Copying the copyrighted in right manner

Copyright grants exclusive rights to the creators of original literary, scientific and artistic works. It prevents unauthorized reproduction, public performance, recording, broadcasting, translation, or adaptation, and allows the collection of royalties for authorized use. However, Copyright only prevents copying, not independent derivation. But, does it means that copyrighted work cannot be used by anyone else without paying royalty? The answer to the question is no; one of the ways in which that particular work can be used to a limited extent is by way of ‘fair use’ of the work.

Fair use is an exception to the rights of the author which allows limited use of copyrighted material without the author's permission. For instance, fair use does not allow reproduction of a whole work or a substantial part of such work, but, rather, extracts or quotations from the work are permitted, such that they do not appear to snatch the first author's expression of his or her idea. To be clear, any unauthorized use of a copyrighted work is normally an infringement and fair use acts as a defence thereof — the defence of fair use does not necessarily mandate a non-infringing action. The unlicensed user admits that he has used the work, which would normally constitute copyright infringement, but justifies his use as covered within the fair use exception.

There is a minor difference in terminology with regard to the concept of fair use in the US and India. US law uses the term "fair use," while British and Indian law uses the term "fair dealing."

In India, fair dealing is covered under Section 52 of the Copyright Act 1957. Indian law allows fair dealing as a defence for specific acts that would not be deemed as infringement for the four specified categories of copyrighted works (viz. literary, dramatic, musical and artistic works).

To help evaluate whether a proposed use is a fair use, consider the following:

·        Copyrighted material used for the purpose of criticism or review of another work or its performance or reporting current events, does not amount to infringement. (Nevertheless, remember, it must be followed by an acknowledgement).

·        The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original.

·        If you use a major chunk or vital feature of the work, it amounts to infringement. However, if you use only few features of the work which does not affect the original; it does not amount to infringement. Taken into consideration whether the work is published or unpublished, and whether circulated or not in case of an unpublished work.

·        If you wish to take a conservative approach, avoid verbatim copying. Synthesize facts in your own words. Keep in mind, however, that close paraphrasing may constitute copyright infringement if done extensively.

·        Never copy more of a copyrighted work than is necessary to make your point understood. The more you borrow, the less likely it will be considered fair use.

·        Do not take the "heart" of the work you're copying from. If what you've copied is important to the original, it will weigh against finding fair use.

·        Courts invariably look at the alleged infringer's literary objective. Make certain you comment upon the material you borrow or can otherwise justify its use. By commenting on the original, does it transform the character, meaning, or message of the original? If so, that's a socially productive use, which leans -- when all four factors are tallied -- towards fair use.

·        Never copy something to avoid paying permission fees, or to avoid creating something on your own.

·        Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit will not, alone transform a "foul" use into a "fair use”.

·        Parody (not satire), which is a work that that ridicules or mocks an original work by borrowing elements of the old work, is sometimes protected by fair use. If the new work clearly mocks the old one, it may provide some justification for invoking the fair use defence.

·        Being a non-profit educational institution does not let you off the hook. Even non-commercial users can be sued if the use exceeds the bounds of fair use.

·        Don't compete with the work you are quoting or copying from. If the use diminishes the market for the copyrighted work (or portions of it), including revenues from licensing fees, it is probably not a fair use. If permission is denied and you feel use is essential to your own work, seek legal advice. Do not quote from copyright material simply to "enliven" your text.

·        Remember that fair use is a "defence" to copyright infringement, not a right. When in doubt seek permission or consult an attorney.

Thus, Indian legislature, through the fair dealing doctrine purports to maximize the promotion of creativity and dissemination of information at the same time. In recent fair dealing cases the court’s approach generally has been to examine the cases by going through each of the factors as a check list, weighing each of them in favour of the copyright owner or the user and then tallying up the net score. This approach has in a way been effective to prevent the doctrine from freezing. I am sure a lot of law firms in Mumbai would agree with us.