Every year, April 26th is celebrated as World IP Day. WIPO’s website states that the aim of the celebration is to “learn about the role that IP rights play in encouraging innovation and creativity”. A less remembered and celebrated fact though is how fair use provisions play an equal, if not larger role, in fostering creativity and innovation.
Such a skewed view often results in people being less aware/prevented from availing the benefits of fair use provisions. I was recently (well, after the lockdown, it seems like ages) privy to one such instance where a students’ club was served with a copyright infringement notice for screening a documentary without a licence. Other than students and faculty members, the screening was attended by an external panelist who led the post-screening discussion. The screening was not open to the general public and was conducted within the premises of the campus.
Will a screening conducted under such circumstances be said to constitute infringement? Or is it covered under any of the fair use clauses?
Section 52(1)(j) and screening by students – Uses and audience
The Copyright Act, 1957 provides that film screening in educational settings is fair use. Section 52(1)(j) lays down that the performance of a literary, dramatic, musical work or a cinematograph film or sound recording in an educational setting will not fall foul of the Act if:
- it is in the course of the activities of an educational institution;
- it is done by staff and students of the institution; and
- the audience is limited to such staff and students, parents and guardians of the students and persons connected with the activities of the institution
To be clear, in the case of cinematograph films and sound recording, the benefit of the provision extends to ‘communication’ of such work too and not just their performance.
It should be clear from above that Section 52(1)(j) is couched in broad terms. For instance, the use of these works is not limited to course of instruction. Instead, as long as it is in the ‘course of the activities’ of an educational institution, it is fair use. Thus, screening of films by a students’ club is very well within the protective cover of this provision.
Similarly, the audience may include not just staff, students, parents and guardians but also ‘persons connected with the activities of the institution’. This too is indicative of the broad based scope of the provision and should take care of the presence of panelists and other people who may take part in such screenings.
Interestingly, this is one of the rare fair use provisions in relation to cinematograph films.
Nature of the copy used
A question which may then pop up is whether the copy from which the movie is screened should have been validly obtained. Section 52(1)(j)only exempts the performance or communication of these works and does not provide any immunity to the act of piracy itself. Thus, if a pirated copy is used to screen the movie, consequences for it should follow separately.
The US law though on this is quite clear. It provides that display of a motion picture for the purpose of classroom teaching shall not be considered infringement, unless its display was from an illegally made copy. Moreover, the US position is narrower on the type of educational activities covered. It is the display of motion pictures in the course of face-to-face teaching activities which is covered rather than the whole gamut of educational activities like in India.
This brings us to the next question of whether Section 52(1)(j) will even cover online teaching, especially given that a big chunk of post-pandemic era teaching happens online.
What about screening during online classes?
A week back, Namratha had published an excellent post on how far fair use provisions in relation to education will apply to online teaching. Although she did not specifically discuss the Section 52(1)(j) scenario, most of the points she had made apply equally to this context also. Two points in particular stand out: 1) in the DU photocopy case, the Court had given an expansive interpretation to the expression ‘in the course of instruction’ to cover even activities outside mere classroom lecturing, 2) fairness of use in Section 52 is to be determined by the language of the provisions.
As mentioned in the beginning, the language used in Section 52(1)(j) is expansive and is, in fact, wider than Section 52(1)(i). Thus, not only is performance or display of work allowed ‘in the course of instruction’ but is also accepted ‘in the course of activities of an educational institution’. In the absence of any prohibitions, it will have to be said that the reach of Section 52(1)(j) extends to even online teaching.
Despite the existence of specific fair uses under Section 52, it is not unusual for copyright holders to discourage such uses by sending take down and infringement notices. This is to discourage more people from availing the benefit of these fair use provisions or simply out of ignorance. Rather than getting cowed down, it is imperative that everyone, especially students, is made aware of the specific protections that the Copyright Act provides for.