Fair dealing: Because sometimes, it’s ok to copy

Copyright law is pretty strict on copying or the unauthorised use of someone else’s work, however in certain special situations, it is possible to copy or infringe a copyright, and not get into trouble for it – this is called Fair dealing.

The underlying premise of the Fair dealing or Fair use exception lies in acknowledging the fact that sometimes, a copyright ought to be infringed in the interest of the greater good. In other words, in accordance with the Fair dealing exception, it is sometimes possible to use literary, dramatic, musical and artistic works, without having taken the permission of the author or creator.

So, you’re saying I can get away with copying?

Fair dealing or Fair use refers to a limited number of situations where unauthorised copying is permitted – but as the name suggests, the exception only extends to some cases where the work may be used for a legitimate purpose that’s in the best interest of society. Here’s an example – let’s say a scientist documents his amazing scientific breakthrough in an article published by a leading scientific journal. After some discussion, the scientist and publishers agree to joint copyright ownership of the article. A few months later, a professor reproduces extracts from the scientist’s article in the power point slides he uses to teach his college class. Now, the professor hasn’t taken the permission of either the scientist or publisher before reproducing the article’s text in his slides – does this mean the professor is in trouble for copyright infringement? According to the principle of Fair dealing, the answer is no.

This photo was shared under a Creative Commons Attribution License and was taken from the Flickr photostream of Timothy Vollmer
This photo was shared under a Creative Commons Attribution License and was taken from the Flickr photostream of Timothy Vollmer

What are the cases that can be considered Fair dealing?

According to Section 52 of the Indian Copyright Act, 1957 the Fair dealing exception applies to the use of literary, dramatic, musical or artistic works in the context of
(a) research or private study;
(b) criticism, parodies or reviews;
(c) using the work to report current events by way of newspapers, magazines, periodicals, radio, or
through photographs in a cinematographic medium;
(d) a Government document or law;
(e) the public recitation of certain extracts of a work;
(f) the use of the work by educational institutions, teachers or students in the course of instruction;
(g) the use of the work by non-commercial clubs

The Copyright (Amendment) Act, 2012 has actually widened the scope of Fair dealing by amending Section 52 to also include special exceptions with respect to the use of cinematographic works and sound recordings; the transient or incidental storage of electronic works that might occur in the process of electronic transmission or communications; the adaptation or modification of copyrighted work so as to be made more accessible to persons with disability; certain exceptions with respect to non commercial public libraries; and technical drawings meant to be used in the construction of three-dimensional works (All these aspects will be dealt with in greater detail in future posts that study Fair dealing in the context of specific industries or creative disciplines).

And that’s it – this is the list of stuff that Fair dealing can apply to?

Well no – as is the case with most lists, this one isn’t exhaustive either. In order to get the most out of the Fair dealing principle, the Court in The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House [2008 (38) PTC 385] decided to put down a four factor test to determine whether a particular use of a work is fair, and thus entitled to protection under the Fair dealing exception (even if the use of the work doesn’t really fall under any of the categories mentioned in Section 52 of the Copyright (Amendment) Act, 2012). The four factor test was borrowed from the famous American Supreme Court decision in the case of Campbell v. Acuff Rose Music [510 US 569 (1994)] (often referred to as the ‘Pretty Woman’ case). According to the American Supreme Court, all four factors have to be considered together in order to determine whether fair use had occurred or not. These four factors are:

(1) the purpose and character of the use; where the core question revolves around whether the work’s original nature stays the same or whether it has been transformed owing to the new purpose it has been put to. In other words, is the work being used for educational purposes or for the purpose of say, critique
(2) the nature of the copyrighted work; where it is necessary to first examine if the work being used, is eligible for copyright protection in the first place
(3) the substantiality of the portion used in relation to the copyrighted work; where it is necessary to examine both the extent and nature of copying done with respect to a work; and
(4) the effect on the potential market for, or value of, the copyrighted work, where it is necessary to understand if the new work would adversely affect the market value of the original work.

The final thing to remember when determining Fair use or Fair dealing, is that it is always a question of fact, degree and the impression created by the work, in the minds of the common people (meaning us) exposed to the work.

Wait, so I still don’t understand – why do artists need to know about Fair dealing?

Fair dealing is something all artists need to know about because it can spell the difference between creative freedom and a lawsuit. The Fair dealing principle is important to any artist who produces work that is based on, borrows or is meant to reference other creative works. Getting the permission of the other work’s copyright owner isn’t always possible and this can pose huge problems to an artist’s creative expression – Fair dealing shows you a way out of a predicament like this.

The applications of the Fair dealing principle cut across a wide genre of arts – sampling in music or making songs that are parodies of others, producing compelling political posters based on images of famous Presidential candidates, allowing film makers to include pictures, sounds or other copyrighted works for brief durations of time in the background of their movies, allowing the use of copyrighted material like poetry, art or sound recordings in classrooms as a teaching methodology – the list is endless.

This post was a brief introduction into how Fair dealing works, however keeping in mind the vast subject matter of this topic, better clarity on its applications in specific creative disciplines is something that future posts will concentrate on achieving. In the mean time if there’s anything you’d like to discuss about Fair dealing, then go ahead and leave a comment or get in touch.

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4 Comments

  1. I would like to know if posting images via screen captures to enhance a review or commentary of a TV show is considered as ‘Fair Dealing’.

    Like

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