life of singers and they perform their own songs.

While the singer sings, clips of movie scenes copyrighted by Yashraj Films were shown in the background. The defendants claimed fair dealing, however, the Court restrained them from doing so. This decision wasn’t considered to be very fair by a lot of IPR experts, however, the reason behind why the decision had its stand, is due to the fact that the use of the work did not come within the exhaustive list that is provided under section 52. Thus, the defendants were deprived of any remedy with regard to laws governing fair dealing.

One of the most cited cases worldwide for digital copyright infringement[3] is the case of Napster, wherein the plaintiff was sued by the defendants, for person to person file sharing. Napster provided the software, whereby the user was allowed to share MP3 files stored in his computer to other users of Napster.

Since the case was filed, various music companies have been seeking almost USD 100k for each copyright-protected song downloaded using Napster. Eventual settlement then resulted in Napster giving a third of all future profits to the settling parties and by 2000, Napster Inc. was shut down.

II. CASE STUDY

This study revolves around the Google Book Project case that was an incredibly well-known copyright case litigated in the USA and decided in October 2015.[4]

Facts of the Case

On the 14^th of December, 2004, Google announced that it would start scanning millions of books from the collections of leading research libraries to create a comprehensive database of books that would be online and searchable.

Most libraries had initially extended their support including NY Public Library and the Harvard University but limited their cooperation to books in the public domain. However, other libraries such as the University of Michigan agreed to turn over their copyrighted books to the programme which was then called the Google Print.

Google’s end goal here was to build an unrivalled digital library using these books to draw users to its website, strengthen its dominance of the search-engine market and also increase its advertising. The libraries, in return, wanted to digitize their collections. Libraries buy and lend books to readers, but when the books are in copyright, they may not make copies of it unless an exception to copyright applies.

The Authors Guild was the USA’s largest society of publishes authors and the leading writers’ advocate for fair compensation and effective copyright protection. They felt the need to act on the issue and thus, in September 2005, the Authors Guild along with a group of individuals sued Google for copyright infringement. The next month, the Association of American Publishers also launched a lawsuit of its own.

Proposed Settlement Agreement

At the Court, Google argues that its programme offered great public benefits and thus, the copying should be protected under the legal doctrine of fair use. However, Authors Guild argued that private companies shouldn’t be allowed to make full digital copies of copyrighted books for commercial purposes, especially without compensating the rights holders. Thus, both parties sat to reach a compromise.

By October of 2008, the parties had finally reached an agreement. Google was asked to pay out USD 125 mil out of which, some money would go to the owners of the books and the rest to fund the Book Rights Registry.

Google would then display out-of-print books to users and charge licensing fees for copyrighted work. Further, Google was proposed to provide portals in every public library and to more than 4,000 colleges and universities in the US.

While the settlement seemed logical and a win-win situation for everyone, the agreement needed court approval and many people in court, raised objections. These objections included the fear that Google would gain a monopoly over digitized books. In March 2011, the Court rejected it.

District Court Ruling

The parties then began to frame their arguments as a settlement was definitely out of the picture. While Google’s arguments remained the same, Authors Guild claimed that Google Books would have a negative economic impact since researchers would rather just Google it as opposed to buying the books and that it would act as a precedent allowing anyone to digitize books for similar purposes, which would lead to widespread and unrestricted availability of books online.

In November 2013, the Court ruled in favour of Google. Google Books was declared to be fair use since the use here was transformative and had several important educational purposes.

Appeal to U.S Second Circuit

On the 3^rd of December, 2014, Authors Guild argued in front of the Second Circuit after an appeal of the District Court ruling was filed. Guild here made it clear that they weren’t asking for Google Books to shut down, but would rather demand damages for past infringements, and proper licensing operations.

Despite fresh arguments from Authors Guild, the Court agreed that the public benefit was at large and thus, turned down the appeal and held the District Court ruling as valid. On the 31^st of December, 2015, Authors Guild filed a petition with the Supreme Court requesting that it review the Second Circuit’s decision. However, the Court declined to review the petition and the judgment at the question remains valid.

III. CONCLUSION

While fair dealing is a necessary doctrine, not only in copyright law but also in strengthening the protection given to the citizens under Art. 19 of the Constitution, the scope of the law is very limited and confined as compared to US fair dealing laws or even in comparison with the other copyright laws of countries around the world.

The growth of the internet has created brand new cyberspace for the exploitation of copyrights. An analysis of copyrights in the cyberspace reveals that there is always a mixed result of new opportunities and threats.

Cyber technology offers new ways of commercialization or exploitation of copyrights by business firms and individuals. These ways have now enabled greater scope for global expansion and market reach around the world while promising huge potential for generation of revenue.

However, these new opportunities also come with parallel threats that severely undermine the very rights of copyright holders and rightful owners. The magnitude of threats is unprecedented with the technological feasibility making it possible for easier piracy and easier distribution of such pirated works to masses with the single click of a button.

It is due to these threats that there is a call for increased regulation of the cyberspace to protect copyrights. Law and technology need to come together to fight effective solutions so as to answer pertinent questions related to the use of fair dealing as a legitimate exception in the cyberspace.

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References

• The Copyright Act, No. 14 of 1957, Acts of Parliament, 1957, India.
• Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
• DanThu Thi Phan, Will Fair Use Function on the Internet?, Columbia Law Review, 1998
• Vaibhavi Pandey, Fair Dealing in Copyrights: Is the Indian Law competent enough to meet the current challenges?, Mondaq Paper, 2014
• Kartik Chawla, Authors’ Guild v. Google – A Fair Use victory, and a chance for introspection, SpicyIP Paper, 2015
• Devanshi Goyal, Copyright Protection in the Cyberspace – A Comparative Study of USA and India, Northeastern University, 2016
• Ben Depoorter and Francesco Parisi, Fair Use and Copyright Protection: A Price Theory Explanation, Center for Advanced Studies in Law and Economics, Ghent University (Belgium)
• Shlisha Devadiga and Shweta Choudhary, Copyright Act, 1957, Presentation, CMR School of Legal Studies, 2018
• Vijay Pal Dalmia, India: Copyright Law in India – Everything you Must Know, Mondaq papers, 2017
• Atul Satwa Jaybhaye, Cyber Law and IPR issues: The Indian Perspective, Bharati Law Review, 2016
• Nehaluddin Ahmad, Copyright Protection in Cyberspace: A critical study with reference to electronic copyright management systems, Communications of the IBIMA, Volume 7, 2009
• Indu Sharma and Afshar Alam, Privacy and Freedom Issues in Cyberspace with Reference to Cyber Law, International Journal of Computer Applications, 2016
• Pankaj Kakde, Right to Privacy and its Infringement in Cyberspace, S.P College of Law
• Tabrez Ahmad, Copyright Infringement in Cyberspace and Network Security – A Threat to E-Commerce, KIIT Law School
• Ravindra Sharma, Copyright under Indian Cyber Law, Symbiosis Center for Information Technology, 2009
• Karnika Seth, Protecting copyright in the cyberspace, 2013
• Ministry of Electronics and Information Technology, FAQs on IPR and Copyright, Government of India, 2015

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[1] §52, The Copyright Act, No. 14 of 1957, Acts of Parliament, 1957, India.

[2] Independent News Services Pvt Ltd v. Yashraj Films Pvt Ltd & Super Cassettes Ltd 2013 (53) PTC 586 (Del)

[3] A&M Records Inc. v. Napster Inc. 239 F.3d 1004

[4] Authors Guild Inc. v. Google Inc. 731 F.3d 132

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1. Copyright Protection in the Cyberspace within the Information Technology Act, 2000(Opens in a new browser tab)
2. Cyber Space Jurisdiction: Issues and Challenges(Opens in a new browser tab)