Abstract
Copyright is a type of intellectual property that grants creators a bundle of exclusive rights. A Copyright holder may grant permission to others to use their work.If anyone uses copyrighted work without the permission of the Copyright holder, they may subject to copyright infringement. However, there are circumstances in which using a work without the permission of copyright holder does not amount to infringement. Under such circumstances, you can someone else’s work without their permission or without the fear of copyright infringement. These situations come under the Doctrine of Fair use. This paper discusses the Doctrine of Fair use.This paper gives an overall idea about the doctrine,its acceptance in the international regime etc.After giving a brief introduction,this paper discusses how the Doctrine of Fair use differs from Doctrine of Fair dealing and the evolution of the doctrine.Later, the paper discusses the Indian scenario in applying this doctrine.The paper thus concluded after putting forth the concluding observation followed by some suggestion and recommendation.
Key words: – Fair use, Fair dealing,Copyright infringement exception,
Introduction
Copyright is a type of Intellectual property that grants creator a bundle of exclusive rights. These rights include right to reproduce, adapt, transalate and communicate their work to public. A Copyright holder may grant permission to others to use their work. Ifanyone uses copyrighted work without the permission of Copyright holder, they may subject to copyright infringement. However, there are circumstances in which using a work without the permission of copyright holder does not amount to infringement. Under such circumstances, you can use the someone else’s work without their permission or without the fear of copyright infringement. These situations come under the Doctrine of Fair use. In short, we can say Doctrine of fair use is an exception to copyright infringement, allowing limited use of copyrighted material without needing to obtain permission.
Under the Doctrine of fair use, you can use the copyrighted material without the permission of the copyright holder but only to a limited extent.This doctrine emerged as to strike a balance between the rights of copyright owners and the public’s interest in permitting copying in restricted circumstances. Example of fair use purposes are News reporting, Research and educational purposes, Paradoy etc.
In order to consider an use as Fair use the court as to consider three things, firstly what is the nature of the work copied, secondly how much amount of work is copied and what is the substantial connection between the two and lastly what impact it gives in the potential market.In the first instance the nature of the work is concerned i.e., assessing what kind of work is it, what is the importance of copyrighted work on the later work such things.Next what is the amount of work copied ,if the majority portion of the work is copied from another we can’t say there is fair use and also we need to assess what is the substantial connection between this to work.As we all know in order to succeed in an action for copyright infringement the author has to prove that there is a substantial connection between two works. Last one is regarding the impact on potential market, specifically whether both the works are rivalries in market and whether use of copyrighted work diminishes the market value of the same.
Article 13 of TRIPS Agreement and Article 992) of Berne Convention deals with the concept of Fair use.
Article 13 of TRIPS agreement it states that “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”[1]
Article 9(2) of Berne convention read as follows “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”[2]
[1] Agreement on Trade Related Aspects of Intellectual Property Rights,1994,art.13
[2] The Berne Convention for the protection of Literary and Artistic works,1886,art.9(2)