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Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow

Faculty of Law

SYNOPSIS FOR RESEARCH PROJECT ON

A STUDY OF DOCTRINE OF FAIR USE IN COPYRIGHT ACT.

For

COURSE ON LAW OF INTELLECTUAL PROPERTY RIGHTS I

Submitted by

GAURAV PANDEY

154140024

Academic Session: 2017-18

Under the Guidance of

Mr. Shail Shakya


Asst. Prof. in Law & Faculty for IPR-I
Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University
RESEARCH PROPOSAL

a) Title of the Dissertation:

A Study of Doctrine of Fair use in Copyright Act.

b) Hypothesis of Dissertation:

The advantages of fair use,0 limitation and time duration, it


also support that a more flexible fair use policy is correlated with faster growth rates in
private copying technology industries.

c) Research Problem:

This assignment is based on Eastern Book Company v DB Modak


case.

d.) Research Methodology:

This research is based on Doctrinal research.

e.) Research Questions :

MANDATED FAIR USE GUIDELINES.


Question: What are the guidelines for applying Fair Use?

NEED OF FAIR USE


Question: Why to know about Fair Use?

EXCEPTIONS AND LIMITATION TO COPYRIGHT LAW


LITERATURE REVIEW

ABOUT THE ASSIGNMENT

This assignment shall be dealing with the various issues of A Study of Doctrine of Fair use in
Copyright Act. In this assignment the history, scope, right, time duration are discussed.

SOURCES

PRIMARY SOURCES

STATUTES

1. THE COPYRIGHT ACT OF 1976

From the above mentioned primary source various necessary sections and provisions shall be taken
in order to understand the permits some copying and distribution without permission of the
copyright holder or payment to same.
SECONDARY SOURCES

JOURNALS & MANUALS

1. AYUSH SHARMA, INDIAN PERSPECTIVE OF FEAR DEALING UNDER


COPYRIGHT, INTELLECTUAL PROPERTY RIGHTS VOL 14.

BOOKS

1. DR. B.L. WADEHRA, LAW RELATING TO INTELLECTUAL PROPERTY (5TH


EDTITION,2011)
2. P. NARAYANAN, INTELLECTUAL PROPERTY LAW (3RD EDITION,2014)

WEBSITES

1. http://nopr.niscair.res.in/bitstream/123456789/6706/1/JIPR%2014(6)%20523-531.pdf.
2. http://digitalsandbox.weebly.com/uploads/5/5/8/8/5588196/fair-use-doctrine.pdf.
3. http://www.ircc.iitb.ac.in/webnew/Indian%20Copyright%20Act%201957.html.
4. https://spicyip.com/2008/01/are-indian-court-judgments.html.
INTRODUCTION

Fair dealing is an important concept in Indian Copyright law. Copyright does not prohibit all
copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of
1976, permits some copying and distribution without permission of the copyright holder or
payment to same.

The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider
in a fair use analysis. Those factors are:

The purpose and character of the use


The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a
whole
The effect of the use upon the potential market for or value of the copyrighted work

In the United Kingdom and many other Commonwealth countries, a similar notion of fair dealing
was established by the courts or through legislation. The concept is sometimes not well defined;
however in Canada, private copying for personal use has been expressly permitted by statute since
1999. In Australia, the fair dealing exceptions under the Copyright Act 1968 are a limited set of
circumstances under which copyrighted material can be legally copied or adapted without the
copyright holder's consent.

Fair dealing uses are research and study; review and critique; news reportage and the giving of
professional advice (i.e. legal advice). Under current Australian law it is still a breach of copyright
to copy, reproduce or adapt copyright material for personal or private use without permission from
the copyright owner. Other technical exemptions from infringement may also apply, such as the
temporary reproduction of a work in machine readable form for a computer.
Educational use is regarded as fair use in most jurisdictions, but the restrictions vary wildly from
nation to nation.

Fairs use is also called Fair dealing .It means usage of copyrighted literary work (literary work
means not only literature but also include maps, diagrams and flow in for non-commercial
purposes.) For eg. Research, education or any other form of unprohibited usage is not the
infringement of copyright because the usage is covered under fair-dealing. Fair dealing include
proper acknowledgement. The right of fair dealing include assimilation and usage of information
for the purpose of general awareness.
DRAFT TABLE OF CONTENTS

ABSTRACT
ACKNOWLEDGEMENT
1. COPYRIGHT
1.1 INTRODUCTION
1.2 HISTORY
1.3 SCOPE
1.4 EXCLUSIVE RIGHTS
1.5 DURATION
1.6 LIMITATIONS & EXCEPTIONS TO COPYRIGHT
1.7 FIRST-SALE DOCTRINE AND EXHAUSTION OF RIGHTS
2. FAIR USE AND FAIR DEALING
2.1 TRANSFER AND LICENSING
2.2 SIMILAR LEGAL RIGHTS
2.3 DEFINITION OF "COPY"
2.4 FAIR USE AND PRIVATE COPYING.
3. CASES OF DOCTRINE FAIR USE IN COPYRIGHT ACT.

3.1 EASTERN BOOK COMPANY v. DB MODAK AIR 2008 SC


3.1.1 FACTS
3.1.2 RULING
3.1.3 SIMILAR CASES

3.2 SK DUTT v LAW BOOK CO AND ORS AIR 1954 All 570
3.2.1 FACTS
3.2.2 RULING
3.2.3 SIMILAR CASES

3.3 CIVIC CHANDRAN v. AMMININ AMMA 1996 PTC 16 670


3.3.1 FACTS
3.3.2 RULING
3.3.3 SIMILAR CASES

4. CONCLUSION

5. BIBLIOGRAPHY
EXPLANATION TO TABLE OF CONTENTS

1. COPYRIGHT

1.1 INTRODUCTION
Copyright has been internationally standardized, lasting between fifty to a hundred years from the
author's death, or a finite period for anonymous or corporate authorship; some jurisdictions have
required formalities to establishing copyright, most recognize copyright in any completed work,
without formal registration. Generally, copyright is enforced as a civil matter, though some
jurisdictions do apply criminal sanctions.

Most jurisdictions recognize copyright limitations, allowing "fair" exceptions to the author's
exclusivity of copyright, and giving users certain rights. The development of the Internet, digital
media, computer network technologies, such as peer-to-peer file sharing, have prompted
reinterpretation of these exceptions, introduced new difficulties in enforcing copyright, and
inspired additional challenges to copyright law's philosophic basis. Simultaneously, businesses
with great economic dependence upon copyright have advocated the extension and expansion of
their copy rights, and sought additional legal and technological enforcement.

1.2 HISTORY
1.2.1 STATUTE OF ANNE (1710)
1.2.2 BERNE CONVENTION (1186)
1.2.3 OTHER INTERNATIONAL CONVENTIONS

1.3 SCOPE

Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".
Specifics vary by jurisdiction, but these can include poems, theses, plays, other literary works,
movies, dances, musical compositions, audio recordings, paintings, drawings, sculptures,
photographs, software, radio and television and broadcasts. Copyright does not cover ideas and
information themselves, only the form or manner in which they are expressed.

1.4 EXCLUSIVE RIGHTS


To produce copies or reproductions of the work and to sell those copies (mechanical rights;
including, sometimes, electronic copies: distribution rights)
To import or export the work
To create derivative works (works that adapt the original work)
To perform or display the work publicly (performance rights)
To sell or assign these rights to others
1.5 DURATION
In most of the world, the default length of copyright is the life of the author plus either 50 or 70
years.

1.6 LIMITATIONS & EXCEPTIONS TO COPYRIGHT


1.6.1 IDEA-EXPRESSION DICHOTOMY
1.6.2 FIRST-SALE DOCTRINE AND EXHAUSTION OF RIGHTS

2. FAIR USE AND FAIR DEALING

2.1 TRANSFER AND LICENSING

Under the U.S. Copyright Act, a transfer of ownership in copyright must be memorialized in a
writing signed by the transferor. For that purpose, ownership in copyright includes exclusive
licenses of rights. Thus exclusive licenses, to be effective, must be granted in a written instrument
signed by the grantor. Transfers of copyright ownership, including exclusive licenses, may and
should be recorded in the U.S. Copyright Office. (Information on recording transfers is available
on the Office's web site.) While recording is not required to make the grant effective, it offers
important benefits, much like those obtained by recording a deed in a real estate transaction.

2.2 SIMILAR LEGAL RIGHTS


Once the term of a copyright has expired, the formerly copyrighted work enters the public domain
and may be freely used or exploited by anyone. Courts in the United States and the United
Kingdom have rejected the doctrine of a common law copyright. Public domain works should not
be confused with works that are publicly available. Works posted in the internet for example, are
publicly available, but are not generally in the public domain. Copying such works may therefore
violate the author's copyright. .

2.3 DEFINITION OF "COPY"


There are different approaches to the issue of what is a "copy" of a copyright-protected work. For
example, several important rights under United States copyright law exist only for copies of
works material objects in which the work is embodied.

2.4 FAIR USE AND PRIVATE COPYING.

Fair use facilitates access to existing works. Copyrighted works are never simply outputs of the
creative process but are also an important input for subsequent works. It is logical to assume that
increasing the number of works available also stimulates the creation of more works.
3. CASES

3.1 EASTERN BOOK COMPANY v. DB MODAK1

SCC constitutes an `original literary work of the appellants in which copyright subsists under
Section 13 of the Copyright Act, 1957 and EBC alone has the exclusive right to make printed as
well as electronic copies of the same under Section 14 of the Act.

The Indian Supreme Court notes novelty or invention or innovative idea is not the
requirement for protection of copyright but it does require minimal degree of creativity.!!

3.2 CIVIC CHANDRAN v. AMMININ AMMA2

The Indian Copyright Act under Section 52 carves out fair dealing from Copyright
infringement as affirmative defenses, which places the onus of proving the defenses onto the
user once the copyright owner establishes prima facie infringement by substantial copying of
expression.

3.3 SK DUTT v. LAW BOOK CO AND ORS3

The Court interpreted the fact of acknowledgement by the authors of the plaintiff's material
to mean that had the authors made any other use of the plaintiff's book in compiling their
own book.

1 AIR 2008 SC
2 1996 PTC 16 670
3 AIR 1954 All 570
CASE- LAW STUDIES

In Eastern Book Company v DB Modak4, the question before the Court was that whether
the copying of copy-edited judgments as published in the law report by the defendant amounted
to Copyright infringement and whether the copying constituted fair dealing under Section
52(1)(q) Sub- clause (iv) of the Act, which excludes the reproduction or publication of any
judgment or order of a court, tribunal or other judicial authority from the scope Copyright
infringement. The Indian Supreme Court following the approach laid down by the Canadian
Supreme Court in , CCH Canadian Ltd v law Society of Upper Canada,5 rejected the sweat
of the brow doctrine, (which conferred Copyright on works merely because time, energy,
skill and labour was expended, that is, originality of skill and labour), held that the work must
be original in the sense that by virtue of selection, co-ordination or arrangement of pre-
existing data contained in the work, a work somewhat different in character is produced by
the author.

In Civic Chandran v Ammini Amma6 The Indian Copyright Act under Section 52 carves out
fair dealing from Copyright infringement as affirmative defenses, which places the onus of
proving the defenses onto the user once the copyright owner establishes prima facie infringement
by substantial copying of expression. However, the fair dealing cases in India do not always
establish prima facie infringement before considering the application of fair dealing.

In SK Dutt v Law Book Co and Ors7 where the dispute was based on the use of certain
quotations from a work. The Court interpreted the fact of acknowledgement by the authors
of the plaintiff's material to mean that had the authors made any other use of the plaintiff's
book in compiling their own book, they would have acknowledged it; thus, the copying was
held not to be a substantial taking.

4 AIR 2008 SC 809 Para 38


5 2004)1S.C.R.339.2004SCC13
6 1996 PTC 16 670

7 AIR 1954 All 570 Para 45


EXPECTED RESEARCH RESUL

The Doctrine of Fair Use developed over the years as courts tried to balance the rights of copyright
owners with society's interest in allowing copying in certain, limited circumstances. In the context
of computer technologies, the Fair Use Doctrine is often used in the context of Reverse
Engineering. Under Trade Secret Principles, it is generally accepted to "Reverse Engineering" a
product to determine how the product works. Reverse Engineering may involve analyzing circuit
board layouts, "peeling" back an integrated circuit chip, or decompiling computer software. It is
impossible to decompile software and then analyze the results without making a copy (or a
derivative work) of the software, the making of these copies in the context of reverse engineering
is a Fair Use and is not Copyright infringement. It is without dispute that the Indian Copyright
Act, purport to maximize the promotion of creativity and the dissemination of information at the
same time, but it is different from US counterpart which traces ultimately in the policy pre-
occupations of the Indian and US Courts. The provision for Fair Dealing in the Indian Act is brief
and does not define the meaning or the application of the defence. The provision for the Fair Use
in the American Act is more elaborate and extensive. The American Act is more flexible and open
for further advancement and is so intended by its legislators. Indian legislators, desiring certainty,
have chosen the conservative approach and the Indian judicial jurisprudence is reflective of this
approach. Considering the global nature of the digital environment, it is in the interest of both
right-holders and users that exceptions and limitation to the exclusive rights of reproduction and
communication to the public and provisions on applicable laws be harmonized as much as possible.
For an optimum development of the internet, harmonization should occur at international level,
Specific situations in various countries to be taken into account.
INDEX OF REFERENCES/ BIBLIOGRAPHY

JOURNALS & MANUALS

1. AYUSH SHARMA, INDIAN PERSPECTIVE OF FEAR DEALING UNDER


COPYRIGHT, INTELLECTUAL PROPERTY RIGHTS VOL 14.
2. MICHAEL D. KING, EDUCATIONAL TECHNOLOGY AND THE FAIR USE
DOCTRINE.

BOOKS

1. DR. B.L. WADEHRA, LAW RELATING TO INTELLECTUAL PROPERTY (5TH


EDTITION,2011)
2. P. NARAYANAN, INTELLECTUAL PROPERTY LAW (3RD EDITION,2014)

WEBSITES

Journal of Intellectual Property Rights Volume 2 January 1997

http://www.copynot.com/Copyrightlaw.html

http://www.hg.org/article.asp?id=5298

https://spicyip.com/2008/01/are-indian-court-judgments.html

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