Tuesday, October 2, 2012

Section 52(1)(a) of the Indian Copyright Act and Fair Dealing in the CCH Canadian Case

In an earlier post, I had discussed the scope of exemption from infringement available under Section 52(1)(i)(i) which deals with “reproduction of any work by a teacher or a pupil in the course of instruction”. 

In that post, a reader of the blog posed a few interesting queries in the comments on the scope of “fair dealing for the purpose of private or personal use, including research” under Section 52(1)(a) of the Indian Copyright Act, 1957 with reference to the interpretation of "research" by the Canadian Supreme Court in Law Society of Upper Canada v. CCH Canadian Limited.

For the benefit of those readers who may not subscribe to the blog’s group mails, this post captures my thoughts in the comment on the Canadian decision and its applicability to the Indian provision. 

Before placing reliance on the Canadian decision’s expostulation on the scope of “research” under fair dealing, it is imperative to note the following facts in light of which the decision was delivered:

1. The Appellant/Defendant in the case which was sued for infringement of copyright was the Law Society of Upper Canada which sought to be treated as a library. It was also a non-profit organization.

2. The subject-matter of the allegation of infringement was largely law reports/judicial decisions. This is the reason the Canadian verdict was cited by the Indian Supreme Court in the EBC v. D.B.Modak decision.

3. The photocopy service provided by the Law society was "request-based" in certain instances, and in certain other, only photocopiers were provided by the Society for use by its patrons. In other words, the patrons/users of the Library were the triggers for the act of photocopying. What is to be noted is that the Law Society did not issue copies of copyrighted material on its own to its patrons. This has been addressed under the issue of "authorization" in the decision (refer to Paras 37-47 of the decision).

4. The issue of "authorization" is extremely critical to understand as to who is entitled to the defense of "fair dealing for the purposes of research". If an individual approaches a photocopier to make a photocopy of a copyrighted material for research or private use, it is only then that the next question as to the degree of "fair dealing" needs to be addressed. However, if a photocopier decides to issue photocopies on his own, I am not sure if he is entitled to the defense at all in the first place or whether the question of "degree of photocopying" needs to be addressed.

5. What is also important to note is that in Para 55, the Court goes on to observe thus:

"In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair.

For example, in Sillitoe v. McGraw-Hill Book Co. (U.K.), [1983] F.S.R. 545 (Ch. D.), the importers and distributors of “study notes” that incorporated large passages from published works attempted to claim that the copies were fair dealings because they were for the purpose of criticism. The court reviewed the ways in which copied works were customarily dealt with in literary criticism textbooks to help it conclude that the study notes were not fair dealings for the purpose of criticism."

It is to be noted that in the above-reproduced para, there is a clear reference to another case where "study notes" were being issued under the garb of "fair dealing", which was rejected.

On the issue of degree of copying, if the issue of authorization and character of dealing do not fall within the defense of "research or private study", I don’t think the issue of degree needs to be addressed since degree is the second step after establishing that the character of dealing is entitled to a defense under the Act. 

Further, in Para 57 of the decision, the Canadian Court also discusses the alternatives to the dealing. In other words, if a non-infringing alternative exists and it was not even explored, it could be used against a defendant.

The last factor considered by the Canadian Court is the effect of the dealing on the sales of the original. This is extremely important in situations where the photocopied material is capable of replacing, and hence undermining the sales of the original within that limited segment in which the original is sold. If photocopied study notes undermine the sales of text books, it is a relevant factor to understand as to what constitutes "fair". 

The decision also appears to have turned significantly on the reasonable access guidelines of the Law Society, which are as follows:

Guidelines to Access
 1. The Access to the Law service provides single copies for specific purposes, identified in advance to library staff.
 2. The specific purposes are research, review, private study and criticism, as well as use in court, tribunal and government proceedings.  Any doubt concerning the legitimacy of the request for these purposes will be referred to the Reference Librarian.
 3. The individual must identify him/herself and the purpose at the time of making the request.  A request form will be completed by library staff, based on information provided by the requesting party.
 4. As to the amount of copying, discretion must be used.  No copies will be made for any purpose other than that specifically set out on the request form.  Ordinarily, requests for a copy of one case, one article or one statutory reference will be satisfied as a matter of routine.  Requests for substantial copying from secondary sources (e.g. in excess of 5% of the volume or more than two citations from one volume) will be referred to the Reference Librarian and may ultimately be refused.
 5.  This service is provided on a not for profit basis.  The fee charged for this service is intended to cover the costs of the Law Society.

In Para 67 of the decision, the Court notes thus on the character of dealing of the copyrighted work by the Law Society:

The character of the Law Society’s dealings with the publishers’ works also supports a finding of fairness. Under the Access Policy, the Law Society provides single copies of works for the specific purposes allowed under the Copyright Act. There is no evidence that the Law Society was disseminating multiple copies of works to multiple members of the legal profession.”

Therefore, a reading of the Canadian decision makes it crystal clear that the discussion on the issue of “fair dealing” should not start or revolve solely around the "number of pages". Instead, it must first begin with issues such as “authorization” and “character of dealing”. This, in my opinion, applies to the defense of “fair dealing for the purpose of private or personal use, including research” under Section 52(1)(a) of the Indian Copyright Act as well.

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