Comparing
US and Indian Copyright Law:
JURIST Guest Columnist Sandeep Kanak Rathod, an LL.M.
Candidate at the University of Pittsburgh School of
Law, is the author of the ninth entry in a 14-part
series from the LL.M. students of the
University of Pittsburgh School of Law. He explores how copyright laws in the
US and India differ...
In its definition
of copyright, the US Copyright Office states
that "copyright ... has come to mean that body of exclusive rights granted
by law to copyright owners for protection of their work." Indian law, on
the other hand, supplies a statutory definition of copyright in section 14 of
the Copyright Act of 1957.
On a general level, copyright is a positive privilege that
grants exclusive rights to the author of a copyright or authorizes others to
benefit from a copyrighted work. It is interesting that the US, unlike any
other nation, in its Constitution, under Article 1, § 8, Clause 8, the Copyright
Clause, refers to copyrights in the same
breath as patents. Patents, unlike its constitutional co-existent, are a
negative right to prevent others from exploiting a patented invention.
Copyright gives a bundle of exclusive rights to the author of
a copyrighted work with respect to the reproduction of the work, and other
specified acts, to enable the author to receive financial benefits by
exercising such rights and thereby encourage innovation. If a person without
due permission exercises any of the rights within this bundle, then such an act
is an infringement upon the author's copyright in the work. Copyright
infringement is statutorily defined in both India and the US. Like other legal
rights, copyright too is not absolute but is subject to limits and exceptions.
The legal framework of copyright does not absolutely prohibit the use of a
copyrighted work, but, in fact, allows a person to use a copyrighted work under
certain exceptions. One such exception is "fair use." The term fair
use, although undefined under both US and Indian copyright law, has its spirit
captured in legislation, with the judicially derived factors being listed under 17
USC § 107, and § 52 of the Copyright Act of
1957, rendering "[c]ertain acts not amounting to infringement."
Before we delve deeper into the discussion of fair use and
jurisdictional differences, it is essential to understand the fundamentals of
fair use. Fair use is an exception to the rights of the author which allows
limited use of copyrighted material without the author's permission. For
instance, fair use does not allow reproduction of a whole work or a substantial
part of such work, but, rather, extracts or quotations from the work are
permitted, such that they do not appear to snatch the first author's expression
of his or her idea. If, in a statutory construction, there is no notion of fair
use then any use by an unlicensed person, however miniscule, is an infringement
on the rights of the author. To be clear, any unauthorized use of a copyrighted
work is normally an infringement and fair use acts as a defense thereof — the
defense of fair use does not necessarily mandate a non-infringing action. The
unlicensed user admits that he has used the work, which would normally
constitute copyright infringement, but justifies his use as covered within the
fair use exception.
There is a minor difference in terminology with regard to the
concept of fair use in the US and India. US law uses the term "fair
use," while British and Indian law uses the term "fair dealing."
The earliest discussion of fair dealing can be traced to Gyles
v.Wilcox, a decision from the Court of
Chancery in England in which Lord Chancellor Hardwicke introduced the notion of
"fair abridgment." In the US, Justice Joseph Story laid the
foundation for the notion of fair use and abridgment in Folsom
v. Marsh with a four-factor test.
Today, it stands as the basis for the fair use doctrine now codified under US
law. However, from the Folsom decision in 1841 until the enactment of the
Copyright Statute, 17 USC § 107, in 1976 that incorporated the four-factor test,
fair use in US law was only a common law doctrine. One of the earliest Indian
cases to discuss unfair use within the domain of copyright was Macmillan
and Company v. K. and J. Cooper, which was
decided based on the India's earlier Copyright Act of 1914.
The statutory framework for fair dealing in India follows the
common law and, as noted earlier, does not define fair dealing per se.
The legal provision for fair dealing provides that:
The
following acts shall not constitute an infringement of copyright, namely:
- (a) a fair
dealing with a literary, dramatic, musical or artistic work for the
purposes of —
·
(i) research or private
study;
·
(ii) criticism or review,
whether of that work or of any other work;
- (b) a fair
dealing with a literary, dramatic, musical or artistic work for the
purpose of reporting current events —
·
(i) in a newspaper, magazine
or similar periodical or
·
(ii) by broadcast or in a
cinematograph film or by means of photographs.
The
publication of a compilation of addresses or speeches delivered in public is
not a fair dealing of such work within the meaning of this clause. Thus, Indian
law allows fair dealing as a defense for specific acts that would not be deemed
as infringement for the four specified categories of copyrighted works (viz.literary, dramatic, musical
and artistic works).
US law, in contrast to Indian law, does not specify acts
which would be considered fair use; rather it gives a four factor test that
must be considered to assess whether an action of exploitation by the person
falls within the ambit of fair use. The statutory language provides that:
Notwithstanding
the provisions of sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright. In determining whether the
use made of a work in any particular case is a fair use the factors to be
considered shall include:
- (1) the purpose
and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes;
- (2) the nature of
the copyrighted work;
- (3) the amount
and substantiality of the portion used inrelation to the copyrighted work
as a whole; and
- (4) the effect of
the use upon the potential market for orvalue of the copyrighted work.
The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon consideration of all the above
factors.
The US
statute provides a "test" for assessing whether a particular use lies
in the ambit of fair use, as against an exhaustive list of activities that
constitute exceptions to copyright. The test appears to be applicable across
the board, irrespective of the nature of the work protected by copyright.
In a quick comparison of the legislative structures and the
interpretations thereof, one may be tempted to argue that the US route gives
judges more freedom to assess "fair use" and possibly extend these
factors to ever new areas of technology and copyright content. On the other
hand, the Indian boundaries defined for "fair dealing" appear to be
more societal and friendly to the common man. This being said, however, it
appears that the US test may tend to ignore the commercial implications that
fair dealing might have upon such use of a work. The balancing act, at least
for the Indian legislation, appears to have been found in the conjoint
application of the two. Indian courts have now, incorporated vide reference,
the Folsom v.
Marshtest, while adjudging, if fair
dealing was in fact "fair" to the real commercial implications that
the author suffers. This is treading a fine line, whereby, the exception
enumerated in the legislation needs to be satisfied, before the quantitative
estimations of the impact of the fair dealing upon the qualitative exercise of
the author's right can be analyzed. It appears that, just as the Berne
Convention made copyright a sort of
universal right, the developing jurisprudence surrounding fair use and fair
dealing is bringing about parity in the stance that nations take towards
protecting rights of intellectual property owners — thus leading to possible
uniformity in the manner courts across different jurisdictions are likely to
adjudicate disputes.
Sandeep Kanak Rathod holds a bachelor's degree in
Finance and Taxation. He received his law degree from the Government Law
College in Mumbai, and his LL.M. from the University of Mumbai, India. He is a
certified India Patent Agent and has worked in the intellectual property field
within the pharmaceuticals industry for nine years and presently heads the
Intellectual Property Division of Matrix Laboratories Ltd., handling patent
analysis, IP licensing and litigation. Rathod is also associated with civil
society groups in India working to increase access to medicine.
Posted in: COPYRIGHTS
