MOD1

MODULE 1
GENERAL PRINCIPLES OF CREATIVITY AND
THE CREATIVE PROCESS

“CREATIVITY IS INTELLIGENCE HAVING FUN”

- ALBERT EINSTEIN

1.1 DEFINING CREATIVITY AND CREATIVE MIND

Creativity may be different for different minds. For some it means being imaginative or
inventive, taking risks or challenging convention. For others it is about original thinking
or producing something that nobody has
come up with before. John Kao in 1997 defined Creativity can be defined as an art to create
creativity as ‘I define creativity as the entire process something. The term generally refers to a
by which ideas are generated, developed and
richness of ideas and originality of

transformed into value. It comprises what people thinking.1 While creative thinking can be

commonly mean by innovation and understood as ‘Specific thought processes

entrepreneurship’1. While Sir Ken Robinson in 2001 which improve the ability to be creative.

defined creativity as ‘Creativity is the process of The ability to think of original, diverse and
developing ideas that are original and of elaborate ideas.’1

value. Creative intelligence is dynamic, diverse and

distinct’.2

In the technological age of today, creativity is linked with the ideas of inventiveness and
imagination that can be used for commercial gain. Everything around us - our homes, cities,
medical services, transport and communication systems - are conceived and developed by
practical people who know how to implement creative ideas. Creativity now is all about giving
answers to everyday problems.

3Creativity can also be defined at many distinct levels -- cognitively, intellectually, socially,
economically, spiritually, and from the finite perspective of different disciplines -- business,
science, music, art, dance, theatre, etc. Partly because it is tied to business, a great deal of
effort has been put forth defining creative problem-solving. In this genre one of the more

1 http://www.journeytoexcellence.org.uk/resourcesandcpd/research/summaries/rsfosteringcreativity.asp
2 http://www.journeytoexcellence.org.uk/resourcesandcpd/research/summaries/rsfosteringcreativity.asp
3 http://www4.uwsp.edu/education/Lwilson/CREATIV/define.htm

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common definitions of creativity has to do with dissecting creative thought into a process of
dual exchanges through the melding of two types of thinking -- convergence and divergence.
Definitions of divergent thinking usually include the ability to elaborate, and think of diverse
and original ideas with fluency and speed. Ideating and brainstorming are premiere examples
of this type of thinking. Convergent thinking is defined as the ability to use logical and
evaluative thinking to critique and narrow ideas to ones best suited for given situations, or
set criteria. We use this type of thinking when we make crucial and well-formed decisions
after appraising an array of ideas, information, or alternatives.

In creative production both thought processes are necessary as one first diverges ideas in
numerous quantity and then narrows and refines the array through convergence. Specifically
in creative problem solving, or in any complex problem solving activity for that matter, one
needs to be able to weave in and out of divergent and convergent thought patterns in arriving
at an appropriate conclusion specific for a given situation.

1.2 ASPECTS OF CREATIVITY

There are certain features of creativity acknowledged as ‘the four Ps’:

PROCESS: This refers to the operations and stages of THERE ARE CERTAIN FEATURES OF

thought that go into a creative work. Surprisingly, CREATIVITY ACKNOWLEDGED AS
creative process skills can be learned, and practice can
improve overall creative performance along with a ‘THE FOUR PS’:
person’s ability to think more imaginatively and solve
problems uniquely. Creativity involves both nature PROCESS
and nurture. You don’t have to be born with this
creative quality—you can practice it.4 It is the PRODUCT
intellectual approaches that try to describe thought
mechanisms and techniques for creative thinking.5 PERSON

PRODUCT: As the name in itself suggests, the product PLACE

aspect of creativity involves the creation of original
ideas that are novel and useful.6

PERSON: The creative individual is the most important

facet because the product, environment, and process

4 http://www.avconcepts.com/what-is-creativity/
5 .( Gabora, Liane (1997). "The Origin and Evolution of Culture and Creativity". Journal of Memetics -
Evolutionary Models of Information Transmission
6 http://www.avconcepts.com/what-is-creativity/

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do not exist without the person. The creative process at its greatest form is built by a person’s
knowledge, thinking skills, emotional intelligence, all of which are dependent upon individual
choice.7 These are general intellectual habits, such as openness, levels of ideation, autonomy,
expertise, exploratory behavior etc.

PLACE: Creative press refers to the environment where a person lives, creates, or processes.

This is potentially the broadest of the four P’s of creativity as it takes into account internal,
external, and interpersonal factors. That includes everything from your mood, to the weather,
to the conversations you have with a friend. Apparently, the one negative factor to creative
press is conflict.8 It is the circumstances in which creativity flourishes, such as degrees of
autonomy, access to resources and the nature of gatekeepers. Creative lifestyles are
characterized by nonconforming attitudes and behaviors as well as flexibility.9

1.3 EVOLUTIONARY STAGES

1.3.1 Ancient views

Most ancient cultures, including thinkers of Ancient Greece10, lacked the concept of
creativity, seeing art as a form of discovery and not creation. The ancient
Greeks had no terms corresponding to "to create" or "creator" except for the
expression "poiein" ("to make"), which only applied to poiesis (poetry) and to
the poietes (poet, or "maker") who made it. Plato did not believe in art as a form of creation.
Asked in The Republic,11"Will we say, of a painter, that he makes something?” he answers,
"Certainly not, he merely imitates.12

It is commonly argued that the notion of "creativity" originated in Western culture through
Christianity, as a matter of divine inspiration13. According to the historian Daniel J. Boorstin,
"the early Western conception of creativity was the Biblical story of creation given in
the Genesis."14 In the Judaeo-Christian tradition, creativity was the sole province of God;
humans were not considered to have the ability to create something new except as an

7 http://www.avconcepts.com/what-is-creativity/
8 http://www.avconcepts.com/what-is-creativity/
9 Sternberg, Robert J. (2009). Jaime A. Perkins, Dan Moneypenny, Wilson Co, ed. Cognitive Psychology.
CENGAGE Learning. p. 468. ISBN 978-0-495-50629-4
10 Władysław Tatarkiewicz, A History of Six Ideas: an Essay in Aesthetics, p. 244.), Ancient China, and Ancient
India(Albert, R. S.; Runco, M. A. (1999). ":A History of Research on Creativity". In Sternberg, R. J.Handbook of
Creativity. Cambridge University Press.
11 Plato, The Republic, Book X - wikisource:The Republic/Book X
12 Władysław Tatarkiewicz, A History of Six Ideas: an Essay in Aesthetics, p. 244.
13 Runco, Mark A.; Albert, Robert S. (2010). "Creativity Research". In James C. Kaufmanand Robert J.
Sternberg. The Cambridge Handbook of Creativity. Cambridge University Press.ISBN 978-0-521-73025-9
14 Albert, R. S.; Runco, M. A. (1999). ":A History of Research on Creativity". In Sternberg, R. J.Handbook of
Creativity. Cambridge University Press. p. 5

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expression of God's work.15 A concept similar to that of Christianity existed in Greek culture,
for instance, Muses were seen as mediating inspiration from the Gods.16 Romans and Greeks
invoked the concept of an external creative "daemon" (Greek) or "genius" (Latin), linked to
the sacred or the divine. It was during the Renaissance that creativity was first seen, not as a
conduit for the divine, but from the abilities of "great men".17

1.3.2 The Enlightenment and after

The development of the modern concept of creativity begins in the Renaissance, when
creation began to be perceived as having originated from the abilities of the individual,
and not God. However, this shift was gradual and would not become immediately
apparent until the Enlightenment.18 By the 18th century and the Age of Enlightenment,
mention of creativity (notably in art theory), linked with the concept of imagination, and
became more frequent.19 In the writing of Thomas Hobbes, imagination became a key
element of human cognition.20 William Duff was one of the first to identify imagination as a
quality of genius, typifying the separation being made between talent (productive, but
breaking no new ground) and genius.21

As a direct and independent topic of study, creativity effectively received no attention until
the 19th century.22 In the late 19th and early 20th centuries, leading mathematicians and
scientists such as Hermann von Helmholtz (1896) and Henri Poincaré (1908) began to reflect
on and publicly discuss their creative processes.

1.3.3 THE CREATIVE PROCESS

15 Niu, Weihua; Sternberg, Robert J. (2006). "The Philosophical Roots of Western and Eastern Conceptions of
Creativity". Journal of Theoretical and Philosophical Psychology 26: 18–38.doi:10.1037/h0091265. Retrieved 23
October 2010
16 Dacey, John (1999). "Concepts of Creativity: A history". In Mark A. Runco and Steven R. Pritzer. Encyclopedia
of Creativity, Vol. 1. Elsevier. ISBN 0-12-227076-2
17 Albert, R. S.; Runco, M. A. (1999). ":A History of Research on Creativity". In Sternberg, R. J.Handbook of
Creativity. Cambridge University Press. p. 6.
18 Albert, R. S.; Runco, M. A. (1999). ":A History of Research on Creativity". In Sternberg, R. J.Handbook of
Creativity. Cambridge University Press. p. 6
19 Tatarkiewicz, Władysław (1980). A History of Six Ideas: an Essay in Aesthetics. Translated from the Polish
by Christopher Kasparek, The Hague: Martinus Nijhoff
20 Runco, Mark A.; Albert, Robert S. (2010). "Creativity Research". In James C. Kaufmanand Robert J.
Sternberg. The Cambridge Handbook of Creativity. Cambridge University Press.ISBN 978-0-521-73025-9.
21 Dacey, John (1999). "Concepts of Creativity: A history". In Mark A. Runco and Steven R. Pritzer. Encyclopedia
of Creativity, Vol. 1. Elsevier. ISBN 0-12-227076-2
22 .( Dacey, John (1999). "Concepts of Creativity: A history". In Mark A. Runco and Steven R.
Pritzer. Encyclopedia of Creativity, Vol. 1. Elsevier. ISBN 0-12-227076-2

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23

Initially it was believed that creativity was bestowed upon you from a higher, otherworldly
being. But in today’s world the thought is different. The creative process can be understood
as the process about goals and actions to achieve them. The creative process is about
thinking and doing in no prescribed order.24 In short any the process for creation of something
should consist of an intention to create something, then some information should be
gathered to fulfil the intention and finally an action should be done to complete it. This can
be achieved via six phases of creative process25:

INSPIRATION: In which you research and generate many ideas. Basically in the first phase

the human mind starts taking motivation from the environments and produces as many
thoughts as it can.

CLARIFICATION: In which you focus on your goals. The second phase specifies the goals

which are to be fulfilled.

23 http://www.dubberly.com/concept-maps/creative-process.html
24 http://www.dubberly.com/concept-maps/creative-process.html
25 http://www.greenfields.u-net.com/docs/

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EVALUATION: In which you review your work and learn from it. The third phase makes the

human mind rethink, assess and analyze all the thoughts that it has produces during
inspiration.

DISTILLATION: In which you decide which of your ideas to work on. The fourth phase

concentrates on selecting the important ideas from the thoughts which are necessary to fulfil
the goal specified in during the second phase.

INCUBATION: In which you leave the work alone.

PERSPIRATION: In which you work determinedly on your best ideas. In the final phase

everything is put into place and important and unimportant ideas are sorted. Now, the human
minds works only on important minds to create new ideas.

1.4 COPYRIGHT

The very first question that is needed to be answered is what is a copyright? As the name
in itself suggests it is a right to copy. The current copyright law of the United Kingdom
is to be found in the Copyright, Designs and Patents Act 1988 (the 1988 Act), as
amended. This came into force on 1 August 1989, for the most part, save for some minor
provisions that were brought into force in 1990 and 1991. The main thrust of the law of
copyright is that it grants the authors and other creators an incentive to create and to
promote their intellectual, moral and economic interests.26

The scholars of Ancient Greece and the Roman Empire were the first to be concerned about
being recognised as the authors of their works, but they did not have any economic rights27.
The history of modern copyright law dates back to 18th century with the enactment of English
Statute of Anne, which applied to England, Scotland, and Wales. It was “An Act for the
Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or
purchasers of such Copies, during the Times therein mentioned”. Initially copyright was given
to books only. With the development in human creativity, science and technology the right
was extended to a wide range of works like: maps, performances, paintings, photographs,
sound recordings, motion pictures, computer programs etc. Internationally till 19th century
the copyright laws varied according to jurisdictions. To solve this problem in 1886 Berne
Convention was adopted to provide mutual recognition of copyright between nation states
and to promote the development of international standards for copyright protection.

26 http://indiankanoon.org/doc/1217709/
27 http://www.ipo.gov.uk/types/copy/c-about/c-history.htm

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In different countries copyright has developed differently - even in its fundamentals. Britain
(UK) developed copyright as a property concept through the 18th and 19th century and still
has 'the effort put into a work' as part of its copyright value as well as the original 'creative'
value. USA followed Britain with a 'copyright-as-property' model and developed it in within
their own entrepreneurial culture. In mainland Europe copyright developed along a different
path - copyright as author-centred - and it is from this concept that moral rights developed.
Moral rights have only been added into copyright legislation in the UK since 1989.28

1.4.1 POSITION IN THE UNITED STATES OF AMERICA

It is a principle of American law that an author of a work may reap the fruits of his or her
intellectual creativity for a limited period of time. Copyright is a form of protection
provided by the laws of the United States for original works of authorship, including
literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial,
graphic, sculptural, and audio visual creations29.

1.4.2 POSITION IN THE UNITED KINGDOM

In 1518, the first copyright privilege was granted in England. It was issued to Richard
Pynson, King’s Printer, and the successor to William Caxton. The privilege gave a monopoly
for the term of two years. These copyright privileges were called as monopolies. Later in
1701, the parliaments of England and Scotland were united as a result of the Anglo-Scottish
Union. The new parliament was able to change the laws in both countries and an important
early piece of legislation was the Copyright Act of 1709, also known as the Statute of Anne,
after Queen Anne. The act came into force in 1710 and was the first copyright statute.30 The
current copyright law of the United Kingdom is to be found in the Copyright, Designs and
Patents Act 1988 (the 1988 Act), as amended. This came into force on 1 August 1989, for the
most part, save for some minor provisions that were brought into force in 1990 and 1991.

1.4.3 INDIA

The law of copyright was introduced in India only when the British East India Company
was established in 1847. The term of the Copyright was life time of the author plus
seven years after the death of the author. But in no case could the total term of
copyright exceed a period of forty-two years. The government could grant a compulsory
licence to publish a book if the owner of copyright, upon the death of the author, refused to
allow its publication. Registration of Copyright with the Home Office was mandatory for
enforcement of rights under the Act. In 1914 the Indian legislature under the British Raj
enacted the Copyright Act of 1914. It was almost similar to the United Kingdom Copyright Act

28 http://copyrightsandwrongs.e2bn.org/ipr-and-copyright/history-of-copyright
29 http://www.copyright.gov/circs/circ1a.html
30 http://www.sinapseblog.com/2011/02/history-of-copyright-law.html

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of 1911. But the major change that was brought in this Act was criminal sanction for
infringement. Number of times amendment were brought to this Act up till 1957.
Subsequently, The Copyright Act, 1957 was enacted in order to suit the provisions of the
Berne Convention. This Act was enacted by Independent India by which we are governed till
date31.

1.5 ESSENTIALS OF COPYRIGHT

There are few requirements that a work should have to get a copyright over it. These are:

ORIGINALITY: In University of London Press Ltd. v. University Tutorial Press Ltd.32 it was held

that to be original, the work must originate from the author and not copied by him from
another work. The judge propounded a 'rough practical test', "what is worth copying is prima
facie worth protecting". This formulation was also approved in Ladbroke (Football) Ltd. v.
William Hill (Football) Ltd. The Court in the said case observed, "The requirement of originality
means that it is the result of a substantial degree of skill, industry or experience employed by
him."

Practically, it is impossible for any work, especially the works that needs copyright protection
to be original in literal terms. Therefore, the meaning of originality cannot be taken in strict
sense, it has to be liberally interpreted. The work need not be original in the sense that it must
involve any original or inventive thought rather it should involve “at least some minimal
degree of creativity.” The idea need not be novel and completely new, what is important is
that the expression should be original. Same idea can be expressed in similar manner. Those
different modes of expression should be fresh. The work should be a result of man’s own skill,
labour and judgement. As In University of London Press Ltd. v. University Tutorial Press Ltd.33
Peterson J. stated that: “The word ‘original’ does not in this connection mean that the work
must be the expression of original or inventive thought, and, in the case of ‘literary work’,
with the expression of thought in print or writing. The originality which is required relates to
the expression of thought.” It is clearly stated here that the originality required by the law is
not that of revolutionary new ideas but of the way that the thought is expressed.34

EXPRESSION OF AN IDEA: Copyright is only given in expression of an idea and not in ideas.

In Donoughue v. Allied Newspaper Ltd.35, it was held by the court that “….if the idea, however

31 http://www.sinapseblog.com/2011/02/history-of-copyright-law.html
32 (1916)2 Ch 6 Oct 608.
33 [1916] 2 Ch 601
34 “Originality” in Copyright Doctrine by Ian Hoare
35 (1937) 3 Ch D 503.

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brilliant and however clear it may be, it is nothing more than an idea, and is not pit in form of
words, or any form of expression such as a picture or a play, then there is no such thing as a
copyright at all. It is not until it is reduced into writing or into some tangible form, that you
get to copyright at all, and the copyright exists in particular form of language in which, or in
case of pictured, in the particular form of picture by which, the information or idea is
conveyed to those who are intended to read it or to look at it.”

1.6 SUBJECT – MATTER OF COPYRIGHT

Copyright ensures certain minimum
safeguards of the rights of authors
over their creations, thereby
protecting and rewarding creativity.
Creativity being the keystone of progress, no THE SUBJECT MATTER OF COPYRIGHT

civilized society can afford to ignore the basic INCLUDES:

requirement of encouraging the same. ORIGINAL LITERARY, MUSICAL, DRAMATIC AND
Economic and social development of a
society is dependent on creativity. The ARTISTIC WORKS

protection provided by copyright to the CINEMATOGRAPH FILMS
efforts of writers, artists, designers, SOUND RECORDINGS
dramatists, musicians, architects and

producers of sound recordings,

cinematography and computer software, [Cite your source here.]
creates an atmosphere conducive to

creativity, which induces them to create more and motivates others to create.36

The subject-matter of copyright protection includes every production in the literary, scientific
and artistic domain, whatever the mode or form of expression. The Copyright Act, 1957
protects:

 Original literary, musical, dramatic and artistic works.
 Cinematograph films.
 Sound recordings.

LITERARY WORK37: A literary Work is the outcome as a result of application of the mind

and substantial labour by the author and having it reduced it into a form of writing.

36 http://rightsandmarks.org/copyrights.html
37 http://vakilsearch.com/what-can-be-copyrighted-in-india/

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Example- A novel, a Book Review, a Survey report, Lecture, Speech etc.

Interestingly, a “computer programme” is also covered under the definition of literary work
and had been defined as a set of instructions expressed in words, codes, schemes or in any
other form, including a machine readable medium, capable of causing a computer to perform
a particular task or achieve a particular result.

DRAMATIC WORK38: Dramatic work includes any piece for recitation, choreographic work

or entertainment in dumbshow, the scenic arrangement or acting form of which is fixed in
writing or otherwise but does not include a cinematograph film.

ARTISTIC WORK39: Artistic work means:

(i) A painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving
or a photograph, whether or not any such work possesses artistic quality.

It also includes, “work of sculpture” which can be casts and models.

Here, engravings- include etchings, lithographs, wood-cuts, prints and other similar works, not
being photographs.

(ii) Work of architecture which means any building or structure having an artistic character or
design, or any model for such building or structure;

(iii) Any other work of artistic craftsmanship;

MUSICAL WORK40: A Musical Work means any combination of melody and harmony or

either of them, printed, reduced to writing or otherwise graphically produced or reproduced.

Example- the hymns of Meera Bai and the symphonies of Beethoven are classic examples of
Musical Work.

CINEMATOGRAPHIC WORK41: Cinematography is an art form in the field of filmmaking.

According to the Indian Law, A Cinematographic Work includes the sound track, if any, and
“cinematograph” shall be construed as including any work produced by any mechanical
instrument or by radio-diffusion.

Example- The famous horror soundtrack of movie ‘Exorcist’ is protected under the copyright
Law under the cinematographic Work.

38 http://vakilsearch.com/what-can-be-copyrighted-in-india/
39 http://vakilsearch.com/what-can-be-copyrighted-in-india/
40 http://vakilsearch.com/what-can-be-copyrighted-in-india/
41 http://vakilsearch.com/what-can-be-copyrighted-in-india/

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The logic behind such inclusion is the simplicity of protection laws which doesn’t require the
filmmakers to get their soundtracks registered individually for protection.

SOUND RECORDING42: Sound recording means a recording of sounds from which sounds

may be produced regardless of the medium on which such recording is made or the method
by which the sounds are produced. A phonogram and a CD-ROM are sound recordings.

1.7 AUTHORSHIP IN COPYRIGHT

Copyrights are all about profit sharing by the owner of the intellectual property. The
object of copyright law is to encourage authors, artists and composers to create
original works and rewarding them with exclusive right for a fixed period to reproduce
the works for commercial exploitation. It is a well settled under the copyright law that the
creator of the original expression in a work is its author. The author is also the owner of
copyright. The author in copyright history, especially before the Statute of Anne, had been
regarded as a separate entity from the printer or publisher of a work.43

Authorship is the organization of a meritorious production, embodying the author or

the thought of the author as well as the thought of the other, in an organized and

communicable form and bearing the impress of the

distinctive individuality of the mind which produced it. The Berne Convention, establishing

a union to protect literary and artistic works, recognizes by virtue of Article 1 that the rights

being protected through copyright law are the rights of authors.44 Authors are the first

beneficiaries of rights under the law and provide a reference point as to how long rights over

the work should exist.45 Copyrightable works of authorship include a broad array of subject

matter, from poetry to computer programs, motion pictures to compilations of data. In

copyright parlance, the creator of a copyrightable work is its "author," whether poet,

computer programmer, film director or principal investigator.

1.7.1 POSITION IN THE UNITED STATES OF AMERICA 46

Author, under the U.S. Copyright Law, is either the person who actually creates a
copyrightable work or, if the copyrightable work is created within the scope of
employment, the employer of the person who actually creates the copyrightable
work. The author of a work is entitled to copyright in the work if the work is original and is

42 http://vakilsearch.com/what-can-be-copyrighted-in-india/
43 Alina Ng, ‘Authors and Readers: Conceptualizing Authorship in Copyright Law’ at
http://works.bepress.com/alina_ng/4
44 Berne Convention for the Protection of Literary and Artistic Works art. 1, Jul. 24 1971, 1161 U.N.T.S. 18338.
45 Berne Convention for the Protection of Literary and Artistic Works art. 7, Jul. 24 1971, 1161 U.N.T.S. 18338.
46 http://copyright.uslegal.com/authorship-in-copyright/

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fixed. The work can even be a compilation of existing data, a derivative work. Under the U.S.
Copyright Law, exclusive rights are granted to an author or owner of a copyrightable work
falling under any of these categories. Typically, the author of a work owns the copyright in
the work. However, under the U.S. Copyright Law, for a work made for hire, that is a work
prepared by an employee within the scope of employment or a specially ordered or
commissioned work, the employer or other person for whom the work was prepared is
considered the author.

‘Joint Authorship’ is something when two or more people work together to create a
copyrightable work and their contribution could be individually seen. For eg: a lyricist and
composer collaborate together to form a song. The U.S. Copyright Act provides that each co-
author owns an undivided interest in the entire work. For example, where lyrics and music
are intended to be joined at the time they are created, the lyricist and composer each have
an undivided interest in the entire work. When instrumental versions produce revenues (e.g.,
elevator music), the lyricist is entitled to share in those revenues, just as the composer is
entitled to share in revenues derived from the lyrics alone (e.g., print posters).47 In the recent
decision Janky v. Lake County Convention and Visitors Bureau, 576 F.3d 356 (7th Cir. 2009),
authorship credit was a key factor in establishing intent to create a joint work of authorship.
Janky was a songwriter who challenged a putative co-author's right to issue a non-exclusive
license to the defendant, Visitor's Bureau. Visitor's Bureau maintained that it had properly
used the song under a non-exclusive license issued by the song's co-author, Henry Farag.
Janky testified that Farag's contributions had accounted for only 10% of the lyrical content of
the song. Janky originally filed a copyright application naming Farag as co-author, but later
filed another copyright application "correcting" the earlier registration, omitting Farag's
name, and listing herself as the sole author. Janky testified that she placed Farag on the
original application "as an indication of [her] gratitude . . . and to demonstrate that [she]
appreciated every little bit of support." Farag testified that his lyrical changes were significant
and that he had also made revisions to the song's melody. The Court concluded that Janky
and Farag each intended to create a joint work and that each had contributed independently
copyrightable material, noting that "crediting another person as a co-author is strong
evidence of intent to create a joint work."48

1.7.2 POSITION IN CANADA49

Canadian copyright law sets out rules which determine who is to be the first owner of
the copyright for a new copyrightable work. The rules cover different groups of people
such as the authors of the work, employees who create works in the course of their
employment, independent contractors who create works under contracts for services, and

47 http://www.ober.com/news_events/291-avoiding-joint-pain-treatment-joint-works-authorship-conditions

48 http://www.ober.com/news_events/291-avoiding-joint-pain-treatment-joint-works-authorship-conditions
49 http://en.wikipedia.org/wiki/Authorship_and_ownership_in_copyright_law_in_Canada

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academics. It is helpful to think of the rules which set out in initial allocation of copyright as
'default' rules because the whole or a portion of the 'ownership' of the copyright may always
be transferred to a different person in a contract of sale.

Section 13(1) of Canada's Copyright Act states that "subject to this Act, the author of a work
shall be the first owner of the copyright therein."50 This rule introduces two new questions.
First of all, what are the other elements of the Copyright Act to which s. 13(1) is subject?
Second, who is an author? In response to the first question, this article will address some of
the other elements of the Copyright Act to which s. 13(1) is subject shortly. For now, suffice
to say that there are nuances and exceptions to the rule in s. 13(1) for groups of people such
as employees. The second question is more complicated, but the courts have issued a number
of decision which provide some definition to the concept of who is an author according to
Canada's Copyright Act. Two helpful decisions regarding the matter of who is an author are
Glen Gould Estate v. Stoddart Publishing Co. Ltd.,51 and Donoghue v. Allied Newspapers Ltd.52

David Vaver states that joint authors will be the first co-owners of a copyright.53 Presumably,
this rule flows from section 13(1) of the Copyright Act. Section 2 of the Copyright Act provides
a definition of a work of joint authorship as work in which "the contribution of one author is
not distinct from the contribution of the other author [...]"54 This definition distinguishes works
of joint authorship from collective works such as compilations, where it may be evident that
the original contribution of the author of one of the constituent works would be distinct from
the original contribution of the compiler who arranged and selected the constituent works
into a compilation. However, if all of the authors participated in an indistinguishable manner
in creating the constituent works and in selecting and arranging the various constituent
works, than it would probably be more appropriate to classify such a collaborative work as a
work of joint authorship instead of as a compilation.

1.7.3 POSITION IN INDIA

Section 2 (d) of the Indian Copyright Act, 1957 defines the meaning of the authors as the
person who causes the work to be created. As per Section 13 of Copyright Act, 1957 the
author is the first owner of copyright in a work, the authors in different copyrighted works
are:

 In the case of a literary or dramatic work the author, i.e., the person who creates the
work.

 In case of a musical work, the composer.

50Copyright Act, RS 1985, c C-42, s 13(1)
51 Glen Gould Estate v Stoddart Publishing Co Ltd [1998] O.J. No. 1894, 161 D.L.R. (4th) 321
52 Donoghue v. Allied Newspapers Ltd [1937] 3 All ER 503
53 David Vaver, Intellectual Property Law: Copyright|Patents|Trade-marks, 2d ed (Toronto: Irwin Law Inc.,
2011) at 118
54 Copyright Act, RS 1985, c C-42, s 2

13

 In case of cinematograph film, the producer.
 In case of a sound recording, the producer.
 In case of a photograph, the photographer.
 In the case of a computer generated work, the person who causes the work to be

created.

In Godrej Soaps (P) Ltd v Dora Cosmetics Co, the Delhi High Court held that where the carton
was designed for valuable consideration by a person in the course of his employment for and
on behalf of the plaintiff and the defendant had led no evidence in his favour, the plaintiff is
the assignee and the legal owner of copyright in the carton including the logo.

WHEN CREATOR IS NOT THE FIRST OWNER OF THE COPYRIGHT

 WORK DONE IN COURSE OF EMPLOYMENT: As per Section 17 of the copyright act,
1957 the author of artistic is not the first owner, if the work made by the author is
in the course of his employment by an employer a contract of service or
apprenticeship. The rule in general says, copyright in a work made by an employee
in the course of their employment is owned by the employer, unless there is an
express or implied agreement that the employee will own the copyright.55 The
important fact to be kept in mind here is that the creative work should be done in
course of employment i.e. there should be a contract for employment. In the case
of Zee Entertainment Enterprises Ltd. v. Mr. Gajendra Singh and Ors.56 The
honourable court in para 39 laid down the factors identifying a contract
of employment. The court said ‘The factors to be considered. Recent case law
suggests that the factors relevant to the process of identifying a contract
of employment may usefully be listed as follows:
 the degree of control exercised by the employer;
 whether the worker's interest in the relationship involved any prospect of
profit or risk of loss;
 whether the worker was properly regarded as part of the employer's
organisation;
 whether the worker was carrying on business on his own account or
carrying on the business of the employer;
 the provision of equipment;
 the incidence of tax and national insurance;
 the parties' own view of their relationship;
 the traditional structure of the trade or profession concerned and the
arrangement within it.’

55 http://www.lawhandbook.org.au/handbook/ch24s01s02.php
56 2008 (36) PTC 53 (Bom)

14

 ASSIGNMENT: Copyright is assignable to any person who on the basis of
assignment can claim ownership. As per Section 18 of copyright act 1957 the
owner of the copyright in an existing creative work or the prospective owner of
the copyright in a future creative work may assign to any person the copyright
either wholly or partially and either generally or subject to limitations and either
for the whole term of the copyright or any part thereof. Assignment must be in
writing signed by the assignor or by his duly authorised agent. It shall identify the
specific creative works and specify the rights assigned and the duration and
territorial extent of such assignment. It shall also specify the amount of royalty
payable, if any, to the author or his legal heirs during the currency of the
assignment and the assignment shall be subject to revision, extension or
termination on terms mutually agreed upon by the parties.

In the case of Sree Gokulam Chit and Finance Company (P.) Ltd. v. Johny Sagariga
Cinema Square, Proprietary57 concern explaining the meaning and what
constitutes an assignment the court in para 19 said, ‘A careful reading of
Sections 18 and 19 would show that the purpose of assignment is actually to
enable the assignee to exploit the rights that the owner of the copyright has in (i)
the literary, dramatic or musical work (ii) the computer programme (iii) the artistic
work (iv) the cinematograph film or (v) the sound recording. An assignment serves
two purposes. For the assignee, it confers the right of exploitation for a specified
period in a specified territory. For the assignor, it confers the right to receive
royalty. An agreement, the sole purpose of which was just to prevent others from
exploiting the copyrights of the owner and to enable the assignee to get back his
loan, cannot be an agreement of assignment. In an agreement of assignment, the
only right that the assignee has is the right of exploitation. The only right that the
assignor has is to receive royalty. If the assignor does not exploit his rights during
the period of assignment, not only would the assignment lapse on the expiry of the
term, but also the money paid to the assignor would never get repaid. In other
words, the rights conferred by an agreement of assignment on the assignee flow
only one way. While after the expiry of the period of assignment,
the copyrights flow back to the assignor, the royalty paid to the assignor never gets
repaid to the assignee.’

 COMMISSIONED WORK: In the case of a 3D photograph taken, or a 3D painting or
portrait drawn, or an engraving or a cinematograph film made, for valuable
consideration at the instance of any person, such person shall, in the absence of
any agreement to the contrary, be the first owner of the copyright therein.58 Also,

57 2011 (3) CTC 747
58 http://rightsandmarks.org/copyrights.html

15

if the creator has sold the entire copyright, the purchasing business or person
becomes the copyright owner.59

1.9 RIGHTS UNDER SECTION 14 COPYRIGHT ACT, 1957

Today, owners of creative works have extensive legal rights to recover investments
made in the production and distribution of such works. Whenever a person becomes
copyright owner, he/she gets few sets of rights:

ECONOMIC RIGHT: these rights are of economic importance and profits can be gained out of

these. These include:

 Right to Reproduce: The reproduction right is perhaps the most important right

granted by the Copyright Act. Under this right, no one other than the copyright owner
may make any reproductions or copies of the creative work.60

 Right to Prepare Derivative Works like translations and adaptations: The

right to make a derivative creative work overlaps somewhat with the reproduction
right. According to the Copyright Act, a derivative work is a work based upon one or
more pre-existing works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art reproduction,
abridgment, condensation, or any other form in which a work may be recast,
transformed, or adapted. A derivative work usually involves a type of transformation,
such as the transformation of a novel into a motion picture. In the computer industry,
a second version of a software program is generally considered a derivative work
based upon the earlier version.61

 Right to Distribute: The distribution right grants to the copyright holder the

exclusive right to make a creative work available to the public by sale, rental, lease, or
lending. This right allows the copyright holder to prevent the distribution of
unauthorized copies of a work. In addition, the right allows the copyright holder to
control the first distribution of a particular authorized copy. However, the distribution
right is limited by the "first sale doctrine", which states that after the first sale or
distribution of a copy, the copyright holder can no longer control what happens to
that copy. Thus, after a book has been purchased at a book store (the first sale of a
copy), the copyright holder has no say over how that copy is further distributed. Thus,
the book could be rented or resold without the permission of the copyright holder.62

59 http://fairuse.stanford.edu/overview/faqs/copyright-ownership/
60 http://www.bitlaw.com/copyright/scope.html
61 http://www.bitlaw.com/copyright/scope.html
62 http://www.bitlaw.com/copyright/scope.html

16

 Right to Display Publicly (related to artistic works): 63The public display right

is similar to the public performance right, except that this right controls the public
"display" of a work. This right is limited to the following types of works:

o literary works;
o musical works;
o dramatic works;
o choreographic works;
o pantomimes;
o pictorial works;
o graphical works;
o sculptural works; and
o stills (individual images) from motion pictures and other audio visual works.

 Right to Perform Publicly (related to musical or dramatic works): 64The

public performance right allows the copyright holder to control the public
performance of certain copyrighted works. The scope of the performance right is
limited to the following types of works:

o literary works,
o musical works,
o dramatic works,
o choreographic works,
o pantomimes,
o motion pictures, and
o audio visual works.
Under the public performance right, a copyright holder is allowed to control when the
work is performed "publicly." A performance is considered "public" when the work is
performed in a "place open to the public or at a place where a substantial number of
persons outside of a normal circle of a family and its social acquaintances are
gathered." A performance is also considered to be public if it is transmitted to multiple
locations, such as through television and radio. Thus, it would be a violation of the
public performance right in a motion picture to rent a video and to show it in a public
park or theatre without obtaining a license from the copyright holder, keeping in mind
that some commercial benefits are gained from it and it is not used for personal
purpose. In contrast, the performance of the video on a home TV where friends and
family are gathered would not be considered a "public" performance and would not
be prohibited under the Copyright Act. The public performance right is generally held
to cover computer software, since software is considered a literary work under the
Copyright Act. In addition, many software programs fall under the definition of an
audio visual work. The application of the public performance right to software has not

63 http://www.bitlaw.com/copyright/scope.html
64 http://www.bitlaw.com/copyright/scope.html

17

be fully developed, except that it is clear that a publicly available video game is
controlled by this right.

MORAL RIGHT: these rights are given to the author irrespective of the economic importance

of the creation. These include:

 Rights of Paternity: 65The author has a right to claim authorship of his work and can

prevent all the others from claiming authorship of his work. The author also had a right
to demand that his name should appear in all the copies of his work at appropriate
place. He can also prevent others from using his name in their work.

 Rights of Integrity: 66an author has a right to prevent distortion, mutilation or other

alterations of his work, or any other action in relation to the said work which would
be prejudicial to his honour or reputation.

Moral rights are personal rights that connect authors to their creative work. Though they exist
only in relation to copyright material, they are distinct from the economic rights included in
copyright. Moral rights arise automatically and have a legal meaning. The author of a creative
work has moral rights in relation to that work, even if the author is not the owner of the
copyright in the work.67

When a copyright owner transfers the ownership to person or entity that will be responsible
for getting the work to market, the owner typically transfers the rights attached to it. But the
most important point to note here is that the moral rights can never be transferred. Moral
rights will always stay with the original creator of the creative artwork.

1.10 COMMERCIALIZATION OF CREATIVE WORKS AND ROLE
OF COPYRIGHTS68

Economic approaches to creativity have focussed on three aspects - the impact of
creativity on economic growth, methods of modelling markets for creativity, and the
maximisation of economic creativity (innovation).

In the early 20th century, Joseph Schumpeter introduced the economic theory of creative
destruction, to describe the way in which old ways of doing things are endogenously
destroyed and replaced by the new. Some economists (such as Paul Romer) view creativity as
an important element in the recombination of elements to produce new technologies and

65 Ahuja V.K., Law Relating To Intellectual Property Rights, LexisNexis, 1st edn 2007, reprint 2013 pg 40
66 Ahuja V.K., Law Relating To Intellectual Property Rights, LexisNexis, 1st edn 2007, reprint 2013 pg 40
67 http://www.artslaw.com.au/info-sheets/info-sheet/moral-rights/
68 http://en.wikipedia.org/wiki/Creativity

18

products and, consequently, economic growth. Creativity leads to capital, and creative
products are protected by intellectual property laws.

Mark A. Runco and Daniel Rubenson have tried to describe a "psychoeconomic" model of
creativity.69 In such a model, creativity is the product of endowments and active investments
in creativity; the costs and benefits of bringing creative activity to market determine the
supply of creativity. Such an approach has been criticised for its view of creativity
consumption as always having positive utility, and for the way it analyses the value of future
innovations.70

The creative class is seen by some to be an important driver of modern economies. In his 2002
book, The Rise of the Creative Class, economist Richard Florida popularized the notion that
regions with "3 T's of economic development: Technology, Talent and Tolerance" also have
high concentrations of creative professionals and tend to have a higher level of economic
development.

When a creativity is commercialized, there can are chances of misuse and also other aspects
are important like funds, profit sharing, balance of interest etc., needs to be protected. Here
comes the role of copyright.

1.11 OWNING A PIECE (AUTHORSHIP) VERSUS OWNING AN
ART (OWNERSHIP)

Authors are the persons who are the creator of the art form. Owners are the ones who
own the rights under the copyright law. A copyright is the legal right granted to an
artist or distributor for the production, sale, or distribution of an artistic work. In
effect, a copyright marks a level of a degree of ownership and, in its most basic form; a
copyright is secured for a work by its creator or the entity that has paid for its creation.71
Normally, authors are the first owners of the copyright. But in certain situations, author and
owner can be two different people.

COMMISSIONED WORK : In the case of a photograph taken, or a painting or portrait

drawn, or an engraving or a cinematograph film made, for valuable consideration at the
instance of any person, such person shall, in the absence of any agreement to the contrary,

69 Rubenson, Daniel L.; Runco, Mark (1992). "The psychoeconomic approach to creativity". New Ideas in
Psychology 10 (2): 131–147. doi:10.1016/0732-118X(92)90021-Q
70 Diamond, Arthur M. (1992). "Creativity and Interdisciplinarity: A Response to Rubenson and Runco". New
Ideas in Psychology 10 (2): 157–160. doi:10.1016/0732-118X(92)90023-S
71 http://www-cs-faculty.stanford.edu/~eroberts/cs181/projects/digital-art/_columns/ownership-
1a_ownership.shtml

19

be the first owner of the copyright therein.72 Also, if the creator has sold the entire copyright,
the purchasing business or person becomes the copyright owner.73

The author is either the creator of the work or the person who employs someone to create
the work. Many authors do not retain their copyright ownership; they sell or transfer it to
someone else in return for a lump sum payment or periodic payment known as a royalty. In
this way, the author and copyright owner may be two different people.74 FOR EG: The
moment an image is created by an artist, the artist holds and owns the copyright. When a
work of art is sold whether an existing piece or commissioned work for a private collector, the
purchaser is the owner of the actual piece.

Author is only the maker of the artwork whereas owner is the right holder who is entitled to
exploit the work in order to gain economic revenue from it. Another difference between both
the concepts is of transferability. The ownership is transferrable whereas authorship is not.
This can be explained after understanding the rights that an author or owner has.

1.12 INTRODUCTION TO FAIR USE AND FAIR DEALING

1.12.1 HISTORY OF FAIR USE AND FAIR DEALING

Fair use and fair dealing were not born by statute but established as judge-made law,
first by English and later by American judges, who mutually influenced and cross-
referenced each other.75 Fair use and fair dealing’s scope and shape developed
gradually, although the very foundation and rationale were established remarkably early.76
By 1841, when the doctrine made its full appearance in the United States in Folsom v Marsh,77
American courts already had a bundle of precedents to decide the case. “During the
nineteenth century, fair use was a broad concept that encompassed several issues that today
would often be treated separately: for example, it would apply to the copying of non-
protectable facts and ideas as distinct from protectable expressions, to the copying of non-
substantial parts of protected expressions, as well as to permissible copying of substantial
parts of protected expressions.”78 While current doctrine tends to treat these issues as
conceptually distinct, and confine fair dealing to the third, the three are not entirely separate.

72 http://rightsandmarks.org/copyrights.html
73 http://fairuse.stanford.edu/overview/faqs/copyright-ownership/
74 http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law
75 Scott v Stanford (1867), LR 3 Eq 718 at 722 (quoting Story J’s famous formulation of fair use in American law
from Folsom v Marsh, 9 F Cas 342 (CCD Mass 1841), and noting that “[t]he general principles guiding the Court
in cases of this description could hardly be found better stated” than in that case).
76 Id.
77 Folsom v Marsh, 9 F Cas 342 (CCD Mass 1841)
78 Michael Geist, The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of
Canadian Copyright Law,ed., pp 93-156

20

The tests used for determining “substantiality” involve similar questions to those that are
asked in determining “fairness”,79 and whether the work is mainly factual or expressive may
influence the outcome of the fairness analysis.

1.12.2 INDIAN SCENARIO OF FAIR USE AND FAIR DEALING

India's effort to give protection to its Intellectual Property Rights (IPR) holders through the
well-thought of legislation, requires a full revision of the Copyright Act, Fair Dealing and
their relationship to academy and research.

Though we continue to struggle with the copyright implications of new technologies related
to electronic storage and transmission of information, the basic issue of Doctrine of Fair Use
for teaching, research and development could never be clearer. Fresh understanding of the
Copyright Act of 1957 with all its amendments is a need of the day. The concept is better
understood if it can be shown as a well-established age-old view of copyright.

The relationship of copyright and fair dealing can be interpreted in various manners having
diverse interpretations of users' rights. These users may be teachers, reviewers, researchers,
critics, journalists or correspondents, academicians or any other information agents and
information service providers.

The interpretation, even if it is legitimate, may affect the so-called users' objective.
Differences of interpretation result from diverging perspectives on copyright's role to a work.
Legal liability of this interpretation is always weighted against the potential benefits on the
part of the society.

Copyright is a set of legal rights that belong to the copyright owner and are required to be
enforced. This valid opinion is somewhat against the public or social concern. “A compromise
is made for the necessity of limited user rights”.80 “Thus the works of an author which are
considered vital to advancing education and progress of society in terms of growth of
knowledge must be available to the users for the said purpose.”81

In India, the doctrine of fair dealing has been laid down under Section 52 of the Indian
Copyright Act, 1957. The English Copyright Act, 1842 was held to applicable in India by the
Bombay High Court in McMillan v Khan Bahadur Shamsul Ulama Zaka, even when the Act was
not made expressly applicable to India.82 In 1914, the Indian council passed the Copyright Act,
1914 with the goal that thereupon the law of copyright was represented by the Imperial

79 David Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks,2d ed (Toronto: Irwin Law, 2011) at
234
80 Lape L G, Transforming fair use: The productive use factor in Fair Use Doctrine, Albany Law Review, 58
(1995) 677-724
81 Id.
82 McMillan v Khan Bahadur Shamsul Ulama Zaka, (1895) I.L.R. Bom. 557

21

Copyright Act of 1911 which was basically the amplification of the British Copyright Act, 1911.
The Indian legislature; however had a very limited power of modification and addition. Fair
dealing was first statutorily introduced in 1914 as a mere duplication of Section 2(1)(i) of the
UK Copyright Act, 1911, providing that copyright would not be infringed by ‘any fair dealing
with any work for the purposes of private study, research, criticism, review or newspaper
summary’.

The current Indian copyright statute i.e., the Indian Copyright Act was passed in 1957 as an
independent and a self-contained law. Even the new legislation had extensively copied, both
textually and in basic principles, from the new UK Copyright Act, 1956. However, the scope of
fair dealing was increased in the new Copyright’s Act, 1957. A fair dealing with any work for
the purposes of radio summary or judicial proceeding was hereafter proclaimed not to
constitute an infringement of copyright. From 1957 up till now, fair dealing has been amended
thrice. The first minor amendment brought to Section 52 was by the Copyright Amendment
Act 1983 (23 of 1983) whereby an explanation below sub clause (ii) of clause (b) was inserted
which was, however, carefully amended by the Copyright Amendment Act, 1994. Activities
like private research and dealing with computer programmes and their copying by a lawful
possessor were incorporated into the provision and making sound recordings of any literary,
dramatic and musical works in certain circumstances were declared to constitute fair dealing.
The latest amendment brought to Section 52 was in the year 1999, which again sought to
address issues relating to computer programmes.

1.12.3 MEANING OF FAIR DEALING

A fair dealing with a literary, dramatic musical or artistic work for the purpose of
research or private study or criticism or review, whether of that work or any other
work shall not constitute an infringement of copyright.83

The nature and source of the doctrine of fair use- there is no agreement in the nature of the
doctrine. Broadly speaking it can be viewed as a limitation on the right of the author granted
under the statute, or as a defence to infringement. Furthermore three distinct sources are:

One source is sought in the presumed intention of the author to allow certain use of hi work.
This presumed intent is obviously a fiction. Authors, being human, would prefer to have
absolute control over the use of their works. While the intent can be reasonably inferred in
many cases, the fiction becomes strained in others, and, if treated as the sole source of the
doctrine may lead to serious misunderstanding. A theory closer to reality would be more
desirable and other theories are available.

83 Roger Needham, Tape Recording Photocopy and for use, published in copyright Law symposium No. 10 at
pp. 77.

22

Another approach is to derive the doctrine of fair use from the doctrine of de minimis nin
curat lex. Again this theory has utility in some cases but it cannot explain those in which a
large amount of copyright is permitted.

The third approach is to derive the doctrine from the constitutional policy. This theory is best
expressed in the words of the Judge Levet:84

“since the copyright act is intended to afford encouragement to the production of literary
works reward to the owner in a secondary consideration…accordingly, subsequent authors,
publishers and the general public may use a copyrighted work in a reasonably manner without
the consent of the author on the theory that such use constitutes ‘fair use’ of the copyrighted
material”

According to the Judge Palmier:

“the general purpose of copyright protection are to afford authors the right to reap the fruits
of their expressions and to promote the store of information and objects of culture available
for public enjoyment and application. Usually these two purposes are not inconsistent. When,
however an author’s monopoly threatens to infringe unduly on public use of the ideas or
objects of that expressions, the Courts have demonstrated flexibility in adjusting the
conflicting theories. Thus copyright ability may all together be denied, or, if copyright is
upheld, restrictively protected by requiring almost verbatim copying to constitute
infringement. In other situation, the subject and purpose of copyright may be explicitly defined
so as not to authorize disclosed information or objects.”85

1.12.4 DEFENCE OF FAIR DEALING

The right to quote directly from a copyrighted work is called the right of fair use, it is a
product of purely judicial process- processes which were designed to aid just such
persons as the scholar, lawyer, or physicians who rely on accumulated or knowledge
facts in their arts. The use of such material is considered as fair when it is reasonable.86

This word reasonable is very familiar to a lawyer, but it frightens the layman: it seems
indefinite, so changeable. But it is exactly this indefiniteness and adaptability that makes it so
useful. It catches the crook and protects the scholar. The courts have, however, developed
some criteria for determining what a reasonable use of copyrighted material is.

In Johnstone v Bernard Jones Publication ltd87 the plaintiff was the author of the two original
literary works, one of which was published in 1934 and it was called “A Summary of some

84 Continental Casualty Co. v Beardsley, 151 F. Supp. 28, 31-32 (S.D.N.Y. 1957)
85 Continental Casualty Co. v Beardsley, 151 F. Supp. 28, 31-32 (S.D.N.Y. 1957)
86 Warren v White & Wyckoff Mfg. Co., 39 F 2d 922 (S.D.N.Y. 1930)
87 [1938] 2 All E.R. 37.

23

systems and Tables in dealing with the Three Alternative Possibilities or Results applied to
Cross-words, Pictures and Pools”, the second of these works was called “the Systematic
Football Betting”. It was a booklet containing 128 pages, and it was published in 1935. It is
not now disputed that the plaintiff is, and has at all material times been, the owner of the
copyright in these two booklets. A material part of each booklet is certain mathematical tables
by the use of which an entrant for football pools is enabled to arrange his entries in what is
thought to be an advantageous manner. The two literary works in question have had quite a
wide circulation, and the plaintiff, in addition to having written those booklets, is a regular
contributor to a publication known as Racing and football outlook. He has published many
articles in that paper in regard to his system, and these articles. There is no doubt, caused
very general interest among persons who enter football pools. On page 24 of its issue of the
football forecast of 1st December, 1936, a letter was published headed those penny pools.
Tables again, and it purported to be signed by “R.I.H Birmingham”. It is the publication and
printing of that letter which is said to be an infringement of the plaintiff’s copyright. It is said,
and it is clearly established, that a table appearing in that letter and headed Reduced
Permutation Table is in substance a reproduction of Table which appeared in each of the
Plaintiff’s two booklets. If a work is taken and reproduced and criticisms are offered upon that
work, it is not necessary, in order to bring the case within the proviso that the name of the
author should be referred to in terms. If the work is set out and is criticised, that is enough to
bring the matter within the words of the section, so far as the purposes of criticism are
concerned. Then, of course, one has to consider the question of whether this is a fair dealing
for the purpose of criticism. The Table in question as being a reproduction of the plaintiff’s
work, that is by no means inconsistent with his taking the view that the letter, as it stood,
being in the form of criticism, was not an infringement of copyright.

Infringement of copyright has to be tested on visual appearance of the drawing and object in
question. The purpose, functional utility, efficacy of different parts and components of the
object of the material of which they may be made are irrelevant for the purpose of
copyright.88

Where the plaintiff was political and lobby correspondent of the Observer newspaper, which
is owned by the Observer Ltd., the first defendant, Pressdram LTd., is the publisher and the
second defendant, Leo Thorpe the is the publisher in an article in Private Eye of an internal
Observer Office memorandum written by the plaintiff. The alleged infringement is in the case
of the first defendant by publishing and in the case of the second defendant for conversion in
respect of copies of the article infringing the defendants, for an injunction against future
infringement and damages for the breach of copyright, together with in the case of the first
defendant only, statutory and aggravated and exemplary damages, for conversion and
delivering up of infringing material.

88 John Richard Brady v Chemical Process Ltd., AIR 1987 Delhi 372 at pp. 382

24

As to the plea of fair dealing the court observed the relevant fair dealing with the
memorandum for the record approved purposes. It is fair dealing directed to and
consequently limited to and to be judged in relation to the approved purposes. It is dealing
which is fair for the approved purposes and not dealing which might be fair for some other
purposes of fair in general. Mere dealing with the work for that purpose is not enough: it must
also be dealing which is fair for that purpose whose fairness must be judged in relation to that
purpose.89

1.12.5 JUDICIARY ON FAIR DEALING

The Indian Copyright Act under Section 52 carves out fair dealing from copyright
infringement as affirmative defences, and places the burden of proving the defences
onto the user once the copyright owner establishes prima facie infringement by
substantial copying of expression. However, the fair dealing cases in India do not always
establish prima facie infringement before considering the application of fair dealing.90 The
first issue in these cases, following the text of the Copyright Act, is the definition of fair
dealing. As the Act does not define fair dealing, the Indian courts have heavily referred to the
English authority of Hubbard v Vosper91 which contained the oft-quoted definition of fair
dealing by Lord Denning:

“It is impossible to define what is ‘fair dealing.’ It must be a question of degree. You must
consider first the number and extent of the quotations and extracts…..Then you must consider
the use made of them…….Next, you must consider the proportions…...Other considerations
may come to mind also. But, after all is said and done, it must be a matter of impression”

Also, the enumerated purposes under Section 52 have been typically interpreted as
exhaustive, inflexible and certain, since any use not falling strictly within an enumerated
ground is considered an infringement.92 The courts have time and again restated that it is
impossible to develop a ‘rule of thumb’ for cases of fair dealing as each case depends upon in
its own facts and circumstances. As the courts in India have analysed the doctrine of fair
dealing, in which they drew primarily from UK and US approaches, they recognized certain
factors that may be more or less relevant in fair dealing cases and which are not provided by
the Indian copyright statute.

In RG Anand v Delux Films and Ors,93 the Indian Supreme Court while recognizing the idea-
expression contradiction held that in an idea there cannot be a copyright, subject-matter,
themes, plots or historical or legendary facts and violation of the copyright in such cases is

89 Beloff v Pressdram Ltd. (1973) 1 All ER 241 at pp. 245-246.
90 Civic Chandran v Ammini Amma, 1996 PTC 16 670.
91 Hubbard v Vosper, (1972) 1 All ER 1023 p. 1027
92 Blackwood and Sons Ltd and Others v AN Parasuraman and Ors, AIR 1959 Mad 410 Para 84 and Civic
Chandran ,1996 PTC 16 670.
93 RG Anand v Delux Films and Ors, [1979] 1 SCR 218

25

confined to the form, manner and arrangement and expression of the idea by the author of
the copyrighted work. The Court further held that where the same idea is being developed in
a different manner, it is apparent that the source being common, similarities are bound to
occur and therefore in such a case the courts should look whether or not the similarities are
on fundamental or substantial aspects of the mode of expression adopted in the copyrighted
work.94 In other words, in order to be illegal the copy must be a substantial and material
reproduction of expression and not merely of an idea. Therefore, the question of fair dealing
defence does not arise in case a copying is made of an idea as that would not, at all, constitute
a copyright infringement.

“However, the issue of substantiality is the subject of two different concerns. First, there is no
copyright infringement unless there is substantial taking. Second, once there is prima facie
copyright infringement, whether a use is fair is partly determined by the substantiality of the
taking as one of the factors.”95 Therefore, for fair dealing to apply, the use must be substantial
enough to render an infringement, and for the use to be fair, it must not be too substantial.
However, in Indian jurisprudence, the courts have been unable to separate the two very
different inquiries. In either case, however, generally, Indian courts have applied both
quantitative and qualitative test of substantiality and the literal number of words copied has
not been held to be a determinative factor.96 The courts have recognized that the permissible
quantum of extracts or quotations will depend upon the facts of each case.

In Blackwood case, which involved the reproduction of the work in the form of guides, the
court rightfully held that the alleged infringer’s intention is an important but not a decisive
factor in determining whether the work in question was copied so substantially that the
copying would amount to negative fairness.97

The Court took a peculiar stand in SK Dutt v Law Book Co and Ors, where the dispute was
based on the use of certain quotations from a work. The Court interpreted the fact of
acknowledgement by the authors of the plaintiff's material to mean that, had the authors
made any other use of the plaintiff's book in compiling their own book, they would have
acknowledged it; thus, the copying was held not to be a substantial taking.

According to the Indian courts, while a review may summarize the original work and present
it for scrutiny to a third person so that one can get an idea about the work; a criticism may
discuss the merits and demerits of the work and a guide may seek to enable students of the
original work to better understand it from the point of view of examinations but, on the other
hand verbatim copying cannot be provided any shield under the copyright regime.98 A

94 Id.
95 Lape L G, Transforming fair use: The productive use factorin Fair Use Doctrine, Albany Law Review, 58 (1995)
677-724.
96 Blackwood Case, AIR 1959 Mad 410 Para 71
97 Id.
98 Ramesh Chaudhary and Ors v Ali Mohd, AIR 1965 J&K101.

26

commentary has been held to be an expression of opinion or a set of explanatory notes on a
text. American courts have further developed the factor of purpose and character by adding
to the facet of ‘transformative character of the use’.99 This means that a mere reproduction
from the original in a mechanical manner lacks the necessary element of being
transformative.100 Remarkably, the Indian Supreme Court, presciently in its judgment in
Anand’s case pronounced a principle resembling the ‘transformative work’ doctrine which
was developed in the United States much later. It held that:

“Where the theme is the same but is presented and treated differently so that the subsequent
work becomes a completely new work, no question of violation of copyright arises”

In V Ramaiah v K Lakshmaiah,101 where the question that whether the Act of the respondent
in writing the guide is an infringement of the copyright, the courts were cautioned to keep in
mind that defendants pleading fair dealing should not have used the work without out making
any independent contribution, in other words, the work must have been transformative.

The Court in Chancellor masters102 case, which again concerned copying for the purpose of
guide books, had laid down that while dealing with the issue of fair dealing, a Court should
ask whether the purpose served by the subsequent (or infringing) work is substantially
different (or is the same) from the purpose served by the previous work. To be called
transformative, the subsequent work must be different in character; it must not be a mere
substitute, in that, it not necessary that only superficial changes are made, the basic character
remaining the same.103 “This determination, according to the Court, is closely knit with the
other three factors, and therefore, central to the determination of fair use, i.e., if the work is
transformative, then it might not matter that the copying is whole or substantial. Again, if it
is transformative, it may not act as a market substitute and consequently, will not affect the
market share of the prior work.”104

The courts have generally taken a mild stand on guides so far as the purpose of the guide is
only to help the students to understand the meaning, significance and answers that have to
be written for the questions therein. Thus, it falls four squarely under fair dealing with a
literary work for purpose of private study bona fide intended for the use of educational
institutions.105 But the Court in Blackwood case declined to hold that guides constitute a
‘criticism’ of the copyright works.

99 Campbell v Accuff- Rose Music, 510 US 569 (1994)
100 Syndicate press of University of Cambridge v Kasturilal and Sons, 2006 (32) PTC 487 (Del) Para 7
101 V Ramaiah v K Lakshmaiah, 1989 (9) PTC 137
102 Chancellor Masters Case, 2008(38) PTC 385(Del) Para 28.
103 Id.
104 Id.
105 V Ramaiah v K Lakshmaiah, 1989 PTC 137

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in Syndicate of the Press of the University of Cambridge and Anr v B D Bhandari106 and Anr,
the Court while holding the work of the defendants to be transformative and not merely a
substitute for the book of the plaintiff was reluctant to issue an injunction order because of
the large scale use of such guide books and dependence thereon by students.

On the other hand, in Syndicate press of University of Cambridge v Kasturilal and Sons,107
the Court went ahead to hold that even if it is assumed that the defendant's work could have
enabled students to give effective answers in examinations, such a situation cannot permit
copying verbatim texts of the original work.

In Rupendra Kashyap v Jiwan Publishing House,108 where the defendant was involved in
publishing question papers of the CBSE's examinations, to which, the plaintiff contended to
hold an exclusive license, the Court has very explicitly held that the law as to copyright in India
is governed by a statute which does not provide for defence in the name of public interest.
An infringement of copyright cannot be permitted merely because it is claimed to be in public
interest to infringe a copyright.

In Super cassette Industries v Nirulas Corner House (P) Ltd,109 where the plaintiff alleged
copyright infringement on the ground that few audio clippings of songs in which they owned
copyright were played on the television in an enclosed room of the defendant's hotel, the
Court, while rejecting the defence of fair dealing in terms of Section 52(1)(k) ) held “that the
two categories 'hotels' and 'similar commercial establishment' gives a clue to Parliamentary
intention to exclude the operation of such categories of establishments from the benefit of
what are obviously deemed not infringements and that such provisions should receive a
restricted interpretation, having regard to the nature of the expressions used.”110 These
provisions were held to be pointers to the legislative intent of treating use of televisions and
sound recordings, in hotels as communications to the public as opposed to a private purpose,
even if played in an enclosed hotel room. Therefore, the Court declined to extend the law
beyond its meaning to take care of any supposed broader legislative purpose.

It can be inferred from this that though the courts have utilized the American factor of
purpose and transformative character but in spite of that, the courts have also stuck to the
language used in the statute, by strictly adhering to purposes enumerated in the act and
interpreted the provisions in a restricted manner. Also, the Indian courts have not taken
consideration for other factors such as necessity. Thus, such a rigid approach by the courts
has failed to introduce the element of flexibility contemplated under the American fair use
doctrine.

106 University of Cambridge and Anr v B D Bhandari, MIPR 2009 (2) 60 Para 8
107 University of Cambridge v Kasturilal and Sons, 2006 (32) PTC 487 (Del) Para 7.
108 Rupendra Kashyap v Jiwan Publishing House, 1996 (38) DRJ 81 Para 24
109 Super cassette Industries v Nirulas Corner House (P) Ltd, 148 (2008) DLT 487 Para 20
110 Id.

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The Indian courts have borrowed the US born, ‘factor analysis method’ in the assessment of
fair dealing, the Indian judiciary has only considered issues concerning fair dealing in each
case in a limited context. The courts have not been able to explore other factors, such as, bad
faith because they have not come at issue. Though such factors may not have been expressly
highlighted as a potential factor, this silence, however, does not mean that such factors
cannot feature in future cases.

Rather than incorporating fair use by the introduction of factor analysis method in the Indian
Copyright Act, Indian courts should rather seek to build on the distinctive features of its fair
dealing regime, such as its policy preoccupations and other factors (in addition to those
incorporated in the US code) for determining fair dealing that helps introduce the element of
flexibility.

1.12.6 FAIR USE: COMPARING US, UK AND INDIAN COPYRIGHT

In its definition of copyright, the US Copyright Office states that "copyright ... has come to
mean that body of exclusive rights granted by law to copyright owners for protection of
their work." Indian law, on the other hand, supplies a statutory definition of copyright in
section 14 of the Copyright Act of 1957.

On a general level, copyright is a positive privilege that grants exclusive rights to the author
of a copyright or authorizes others to benefit from a copyrighted work. It is interesting that
the US, unlike any other nation, in its Constitution, under Article 1, § 8, Clause 8, the Copyright
Clause, refers to copyrights in the same breath as patents. Patents, unlike its constitutional
co-existent, are a negative right to prevent others from exploiting a patented invention.

Copyright gives a heap of restrictive rights to the creator of a copyrighted work with respect
to the reproduction of the work, and other specified acts, to empower the creator to
appropriate money related profits by practicing such rights and accordingly encourage
innovation. Provided that an individual without due consent practices any of the rights within
the bundle of rights given by the Copyright Act, then such an enactment is an encroachment
upon the creator's copyright in the work. Copyright infringement is statutorily defined in both
India and the US. Like other legal rights, copyright too is not absolute but is subject to limits
and exceptions. The legal framework of copyright does not absolutely prohibit the use of a
copyrighted work, but, in fact, allows a person to use a copyrighted work under certain
exceptions. One such exception is "fair use." The term fair use, although undefined under
both US and Indian copyright law, has its spirit captured in legislation, with the judicially
derived factors being listed under 17 USC § 107, and § 52 of the Copyright Act of 1957,
rendering "certain acts not amounting to infringement."

Before we indulge deeper into the discussion of fair use and jurisdictional differences, it is
essential to understand the fundamentals of fair use. Fair use is an exception to the rights of

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the author which allows limited use of copyrighted material without the author's permission.
For instance, fair use does not allow reproduction of a whole work or a substantial part of
such work, but, rather, extracts or quotations from the work are permitted, such that they do
not appear to snatch the first author's expression of his or her idea. If, in a statutory
construction, there is no notion of fair use then any use by an unlicensed person, however
tiny, is an infringement on the rights of the author. To be clear, any unauthorized use of a
copyrighted work is normally an infringement and fair use acts as a defence thereof — the
defence of fair use does not necessarily mandate a non-infringing action. The unlicensed user
admits that he has used the work, which would normally constitute copyright infringement,
but justifies his use as covered within the fair use exception.

There is a minor difference in terminology with regard to the concept of fair use in the US and
India. US law uses the term "fair use," while British and Indian law uses the term "fair dealing."
The earliest discussion of fair dealing can be traced to Gyles v. Wilcox, a decision from the
Court of Chancery in England in which Lord Chancellor Hardwicke introduced the notion of
"fair abridgment." In the US, Justice Joseph Story laid the foundation for the notion of fair use
and abridgment in Folsom v. Marsh with a four-factor test. Today, it stands as the basis for
the fair use doctrine now codified under US law. However, from the Folsom decision in 1841
until the enactment of the Copyright Statute, 17 USC § 107, in 1976 that incorporated the
four-factor test, fair use in US law was only a common law doctrine. One of the earliest Indian
cases to discuss unfair use within the domain of copyright was Macmillan and Company v. K.
and J. Cooper, which was decided based on the India's earlier Copyright Act of 1914.

The statutory framework for fair dealing in India follows the common law and, as noted
earlier, does not define fair dealing per se. The legal provision for fair dealing provides that:

The following acts shall not constitute an infringement of copyright, namely:

(a) A fair dealing with a literary, dramatic, musical or artistic work for the purposes of —

 research or private study;
 criticism or review, whether of that work or of any other work;

(b) A fair dealing with a literary, dramatic, musical or artistic work for the purpose of
reporting current events —

 in a newspaper, magazine or similar periodical or
 by broadcast or in a cinematograph film or by means of photographs.

The publication of a compilation of addresses or speeches delivered in public is not a fair
dealing of such work within the meaning of this clause. Thus, Indian law allows fair dealing as
a defence for specific acts that would not be deemed as infringement for the four specified
categories of copyrighted works (viz. literary, dramatic, musical and artistic works).

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US law, in contrast to Indian law, does not specify acts which would be considered fair use;
rather it gives a four factor test that must be considered to assess whether an action of
exploitation by the person falls within the ambit of fair use. The statutory language provides
that:111

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or phone records or by any other means specified
by that section, for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a work in any particular case is a fair use
the factors to be considered shall include:

 the purpose and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes;

 the nature of the copyrighted work;
 the amount and substantiality of the portion used in relation to the copyrighted work

as a whole; and
 the effect of the use upon the potential market for or value of the copyrighted work.”

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is
made upon consideration of all the above factors.

The US statute provides a "test" for assessing whether a particular use lies in the ambit of fair
use, as against an exhaustive list of activities that constitute exceptions to copyright. The test
appears to be applicable across the board, irrespective of the nature of the work protected
by copyright.

In a quick comparison of the legislative structures and the interpretations thereof, one may
argue that the US route gives judges more freedom to assess "fair use" .On the other hand,
the Indian boundaries defined for "fair dealing" appear to be more common and friendly to
the common man. This being said, however, it appears that the US test may tend to ignore
the commercial implications that fair dealing might have upon such use of a work. The
balancing act, at least for the Indian legislation, appears to have been found in the conjoint
application of the two. Indian courts have now, incorporated vide reference, the Folsom v.
Marsh112 test, while adjudging, if fair dealing was in fact "fair" to the real commercial
implications that the author suffers. “This is walking a fine line, whereby, the exception
enumerated in the legislation needs to be satisfied, before the quantitative estimations of the
impact of the fair dealing upon the qualitative exercise of the author's right can be
analysed.”113 “It appears that, just as the Berne Convention made copyright a sort of universal

111 §107 of the USCA
112 Folsom v Marsh, 9 F. Cas. 342, 348
113 Narayanan, P., Copyright and Industrial Designs (Calcutta: Eastern Law House, 2nd ed., 1995) § 15.37.

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right, the developing jurisprudence surrounding fair use and fair dealing is bringing about
parity in the stance that nations take towards protecting rights of intellectual property owners
— thus leading to possible uniformity in the manner courts across different jurisdictions are
likely to adjudicate disputes.”114

1.12.7 UK LAW: FAIR DEALING

Among the exceptions to copyright infringement are the fair dealing provisions that are
codified in section 29 and 30 Copyright Design and Patent Act, 1988. Pursuant to these
provisions, a person is not liable for copyright infringement, if his act amounts to fair
dealing for the purposes of non-commercial research or private study (s. 29(1), 29(1C)), for
the purposes of criticism or review (s. 30(1)), or for the purpose of reporting current events
(s. 30(2)). “One characteristic of fair dealing is that it is only permitted for the purposes listed
in the CDPA which means that it is irrelevant whether the dealing is fair in general or fair for
a purpose not specified in the Act.”115 If a dealing falls within one of the purposes specified in
the CDPA, its fairness must then be shown. “What is fair is however not defined in the Act. It
is rather a question of degree and impression.”116 “Guidance can nevertheless be drawn from
case law which has developed factors that are considered relevant to determine fairness. The
importance given to each of these factors depends on the circumstances surrounding the
infringing act and therefore varies according to the case in question.”117 Among the factors
are the quantity and quality of what has been taken from the copyrighted work,118 the use
made of the work in question, particularly the question whether the alleged fair dealing is
commercially competing with the copyrighted work,119 and the motives of the alleged
infringer.

1.12.8 DOCTRINE OF FAIR USE: GLOBAL VIEW

Limitations and exceptions to the exclusive rights granted to authors or owners are
regulated by a number of international treaties. These international treaties are the
indications of harmony in the global view of copyright world.

Art 9(2) of the Berne Convention authorizes the national legislation to allow the reproduction
of protected work 'in certain special cases' under the following two conditions:

 Reproduction does not conflict with normal exploitation of the work; and

114 Id.
115 Beloff v Pressdram, (1973) 1 All ER 241 (262) (Ungoed-Thomas J)
116 BBC v BSB Ltd, (1992) Ch 141 (149) (Scott J)
117 Id.
118 Hubbard v Vosper, (1972) 2 QB 84 (94) (Lord Denning MR)
119 Newspaper Licensing Agency v Marks & Spencer, (2001) Ch 257 (280) (Chadwick LJ)

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 Reproduction does not unreasonably curb the legitimate interest of the author (Berne
Convention, 1983).

Art IV, Paragraph 2 of the UCC allows the Member States for exceptions to the rights of a work
under the conditions:

 They do not conflict with the spirit and provisions of the Convention;
 They accord a reasonable degree of effective protection to each of the rights - namely

reproduction right, the public performance right and the broadcasting right.

Both views support each other. Limitations and exceptions to copyright are named "Fair
Dealing" doctrine in many countries including India, and "Fair Use" doctrine in United States.
American concept of "fair use" is a bit more flexible compared to its sister "fair dealing"
doctrine.

The copyright as a legal concept was introduced in the United Kingdom's Statute of Anne in
1709. During the course of time, the Court created a doctrine of "fair abridgement" for
authorized reproduction, which later became known as "fair dealing". This law cannot be
applied to any act which does not fall within one of the permitted use categories.

Doctrine of Fair Use tries to achieve a socially optimal level of protection to provide the
rightful owner his due while leaving the public with sufficient information vital for the
progress of the society. Thus the right of the owner can be violated to facilitate education,
research and dissemination of knowledge for social, economic and cultural progress.

Under the United Kingdom's Copyright, Designs and Patents Act, 1988 (CDPA), "fair dealing"
is defined as "private study and criticism and review and news reporting" (S 29, 30). In case
of review and criticism, one precondition of fairness being that the source should be
sufficiently acknowledged. Again the 2003 amendment reduced the research fair dealing
exception to non-commercial research only.

Under Crown - the Australian Copyright Act, 1968, the grounds of fair dealing are as follows:

 Research and study
 Review and criticism
 Reporting the news
 Legal advice.

The rule of fair dealing in Canada is the same or similar to UK and Australia to some extent.

Under the provisions of fair dealing in the Copyright Act, Chapter 63 of Singapore Statutes, a
certain amount of copying for the purpose of research or education is permissible as long as
it is a "fair dealing". Again, a fair dealing for the purpose of criticism or review, reporting of
news, judicial proceedings or professional advice would not constitute an infringement.

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In the United States, the fair use doctrine is codified in Copyright Act, 1976 under Section 107.
The Act also considers the factors to be considered in determining whether the use made of
a work in any particular case is a fair use or not.

Article 14 of Indonesian Copyright Act keeps special provision of using or copying an official
symbol of state and national anthem with the original character.

The global view of fair dealing is an enumerated set of possible defences against an action for
infringement of an exclusive right of copyright. Though United States and India have a bit
different concept of fair dealing, but most of the countries around the globe are in unison as
far as factors related to teaching and education is concerned.

1.13 FAIR USE AND PARODY

1.13.1 US LAW FOR PARODY

The most complete judicial analysis of the fair use factors vis-à-vis parodies is found in
Campbell v. Acuff-Rose Music, Inc.120 (referred to as Campbell). The facts of the case
are as follows: In 1964, Roy Orbison and William Dees wrote and recorded “Oh, Pretty
Woman”. The rights to the song were assigned to Acuff-Rose Music Inc., which subsequently
registered the song for copyright protection. In 1989, Luther Campbell, lead vocalist and song
writer for an obscure band called 2 Live Crew, wrote a version of the famous song, substituting
its lyrics with ones which were obscene. Subsequently, Campbell’s music production
company, Luke Records, released an album which included the parody. The credits on the
album recognized Orbison and Dees as the writers and Acuff-Rose as publisher of the original
song. The general manager of Campbell’s music production company, Luke Records, had
offered to give due credit for ownership and authorship of the original song to Acuff-Rose
Music Inc., and also to pay a fee for its use, but Acuff-Rose declined to grant permission.
Undeterred, 2 Live Crew continued to sell the album. Acuff-Rose contended that the lyrics
were either inconsistent with good taste or would mock the future value of its copyright.121

Before Campbell reached the Supreme Court, the Sixth Circuit, relying on Sony Corporation
of America v. Universal Studios122, (referred to as Sony) and reversing the district Court’s
decision, held that the song was not a fair use and thus, constituted copyright infringement.
In Sony, the Court had commented that commercial use creates a presumption against fair

120 Campbell v. Acuff-Rose, 510 U.S. 569 (1994).
121 Acuff-Rose Music, Inc. v. Campbell, 754 F. Supp. 1150, 1152 (M.D. Tenn. 1991).
122 Sony Corporation of America v. Universal Studios , 464 U.S. 417 (1984).

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use.123 Relying on this, the Sixth Circuit emphatically concluded, “its blatantly commercial
purpose prevented the derivative work from qualifying as fair use.”

However, when the case reached the Supreme Court, Justice Souter, the author of the
majority decision, rejected the Sixth Circuit’s decision that all commercial parodies are
presumptively unfair. The Supreme Court also rejected 2 Live Crew’s argument that all
parodies should be considered presumptively fair. The Court held that every parody must pass
the test of fair use, and applied the factors set out in Section 107 of the Copyright Act to the
parody in question.

Of the four fair use factors, it was the first one that the Campbell Court singled out for the
most comprehensive analysis. The Court defined parody as “the use of some elements of a
prior author’s composition to create a new one that, at least in part, comments on that
author’s work.”124

According to the Court, the relevant question is, to what extent the new work is
transformative, i.e., to what extent the new work alters the original with new expression,
meaning, or message. The more transformative the new work, the less will be the significance
of other factors that may weigh against a finding of fair use. Justice Souter found that 2 Live
Crew’s version rose to the level of parody by virtue of its comments on the naïveté of the
original; since it “juxtaposes the romantic musings of a man…with degrading taunts, a bawdy
demand for sex, and a sigh of relief from paternal responsibility.”125

Downplaying the importance of the commercial use factor which the Sixth Circuit’s decision
had stressed upon, Justice Souter disapproved of the Sixth Circuit’s “elevation of one sentence
from Sony to a per se rule”.126 The Court was of the opinion that the correct interpretation of
Sony is that a commercial use as opposed to a non-profit use is merely “a separate factor that
tends to weigh against a finding of fair use…[and] the force of that tendency will vary with the
context.”127

The Court did not devote much attention to the second fair use factor, which called for an
inquiry into the nature of the copyrighted work, and held that this factor in the parody context
was not much help “since parodies almost invariably copy publicly known, expressive
works.”128

123 Id.
124 Narayanan, P., Copyright and Industrial Designs (Calcutta: Eastern Law House, 2nd
ed., 1995) §
15.37..
125 Supra Note 14.
126 Supra Note 14.
127 Supra Note 14.
128 Supra Note 14.

35

Regarding the third factor, which mandated an inquiry into the quantity of the work copied,
the Supreme Court agreed with the Sixth Circuit’s holding that 2 Live Crew had taken the heart
of the original, but held that this was permissible, since “the heart is also what most readily
conjures up the song for parody.

As far as the market substitution test was concerned, the Court held that a parody, “like a
scathing theatre review”, does not fall foul of the fourth factor merely because it may have a
detrimental effect on the market of the original. Instead, the relevant enquiry is whether the
parody can act as a substitute for the original and therefore diminish demand for the original.

“The Court noted that such substitution was unlikely, since the original and the parody usually
serve different markets.”129 Analysing the facts of the case, the Court found that 2 Live Crew’s
version did not harm the market for the original.130 The Supreme Court majority thus found
that the Sixth Circuit had erred on its analysis of three of the four factors, and dismissed the
other as being of little assistance to the fair use analysis of parody. Based on this conclusion,
the Supreme Court reversed the Sixth Circuit’s grant of summary judgment and remanded for
further proceedings consistent with the opinion. The Supreme Court’s unanimous opinion in
Campbell has been hailed as a “significant victory for would-be parodists”,131 having the
potential to significantly advance freedom of expression within the framework of
constitutional and statutory copyright.

Out of the subsequent American cases on parody, the Court found in favour of the plaintiff in
Dr. Seuss Enterprises v. Penguin Books USA, Inc.,132 and in favour of the defendant in Leibovitz
v. Paramount Pictures Corp. (referred to as Leibovitz),133 and Suntrust Bank v. Houghton
Mifflin Company.134 It is important to note that all these cases arrived at their respective
conclusions by applying the test formulated in Campbell. The United States judiciary has
remained scrupulously faithful to the Campbell ratio.

1.13.2 INDIAN SCENARIO ON FAIR USE AND PARODY

The fair use defence in India is provided for in Section 52 of the Indian Copyright Act,
1957, which stipulates, inter alia, that a fair dealing with a literary work for the purpose
of criticism or review, whether of that work or of any other work shall not constitute
infringement of copyright.

129 Supra Note 14.
130 Supra Note 14.
131 Fox, J. M., “The Fair Use Commercial Parody Defense and How to Improve It”, (2006) 46 IDEA
619, 628
132 Dr. Seuss Enterprises v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir.), cert. dismissed, 118 S. Ct. 27
(1997).
133 Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998)
134 Suntrust Bank v. Houghton Mifflin Company, 268 F.3d at 1257 (11th Cir. 2001)

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It has been observed in M/s. Blackwood & Sons Ltd. v. A.N. Parasurama135 that “in order to
constitute a fair dealing there must be no intention on the part of the alleged infringer, to
compete with the copyright holder of the work and to derive profits from such competition
and also, the motive of the alleged infringer in dealing with the work must not be improper.”136

Thus, to successfully avail of the fair use defence in India, a parodist has to satisfy two
conditions:

 he must not intend to compete with the copyright holder and
 he must not make improper use of the original.

“The first condition, which is essentially the market substitution test, is easily proved, as most
parodies do not seek to compete with the original but merely to ridicule or criticize the original
in a manner that exposes its flaws.”137 As far as the second condition is concerned, it is
doubtful as to what is meant by improper use and whether a parody is an instance of such
use. In order to answer this question, reference may be made to the Kerala High Court
judgment in Civic Chandran v. Ammini Amma (referred to as Civic Chandran).138

“The artistic work challenged in Civic Chandran was not a parody as such, but a counter drama,
as expressively termed by the Court.”139 “The original work in question was Ningal Enne
Communistakki – a well-known drama written by Thoppil Bhasi, a famous Malayalam
playwright.”140 The play dealt with some of the burning social and political problems of those
days, specially espoused by the Communist Party of India before its split, and had
considerably aided the undivided Communist Party of India to come to power in Kerala in the
1957 assembly elections. “On the other hand, the counter drama written by the appellant,
Civic Chandran, was intended to convey the message that though the party had succeeded in
coming to political power, it had forgotten the depressed classes who were instrumental in its
success, and who had made substantial sacrifices for the party.”141 The counter drama used
substantial portions of the original, with some alterations required for its purpose. The
characters and dialogues in the original were also reproduced in some instances.

“The Court held that the reproduction was not a misappropriation for the purpose of
producing a play similar to the original. Rather, the purpose was to criticise the idea
propagated by the original drama, and to expose to the public that it had failed to achieve its

135 M/s. Blackwood & Sons Ltd. v. A.N. Parasurama, AIR 1959 Mad. 410.
136 Id.
137 Rahul Saha, Sryon Mukherjee, Not So Funny Now it is? The Serious Issue of Parody in Intellectual Property
Law.
138 Civic Chandran v. Ammini Amma, 1996 PTR 142
139 Id.
140 Id.
141 Id.

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real object.”142 Furthermore, it was noted that there was no likelihood of competition
between the two works in question.143

It was held that since the copying was for the purpose of criticism, it amounted to fair dealing
and did not constitute infringement of the copyright.

It is important to note is that, in arriving at this holding, the factors considered by the Court
were:144

“the quantum and value of the matter taken in relation to the comments or criticism;
the purpose for which it is taken; and
the likelihood of competition between the two works.”

This three-fold test is markedly similar to the test used by American judiciary. The only factor
omitted is the nature of the copyrighted work – a factor that has been stated to be of little
importance as far as parodies are concerned.

“Therefore, as far as the Kerala High Court is concerned, a parody, so long as it copies from
the original in order to criticise it, does not constitute improper use of the original and thus
qualifies as fair dealing.” 145

The discussion carried on in this part has clearly shown that both in India and the United
States, parody has been given considerable protection, both by the legislature and the
judiciary, under the fair use defence. “Such broad protection for parody has been the subject
of considerable criticism. Lee argues that the Supreme Court’s interpretation of the four
factors unduly favours the parodist, and concludes that after weighing the factors, the
majority of parodies will prevail under the fair use defence against actions by copyright
holders.”146 Thus, he argues that the U.S. Courts have by and large set too low a threshold for
parodies to qualify for the fair use defence.147 The authors believe that although the judicial
analysis of the four factor test is unquestionably and markedly pro-parodist, this is not
without good reason; it is economically efficient, and in consonance with the principles of
copyright law, to afford parodies broad protection from infringement actions.

1.13.3 COPYRIGHT AMENDMENT ACT, 2012

Amendments made in section 52 are:

142 Id. At para 24.
143 Id.
144 Id at para 8.
145 Supra note 67.
146 Lee, J., “Campbell v. Acuff-Rose Music: The Sword of the Parodist Is Mightier than the Shield of the
Copyright Holder”, (1994) 29 U.S.F. Law Rev. 279, 302.
147 Id.

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 “the reporting of current events and current affairs, including the reporting of a
lecture delivered in public”, has been added in sub-section (a).

 Storing of any work in any electronic medium for the purpose mentioned in sub-
section (a) for a short period of time would not amount as infringement.

 Storage of the work or any performance for a short duration of time purely in the
technical process of electronic communication or communication to the public would
not amount as infringement. But if the person responsible for the storage has received
a written complaint from the owner that such storage is infringement, then person
responsible for such storage shall refrain from facilitating such access.

 Then clause (zb) has been added, where, the adaptation, reproduction, issue of copies
or communication to the public of any work in any accessible format by any person to
help persons with disability either for their personal use, educational purpose or
research, would not amount to infringement.

 any organisation working for the benefit of the persons with disabilities in case the
normal format prevents the enjoyment of such works by such persons, then also it
would not amount as infringement.

1.13.4 CHECK LIST

The following must be always be taken into consideration

 In order to claim copyright protection the work must fall under any of these headings
✓ Literary, dramatic or musical works;
✓ Literary would mean a work which is in form of writing of printing like a person
has written a poem on the dawn of the morning, so in this poem the author has
expressed his thoughts and ideas, therefore, this work will be a copyrightable
subject matter.
✓ Drama which is performed on a stage. Expressing your thoughts in form of act
like performing a play on certain theme on stage.
✓ Musical Work means a work consisting of music and includes any graphical
notation of such work but does not include any words or action intended to be
sung, performed or spoken with the music. A musical work need not be written
to enjoy copyright protection but it should be on a tangible matter.
✓ Artistic Work; means expressing your thoughts through the medium of art for
e.g., painting, portrait etc.
✓ Cinematography film, means any work of visual recording or any medium
produced through a process from which a moving image may be produced by
any means like capturing the pictures.
✓ Sound recording means a recording of sounds from which sounds may be
produced regardless of the medium on which such recording is mad like sound
recording on a phonogram or a CD-ROM

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✓ Sculpture
✓ Architecture work

If the work is does come under any of these heading, the work will not be copyright
protected.

 The work must not be just an idea because the copyright act does not protect merely
an idea. The idea must be presented on a tangible form.

 Remedies available to the owner: Civil and Criminal
 Civil Remedies: Damages is another remedy which depends upon the facts and
circumstances of each case. Injunction is issued by the court. initially court by
looking at the prima facie case of infringement grants, temporary injunctions and
after that permanent injunction
 Criminal Remedies: The fine of 50,000 up to 2,00,000 Rs can be imposed. Police has
power to seize the infringed copies. An imprisonment of 6 months to 3 years can
be imposed

 Remedies available for the infringer:
➢ The common defence which can be taken by the opposite party is that the work
which is alleged to be infringed is itself unoriginal work.
➢ The various ground mention under section 52 can be taken, for eg.
➢ if the copying is done for private use including research work or for criticism or
review
➢ fair dealing in reporting current events in a newspaper, magazine or similar means
or by broadcasting
➢ if reproduction of a literary, dramatic, musical or artistic work for the purpose of
making a report of a judicial proceeding or for judicial proceeding only.

The defence of fair use can be taken when it is used for commercial purpose. The grounds
that have been mentioned in section 52 none of them is for deriving profit, it was for the
either research, critique, newspaper etc.

Example 1: There is copyrighted presentation authored by Mr. Ashish. If these slides are
copied by a teacher in order to teach the students then here it is fair use or fair dealing but if
the same slide is copied by another person in order to train the employees then it would not
amount to fair use because here the presentation are being used for commercial purpose. A
paragraph copied from any book for the purpose of judiciary would also be entitled for the
defence of fair use.

Example 2: Any work copied for the purpose of criticism or for review would not amount as
infringement.

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Example 3: Any extract copied for the purpose of newspaper, magazines, or similar periodicals
would not amount as infringement.

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