WHAT IS FAIR PRICING AND FAIR DEALING SUPPOSED TO MEAN IN TERMS OF COPYRIGHT LAWS?

Lalbee S
Aug 20, 2023
4 min read

Written by S. Lalbee, Law Student

Introduction:

The legal right to do, authorize, or forbid specific activities WITH regard to an original literary or creative work is known as copyright, and it serves to preserve and promote creativity. As a means of supporting and promoting ongoing creative endeavors, the owner of the copyright may assign or license these rights.[1] Even when an author has copyright protection, there are frequently severe restrictions on that protection. By restricting the rights to a set period of time, the copyright system prioritizes the greatest good for the largest number of individuals while also promoting the interests of society as a whole. Any act of reproducing the work by someone other than the creator would not constitute infringement once the copyright term has expired and the work enters the public domain. Similar to the fair dealing doctrine. It is a restriction and an exception to the author of a creative work's exclusive right, which is provided under copyright law. It allows the use or reproduction of works protected by intellectual property in ways that, but for the exception made, would have violated such rights. As a result, it has been protected from the mischief of copyright law.

The Doctrine of Fair Dealing:

According to the legal concept of fair dealing, an individual is permitted to use a copyrighted work in certain circumstances without the owner's consent. It significantly curtails the copyright owner's exclusive rights. The Copyrights Act of 1957's,[2] Section 52 has been updated to include the provisions governing fair dealing. Since the word "fair dealing" is not defined in the Indian Copyright Act, the courts have frequently used the famous English case Hubbard v. Vosper,[3] when discussing this exemption to infringement.

Legislative Context and Judicial Treatment:

Section 52 specifies purposes that are comprehensive in the sense that any use that does not fall within the stated reasons is deemed an infringement.[4] Even with a comprehensive list of purposes, the courts cannot use the straight jacket rule in all cases.

The issue at hand in Eastern Book Company v. DB Modak,[5] was whether copying copy-edited judgements published in the plaintiff's law report by the defendant constituted copyright infringement or whether it qualified as fair dealing under Section 52(1)(q) Subclause (iv) of the Act, which exempts reproduction or publication of any judgement or order of a court, tribunal, or other judicial authority from the definition of copyright infringement.

In Wiley Eastern Ltd v. Indian Institute of Management,[6] the Court stated unequivocally that the main goal of Section 52 is to safeguard the two freedoms of expression guaranteed by Article 19(1) of the Indian Constitution, allowing for the protection of study, private research, remarks or reviews, and the revealing of current events. Parliament did not intend for Section 52 to define an offence in a negative way.

The Delhi High Court reiterated the requirement that the fair use clauses be read to create a balance between the exclusive rights provided to the copyright holder and the legitimate competing interest of enlarging the public domain in “The Chancellor Masters & Scholars of the University of Oxford v. Narendra Publishing House”.[7] In order to decide whether a specific use of a work is fair and hence entitled to protection under the fair dealing exception, even if the use of the work doesn't truly fit under any of the categories stated in Section 52, the Court used four element tests from the American Pretty Woman case.

The intention and nature of the use (for example, educational or critical purposes);
the nature of the copyrighted work, including whether it qualifies for copyright protection in the first place;
the substantiality of the portion used in relation to the copyrighted work, including the extent and type of copying done with respect to a work; and the impact on the potential market for, or value of, the copyrighted work, including whether the new work would have a negative impact on the original work's market value.[8]

Fair Pricing and Use:

A broader definition of fair use includes additional infringement defenses. Fair deals, however, only defend against infringements that are specifically included in the relevant jurisdiction's copyright legislation. In order to safeguard the public interest while balancing the rights of the holders, the United States has a theory known as fair use that permits the copying of copyright-protected works to some extent.[9]

According to traditional economic theory, consumers would assess a price's fairness from a self-interested standpoint. It should go without saying that logical consumers would support reduced costs where they stand to gain the most. Implementing progressive pricing, a sophisticated type of personalized pricing, on a wide scale becomes desirable and practical in such a setting. Companies that use progressive pricing offer higher prices to consumers who place a greater value on a product or service and lower prices to those who assign a lesser value, as opposed to maintaining a fixed price for all customers. The better a corporation can fine-tune prices on an individual basis, the more accurate its insights into customers' value assessments are.

Reference:

[1] Burrell Robert. (2001). Reining in copyright law: Is fair use the answer? INTELLECTUAL PROPERTY QUARTERLY 361-388 [2] The Copyright Act, 1957, § 52; The Copyright (Amendment) Act, 1983 (Act 23 of 1983)], [The Copyright (Amendment) Act, 1994 (Act 38 of 1994), The Copyright (Amendment) Act, 1999 (Act 49 of 1999), The Indian Copyright (Amendment) Act, 2012, The Copyright (Amendment) Act, 2016 [3] Hubbard v Vosper, [1972] 2 Q.B. 84 [4] Statement of Objects and Reasons, Indian Copyright Act, 1957 [5] Eastern Book Company v. D. B. Modak, 2008 1 SCC 1. [6] Wiley Eastern Ltd. vs. Indian Institute of Management (01.02.1995 - DELHC):MANU/DE/0694/1995 [7] The Chancellor Masters & Scholars of the University of Oxford v Narendra Publishing House, 2008 (38) PTC 385 [8] Pandey, V. (2014, March 13). ‘Fair Dealing’ In Copyrights : Is The Indian Law Competent Enough To Meet The Current Challenges? [9] Lex ology, Exceptions to copyright infringement – fair dealing