Legal Research: Analysis on Exceptions of Copyright


ANALYSIS ON EXCEPTIONS OF COPYRIGHT:
A Comparative Study to Indian Copyright Act, 1957

Author: Pan Mohamad Faiz
Subject: Intellectual Property Laws
Time: October, 2006

ABSTRACT:

In the last few years, intellectual property has assumed great importance world over. With the changing needs of the society, the importance of this subject has further enhanced and now it is considered as one of the most important subjects in the field of law. Law of copyright is an important aspect of this branch of law.

According to Black’s Law Dictionary, copyright means right to transcript, imitation, reproduction, to sell, to publish, to print copies of original work . The word “copyright” derives from the expression “copier of works”. It was first used in this sense in 1586. The word “copy” was along used in 1485 and it meant manuscript or other matters prepared for printing. It is an exclusive right to dispose of, sell and commercially exploit an intellectual work, by means of printing, lithography, graphic production, photography, a cinematography film, gramophone record, recitation, theatrical representation, translation, adaptation, performance, broadcast transmission or any other form of reproduction, multiplication of copies .

Copyright encompasses an enormous economic and cultural field – the knowledge in any form, economic and cultural – extending to the raw materials of the arts, education, information, entertainment, broadcasting, media, and design world. Although the copyright is relative, rather than absolute yet the monopoly is possible. The system restrains same work but encourages similar works. The monopolistic behaviour even in relation to same works is subject to limits, which limits are in built:

  1. the freedom of independent creators to exploit all their own ideas;
  2. the fact that protection extends only to expression of idea and not to idea itself;
  3. exceptions provision for “fair dealing”, news, teaching and research and other “permitted acts”;
  4. the system of compulsory licences;
  5. the cost and difficulties in enforcing the exclusive rights.

The most significant limitation on the exclusive rights of a copyright holder falls under the exception rubric “fair dealing or use”. This doctrine is the most quite troublesome in the whole law of copyright. The doctrine allows use or copying of another’s copyrighted work to the extent that such use is “fair”. In since 19th century, the courts began to develop principles for exempting certain types of use copying from copyright infringement as “fair use”. Later on, the most prominent of these were given statutory form, mainly by reference to the concept of “fair dealing”.

Article 9 (2) of the Berne Convention authorises national legislation to permit the reproduction of protected works ‘in certain special cases’ provided two condition are fulfilled: (a) the ‘reproduction does not conflict with a normal exploitation of the work; and (b) such reproduction ‘does not unreasonably the legitimate interest of the author’. Both conditions have to be fulfilled.

India differs from the United States which employs a general fair use doctrine. It also differs from the European civil systems which provide a general doctrine of private use, because such a defence was thought as being too wide and imprecise. In an action for infringement a defence of fair dealing would normally lead to refusal of an injunction. However the flexibility that a general defence approach of use could provide would assist in the struggle to keep copyright law up to date in the light of new technologies and new use of copyright works .

This Research Paper analyses the exception of copyright under the Copyright Right Act, 1957. Although there has been several material regarding exception of copyright, but all those material has not completely describe what is the basic concept and clearly definition for exception of copyright, provisionally in fair dealing doctrine. Therefore, this research paper aims to address those issues and analyses the legal concept of the exception of copyright along with several cases that reader can be consider more. Here is structure of the legal research:

ANALYSIS ON EXCEPTIONS OF COPYRIGHT:
A COMPARATIVE STUDY TO INDIAN COPYRIGHT ACT, 1957

ACKNOWLEDGMENT
CONTENTS
TABLE OF CASES
ABSTRACT

CHAPTER I: AN INTRODUCTION
1.1. Historical Background
1.2. Objectives
1.3. Research Methodology
1.4. Structure of Research Paper

CHAPTER II: LEGAL CONCEPT OF COPYRIGHT
2.1. Introduction of Copyright
2.1.1. Definition of Copyright
2.1.2. Object of Copyright
2.1.3. International Convention and the Statutory
2.1.4. Extension of Copyright and Allied Right
2.2. Nature of Copyright
2.2.1. General
2.2.2 Scope of Copyright
2.2.3 Original Work and Nature of Right
2.3. Author and Ownership of Copyright
2.3.1. The Author an Employee
2.3.2. Commissioned Works
2.3.4. Miscellaneous
2.4 Infringement of Copyright
2.4.1. General
2.4.2. Definition of Infringement and Infringing Copy
2.4.3. Copyright Protects and the Essential of Infringement
2.4.4. Factors Considered
2.4.5. Causal Connection and Indirect Copying
2.4.6. Authorisation of Infringement
2.4.7. Acts Not Constituting Infringement

CHAPTER III: EXCEPTIONS OF COPYRIGHT: FAIR DEALING
3.1. Exception and Limitations
3.1.1. International Rules
3.1.2. Indian Copyright Act, 1957
3.2. Legal Concept of Fair Dealing
3.2.1. Frame Work
3.2.3. Phrase of “Fair Dealing”
3.2.4. Phrase of “for the Purpose of”
3.2.4.1. Private Use: Including Research
3.2.4.2. Criticism and Review: Reporting Current Events
3.2.5. Factors of Fair Dealing
3.2.5.1. Purpose nad Character of Use
3.2.5.2. Nature of Copyrighted Work
3.2.5.3. Amount and Substantiality of the Portion
3.2.5.4. Effect upon Potential Market or Value

CHAPTER IV: OTHER EXCEPTIONS OF COPYRIGHT
4.1. Exception of Computer Programme
4.1.1. Temporary and Back Up Copies
4.1.2. Non Commercial Personal Use
4.1.3. Reverse Engineering
4.2. Exceptions for Performance
4.3. Exceptions for Library, Educational and Official Use
4.4. Exceptions for Official or Government Proceedings
4.5. Exceptions in State Produced Materials
4.6. Exceptions in Media Reporting
4.7. Exceptions for Artistic Work
4.8. Exceptions for Work of Architecture
4.9. Exceptions for Religious Ceremony or Official Ceremony
4.10. Exceptions in Broadcast Reproduction

CHAPTER V: CONCLUSIONS AND SUGGESTIONS
5.1. Conclusions
5.2. Suggestions

BIBLIOGRAPHY
APPENDIX

This legal research is important to read, not only for legal practitioners but also everyone who have interrelated with the topic. Because it will give us a comparison with copyright law in our own countries as well as it gives a huge new knowledge to avoid an infringement of copyright law. Everyone who needs this legal research, don’t hesitate to contact the writer by email pm_faiz_kw@yahoo.com or just fill the comment in guest book that has been provided in this Blawg.

Happy Reading Blawggers..!

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