Updated: Aug 20
The main objective of copyright law is to ensure that the rights of artists, authors, composers, etc. are protected by rewarding them the exclusive right over their work. But in order to maintain a balance between the rights of the authors and the interests of the public, the law also imposes certain limitations and exceptions. These ensure that the protected works may be used in certain circumstances without the explicit authorisation of their authors. Such circumstances are categorically stated to ensure sufficient access in public interest. As per the WIPO Standing committee for copyrights and related rights, the groups of beneficiaries related to the exceptions are categorised as:
1. Educational institutions
2. Libraries and archives
3. Disabled persons such as visually impaired persons.
The general exceptions to infringement of copyrighted works are as follows:
1. Fair Use
This is the most commonly applied concept while defending unauthorised use of copyrighted material. It essentially states that copyrighted material may be used without permission as long as such use is “fair”. To reduce the ambiguity, the most common approach to determine “fair” use is the four-factor test :
Purpose and Character: If the copying is done for an educational, personal or a non-profitable purpose, the infringement is most likely to fall within the ambit of fair use.
Nature of Work: This deals with the creativity and originality of the infringing work. If the copied work is merely factual, then it is more likely to be considered as fair use.
Amount: This deals with the quantity of work copied. If only a small amount of the protected work is copied, then such an action won’t be considered as infringement. However, if even a small amount of copied material forms the centre of the copied work, such an action can not be defended. For it to amount to fair use, it is essential that the copied material is not significant to the work.
Market effect: If the copying does not have a major impact on the economic status of the copyrighted work, then it shall amount to fair use.
2. Face to Face Instructions:
This refers to use of copyrighted material in a face-to-face interaction. This may include copyrighted materials such as music, printed text, images or videos. Traditionally, this exception is only available for teaching activities. If such use of copyrighted material is done outside of a classroom experience, the doctrine of fair use will not be applied. For any individual to be protected by this exception, it is essential that the material being shared has been obtained by him/her through legal means.
3. Virtual Instructions:
This exception refers to a course taught solely on a virtual platform. Under this, all the requirements of a face to face instruction are applicable, coupled with the fact that the copyrighted material being shared is done for the purpose of a virtual course. It ensures that there is sufficient digital access of works for public interest without infringing the author’s exclusive rights.
Exceptions in India
In India, the copyright law is governed by The Copyright Act, 1957. Section 52 of the Act lays down certain works that cannot be considered as an infringement and would be considered as “fair dealing” of copyrighted works. It includes dealing with works for the purposes of –
1. Private use
2. Criticism and Review
3. Reporting of current events
Further, the section also provides for transient or incidental storage of protected works for transmission or communication of the works to the public. It is essential that such acts have not been expressly prohibited by the right holder. Further, it is stated that it won’t be considered as fair dealing if the person responsible is knowingly storing an infringing copy or has reasonable grounds for believing so.
The copyright law also provides for limitations which excludes certain categories of works from copyright protections. For instance works not recorded in a tangible form are not eligible for protection. Further, limitations are also placed on authors and owners of works who may exploit the provision of protection. This category involves the limitation placed by non-voluntary licenses. This allows use of certain works without the owner’s authorization. But even in such cases, the law requires the author to be properly compensated. These are termed as “non-voluntary” because they are only a result of operation of law and not from the author’s exercise of exclusive copyright.
Another limitation of the owner’s right is the “Free Use” governed by the three-step test. This is a provision of the Berne Convention according to which the member states may allow parties to reproduce copyrighted work in “certain special cases”. These cases must fulfil three conditions:
The act of reproduction must not conflict with a normal exploitation of the work.
They do not unreasonably prejudice the legitimate interests of the author.
Reproduction must exclusively be for personal, private and non-commercial use of individuals.
Although the basic objective of the law is to protect the author’s rights while ensuring the development of art, the law does not overlook public interest. Considering that the listed exceptions are ambiguously adopted, the determination of fair use and the other exceptions is done mostly on a case-to-case basis. While the Indian legislation is more precise than the general concept, the same is not the case in all jurisdictions. For this purpose, it must also be understood that the limitations and exceptions to the exclusive rights are not unconfined either. For instance, Article 13 of TRIPS states that the limitations may only extend to certain special cases which do not conflict with the normal instances of exploitation of the protected work. To ensure that the provision of exceptions isn’t abused, the law also provides for confinement of the limitations which do not prejudice the interest of the authors and other right holders.
Image credits to Widerman Malek, PL
Daniel J. Gervais, Making Copyright Whole: A Principled Approach to Copyright Exceptions and Limitations, 5 U. OTTAWA L. & TECH. J. 1 (2008).
LIMITATIONS AND EXCEPTIONS –https://www.wipo.int/copyright/en/limitations/
Peter Treyde, Simplification of the Exceptions to the Exclusive Rights Comprising Copyright, 9 J.L. & INF. Sci. 77 (1998).
THE COPYRIGHT ACT, Act No. 14 of 1957, India Code, 1957.