The Pros And Cons Of Copyright Law

We argue that the judgment is jurisprudentially and legally unsound on holding Section 52(1)(i) to be a controlling norm rather than a limited exception. We are of the view that the judgment perilously intruded into the shores of judicial legislation, enervating the foundations of Rule of Law which forms an essential facet of Article 14 of the Constitution.

There is the necessity of a provision that would determine to which extent the reproduction of copyrighted material would not amount to infringement of copyright law for the educational purpose, till then everyone can claim relief against infringement of copyright work.

All modern copyright systems provide for circumstances in which copyright will not be infringed by the unauthorized reproduction

The effect of this approach is such that any use which a court deems to be ‘fair’ will be treated as non-infringing. This is known as the defence of “fair use”. The United States, for example, leans towards this approach.

The second approach, evolved in United Kingdom, includes providing a large number of much more specific exceptions, encompassing carefully defined activities (more of a ‘pigeon-hole’ concept). If the respective use a) falls within the defined exceptions; and b) is fair, then “fair dealing” applies. The copyright laws of Australia, Canada, India, New Zealand, Singapore and South Africa use “fair dealing”. Unlike the related doctrine of “fair use”, “fair dealing” cannot apply to any act which does not fall within one of these categories.

The third approach is to set out certain “enumerated exceptions” without any qualification such as “fairness”. It is more of an unequivocal exception. The fourth approach is to use a hybrid model. Singapore, for instance, uses a hybrid model encompassing “fair dealing” and “fair

It is not a case of (sometimes criticised, sometimes admired) dynamic interpretation since the judgment did not even attempt to reason out the fine distinctions and nuances concerning “fair dealing”, “fair use” and “enumerated exceptions”. The judgment, in fact, went beyond the realms of extant jurisprudential understanding without even discussing them especially when precedents are binding in a common law jurisdiction like India. Of course, the judiciary in India is free to take an altogether different path in jurisprudence and interpretation. But it should be mandatorily based on reason. Reason pervades the Indian polity, thanks to Constitutionalism and Rule of Law.

Further, the judgment is silent on the ambit of private use exception i.e copying of books by students in the course of instruction. As to this extent, the judgment has a chilling effect on evaluating the realistic implications. As to summarise, we we are of the view that the judgment put the cart before the horse. And it is not legally and jurisprudentially sound. Therefore, the publishers have a strong case in appeal