JURIST Guest Columnist Sandeep Kanak Rathod, an LL.M. Candidate at the University of Pittsburgh School of Law, is the author of the ninth entry in a 14-part series from the LL.M. students of the University of Pittsburgh School of Law. He explores how copyright laws in the US and India differ...
In its definition of copyright, the US Copyright Office states that "copyright ... has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work." Indian law, on the other hand, supplies a statutory definition of copyright in section 14 of the Copyright Act of 1957.
On a general level, copyright is a positive privilege that grants exclusive rights to the author of a copyright or authorizes others to benefit from a copyrighted work. It is interesting that the US, unlike any other nation, in its Constitution, under Article 1, § 8, Clause 8, the Copyright Clause, refers to copyrights in the same breath as patents. Patents, unlike its constitutional co-existent, are a negative right to prevent others from exploiting a patented invention.
Copyright gives a bundle of exclusive rights to the author of a copyrighted work with respect to the reproduction of the work, and other specified acts, to enable the author to receive financial benefits by exercising such rights and thereby encourage innovation. If a person without due permission exercises any of the rights within this bundle, then such an act is an infringement upon the author's copyright in the work. Copyright infringement is statutorily defined in both India and the US. Like other legal rights, copyright too is not absolute but is subject to limits and exceptions. The legal framework of copyright does not absolutely prohibit the use of a copyrighted work, but, in fact, allows a person to use a copyrighted work under certain exceptions. One such exception is "fair use." The term fair use, although undefined under both US and Indian copyright law, has its spirit captured in legislation, with the judicially derived factors being listed under 17 USC § 107, and § 52 of the Copyright Act of 1957, rendering "[c]ertain acts not amounting to infringement."
Before we delve deeper into the discussion of fair use and jurisdictional differences, it is essential to understand the fundamentals of fair use. Fair use is an exception to the rights of the author which allows limited use of copyrighted material without the author's permission. For instance, fair use does not allow reproduction of a whole work or a substantial part of such work, but, rather, extracts or quotations from the work are permitted, such that they do not appear to snatch the first author's expression of his or her idea. If, in a statutory construction, there is no notion of fair use then any use by an unlicensed person, however miniscule, is an infringement on the rights of the author. To be clear, any unauthorized use of a copyrighted work is normally an infringement and fair use acts as a defense thereof — the defense of fair use does not necessarily mandate a non-infringing action. The unlicensed user admits that he has used the work, which would normally constitute copyright infringement, but justifies his use as covered within the fair use exception.
There is a minor difference in terminology with regard to the concept of fair use in the US and India. US law uses the term "fair use," while British and Indian law uses the term "fair dealing." The earliest discussion of fair dealing can be traced to Gyles v.Wilcox, a decision from the Court of Chancery in England in which Lord Chancellor Hardwicke introduced the notion of "fair abridgment." In the US, Justice Joseph Story laid the foundation for the notion of fair use and abridgment in Folsom v. Marsh with a four-factor test. Today, it stands as the basis for the fair use doctrine now codified under US law. However, from the Folsom decision in 1841 until the enactment of the Copyright Statute, 17 USC § 107, in 1976 that incorporated the four-factor test, fair use in US law was only a common law doctrine. One of the earliest Indian cases to discuss unfair use within the domain of copyright was Macmillan and Company v. K. and J. Cooper, which was decided based on the India's earlier Copyright Act of 1914.
The statutory framework for fair dealing in India follows the common law and, as noted earlier, does not define fair dealing per se. The legal provision for fair dealing provides that:
The following acts shall not constitute an infringement of copyright, namely:The publication of a compilation of addresses or speeches delivered in public is not a fair dealing of such work within the meaning of this clause. Thus, Indian law allows fair dealing as a defense for specific acts that would not be deemed as infringement for the four specified categories of copyrighted works (viz. literary, dramatic, musical and artistic works).
- (a) a fair dealing with a literary, dramatic, musical or artistic work for the purposes of —
- (i) research or private study;
- (ii) criticism or review, whether of that work or of any other work;
- (b) a fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events —
- (i) in a newspaper, magazine or similar periodical or
- (ii) by broadcast or in a cinematograph film or by means of photographs.
US law, in contrast to Indian law, does not specify acts which would be considered fair use; rather it gives a four factor test that must be considered to assess whether an action of exploitation by the person falls within the ambit of fair use. The statutory language provides that:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:The US statute provides a "test" for assessing whether a particular use lies in the ambit of fair use, as against an exhaustive list of activities that constitute exceptions to copyright. The test appears to be applicable across the board, irrespective of the nature of the work protected by copyright.
- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
- (2) the nature of the copyrighted work;
- (3) the amount and substantiality of the portion used inrelation to the copyrighted work as a whole; and
- (4) the effect of the use upon the potential market for orvalue of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
In a quick comparison of the legislative structures and the interpretations thereof, one may be tempted to argue that the US route gives judges more freedom to assess "fair use" and possibly extend these factors to ever new areas of technology and copyright content. On the other hand, the Indian boundaries defined for "fair dealing" appear to be more societal and friendly to the common man. This being said, however, it appears that the US test may tend to ignore the commercial implications that fair dealing might have upon such use of a work. The balancing act, at least for the Indian legislation, appears to have been found in the conjoint application of the two. Indian courts have now, incorporated vide reference, the Folsom v. Marsh test, while adjudging, if fair dealing was in fact "fair" to the real commercial implications that the author suffers. This is treading a fine line, whereby, the exception enumerated in the legislation needs to be satisfied, before the quantitative estimations of the impact of the fair dealing upon the qualitative exercise of the author's right can be analyzed. It appears that, just as the Berne Convention made copyright a sort of universal right, the developing jurisprudence surrounding fair use and fair dealing is bringing about parity in the stance that nations take towards protecting rights of intellectual property owners — thus leading to possible uniformity in the manner courts across different jurisdictions are likely to adjudicate disputes.
Sandeep Kanak Rathod holds a bachelor's degree in Finance and Taxation. He received his law degree from the Government Law College in Mumbai, and his LL.M. from the University of Mumbai, India. He is a certified India Patent Agent and has worked in the intellectual property field within the pharmaceuticals industry for nine years and presently heads the Intellectual Property Division of Matrix Laboratories Ltd., handling patent analysis, IP licensing and litigation. Rathod is also associated with civil society groups in India working to increase access to medicine.
Suggested citation: Sandeep Kanak Rathod, Comparing US and Indian Copyright Law, JURIST - Dateline, May 28, 2012, http://jurist.org/dateline/2012/05/sandeep-kanak-rathod-copyright.php.
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org