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2022 UPSC Law Optional Question | IPR question from CLD

" The quotation from a work which has already been lawfully made available to the public does not constitute infringement of copyright." Comment.

According to ARTICLE 10 OF THE BERNE CONVENTION, the quotation from a work that has already been lawfully made available to the public does not constitute infringement of copyright under certain conditions.

  • The Berne Convention does not provide a specific definition for "quotation" but allows for the use of quotations from various works. There are no set limits on the length of a quotation; it should be determined based on the purpose and fair practice. Quotations are permissible if the quoted work has been lawfully made available to the public.

  • The use of quotations should be compatible with fair practice, considering the normal exploitation of the work and the author's legitimate interests.

The DOCTRINE OF FAIR USE OR FAIR DEALING is an essential part of copyright law that allows for the reproduction of copyrighted works without being considered infringement.

  • Fair use provisions permit the use of copyrighted works for purposes such as research, private study, criticism, review, reporting current events, and personal use.

  • The extent of the quotation should be justified by the purpose and should not exceed what is necessary.

In India, fair use provisions are outlined in SECTION 52 OF THE COPYRIGHT ACT, 1957. This section allows for certain uses of copyrighted works without constituting infringement.

SECTION 52(1)(A) OF THE INDIAN COPYRIGHT ACT specifies certain acts that do not amount to copyright infringement. These acts include fair dealing with a work (excluding computer programs) for private or personal use, including research; criticism or review of any work; and reporting of current events and public lectures. The provision also clarifies that storing such works in electronic media, including non-infringing computer programs, for these purposes does not constitute copyright infringement.

HUBBARD V VOSPER: Lord Denning held that fair dealing is a matter of degree and should consider factors such as the number and extent of quotations, the use made of them (comment, criticism, review), and the proportions between extracts and comments.

FOLSOM VS MARSH: Justice Story laid down four factors to determine fair use in the US: the nature and object of the selections made, the nature of the original work, the amount of the work used, and the degree of prejudice to the original work's sale, profits, or objectives.

SYNDICATE OF THE PRESS OF THE UNIVERSITY OF CAMBRIDGE V. B.D. BHANDARI. In this case, the court considered the defendant's work as "transformative" and falling within the provision of "fair dealing" under Section 52(1)(a)(ii) of the Copyright Act. The court ruled that the defendant's review, which involved revisiting and providing step-by-step reasoning to solve math problems, was prima facie a fair use of the copyrighted work.

Another relevant case is LEIBOVITZ V. PARAMOUNT PICTURES CORPN., where the court recognized that fair use defense is available for the parody of a copyrighted photograph.

The case of HARPER ROW PUBLISHERS INC. V. NATION ENTERPRISES dealt with fair use in the context of quotations from a published work. The court emphasized the importance of fair use and stated that quotations from a work already lawfully made available to the public do not constitute copyright infringement.

In SALINGER V. RANDOM HOUSE, the court examined the fair use of unpublished letters. It concluded that copying only factual content from unpublished letters does not incur the risk of an injunction. However, copying more than minimal amounts of unpublished expressive content could lead to an injunction.

WILEY EASTERN LTD AND ORS V INDIAN INSTITUTE OF MANAGEMENT: This case emphasized the incorporation of fair dealing under Section 52 of the Indian Copyright Act to protect freedom of expression and promote research, criticism, and reporting.

In conclusion, the Berne Convention, along with fair use provisions in various countries including India, recognizes the importance of allowing the use of quotations from copyrighted works under specific conditions. However, it is important to exercise caution and consider the nature and extent of the copyrighted material when relying on fair use defenses to avoid copyright infringement.

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UPSC Law Optional Mains course - preferr
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