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.
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.”
Conclusion
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.
