This article is written by Kashish Sethi, pursuing a Diploma in Intellectual Property, Media & Entertainment Laws from LawSikho.
Copyright enforcement plays a vital role in the entertainment sector. Amendments and advancement in the laws will bring benefits for everyone in the world. In the US-India Seminar held organized by FICCI, the United States Trade Representative said “Copyright law should be the priority for Hollywood and for Bollywood ” and we totally agree with his statement at the conference. Both Hollywood and Bollywood have similar strengths in both the entertainment sector and in the legal field as well. In this article, we will be talking about the key differences in copyright laws between both the countries i.e. USA and India.
USA v. Indian Copyright Law
Copyright is one of a kind of Intellectual Property that gives protection to any content creators of original work in respect of their country’s intellectual property laws. Though the sections of their respective country’s statute may be different the key concepts of such laws are bound to be the same.
As per Berne Convention, 1886 which provides protection of Literary and Artistic Works and has two principles to provide national treatment for the work originating in one of the member states under Berne union and automatic protection of artistic works under national treatment principle.
Therefore, different terminology is used in different countries but since every country is a party of Berne Conventions which the concepts are bound to be the same.
As per the World Intellectual Property Organization (“WIPO”), the term Copyright is described as the rights given to creators over their work. 
In common parlance, the term ‘Copyrights’ refer to those positive rights given to the original content creator i.e. the author of the work to have an exclusive right over that work. It means the original content creator has a right to exploit the work in order to gain benefit from that work.
As per, the United States Copyright Act, (codified at 17 U.S.C. §§ 101 – 810), under § 102 of the Copyright Act, copyright protection is a bundle of rights & protection given to the creator of that work in order to control if the work is created by the author of that work and has expressed it in a tangible medium.
As far as Indian laws with respect to copyright are concerned, Copyright Act, 1957 under Section 14 defines copyright as a bundle of exclusive rights that is vested to the original owner i.e. the author of that work who has expressed it in a written format.
The term ‘Bundle of right’ in both the Countries are with respect to:
- Distribute the work
Distribution of work means having exclusive right over the work to make it available to the public by sale, rental, lease in order to have an economic right.
- Reproduce (or make copies of) the work
Copying/Reproducing work which can include photocopying, copying computer software, using or incorporation of another song into a new.
- Perform or display the work
Displaying/ performing work in public for commercial purpose.
- Adaptation of the original work and create a derivative work
Converting pre-existing work, or a translation, of work in a different form to create a new IP without the owner’s permission in order to have economic benefits.
If someone tries to take over these exclusive rights of the original creator in order to avail unlawful benefit from the original content creator’s work then it would amount to an infringement. Both the USA and India have properly defined the term Copyright Infringement in a statutory definition but the lacuna is not an absolute right which means it is subject to some exceptions.
One such exception is based on the doctrine of equity which allows the copyrightable works, which would otherwise amount to infringement and have been prohibited as per the statute law. Though the terminology of this act is different in both countries. In the USA it is termed as Fair Use and in India, it is termed as Fair Dealing.
USA’s Fair Use
Fair Use is an exception under Section 107 of US Copyright Act where any person has a right to make a reasonable use of someone else’s Copyright work in some exceptional circumstances without the Copyright owner’s permission.
The doctrine of Fair Use is used as a defence which can be used in reproduction of a Copyright material which can be considered as a fair original work. The work can be a criticism, comment, research, scholarship, news, reporting and teaching. Though the defence of Fair Use is not just limited to these areas.
Though, the limit of using someone else’s work is defined in the law. There is no exact definition or a limit how much amount can be used or amount is to be considered under the head of Fair use. Moreover, using the defence of Fair Use does not give license to the creator of that work to use someone else’s work and escape from a suit of infringement. So each case requires different parameters to measure the use is considered as a fair use.
In Folsom v. Marsh Court held that there should be a criteria in deciding Fair Use by looking at the purpose and nature of the work, how much is being used, the quantity and quality of that work and how it is being used. The reproduced work should not supersede the objective of original work.
Four factor test for Fair Use
- Purpose and use of that work
Purpose such as scholarship, research or education purpose.
- Nature of the reproductive work being used
In Warner Bros. Entertainment, Inc. v. RDR Books, 575 F.Supp.2d 513 (S.D. N.Y. 2008), the court held that slightly transformative work not enough to justify a fair use in defense of extensive verbatim use of text from the famous book Harry Potter.
- Amount and substantiality of the part that is used
In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the court held that if you are taking the heart of that work which is the main part of that work it doesn’t count as substantial part or a De-minimums use of that work. It will amount to infringement of that work.
- Effect on the original work in its potential market
In Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), the court held that the economic effect of making a parody is not to destroy or hamper the image of original work in the market but if there is a bad review it should not affect the potential market of original work.
Cases involving the defence of Fair Use
Castle Rock Entertainment v. Carol Pub Group: In this case it was held that a book being a transformative work of a Tv show would not be considered as a Fair Use as the book has the essential element of Tv program and has occupied a market for a derivative work that the original author has control over.
Monster Communications, Inc. v. Turner Broadcasting System, Inc.: In this case, it was held that the use of a historic footage is to be considered as a fair use by considering the amount used from the documentary. Moreover, it was found out that it would unlikely harm the market for Plaintiff’s work as the content taken is too short when it is looked as a whole. Hence, it would be considered as a fair use.
India’s Fair Dealing
The Doctrine of fair dealing defined under Section 52 of Copyright Act, 1957 allows a person to use someone else’s Copyrightable work without the author’s permission in a limited manner which would not be considered as an infringement. This doctrine is being used as a defense from causing infringement.
Doctrine of fair dealing is essential for research and academic purpose, and for spreading knowledge done with a bona-fide manner. In the case of Civic Chandran v. Ammini Amma the court held that in cases of Fair Dealing there is not a prima facie case of infringement before consideration of an application of fair dealing. Therefore, the scope of fair dealing is to be done on a case to case basis.
The following act shall not constitute an infringement of Copyright:
Fair dealing with a literary, dramatic, musical or artistic work for the purpose of-
- Research or private study
In Chancellor, Masters v. Rameshwari Photocopy Services (Famous Delhi University Case) where the Defendant copied a few substances from different books and made a compilation. It was held that the work was used for private research, private study which is permissible under Section 52(1) (i) of Copyright Act,1957.
- Criticism or review, whether of that work or of any other work
In Civic Chandran v. Amminni Amma Court also held that criticizing original work which does not constitute improper use of original work would qualify as fair use/fair dealing under the Copyright Act, 1957.
- Reporting current event in a newspaper, magazine or by broadcast
In Indian Express Newspapers v. Jagmohan Mundhara and Ors. Where the court held that there is no copyright on the event which has actually taken place therefore Reporting, current event in a newspaper, magazine or by broadcast is to be considered as a fair use as the Copyright Act, 1957.
Case involving defence of Fair Dealing
In Syndicate of Press of University of Cambridge v. Kasturi Lal & Sons, the court held that a review, criticism or guide creates the original work for the author. Hence, it would get protection under Fair Dealing.
In Ashdown v. Telegraph Group, where the court held that publishing of extracts of confidential diary minutes of a political party in the newspaper does not get a defense of fair dealing as it was done for a commercial purpose.
USA’s Fair Use v. India’s Fair Dealing
In a quick comparison both fair dealing and fair use are a related concept and are a necessary doctrine in their respective copyright act which also strengthen their freedom of speech. Though the Fair dealing is very limited and confined as compared to the US fair use where it is much elaborated and has a flexible approach. In India there is no statute definition of how much amount is to be considered as fair dealing and it is absolutely impossible to come with a “rule of thumb” which would find its application in all cases of fair dealing as each case has different circumstances.
Indian Copyright law is still advancing but if we look towards the west side, there are various advancement Indian courts also look after the west side for some reference in dealing with cases of fair dealing. USA have introduced innovative interpretations and judicial activism in the field which Indian Courts are yet to fully explore the scope of fair dealing and which is a necessary exception in the Copyright regime. On the other hand Indian Fair Dealing is bound to be more societal friendly and is for common man, on the other hand US Fair Use tends to ignore the commercial implications that Fair Dealing might work upon. Though Fair Use is much more advanced terminology and has a well-established application Indian Courts sometimes refer to it while dealing with various cases in the same niche.
Delhi High Court in this case refers to the USA Four Factor’s test mentioned in Harper & Row v. Nation Enterprises 471 US 539 (1985) while deciding whether the circumstance belongs to fair use or not. It was held that the amount and value of content taken would be considered as also the fourth factor i.e. the effect on the market share of the original work would be considered.
In this case, the court while deciding the matter of whether the transformation of work is amount to Fair use or not. By citing American Case Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 588, 85 L.Ed 2d 588, 105 S. Ct. 2218 (1985) court referred to the Four factor test and held that the Work amounts to fair use for the purpose of criticism and review on the theme and use of themes in short clips which would not harm the future market of that film.
It can be safely concluded that both the doctrines are faces of a similar coin though the US Copyright Laws are advanced and well defined as compared to Indian Copyright Laws. The Concept of Fair Use is used to complement the doctrine of Fair Dealing as it is difficult to decide the concept exactly in a statute as it varies from circumstance to circumstances. The Four Factor test is being used in many judgments which helped in laying a better concept of fair Dealing in India. Both the exceptions are based on the Article 13 of Berne Conventions which help in avoiding monopoly over a copyright work and used for betterment or development of the society.
“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 should establish a well-defined statute based on the west side which would clearly define the meaning and extent of fair dealing in India. It would promote more innovative content in the field of Media and Entertainment and help in protecting content creators’ exclusive right.
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