Listen to this article“Copyright law is premised on the promotion of creativity through sufficient protection… which are subject to exceptions”
INTRODUCTION
“… the fair use doctrine guarantees breathing space within the confines of copyright[1]”
Copyright law, today, not only protects the rights of the copyright owner and neighbouring rights but also deals with the subject of public interest and tries to strike a balance between the two[2]. In this process of balancing, Copyright law covered a long journey resulting in the evolution of doctrine of ‘fair use’. The doctrine of fair use, also known as fair dealing, is an integral part of copyright law[3] which exempts certain unauthorised uses of copyrighted material. The principle of balancing exclusive rights of author/publisher with public interest in free dissemination of the work is the essence of ‘fair use’ doctrine which got recognition in Britain legal system in 1774 after the case of Donaldson v. Beckett[4]. Following this approach, other common law countries adhered to the fair use principle of balancing the exclusive right and denied copyright protection to works whose existence was considered contrary to the public interest.
This exception is a statutory exception under Indian Copyright Law forming essence of s.52 of Indian Copyright Act, 1952. It is law of the land that ‘every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright’[5] but at the same time the fair use doctrine ‘creates a limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner’s consent’[6]. This defence originated as the result of equitable doctrine ‘in which as a society we concede certain limited individual property rights to ensure the benefits of creativity to a living culture’[7] by permitting certain unauthorised use that otherwise would constitute infringement but are deemed as non-infringement owing to this exception. The present article aims to throw light at various facets of ‘fair use’ doctrine with help of case laws, juristic opinions, etc.
GRUNDNORM OF FAIR USE DOCTRINE
Common Law Principle
The doctrine of fair dealing or fair use originated as an equitable concept allowing the use of certain literary works that copyright law would otherwise have prohibited, if prohibiting such uses would hamper the human creativity which has to be foster by the law. The history of doctrine of fair use can easily constructed from the common law principles and the statutes which existed before the enacting of individual Copyright Acts. The scope of pre-modern copyright was usually very narrow, limited, and mechanical[8]. These principles of common law in general denied any form of protection to the works whose existence was considered contrary to the public morality. As a result the works which were considered blasphemous, immoral or anti-Christianity were condemned and not protected.
The fraudulent works or the works encouraging illegal activities in the market were also denied the protection. The famous case of Beloff v. Pressdram[9] ltd, gave a deep discussion on the meaning of the term public interest. The scope of this defence was required to catch mischief’s of serious nature, such as breaches of matter relating to internal security, public health, law and order. According to the court, there is no copyright infringement if it is done on the grounds of public interest. Surprisingly there is no mention of such a defence under copyright. In United Kingdom, the Statute of Anne was enacted in 1710 at the behest of authors, publishers and book sellers. The case of Burnette v. Chetwood[10], became the case where this statute was first tested. However, in the landmark judgement of Donaldson v. Beckett[11], all was settled. The principle of balancing of exclusive right to author/publisher and public interest in the free dissemination of all works was also finally laid down in this judgment and made a part of Common Law legal system.
Statutory Exceptions
- Indian Law on Fair Use
Indian copyright law on this doctrine has been perceived as being more closely associated to the restrictive British concept rather than its American cousin. In India this concept is applied only to a work used for anything mentioned in closed prescribed list of enumerated works by the legislature. In case of Rupendra Kashyap v. Jiwan Publising House[12], the Indian judiciary made it very clear that under Indian law defence of fair dealing is governed by statute and thereby not providing defence in the name of public interest. In this way it clearly demarcated between the Indian and US concept of fair dealing. The section 52 of the Indian Copyright Act deals with the provisions of fair use and prescribe the list.
- British Law on Fair Use
The UK copyright law is enshrined under Chapter III of the Copyright Act, 1988. One of the unique features of this law is that fair use is allowed only for the purposes categorically stated in the list of 1988 Act. There are two major requirements that need to be fulfilled for an act/omission to fall under the list prescribed in Chapter III. Firstly, the term specific purposes have to be interpreted liberally[13]. Secondly, an objective approach should be adopted in the standpoint of the interpretation while deciding the purpose for which the work was used.[14]
- US Laws on Fair Use
“The US fair use provisions has been construed as fairest of them all[15].”
In USA, the concept of fair dealing has been seen as more robust vehicle for users[16]. The Fair use doctrine in USA allows any use of a work to be ‘fair’ subsequent to its fulfilling the test provided for the process. The US laws do not have a closed but an open list of permissible purposes. The laws are flexible but at the expense of certainty[17]. This is seen in case of Times Incorporation v. Bernard Gee Association[18], where court justified unauthorised duplication of several frames of the Zapardar film in its magazine regarding the murder of John F Kennedy. In this way we can say that public interest as an illustration of fair use has also found its place in some legal systems. The TRIPS concept of fair dealing is also highly influenced with the US model. Article 13 of TRIPS Agreement lays down a three step test similar to USA four factor tests.
International Conventions
- Berne Convention
The Berne Convention in its Art. 9(2) contains the spirit and soul of ‘fair use’ doctrine which states that it is a matter of legislation in the member countries of the Union to permit the reproduction of literary and artistic works in special cases. Apart from this, in Art. 10 makes it permissible to make quotations from a published works, use of literary works for education purpose, etc.
- Universal Copyright Convention
The Universal Copyright Convention creates no new law of copyright, but it harmonize existing national systems on a simplified reciprocal national treatment basis. It represents a contract, through a plan of copyright, between groups of countries until then radically opposed to one another. Article IVbis states that the Contracting Party may, by its domestic legislation, make exceptions to copyright infringement.
- TRIPS Agreement
In TRIPS Agreement so far as the exception to exclusive rights of author(s) is concerned it in Art. 13, which lays down three step test i.e. the exception must be ‘special’, it must not be in conflict with a ‘normal exploitation’ of the work, and must not ‘unreasonably prejudice the legitimate interest’ of the right holder.
- WIPO Copyright Treaty 1996
The WIPO Treaty lays down in Art. 10, ‘Three Step Test’ for exception to exclusive rights of authors as TRIPS. With the advent of technology, TRIPS Agreement recognizes the need to extend the arms of limitation to digital environment and therefore the said Treaty in Agreed Statement Concerning WIPO Treaty in the Art.10 states that Contracting Parties must carry forward and appropriately extend limitation to the digital environment and exceptions in their national laws which have been considered acceptable under the Berne Convention.
INDIAN LAW U/S S.52 OF COPYRIGHT ACT, 1957
Under the Indian Copyright Act, 1957, s. 52(1) provides a list of certain exceptions which are not considered to be violation of copyright. If an activity falls within these categories then it can be easily defended against a suit of Copyright infringement by defence of ‘Fair Dealing’ under the Indian law.
- Research and Private Study
The first exception is the ‘research and private study’. A person is not considered to be violator of Copyright if his actions were necessary for his personal research and private study. However it has to be distinguished from the commercial research which is still not allowed and would attract violation of copyright.
Originally s. 52(1) (a)(i) of the Copyright Act 1957, provided a very narrow interpretation with use of terms like ‘private use, including research’. However, after the amendment of 1994, the wordings were modified and ‘research and private study’ substituted the original text. This provided a broader interpretation to the concept of ‘private study’. In Australian case of De Garis v. Neville J Pidler Pty Ltd[19]., the court defined the words ‘research’ and ‘study’. Research means a ‘diligent and systematic inquiry or investigation into a subject in order to discover the facts or principles’. The word ‘study’ has been explained as ‘ application of mind to the acquisition of knowledge, as by reading investigation or reflection; a particular course of effort to acquire knowledge, a thorough examination and analysis of particular subject’. The basic difference between ‘research’ and ‘private study’ is that former seems to relate to the use of copyright material in papers and other outputs which give conclusions while private study would mean any personal use, whether it is for one’s own sake or with an intent. The research exception is required to help the dissemination of knowledge but not all public output would classify as research unless it is product of systematic inquiry[20].
- Opinion or Critical Appraisal
What distinguishes modern art from the art of other ages is criticism[21]
The s.52(1)(a)(ii) of the Indian Copyright Act, 1957 talks about fair criticism and opinion as an exception under the fair use doctrine. This defence acknowledges the value of criticism or review. It also appreciates the fact that a critic would require comparing the work to be critically analysed with other works. As such this defence act as method to stop the copyright owners from using the copyright to control who should review their works, when they may do so and what parts of the work may be used[22].
This defence both in India and in United Kingdom would only be available if it satisfies certain extra conditions:
- The dealing was for purpose of genuine criticism.
- The dealing was accompanied with sufficient acknowledgment.
- The work has been previously made available to public.
- The work is fair.
The aim behind these principles is to avoid mis-use of criticism defence. As such the fairness would vary from case to case. In the case of Hubbard v. Vosper[23], Denning J. Categorically stated that depending upon the number of extracts and the type of criticism offered it has interpreted whether they are used for criticism, review or simply to forward same information in rival manner. Similarly the case of Associated Newspaper[24] which involved the Hong Kong Journals of Prince Charles that had been made available to some 75 people, the court held that they had been disseminated under confidentiality and as such was never made public. Thus this defence failed.
- Reproduction in Judicial proceedings
The Indian Copyright Act, 1957, s.52(1)(d) and (f) deals with making the content of the work available for the judicial proceedings and it does not amount to violation of the copyright. The act is silent on the meaning of the term ‘judicial proceeding’ and as such it can be given a wider meaning and may include any proceedings before any court, tribunal, inquiry commission or persons by law having power to hear, receive and examine evidence on oath. The supply of certified copies of the works in accordance with law is also a valid defence. Also the publication of judicial decisions is a common property of the nation and no one can claim copyright on it. In Eastern Book Company v. DB Modak[25] and Eastern Book Company v Navin J Desai[26], the Court has categorically stated that the judgments are part of public domain primarily and thereby having no copyright of any private entity. Thus there arises no question of fair dealing.
- Reproduction in Legislative proceedings
The s. 52(1)(e) and (r) Indian Copyright Act, 1957, provides that any content of any work could be made available to either or both the houses of the legislature. The use of the work by the members of the parliament does not constitute the violation and is fair dealing. Also the publication of translation of any legislation is also valid and does not amount to violation of copyright. However it has to make clear that such translation has not been accepted as authentic by the government.
- Reporting of Current events
Under Sec 52(1)(b)(i), no fair dealing with work for the purpose of reporting current events in a newspaper, magazine or similar periodical constitutes an infringement of the work. The events reported must be current and not the matters of history, to come within the purview of this section. The work also must not be used for editorial purposes, only for current events. A test may be used to determine is whether it is reasonably necessary to refer to some literary, dramatic etc work for the purpose of current events. As given under Sec 52(1)(f), it is permissible to read or recite in public of any reasonable extract from a published literary or dramatic work, provided that the act is accompanied by an acknowledgement as required under proviso to Sec 52(1). The term ‘reasonable extract’ is a question of fact, impression and degree. An illustration could be the reading of extracts from a book of Salman Rushdie in Jaipur Literary Fest. The read had permission from Rushdie to do so. As given under Sec 52(1)(k), copyright is not infringed by the causing of a recording to be heard in public by utilizing it:
In an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or As part of the activities of a club or similar organization which is not established or conducted for profit.
For Educative Purposes
In cases of educational purposes the Copyright Act has provided the defence of fair dealing under section 52(1)(h) and 52(2), whereby reproduction of a literary, dramatic, musical or artistic work or any translation or adaptation of such work:
1.By teacher or a pupil in the course of instruction; or
2.As part of the questions to be answered in an examination; or
3.In answers to such questions,
would not constitute any infringement of copyright of the work. However in case of V. Ramaiah v. K Lakshmaiah[27], the court held the writing of guide books as infringement of copyright. Something transformative should have been done in the books or else it would violate the copyright. This was further upheld in Chancellor Masters case, and the transformative work was also construed as ‘review’. However in case of Syndicate press University of Cambridge v. Kasturilal & Sons[28], the court further upheld that guide books being prepared verbatim are infringing copyright. Thus we can conclude from these cases that the purpose of this provision is to prevent the commercial exploitation of the copies made for educational purposes. As given under Sec 52(1)(i), if the staff or students of a educational institution perform a literary, dramatic or musical work in the course of the activities of that educational institution, then that performance is not an infringement of the copyright, provided that the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution. Further under Sec 52(1)(g), it is permissible to use short passages from published literary or dramatic works for the intended use of schools which consists mainly material in which no copyright subsists. This exception is subject to certain conditions which must be fulfilled. First condition is that the work should not have been published for the use of educational institutions. Second condition is that the collection must be described in its title as intended for the use of educational institutions. Third condition is that a proper acknowledgement must be given. Fourth condition is that the publisher is not allowed to use more than two excerpts from the work during any given period of 5 years. It is available only for literary and dramatic works.
- For Cinematographic Works
It would be quite worthy to note that this category has received broadest protection under the Act. Only u/s. 52 (1)(i) would the fair dealing defence provided. As such it explains that a cinematography work can only be used once its copyright has expired.
- For Sound Recordings
The making of sound recordings in respect of any literary, dramatic or musical work does not constitute an infringement provided that the owner of the right in the work consents or gives license to do so, as given under Sec 52(j). Further the recorder also requires the permission from the owner to do so. Recorder is also required to provide copies of all covers or labels with which the sound recordings are to be sold, and has to pay royalties to the owner in the prescribed manner. This permitted act is subject to the following conditions:
1.No alteration shall be allowed to be made without the prior consent of the owner of the right, or which are not reasonably necessary for the making of the sound recording.
2.That sound recording shall not be issued in any kind of labels or covers or details which might confuse the public as to their identity.
- The expiration date of such sound recording shall be two calendar years after the end of the year in which the first sound recording was made; and
4.The owner of the rights or his representative or authorized agent has legal right to check all the records and accounts relating to such sound recordings.
In Gramophone Company of India Ltd. vs. Super Cassette Industries Ltd[29], the defendant launched a version recording of the songs of popular Hindi movie Hum Aapke Hain Kaun. The contention was raised that the defendant by creating the version recording infringed the copyright of the musical work in the film. After considering the fact that the plaintiff made the records from the plates given by the owner of the film, the Delhi High Court held that the plaintiff nowhere claimed that the records made by the defendants ‘embody’ the recording in any part of the sound track associated with the film. Rather the records so made by the defendants were only a version recording by using another voice or voices and with different musicians and arrangers, which fall within the scope of Sec 52(1)(j).
As provided under Sec 52(1)(k), copyright is also not infringed by the causing of a recording to be heard in public[30] by utilizing it:
1.In an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or
2.As part of the activities of a club or similar organization which is not established or conducted for profit.
Furthermore the recording for the purpose of the broadcast any work which it has right to broadcast would not violate the law of copyright. This was upheld in the case of Video Master v. Nishi Production[31], by the Bombay High Court.
FOUR FACTOR TEST OF UNITED STATES
“… separating the fair use sheep from the infringing goats[32]”
Fair Use doctrine also finds it place in the US Copyright Law too. The US Congress in 1978 enacted Copyright Act giving the copyright owner, among other rights, the exclusive right to make copies. The ‘Right To Make Copies’ is infringed when a third party copies without permission of the owner so much of the original subject-matter that the copy is substantially similar to the copyrighted work.[33] Section 107 of the said Act is the first codification of ‘fair use’ defence which prior to the enactment was a judge-made doctrine. The codification of fair use in S.107 was ‘intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way’[34] and mainly to appreciate the two major approaches to the ‘fair use doctrine’ which the US Supreme Court has adopted in Folsom v. Marsh and Rosemont Enters., Inc. V. Random House, Inc. The Court in these cases held that the ‘borrowing’ did not ‘prejudice the sales, or diminish the profits, or supersede the objects of the original work’[35] and it must be excused because the constitutional purpose in granting copyright protection is to ‘Promote the Progress of Science and the Useful Arts’[36].
Section 107 of the 1976 Copyright Act includes both an introductory preamble[37], which sets forth examples of particular uses that are likely to be deemed fair uses, and four specific but nonexclusive factors to be considered as part of the “equitable rule of reason”[38] for fair use analysis. They are as follows:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The US Court is of the opinion that while deciding the cases relating to infringement Courts should not consider the factors in isolation, but should weigh them together[39].
Four Factors And US Courts
“It is impossible to define what is ‘fair dealing’. It must be a question of degree….”[40]
Factor I: Purpose and Character of the Use
The first ‘fair use’ factor that is in s. 107 of Copyright Act requires consideration of “the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes” to have the shield of ‘fair use’ doctrine. In considering the “purpose and character” of the use under s. 107(1), Courts also place great emphasis on whether the use at issue is commercial in nature. The Court has interpreted that commercial nature of a use is not the ultimate test or determinative factor for a case of infringement[41] and the Court in such cases should try to inquire that the commerciality is not simply “whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price”[42]. If the Court finds that user is profited from the copyrighted work, then it is a fit case for infringement[43]. Further, the Court considers that whether the works in question is ‘transformative’ i.e. whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[44].” The subsequent work must be different in character; it must not be a mere substitute, it not sufficient that only superficial changes are made, the basic character remaining the same. This determination is closely knit with the other three factors, and therefore, central to the determination of fair use[45]. If the work is transformative, then it might not matter that the copying is whole or substantial and it may not act as a market substitute and consequently, will not affect the market share of the prior work resulting in protection of ‘fair use’ doctrine[46].
Factor II: Nature of the Copyrighted Work
Some works are closer to the core of intended copyright protection and should not be as freely copied. For works that are more factual in nature, the copier is usually given greater latitude in copying as “the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy[47]”. The work under this category includes computer programs[48], some categories of religious texts[49], etc. Apart from this in cases of unpublished works, the US Supreme Court has stated that “[t]he scope of fair use is narrower”[50] because an “author’s right to control the first public appearance of his un-disseminated expression will outweigh a claim of fair use.”[51] Owing to the approach of various Courts in such cases the Congress in 1992 added a new clause to s. 107 of the Copyright Act which meant that unpublished work shall not bar a finding of fair use if all other factors are established As the result of this amendment, some courts started dealing with more flexibly with defences of fair use of unpublished works.
Factor III: Amount and Substantiality of work that can be used
The Court while determining the amount and substantiality of the work copied can have quantitative or qualitative approach depending upon the fact and circumstances. In the case of Folsom v. Marsh[52], the Court held that the defendant substantial portion of work therefore third factor isn’t applicable. In this case, the defendant has used less than 6% of plaintiff’s work but still the Court, applying qualitative approach, held the defendant guilty because he has copied the ‘heart’ of the work. The Court has adopted the similar approach in another case of Harper & Row Publishers, Inc. V. Nation Enters having almost similar facts.
Factor IV: The Effect of the Use upon the Potential Market
The unauthorised use of a copyrighted material that might affect the market is facts dependent. The US courts have opined that this factor is sine qua non as it affects the market sales[53]. In such cases “the burden of proof rests with copyright holder”[54]. If the plaintiff proves that he has got a case, the Court will grant appropriate remedy. In Harpar & Row Case, the Court, declared that the work copied has potential to effect the market and hence such use is not a fair use. Similarly in Napster case, the Court said that defendant have engaged in a commercial use as “repeated and exploitative unauthorized copies of copyrighted works were made to save the expense of purchasing authorized copies” and hence effecting the market of plaintiff.
RECENT CONTROVERSY: DELHI UNIVERSITY AND FAIR USE
In India, the present issue is dealt under S. 52 (e),(f),(g),(h),(i),(k) and (o). Educational Institution can for research, study and other related activity can create copies of original works. There is a legislative lacuna as the legislature did not laid down as to what percentage of copied work would constitute infringement, ultimately leaving the subject matter on Judiciary to decide as ‘What use is fair use?’.
Leading publishing house including Oxford University press and Cambridge University press brought a suit of copyright infringement against Delhi University. Similar controversy has aroused in US where Four-factor test is used to find out the answer of the question ‘What use is fair use?’. In case of Macmillan Co. v. King[55], Marcus v. Rowley[56], Basic Books Inc. v. Kinko’s Graphic Corp.[57], Princeton University Press v. Michigan Document Services, Inc.[58] having the almost similar facts, the US has felt reluctant to give universities the shield of ‘fair use’ because distributing photocopies of books effects the market of the publishing firms.
The eminent jurist Shamnad Basher is of the opinion that, in respect of Indian scenario, such distribution is not a case of infringement because ‘India being a developing country, with poorer students and more severe educational access constraints[59]’ the cap of coping should be high than US and hence these case should not be treated as a precedent. While on the other hand, others legal scholars heavily relying upon the above precedents are of the opinion that such use is violation of Berne Convention, WIPO treaty and others to which India is signatory[60]. The matter is presently pending before the Court and let see what the Bench would decide to meet the ends of justice.
CONCLUSION
” Fair use should be perceived not as a disorderly basket of exceptions to the rules of copyright… To the contrary, it is a necessary part of the overall design.[61]“.
Fair use and copyright are, therefore, complementary to each other. One cannot live till the other survives. The copyright law of a country must be such that it is capable of balancing the exclusive rights of authors and public at large. The doctrine of fair use is therefore a necessity. This responsibility is more on Judiciary than on Legislature because the cases of infringement are factual in nature and a generalised principle cannot suffice. US Courts have given plethora of judgments on ‘fair use’ and these decisions act as a guiding force for Indian Courts while the Indian Courts wait for their equivalent of Folsom v. Marsh. The Calcutta HC has admitted the dearth of judicial jurisprudence on copyright matters in Barabara Taylor v. Sahara Media Entertainment Ltd[62], holding that besides RG Anand v. Delux Film[63]s we have paucity of cases therefore only help is available from statutes.
[1] Campbell aka Skyywalker, et al v. Acuff-Rose Music, Inc., 510 US 569 (1994) Justice Souter’s opinion
[2] Ahuja & Dr. V.K., (2007). Law of Copyright And Neighboring Rights: National and International Perspectives . 1st edition. New Delhi, India: LexisNexis Butterworth Wadhwa Nagpur.
[3] The Chancellor Masters & Scholars v. Narendera Publishing House, 2008 (38) PTC 385 (DEl) at para. 23
[4] Donaldson v. Beckett, 4 Burr 2408.
[5] Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 (1984).
[6] Fisher v. Dees, 794 F.2d 432 [9th Circuit 1986]
[7] Prof. Julie E. Cohen. Documentary Filmmakers’ Statement of Best Practices in Fair Use. [ONLINE] Available at: http://www.centerforsocialmedia.org/fair-use/best-practices/documentary/documentary-filmmakers-statement-best-practices-fair-use. [Last Accessed June 10, 2013]
[8] , Joyce & Patterson, supra note 217 at 915.
[9] [1973] 1 All ER 241.
[10] (1720) 35 Eng. Rep. 1008
[11] 4 Burr 2408
[12] 1996 (38) DRJ 81 Para 24
[13] Newspaper Licensing Agency v. Marks & Spencer plc [2000] 4 All ER 239.
[14] Pro Sieben Media v. Carlton Television [1999] FSR 610, 620.
[15] Nimmer David, Fairest of them all and other fairy tales of fair use, Law & Contemporary Problems, 66 (2003) 263-287.
[16] Craig Carys J, The Changing Face of Fair Dealing in Canadian Copyright Law in Michael Geist, ed., In the Public Interest: The Future of Canadian copyright Law (Irwin Law, Toronto), 2005, p. 437.
[17]The US Copyright Code, 17 USC S. 107 (2000) provides that the fair use of a copyrighted work for purposes such as teaching (including multiple copies for classroom use), scholarship, or research does not infringe.
[18] 1968 F 293 Supp 130
[19]De Garis v. Neville J Pidler Pty Ltd (1990) 18 IPR 291
[20] Universities UK v. Copyright Licensing Agency Ltd. [2002] RPC 693, 702.
[21] Octavian Paz
[22] Time Warner v. Channel 4 [1993] EMLR 1, 14.
[23]Hubbard v. Vosper [1972] 2 QB 84 (CA).
[24] Prince of Wales v. Associated Newspapers, [2007] 3 WLR 222, 265.
[25]Eastern Book Company v. DB Modak (2008) 1 SCC 1.
[26]Eastern Book Company v. Navin J Desai (2001) PTC 57 (Del)
[27] Ramaiah v. K Lakshmaiah 1989 (9) PTC 137
[28]University of Cambridge v. Kasturilal & Sons 2006 (32) PTC 487
[29] Gramophone Company of India Ltd. vs. Super Cassette Industries Ltd (1995) PTR 64
[30] Supercassette Industries v. Nirulas Corner House (P) Ltd.,
[31]Video Master v. Nishi Production (1998) 23 IPLR 388
[32] Campbell v. Accuff- Rose Music, 510 US 569 (1994).
[33] Harty, Jeff, Hansing & Mark, (1995). Photocopying as a fair use in the United States. Entertainment Law Review.
[34]Supra Note .
[35] Folsom v. Marsh, 9 F. Cas 342 (CCD Mass. 1841) .Opinion Justice Story.
[36] Rosemont Enters., Inc. V. Random House, Inc. 366 F. 2d 303 (2d Cir. 1966).
[37] (Emphasis added)“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.”, Section 107 of Copyright Act.
[38] Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 (1984).
[39] Perfect 10, Inc. V. Amazon.com, Inc., 508 F.3d 1146,1163 [9th Cir. 2007].
[40] United Kingdom, in Hubbard v. Vosper, (1972) 2 WLR 389.
[41] Supra Campbell Case.
[42] Harper & Row Publishers, Inc. V. Nation Enters., 471 U.S. 539.
[43] A&M Records, Inc. V. Napter, Inc., 239 F.3d 1004[9th Cir. 2001]: Online exchange of copyrighted songs was considered to be commercial use because “repeated and exploitative unauthorized copies of copyrighted works were made to save the expense of purchasing authorized copies”.
[44] Campbell v. Accuff- Rose Music, 510 US 569 (1994).
[45] Observation of Indian Supreme Court on Four-Factor test in The Chancellor Masters & Scholars v. Narendera Publishing House, 2008 (38) PTC 385 (DEL) at para 34.
[46] Campbell v. Accuff- Rose Music, 510 US 569 (1994)[ a rap group’s parody of a famous rock band is transformative use.], Elvis Presley Enters. v. Passport Video, 349 F.3d 622, 628–29 [9th Cir. 2003][ lengthy clips of Elvis Presley performances in movie trailers],Warner Bros. Entertainment Inc. v. RDR Books, 575 F. Supp. 2d 513 [Harry Potter encyclopedia that quoted from J.K. Rowling’s novels is not a transformative use] United States v. ASCAP, 599 F. Supp. 2d 415[free previews of ringtones and ringback tones of copyrighted songs for cellular phone services, not a transformative use].
[47] Harper & Row Publishers, Inc. V. Nation Enters., 471 U.S. 539.
[48] Lexmark Int’l, Inc. v. Static Control Components,Inc., 253 F. Supp. 2d 943, Kepner-Tregoe, Inc. v. Leadership Software, Inc.,12 F.3d 527, 534–35 & n.14 (5th Cir. 1994), Sega Enters Ltd v. Accolade., 977 F.2d [“To the extent that a work is functional or factual, it may be copied.”].
[49] Worldwide Church Of God v. Phila.Church Of God, Inc., 227 F.3d 1110[9th Cir. 2000].
[50] Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
[51] Supra Harper Case, A.V. ex rel.Vanderhye v. iParadigms, LLC, 562 F.3d 630 [4th Cir. 2009].
[52] Folsom v. Marsh, , 9 F. Cas 342 (CCD Mass. 1841).
[53] Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539.
[54] Princeton University Press V. Michigan Doc., 99 F.3d 1381 (6th Cir. 1996)
[55] Macmillan Co. v. King. (1914). 223 F. 862 (D. Mass).
[56] Marcus v. Rowley. (1983). 695 F.2d 1171 (9th Cir.).
[57] Basic Books Inc. v. Kinko’s Graphic Corp. (1991). 758 F. Supp. 1522, 1528-29 (S.D.N.Y.).
[58] Princeton University Press v. Michigan Document Services, Inc. (1996). 1996 FED App. 0357P (6th Cir.).
[59] Shamnad Basher (2012). Why students need the right to copy. [ONLINE] Available at: http://www.thehindu.com/opinion/op-ed/why-students-need-the-right-to-copy/article4654452.ece. [Last Accessed July 1,2013].
[60] Editorial Group (2012). Access to the printed word. [ONLINE] Available at: http://www.thehindu.com/opinion/editorial/access-to-the-printed-word/article4693183.ece. [Last Accessed July 1,2013] and also see Stokkmo, Olav, Atkinson,Owen, Bammel & Jens (2012). Copy by the book or risk killing academic publishing. [ONLINE] Available at: http://www.thehindu.com/opinion/op-ed/copy-by-the-book-or-risk-killing-academic-publishing/article4724978.ece. [Last Accessed July 1,2013].
[61] The Chancellor Masters & Scholars v. Narendera Publishing House, 2008 (38) PTC 385 (DEL) at para 23
[62] (2004) 28 PTC 474 (Cal).
[63] AIR 1978 SC 1613