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)

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