Fair use provision- An exception to Copyright Law.

The reason of which the copyright laws were made was in order to protect the intellectual work of writers, musicians, etc. The objective of the Act was to protect the originality of the ownership. It gives an exclusive right to do or to authorize others to do certain acts in relation to literary, dramatic, musical and artistic work, cinematography and sound recordings. Copyright were a kind of Intangible rights which were given to the originator of certain literary or artistic work and for a limited period of time, exclusive privilege was given to that person by the statute. Copyright is a legal provision that gives right to the author of the sole proprietorship to publish and sell that work. The owners of the Copyright have a control on the reproduction of their work, including the right of receiving payment for reproduction of their work. An author also has the right to sell his particular work. The Copyright Law was enacted on 4th June, 1957. It was enacted to protect the rights of original authors of any artistic or literary work created or done by the person. There were some of the rules and regulations which were made in order to decide whether the person is the true author or the owner of the work. Firstly, the work should have been published and made available to the public. Secondly, there should be originality of the work. The work should not have been published before by any other name.

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Now the question is can anything be copyrighted? No. Not anything can be copyrighted. For ex- A has an idea for implementing a show and he shares the Idea with his brother B. B implements the same Idea and takes a copyright for the show. Now, A cannot claim for Copyright on the mere fact that the Original Idea belonged to him. WHY? Because the Court in one of the same kind of cases said that “Mere Idea cannot be copyrighted unless and until it is executed and brought into existence.” Any artistic or literary work, or any kind of sound recording which fulfils the above mentioned conditions can be copyrighted under the Copyrights Act, 1957. Anyone who copies the expression or the ideas of the owner, who has the copyright of that particular work without his permission is considered to be infringement of the Copyright. It may be intentional or un- intentional. There was a case of Bright Tunes music Corporation vs. Harrisons Music. In this case Harrison was found to have unconsciously copied the tune of the song of Bright Music. There are three kinds of remedies available to the person whose copyright has been infringed by anyone. They are- Civil Remedy, Criminal Remedy and Administrative Remedy. In Criminal Remedy, there is a provision of Imprisonment which may extend from 3 years, but not less than 6 months or with fine from Rs. 50, 000/- to Rs. 2, 00,000/- or both. A Magistrate of First Class is entitled for a trial in this case. There are some kind of Exceptions to this rule of Copyright. One of them which we are dealing with is of FAIR USE PROVISION which means that reproduction of Copyrighted material for a limited purpose of Teaching, reviewing, literary criticism, etc. Without this doctrine, movies could not be reviewed, and colleges and high schools would not be able to learn the concepts and theories of famous peoples. The reason for introducing the concept of Fair- use provision was that the people could use the material available on the Internet for research work and education work by giving due credit to the author. And for that, the concept of Bluebook footnoting came into existence. According to this format, due credit was given to the website or the writer of the book for a particular sentence quoted in the research work. Teachers could use the quotations and concepts of the topics related to a particular subject to teach the students.

Fair use is a Judicial Doctrine that does not infringe the exclusive rights of the copyright holder. It is a limitation on the exclusive rights of ownership of copyright owners. However, this concept has nowhere been defined in the Copyright Act, 1957, but this doctrine has been followed in India. Certain changes have been incorporated by the way of Copyright (Amendment) Act, 2012. Clause (1) (a) has been amended to provide fair dealing with any work for the purposes of private and personal use with an exception of a Computer programme. The Copyright Act, 1957 determines fair use according to the following factors: 1. the purpose and the character of the use, whether such use is of commercial nature or is for non profit educational purposes. 2. The nature of the copyrighted work. 3. The amount and the substantiality of the portion used in relation to the copyrighted work as a whole. 4. The effect on the use upon the potential market for the value of the copyrighted work. The copyright owner will have the exclusive right to issue a licence to a person to use his work. If the copyrighted work is used for profit or gain without a licence or without permission of the copyright owner or the registrar, then that will be the infringement of copyright    (excluding the cases of the above mentioned exceptions).

It can be drawn from the above mentioned facts that copyright shall be deemed to be infringed when any person without a licence, either from owner or from registrar or in contravention of conditions of licence so granted does anything, the exclusive right to do which is conferred on the owner of the copyright or permits for profit, any place to be used for communication of work to the public, where such communication constitutes infringement. Fair use can be an exception to the Infringement of copyright as according to the Copyright Act, if any research work is used for teaching purpose by the educational institute, it cannot be said to be infringement of copyright. But due credit needs to be given to the owner.

 

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