Rethinking Intellectual Property Rights Student Presentation on Limits

Rethinking Intellectual Property Rights Student Presentation on Limits of permitted use 10 th -12 th. March, 2011 Anuj Kumar Thakur B. H. U. 3/18/2018 1

Intellectual Property? INTELLECTUAL PROPERTY (IP or IPR) INDUSTRIAL PROPERTY TRADEMARKS COPYRIGHTS OR AUTHORS RIGHTS PATENTS INDUSTRIAL DESIGNS GEOGRAPHIC INDICATIONS 3/18/2018 2

COPYRIGHT A SOCIAL PERSPECTIVE 3/18/2018 3

WHAT IS COPYRIGHT? –Right to reproduce –Right to publish –Right to perform or communicate to public –Right to make film or sound recording –Right to make translation or adaptation 3/18/2018 4

WHAT IS PROTECTED n Following WORKS are protected under Copyright – Artistic – Literary – Musical – Cinematographic films (e. g. video films) – Sound Recording (e. g. audio tapes and compact discs) 3/18/2018 5

Infringement of copyright Primary infrigement Restricted activity Causal connection Secondary Infringement Substantial copy Facilitate infringement 3/18/2018 Dealing infringement 6

Limits of permitted use § Provision relating to permitted use of copyrighted work has been laid down under section 52 of the copyright Act, 1957 in the form of fair dealing. In America it is known as “Fair use". It is an exception to infringement of Copyright. The object of fair dealing is to enable the reproduction of the work to retain public purposes for encouragement of private study and research and promotion of education. It provides defenses in an action for infringement of copyright. § Fair dealing is an important concept in Indian copyright law. However, despite its importance in the copyright regime and the importance of the copyright regime to advancement of technology. the concept remains relatively unexplored in India. It is integral part of copyright law. Fair dealing doctrine is ‘a key part of the social bargain at the heart of copyright law, in which as a society we concede certain limited individual property rights to ensure the benefits of creativity to a living culture…. . ’. Its object is to balance between authors right and 3/18/2018 7 public interest.

Fair Dealing in Other Countries n n Australia n Canada n New Zealand n 3/18/2018 United Kingdom Singapore 8

International treaties/convention on permitted use n n Berne Convention: -Three step test was devised for limitation and exception for reproduction. -It should be granted in certain special cases -It should not conflict with the normal exploitation of the work -It should not unreasonably prejudice the legitimate interest of the author TRIPS Agreement: -Three step test extended to all exclusive rights conferred by copyright. 3/18/2018 9

WIPO Copyright Treaty, 1996 n use for the sole purpose for teaching and research n quotation for criticism or review n use for reporting current events n use for judicial procedure………. n use for visually and hearing impaired people… 3/18/2018 10

Basic principles of fair dealing n The purpose and character of the secondary use. n Nature of copyright work. n Amount and substantiality. n Effects on the market. 3/18/2018 11

Fair dealing u/s. 52 of Copyright Act n n n n Private use, including research Criticism or review of that work or …. . Reporting current events in a newspaper, …… For judicial proceeding For legislature work For certified copy made under any law For reading in public Use for education course 3/18/2018 n n n n Amateur club and society For current topic in periodical For use of libraries Reproduction of unpublished work For official gazette, judgement of courts Adaptation Making sound recording in certain cases Performance of a work in official ceremony 12

Other significant FAIR USE exception not provided under the Act n n 3/18/2018 For cinematograph film and sound recording -No provision for research, teaching and private study -No provision for reproduction in the course of a judicial proceeding -“version recording” or “sound alike recording” No provision for archival use of literary, dramatic and musical work by a librarian or archivist No provision for using of literary, dramatic, musical, artistic work for charitable purpose The Act overlooks the needs of the visually challenged section of society 13

Cases on permitted use n n n Hubbard v. Vosper (1972)2 QB 84(CA) Wiley Eastern ltd and Ors v. IIM (1995)PTC 375 Gramophone co. of India ltd. V. Super cassette industries ltd. (1995)PTR 64 Eastern Book Company v. Navin J Desai(2001)PTC 57(Del) ESPN Stars Sports v. Global Broadcast News ltd and Ors. 2008(36)PTC(Del) 3/18/2018 14

Amendments proposed in 2010 relating to permitted use The making of three dimensional objects from two dimensional artistic works such as a technical drawing n Provision relating to storing of any work in any electronic medium…… n Provision relating to reproduction of cinematograph film and sound recording in respect of judicial proceeding, legislature…. . n Provision for disabled person of society n other significant provision for the interest of public 3/18/2018 15 n

Unfairness in the fair use exception § There has not been any challenge to the Act before any judicial authority in India till date relating to the adequacy of the fair use provisions in view of the public interest in accessing the protected works. Most of the decided cases relating to fair use in India have raised the issue whether a particular use of a work amounts to fair use under the Act. § The object of this section is to protect the public interest in accessing the information contained in these works can not be achieved if fair use provision are not adequate while the proposed amendments in 2010 attempt to restore the current imbalance that exist in the Act. 3/18/2018 16

Copyright - Digital Medium n n Every accessible or published material on the Internet is a 'copyrightable" work. Protection is provided to all written text materials graphic images, music and videos Graphic User Interface of a website also enjoys Copyright protection Insertion of sec. 65 A and 65 B proposed by Copyright (Amendment)Bill, 2010 will defeat the concept of fair dealing 3/18/2018 17

Digital rights management and Copyright n It is part of WIPO Copyright treaty n It protects copyright on internet like film, music, computer games, E-books…. . n It is against the public interest n It is against the concept of “fair dealing” n By Copyright (Amendment) Bill, 2010 it is going to be introduced under copyright Act, 1957 3/18/2018 18

Suggestion on fair dealing for protecting public interest n n n It must be dynamic in nature DRM should not be incorporated in our Act There is need to evolve our own jurisprudence according to need of our society n n n 3/18/2018 We need another R. G. Anand judgment Judiciary must be given chance to interpret sec. 52 for balancing authors interest and public interest It must not be read as merely defenses of an action for infringement of copyright rather it should be read in respect of public interest 19

Conclusion n n In conclusion it can be said that fair dealing doctrine is the heart of copyright law. Its object is to balance public interest in respect of copyrighted work and legislature is trying to balance between public interest and individual interest by amending section 52 time to time. Lastly I would like to conclude by saying that, It is opportune for India to consider emulating the international copyright practice to accommodate certain widely recognized exception to enrich our copyright jurisprudence and keep it abreast with international practice Thanks ! Always honour the IP… 3/18/2018 20