December 5, 2021

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Fair use and creative freedom

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This article is written by Rakchit Mishra, a student at Birla Global University. This article completely deals with the concept of fair use and its provisions.

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Fair use means the manipulation of those things which are created by any person without their consent. This principle of fair use is generally used in the United States as all works of the creators are made accessible to all the public of the United States so that there will be no injustice to those creators who are having the copyright of their work. There may be chances that some other person can modify such work of the creator and then they can claim it. Further, to avoid such things, there is a concept of fair use in the United States. It is not only used for any specified work rather it is used for all kinds of works. Until the time this concept was consolidated, it was deemed as customary law in the United States. This concept not only helps to protect the copyright of the creators, but it also helps in developing visionary freedoms as it helps the public in knowing about many things. 

For example, if a person is not aware of the process to execute a particular work then they can check the work of the other people through which it will be easier for that person to understand many of the things related to that work. From this they can also develop various ideas and execute them in a much efficient manner by the principle of fair use and as it is mentioned that people will not only come to know about the thing but after analyzing such things they can also create some new ways of creating the work. This shows that there is an existence of a relationship between fair use and creative freedoms. Even the creators who have the copyright of their work benefit from this concept because if their work is made accessible to the public of that country or a state they will get to know about all the things which are to be improved and even about the people who are satisfied with their work

The concept of fair use in India is controlled by Section 52 of the Indian Copyright Act, 1957 which talks about many things related to no violation of the work of the original creator in certain circumstances such as:

  • If any person uses the work of the original creator which can be any published material, theatrical work, artwork, and work related to music other than the computer program for any research, then such person will not be held guilty for doing such an act as it will come under the definition of fair use. For example, if Mr. X posted his song video on youtube and if Mr. Y, who after watching the video of Mr. X makes a video of his song then in such cases Mr. Y will not be held guilty as there is no such misconduct on the part of Mr. Y but if Mr. Y uses the music of Mr. X then it can be said that there was an infringement of copyright by Mr. Y.   
  • If any person makes personal comments, disparages, or analyses the work of the original creator then they will not be held guilty for such an act. For example, if a person says Mr. Y criticized the video which was made by Mr. X then in such cases, Mr. Y will not be held guilty.
  • If any person to describe such things publishes any work of the original creator in the newspaper or any other magazine, then also it cannot be said that there was an infringement of copyright by that person. For example, if Mr. X publishes about the release of any film or the article of any other person in the newspaper then in such cases, it will not be said that there was an infringement of the copyright by Mr. X.
  • If any person duplicates any work related to art, music, literature, etc then in such cases also it will not be said that there was an infringement of copyright because it will fall under the definition of fair dealing. For example, if a person says Mr. Y makes a painting of Lord Krishna by seeing the painting of Mr. X which was published on the internet then it will not be said that Mr. Y has violated the provisions of the Indian Copyright Act.
  • If any person uses any work of the original creator which is related to art, music, or literature by taking the consent of that person then it will not be said that copyright has been infringed. For example, if Mr. X posted his song video and Mr. Y used his music in his video by taking the consent of Mr. X then in such a case Mr. Y will not be held guilty as he took prior consent of the owner.

So these are the circumstances where it cannot be said that there was an infringement of copyrights because all of them will fall under the concept of fair use.

In the case of Bobbs Merrill Company v. Isidor Straus (1908), it was held by the Supreme Court of the United States that if someone violates the provisions of copyright then it will be deemed as a trespass on the work of the original creator, and hence it is necessary to protect such infringement of copyright.

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Section 51 of the Indian Copyright Act, 1957 states the circumstances where it can be called as an infringement of copyrights:

  • If any person does anything for which the absolute rights are given only to the original creator by breaching the conditions of the license then it will not fall under the definition of fair use because it can be seen that such an act was not done in good faith, rather it was done with some wrong intention. For example – if Mr. X uses video of Mr. Y without taking a proper license from Mr. Y then in such cases Mr. X will be held guilty as he violated Section 51 of the Indian Copyright Act.
  • If any person is found selling the work of another person without the permission of the original creator then that person will be held guilty for committing such an illegal act because it will come under the offence of infringement of copyright. For example, if Mr. X sells books that were written by Mr. Z without taking prior consent from Mr. Z then Mr. X will be held guilty for committing the offence of infringement of copyright.

In the case of V Govindan v. Gopalakrishnan (1954) & Shyam Lal Paharia v. Gaya Prasad Gupta (1970), it was held by the court that in case of similar books which are obtained from the customary origin will come under the definition of literary work and even it cannot be said that there was an infringement of copyrights because there can be two books having a similar name written by two different authors by their efforts and hard work.

In the case of SK Dutt v. Law Book Company (1953), it was held by the court that if any person copies the work of any other person without taking a license or any permission from such person, then only it will be called an infringement of copyright.

The concept of fair use in the United States is governed by Section 107 of the Copyright law of the United States which talks about certain factors due to which it can be known whether the act of a person will fall under the definition of fair use or not. 

  • First of all, it says that the motive of the person should be such that it will not infringe the copyright of the person. For example, if a person collects some information from the internet for the motive of any private research then in such case it will not infringe the copyright of any person, but if that person instead of using it for his research work sells that information to earn profits then he will be held guilty for infringement of copyright because the person had the motive to commit an illegal act. 
  • Secondly, it says that from the nature of such copied work, it will be easy to find whether the work is protected by fair use or not. For instance, if a person copied the work of another person which was not published then in such cases it may come under the definition of fair use because if any work is not published then it is not easy to prove the originality of the work. In the case of Salinger v. Random House (1987), it was held by the court that though the work was not published anywhere, still it will not come under the definition of fair use because such work was already kept in the library of the college for the students so that they can read those letters which were written by Mr. Salinger.
  • Thirdly, if the amount of work copied from the work of another person is very much that it will have no such effect on the other person then in such cases it can come under the definition of fair use. For example, if Mr. X copies some part of the article which was written by Mr. Y and Mr. Y had no such problem then in such cases it will not be called an infringement of the copyright. 
  • Lastly, if any person copies any work of another person due to which there was lots of effect on the market then it will not come under the definition of fair use, rather it will be called an infringement of copyright. For example, if a person says Mr. X used the music of Mr. Y and posted a video due to which Mr. X earned lots of profits, on the other hand, Mr. Y suffered a huge loss so in this case Mr. X will be held guilty for committing the offence of infringement of copyright. 

In the UK, the term ‘fair dealing’ is used to describe infringement of copyrights which means that a person cannot copy others’ work without their consent and they can only use another person’s work only for any legal fair or for criticism. Otherwise, it will come under the definition of the infringement of the copyright.

Fair use is generally made so that one can access the work of another person who is having the copyright for his work. It extends to artwork, literary work, work related to music, and films which can be reviewed, criticized by any of the persons even without the consent of the copyright holder or even any person can learn something from the work of another person but if it is used without the consent of the copyright holder then it will come under the definition of infringement of copyright.

Many of the works of the people are either published or made accessible to all the people of the country due to which such people can collect information for their research work, training purpose, teaching, criticizing, reviewing, etc. In doing such things, they are protected from the concept of fair use but instead of reviewing it or criticizing such article, if someone copied the whole of the work for any other intentions such as to earn profits, to get it published, or for any other purpose without taking prior permission from such author, then in such cases, it will lead to infringement of the copyright. This shows that the role of fair use in protecting creative freedom is limited in nature. For example, if a person says Mr. Shyam criticized a particular statement which was mentioned in the article written by Mr. Ram and further Mr. Ram filed a suit against Mr. Shyam, then Mr. Ram will not be able to succeed because Mr. Shyam can use the defence of fair use.

According to my point of view, the concept of fair use generally restricts a person from copying the work of the original creator. It is limited to certain things such as, a person cannot copy anything or sell anything without the permission of the author which is necessary because someone else can copy and claim it as his work, so to avoid such a situation there are certain provisions made for the concept of fair use.


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