Simply stated, a copyright is a statutory protection granted to an author who has created a work, or to an owner thereof, to protect unauthorized copying of the work, so that the efforts and resources of the author / owner in creating / acquiring the work are not misappropriated by others. There is no right to copy such work! The general principle therefore, is that any usage or exploitation of a copyrighted work by a third party should necessarily have the prior permission, authorization or license by the author/owner of such work, but for which, such usage or exploitation shall constitute infringement.
As an exception to this general rule, copyright laws provide for fair dealing. Fair dealing is a legal doctrine which allows limited use of copyrighted work without the permission of the owner.
Why such exception?
Protection and enforcement of IPR should be conducive to social and economic welfare. There may be genuine situations where copyrighted works should be permitted to be used, without restriction, or fear of infringement, for promoting public interest. This is a universally recognized and accepted principle, though the number, scope and extent of such exceptions to copyright vary from country to country. Generally, to qualify as fair dealing, such usage of copyrighted work should be restricted to special cases without unreasonably prejudicing the legitimate interests of the owner of the copyright.
What constitutes ‘fair’?
This depends entirely on the facts and circumstances of a given case. Many a time, it is difficult to distinguish between fair dealing and infringement; the dividing line is thin. Whether a usage is fair dealing or not depends on the nature of the work used, purpose of such usage, the amount of the work used and the effect of such use on the original work. In several countries, there are no pre‐fixed parameters to determine fair dealing. Courts tend to apply common sense to the situation on hand. In most cases, usage of copyrighted work may constitute fair dealing where the larger public interest involved in such usage does not cause significant economic impact on the owner of such copyright. If the intention is to compete and derive profit, then such usage is not fair dealing.
In India, certain acts (not relating to a computer program) would not constitute infringement and be treated as fair dealing, depending on the purpose.
For example –
- a) Usage of a work, by a student, or a scholar, merely for private purposes without commercial exploitation, in connection with research;
- b) Usage or reference to a work for critic review;
- c) Usage or reference for news reporting, news broadcast, judicial proceedings or reporting of judicial proceedings;
- d) Reproduction or publication exclusively for use of members of the Legislature;
- e) Reading or recitation of a reasonable extract in public, provided it is not commercial exploitation to the prejudice of the owner of the copyright;
- f) Minor reproduction in a published collection intended for educational institutions;
- g) Reproduction or usage with the intention of benefiting disabled persons.