Fair dealing in India

A fair dealing with any work (except computer programmes) is allowed in India for the purposes of -

# private or personal use, including research,

# criticism or review,

# reporting of current events and current affairs, including the reporting of a lecture delivered in public.

The term fair dealing has not been defined anywhere in the Copyright Act 1957. However, the concept of 'fair dealing' has been discussed in different judgments, including the decision of the Supreme Court of India in ''Academy of General Education v. B. Malini Mallya'' (2009) and the decision of the High Court of Kerala in ''Civic Chandran v. Ammini Amma''.

''Civic Chandran and Ors. v. C.Ammini Amma and Ors.'' is a 1996 Kerala High Court judgement that deals with the concept of fair dealing in India. In the case, a drama called "Ningal Enne Communistakki" was written by Thoppil Bhasi in Malayalam. It dealt with some of the burning social and political problems of those days, especially espoused by the then Communist Party of India to come to Power in Kerala during the assembly elections in 1957. The plaintiff brought a claim in this suit because the defendant, according to the plaintiff, had fabricated another drama called "Ningal Aare Communistakki", which was a counter drama to the drama written by Thoppil Bhasi and had been published in the 1995 annual issue of Ïndia Today". It was alleged that the defendant had copied substantial portions of the original drama in his work and such reproduction was done without true creative intention and to take advantage of the creative talent and labour of Thoppil Bhasi. The defendant on the other hand, claimed that the counter drama is a new literary innovation 'where a play is counter-posed by using the very same theme and characters. The counter drama was written for the purpose to provide critical analysis of the original drama and to show how the ultimate purpose intended by Thoppil Bhasi has failed. Hence, copying of certain portions can only be treated as 'fair dealing'. The lower court ruled in the favor of the plaintiff and said, "Copying down or extracting substantial portions of the drama, and using the same characters and dialogues of the drama with some comments here and there through two-three characters in the counter-drama cannot be treated as fair dealing for the purpose of criticism". Thus, he was not provided any protection under section 52 of the Copyright Act.

An appeal was filed against this judgement in the Kerala High Court, where the Court looked at the case while referring to sections 14,51 and 52 of Copyright Act. Herein, the defendant claimed that since there was high probability of the defence of fair dealing being applicable in the case, irreparable injury that could have been caused, especially, looking at the current political scenario in Kerala, which would also show a lack of balance of convenience. If the counter-drama is not staged, there essence would be lost. Plaintiffs’ argued that the lower court’s decision should not be reversed unless the same is found to be completely illegal or perverse.

The Indian Copyright Act does not provide for a definition for 'fair dealing' but section 52(1)(a) and (b) specifically refers to fair dealing of the work and not the reproduction of the work. Hence, the court needs to take into account the following 3 aspects:

a) The quantum and value of the matter taken in relation to the comments or criticism;

b) The purpose for which it was taken; and

c) The likelihood of competition between the two works.

Along with the aforementioned aspects, the balancing aspect given in the case ''American Cyanamid v. Ethicon'' by Lord Diplock should be taken into account. As this suit was filed for granting interim injunction, the following also needs to be taken into account:

a) Establishment of a prima facie case;

b) The balance of convenience;

c) Irreparable injury likely to be caused in case the injunction is refused.

Subsequently, the Court relied on the decision given in ''Hubbard v Vosper'', wherein Lord Denning had clarified that fair dealing is a question of degree. The number and extent of extracts and quotations and the use made of them need to be given due consideration. Also. there was also some reliance placed on ''R.G. Anand v. M/s Delux Films and Ors.'', wherein it was stated that the safest and the surest test to determine copyright infringement is to see if the spectator, after having seen both the works, gets an unmistakable impression that the subsequent work appears to be a copy of the original.

After analysing every scene of the counter drama and the drama, the Court reached the conclusion that the scenes and characters were not borrowed from the original drama for the purpose of reproduction in a substantial manner. The real objective of the counter-drama was to criticize the ideology depicted in the drama and to show how the drama had been unsuccessful in achieving the targets it had purported to have aimed for. It also said that there was enough material in the counter-drama to show that the Defendant had used labour and skill of his own and the differences between the original drama and the counter-drama could not be considered inconsequential. The portions of the original drama which were copied in the counter-drama were taken only to make the criticism more effective. Thus, no prima facie case could be established against the defendant. Also, there is no competition between the drama and the counter-drama. Moreover, if the injunction is granted, it would cause irreparable injury to the Defendants as they had made all arrangements to stage the counter drama and a huge amount of money was spent in that.

Hence, the decision of the Additional District Judge was reversed and it was held that even if the copying was of substantial portions, the same could be excused as it constituted fair dealing, as it was also in public interest.

# See also