CHAPTER: VI

CRITICAL ANALYSIS OF FAIR USE DOCTRINE

Emergence of notion – ‘granting protection as the copyrights’ has defined the fixing of
boundaries to the knowledge by the legal framework. It has changed the age old and noble
perceptions of knowledge. The result is that the knowledge is commodified and enough
restrictions are placed for free access. The concept has narrowed the arguments of
universalization and public interest by promoting the plea of private rights, private property
and interests. The advent of technology has further strengthened the arguments for bringing
the knowledge into personalized domains. Conflicts between the social and personal interests
are further aggravated, ending in the ambit of litigations1.

The arguments of ‘sweat of brow’ have gained momentum and monopolies are being
created. Agreements and disagreements on the accessibility of knowledge against the
monopolistic nature of the copyright law have surfaced. Academicians, intelligentsia and
industrialist, by way of conferences, seminars and workshops are revisiting the copyright law
to further ease the accessibility of the knowledge without causing damage to commercial
interests of the owner. Proposals for amending the existing provisions are under negotiations
to strengthen the users to access knowledge. The copyright law of many countries is under
terrific pressure to have amendments to meet the needs of the day. With the frequent
amendments resulting from the negotiations internationally, the question unanswered before
us is – whether the copyright law is becoming stronger or diluted? The answer is significant
to the copyright owners and also to the users.

The natural law and equity bestow the owner to possess and protect his own creation from
other’s unjust enrichment. The Copyright in a work shall be deemed to be infringed by any
person who, without the consent of the owner of the copyright, does anything, the sole right
to do which is conferred on the owner of the copyright2’. Because of the complex nature of
the copyrights, it is very difficult to understand and enforce the rights.

1
V Govindan V E M Gopalakrishna Kone and Another, AIR 1955 Mad 391
2
Kartar Singh Giani V Ladha Singh and Others. AIR 1945 All 55
301
6.1. COPYRIGHTS: CRITICAL ANALYSIS

6.1.1. Copyrights and Monopoly Rights

‘Whether the copyright is a statutory monopoly or a proprietary right is significant for both
copyright owners and users of copyrighted material’3. In the early days, the copyrights are
protected under common law and statutory law. Enough efforts are made to distinguish the
common law copyrights with that of the statutory copyrights in US. ‘The copy rightists
claimed that the common law copyright under state law and statutory copyright under federal
law resulted in a needless and confusing dual system of copyright protection. The argument,
of course, was wrong because the common law copyright was not a copyright at all, only the
right of first publication. The saying goes: ‘when statutory copyright came in, common law
copyright went out’. There was, in short, no system of dual copyright protection’4. The
question of whether copyright is a natural law property right or statutory monopoly is a
question of how shall we treat copyright law. After the Statute of Anne, the copyright law is
a statutory one. Almost all the countries have enacted special legislations to deal with the
copyright issues as compliance of the Berne Convention. There is no dispute about the
copyright as a statutory right. The never ending argument that still continues today is whether
the copyright is a monopoly right or user-friendly?

It is settled law today that the copyright is a statutory right in India and it can be evidenced
with wording of the Section 16 of the Copyright Act, 1957 which states that the ‘copyright is
granted only in accordance with the provisions of the Act or of any other for the time being in
force5’. The Act also provides for the relinquishment of the copyrights. Thus, the statute in
India has the provisions for grant of copyrights and also shedding-off copyrights. Neither
customs nor traditions have say in granting the copyrights. As such, it is beyond doubt that
the copyright is a statutory right. Whether copyright is a monopolistic right or not, the Act
identifies the copyright as an ‘exclusive right’ of an owner.6 Though the term ‘exclusive

3
Ray Paterson, ‘ Folsom Vs Marsh and Its Legacy, Journal of Intellectual Property Law, (1998), University of
Georgia School of Law, US
4
Ibid
5
Section 16 of the Copyright Act 1957 says that ‘No person shall be entitled to copyright or any similar right in
any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this
Act or of any other for the time being in force, but nothing in this section shall be construed as abrogating any
right or jurisdiction to restrain a breach of trust or confidence’.
6
Section 14 of the Copyright Act 1957 defines that ‘the copyright means the exclusive right subject to the
provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any
substantial part there of - ….’
302
rights’ denotes the monopoly of the rights, but in reality they are not. These rights are
enforced ‘subject to the provisions of the Act’7. The following are some of the provisions
which regulate the grant and exercise of the copyrights under the Act. Provisions relating to
ownership of copyrights explicate the situations where the first ownership of the copyrights is
recognized. 8

 Provisions relating to assignment of copyrights explain the process of transfer of

rights from the owner to another so that the monopolistic nature of the copyright is
diluted9. By way of assignment, the original owner transfers all the rights or permit
others to use the copyrighted material exclusively or nonexclusively, whereas under
the process of licencing, the licencee get the rights for certain specific purpose and
period and are known as non-exclusive rights. As such, the monopoly of the
owner/author is limited and the assignee or the licencee has a right to use the works
assigned or licenced.

 The copyright, under the Act, is granted for a certain period and once that tenure10 is
expired, it will not be the property of the individual who created it and devolves into
the public domain unlike the real property. This process of automatic transfer of rights
from private to the public domain checks the monopoly and converts them to limited
monopoly.

 The statute permits the transfer of rights of the copyright owner, under the provisions
of compulsory licencing11 and in the public interest even if he refuses to grant licence
voluntarily. Compulsory licence is a powerful tool in the hands of the Copyright
Board which is applicable for published and unpublished works. This right of the
Government excludes the monopolistic rights of the owner/author.

 Exceptions to the infringement of copyrights that are provided in the statute also
check the monopolistic nature of the copyrights12. Section 52 of the Act provides for
certain ‘acts’ which are not considered as the infringements even after the copyrighted
material is used or copied. The provisions stated in Section 52 are more elaborate and

7
Section 14 of the Copyright Act 1957
8
Section 17 of the Copyright Act 1957
9
Section 18 of the Copyright Act 1957
10
Sections 22 to 29 of the Copyright Act 1957
11
Section 31 and 31A of the Act
12
Section 52 of the Act
303
 are considered in the public interest and has taken the shape as the doctrine of ‘fair
dealing’.

The copyright law also regulates unreasonable exploitation and unjust enrichment of
copyrighted material by the unauthorized persons. Once the owner/author is reasonably
compensated for their intellectual efforts for a certain period, the law provides for the
automatic devolving of the property into the public domain and makes them available to the
public at large. There cannot be any monopoly on the subject matter which the author has
borrowed from public domain. Others are at liberty to use such material and the material in
which no one has a copyright and is available to all. Every man can take what is useful from
them, improve, add and give to the public the whole comprising the original work with his
additions and improvements13.

6.1.2. Copyrights and Free Speech and Expression

‘The law of copyright is an extension of right to freedom of speech and expression, which
means that if an individual has freedom of speech and expression that person will naturally
get a right to protect his own property’14. ‘The function of copyright to promote expression
has been noted in the off-cited case Harper & Row, Publishers, Inc v Nation Enterprises
calling copyright the engine of free expression’15. There are conflicting arguments about the
relation of copyrights and right to free speech and expression. Some of the scholars argue that
the rights of free expression and free speech end from where the copyright law governs.
Copyright law restricts the access of the copyrighted material by granting exclusive rights to
the copyright owner as such there is no freedom to copy the contents from the copyrighted
material. The basic element they forget during the arguments is that the copyright does not
exclude the people from reading and assimilating the information that is available in the
copyrighted material, but, exclusion is for ‘using’ the copyrighted material for different
purposes, more precisely for commercialization. Other argument that is put-forth is that free
flow of information is the requirement for creation of new knowledge. Original creative
work, and free access to new information leading to create new knowledge is cyclic, as such,
there should not be any conflict between the two. The free speech and expression is a
fundamental right protected under the Constitution whereas the copyrights are exclusive

13
Eastern Book Company and Others vs Navin J Desai and Another, 2001 PTC (21) 57 Del
14
Sridhar Madabhushi, ‘Whose Intellect? Whose Property? An Analysis of Copyright and Doctrine of Fair Use
with Reference to Print Media’, the Icfai Journal of Intellectual Property Rights, Vol. IV, Issue 2
15
471 US 539, 558 (1985)
304
statutory rights under the Copyright Act 1957, which is within the framework of the
constitution and at any point of time, the law of copyrights cannot cross the boundaries of the
constitutional framework.

6.1.3. Copyright Law and Principles of Natural Justice

The nature of the copyright law can be well understood further from the objectives of the Act
for which it is enacted and enforced. One of the important element that prompted the
copyright legislation is the natural principle that ‘he who sow he who reaps’ i.e., whoever
sows the seed has the priority right to reap the benefits. Other doctrine that has a direct
relation with the copyright law protection is the ‘sweat- of- brow’ i.e., an individual whoever
spends the energies and make efforts in new creations should have a right to enjoy the fruits
of the new creations. The above principles are similar, and argue to restrict the purview of use
of the new creations and limits to the persons who created them. Thus, they are considered as
personal property and as the owner/creator shall exercise all the powers and rights upon the
property that created.

6.1.4 Copyright Law and Objectives

‘The law has a number of aims: to reward and recognize creators, and to provide incentives
for creation and investment of copyright material. Copyright law also aims to fulfill certain
broader social aims: importantly, to increase public access to a broader range of creative
material16’. Grant of copyrights acts as incentives to the authors and prompts the authors to
create more new ‘works’, thus the knowledge base is enriched. The copyrights are considered
as sources of income for the owners/authors and creation of works becomes a profession. In
the process of professionalization of the new creations, if the authors compromise with the
quality in the process of pure commercialization, the works that are created may not have
intellectual flavor resulting in short shelf-life. Professionalization and commercialization of
new works converts the intellectually created works into commodities without any aesthetic
flavor. The copyrighted works in book shape becomes movable goods. If the books contain
intellectual inputs, it creates goodwill to the author/owner, and represents the origin source
(authors and publishers address), similar that of the trademark and reduces the gap between
the law of trademark and copyrights.

16
Kimberlee Weatherall, ‘Fair Use, Fair Dealing: The Copyright Exceptions Review and the Future of
Copyright Exceptions in Australia’; ‘Fair Use: A Revisit’ Edited book Published by Amicus Books, the Icfai
University Press, 2008
305
Another important aspect of copyright is social dimension. The society recognizes the
contribution of the author for their valuable contributions to the knowledge base and places
him on high pedestal in the society. The recognition brings reputation and social status. It
also imposes a responsibility upon the author. He is expected to discuss and expose social
evils in order to protect the public interests. Simultaneously, he is bound not to inject
immoral and unsocial practices into the society. In fact, he is considered as social-doctor. The
reputation and recognition of the author is directly proportionate to the intellectual quality of
the works created.

The concept of copyrights has emerged with an objective, as discussed earlier, to protect the
interests of the owners/authors of the works and facilitate them to reap benefits out of their
own creations. In the process of balancing the exclusive rights of the copyright owner and the
other parties interested, at the same time it takes away the rights of the copyright owner in
different circumstances which curtails the rights of the owner .Compulsory licensing of
works withheld from public17, unpublished Indian works18, restriction of rights of foreign
authors first published in India19, exceptions to the acts of infringements20, and fixing of
royalties in case of compulsory licencing. Finally, the Copyright Act permits the
relinquishment of copyrights21 so that they devolve into the public domain. Fixing of term of
protection for different categories of works is another way of diluting the exclusive rights of
the owners/author. The objective beyond the dilution of copyrights may be the support to
public and the social interest. In the process of protecting the public interest, the copyright
law has restricted the rights of the owner/author work which is online with the international
copyright law. The preamble of WIPO Copyright Treaty also supports the argument of
balancing the rights of owners and the larger public interests. The Berne Convention22
permits to define the limitations and exceptions to the copyright law. Indian Copyright law
also adopts similar provisions to restrict the exclusiveness of copyrights and permits the

17
Section 31 of the Act
18
Section 31 A of the Act
19
Section 42 of the Act
20
Section 52 of the Act
21
Section 21 of the Act
22
Article 13(1) of the Berne Convention states that –‘ Each country of the Union may impose for itself
reservations and conditions on the exclusive right granted to the author of a musical work and to the author of
any words, the recording of which together with……………..but all such reservations and conditions shall
apply only in the countries which have imposed them and shall not in any circumstances, be prejudicial to the
rights of these authors to obtain equitable remuneration which, in the absence of agreement shall be fixed by
competent authority’.
306
individuals to use such material by obtaining permission from the Copyright Board which is
known as the compulsory licence.

The earlier discussion explicates that the nature of the copyrights can be summarized as the
exclusive rights of an author with a limited monopoly granted for balancing the personal and
social interests. They trigger commercial benefits, social benefits and impose responsibilities
upon the creators not to misuse and misunderstand objectives. Thus, with the expanded
horizons and varied subject matter, the copyright law intertwines with the industries such as
print and electronic media, broadcasting, music recording, film industries and educational and
research institution, etc. Because of widened portfolio, the scope of enforcement of
copyrights is a challenging job.

6.1.5. Limitations and Exceptions to Copyrights

‘The dual aims of copyright law are to stimulate creativity and to disseminate knowledge in
order to enrich culture and foster the growth of learning for the public welfare’23. The first
objective is concerned with the personal benefits of the ‘creator’ of the works whereas the
second aim is towards the benefits of society at large. The benefits to the owner/author are in
the shape of profit earnings or recognition in the society which is an abstract and
psychological benefit. The recognition transforms into reputation and the reputation helps in
the commercial success of the works. Commercial benefits trigger new creations and act as
the incentives for the work they create. The rights will be more effective, if the
commercialization of works is in the exclusive hands of the creator. If somebody, other than
the creator, commercializes the works, then the benefits accruing to the creator will be
diluted. In order to protect the interests, copyright law has created the concept of ‘exclusive
rights.’ The copyrights are exclusive because they are granted only in accordance with the
provisions laid down in the Copyright Act, 195724. Thus, the copyrights limit the scope of
entitlement of rights of the author/owner. In other words, laws other than the copyright law
are prohibited from granting the copyrights. The individual owners/authors are entitled to
claim the rights only in accordance with the provisions of the Copyright Act, 1957. Copyright
law recognizes the copyrights as ‘exclusive rights’ of the authors/owners and limits others

23
Eisenstein Mathew A, ‘An Economic analysis of the Fair use Defense in Leibovitz V Paramount Pictures
Corporation’, University of Pennsylvania Law Review, January 2000.
24
Section 16 of the Act says – ‘No person shall be entitled to copyright or any similar right in any work,
whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of
any other for the time being in force, but nothing in this section shall be construed as abrogating any right or
jurisdiction to restrain a breach of trust or confidence’.
307
from using the copyrighted works and achieves the object of providing incentives in the
shape of ‘exclusive rights’.

In the process of achieving the objective of providing the knowledge to the society, the
copyright law has devised various provisions limiting the ‘exclusive rights’. International
Conventions and Agreements also permit the member countries to provide for the limitations
and exceptions wherever necessary and to the extent of requirement25. ‘It has always been
recognized that in certain cases limitations or exceptions should be placed on the exercise of
the scope of established rights. The reasons given for imposition of such restrictions may be
based on considerations of public interest, prevention of monopoly control, etc.26 ‘While the
expression limitations and exceptions generally denote restrictions on the exercise of
copyright, Professor Sam Ricketson splits up limitations and exceptions27 into three heads –
those limiting protection altogether (limitations), those providing immunity from
infringement (exceptions) and those allowing access, subject to payment and compliance with
their conditions’.

The Copyright Act, 1957 has the provisions of ‘limitations and exceptions’ as envisaged by
the international conventions more specifically, the Berne Convention and the TRIPS
Agreement. It provides for the limitation on the recognition of the copyrights by stating that
the copyrights are exclusive rights and are granted in accordance with the provisions of the
Act. The Act further limits the scope by granting the exclusive rights to ‘certain type of
works’ which are specified in Section 13 of the Act. The limitations to the rights are available
in the Chapter V (Sections 22 to 29) of the Act which denotes the tenure of the copyrights for
each class of work. Though the word ‘exceptions’ is not used in the Copyright Act, 1957
specifically, but, are provided as immunities to the infringer28 from the liability of
infringements. The immunities stated in the Section 52 of the Act are exceptions for the
enforcement of the exclusive rights against the infringers.

25
Articles 2bis and 10bis of the Berne Convention and Article 13 of the TRIPS authorizes the member countries
to design the copyright law of nations and insert provisions confining ‘limitations or exceptions to exclusive
rights ‘.
26
C F Sterling, J AL, World Copyright Law, Sweet & Maxwell, London, Edition 1998, page 350
27
www.wipo.int/edocs/mdocs/copyright/en/sccr_17_www_111472.ppt
28
Section 52 of the Copyright Act 1957 enumerates various acts which ‘shall not constitute an infringement of
copyrights…’
308
6.1.6. Copyright infringements:

The copyright of any work is deemed to be infringed when any person, without a
authorization of any kind from the owner of the copyrighted work does anything or produces
or reproduces the work or any substantial part thereof in any material form, he is committing
an infringement of copyright.29 It is not necessary that the alleged infringement should be an
exact or verbatim copy of the original but its resemblance with the original in a large measure
is sufficient to indicate that it is a copy.30 Even any deviations from the scope of authority
granted by the owner or beyond the scope of the licence permitted, it is considered as the
infringement.31 One of the sunset and safest test to determine whether or not there has been a
violation of copyright is to see if the reader, spectator or the viewer after having read or seen
both the works is clearly of the opinion and gets an unmistakable impression that the
subsequent work appears to be a copy of the original32.

Whenever the test for the infringement is considered, aforesaid well established principles are
to be taken care to understand whether there is an infringement of the work or not.

6.2. PROVING THE HYPOTHESES33

6.2.1 First Hypothesis :

1. The limitations embedded with the general exceptions stated in Section 52 of the
Copyright Act 1957 amounting to acts of fair dealing fade away the thin line
between the fair use and infringement, causing commercial loss to the owners;

The Copyright Act, 1957 has provided some general exceptions to the copyrights of owners
by inserting the exceptions in Sections 30, 31 and 32 in the name of compulsory licensing
and fair dealing in Section 52 (1) of the Act. We have taken sample of such exceptions to
prove the hypothesis. Most of the exceptions have limitations and the said limitations create
confusion that whether there is an infringement or not.

29
Fateh Singh Mehta vs O P Singhal, AIR 1990 Raj 8.
30
RG Anand v Delux Films, AIR 1978 SC 1613
31
Lallubhai s Laxmishankar, AIR 945 Bom 51
32
RG Anand v Delux Films, AIR 1978 Sc 1613
33
The three parts of hypothesis are discussed for each of the exception to the copyrights under the guise of
doctrine of fair dealing of copyrighted material.
309
6.2.1.1 Compulsory Licencing34

The compulsory licencing35 is one of the significant provisions of the Copyright law which
limits the exclusiveness of rights of the owner. Indian Copyright law has the provisions36 of
compulsory licencing which were inserted in the Act in the year 1983 as part of complying
the terms of the Berne Convention which empowers an individual to apply to the Copyright
Board for a licence to publish such work or a translation thereof in any language37’.

The compulsory licence, in case of Indian works, is granted only when –

‘The owner of the copyright in the work -

a. Has refused to republish or allow the republication of the work or has refused to
allow the performance in public of the work, and by reason of such refusal the work is
withheld from the public; or

b. Has refused to allow communication to the public by broadcast of such work, or in

the case of a sound recording the work recorded in such sound recording on terms
which the complainant considers reasonable38.

If the works are available in the open market, application for the compulsory licence is not
entertained. In case of the unpublished works, the compulsory licence is operative only when
‘the author is dead or unknown or cannot be traced, or the owner of the copyright in such
work cannot be found.’39

In case of other works, the grounds for grant of compulsory licence incorporated in the
Section 32A (1) are –

‘a. The copies of such edition are not made available in India; or

b. Such copies have not been put on sale in India for a period of six months to the
general public’.

34
Though the compulsory licensing is a statutory exception and does not fall under the preview of the fair
dealing, this exception is tested with the hypothesis to explain the limited monopoly of the copyrights resulting
in copyright infringements causing economic laws to the owners.
35
Provisions relating to compulsory licencing are explicated in Sections 31 and 31A of the Copyright Act, 1957
36
The concept and process of granting the compulsory licence is embedded in sections 31, 31A, 32, 32A and 32
B of the Copyright Act, 1957.
37
Section 31 A of the Copyright Act 1957 provides for the compulsory licence in unpublished Indian works.
38
Section 31 of the Act
39
Section 31 A of the Act. It is inserted into the Copyright Act by way of amendment made in 1983 as a part of
equalization of Indian law with that of the International law.
310
In case of translations, compulsory licence may be granted only after seven years from the
first publication of the work and licence is granted into any language40. The process for
getting the compulsory licensing is envisaged in sections 31 and 31A of the Act. In the above
cases, ‘any person may apply to the Copyright Board for a licence to reproduce and publish
such work in printed or analogous forms of reproduction’41. The section 31 of the Copyright
Act, 1957 lays down the preconditions that are to be complied with. Accordingly, the
applicant should have asked the original owner/author for grant of licence or permission to
use the work and he gets refusal from the author. Thus for the reasons stated above,
irrespective of purpose of use, any person may apply to the Copyright Board. Grant of
compulsory licence is country specific and available to types of works created42.

The important stakeholders of the copyrighted material, if we examine critically, are the
owner/author and user. The owner/author who created the work is an important stakeholder
as he spends his intellectual capital, money and energies. He has every right to enjoy the
benefits from his sweat. On the other hand, the user who is in need of the ‘work’ has an
option to use the said work with permission. The permission may be granted either for
consideration or for free. For example, if the user requires a book and if the same is available
in the market, he may purchase and use it. When the user purchases a book, he has
permission to use it for particular purpose and for himself. If the work is not available in the
market, options available to the user, to request the owner to allow him to use. It is the
discretion of the owner either to allow the user or not in case the owner does not permit and
the user is deprived from using the same and he has the options to invoke special provisions
of compulsory licencing. The Registrar, on the directions of the Copyright Board, lays down
the guidelines of usage and amount of royalty payable. The right to use the copyrighted
works is bestowed on the user/applicant on payment of the royalty as directed by the
Registrar and directions/guidelines laid down by the Copyright Registry. There is a
possibility of multiple applications for grant of compulsory licences on one single
copyrighted work. There is no bar to the Copyright Board for granting multiple compulsory
licences on one single work. It will be difficult to monitor such licences. There will be some
more problems associated with the compulsory licence and includes the excess and beyond

40
Section 32 of the Act which is introduced into the Copyright Act by an amendment in1983.
41
Section 32 A (1)
42
Article 14(3) of Berne Convention excludes the application of the Article 13(1) to Cinematographic and
related rights which includes the public performance and communication of works.
311
the scope use of the licence granted. It sets a way for informed infringements. The informed
infringements will erase the thin line between the use of copyrighted work under the
compulsory licence and unauthorized use. There will be financial losses to the original owner
of the work.

When the compulsory licence is granted, user rights are limited and he cannot exploit the
work and use the same for all purposes. He is precluded from reproducing such work which
directly or indirectly affects the owner’s benefits. The Copyright Board lays down a well-
defined procedure for getting a compulsory licence. But, no procedure is laid down in the
Copyright Act about monitoring of the compulsory licence granted to the user. Any excess
use amounts to infringement of copyrights of the owner. Even if the Copyright Registry
grants the compulsory licence along with the directions of usage, it will be difficult to the
owner to monitor the user because of costs involved. It is also difficult for the Copyright
Registry to monitor each and every licence granted by it unless the misuse is reported by the
owner.

6.2.1.2. Fair Dealing in Computer Programs:43

In relation to the computer programs, the acts which are not considered as the infringements
are as follow:

 Making of copies of computer programs as backup copies to protect against the

destruction or damage of the computer program. 44

 Adoption of computer programs from a personally legally obtained copy for non-
commercial personal use.

 Seeking information essential for operating inter-operability of an independently

created program.

 Act of observation, study or test of functioning of the computer program.

The aforesaid acts are considered as the act of fair dealing provided the acts are undertaken
by the lawful possessor of a copy of such computer program and use the copies or adoptions
for the purpose for which the original software program is supplied. The act should be non-
commercial purpose. Thus, ‘purpose’ is one of the important elements to assess whether ‘the

43
Section 52 (1) (aa) of the Copyright Act 1957
44
Section 52 (1) (aa) was inserted by the Amendment Act of 1994 and came into operation from May10, 1995.
312
acts of copying’ is fair use not amounting to infringement. The condition precedent for the
fair use is that the original source material for copying should be lawful and copying should
be made only for the purpose of backup copies. In other words, it should be for the private
use only and not to commercialize or make copies for the use of others. The words ‘making
of copies’ does not restrict on the number of copies. Copying for ‘any other purpose’ and
‘copying from any other sources’ and for the purposes other than the purpose for which it is
supplied amounts to infringement and not covered by the exception of ‘fair dealing’. It is
difficult to find the number of copies and whether the copies are used by the same person or
other person. It is also difficult to know whether the copies are made for commercial or non-
commercial purposes. The menace of such copying is visible in music and cinema industries.
Because of such copying the piracy has taken its strong roots. If safe keeping of backup
copies is not properly planned, it may lead to piracy of the copyrighted work causing
enormous loss to the owner. Use of pirated software products is another example of such
devastating provisions which wipes off the thin line of difference between the fair dealing
and infringement.

The analysis of the above provisions relating to the ‘fair dealing’ of computer programs poses
some of the unanswered questions like, the meaning and scope of phrases ‘the purpose for
which it is supplied’, ‘lawful possessor’, ‘legally obtained copy’ and ‘making and adaptation
of copies’. The meaning and scope of the phrase ‘the purpose for which it is supplied’ is not
defined in the Act. It is very difficult to identify and find the motive beyond the making
copies of computer programs under a given circumstances. In order to protect from the legal
actions, the infringers may attribute different kind of motives. And the motive may change in
relation to time and place. And the software products may have many more purposes of
creation. Sometimes the programmer writes the program for one purpose and user may use
for different purposes with small modifications. If a person who has legally obtained the
software program, uses the same programs by making some modifications to it for his own
private use, whether it amounts to infringement or ‘fair dealing’? Motive to compete is
necessary to understand the extent of fair dealing or not. ‘If there were such motive while
tampering or creating modifications, it would render the dealing unfair, this would not set at
rest all questions concerning ‘fair dealing’. 45

45
M/s. Blackwood and Sons Ltd & Others Vs A N Parasuraman and Others, AIR 1959 Mad 410.
313
The terms ‘lawful possessor’ and ‘legally obtained copy’ are vulnerable to various
interpretations as the Act has not defined them. A person will be a lawful possessor if he
takes possession of the software program lawfully i.e., with a consent of a person who
purchased for his personal purpose. If a counterfeited copy comes into the possession of a
person on payment of valid consideration without his knowledge, whether it is to be
considered as ‘legally obtained copy’? Generally the software programs are licenced to use
on payment. A licensee who obtained the program for value consideration is a lawful
possessor of the program. If the sub-licenses to another purpose for a certain temporary
period, if the sub-licensee take possession on payment, whether he is the infringer? The Act
is also silent on the interpretation of the phrase ‘making of copies and adoption of copies’.
The Act does not make any limitation on the number of copies that can be made by the lawful
possessor. And as an owner of the goods he can make copies in any format that is compatible
to him as there is no restriction. He can make copies for the purpose of postponement of
enjoyment to future and it does not amount of infringement as the enjoyment is the purpose
for which it is purchased and copies are made for the purpose of personal enjoyment and not
for circulating in the public. As a result, format shifting takes place. Whether format shifting
during making of copies is considered as a fair dealing? We should remember the important
limitation that is laid down in the Act about making of the copies, i.e., copies of the works
should be made with an objective to protect the same from the loss, destruction and damage
of the program. And the copies made should be used as back-up copies. How to ensure the
said limitation? Even the scope of the term ‘adaptation’ of the computer program is
ambiguous in interpretation. Other terms used in these subsections also leave some
ambiguities in understanding the scope and application of the ‘fair dealing’ when applied to
the software programs as they are protected under the copyright law.

However, if the ‘acts’ are interpreted in the ambit of normal meaning and understandings,
specifically with reference to the ‘purposes’ which should not be commercial and utilized for
private purposes, then only that acts will be considered as ‘fair dealing’. It is difficult to
distinguish between the fair use and infringement. The thin line evaporates and outcome is
subject to various other factors. If the software program is of utmost commercial importance,
the issue of fair use or infringement makes a vast difference and lands the owner into
unending litigations.

314
Section 52(1)(ac) empowers a person to observe, study or test of functioning of a computer
program in order to determine the ideas and principles which underline any elements of the
program while performing such acts necessary for the functions for which the computer
program was supplied and the same evaporates the thin line between the fair dealing and
infringement. Observation, test and study of the functioning of the computer program is
linked to the acts necessary for the functions for which computer program is supplied. This
relation is always at cross roads as the information so obtained may be used for different
purposes and new program may be developed by changing the computer language. At that
point the functions will be same and outcome will be same and the person using the
information will also get the title over the program as the owner because of the change in the
computer language. If the two programs are made in different computer languages and
performing same function, then they will be competitive on one hand and owners share the
market resulting in loss of income from the person who developed the program for first time.
The person who observed the performance and used for the development of another program
shall benefit at the cost of previous program developer. When there is financial loss to the
owner of the program the action amounts to the infringement and come out of ambit of fair
dealing.

Section 52(1)(ab) also provides certain actions as fair use when they are necessary to obtain
information essential for operating inter-operability of an independently created computer
program with other programs by a lawful possessor of a computer program provided that
such information is not otherwise readily available. The two essential conditions to claim the
actions as fair use – lawful possession of the programs and not otherwise readily available,
creates ambiguity. If a person has a lawful possession of the counterfeit computer program
with a good faith and for lawful consideration, whether he is protected under the fair use
doctrine? The phrase ‘otherwise not readily available’ is always disputable and may lead to
take protection under the ‘fair use’ guise even though information is available at other
sources. The phrase also has not defined scope of the ‘otherwise not readily available’,
whether it is within the office, or city, or country? It facilitates for misuse of the copyrighted
computer program.

315
6.2.1.3. Fair Dealing in Literary, Dramatic, Musical or Artistic Work:46

A fair dealing with a literary, dramatic, musical or artistic work, not being a computer
program, for the purpose of (i) private use including research, (ii) criticism or review,
whether of that work or of any other work does not amount to infringement?

The ‘acts of fair dealing’ with reference to literary, dramatic, musical or artistic work are
dealt in distinct lines.47 In the first case, the ‘acts are considered as fair dealing’ only when
the ‘works’ are used for the purpose of - ‘private use including research’48. The term ‘private
use’ is very significant term to get the protection as fair use concept. An act of dealing with
any literary work, dramatic work, music work or artistic work for the purpose of the private
use is not considered as infringement. The phrase ‘private use’ is not defined in the Act. As
such it is difficult to fix the scope of the exemption of ‘private use’.49 But, precisely it can be
stated that the private use is for the use of individuals or for the purpose of his own activities
and not for commercialization and circulation among the people whether that group is private
or formed for the public purpose. Depending upon the circumstances, time and needs, the
meaning of the phrase ‘private use’ changes and is extendable unlimitedly. As such, there is
an ambiguity at every stage to assess whether it is the private use or public use. The said
ambiguity knocks away the thin line between the act of fair use and infringement.

Sometimes the use may be private in the initial stage, but consequently it may be the
foundation on which future business empire may be built. In some cases, the use of
copyrighted material may be protected on the ground of private use, but later, under the
changed circumstances, it may lead to the public use causing loss to the owners. As the
phrase ‘private use’ is relative and eradicates the sensitive difference between the fair use and
infringement.

6.2.1.4. Fair dealing for Education:50

Providing education51 for the citizens of a country is one of the important priorities across the
globe. To provide a quality education is a mission. It is a deliverable process connoting the

46
Section 52 (1)(a) of the Copyright Act 1957
47
Section 52 (1)(a) deals with the general nature of the acts which are considered as the acts of fair dealing
whereas 52 (1)(b) deals with the acts which are in the nature of reporting. Both the provisions deal with the
literary works, dramatic, musical and artistic works.
48
Section 52 (1)(a) of the Act
49
Section 52 (1)(a) of the Copyright Act 1957
50
Section 52 (1) (I ) of the Copyright Act 1957
316
process of training and developing the knowledge, enriching skills and character by way of
instruction. The instruction includes the delivery of the knowledge. The newly created
knowledge, unless put to use, has no meaning. The knowledge creates the knowledge. In the
early days of the society, the knowledge was considered as a divine gift and open for the
society. But, with the shift in the thought process and approach, commercial values are
attributed and the creators of knowledge started restricting the others. The emergence of the
copyright law has drawn a ‘red-line’ and created some hurdles initially in accessing and using
the knowledge learnt. The resources of the knowledge sharing in the process of training and
learning are under scanning of the copyright law, resulting in scarcity of the resources on one
hand and monopoly of the knowledge in few hands on the other hand, which is against the
interests of the society at large. Various variables like the paucity of resources, commercial
interests of the owners of the knowledge and disseminators, converted the education as a
profit making machine. A debatable relationship between the education, knowledge creation
and the copyright law is evolved.

The Copyright Right Act, 1957 has incorporated exceptions to the copyright protections in
Section 52 as ‘acts which are not to be considered as the infringements’. Section 52 (1) (g)52
permits the use of the copyrighted material as ‘publication in a collection for the purpose of
bonafide use of educational institutions’. Section 52(1) (h)53 permits the ‘reproduction of
copyrighted material by a teacher or pupil in the course of instruction, or as part of questions
to be answered or answers to such questions’. Section 52(1) (i)54 permits the ‘performance of
literary, dramatic or musical work by the staff and students of the educational institutions as

51
The Law Lexicon defines the education as ‘education is the bringing up; the process of developing and
training the powers and capabilities of human beings. In its broadest sense, the word comprehends not merely
the instruction received at school, or college but the whole course of training moral, intellectual and physical; is
not limited to the ordinary instruction of the child in the pursuits of literature.’ It also further states that ‘it is the
process of training and developing the knowledge, skill, mind and character of students by formal schooling.’
52
Section 52(1) (g) reads as – ‘ the publication in a collection, mainly composed of non-copyright matter,
bonafide intended for the use of educational institutions, and so described in the title and in any advertisement
issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not
themselves published for the use of educational institutions, in which copyright subsists:
Provided that no more than two such passages from works by the same author are published during any period
of five years’
53
Section 52(1) (h) – ‘the production of literary, dramatic, musical or artistic work- (i) by a teacher or a pupil in
the course of instruction or (ii) as part of the questions to be answered in an examination; or (iii) in answers, to
such questions
54
Section 52(1) (i) the performance, in the course of the activities of an educational institutions of a literary,
dramatic or musical work by the staff and student of the institutions, or of a cinematograph film or a sound
recording, if the audience is limited to such staff and students, the parents and guardians of the students and
persons directly connected with the activities of the institutions or the communication to such an audience of a
cinematograph film or sound recording.’
317
part of educational activities if the presence of students, staff, parents and guardians of the
students and other persons who are directly connected with the educational institution’. The
above provisions permit the ‘publication’, ‘reproduction’ and ‘performance’ of the literary,
dramatic, musical or artistic work and also musical works, sound recordings and
cinematograph films. The educational institutions, teachers, students are permitted to use the
copyrighted material published or even unpublished works. Section 52(1)(p)55 permits the
reproduction of copyrighted material kept in the library for the purpose of research or private
study.

The exceptions laid down in the above provisions are not absolute. The copyright law with an
intention to balance the interests of the copyright owners and public interests has laid down
certain conditions as checks to avoid misuse of the exceptions. The limitations on the
exceptions are also borrowed from the provisions of the Berne Convention. The Article 10(2)
permits the use of copyrighted material –

(i) to the extent justified by the purpose

(ii) for teaching purposes

(iii) such utilization should be compatible with the fair use practice.

Similar kind of limitations is also incorporated in the Copyright Act, 1957. Under the
provisions of Section 52(1)(g) the publication of copyrighted material is permissible
provided:–

(i) the publication is for the purpose of bonafide use of educational institutions

(ii) the use is permitted to the extent of ‘two such passages’ from the works of the same
author during any period of five years.

(iii) The publisher, while using the passages should disclose the same in their publication.

The above said conditions limit the use of the copyrighted material even for educational
purpose. Permitting the publication of ‘two paragraphs’ in a period of five years is only
limited usage as it permits use of only negligible portion of the copyrighted material and not
the entire work. As such, it does not help in dissemination of knowledge and enriching the

55
Section 52(1) (p) – ‘the reproduction for the purpose of research or private study, or with a view to
publication, of an unpublished literary, dramatic or musical works kept in a library, museum or other institution
to which the public has access’.
318
knowledge base of the society and yield no favorable results in favor of the user, but, tilt
towards the copyright owner. The limitations in case of Section 52(1) (h) are:-

(i) the exception of reproduction is permitted, only if they are used in the course of
instruction

(ii) by teachers and students

(iii) as a part of the questions or answers to the questions.

The limitations do not promote the exceptions but confine the users only ‘in the course of
instructions’ and reproduction is not otherwise permitted. Even inserting the exceptions into
the copyright law serves no purpose. The copyright law favors the owners and restricts the
use of the material for other than the educational instruction purpose. The exception
embedded in the section 52(1)(i) is also not an absolute one. It has a limitation of performing
the same to the limited audience of the educational institution and the audience should
include the students, teachers, staff, parents and guardians of the students. It is not open for
the general public. It is not even permitted for the audience of the students and staff of other
educational institutions.

The limitations to the exceptions tilt the balance of interests of the public to the copyright
owners and make the exceptions very narrow. In addition to it, enough ambiguities are also
created in the application of the above provisions. The phrase ‘in the course of instruction’
opens a Pandora’s Box that whether it limits to the classroom instruction or is it available to
the instruction on the distant mode. The classroom instruction involves face-to-face
instruction whereas in case of distance education, communication of instructions is involved
and the communication may be by a regular mail or by internet, CDs, or by video-
conferences. The phrase ‘course of instruction’ does not indicate the time limit; it may be
even for decades. Other terms used in the Sections 52(1)(h) such as the ‘teacher’ and
‘student’ also opens up the debate, as they are not defined in the Copyright Act. The meaning
of the above terms, whether applied to a limited meaning of ‘teacher or the students’ enrolled
in the educational institution traditionally or any person who is using the educational
institution as media of learning? It further restricts the use of the material as part of ‘questions
and answers’ session only and not for any other mode of imparting education. Use of multiple

319
copies of a copyrighted material in the class rooms under the disguise of the education usage
for cost is not considered as compatible with the fair use practice in US. 56

These exceptions guarded by the limitations may satisfy the tests envisaged by the Article
10(2) of the Berne Convention and tilt the convenience in favor of Copyright owner.
However, there is a requirement of revisiting the provisions for better use and balancing of
the interests of the public and the owners. The ultimate aim of providing the exception is
pointing towards the ‘non-commercial use and for the use of non-profitable education
institutions, has to be incorporated so that, the misuse of the materials by unscrupulous
people under the disguise of the copyright exceptions may be checked and the interests of the
public and also the copyright owners are to be balanced.

6.2.1.5. Fair Dealing in acts relating to the Library:

Section 50(1)(o)57 of the Copyrights Act, 1957 contains the exception of applicable acts
relating to the libraries. It empowers the libraries to make three copies of the books for the
use of the library. This exception is not absolute. The prerequisites for attracting the
exception are:–

(i) the number of copies to be made is limited to the maximum of three only,

(ii) the copies are to be made under the directions of the persons in charge of a public
library,

(iii) the copies should be made for the use of the public library,

(iv) the copies are to be made only when the said book is not available in India for sale.

The shelter under exception is provided only when the above conditions are met with.
Otherwise, the act of making copies amounts to infringement. In addition, Section 50(1)(p)
permits the reproduction of unpublished literary, dramatic or musical works kept in a library,
museum or other institutions to which the public access is made. This provision satisfies the
‘three step test’ provided by the Berne Convention and also the TRIPS Agreement.

The first provision facilities the libraries to make copies whereas the other provision help
others to copy the material which is otherwise available in the libraries. These provisions of

56
Princeton University Press Vs Michigan Document Services, 99 F. 3d at 1389
57
Section 50(1)(o) states that – ‘the making of not more than three copies of a book (including a pamphlet, sheet
of music, map, chat or plan) by or under the directions of the person in charge of a public library for the use of
the library if such book is not available for sale in India.’
320
the copyright law incline to bow towards the owners of the copyrighted works. Though the
Sections 52(1)(o) appears as an exception to the copyright law, the limitations it contains do
not allow the copying of the books for any other purpose, other than for the library purposes.
The copying is also not permitted by the private people for their own purposes. Copying is
permitted only at the direction of the in-charge of the library. Another difficulty that is
associated with the provision is that the Act has not defined the meaning and nature of the
library or public library. Section 2 of the Delivery of Books and Newspapers (Public
Libraries) Act 1954 defines the public libraries as ‘National Library at Calcutta, and any three
other libraries, which may be specified by the Central Government in this behalf by
notification in the official Gazette. The definition restrict the application of exceptions to
‘public libraries’ only which are four in number on the date of notification. The exception
read with the definition given above may lead to understood that the exceptions are available
to the libraries which are established and managed by the governments, whether the central or
state. In addition to the libraries, the archeological department and other government archives
also safe keeps books of importance and play role of public libraries. The present exception
stated in the Act is not applicable such books and libraries. As such, there is a need to define
and clarify the stand of the copyright law with reference to the exceptions and limitations to
libraries.

The advent of technologies has led to establishment of digital libraries and accessing of the
libraries with the help of technologies. It also opened the publication of ‘e’ books and ‘e’
learning concepts. The books are also collected and managed in different models and formats
such as Compact discs, tapes, films and micro-films, etc. The exception is silent as to the
method of copying, whether by way of photo copying or digitalization. With the
digitalization, there will be a format shifting from physical paper to the electronic formats. If
the library, more particularly the digital library contain such formats of the books, they may
not be available in the market, as such the library is permitted to possess three copies of the
books, however, the ambiguity will arise whether the ‘e’ books and ‘e’ libraries are covered
under the exceptions as provided under the Act. The exception provided in the section
52(1)(o) is strictly applicable for those books which are printed in foreign countries and are
not available in Indian market. As there is a time gap between the printing of book and
making available on the website and in the physical format in other countries may promote
the taking of copies of such books, but, the result will be commercial injustice to the author
as he is deprived of the profit. Another important element that hampers the commercial
321
profits to the owner of the book is making of three copies of the original book by multiple
numbers of libraries situated in the country. For example, if there are 500 public libraries in
the country take 3 copies of each for library usage, the total number of books is 1500 and the
owner is deprived of income of sale of such books which will be a sizable amount. Thus, the
concept of sweat of brow for the owner suffers.

6.2.1.6. Acts of Fair Dealing Vis-à-Vis Legislative Reports and Public Documents:

The Copyright Act, 1957 has some of the provisions which permit the reproduction of public
documents. Section 35 of the Indian Evidence Act, 1872 defines the public records as the
‘record of transactions maintained by the public authorities’. The Office of Public
Information of UK defines the public records as ‘Records, for the purposes of this guidance,
are the records of central government in the United Kingdom and its constituent countries,
and of the central courts of law, including bodies under the government such as the National
Museums, the National Health Service, and National Regulatory Authorities’58. The public
records may be published and unpublished records. The Crown in case of UK, Federal
Government in US holds the copyrights. They may waive, with or without certain conditions.
The government and other public authorities create a number of records, documents and other
papers worth of protection. The government or the public authorities may hold copyrights on
such records/documents and exclude others from using the same. In England, the copyrights
are held by the Crown on all the documents/records developed by the departments of
government. Just like any other living person, the crown may waive the protection to the
certain documents and permits the access of such document. The said grant of waiver
amounts as an exception to the general rule of granting of protection to the copyrighted
works. Understanding the limits and limitations of use and ownership of public records and
defining the legal sense is very difficult.

The Copyright Act, 1957 has some to such public records and enables the reproduction of
such material subject to the terms and conditions of waiver or as exceptions. The ‘purpose of
usage of such material’ is important to get consideration as an exception. One of the
important exceptions available under section 52 of the Act is -

58
www.opsi.gov.uk
322
 ‘52(1)(c) the reproduction of a literary, dramatic, musical or artistic work for the
purpose of a judicial proceeding or for the purpose of a report of judicial
proceeding.’

The exception is available to few classes of copyrights such as the literary work59, dramatic60,
musical and artistic work61 only and not applicable for the performance rights,
cinematographic works and broadcasting rights. The exception is available for ‘reproduction
of the material’ and such material should be used for the purpose of judicial proceeding or to
use as a part of report of judicial proceeding. The ultimate objective of exception is to avoid
the commercial exploitation of the copyrighted material.

Section 52(1)(d) of the Act provides for the exception to the copyright protection:-
‘the reproduction or publication of a literary, dramatic, musical or artistic work in
any work prepared by the Secretariat of a Legislature or where the Legislature
consists of two Houses, by the Secretariat of either House of the Legislature,
exclusively for the use of the members of that Legislature’.

The exception granted therein is shadowed by a limitation followed by it. The exception is
only for the ‘reproduction or publication of literary, dramatic or music or artistic work’ and it
is permitted to be included or used ‘in any work prepared by the Secretariat of Legislature or
Legislative houses’. The exception is operative only when the ‘work’ prepared by using the
copyrighted works should be for the ‘exclusive use of the members of that Legislature’. Even
the ‘work’ is not permitted to be used by the members of other legislative houses and of other
states. As part of making reports by the Secretariats of the legislatures for their own purposes
and reproduces or publishes certain part of literary, dramatic, musical or artistic work, then
that act of reproduction or publications are considered as infringements. Though the
exception is granted to the use of copyrighted material, the limitations attached are balancing
the interests of the owners and that of the society, i.e., the Legislative Houses. However, the
limitation embedded with the fair dealing ‘exclusively for the use of the members of that
legislature’ evaporates the thin line between the fair dealing and infringement. If the
59
Section 2(o) of the Copyright Act 1957 defines the literary work to include computer programs, tables and
compilations including computer databases.
60
Section 2(h) of the Act defines the dramatic work as to include any piece of recitation, choreographic work or
entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise
but does not include a cinematograph film.
61
Section 2(c) of the Act defines the artistic work to mean (i) a painting, a sculpture, a drawing (including a
diagram, map, chart or plan) an engraving or a photograph, whether or not any such work possesses artistic
quality; (ii) a work of architecture and (iii) any other work of artistic craftsmanship’.
323
legislative houses or the members of the legislatures, other than that of the legislative house,
reproduces that material then they attract the provisions of infringements.
The Section 52(1)(e) of the Act providers for further exception to the copyright protection:
‘the reproduction of any literary, dramatic or musical work in a certified copy made
or supplied in accordance with any law for the time being in force’.

This exception is also has specific and focused application coupled with a limitation. The said
exception entitles reproduction of some of the specified types of documents covered under
copyright law such as literary, dramatic or musical work and excludes artistic works and
cinematographic works from the scope of exception. The limitation embedded to the
exception enables the plea of exception only to that material which forms the part of the
‘certified copy’ prepared or supplied in accordance with the provisions of any law in force. If
the law does not permit such matter to be included in the certificate copy, then the exception
is not applicable and any use of the matter amounts to infringement of copyrighted material.
Section 52(1)(q) and (r) enumerates the exceptions relating to the judicial and legislative
documents. The reproduction or/and publication of following documents for the purposes
stated therein is not treated as the copying and infringement of the copyrighted material:

 Reproduction or publication of any matter excluding the Act of Legislature published

in the Official Gazettes,

 Reproduction or publication of Acts of Legislature along with commentary thereon or

with any other original matter,

 Reproduction or publication of reports of committees, commission, councils, boards

and other bodies appointed by the Legislature, if not prohibited by the Government to
that effect,

 Reproduction or publication of judgment or order of a Court, Tribunal, or of any

Judicial authority unless such Judicial authority prohibits the reproduction,

 Production or publication of translated version of any Act of Legislature, or order

made under, provided that such production or publication is prohibited by the
Government or the copies translated by the Government are not available for sale.

All the above documents form part of public documents. The public documents unless
restricted may be used without causing any loss to the original owner of the works.

324
Though the ‘public records’ appears to be of ‘public’ but by applying the law that is in
operation in UK, the government is the owner of the public records unless specifically it is
specified for the use by the public free of cost and permission. Otherwise, just like ‘Queen’ in
UK, the President of Indian Republic will be the owner of such records. The process of
keeping the public records by the government organizations and agencies further strengthens
this argument.

The Copyright Act, 1957 has some of the provisions which permit the reproduction of public
documents. Section 35 of the Indian Evidence Act, 1872 defines the public records as the
‘record of transactions maintained by the public authorities’. The Office of Public
Information of UK defines the public records as ‘Records, for the purposes of this guidance,
are the records of central government in the United Kingdom and its constituent countries,
and of the central courts of law, including bodies under the government such as the National
Museums, the National Health Service, and National Regulatory Authorities’62. The public
records may be published and unpublished records. The Crown in case of UK, Federal
Government in US holds the copyrights. They may waive, with or without certain conditions.
The government and other public authorities create a number of records, documents and other
papers worth of protection. The government or the public authorities may hold copyrights on
such records/documents and exclude others from using the same. In England, the copyrights
are held by the Crown on all the documents/records developed by the departments of
government. Just like any other living person, the Crown may waive the protection to the
certain documents and permits the access of such document. The said grant of waiver
amounts as an exception to the general rule of granting of protection to the copyrighted
works. Understanding the limits and limitations of use and ownership of public records and
defining the legal sense is very difficult.

6.2.1.7. Fair Dealing in Acts of Reproduction and Reporting of Events:

The reproduction of ‘an article’ in newspapers, magazines, or other periodicals is permitted

as an exception to the general principle of protection of the copyrighted material as an act of
fair dealing. The reproduction is subjected to the limitation that the article should be on
current topics in the areas of economics, politics, social and religious topics or disciplines63.

62
www.opsi.gov.uk
63
Section 52 (1)(m) of the Copyright Act 1957
325
The reproduction is not permitted if the author of the article expressly restricts the copying of
the article for publication and also holds the rights for himself.

The reporting of any lecture delivered in public in newspapers or magazines as report of an

event is not considered as the infringement of copyright and protected as an act of fair
dealing.
Section 52(1)(n) of the Act says that :

‘The publication in a newspaper, magazine or other periodical of a report of a lecture

delivered in public’.

The reporting of any information or happening or event is not a copyright infringement and
considered as an exception as the reporting does not claim the ownership instead it quotes the
name of the author or the owner of that particular lecturer.

The acts of fair dealing also includes the use of the copyrighted material, ‘in relation to the
literary, dramatic, musical or artistic work’ for the purpose of reporting ‘current events’ in a
newspapers, magazine or similar periodicals by means of broadcasting, cinematograph film
and or photographs’. The important elements to consider ‘the acts as the fair dealing’
includes – the purpose and usage which should be for ‘reporting’. The limitation for such
usage is that the subject matter should be of ‘current events’ in nature. Again the provisions
are silent on the ‘extent of the usage’ and the scope of ‘current events’. The doctrine is
equally applicable for the broadcasting and cinematograph reporting. And the report of
performance of performers is also protected under the coverage of fair dealing doctrine. The
proviso to the exception limits the application of doctrine to the activities of ‘compilation of
addresses or speeches delivered in the public places’. Thus, it limits the application of
doctrine of ‘fair dealing’. As such, the thin line between the fair use and infringement
evaporates frequently.

6.2.1.8. Acts of Performance and Sound Recordings

The performance or communication of any copyrighted literary, dramatic or musical work or

sound recording made in a public during the religious ceremonies or official ceremonies of
state or central government or local authorities is not considered as infringement but
protected as an act of fair dealing. 64

64
Section 52 (1)(za)
326
Thus, the copyright law provides exceptions in Section 52(1) of the Copyright Act, 1957 for
the performance, communication, reporting and reproduction of copyrighted materials in
certain cases which projects that the law is not in favor of giving the absolute rights to the
copyright owner instead it is balancing the interests of the owners and also public in general.
But, the limitations for reproduction operate in favor of the copyright owner and not in the
interests of the user at large or the society.

The Copyright Act, 1957 has a few provisions defining the exception against the protection
of the copyright law for following acts of copying the material authored and owned by others.
 Use of copyrighted material from a published literary or dramatic work by way of
‘reading’ or ‘recitation’ of such material in public65. This exception is again limited to
an extent of ‘reasonable extract’. What is the reasonable extract is a question to be
decided with reference case by case and type of the property that is quoted. This
exception is applicable only to the literary and dramatic work and not other types of
the copyrights. The interpretation of the term ‘public’ is also raise enough questions
regarding the extent of gathering which can be considered as the ‘public’. As a result,
the act of fair dealing has a limited use and erases the thin line of defense of fair
dealing.

 The performance of a literary, dramatic or musical work by an amateur club or

society66 is considered as an accepted act of fair use and protection infringement
proceedings. Even this exception is backed by a limitation. The performance is
considered as an exception only when it is given to non-paying audience and for the
benefit of the religious institution67. In order to invoke the defense, the individuals
claiming the defense of exception under this have to establish prima facie evidence
that they have used the same for the purpose of criticism68. This exception is
applicable only to the literary, dramatic and musical work and do not include the
cinematographic works.

 Making or publishing or reproduction of painting, drawing, engraving or photograph

of a work of architecture or display of a work of architecture situated in public place

65
Section 52 (1)(f) of the Copyright Act 1957
66 66
Section 52 (1)(l) of the Copyright Act 1957
67
Ibid
68
Civic Chandran Vs Ammini Amma, 1996 PTC (16) 670
327
 or any premises to which the public has the access69 is not considered as the
infringement of the rights of the owner. It is considered as an exception to the right of
protection as it involves the skills and talents of individuals in expressing the ideas. If
the artist or the owner of the original painting makes copies of the original painting by
keeping the original painting in his custody and sells them commercially and supplies
some of them free of cost to the temples, it will not tantamount to his installing the
original painting/work in the public and public has no right to reproduce the same
with a plea of exception under the copyright law.70

 Reconstruction of a building or structure according to the plans, drawings and designs

of an owner with his consent or licence is not considered as the infringement.71

It is evident from the above discussions on various acts which are protected against the
copyright actions on the plea of ‘acts of fair dealing’ as stated in Section 52(1) of the Act are
shadowed by various limitations. The aforesaid provisions are completely volatile and lose
their characters in the light of limitations and inability to monitor the acts of fair dealing by
the owners and his agents. It results in wiping off the thin line of protection and creates a
threat of infringement litigation. Hence, the hypothesis is proved.

6.2.2 Second Hypothesis:

“The general exceptions provided under Section 52 of the Copyright Act, 1957 are not
sufficient to protect the interests of the users.”

‘The law has a number of aims: to reward and recognize creators, and to provide incentives
for creation and investment of copyright material. Copyright law also aims to fulfill certain
broader social aims: importantly, to increase public access to a broader range of creative
material.72’ The law starts from the premise that protection would be as long and as broad as
possible and should provide only those exceptions and limitations which are essential in the
public interest. The courts adopt a purposive approach to statutes.’73

69
Section 52 (1) (s, t and u) of the Copyright Act 1957
70
The Daily Calendar Supplying Bureau Vs. The United Concern AIR 1967 Mad 381 (DB)
71
Section 52(1)(x) of the Copyright Act 1957
72
Kimberlee Weatherall, ‘Fair Use, Fair Dealing: The copyright Exceptions Review and the Future of Copyright
Exceptions in Australia’ , ‘Fair Use: A Revisit’ Edited book Published by Amicus Books, the Icfai University
Press, 2008
73
Penguin Books Ltd., England Vs M/s India Book Distributors and Others, AIR 1985 Del 29
328
The Copyright Act, 1957 envisages certain conditions for the use of the copyrighted work
under fair dealing exception which otherwise permits the exclusive protection of the
copyrighted material. Just like that, no person can use the copyrighted material and if used, it
amounts to infringement. The owner/has a right to file infringement suit for purported
infringement and commercial losses. Courts examine the infringements on case to case basis
and if found misapplication of the doctrine, duly crucifies the infringer.

The exceptions provided in the Copyright Act, 1957 do have many limitations. Many a times
the limitations to the exceptions over rides the real benefit under the fair dealing and at the
end of the day, the concept has very limited and select usage.

i. One of the exceptions to the protection of exclusiveness of copyright is the

compulsory licensing. Sections 31, 31A, and 32 have many limitations and in other
words the exceptions will evaporate once we cross the limitations. The important
limitations74 for grant of compulsory license are:

a. The owner should refuse to publish or does not allow the performance in
public resulting in not available of such work to the public,

b. The owner/author is dead or unknown or cannot be traced or cannot be

found,75

c. An application has to be made to the Copyright Board and Board after

considering the need for grant of licence, based on the merit of the case, may
grant compulsory licences.

Thus, use of some of the works which are of public interest, cannot be accessed or
used or reproduced without the permission of the Copyright Board. If more than one
person makes application for the compulsory licence of the work which is not
available in the market place, the permission/licence will be given to only one person
who is considered as competent by the Board. Thus, other members of the society
shall not have the access to the material and they are at the mercy of the owner/ or the
compulsory licence holder. As such, the users are kept beyond and the provisions are
not useful.

74
Section 31 of the Copyright Act 1957
75
Section 31A of the Copyright Act 1957
329
ii. Another important provision stated in the Copyright Act, 1957 is about the use of
works for library. 76 Accordingly, only three copies can be made from the book, map,
chart, or plan under the directions of the person in charge of the public library. If the
same book is required for the private libraries, the copying is considered as the
infringement. As such, the real user is at cross road.

iii. Even for the purpose of education, which is considered as one of the well accepted
exception to the copyrights, the usage of such extracts are to be made only for the
purpose of instructions, 77 examinations (questions or answers or both).78 The
important limitation to the exception is that the educational institution should use the
work for its staff, students, parents and guardians. It cannot use for any other target
group. With this though the exception to the copyright is available for the education
purpose, it has its own limitations and those limitations make the exception limited
benefits.

iv. The performance of a literary, dramatic or musical work or the communication to the
public of such work or of a sound recording in the course of any bonafide religious
ceremony or an official ceremony held by the Central Government or the State
Government or any local authority is an exception for the copyright works. But, this
exception is shadowed by the limitations such as ‘religious and official ceremonies’.
As such, the limitations provided therein the statutes are limited and soar to the
common public.

Thus, it can be concluded that the limitations to the exceptions provided in the
Copyright Act, 1957 are predominant leaving very minimal benefits to the users under
the concept of fair dealing. Hence, the hypothesis is proved.

6.2.3. Third Hypothesis:

The outcome of the three-factor-test envisaged by the Berne Convention and exceptions
that come under the scope of ‘fair dealing’ are similar.

76
Section 51 (1) (o) and (p) of the Copyright Act 1957
77
Section 51 (1)(g) of the Copyright Act 1957
78
Section 51 (1)(i) of the Copyright Act 1957
330
The Berne Convention79 permits to define the limitations and exceptions to the copyright law.
The Article 9(2)80 of the Berne Convention permits the member countries to permit the
reproduction and use of copyrighted works under three conditions, known as the 3 step test.

a. Permission may be granted in certain special cases,

b. Permission is granted only when the reproduction does not conflict with a normal
exploitation of the work, and

c. Permission should not unreasonably prejudice the legitimate interests of the author.

The Article 10(2)81 of the Berne Convention articulates and recommends for inclusion of
exception in the national copyright laws to the grant of copyrights by permitting the use of
copyrighted material for the ‘teaching purpose’. It is a well-established principle of copyright
doctrine that the qualified grant of proprietary rights over the fruits of creative enterprise is
directed first and foremost at the promotion of the public interest. Many countries around the
world explicitly recognize this vital goal as a foundational element of their copyright systems.
The Courts in US were using the doctrine for more than 150 years and the same was
articulated in one of the land mark case – Folsom V Marsh82. However, the doctrine is well
accepted in the Courts of US and the courts are constantly applying the doctrine. The doctrine
of fair use permits the use of copyrighted material with limitations. The limitations explained
in the case ‘Folsom V Marsh is known as the four factor test which are -

1. The purpose and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes;

2. The nature of the copyrighted work;

79
Article 13(1) of the Berne Convention states that –‘ Each country of the Union may impose for itself
reservations and conditions on the exclusive right granted to the author of a musical work and to the author of
any words, the recording of which together with……………..but all such reservations and conditions shall
apply only in the countries which have imposed them and shall not in any circumstances, be prejudicial to the
rights of these authors to obtain equitable remuneration which, in the absence of agreement shall be fixed by
competent authority’.
80
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in
certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work
and does not unreasonably prejudice the legitimate interests of the author. (Article 9(2) of the Berne
Convention.
81
Article 10(2) of the Berne Convention - ‘It shall be a matter for legislations in the countries of the Un ion, and
for special agreements existing or to be concluded between them, to permit the utilization, to the extend justified
by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual
recordings for teaching, provided such utilization is compatible with fair practice’.
82
9F.Cos.302 (1841). This Case has developed the doctrine of ‘Fair Use’ which is later embedded in Section
107 of the Copyright Act and four factor test for understanding the nature of the copying and to find out whether
the copying comes under the coverage of ‘fair use’ or not.
331
3. The amount and substantiality of the portion used in relation to the copyrighted work
as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work83.

The three factor test included in the Berne Convention and four factor test envisaged by the
US Courts have the equivalence. The Copyright law of most of the countries across the globe
has adopted the guidelines given in the Berne Convention and incorporated in their national
laws. The law in China favours the copyright owner by requiring the acknowledgement and
remuneration, even after using the material for the educational purpose.84 The copyright law
of Japan has balanced provisions whereas in India, though the copyright law is considered as
a rightly drafted piece of legislation, and is in favour of the copyright owner and it requires to
be revisited to suit the present knowledge driven society. Indian Copyright law also adopts
similar provisions to restrict the exclusiveness of copyrights.

The Berne Convention recognizes two types of limitations: i) compensated limitations and ii)
uncompensated limitations. Uncompensated limitations usually mirror uses or practices that
are not considered part of the legitimate scope of the author’s proprietary grant. Compensated
limitations usually suggest that the copyright owner is not entitled to control whether the
work is used, but is always entitled to remuneration as part of the copyright incentive scheme.
Uncompensated limitations in the Berne Convention include provisions permitting public
speeches (art. 2bis (2)), quotations (art. 10(1)), uses for teaching purposes (art. 10(2)), press
usage (art. 10bis (1)), reporting of current events (art. 10bis (2)) and ephemeral recordings by
broadcasting organizations (art. 11bis (3)). Many of these provisions simply state the purpose
of the permitted use and leave a considerable measure of freedom to contracting States for
implementation at the national level. Articles 10(1) and 10(2) - norms of the Berne
Convention refer to “fair practice”, a notion which arguably leaves room for an interpretation
that takes account of local conditions, thus creating addtional flexibilities.85 The Copyright
law in India also included similar provisions. Similar exceptions are available in Section
52(1) of the Copyright Act, 1957. The exceptions include fair dealing in literary, dramatic,
musical and artistic work for private use, criticism or review (Section 52 (1)(a), in relation to

83
Ibid.
84
Lawrence Liang, ‘Exceptions and Limitations in Copyright Law for Education: An Assessment’, paper
presented in the National Seminar on Copyright Law at Cochin’ on 14 &15 May 2009
85
P. Bernt Hugenholtz & Ruth L. Okediji, ‘CONCEIVING AN INTERNATIONAL INSTRUMENT ON
LIMITATIONS AND EXCEPTIONS TO COPYRIGHT, available at http://creativecommons.org/licenses/by-
nc-nd/3.0/.
332
computer program 52(1)(ab), (ac), (ad), reporting of current events, judicial proceedings (52
(b)), public documents including the publications of secretariat of legislative houses (52 (c),
(d), and (e), for educational purposes 52(1)(g)(h), sound recordings 52(a)(j) and few others.
Some of the important provisions of Copyright Act, 1957 are discussed herewith to prove the
hypothesis.

6.2.3.1. Exceptions are granted in certain special cases:

The first test envisaged under the provisions of the Berne Conventions is that the exceptions
should be granted in some of the special cases. The special cases include the use of material
for the purpose of research, review, criticism and reporting. Article 10 and 10 (bis) provides
for some of the qualifications to get exceptions from the copyright protection and make them
available for the justified purpose. It is a combo of good faith and act of copying. The
purpose of copying, nature of copying, extent of copying and availability of other alternative
options are the deciding factors whether the copying fall under special case or not. It is held
that, ‘in determining the applicability of this proviso, two matters have to be borne in mind:
the first is with reference to the purpose for which a substantial part of the copyright work is
reproduced, and the second with regard to manner of use pertaining to that purpose . In order
to receive protection, it must be fair dealing - if the purpose of the reproduction is not one of
those enumerated in the convention, the question of fair practice would not arise. The
enumerated purposes are: private study, research, criticism review or newspaper summary86’.
The doctrine of fair dealing is applying in all most all countries of the world with few
modifications. In order to receive protection, it must be fair dealing - if the purpose of the
reproduction is not one of those enumerated in the statute the question of fair dealing would
not arise. The enumerated purposes are; private study, research, criticism review or
newspaper summary87’.

The section 52 of the Copyright Act recognizes ‘certain acts’ as ‘acts not to be
infringements’. The acts which are not considered as infringement of copyrights include ‘act
of fair dealing, act of reproduction and publication, act of performance and sound recording’.
These acts are considered as exceptions to infringements of copyrights. These exceptions are
applicable to ‘all types of works’ which include literary works88, sound recording, and

86
M/s. Blackwood and Sons Ltd and Others Vs A. N. Paarasuraman and Others, AIR 1959 Mad 410
87
Ibid.
88
Section 13 of the Act refers to the ‘works’ which are protected under the copyright law and Section 52
enumerates ‘acts’ which are exempted in relation to the various types of the works.
333
cinematograph films, architecture, performances, etc. These exceptions are again subject to
some limitations. The exceptions provided therein act against the interests of the author as
they dilute their rights. The objective of providing exceptions is for the benefit of the society
which is the larger objective of the copyright law.

The Article 10 (2) of Berne Convention permits the use of copyrighted material –

(iv) to the extent justified by the purpose

(v) for teaching purposes

(vi) such utilization should be compatible with the fair use practice

Similar kinds of limitations are also incorporated in the Copyright Act, 1957. Under the
provisions of Section 52(1)(g), of the Act the publication of copyrighted material is
permissible provided –

(iv) the publication is for the purpose of bonafide use of educational institutions.

(v) the use is permitted to the extent of ‘two such passages’ from the works of the same
author during any period of five years.

(vi) The publisher, while using the passages should disclose the same in their publication.

These exceptions guarded by the limitations may be to satisfy the tests envisaged by the
Article 10(2) of the Berne Convention and tilt the convenience in favor of Copyright owner.
However, there is a requirement of revisiting the provisions for better use and balancing of
the interests of the public and the owners. The ultimate aim of providing the exception is
pointing towards the ‘non-commercial use’ and for the use of non-profitable education
institutions, has to be incorporated so that, the misuse of the materials by unscrupulous
people under the disguise of the copyright exceptions may be checked and the interests of the
public and also the copyright owners are balanced.

Following a literal reading of the test, as enshrined in various international treaties, the three
steps of the test must apply cumulatively. This is indeed the general opinion of the WTO
Panel in the IMRO decision: “Failure to comply with any one of the three conditions results
in the Article 13 exception being disallowed.” By necessity, such cumulative application
implies that at least the first and second steps be applied in a liberal manner, so as to leave
some relevance to the third and final step. A narrow construction of these initial steps would
otherwise rob the test of much of its meaning. Dr. Geiger has advocated reading the test in
334
reverse, i.e., starting with the third test and working backwards from there. Such a reading is
likely to accentuate the normative considerations built into the third (then first) step of the
test. Indeed, nothing in the wording of the three-step test would prevent a legislator,
international court or a WTO.

Under the first prong of the three-step test, limitations and exceptions must be confined to
“certain special cases.” Although one might argue that any purpose-specific limitation
complies with this requirement almost by definition, making the first step basically
superfluous. In other words, there is a conflict with the second step if the exempted use would
rob the right holder of a real or potential source of income that is substantive.

The three-step test thus is both a limiting and enabling clause alike. It is a proportionality test
which enables the weighing of the different interests involved at the national level so as to
strike a proper balance between rights and limitations.

The following Table 6.1 shows some of the examples of equivalence between the provisions
of the Berne Convention and the Copyright Act 1957.

Table 6.1

Specified Purposes under Berne Convention and Copyright Act 1957

Berne Convention Copyright Act 1957

1. Making quotations from works 1. Reproduction for the purpose of judicial

including newspapers, proceedings, preparation of report of judicial
periodicals, etc., available proceedings - Section 52 (1)(c)
lawfully for a justified purpose. 2. Reading or recitation in public of any reasonable
(Article 10(1)) extract from a published literary or dramatic work
- Section 52 (1)(f)
3. Publication in a collection, bonafide intended for
the use of educational institutions – Section 52
(1)(g)
4. Reproduction by a teacher or a pupil in the course
of instruction or part of the questions or answers
in an examination – Section 52 (1)(h)

335
 5. For a fair dealing for the purpose of private use
including research, criticism or review – Section
52 (1)(a), (p)

6.2.3.2. Reproduction should not conflict with a normal exploitation of the work and
cause prejudice to the interests of the owners.

The Berne Convention imposes a condition that during the fair practice of the copyrighted
works, the act of reproduction should not have conflicting interests with the normal rights of
the owner and then only the usage will be protected from the infringement suits. The similar
provisions are available in the Copyright Act, 1957. For example, the acts are not considered as
infringements when they are used for the private use. It is the principle established against the
unjust enrichment and unauthorized usage. It also is based on the principle of justice - ‘he who
sow he who reaps’ i.e., whoever sows the seed, he has the priority right to reap the benefits.
The compulsory licensing of copyrighted work is the example of fair act, as the person using
the works pay royalties fixed by the Copyright Board, as such grant of rights does not
negatively affect the owner. Instead, the royalty payment fixed while granting the compulsory
licensing will be a positive result of the compulsory licencing.

The copyrights are bundle of rights. If a right of reproduction is granted, after losing one right
the owner is left with other rights of commercial exploitation. And also, the compulsory
licence is granted only under a special environment of ‘withholding of copyrighted works’.
Such grant of rights does not negatively affect the owner. Instead, the royalty payment fixed
while granting the compulsory licensing will be a positive result of the compulsory licencing.
The process that is laid down in the Act also checks the unnecessary and frivolous
applications for the grant of permission and acts against the negative interference.
Compulsory permission should not unreasonably prejudice the legitimate interests of the
author. One of the legitimate interests of the author is commercialization of the works.
Copyrights exclude others from enjoying the commercial benefits from the works. Grant of
compulsory licences does not come in the way of authors’ enjoyment of commercial benefits
of the works. The provisions89 of the Copyrights Act, 1957 make it compulsory for the

89
Sections 31, lay down that the Registrar of Copyrights grants the licence ‘subject to payment to the owner of
the copyright of such compensation and subject to other terms’. Section 31 A (5) provides for ‘the Registrar of
Copyrights may, by order, direct the applicant to deposit the amount of the royalty determined by the Copyright
Board in the public account of India or in any other account specified by the Copyright Board so as to enable the
336
licencee to pay the ‘royalties which are reasonable’ in the view of the Registrar of
Copyrights. Thus, the legitimate interests of the authors are protected.

The fundamental test for the ‘fair use’ or ‘fair dealing’ is that the use should be the ‘non-
commercial use’ of the works. If the works are used for any commercial purpose, irrespective
of amount generated, the use amounts to the infringement. The US Supreme Court in Sony
Corporation of America v Universal City Studies90 recognizes the recording of free-to-air
television shows broadcasted to watch at a later time as the act of time-shifting and for the
use of private home viewing and considers as a non-commercial, non-profit activity. The US
Court of Appeals, 9th Circuit Court in, Los Angeles News Service v Jullo,91 clarifies that
impact of copying on the potential market is important. Even small amount of copying, if it is
the most valuable part of the work, is not protected by the defense of ‘fair use’. It is clear that
when a person uses the work for ‘research, or review or any other particular private use’, he
may claim the defense of fair use. Later it is very difficult to monitor the same person, who
used the copyrighted work under the defence of fair use, uses such work for generating the
profits. It is even impossible to police and supervise the works of different users who claimed
the protection under the fair use as there may be spread of people and their work.

Like in the Berne Convention, the Copyright law has imposed various limitations on the acts
which amount to the fair dealing. For example, the reproduction of the work should be for
private use and limited to the review or criticism92. The computer programs are to be copied
only for the purpose of backup copies and not for sale93. Reproduction of work for
educational purpose, more specifically not more than two passages from works by the same
author are published by the same publisher during any period of five years. The performance
of literary, dramatic or musical work by an amateur club or society should be to a non-paying
audience or for the benefit of religious institutions94. In case of library, only three copies of
book, pamphlet, maps, or charts are permitted and that too under the direction of the person

owner of the copyright or, as the case may be, his heirs, executors or the legal representatives to claim such
royalty at any time’. Section 32 (3) says – Every applicant for a licence under this section shall, along with his
application, deposit with the Registrar of Copyrights such fee as may be prescribed’. Section 32 A (4) (c & d)
allows the payment of royalties ‘ being a price reasonably related to the price normally charged in India for
works of the same standard on the same or similar subject’.
90
464 US 417, 104 S. Ct 774 (1984)
91
973 F Supp 2d. 791 (1992) (9th Cir)
92
Section 52 (1)(a) of the Copyright Act 1957
93
Section 52(1)(aa) of the Copyright Act 1957
94
Section 52 (1)(l) of the Copyright Act 1957
337
in charge of public library95. All the aforesaid restrictions are to bar the commercialization of
the copyrighted work so that the real owners shall not have any commercial injustice. Thus,
the Copyright Act, 1957 has the provisions which are on par with those of the Berne
Convention.

Hence the first hypothesis i.e limitations embedded with the general exceptions stated in
Section 52 of the Copyright Act 1957 amounting to acts of fair dealing fade away the thin
line between the fair use and infringement, causing commercial loss to the owners is tested
and proved.

The second hypothesis that the general exceptions provided under section 52 of the Copyright
Act, 1957 are not sufficient to protect the interests of the users, hence it is proved.

The third hypothesis i.e., the outcome of the three-factor-test envisaged by the Berne
Convention and exceptions that come under the scope of ‘fair dealing’ have similarities is
analyzed and proved.

95
Section 52 (1)(o) of the Copyright Act 1957
338