Ipr presentation

1. JEMTEC – JIMS ENGINEERING MANAGEMENT
TECHNICAL CAMPUS , SCHOOL OF LAW
SUBJECT :- INTELLECTUAL PROPERTY RIGHTS
TOPIC :- DOCTRINE OF FAIR USE AND FAIR
DEALING
PRESENTED TO :- MS MANISHA MADHAV
PRESENTED BY :- SAMRIDDHI SHUKLA
(STUDENT OF BBA-LLB VIII-B)
ENROLLMENT N.O. :- 42225503518

2. WHAT IS FAIR USE
Fair use is a defense to a suit for infringement that means an act that would have amount to infringement is
given protection under this doctrine.Fair use is not a ‘license’ but in the nature of a privilege by virtue of which,
the person pleading defense against a suit for infringement can escape the clutches of copyright law. Fair use
permits a party to use a copyrighted work without the copyright owner’s permission for purposes such as
criticism, comment, news reporting, teaching, scholarship, or research. The U.S. Copyright Act specifies that the
“fair use of a copyrighted work, including such use by reproduction in copies…for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not
an infringement of copyright. While fair use explicitly applies to such uses of copyrighted work, the defense is
not limited to these areas.The purpose of allowing copyright is for the advancement of human knowledge. The
doctrine of fair use has developed over the years as courts tried to balance the rights of copyright owners with
society’s interest in allowing copying in limited circumstances. This doctrine has at its core, a fundamental belief
that not all copying should be banned, particularly in socially important endeavours such as criticism, news
reporting, teaching and research. The term ‘fair use’ is peculiar to the United States; a similar principle, fair
dealing, exists in some other common law jurisdictions such as U.K. And India Until codification of the fair use
doctrine in the 1976 Act, fair use was a judge-made right developed to preserve the constitutionality of
copyright legislation by protecting First Amendment values . The doctrine of fair use has been codified under the
section 107 of the US copyright law.

3. EXAMPLES OF FAIR USE
• Criticism and commentary :- If you are commenting upon or critiquing a copyrighted work—for
instance, writing a book review—fair use principles allow you to reproduce some of the work to
achieve your purposes. The underlying rationale of this rule is that the public reaps benefits from
your review, which is enhanced by including some of the copyrighted material. Example art
criticism that requires reproducing the art is Arthur Lubow, “A Portrait of America That Still
Haunts, Decades Later,” The New York Times, June 12, 2020, sec. Arts. Quoting or excerpting a
work in a review or criticism for purposes of illustration or comment would normally be fair use.
• News reporting :- Summarizing an address or article, with brief quotations, in a news report
constitutes fair use. A journalist would be permitted to quote from a political speech’s text without
the politician’s permission.
• Research and scholarship:- Quoting a short passage in a scholarly, scientific, or technical work for
illustration or clarification of the author’s observations would be deemed acceptable. An art
historian would be able to use an image of a painting in an academic article that analyzes the
painting.
• Non-profit educational uses :- When teachers photocopy limited portions of written works for
classroom use, this is normally acceptable. An English teacher would be permitted to copy a few
pages of a book to show to the class as part of a lesson plan. (Note that she would not be permitted
to photocopy the entire book).
• Parody :-A parody is a work that ridicules another, usually well-known work, by imitating it in a
comic way. Judges understand that, by its nature, parody demands some taking from the original
work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is
permitted a parody in order to “conjure up” the original. A comedian could quote from a movie
star’s speech in order to make fun of that star

4. CASE LAWS ON FAIR USE
• Folsom v. Marsh
FACTS : Plaintiffs alleged that defendants invaded its copyright by publishing,
verbatim, copies of the letters of former President George Washington. A little
over one third of defendants’ publication was interspersed with never before
published official letters and documents, and private letters written by
Washington. The rest of the publication consisted of a narrative of Washington’s
life with explanatory notes and illustrations by the editor.
ISSUE: Did the defendants’ verbatim use in its own publication of the letters of
former President Washington constitute an act of piracy that violated plaintiffs’
copyright in the original work that the letters had been taken from?
HELD : The circuit court held that plaintiffs’ copyright had been violated
(pirated) because defendants’ publication was not a fair and bona fide abridgment
of an original work. There was no real, substantial condensation of the materials
thus constituting a true labour of the intellect. If defendants could take 319
letters, included in plaintiffs’ copyright, and exclusively belonging to them, there
was no reason why another bookseller could not do the same. This case had
established the concept of Fair Use under the U.S. law.

5. • Campbell v. Acuff-Rose Music, Inc.
FACTS: Petitioners, a rap music group, were sued by respondent, the corporate owner of an original
rock ballad, for copyright infringement. Petitioners claimed the song was a parody entitled to fair use
protection under the Copyright Act of 1976. The court, however, found the commercial purpose of
petitioner’s parody had prevented it from being a fair use. The case was appealed.
ISSUE: Did the court error when it concluded that the commercial nature of petitioners’ parody had
rendered it presumptively unfair?
HELD: The court held that if first factor is considered it is important to analyse to what extent the
new work is transformative that is to what extent modifications have been made to the original
through addition of new expression, meaning or message. The original songs name was oh pretty
woman and a rap parody of it was made court held that it goes against the defendant as the crew had
taken the heart of the original but permissible since the heart is also what almost readily conjures up
the song for parody . Further the parody creates its own separate market without adversely affecting
the market of the original author. So it amounts to fair use hence permissible.

6. FACTORS TO BE CONSIDERED FOR DETERMINING FAIR USE
AND FAIR DEALING
• Purpose and character of use :- Whether the accused is creating his own market or aiding in the expansion of aggrieved
party.The first factor mostly focuses on whether the use is commercial or non-commercial and whether the use is
transformative. If a use is commercial it is less likely to be fair use and if it is non-commercial it is more likely to be fair use.
Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for
the original use of the work. If the use is transformative it is more likely to be fair use and if it is not transformative it is less
likely to be fair use. For example, using an image of a painting found in an art history textbook would likely be considered fair
if the author is making scholarly commentary on the work. By contrast, using that same copyrighted painting on an
advertisement for an unrelated product would not be considered fair use.Similarly, the fact that a use is not for profit will not
necessarily excuse infringement. If, for example, a teacher makes photocopies of a whole novel for students her class, this
would not be considered fair use even if it is educational. For example, if an artist were to take a portion of another artist’s
copyrighted painting and incorporate that portion into his or her own work to make a commentary on it, this would be a
legally protected activity.
• Nature of copyrighted work ? Whether the work is published or unpublished work is one of the most crucial considerations
to decide liability in case the work is unpublished the person accused of copyright infringement is under an obligation or duty
bond to prove the data retrieved was through a lawful means . In case of published work the liability to lawful access is of a
lesser degree .Fictional works on the other hand have a greater degree of copyright protection as compared to legendary work.
The second factor considers the nature of the underlying work, specifically whether it is more creative or more factual. Use of
a more creative or imaginative underlying work is less likely to support a claim of fair use, while use of a factual work would
be more likely to support a fair use claim. This factor also looks at the publication status of the copyrighted work. When the
copyrighted work is unpublished the use is less likely to be a fair use.
• Amount and substantiality of the work :- If the percentage of work copied is more then the accused is held to be more liable
for infringement. However always it is not the quantity of the work that has been stolen which is The determining factor
rather at times we may also look at the quality and substantiality of the stolen work in the original piece . If the core of the
work is the subject matter of copyright infringement it will still attract liability. Example, the copying of one minute and 15
seconds of a 72-minute Charlie Chaplin film was considered substantial and was not permitted as a fair use. In rare cases,
copying of a complete work may be considered as a fair use.

7. • Effect on the market
If the accused person has so affected the market of the original author that it has resulted in
shrinking of the Market of original author or it has acted as a competition to the original author
then such an accused person cannot get Defense / Exception of fair use .The fourth factor not
only considers whether the defendant’s activities may harm the current market, but also considers
whether the use may cause any harm to potential markets that could be exploited by the copyright
owner if the use were to become widespread. If the use harms the copyright owner’s current or
potential market then it will weigh against fair use. Along with the first factor, this factor is one of
the most important in the fair use analysis. For example, in a case concerning a photograph that
was adapted to a wood sculpture, the court recognized the existence of a market for new versions
or new uses of the photograph, and determined that the unauthorized use of the photographic
image undermined the potential market. The ultimate question is whether the infringer’s conduct
will harm the original copyright holder.

8. CONCEPT OF FAIR DEALING
Fair dealing given under section 52 of the Indian copyright act 1957
The term “fair dealing” has not been defined in the Act. It is a legal doctrine, which allows a
person to make limited use of copyrighted work without the permission of the owner. Doctrine
of Fair Dealing is an exception to the law that would usually protect any material that would be
considered to be copyrighted as under the Indian Copyright Act, 1957 (hereinafter known as the
“Act”).The meaning of “Fair Dealing” depends on different facts and circumstances. In India, the
Court applies basic common sense so that they can determine as to what can be constituted as
Fair Dealing on the case- to- case basis.It permits reproduction or use of copyrighted work in a
manner, which, but for the exception carved out would have amounted to infringement of
copyright. It has thus been kept out of the mischief of copyright law.1 The defense of “fair
dealing” initially originated and emanated as a doctrine of equity which allows the use of
certain copyrightable works, which would otherwise have been prohibited and would have
amounted to infringement of copyright. The main idea behind this doctrine is to prevent the
stagnation of the growth of creativity for whose progress the law has been designed. Section 52
of the Indian copyright act 1957 lays down certain acts or works that cannot be considered as
an infringement of copyright namely fair dealing Certain acts not to be infringement of
copyright.— The Court along with the above mentioned provision, also relies upon classic cases
to decide to what extent the case falls under fair dealing under the act

9. ACTS THAT DO NOT ACT AS INFRINGEMENT ACCORDING TO
SECTION 52 OF INDIAN COPYRIGHT ACT,1957
• 52. Certain acts not to be infringement of copyright.—
• (1) The following acts shall not constitute an infringement of copyright, namely:
• 52(1)(a)(i)- Fair dealing of any work for private or personal use, including research
• All works except Computer Programmes
• 52(1)(a)(ii) – Fair dealing of any work for criticism or review
• All works except Computer Programmes
• 52(1)(a)(iii) – Fair dealing of any work for reporting of current events and current affairs
• All works except Computer Programmes
• 52(1)(aa) – Use of work for the purpose for which it is supplied or making copies
• Computer Programmes
• 52(1)(ab) – To obtain information essential for operating inter-operability of an independently
created work by a lawful possessor
• Computer Programmes
• 52(1)(ac) – Observation, study or testing in order to determine the ideas and principles
• Computer Programmes
• 52(1)(ad) – Making of copies or adaptation of the work from a personally legally obtained copy
for non-commercial personal use

10. • 52(1)(b) – Transient or incidental storage of a work or performance purely in the technical process of electronic
transmission or communication to the public
• All works
• 52(1)© – Transient or incidental storage of a work or performance for the purpose of providing electronic links,
access or integration
• All works
• 52(1)(d) – Reproduction of any work for the purpose of a judicial proceeding or for the purpose of a report of a
judicial proceeding
• All works
• 52(1)€ – Reproduction by Legislature
• All works
• 52(1)(g) – Reproduction for obtaining certified copy
• All works
• 52(1)(g) – Reading or reciting extracts in public
• Literary or dramatic works
• 52(1)(h) – Publication in collection of non-copyright matter, bona fide intended for instructional use
• Literary or dramatic works

11. • 52(1)(i)(i) – Reproduction by teacher or pupil
• All works
• 52(1)(i)(ii) – Reproduction as part of questions to be answered in examination
• All works
• 52(1)(i)(iii) – Reproduction as part of answers in an examination
• All works
• 52(1)(j) – Performance in an education institution like school or college
• All works
• 52(1)(k)(i) – A recording to be heard in an enclosed room for common use of residents in any
residential premises
• Sound recordings
• 52(1)(k)(ii) – A recording to be heard as part of the activities of a club or similar organisation
which is not established or conducted for profit
• Sound recordings
• 52(1)(l) – Performance by an amateur club and performance is given to a non-paying audience,
or for the benefit of a religious institution
• Literary, musical or dramatic work
• 52(1)(m) – Reproduction in a newspaper, magazine or article
• All works

12. Literary works
• 52(1)(p) – Reproduction for purposes of research, private study or publication
• Literary, dramatic or musical works
• 52(1)(q)(i) – The reproduction or publication of any matter published in Official Gazette except an Act of a Legislature
• All works
• 52(1)(q)(ii) – Any Act of a Legislature when reproduced or published together with any commentary
• Literary work
• 52(1)(q)(ii) Report of any committee, commission, council, board appointed by Government
• Literary work
• 52(1)(q)(iv) – Any judgement or order by court, tribunal or other judicial authority
• Literary work
• 52(1)®(i) – The production or publication of a translation in any Indian language of an Act of a Legislature if no translation of such Act or rules
or orders in that language has been previously been produced or published by the government.
• 52(1)®(ii) – The production or publication of a translation in any Indian language of an Act of
a Legislature if the translation is not available for sale to the public Literary work
• 52(1)(s) – The making or publishing of a painting, drawing, engraving or photograph of a
work
• Artistic work
• 52(1)(t) – The making or publishing of a painting, drawing, engraving or photograph of a
sculpture if such work is permanently situated in a public place
• Artistic work

13. • 52(1)(u)(i) – The inclusion in a cinematograph film of any work permanently situated in a public place
• Artistic work
• 52(1)(u)(ii) – The inclusion in a cinematograph film of any other work by way of background or incidental to the
principal matters
• Artistic work
• 52(1)(v) – The use by the creator of work, where the creator of such work made by him for the purpose of the work
• Artistic work
• 52(1)(w) – Making three dimensional object from two dimensional work
• Artistic work
• 52(1)(x) – Reconstruction
• Architectural drawings
• 52(1)(y) – Exhibition
• Cinematographic films
• 52(1)(z) – Storage
• Sound recordings and Cinematographic films
• 52(1)(za) – Performance in religious ceremony or ceremony held by Central Government, Statement Government or
local authority or marriages
• Literary, musical, dramatic works or sound recordings
• 52(1)(zb) – Conversion of copyrighted books/ materials into accessible format for the disabled
• All works
• 52(1)(zc) – Importation of promotional materials
• Literary or artistic works

14. CASE LAWS OF FAIR DEALING
• R.G. Anand v. M/S Delux Films and Ors. :
Facts of the case : ‘Hum Hindustani’ was a play written by Mr. R.G. Anand, the appellant, and an architect by
profession, in 1953. It was a hit amongst the masses when performed the first time and was re-performed in the
subsequent years. This success got the appellant thinking about turning the play into a film. The respondent, a film
producing company, somehow came to know of the appellant’s intent and approached him to take things forward in this
respect. However, even after a brief discussion in 1955, the respondent did not revert to the appellant on the same. The
appellant got wind that the respondent was making a film titled ‘New Delhi’, which he believed was an imitation of his
famous play Hum Hindustani. When he pulled up the respondent about it, the latter assured him that the film was not in
any way a copy of his theatrical stage show and he need not worry about it. But when the appellant watched it after the
release in 1956, the film managed to convince him that it was indeed a copy of his stage show. Inevitably, the appellant
filed a suit of permanent injunction in the Trial Court in Delhi. He appealed that the respondent had tried to imitate his
work, breaching his copyright, and pleaded for a restraining order against the respondent. But the court refused to grant
the same, stating that both the film and the play did not have similarities. The appellant then took to the High Court of
Delhi, seeking to set aside the order imparted by the Trial Court. But even the High Court refused to entertain his plea,
asserting that the Trial Court was correct in its stance. Seeing no other way, the appellant finally approached the Supreme
Court by special leave petition under Article-136 of the Indian Constitution, 1949.
Issues involved : The primary issue involved herein was whether the film titled ‘New Delhi’, created by the respondent
breaches the appellant’s copyright for the play titled ‘Hum Hindustani’ or not.
Held : The supreme court held that the defendants cannot be set to be liable because of differences in story ,
characterization and even the climax of the movie more over , copyright cannot be acquired in a idea . The idea bring old
school in this case their can be a bare chance of copyright over subject matter , plots or historical or legendary facts. The
apex court also stated that an ordinary man would not scan any similarity between the two. Thus, it was held that there
was no breach of the appellant’s copyright.

15. • Eastern Book Company & Ors. V. D. B. Modak and Anr.
Facts: The Petitioners, Eastern Book Company, a partnership firm, and EBC Publishing Private Limited
were engaged in the business of printing and publishing various legal books together. One such publication
was titled ‘Supreme Court Cases’ or SCC. This publication has existed since 1969 and consisted of all non-
reportable, reportable and short judgements, orders, records of proceedings and directions of the Supreme
Court. They published copy-edited versions of these judgments along with certain additions such as
formatting, numbering, cross-referring, and other contributions that rendered it user-friendly. It also
incorporated headnotes, footnotes, and long notes. In 2004, the Respondents, Spectrum Business Support
Limited, (also called Respondent-1) and Regent Datatech Private Limited (Respondent-2) put out a software
titled ‘Grand Jurix’ and ‘The Laws’ respectively. These companies were alleged to have copied the entire
module from SCC onto CD-ROMs, thereby infringing the appellants’ IP rights.
Issues :Whether the Petitioners’ work is eligible for protection under Copyright Law?
• Whether the Defendants infringed the Petitioners’ copyrights?
• Whether individual elements added by the Petitioners suffice to receive copyright protection over the
entire work?
Held : The judgment was ruled in favour of the appellants giving them exclusive right over their content
prohibiting anyone to utilize it. The court ordered the respondents to sell their CD-ROMs with their own
Headnotes, footnotes and editorial and in no way, they should be a copy of the appellant’s work. It further
asked the respondents to not use the paragraphs made by the appellants in their copy-edited version for
internal references and their editor’s judgment regarding the opinions expressed by the Judges by using
phrases like `concurring, ‘dissenting’ `partly dissenting, etc. on the basis of reported judgments in SCC

16. CONCLUSION
It can be safely concluded that the test to determine a copyrighted work as a Fair Use of
such work indeed differs from case to case since such facts are to be given high priority
more than the law itself. Though the legislature has attempted to make law on this
concept more flexible but precise, in the Indian scenario, section 52 of the Copyright
Act, 1957 makes a legitimate stand for the public to rely upon this provision for now. As
mentioned under Article 13 of the TRIPS (Trade-Related Aspects of Intellectual
Property Rights) which reads as follows:“Members shall confine limitations or
exceptions to exclusive rights to certain special cases which do not conflict with a
normal exploitation of the work and do not unreasonably prejudice the legitimate
interests of the rights holder”.India has been able to establish a proper ground as for now
since the whole idea having an exception as against the protection of copyright is to give
rise to creativity and growth which can be transformed and expressed in many other new
ways so as to encourage people to attain such degree of creativity with careful
consideration to the original copyrighted work.