FAIR USE v. FAIR DEALING
– Karan Latayan* (Net ID – kl1946)
Most of the Intellectual property laws were enacted to cater to the sole objective of promoting economic and social progress in the society. It is fascinating that Intellectual Property Rights, often characterized as monopolistic or private rights, were actually incorporated to serve the public interest. However, the drawbacks associated with the absolute character of these exclusive rights became apparent in early stages of development of the law. It was realized that the Intellectual Property law couldn’t address the private concerns, while completely ignoring the societal interest. On this premise, certain exceptions were carved in the American Copyright Law by the Congress, in exercise of its powers contained in Article 1, § 8, Clause 8 of the U.S. Constitution, to serve the interest of the public at large. The doctrine of ‘Fair Use’ is one of the most celebrated exceptions.
Similar exceptions exist in many national copyright laws throughout the world. Though the rationale behind these exceptions remains the same everywhere, the application of this doctrine differs from country to country. The biggest reason for this changing applicability can be attributed to the varied goals that the national governments seek to achieve. The endeavor of this paper would be to assess the scope of fair use doctrine in America vis-à-vis the doctrine of ‘fair dealing’ in India. Why these two doctrines, similarly worded and addressing similar sort of concerns differ so much in actual working will be the primary question that will be answered through this paper. By analyzing case laws from both the jurisdictions, we will try to assess the judicial opinions that contribute to this divers...
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...ain in the history of fair use. Justice Story observed –
“In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. Many mixed ingredients enter into the discussion of such questions.”
Justice Story, however, never used the term ‘fair use’ in his observation of Folsom, but still, in the absence of a specific statutory provision, the factors identified by Justice Story continued to govern U.S. cases, involving the question of fair use, as a common law doctrine till 1976. Finally, the Congress enacted the present Copyright Act, which contained specific provision, under Section 107, regarding the doctrine of ‘fair use’.
IV. FAIR DEALING
Over the past decade the societal view of creative society has greatly changed due to advances in computer technology and the Internet. In 1995, aware of the beginning of this change, two authors wrote articles in Wired Magazine expressing diametrically opposed views on how this technological change would take form, and how it would affect copyright law. In the article "The Emperor's Clothes Still Fit Just Fine" Lance Rose hypothesized that the criminal nature of copyright infringement would prevent it from developing into a socially acceptable practice. Thus, he wrote, we would not need to revise copyright law to prevent copyright infringement. In another article, Entitled "Intellectual Value", Esther Dyson presented a completely different view of the copyright issue. She based many her arguments on the belief that mainstream copyright infringement would proliferate in the following years, causing a radical revision of American ideas and laws towards intellectual property. What has happened since then? Who was right? This paper analyzes the situation then and now, with the knowledge that these trends are still in a state of transformation. As new software and hardware innovations make it easier to create, copy, alter, and disseminate original digital content, this discussion will be come even more critical.
According to our textbook, “Real property constitutes land and all things permanently attached to it (i.e. a house, a tree or coal below land). Intellectual property such as copyrights, patents and trademarks is personally owned but generally treated as a separate form of property by the law. Personal property is characterized by its portable nature; it can be carried from place to place (i.e. tangible personal property or intangible personal property)” (Roger, 2012).
Intellectual Property Law used to only protect art, music, and literature, but because of technological development, Intellectual Property Law now also protects a greater variety of innovations including designs, inventions, symbols, discoveries, and words. The phrase “intellectual property” was first known to be used in the late 1700’s; however, it was not widely talked about, nor was the Intellectual Property Law in actuality commonly implemented. Intellectual Property Rights slowly gained more attention by mid-1800’s after the Industrial Revolution had taken place: more companies were created, competition between corporations became fiercer, and owning unique innovations were crucial to winning the competition. However, as Intellectual Property
8. Samuelson, Pamela. Copyright’s fair use doctrine and digital data, Association for Computing Machinery., Communications of the ACM; vol. 37, Issue 1; New York, 1994. p. 22.
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The Statute of Anne (the first modern form of copyright law) was introduced after the printing press was invented. Before this time, books would have to be hand written and for this reason they were ve...
The censorship of film has been an issue since the Supreme Court made the notorious ruling on the case of Mutual Film Corporation v. Industrial commission of Ohio on February 23, 1915. The case, which was initially about restricting commerce rather then freedom of speech, was brought to the Supreme Court after being rejected at the state level. In 1915, film censorship was done on the state level and The Mutual Fil...
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This essay explains the journey of Bollywood (Indian Film Industry) and how it has changed itself and its audience’s perspective on Hindi Cinema. Applying the key features from Dennis McQuail’s “Normative Theory”, the relationship between Bollywood and the audience, controlled by the censorship board will be explained; and how both, the Bollywood industry and Censor Board are responsible for bringing changes to each other in the terms of rules, regulations, audience’s attitudes and their demands, in every period of time. According to McQuail (2010), a normative theory is adopted to clear the confusion prevailing in the information industry, that has become self-centred in modern days; and also to examine if the information created is to serve own self or the government. There have been endless debates by the contrasting individual ideas on how the media should be controlled from displaying unethical contents, and normative theory helps in guiding the individuals (theorists, writers, society and general public) to produce suggestions and ideas that media should follow, for the benefit of society and media (McQuail, 2010). The Indian Film Industry was established in 1913 but began to be known in 1920 (Indian Ministry of Information and Broadcasting, 2010). Bollywood, since then, was and is still controlled by the censor board, however the censor board went through a few transformations, from being independently owned by police heads of every region, to Bombay Board of Film Censors, and finally to the Central Board of Film Censors in 1952 (Indian Ministry of Information and Broadcasting, 2010). Cinema rules were reedited in 1983 and the censor board was re-named to the Central board of Film Certification (Indian Ministr...
One of the most recent examples of ethics and technology conflicts in the United States are privacy issues and how we cite, distribute and publish intellectual property on the internet. For instance, many corporations and people take advantage of the open access of the internet and the lack of legislation governing the right to post and upload information to the internet. Today, nearly every household in the United States has a computer with int...
Because of its intangible nature, and particularly the increase of the digital domain and the internet as a whole, computers and cyber piracy make it easier for people to steal many forms of intellectual property. Due to this major threat, intellectual property rights owners’ should take every single measure to protect their rights. Unless these rights are either sold, exchanged, transferred, or appropriately licensed for use in exchange for a monetary fee, they should be protected at all cost. In order to protect these rights, the federal and states governments have passed numerous laws and statutes to protect intellectual property from misappropriation and infringement. “The source of federal copyright and patent law originates with the Copyright and Patent ...
We have to remind legislators that intellectual property rights are a socially-conferred privilege rather than an inalienable right, that copying is not always evil (and in some cases is actually socially beneficial) and that there is a huge difference between wholesale piracy'the mass-production and sale of illegal copies of protected worksand the filesharing that most internet users go in for.
particular interest to educators is the “fair use” doctrine, which extends a get-out-of-jail-free card (so to speak) to anyone using copyrighted...
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