To understand Fair Dealings, one must understand what Copyright means. Copyright is simply the “right to copy”. It is an intellectual property right that belongs to the creators of music, literature, artworks, drama, etc. Copyright is governed under the Copyright Act of India 1957, which came into force in January 1958. In the year 2012, a very crucial amendment was made to this Act which made the Act in conformity with the WIPO Copyright Treaty (WCT), and WIPO Performance and Phonograms Treaty (WPPT). This major amendment came into the picture to secure the rights of the creators of the music and film industry and for the concerns of physically disabled. According to this Act, until the material or the content becomes public domain, the owner has exclusive rights to create, reproduce, adapt, translate, broadcast, and distribute the copyrighted material. Any use of such copyrighted material without the permission of the owner is considered infringement under the Act.
What is Fair Dealing?
Fair dealing refers to the permission of using a copyright-protected material by a user without any permission or payment of the copyright royalties. It is an exception in the Copyright Act and allows the user to use the copyrighted material for research, education, criticism, reviews, etc. However, such cases of fair dealing are always determined by the courts based on the facts of each case. Since a person uses such copyright materials for fair use or fair dealings, prior permissions are not required as well as such an act will not account for an infringement. There are various situations for which the Act considers them as acts of fair dealings.
To qualify for Fair Dealing, two tests must be passed, which are:
- “Dealing” must be related to a purpose that is stated in the Copyright Act. It can be for private study, review, research work, parody, news reporting, education, satire, or criticism.
- There must be “fair” dealing. This concept is subjective and depends on case to case as the Court decides whether the matter mentioned is for fair dealing or not.
Fair Dealing and Education
Educational institutions are allowed to use copyrighted material under the Act, though, there are some restrictions to it. There are certain provisions related to the fair dealing of copyrighted materials for educational purposes and allow the educational institutions to use or reproduce the copyrighted materials. These provisions are as follows:
- Any recitation or reading of reasonable extracts from any published dramatic or literary work in public is allowed.
- If there is a publication of any collection which is mainly composed of non- copyright material and is intended for bona fide purpose of instructional use, and if the same is described by the publisher in the title or any advertisement, then that will be allowed. Similarly, if the collection is of short passages from the published literary or dramatic works which are not themselves published for such use in which the copyright subsists, the publication of such a collection is allowed. However, this provision is restricted to some limitations:
- In any period of five years, only two such passages from the works of the same author can be published by the same publisher.
- If there is a work of joint authorship, there must be made references to the passages from works that include references to the passages from works by any one or more of the authors.
- The permission for reproducing any work will be granted in the following circumstances only:
- By any teacher or any pupil in the course of instruction.
- If reproduction is a part of the questions to be answered in an examination.
- If such reproduction is included in the answers to such questions.
- Any performance done in the course of the activities of the educational institution which includes any literary, dramatic, any cinematograph flight or a sound recording, or musical work by the staff and the students of the institution, is allowed. This provision is available only when the audience of such a performance is limited to the staff, students, parents, and guardians of the students and the persons connected to such activities of the institutions or any communications of such audience of a cinematograph film or sound recording.
- Any reproduction in the field of research or private study or for the publication of any unpublished literary, dramatic or musical work kept in a library or museum or any other institution to which the public has access, is allowed. This reproduction has certain limitations:
- If the author is known to the library or the museum or any other institution, then the reproduction of such content will be allowed only after sixty years from the death of the author.
- If there is joint ownership of the copyright to the material intended to be reproduced, then the reproduction will be allowed after sixty years from the date of the death of that author whose identity is known.
- Moreover, if in the case of joint ownership, the identity of more than one author is known by the institution, then the reproduction will be allowed only after sixty years from the date of the death of that author who dies the last.
- If any performance is done by an amateur club or society, related to literary, dramatic, or musical work, which is subject to such performance will have to be for a non- paying audience or for the benefit of religious institutions.
- Any act which is related to the translation of a literary, dramatic, or musical work, or the adoption of any literary, dramatic, musical, or artistic work as they apply to the original work itself, is allowed.
In India, these acts that do not constitute copyright infringement are provided under Section 52(1) of the Copyright Act. The above-stated exceptions for the use of copyrighted material for educational purposes are contained in Sections 52(1)(h) to 52(1)(j). The judgment as to whether the use of a particular copyrighted work falls within the purview of the above-stated provisions is made by determining whether it is used for the purpose and the manner which is specified therein.
Virtual classes in Educational Institutions
The ways used for the storage and transmission of data have transformed massively with the emergence and the advancement of information technology. Today, digital technology is being widely used in educational institutions across the nation. Modern techniques of virtual classes, online courses, and distance education have become a core part of today’s education sector. Although these facilities have proven themselves to be a boon for the masses, they have made copying of the copyrighted materials easier than ever before. Moreover, the protection of such copyrighted materials has become even more difficult as the source of copying is very difficult to find. For such issues, it becomes really important for the introduction of technical measures like encryption in those educational institutions that provide online education. There have been concerns by the educators as to whether the educational exceptions that are provided under the Copyright Act extend to online education. In particular, whether the reading out of books to the students via online classes is against copyright law or not. This concern arises in consideration of the fact that the students and the teacher are no longer within the physical classroom set up.
The University of Oxford and Others v. Rameshwari Photocopy Services (DU Photocopy Case)
Five prominent publishers, including Oxford University Press, Cambridge University Press, and Taylor & Francis, filed copyright litigation against Delhi University and Rameshwari Photocopy Service Shop. The injunction suit was filed by the publishers for the infringement of the copyright materials as the professors of Delhi School of Economics authorized the preparation of course packs whose photocopies were made by Rameshwari Photocopy Service shop and supplied to the students on payment of nominal charges. The publishers claimed that there was an infringement of the copyrighted materials as specific pages of their publications were included in that coursepacks which were sold by Rameshwari Photocopy Service provider under the authorization of the Delhi School of Economics. They further claimed that the professors of Delhi School of Economics had issued the books published by the plaintiffs from their library to the photocopy service provider to prepare course packs. Moreover, the publishers claimed that the permission of making photocopies of their published works will cause damage to the publication publishing industry.
The defense taken by Delhi University and Rameshwari Photocopy Service shop was that the course packs are covered under Section 52(1)(i) of the Copyright Act 1957, for the fair use of copyrighted material. They further contended that the compilation of the course pack was done from different books and that the sole purpose of using those books was to use them in the course of instructions by a teacher. They further pleaded that the coursepacks do not affect the market for the plaintiffs’ books as the charges that were set for the photocopy services provided by Rameshwari Photocopy Service shop were nominal and were fixed by the License Deed executed between the Delhi School of Economics and Rameshwari Photocopy Services. Moreover, the defendants pleaded that all the students cannot afford to buy all the books, and for providing them with the required content, extracts from those books were mentioned in the course packs prepared by the Delhi School of Economics.
A single judge of the Delhi High Court ruled against the publishers in 2016. The determining factor by the judge was that that compilation of the study materials or the coursepacks was done from various books and thus the course packs stand protected under the purview of Section 52(1)(i) for fair use of the copyrighted materials. Thus, there was no infringement of the copyrighted materials.
The case did not end here as the plaintiffs i.e., the publishers filed an appeal to the Division Bench of the Delhi High Court. In September 2016, a remand of the suit to the single judge Delhi High Court was made by the Division Bench of the Delhi High Court. This was done by the Division Bench of the Delhi High Court in the light of the provisions of the Copyright Act that verify the compilation of the course pack by the professors of Delhi School of Economics to be in the use of the course of instructions by the teacher.
In March 2017, the case was withdrawn by the publishers from the Delhi High Court. The withdrawal stated that the publishers recognize the role played by the course packs that included the extracts from their published books as crucial in the education of the students of Delhi University.
Although the case was withdrawn by the plaintiffs, there was a Special Leave Petition filed by the Indian Reprographic Rights Organization (IRRO) in 2016 before the Hon’ble Supreme Court. The petition challenged the judgment passed by the Division Bench of the Delhi High Court which said that such course packs in India stand legal for education. However, the Hon’ble Supreme Court decided not to interfere in the Delhi High Court order as the original suit filed before the Delhi High Court had been withdrawn by the main plaintiffs, the publishers. Thus, the decision of the Delhi High Court was upheld on 9th May 2017 by the Hon’ble Supreme Court and the petition was dismissed.
The Supreme Court of India took into consideration the socio-economic conditions of India as well as the realities of the education system while deciding this case. Moreover, the factor of affordability of students due to the growing modern technology in the education system was also taken as the basis of this case.
For a better future
With the growing need for online education, there arises an imperative need for planning for such provisions within the framework of Indian Copyright Law for situations where online education comes to aid and for the immediate future. There must be a complete and clear balance between the rights of the copyright owners and the provisions or exceptions that are mentioned for educational fair use in the Copyright Act 1957. The ambiguities that arise due to the use of the exceptions in other mediums of education must be taken care of by the legislature in the form of provisions that ensure the continuity of education without any hampering.
Moreover, the laws relating to the traditional libraries stand quite inadequate for digital libraries. Multiple users all around the world can have access to the same resource and who have the availability of the copyrighted work on the internet through digital libraries and other educational digital spaces. The present law is not reliable for analogically addressing the questions surrounding such issues.
Looking at extraordinary situations like that of a pandemic, it is clear that the law and policy haven’t contemplated such situations in depth. There is no certain connection that is made between copyright laws in India and national emergencies. To create normalcy in such situations, there arises a need for continuing with the practices that assure such normalcy even in the spatial confinements. Education is one of the most important aspects to create such normalcy at such times. It is imperative to ensure a digital environment for accessing education as one does in their physical environment. This is done by providing online academic resources to the students. In such instances, there can be an expansion of the fair use provisions to aid the situations of emergencies for making it possible for the schools and universities to create a digital database for their library catalogs, or share the content for their syllabi or course packs and the recordings of the lectures without needing to wait for a license or the permission from copyright owners. Such measures will prove to have a positive effect on the most fundamental needs of society, one of which is education.
There is no doubt that India has firm and clear copyright laws when it comes to the usage of copyrighted materials in educational institutions. In the light of the DU Photocopy case, it is quite clear how the fair dealing of the copyrighted materials for educational institutions is restricted to the extent of being in the course of instructions. However, changing times require a change in the laws. Education is now sustained within modern digital technology to a great level. If the reproduction is done during instructions and for non- commercial purposes only, then such online learning and use of copyrighted materials can be said to be well protected. But there can be many discrepancies by an individual in the course of reproducing copyrighted materials. To combat such situations, we need new and clear guidelines which conform to the modern practices of online education and for the fair use of the copyrighted materials
Bio of the author
A 4th year law student from Vivekananda Institute of Professional Studies. Keen interest in corporate law. Dedication and enthusiasm for working towards bringing a change to the societal purviews for a better environment in all aspects. Experience in research on social and legal issues.