Understanding copyright laws can be complex for anyone looking to publish their work that incorporates copyrighted material owned by third parties. Whether quoting from a book, using an image, or citing research, knowing how to legally reuse copyrighted material is essential to avoid potential infringement issues.
Copyright law in India is governed by the Copyright Act 1957 which provides the legal framework and guidelines governing reuse of copyrighted content. The doctrine of fair dealing, securing prior permissions from the author, entering into licensing agreements with the author etc., are a few options that can be explored for reuse of copyrighted material.
As there is no uniform rule applicable, even measures like giving appropriate credit or attribution to the author or adding a disclaimer acknowledging the original author may not be sufficient to avoid infringement.
This article provides a guide on effectively reusing copyrighted content while ensuring compliance with intellectual property regulations.
Balancing Public Interest and Copyright Protection
Copyright protection aims to safeguard creators’ rights. The debate over copyright protection often revolves around the exclusive rights of creators to monetise their work versus the need for public to freely access and reuse information and protected works. Legislation and the Courts have sought to maintain an equilibrium between upholding the economic rights of creators and promoting the public interest through access to, use of, and dissemination of creative works. Safeguarding the rights of creators while also safeguarding the public’s right to access information serves to foster a balanced and sustainable creative ecosystem.
Fair Dealing
The concept of “fair dealing” (similar to “fair use” in some jurisdictions) is a doctrine of equity which allows use of copyrighted material for specific purposes without obtaining consent from the owner. Section 52 of the Indian Copyright Act, 1957 outlines the circumstances constituting fair dealing. With the Copyright Amendment Act, 2012 the fair use provision has been extended to cinematograph film and musical works.
Section 52 of the Copyright Act 1952, certain uses of protected content are considered legal, including but not limited to:
- Private Use – Use of copyrighted material for personal use without commercial exploitation of the same is permitted under the Act. However, private use of a work does not include sharing copies of the work or uploading the work on social media.
- Criticism and Review – Using a copyrighted work for the purpose of criticism or review is permitted, provided that the use of work is fair and limited to the critical analysis or review.
Civic Chandran vs Ammini Amma1
Facts: The original work in question was a political drama written in 1952, which became an iconic work in Kerala’s political landscape. A counter-drama was written in 1995 by the Defendant, critiquing the ideology and themes of the original work. As the counter drama included substantial reproductions of characters and scenes from the original drama, the aggrieved Plaintiffs sought an injunction to restrain the Defendant from performing the counter-drama in public, which was granted by the Court.
An appeal was preferred to the Kerala High Court against the said order on the grounds that the counter-drama constituted fair dealing under Section 52 of the Copyright Act.
Findings: The Court held that although portions of the original drama were used in the counter-drama, the copied portions only served as a basis for critique and that there were substantial differences in the overall theme, narration, presentation and purpose of the counter-drama. As the counter-drama was aimed to criticize the ideology enshrined in the original work, the use of certain portions of the original work in the counter-drama constituted fair criticism and was a justified reuse of the copyrighted material. The ruling of the lower court was accordingly reversed.
- Reporting Current Events – Using parts of copyrighted works for reporting news and current events or for dissemination of public information does not constitute infringement.
- Judicial and Legislative Use – Use of copyrighted work in legal and judicial proceedings, parliamentary or legislative processes is permitted under the Act.
Four Elements of Fair Dealing:
Fair Dealing is often evaluated based on the following four factors:
- Purpose and Character of Use: Non-commercial, educational, and transformative uses (where there is value addition in the new work to such an extent that it alters the original work in a significant measure) are more likely to be allowed protection under the exception of fair use for the reason that such use would not impede or hamper the rewards that would accrue to the owner of copyright in the work.
- Nature of the Copyrighted Work: Factual and informational works are more leniently considered for fair use than creative works (e.g., fiction, music, and art). When the original work is high in creativity, the chances of Courts rejecting the defence of fair dealing is higher as such works are results of the author’s creativity and entitled to highest degree of protection.
- Scope and Criticality of the Used Excerpt: Both quality and quantity of the copied work is evaluated to determine the applicability of defence of fair dealing. The quantity of the copied work would not, by itself, be a conclusive factor to determine infringement. When the portion of work copied is smaller, yet substantive or highly crucial to the creativity in the original work, even copying a small portion of the original work may amount to infringement. On the other hand, even copying an entire work may be exempted from infringement actions, if the work was copied for transformative uses.
- Effect on the Market Value: If the reuse of original work results in a detrimental effect on the work’s commercial viability, it is unlikely to qualify as fair use. If use of a copyrighted work deprives the owner of the copyright from monetary gains, such use would not be able to invoke the exemption of fair dealing. In addition, the courts also evaluate whether such use by the Defendant and others, if left unchecked, would adversely impact the potential market.
How to Reuse Copyrighted Material Legally
Reusing copyrighted material legally requires careful consideration and adherence to specific guidelines.
- Confirm whether permission is needed: Works in the public domain including but not limited to those in which copyrights have expired or have been relinquished by the owner, few works created by the Government or works that do not qualify for protection under the Copyrights Act etc., can be reused without permission.
- Identify the owner: The copyright owner is typically the creator of the work, but can also be a publisher, or other entity to whom rights in the work has been assigned. Contact the author or publisher for explicit consent to reuse the work.
- Identify the rights that are needed: The specific permissions required to reuse a copyrighted work may vary depending on how one plans to use the copyrighted material. For example, reproducing the cover page of a book for a review might require different permissions than reproducing excerpts from the book, within the review itself.
- Start by contacting the copyright holder: The most straightforward way to obtain permission is to directly contact the author or publisher (or whoever owns the copyright in the work).
- Document the permission: It is best to obtain written permission from the author, specifying the scope of permitted use, duration, and other relevant conditions.
Creative Commons Licences – Creative Commons (CC) Licence, governed by Creative Commons, an international non-profit organization, provides pre-determined, easy-to use licences to use the copyrighted work of others, under specific terms. Works licensed under CC can be reused without attaining prior permission, provided the specific licensing conditions are adhered to. There are different types of CC licences with varying levels and nature of permissions granted, for example few licences may allow modification of the original work while others may specify that the work cannot be altered, adapted, or remixed. It is important to check and comply with the terms of licence to avoid infringement.
Best Practices for Legally Reusing Copyrighted Material
A checklist will help ensure that applicable legal requirements have been fulfilled when seeking to reuse copyrighted material, minimising the risk of infringement and potential legal repercussions.
- Determine if the work is copyrighted
- Check if nature of use is covered under fair use
- Seek written permission
- Use full and proper attribution
- Ensure compliance with licensing terms
- Consult a lawyer when uncertain about reusing a protected work
Cases:
University of Cambridge v. B.D. Bhandari & Ors2
Facts: The Appellants were the owners of a work titled “Advance English Grammar by Martin Hewings.” The Respondents were selling guidebooks with unauthorised excerpts from the Appellant’s work, which, the Appellants alleged, amounted to infringement of their work. A single bench of the Delhi High Court had earlier dismissed the Appellants’ suit, refusing to restraint the Respondents from selling the guides. An appeal was referred to the division bench of the Delhi High Court, by the Appellants.
Findings: The Court noted that the work of the Respondents involved creativity and originality in expression although the idea might not have been original. Also, the Respondents’ work contained a lot of additional contribution and was not restricted to just the contents taken from the Appellants’ original work. An overall comparison of the two books revealed sufficient differences between them. In light of these the Court rejected the Appellants’ allegations of infringement, and the appeal was dismissed.
The Chancellor, Masters and Scholars of University of Oxford and Ors. vs. Rameshwari Photocopy Services and Ors. (09.12.2016 – DELHC) : MANU/DE/3285/ (2016)3
This case addressed the issue of photocopying copyrighted books for educational purposes and its implications for fair dealing.
Facts: Few professors of the Delhi School of Economics created course packs and the Defendant (a photocopy shop within the school) was entrusted with the task of photocopying the pages from the books published by the plaintiffs. These course materials were supplied to the students for a charge of 50 paisa per page. The Defendant was accused of infringing copyright in the academic books published by the Plaintiffs.
Held: The Delhi High Court ruled that such photocopying for educational purposes falls under fair use (Section 52 of the Copyright Act, 1957).
Common Copyright Mistakes to Avoid
Understanding and avoiding these common copyright mistakes can save one from costly and long-drawn legal battles and reputational damage.
- Assuming everything online is free to use: It is wrong to assume that online materials or works that can be freely accessed through the internet are open for reuse without seeking permission from the owner of the work. Most online content is protected by copyright and it is essential to check for licensing terms and acquire the necessary permissions before reuse.
- Misinterpreting fair use: Understanding the intricacies and limitations of the exception of fair dealing is crucial for avoiding copyright infringement. Fair dealing has specific limitations, and it is essential to understand these limitations before relying on this exception.
- Attribution does not equate to authorisation: While reusing the copyrighted content of others it is important to understand that merely giving credit or attribution to the original author of the work does not give the right to use their work. Obtaining specific legal permission to reuse the work is not absolved by attribution of credit.
- Lack of response does not grant usage rights: While seeking permission from the owner of Copyrights in a work to legally reuse, it is important to get explicit written consent specifying the scope of reuse and to understand that silence of the owner does not imply consent.
FAQs
1. How can I legally reuse content that I found online for my publication?
Determine if the work is copyrighted, check if fair dealing applies, seek permission. Wherever applicable, use proper attribution and ensure compliance with licensing terms.
2. Do I need to get permission to use public-domain content?
No, works in the public domain can be used freely without permission. However, providing attribution is a good practice to acknowledge the original creator.
3. How can I determine if my use of copyrighted material falls under fair use?
Evaluate the four factors of fair dealing: purpose and character of use, nature of the copyrighted work, amount and substantiality of the portion used, and effect on the market value.
4. What is the difference between fair use and licensing?
Fair dealing (or fair use) is a legal doctrine that allows use of copyrighted material without having to obtain permission from copyright owners, subject to specific conditions. Licensing involves obtaining permission from the copyright holder to use their work under specific terms and conditions, often for a fee.
5. How can I avoid copyright infringement when reusing content for commercial purposes?
Exercise caution when using copyrighted material for commercial purposes. Fair dealing is often more difficult to establish where commercial exploitation is involved. It is advisable to seek permission and obtain specific licence for commercial use. Seek advice from a copyright lawyer to avoid complications.
Key Citations
- (1996) 16 PTC 329 (Ker.) (India)
- ([RFA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008],)
- MANU/DE/3285/2016
