One of the issues that often comes up when trying to explain fair dealing rights to others is the extent to which such a right extends. There are a few recent decisions of the Candian Supreme Court that are significant in this light, since they interpret the fair dealing defence in some depth – a defence which is reflected in almost identical terms in the Indian Copyright Act.
There are two cases that pertinent to this post as explained in an article on Barry Sookman’s blog:
(1) Examines whether copying of short extracts for classroom teaching purposes was a fair dealing [Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37] (Access Copyright)
(3) Whether previews of music made available by online music services (such as iTunes/Amazon) were a fair dealing for the purposes of research [Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (SOCAN v Bell)]
Rule on Fair Dealing
The Canadian law on fair dealing can be extracted from the twin ruling in CCH. There are two steps required in the determination of whether something is fair dealing or not:
(1) whether the copying is for a permissible purpose, and
(2) whether the dealing is fair
The interesting factor here is that the phraseology in the Canadian and Indian statutes are almost identical. The Indian Copyright Act provides as follows:
(1) The following acts shall not constitute an infringement of copyright, namely:
(a) a fair dealing with any work, not being a computer programme, for the purposes of-
(i) private and personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
Similar exceptions are also found in the Canadian statute under Section 29. Thus, it is useful to examine the decision in Access Copyright and SOCAN v. Bell in conjunction with the two step test laid down in CCH to determine how the lay might play out in the Indian context as well.
Copying short extracts for teaching/educational purposes
Every time a professor hands me a copy of some ‘reading material’, I instantly think of the copyright implications. Is it fair use since the purpose is purely educational? What if the professor photocopied entire chapters of a book? Do amount and substantiality of the work copied matter?
We may refer to S.52(1)(a) of the Indian Copyright Act, which provides fair dealing rights, together with the above Canadian decisions to examine the scope in the Indian context. The first issue that must be determined then is whether the copying is for a ‘permissible purpose’. S.52(1)(a)(i) refers to ‘private’ use. Since the Candian statute uses the phrase ‘private study’, the above decisions focussed attention on its interpretation, holding that “private study” “should not be understood as requiring users to view copyrighted works in splendid isolation. I believe a similar argument may be advanced in the Indian context as well by relying on the word ‘private’. The Canadian case seems to suggest that studying is a personal or private endeavour, irrespective of whether it is done in a group or alone and therefore, copying extract for teaching in a classroom would fall within the permissible purposes.
I tend to agree with this sentiment since the only consideration cannot be whether it is a group activity or not. This would create a differentia between homeschooled kids being taught alone and kids being taught in a classroom, without any rational nexus between the two classes and purpose of the differentiation. Thus, even in India, copying material for teaching in classrooms would pass the permissible purpose test.
What also emerged from the Candian decisions is the fact that it is the purpose of the end user (the individual student) and not the copier (the professor or librarian, for example) that matters. This stems from the fact that ‘fair dealing’ is considered a user right and is expected to protect the ultimate user.
Secondly, one needs to examine whether the dealing is ‘fair’. It is here that the copier’s purpose becomes relevant. Think of a situation where the professor is making extracts of a particular book not only for distribution to his students as part of the seminar course on ‘The Philosophy of Law’ that he is teaching, but also to include is in ‘course material’ for a law entrance coaching center. In that case, the court will consider the purpose of the copier (the professor) as distinct from that of the user (the students in his seminar course) and hold it to be outside the scope of fair dealing.
As is ordinarily the case, the ‘four fairness’ factors must also be considered:
(1) the purpose, character, and amount of the dealing;
(2) the existence of any alternatives to the dealing;
(3) the nature of the work; and
(4) the effect of the dealing on the work
In the first case of copying extracts for teaching purposes, these are easily satisfied – first, the purpose is clearly identifiable as one that is objectively permissible for research purposes of the students. The analysis of ‘amount’ refers to how much has been copied in proportion to the entire work – so if it is only a few pages from an entire textbook, it should not be a problem. The analysis of ‘character’ will examine the copying in the aggregate (considering the total number of students in the classroom). The second factor is useful only to the extent that there are alternative readings on the same subject matter that are not copyright protected. As for the nature of the work and its effect, one must analyse whether the copying adversely affects the original work – which is unlikely in such a case where it is being distributed to students, who would otherwise not have purchased such works.
Copying clips of songs for preview purposes on online music stores
This is also an issue that has come to mind in the past when I have tried to purchase music legally. We can perhaps, as was done above, similarly examine this issue from the perspective of the 2-step CCH test.
First, it is seen that the Canadian Supreme Court held this to be a case of fair dealing since it fell within the ‘permissible purposes’ as ‘research’. One must remember that the Indian Copyright Act also includes ‘research’ as a permissible purpose. Thus, on similar logic, Indian online music stores can content that providing previews gives users the ability to ‘research’ the songs by playing 20-30 second clips before making a purchase. Further, since the Candian Court has held that it need not be creative and can be piecemeal, informal, exploratory, or confirmatory, it is most likely that such an argument will hold up in an Indian court as well.
Now to the second step. On the issue of ‘fairness’, one must consider the real purpose of the copier along with the other 3 factors in the fairness doctrine. While one might be swayed to say that there is a hidden commercial motive on the part of the online music store (Apple, in the case of the iTunes store), I think a court is more likely to hold that the end result is to allow the user to make an informed choice and that is the true purpose. As for the amount copied, 20-30 seconds of a 4 minute song should not count as substantial. Perhaps in the analysis of ‘character’, the amount in aggregate might be substantial since there are several thousand previews for some songs daily. But again, the court is unlilkely to hold that this does not amount to fair dealing. Neither can one hold that the effect of the preview is to have an adverse impact on the sales of the actual song, since I cannot think of anyone who actually likes a song to be satisfied with the same 20-second chorus being played on loop all day.
Thus, the Candian cases mentioned above are a lucid explanation of the law relating to fair dealing – an aspect of copyright law in India that is given little attention. So whether you are a professor in an Indian university circulating ‘reading material’ consisting of copyrightable text, or a company like Flyte (from Flipkart.com) that allows short previews of songs before to users before a purchase, the above analysis might be a useful one indeed.
Tags: Fair Use