In India the doctrine of fair dealing is enshrined under section 52 of the Indian Copyright Act, 1957 (“Act”). The various activities like private research and dealing with computer programmes and their copying by a lawful possessor, making sound recordings of any literary, dramatic and musical works in certain circumstances has been declared to constitute fair dealing or fair use. The doctrine of fair dealing began as judge made exception on principle of equity, allowing certain uses of literary work that copyright work would have otherwise prohibited.1 It gave recognition to the existence of a legitimate public interest in the creation of new or derivative literary works, any person other than the owner of the copyright is permitted to use in a reasonable manner without the owner’s consent.2 Though the jurisprudence on the doctrine of fair dealing is still developing in India, the courts have often resorted to English and American jurisprudence while adjudicating upon the scope of the doctrine. Recently, the Delhi High Court (“DHC”) in Syndicate of the Press of the University of Cambridge v. B.D. Bhandari & Ors3 gave an interesting interpretation on the doctrine of fair dealing and the copyright in literary work. The present bulletin will try to bring forth DHC’s view on the use of the doctrine of fair dealing in light of the facts and circumstances of this case.
1.0 Factual matrix
The present dispute arose on account of publishing and distribution of guidebooks by the Respondent that contained illegal and unauthorized reproduction of the grammar exercises and keys from one of the Appellant’s leading publications, titled “Advance English Grammar by Martin Hewings.” It was alleged that such an act by the Respondent constituted an infringement of the Appellant’s copyright over the aforesaid book. The Appellant earlier filed a suit before the single bench of the DHC to restraint the Respondent from selling their guides, wherein the suit was dismissed on the ground that the use of the work in question fell within the scope of section 52(1)(h)4 of the Act, which provides for the doctrine of fair dealing. It was also observed by the single bench that there was no originality or invention displayed in composing grammar sentences or exercises and hence the Appellant’s work did not constitute original literary, dramatic, or artistic works. Therefore, aggrieved by the aforesaid order, the Appellant preferred an appeal to the division bench of the DHC.
The issues that came up for discussion before the DHC were –
- Whether the doctrine of fair dealing is applicable to the facts of the present case?
- Whether Respondent’s use of the Appellant’s work constitutes an infringement under the Act or is protected under the doctrine of fair dealing?
3.0 Discussion on the Doctrine of Fair Dealing
The DHC discussed the doctrine of fair dealing based on the judicial precedents from various jurisdictions around the world. The court referred to the Harper & Row v. Nation Enterprises5 wherein the following four factors were pointed out which could be relevant in determining whether the use by the infringer was fair:
- The purpose and character of the use;
- The nature of the copyrighted work;
- The substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect on the potential market for or value of the copyrighted work.
The court analyzed the facts of the case in light of the aforesaid factors taking in account the principle evolved in Campbell v. Accuff Rose Music6 that all the factors are to be treated together and no undue preference should be given to anyone of them.
4.0 Analysis of the Court
In relation to the first factor as listed above, it was observed by the DHC that the nature of the use, i.e., whether it was for educational purposes or for review or criticism must be taken in account. It is to be seen if the work merely supersedes and supplants the original work or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; in other words, whether and to what extent the new work is transformative. Transformative works, as has been held by the courts, have a greater chance of falling within the doctrine of fair dealing.
The second factor evaluates the nature of the copyrighted work and is intended to find out if the work actually merits copyright, i.e., whether copyright law was intended, at its core, to cover such works. However, this factor is not likely to help much in separating the fair use work from the infringing ones, in cases where the subsequent work is transformative.
The third factor which deals with the extent of copying does not entail that the reproduction of the entire work would militate against the finding of fair use. There could be cases where the copying could be substantial and the courts observe fair use, at the same time there could be cases where the copying through insubstantial could be held as infringement.
The fourth factor entails that the courts have to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged, in by the Defendant would result in a substantially adverse impact on the potential market.
5.0 Decision of the Court
The DHC bench agreed on the fact that the Respondent had been using the books published by him for commercial exploitation and not for only educational purposes for the university students which took the matter beyond the purview of the fair use doctrine. It was opined that when a published work is prescribed as text book, a guidebook relating thereto has to satisfy the tests for a derivative work as well as not be verbatim reproduction of the original book. The guiding principle is to see whether such guide book provides explanation, stepwise process for reaching the answer and/or a detailed analysis of any problem with the objective of making the task simpler in understanding the subject provided in the textbook.
It was further held that, if a guide book reproduces the original work to a great measure without its contribution, it may amount to plagiarism and may infringe the copyright law of the person in original work. On the other hand, if guide book written in a different format, albeit, dealing with the subject matter which is contained in the original book, with a purpose to help, assist and support the students, the problems given in the text book, then it would be a work different from the original work.
The bench was of the view that crucial test which is to be applied is the transformative character of the use as has been used by the American courts. Herein, the task would be to ascertain as to whether the purpose served by the guide book is substantially different from the purpose served by the textbook. If the guide book is different in character and not a mere substitute of the original work/textbook, it would be treated as transformative. However, the character must be substantially different and it is not sufficient that superficial changes are made with basic character of the textbook creeping in the guide book. In that eventuality, it would not qualify as a work of transformative character. If this directive work in the guidebook has assumed different character, it would not amount to infringement of the original work, though it would have been drawn, to certain extent, from the original work and, in that sense, it would amount to fair use.
Therefore, keeping in view the aforesaid observations and discussions, it was held that the intention of the Respondents in authoring and publishing these notes was to merely provide a guide to the students to understand the books prescribed by the university. Furthermore, there was no attempt on the part of the Respondents to represent to the public that any portion of the Appellant’s book is a work of the Respondent. Such a use of an original work by a person thereby creating another work of distinctive character was held to be protected under the Act and hence could not amount to infringement and would be covered by the doctrine of fair dealing.
In the present case the DHC has interpreted the term “review” under section 52(1)(a)(ii)7 of the Act in a contextual background. The Plaintiff’s claim to copyright was premised on the work being a literary one. The review or commentary, of a part of such mathematical work too was seen in the background of this claim. In the context of a mathematical work, a review was interpreted to be a re-examination or a treatise on the subject. The courts have generally taken a mild stand on guides so far as the purpose of the guide is only to help the students to understand the meaning, significance and the answers that have to written for the questions therein. Thus, it falls squarely under fair dealing with a literary work for the purpose of private study bona fide intended for the use of educational institutions.
Though, the Indian courts have borrowed the concepts from various jurisdictions around the world in the assessment of fair dealing, they have only considered the issues in a limited context. In the present case, the DHC has tried to explain the concept of fair dealing and has dealt with it in detail but still the Indian copyright jurisprudence is awaiting precedents to address fundamental issues about the purpose, meaning and application of the Indian law on fair dealing.
Authored by: Onkar
1 Harper & Row Publishers v Nation Enterprises, 471 US 539
2 SK Dutt v Law Book Co and Ors, AIR 1954 All 570
3 RFA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008, pronounced on August 3, 2011
4 Section 52(1)(h) of the Act permits the reproduction of a literary, dramatic or artistic work by a teacher or a pupil in the course of instruction or as a part of the questions to be answered in an examination or answers to such questions.
5 471 US 539 (1985)
6 510 US 569 (1994)