Principle Of Fair Dealing In Indian Legal System: Basittile Against Copyrights Infringement – by R. Visalakshi Shrili *

Section 52 (1) (a)i of the copyrights act entails defense for a particular performance, which done in good faith, i.e., for research work, genuine criticism, and for any other private use, not infringing the terms of the copyrighted music, literature, dramatic or artistic works. Thus referring to a particular line from a literary, or particular verse from a dramatic or musical work, for the sake of reviewing for the public use and using it for a particular purpose does not amount to infringement of copyrights.ii This rule is basically a limitation to the owner of copyright or a defense[i] available to the alleged infringer of copyrights.

This section was incorporated in the copyrights act, in allusion to article 13 of the TRIPSiii, which states that the member countries shall not penalise those acts with regard to copyright infringement, which were done with bonafide intentions. Even though this rule differs on case to case basis, the court of law decides these cases on the ‘rule of thumb’ basis. In the case of Wiley Eastern limited & Ors v IIM,iv the purpose of imbibing fair dealing in copyrights act is to protect the integrity and sanctity of Article 19,v freedom of speech and expression, in the Indian constitution. In the famous Blackwood’s case, it was pointed by the Supreme Court that in order to apply the principle of fair dealing, the quantitative and qualitative of the alleged infringement must be learnt.

In cases where there is no substantiality, then there is no infringement of copyrights. Hence the proximity and magnum of the alleged infringement must be taken into account. In certain other cases, like as stated in the case of V Ramiah v K Lakshmiah,vi the Supreme Court decided that where the subject matter of two literary works synchronises but composed and produced differently, there is no case of infringement of copyrights. In certain circumstances, the court has held that if there requires particular use of copyrighted work for the purpose of showcasing the relevance to the general public, then there is no instance of infringement of copyrights. For example, in the case of ESPN Star Sports v Global Broadcast Newsvii as per the facts it was held by the court that the case reasonably falls within the ambit of fair dealing, substantiating that sports channels could make use of cricket match clippings if the programmes essentially involved content on cricket matches.

Looking into the famous case of Super Cassettes Ltd v Chintaman Rao and Anr,viii the relevance of fair dealing was used to lift the accusations of copyrights infringement to argue on the basis that section 52(1) (a) allows a person to review, criticize or any other private work, but not involving the reproduction of an entirely a new and different work from the original one. Fair dealing essentially does not involve any unfair dealing the copyrighted work and thus there can be no instance of copyrighted work.ix Hence, in this particular case there is no intention of reproduction of the copyrighted work, and also the accused performance was poles apart from the original work. Though the Indian legislative system coalesced the TRIPS principle laid under Article 13, this section which deals with fair dealing lacks a major element, that is, it does not exemplify the purpose of s. 52 (1) (a), and lacks coverage in certain other areas like infringement of copyrights allegations for private use, or private premises.

*studying BALLB (HONS) at Saveetha School of Law, Chennai

i) https://indiankanoon.org/doc/1013176/

ii) http://www.mondaq.com/india/x/299252/Copyright/Fair+Dealing+In+Copyrights

iii) https://www.wto.org/english/docs_e/legal_e/27-trips_04_e.htm

iv) Ananth Padmanabhan, Intellectual property rights in India: defenses and cases, pp.7, Lexis Nexis Wadhwa

v)  Prabhudhar Ganguly, Intellectual property rights in India, pp. 90, Tata McGrawHill Publishing House, 2006

vi) https://indiankanoon.org/doc/1468503/

vii) https://indiankanoon.org/doc/1460054/

viii) https://indiankanoon.org/doc/576454/

ix) Ayush Sharma, Indian Perspective of Fair Dealing under the Copyrights Act, p. 523 (August 2009)

An Overview of the Telegraph Act and the Wireless Telegraphy Act

    • Broadcasting in India is governed by the Indian Telegraph Act of 1885 and the Indian Wireless Telegraphy Act of 1933. The Indian Telegraph Act of 1885 gives the Government of India exclusive rights to the establishment and operation of electromagnetic wave telegraphy.
    • The governance of broadcasting is based on the powers conferred on the Government of India by this law. According to the Law, “telegraph” means any apparatus, instrument, equipment or apparatus used or capable of being used for the transmission or reception of signals, signals, writings, images and sounds or information of any kind by wire, visual or electromagnetic emissions, radio waves or radio waves, galvanic, electric or magnetic means. “Radio wave” or “radio waves” means electromagnetic waves of frequencies below 3000 giga-cycles per second propagated in space without an artificial guide.
    • Judicial decisions have also held that the term “telegraph” includes the term telephone, television , radio, wireless, mobile and video equipment.
    • Section 4 (1) of the Telegraph Act stipulates that the central government has the exclusive privilege of establishing, maintaining and operating telegraphs in India. Section 5 (1) of the Telegraph Act authorizes the central government to temporarily take possession of a telegraph in cases of public emergency or public security. Subsection 5 (2) allows the government to legally intercept telegraphic messages for certain reasons. These include the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order and the prevention of the commission of an offense.
    •  Article 8 of the Telegraph Act gives the Government the power to revoke a telegraphic license for any breach of any term or failure to pay license fees.
    • Broadcasting means “the dissemination of any form of communication as signs, signals, writings, images, images and sounds of all kinds by the transmission of electromagnetic waves through space or by cables intended to be received directly or indirectly by the public support relay stations and all its grammatical variants and related expressions should be interpreted accordingly. To offer most forms of broadcast, a broadcaster must have two licenses:

1.   A general MIB license for telegraph services (under the Telegraph Act), and,

2.   A Wireless Operating License for the Wireless Planning and Communication Unit (WPC) of the Department of Telecommunications (under the Wireless Telegraphy Act).

      • Most radio and television services are also regulated by the Indian Wireless Telegraphy Act (No. 17 of 1933) as they constitute “wireless communications”. Subsections 2 (2) and 3 govern wireless communication by requiring users of various types of wireless equipment to obtain wireless licenses to own and use the equipment. These licenses are granted by the WPC (Wireless Planning and Coordination Authority) Wing of the Telecommunications Department (DoT). Therefore, to offer most types of broadcasting services, a broadcasting undertaking must obtain two types of licenses:

1.   A grant of permission (GOPA) to provide broadcast services issued by the Ministry of Information and Broadcasting under the Telegraph Act, 1885.

2.   WPC (Wireless Planning and Coordination Authority) WPC wireless operating license under the Wireless Telegraphy Act, 1933.