I feel that copyright should be far more embraced in discussions as an enabler of creativity, an enabler of the diversity of what we publish, or an enabler of property.

Michiel Kolman

Copyright is a sort of intellectual property protection allowed under Indian law to the makers of unique works of origin like abstract works (Computer projects, tables, and arrangements including computer data sets which might be communicated in codes, words, plans or in some other structure, including a machine transparent medium), emotional, melodic and creative works, cinematographic movies and sound accounts.

Intellectual property law secures articulations of thoughts as opposed to actual thoughts. Section 13, Copyright Act 1957, states that copyright protection is presented on abstract works, substantial works, musical works, creative works, cinematograph movies, and sound recording. For instance, books and computer programs are secured under the Act as scholarly works. Copyright alludes to a heap of elite freedoms vested in the proprietor of copyright by uprightness of Section 14 of the Act. These privileges can be practiced simply by the proprietor of the copyright or by any other individual who is authorized adequately in such manner by the proprietor of copyright. These privileges include the right of variation, right of generation, right of distribution, right to make interpretations, correspondence to the public, etc. 

Copyright protection is presented on all original scholarly, creative, melodic or sensational, cinematograph and sound recording works. Unique means that the work has not been replicated from some other source. Copyright protection begins from the moment a work is completed, and its enlistment is discretionary; however, copyright registration is always suggested for better security of the work. Copyright enlistment doesn’t give any privileges and is simply by all appearances verification of a passage regarding the work in the Copyright Register kept up with by the Registrar of Copyrights. 

According to Section 17 of the Act, the creator or maker of the work is the primary proprietor of copyright. Copyright enlistment is significant to a copyright holder who wishes to make a civil or criminal suit against the infringer. Enlistment conventions are straightforward, and the desk work is the least. If the work has been done by an individual other than the worker, it is essential to document a duplicate of the task deed with the application.

The Copyright Act

The Copyright Act, 1957 (the ‘Act’) happened in January 1958. The Act has been revised multiple times, i.e., in 1983, 1984, 1992, 1994, 1999 and 2012. The Copyright (Amendment) Act, 2012 is most considerable. The fundamental purposes behind corrections to the Copyright Act, 1957 is to make the Act in line with two WIPO Internet agreements signed in 1996 specifically, the WIPO Copyright Treaty (“WCT”) and WIPO Performances and Phonograms Treaty (“WPPT”); to ensure the Music and Film Industry and address its interests; to address the worries of the truly crippled and to secure the interests of the creator of any work; incidental changes; to eliminate functional offices; and implementation of freedoms. 

A portion of the significant revisions to the Copyright Act in 2012 is an expansion of copyright protection in the advanced climate, for example, punishments for circumvention of mechanical protection measures and privileges the board data, and obligation of network access supplier and presentation of legal licenses for cover forms and broadcasting associations; guaranteeing the right to get sovereignties for creators, and music writers, selective monetary and moral freedoms to entertainers, equivalent enrolment privileges in copyright social orders for writers and other proper proprietors and the particular case of copyrights for genuinely handicapped to get to any works.

Categories of Copyright

Copyright remains alive all through India in the accompanying classes of works: 

• original scholarly, substantial, melodic, and imaginative works 
• cinematograph films 
• proper documentation. 

These are the general classifications and can be summed up as follows: 

• Literary works – The term scholarly works envelops all works on paper or composing, independent of the quality or style of the work. Scholarly work alludes not exclusively to works of writing and verse; however, whatever would be under the ambit of writing. Notwithstanding, there will be no copyright if the work is only an assortment of words, the assortment of which includes no artistic expertise. In India, a computer program is treated as an artistic work and is ensured. 
• Dramatic Works – An emotional work incorporates any piece for recitation, choreographic work or amusement in the show, the picturesque course of action or acting type of which is fixed recorded as a hard copy or, in any case, does exclude a cinematograph film. 
• Musical Works- Musical work implies a work comprising music and incorporates any graphical documentation of such work however does exclude any words or any activity planned to be sung, spoken or performed with the music. A musical work need not be composed to appreciate copyright protection. 
• Artistic Works – Artistic work implies a composition, a model, a drawing (including a graph, guide, diagram or plan), an etching or a photo, whether or not any such work has creative quality; and some other work of imaginative craftsmanship. Any shading plan, design or course of action of any letters in order or components qualifies as creative work. 
• Cinematograph Films – Cinematograph film implies any work of visual recording on any medium delivered through a process from which a moving picture might be created using any means and incorporates a sound recording going with such visual recording; “cinematograph” will be interpreted as including any work created by any interaction closely resembling cinematography including video films. 
• Sound Recordings – Sound recording implies a recording of sounds from which sounds might be created, paying little heed to the medium on which such recording is made or the technique by which the sounds are delivered. A phonogram and a CD-ROM are sound accounts.

Forms of Copyright Protection

The Copyright Act, 1957 gives copyright protection in India. It gives copyright protection of two forms: 

Financial Rights

The copyright stays alive in unique abstract, sensational, melodic, and imaginative works; cinematographs movies, and sound accounts. The creators of copyright in the previously mentioned works appreciate financial privileges under Section 14 of the Act. The privileges are, for the most part, in regard of scholarly, emotional, and melodic, other than a computer program, to recreate the work in any material structure remembering the putting away of it for any medium by electronic means, to give duplicates of the work to the general population, to play out the work openly or imparting it to general society, to make any movie or sound recording regarding work, and to make any interpretation or transformation of the work. 

On account of a cinematograph film, the designer partakes in the option to make a duplicate of the film including a picture of any picture framing part thereof, to sell or give on recruit or make available for purchase or recruit, any duplicate of the film, and to convey the film to people in general. These privileges are comparably accessible to the creator of sound recording. Notwithstanding the freedoms above, the creator of a composition, model, drawing, or of an original copy of an abstract, emotional or melodic work, in case he was the primary proprietor of the copyright, will be qualified for reserve a privilege to partake in the resale cost of such unique file given that the resale cost surpasses rupees 10,000. 

Moral Rights

Section 57 of the Act states the two essentials of moral privileges of a creator. These are: 

• Right of the Paternity – The right of paternity alludes to one side of a creator to guarantee the origin of work and prevent others from asserting initiation of his work. Right of paternity engages the creator to forestall twisting, mutilation or different modifications of his work or some other activity corresponding to said work, which would be biased to his honor or notoriety. 
• Right of Integrity – The stipulation to Section 57(1) gives that the creator will not reserve any privilege to control or guarantee harm regarding any transformation of a computer program to what Section 52 (1) (aa) applies (for example, figuring out of something similar). It should be noticed that inability to show work or show it as per the general inclination of the maker will not be considered an encroachment of the freedoms presented by this part. The legitimate delegates of the creator might practice the freedoms presented upon a creator of work by Section 57(1), other than the option to guarantee the origin of the work.

Term of Copyright

On account of unique abstract, sensational, melodic, and imaginative works, the term copyright is the lifetime of the creator or craftsman, and 60 years is counted from the year following the death of the creator. On account of cinematograph films, sound accounts, after death distributions, mysterious and pseudonymous distributions, works of government and works of global associations are ensured for 60 years which is counted from the year following the distribution date.

Protection to Foreign Works in India

Copyright of “works” of foreign nationals, whose nations are individual from Convention Countries to which India is a signatory, are secured against any encroachment of their “works” in India through the International Copyright Order, 1999. The Indian Courts have likewise been favorable to dynamic for protecting the copyright of unfamiliar creators/proprietors, which incorporates programming, movies, and screenplay of films and data set. 

The Government of India is likewise stepping up and battling theft in the product business, movies and the music business alongside players in the business through their affiliations and associations like NASSCOM (National Association of Software and Service Companies), NIACOMPUTER (National Initiative Against Piracy and Counterfeiting) and so on.

Concept of Fair Dealing under Copyright

Fair dealing is a constraint and exemption for the individual right conceded by intellectual property law to the creator of imaginative work. It licenses multiplication or utilization of protected work in a way, which, however, for the exemption cut out would have added up to the encroachment of copyright. It has subsequently been kept out of the wickedness of intellectual property law. The protection of “fair dealing” at first started and exuded as a principle of value that permits the utilization of specific copyrightable works, which would somehow have been precluded and would have added up to the encroachment of copyright.

TRIPS and Fair Dealing

This tenet is one of the main parts of Copyright Law, which defines a boundary between a genuine, bonafide fair utilization of work from a malafide obtrusive duplicate of the work. This is the motivation behind why this regulation was unequivocally cherished in Article 13 of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) that states as– “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 right holder”. All the member nations of WTO are obliged to follow the Berne Convention on Copyright just as the TRIPS articles. This way, this teaching has been given a spot in practically all the territorial copyright enactments of the member nations.

Fair Dealing in India

The laws identifying with fair dealing have been consolidated in Section 52 of the Copyrights Act, 1957. As the Indian Copyright Act doesn’t characterize the expression “fair dealing”, the Courts have on different events alluded to the English case Hubbard v Vosper [(1972) 1 All ER 1023 p. 1027] on the topic. The expressions of Lord Denning for this situation set out a much enlightening blueprint of fair giving, stating that it is difficult to characterize what is “fair dealing”. It should be an issue of degree. You should initially think about the number and degree of the citations and extracts…. then, at that point, you should consider the utilization made of them…Next, you should consider the proportions…other contemplations might come into mind too. Yet, after everything is said and done, it involves impression. 

The Indian laws identified with “fair dealing” are constantly viewed as inflexible and ordinary. It gives a thorough list, and any utilization dropping out of the legal list is considered a demonstration of encroachment. Dissimilar to this, the US precept of “fair use” keeps its entryways open for any new exemption, which comprises appropriate and bonafide utilization of a copyrighted work.

Fair Dealing under Indian Copyright Law

Under the Indian legislative regime, Section 52 of the Copyright Act, 1957, sets out specific demonstrations or works that can’t be considered as an encroachment of copyright, precisely fair dealing an abstract, substantial, melodic, or imaginative work not being a computer program for the motivations behind-

• private or individual use, including research;
• analysis or survey, regardless of whether of that work or some other work; 
• revealing recent developments and current issues, including announcing a talk conveyed in the open. 
  • the transient or accidental stockpiling of work or execution simply in the specialized course of electronic transmission or correspondence to people in general; 
  • transient or accidental stockpiling of work or execution to give electronic connections, access or combination, where such connections, access or incorporation has not been explicitly restricted by the right holder, except if the individual mindful knows or has sensible justification for accepting that such capacity is of an encroaching duplicate; 
  • the proliferation of any work with the end goal of legal action or with the end goal of a report of a legal procedure;

In the case of India TV Independent News Service Pvt. Ltd. & Ors. V. Yashraj Films Pvt. Ltd. [FAO(OS) 584/2011], one of the various grounds of the debate was that the respondents “India TV” communicated a TV show wherein a narrative is displayed on the existence of vocalists, and they play out their tunes. While the vocalist sings, clasps of scenes from the films are displayed behind the scenes. The offended parties asserted that such demonstrations of the respondents added up to the encroachment of their copyright. In any case, the respondents asserted that such utilization of the offended party’s protected material established fair dealing inside the implications of Section 52 of The Copyrights Act. 

The Delhi High Court, in its judgment, restricted the respondents from circulating and broadcasting or distributing or in some other mode taking advantage of any cinematograph film, sound accounts or part thereof that the offending party claims. In any case, since such use doesn’t go inside the comprehensive list given under Section 52 of the Act, they were denied any remedy in the fair dealing laws. In any case, after a long prosecution adventure, in the allure from the above request, the Hon’ble seat of the Delhi High Court additionally felt the need for redirection from the traditional methodology. Hence, the decision of the single judge bench was upheld. The limitations in this manner forced were likewise eliminated. The appellants were as yet precluded from showing any cinematographic films without authorization. This judgment shows that the Courts likewise have begun feeling that there is still a lot of left to view, to consider to keep the enactments inseparably with the innovative and logical advancements going across the world.

In the case of Civic Chandran v. Ammini Amma [16 PTC 329 (Kerala)], the Court thought that as a farce didn’t comprise an encroachment of copyright as long as it has not been exploited or misused. Following this case, the Court set up the accompanying three tests which are to be thought about to decide work be an encroachment of copyright: 

• the quantum and worth of the matter taken according to the remarks or analysis; 
• the reason for which it is taken; and 
• the probability of rivalry between the two works.

Relevant Case Laws

Bajaj Electricals Limited vs. Gourav Bajaj & Anr. [Commercial IP Suit (L) No. 195 Of 2020]

Facts
Plaintiff was a piece of the famous Bajaj industry combination and had electrical stores of a similar brand name. Defendant possessed two electrical stores, utilized the name ‘Bajaj’ as a piece of his store names, and had a site for something very similar. Other than this, Defendant utilized the articulation “Powered by: BAJAJ” throughout his exchange. Plaintiff set up their directly over the name by demonstrating that ‘Bajaj’ had been lawfully allowed the situation with a notable brand name. Consequently, Defendant reserved no option to utilize it. It was additionally fought that the utilization of the above-expressed articulation by Defendant was a fair endeavor to delude the general population by recommending that Plaintiff supported/embraced Defendant’s stores. Along these lines, Plaintiff recorded a suit for a directive against the encroaching demonstration by Defendant. 

Decision of the Court
The Bombay High Court contemplated the inquiry concerning whether the current case went under the safeguard of the utilization of individual names. They held that such protection was not substantial as Plaintiff had satisfactorily demonstrated the mala fide aim of Defendant behind the reception of the name ‘Bajaj‘ throughout the exchange. The Court passed an interval directive against the utilization of the brand name in the store names just as the space name of the Defendant.

Marico Limited vs Abhijeet Bhansali [COMIP No. 596 of 2019]

Facts
The Defendant in this was a web-based media force to be reckoned with, who additionally worked his very own YouTube channel. In a video posted on the channel, Defendant offered maligning remarks about Parachute Coconut Oil, which is the Plaintiff Company’s item. The Plaintiff Company had procured enormous generosity in the market inferable from the incredible nature of their merchandise. It was careful concerning the defaming remarks about their item, just as the utilization of their brand name ‘Parachute’. The utilization of the reserved name disregarded the restrictive right presented to Plaintiff as the owner of the brand name, which added up to encroachment. Accordingly, they moved toward the Bombay High Court, looking for an order against Defendant. 

Decision of the Court
The Court depended on the Trademarks Act, 1999 and, in a detailed understanding of Section 29 of the Act, held that Defendant was at fault for encroaching the brand name of Plaintiff by utilizing it without earlier approval in his video. Henceforth, a break directive was passed against Defendant alongside a request for the evacuation of the upbraided video.

Sameer Wadekar & Anr. vs. Netflix Entertainment Services Pvt. Ltd & Ors. [2020 SCC Online Bom 659]

Facts
The current suit was established upon the basis of a charge that Defendant had replicated the abstract work of Plaintiff and changed over something similar into a web series without his consent, in this way infringing his copyright. The primary dispute raised by Plaintiff was that there were a few similitudes between his work and the web series and that he had recently imparted his work to a known partner person of Defendant. Consequently, he guaranteed copyright encroachment and looked for an order against the arrival of the web series. 

Decision of the Court
The Bombay High Court examined both the works and inferred that the similitudes were not adequate to pronounce the web series as a duplicate of the artistic work of the Plaintiff. The similitudes that emerged were identified with the idea, and no encroachment could be asserted for something similar. It likewise held that the simple reality that Plaintiff had imparted his work to a partner of Defendant was sufficiently not to build up an at first sight instance of copyright encroachment. Subsequently, the application for the order was excused, and the arrival of the web series was allowed.

Star India Pvt. Ltd. vs. Moviestrunk.com & Ors. [CS(COMM) 408/2019]

Facts
Plaintiff was a film production and distribution company, while the Defendants operate many web-based streaming sites. The current suit was done against the unlawful gushing of one of the Plaintiff’s movies on the Defendants’ sites, adding copyright encroachment. Plaintiff, in this manner, moved toward the Delhi High Court, looking for alleviation against the encroachment. 

Decision of the Court
The Court perceived the Plaintiff’s right conceded by the Copyright Act, 1957 over the selective abuse and dissemination of their protected substance. There was a fair instance of encroachment against the Defendants who had made the film accessible to general society without the information and consent of the Plaintiff. Thus, the Court allowed a directive and granted fair harm.

International Society for Krishna Consciousness (ISKCON) vs Iskcon Apparel Pvt. Ltd & Ors. [Commercial IP Suit (L) No. 235 of 2020]

Facts
The current suit was recorded under the watchful eye of the Bombay High Court for supposed brand name encroachment and passing off. Plaintiff fought that by selling articles of clothing under the name of ‘Iskcon’, Defendant was encroaching their brand name and endeavoring to make his image look like being related with the Plaintiff bunch. Plaintiff likewise tried to get their imprint announced as a notable brand name. 

Decision of the Court
The Court announced that a fair instance of brand name encroachment had been set up in the current situation and subsequently requested the Defendants to hold back utilizing the Plaintiff’s imprint. It was additionally inferred that Plaintiff’s imprint fulfilled every one of the legal necessities of a notable brand name, and accordingly, the Court proclaimed it this way.

Conclusion

It tends to be securely presumed that the test to decide a protected work as a Fair Use of such work to be sure contrasts from one case to another since such facts are to be given higher importance than the actual law. However, the governing body has endeavored to make this idea more adaptable yet exact; in the Indian situation, Section 52 of the Copyright Act, 1957 makes a genuine representation for people, in general, to depend upon this arrangement until further notice. As referenced under Article 13 of the TRIPS (Trade-Related Aspects of Intellectual Property Rights), which peruses as, “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 the option to build up a fairground regarding the entire thought having a particular case as against the protection of copyright is to bring about innovation and originality, which can be changed and communicated in numerous new ways to urge individuals to accomplish such level of imagination with careful thoughts to the first protected work.

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Editor’s Note
This article explains and discusses the concept of fair dealing under copyright protection laws, with particular reference to the Indian legislative framework. The author has firstly explained the various categories of copyright and the forms of copyright protection available under the Indian Copyright Act, 1957. The author has also touched upon the duration/term of copyright protection in India as well as the protection given to foreign works in India.

Further, the author has discussed the provisions related to fair dealing in the Indian copyright protection regime and has substantiated the current position of the same with relevant and contemporary case laws. Lastly, the author has concluded by saying that the test for determining fair use should be decided on the basis of the facts and circumstances of each case and not on the rigid laws.