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PROJECT WORK SUBMITTED ON BEHALF OF PARTIAL
FULFILMENT OF REQUIREMENT OF THE DEGREE OF
B.A. L.L.B(H)
HUMAN RIGHTS LAW PROJECT WORK
“COPYRIGHT RELATION WITH HUMAN RIGHT”
Submitted to- Submitted by
Mr. Ashutosh Tripathi Gurpreet Singh
Human Rights Faculty A11911111029,
Section A
Semester
Acknowledgment
1
I Gurpreet Singh student of Amity Law School-2, Noida semester 7, section-A
want to express my special thanks and gratitude to Mr. Ashutosh Tripathi for
entitling me this project work on “COPYRIGHT RELATION WITH HUMAN
RIGHT”. While researching on this topic I came to know about so many new
things. Secondly I would also like to thank my parents and friends who helped
me a lot in finalizing this project within the limited time frame.
Thank you.
2
TABLE OF CONTENTS1. Introduction
2. Human Right & Intellectual Property Right
3. Human Right, contribution to knowledge and Intellectual Property Right:
4. Copyright & Right to Education
5. The link between copyright law and education
6. The fundamental hurdle: the cost of learning materials
7. Oxford & Cambridge University Publishers v Rameshwari Photocopy
Services
8. Fair dealing of copyright laws in India
9. Bibliography
3
1. Introduction Human rights and Intellectual Property rights, especially patent right regime, are two
branches of law that have overcome their initial shyness of each other and are now
becoming increasingly intertwined by the day. These two subjects have developed in virtual
isolation from each other for several decades. However, during the past few years, there
have been a plethora of international standard setting activities, which have begun to
explore the nooks and crannies that represent the common haunts of patent law on the one
hand and human rights law on the other. Patent rights have now spread throughout the
world by virtue of an intrinsic network of bilateral, regional and multilateral treaties like
World Trade Organisation etc. and the extensive usage of such rights that resulted from this
spread has had an inevitable effect on human rights. Perhaps an appropriate example will
be the implications for the right to health.
The aim of a ‘human rights approach’ to patents can be expressed as a desire to obtain an
inherent balance between the moral and economic rights of inventors and the wider
interests and needs of the society. An integral component of intellectual property, patents
emerged into the global limelight only during the 20th century. In the words of Carla Hesse,
“The concept of intellectual property – the idea that an idea can be owned – is a child of the
European Enlightenment.” A whole array of contrasting rights, some statutory, some
common law, some equitable, protect creative patentable inventions for varying periods of
time, against use by others of the same. Human rights, on the other hand, mean those basic
rights and freedoms to which all humans are entitled, like the right to life and liberty,
freedom of thought and expression, and equality before the law, those basic standards
without which people cannot live in dignity.
2. Human Right & Intellectual Property Right The relationship between human rights and contributions to knowledge has been at the
centre of important debates over the past several years. The International Covenant on
Economic, Social and Cultural Rights (Covenant) is in many ways the most crucial legal
instrument through which the relationship between the two fields can be examined. Firstly,
4
it recognises, for instance, the rights to health and food which are some of the rights whose
realisation can be affected in developing countries that adopt or strengthen intellectual
property rights frameworks based on the commitments they take under the TRIPS
Agreement or other intellectual property rights treaties.
Secondly, it recognises at Article 15(1)c the need to reward individuals and groups that
make specific intellectual contributions that benefit society. It must be noted at the outset
that the rewards which are recognised under the Covenant are not related to existing
intellectual property rights regimes. There may be cases where the realisation of this right
may be effected through existing intellectual property rights but on the whole, there is no
necessary correspondence between the rights recognised in the Covenant at Article 15 and
existing intellectual property rights. This is important as it indicates that the Covenant
provides a basis for the recognition of all intellectual contributions and not only the ones
that fit within the existing intellectual property rights paradigm. In other words, Article
15(1)c is broad enough to accommodate the claims of traditional knowledge holders for
instance.
The Committee on Economic, Social and Cultural Rights which oversees the implementation
of the Covenant decided to examine in more detail the relationship between contributions
to knowledge and human rights several years ago. The Committee started by focusing on
the impacts of existing intellectual property rights on the realisation of human rights. This
culminated in the adoption of a Statement issued in 2001. Subsequently, the Committee
undertook the preparation of a politically and legally more significant document in the form
of a General Comment. Its adoption is expected at the next session of the Committee in
November 2004. This General Comment which would in practice replace the 2001
Statement will constitute an authoritative interpretation of Article 15(1)c of the Covenant.
Unlike the 2001 Statement, the proposed General Comment focuses mostly on the rights of
individual contributors to knowledge and gives little space to questions concerning the
impacts of intellectual property rights on human rights.
3. Human Right, contribution to knowledge and Intellectual Property Right:
There are at least two ways in which links between human rights, contributions to
knowledge and existing intellectual property rights can be analysed. Firstly, existing
5
intellectual property rights can have impacts on the realisation of human rights recognised
in the Covenant such as the right to food or the right to health. These can be positive or
negative impacts depending on the specific legal regime which is introduced. In the context
of the introduction and strengthening of intellectual property rights standards brought
about through the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement) in developing countries, intellectual property rights raise a number of
concern with regard to their impacts on the realisation of human rights in general and the
right to health and to food in particular.
Secondly, the Covenant includes at Article 15 a number of rights which are related to
culture and science. Article 15(1) is particularly important and reads as follows:
The States Parties to the present Covenant recognize the right of everyone:
a) To take part in cultural life;
b) To enjoy the benefits of scientific progress and its applications;
c) To benefit from the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author.
The relationship between human rights and intellectual contributions was a topic of debate
during the drafting of the Covenant. Subsequently, it only came back into the limelight as a
result of problems faced by developing countries in the context of their implementation of
the TRIPS Agreement. In the past decade, there has been increasing interest for these
questions and different bodies have addressed certain aspects of the issue. The Sub
Commission on Human Rights has, for instance, come to the conclusion that:
since the implementation of the TRIPS Agreement does not adequately reflect the
fundamental nature and indivisibility of all human rights, including the right of everyone to
enjoy the benefits of scientific progress and its applications, the right to health, the right to
food, and the right to self-determination, there are apparent conflicts between the
intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and
international human rights law, on the other.
6
Following what became a highly public controversy concerning access to drugs, medical
patents and the right to health in the context of the price of HIV/AIDS drugs in sub-Saharan
African countries most affected by the epidemics, the ESCR Committee decided to first
adopt a statement on intellectual property rights and human rights in 2001 as a first step
towards the adoption of a General Comment. The 2001 Statement was adopted in the
wake of the collapse of the case filed by pharmaceutical companies against the South
African government for attempting to limit their patent rights and the Doha Health
Declaration adopted by the 2001 Ministerial Conference of the WTO. In this
Statement, the ESCR Committee specifically argued that the protection of the moral and
material interests of authors must be balanced with the right to take part in cultural life also
introduced at Article 15. It argued that intellectual property protection must serve the
objective of human well-being which is primarily given legal expression through human
rights. In other words, intellectual property regimes should promote and protect all human
rights. More specifically, the Committee stated that any intellectual property rights regime
that would make it more difficult for a state to comply with its core obligations in relation to
the right to health and food would be inconsistent with the legally binding obligations of the
concerned state. In other words, the Statement was clearly concerned with the impacts that
intellectual property rights can have over the enjoyment of human rights.
The proposed General Comment was meant to build on the Statement and to provide a
more elaborate interpretation of the relationship between human rights and intellectual
property rights. The first general characteristic of the draft General Comment is that it
adopts a much narrower focus than the Statement. Firstly, it focuses only on questions
related to the recognition of intellectual contributions as human rights and only makes
passing comments on the impacts of existing intellectual property rights on the realisation
of human rights in general. Secondly, even within the context of this narrow framework, the
draft General Comment carves itself an even narrower niche by focusing exclusively on sub-
paragraph (c) of Article 15(1). In other words, it focuses on the interests and rights of the
individual author and inventor and leaves aside the other parts of Article 15(1) which focus
on everyone’s right to benefit from the development of science and to enjoy their own
culture.
7
The rest of this article examines in more detail some of the main issues that arise from the
existing draft General Comment. It first analyses some issues related to the recognition of
intellectual property rights as human rights and then examines questions concerning the
impact of existing intellectual property rights regimes on the realisation of human rights.
Finally, it also examines some ways in which an intellectual property rights approach to
human rights could be made more relevant in today’s world.
4. Copyright & Right to Education Copyright is a legal right created by the law of a country, that grants the creator of an
original work exclusive rights to its use and distribution, usually for a limited time, with the
intention of enabling the creator (e.g. the photographer of a photograph or the author of a
book) to receive compensation for their intellectual effort.
Copyright is a form of intellectual property (as patents, trademarks and trade secrets are),
applicable to any expressible form of an idea or information. It is often shared, then
percentage holders are commonly called rightsholders legally, contractually and in
associated "rights" business functions. Generally rightsholders have "the right to copy", but
also the right to be credited for the work, to determine who may adapt the work to other
forms, who may perform the work, who may financially benefit from it, and other related
rights.
The Copyright Act, 1957(Act No. 14 of 1957) governs the laws & applicable rules related to
the subject of copyrights in India. Copyright Law in the country was governed by the
Copyright Act of 1914, was essentially the extension of the British Copyright Act, 1911 to
India, and borrowed extensively from the new Copyright Act of the United Kingdom of 1956.
All copyright related laws are governed by the Copyright Act, 1957. The Copyright Act today
is compliant with most international conventions and treaties in the field of copyrights. India
is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal
Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS) Agreement of 1995. Though India is not a member of the Rome
Convention of 1961, WIPO Copyrights Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT), the Copyright Act is compliant with it.
8
The Right to Education, envisioned at first as a Directive Principle of State Policy under the
Indian Constitution, has now become a fundamental right, enshrined in the Constitution. Its
implementation under Central and State legislation is still under way, but its evolution in
fact extended over decades, and was initiated by the judiciary.
In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Ors. [1981] AIR
746 1981 SCR (2) 516, 1981 SCC (1) 608 1981 SCALE (1) 79 the Court laid down the
foundation for the fundamental right to education, with its interpretation of the right to life,
embedded in Article 21 of the Indian constitution. It outlined a broad vision of the right to
life:
“The right to life enshrined in Article 21…means something much more than just physical
survival. Every limb or faculty through which life is enjoyed is thus protected by Article 21
and a fortiori, this would include the faculties of thinking and feeling. The right to life
includes the right to live with human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading,
writing and expressing oneself in diverse forms”
The right to education is a universal entitlement to education, recognized in the
International Covenant on Economic, Social and Cultural Rights as a human right that
includes the right to free, compulsory primary education for all, an obligation to develop
secondary education accessible to all, in particular by the progressive introduction of free
secondary education, as well as an obligation to develop equitable access to higher
education, ideally by the progressive introduction of free higher education. The right to
education also includes a responsibility to provide basic education for individuals who have
not completed primary education. In addition to these access to education provisions, the
right to education encompasses the obligation to rule out discrimination at all levels of the
educational system, to set minimum standards and to improve quality of education.
5. The link between copyright law and education The incredibly high costs of educational materials in the developing world, and the
prevalence of piracy, the importance of copyright law for developing countries is clear.
Developing countries must structure their copyright laws in ways that maximize the
availability of low cost books, as well as the ability of educational institutions to provide
9
learning materials through distance learning programs without having to pay prohibitively
high royalties.
The link between copyright and learning is indeed an old one, and the free dissemination of
knowledge and culture has always informed the normative spirit. of copyright law. The first
copyright statute, The Statute of Anne, was titled An Act for the Advancement of Learning.
This approach which emphasized public interest in the circulation of knowledge was the
philosophical basis for granting limited exclusive rights to authors. Today, the concern for
the public interest has been recognized by all major international institutions and clearly
articulated in all major instruments tasked with the global regulation of copyright.
However, as Amy Kapczynski, in her insightful survey of the “access to knowledge” (A2K)
movement argues, the framing of debates on intellectual property (IP) is vital.30 For the
past two decades, IP has been framed only from the perspective of private property and the
rights of copyright owners. This has created an imbalanced system, biased towards IP rights
owners.
As P. Bernt Hugenholtz and Ruth Okediji put it:-
“Unfortunately, the idea of public interest in copyright has tended to focus on one aspect,
namely the maximum protection of creative enterprise through the grant of exclusive rights
to authors. The other component of public interest - that of ensuring optimal access to
creative works and stimulating broad dissemination of knowledge and downstream
creativity – has been historically left to the discretion of individual States, thus producing a
patchwork effect with respect to copyright limitations and exceptions.”
As such, it is essential to frame international copyright provisions in a way that redirects
copyright back to its historical purpose of securing the public interest. Recently support has
grown for such a shift, for framing IP in a human rights context. The access to knowledge
and access to medicine movements reflect this growing consensus. For our purposes,
recounting the public interest provisions embedded in international IP instruments will help
make the case for such reframing IP in this way.
10
Even though the Agreement on Trade-Related Aspects of International Property Rights
(TRIPS) is primarily a trade agreement, its provisions cannot be divorced from the larger
objectives that the agreement lays out. These include the recognition, in the agreement’s of
intellectual property, including developmental and technological objectives." More
specifically, Articles 7 and 8 point to other factors that member states are to take into
account in implementing their TRIPS obligations. Article 7 titled “Objectives”, provides:
The protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of technology,
to the mutual advantage of producers and users of technological knowledge, and in a
manner conducive to social and economic welfare, and to a balance of rights and
obligations.
It is clear from the wording of the article that copyright protection is justified insofar as it
achieves the goal of social and economic welfare.
Article 8(1) then provides that member states may, in formulating or amending their laws
and regulations, adopt "measures necessary to protect public health and nutrition, and to
promote the public interest in sectors of vital importance to their socio-economic and
technological development, provided that such measures are consistent with the provisions
of this Agreement." Article 8(2) further allows for "appropriate measures... consistent with
the provisions of this Agreement" that may be needed to prevent the abuse of intellectual
property rights (IPRs) or "practices which unreasonably restrain trade or adversely affect the
international transfer of technology." It is clear from these provisions then, that when
interpreting TRIPS in the light of the agreement’s object and purpose, it is necessary to
weigh the interests of rights holders against other competing public interests, such as
educational and developmental concerns. In other words, it would be mistaken to adopt a
maximalist pro-rights view.
The “access to knowledge” agenda has also been complemented by an institutional
recognition of developmental needs. As a result of lobbying by developing countries, the
World Intellectual Property Organization (WIPO) adopted the Development Agenda which is
more receptive to the needs of developing countries. The agenda seeks to further the goals
11
of the UN Millennium Declaration (2000) to which it explicitly refers for policy direction. Of
particular relevance, paragraph 6 of the Declaration states:
Global challenges must be managed in a way that distributes the costs and burdens fairly in
accordance with basic principles of equity and social justice. Those who suffer or who
benefit least deserve help from those who benefit most. Furthermore, the Declaration
affirms a commitment to ensuring that “the benefits of new technologies, especially
information and communication technologies are available to all.” The Declaration and
related Millennium Development Goals (MDGs) point to the centrality of education to
development in setting the goal of universal primary education.
Furthermore, the Declaration affirms a commitment to ensuring that “the benefits of new
technologies, especially information and communication technologies are available to all.”
The Declaration and related Millennium Development Goals (MDGs) point to the centrality
of education to development in setting the goal of universal primary education.
As a UN agency, WIPO is bound to observe the principles of the Millennium Declaration.
Given that the Millennium Declaration and the MDGs both recognize education as essential
to development, the international IP regime must be guided by educational goals.
The implementation of the Development Agenda by WIPO provides an important
opportunity for Member States to collectively discuss limitations and exceptions to IP law.
The exceptions and limitations that should receive priority in these discussions are those
which best advance the Development Agenda. These include exceptions and limitations with
respect to education, libraries, translation, interoperability and access by sensory disabled
persons.
Increasing efforts in this area have, however, been directed at the articulation of a core set
of explicit limitations and exceptions and its integration into the current multilateral system
in order to counteract the ever-expanding panoply of proprietary rights of copyright
owners. WIPO, the key institution responsible for the development of substantive standards
of international copyright law, has recently commissioned several studies on limitations and
exceptions reflecting some of these efforts.
12
Building on these proposals, the recommendations for a Development Agenda adopted in
October 2007 contain a number of education-related mandates.
6. The fundamental hurdle: the cost of learning materials It is impossible to understand the challenges facing education in India—and the critical
importance of copyright law to it—without putting the costs of learning materials into
perspective. There is a common assumption that the cost of books in India is relatively low,
and hence affordable. However, a recent study on prices of books using a comparative
purchasing power analysis reveals otherwise.
This exercise yields several insights. First, absolute prices of books may often be higher in
the global South than in the global North. Second, consumers in the South have to commit
significantly higher proportions of their income to buy these books. Third, if consumers in
the United States had to pay the same proportion of their income towards these books as
their counterparts in South Africa and India, the results would be ludicrous: $1027.50 for
Mandela’s Long Walk to Freedom and $941.20 for the Oxford English Dictionary. It is
instructive then, to note that the prospect of paying $440.50 for Roy’s God of Small Things
in the United States is manifestly alarming, whereas, paying $6.60 for the book in India
(which in Indian terms is exactly the same value as $440.50 in the United States, by this
logic) is not treated with similar outrage.
A recent study conducted by the Ministry of Human Resources Development (MHRD) details
the extent of copyright piracy in India:
Book piracy, in India, primarily depends on two factors, namely, the price of the book and its
popularity. These two factors positively contribute to piracy. Piracy is generally confined to
foreign and good indigenous books because these books are demanded in large quantities
and are also priced high. The types of books pirated mostly are medical, engineering and
other professional books, encyclopedia and popular fictions. The piracy is also widespread
with respect to books published by National Council of Educational Research & Training
(NCERT), National Open School and Board(s) of Secondary Education. These books even if
priced low are having large demand. Besides the above, piracy in the form of mass
photocopying of books is largely prevalent in India, especially in and around educational
13
institutions. Students borrow books from libraries and then get these photocopied from the
photocopier kept at the institution where from the books are borrowed.
It is clear then that without some means of reducing the costs of books, piracy will continue
apace, and education will continue to be hobbled. Reforms to India’s Copyright Act may
succeed in this respect where global attempts have failed.
7. Oxford & Cambridge University Publishers v Rameshwari Photocopy Services
Accompanying a team conducting a raid against a photocopying shop outside AIIMS a few
years ago a copyright lawyer had a moment of revelation akin to the apocryphal story of St
Paul’s conversion on the road to Damascus when Paul was asked by God “Why do you
persecute me?”. In this case even as the photocopier was being arrested he defiantly turned
to the lawyer and said “If I don’t sell these photocopies where do you think your doctors are
going to come from? The lawyer in question is now a leading expert on copyright and public
interest and one wonders whether a similar question posed to the lawyers representing
Oxford and Cambridge University Press would evoke a similar change of heart especially if
they considered their own route to becoming lawyers. The fact of the matter is that in most
academic disciplines textbooks are extremely expensive and unaffordable for the average
student and if one attempted to buy all the books which are prescribed for a course it would
mean that only very few privileged students would afford an education in India. While one
often hopes for a commonsensical change of heart from lawyers and copyright owners one
cannot bank on it which is why the law in India has a number of provisions which allow for
exceptions and limitation to copyright law. The educational use exception in India is indeed
one of the widest in the world and designed to address the needs of education in a
developing country. Cambridge and Oxford university press along with Francis and Tailor
have filed a copyright infringement petition against Rameshwari Photocopy services and the
Delhi university claiming that the course packs that are distributed are in violation of
copyright. Describing the course packs as infringing and pirated copies the petitioners have
claimed damages to the tune of sixty lakhs. The inflated damages sought is not surprising at
all and works within the logic of the assumption that every photocopy is a lost sale but aside
from this dubious assumption inflated sums are usually a part of the shock and awe tactics
that copyright owners use to establish a test case.
14
Lets understand how course packs work and then examine the law on the point. Most
students will testify that the university library have a maximum of one to three copies of
books that are shared by hundreds of students and the course pack is therefore an
institutionalized practice to ensure that all students have access to learning materials. This
has been the subject of much controversy in many countries but particularly so in the
United States, and any one who has studied in the US will know the severe restrictions that
are placed on the ability to provide course packs even as students pay a hefty sum for
textbooks. One of the clearest exceptions in copyright is the fair use exception which
legalizes certain acts without the permission of copyright owners, and within fair use the
education exception is what governs photocopying and the creation of course packs. Of the
four principles in the US one of them include ‘the effect of the use upon the potential
market for or value of the copyrighted work’. This is a principle that has been used to
effectively narrow fair use in the US. Unlike the US which has a set of principles guiding fair
use in India we follow the English system of fair dealing which enumerates a set of statutory
exceptions and in India there are two important provisions which allow for educational
exceptions. Sec. 52(1)(i) allows for ‘the reproduction of any work by a teacher or a pupil in
the course of instruction’ or as a part of questions or answers to questions. Further Sec.
52(1)(a) allows for a fair dealing with any work (except computer programs) for the
purposes of private or personal use, including research. It is therefore very much within the
rights of the university and the students to create course packs and to access photocopies of
academic texts and articles in the course of instruction. The fact that the Copyright Act in
India does not lay down any quantitative restrictions when it comes to personal use or
educational use even though such restrictions operate for other kinds of usages is indicative
of the intention of the policy makers to ensure that there is adequate access to learning
materials. Rameshwari Photocopy services is integrated within the university system by
account of the fact that it operates on the basis of a license provided by the university which
mandates the price and nature of services and it would make sense for the university and
the photocopiers to have a unified stand since what is at stake is not just the future of a
single photocopying shop but the future of access to educational materials in India. The
Supreme Court in the Francis Coralie Mullin case (1981) has held that the right to life in Art
21 is not just about physical survival and includes the right to ‘facilities for reading, writing
15
and expressing oneself in diverse forms’. And when Copyright comes in the way of a
fundamental right it clear what should be given precedence.
8. Fair dealing of copyright laws in India
The laws relating to fair dealing have been incorporated in Section 52 of The Copyrights Act,
1957. As the Indian Copyright Act does not defines the term "fair dealing" , the courts have
on various occasions referred to the authority English caseHubbard v Vosper2 on the subject
matter. The words of Lord Denning in this case lay down a much descriptive outline of fair
dealing-
"It is impossible to define what is "fair dealing". It must be a question of degree. You must
first consider 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 into mind also. But, after all is said and done, it is a matter of
impression."
The Indian laws related to "fair dealing" is always considered rigid and conventional as it
provides an exhaustive list and any use falling out of the statutory list is considered as an act
of infringement. Unlike this, the US doctrine of "fair use" keeps its doors open for any new
exception which constitutes fair and bonafide use of a copyright work. As the Indian courts
have explored and unveiled the various facets of fair dealing, they have said that there
cannot be a definite or exhaustible list of uses which can come within the purview of fair
dealing but it has to be decided depending upon the facts and circumstances of each case.
Apparently, such conclusions have been drawn more from the US and UK approaches and
less from the Indian statutory laws.
But apparently, the Indian courts have also started paying attention to the same. The best
example of this development is the case of (INDIA TV) INDEPENDENT NEWS SERVICES Pvt.
Ltd vs YASHRAJ FILMS PRIVATE LIMITED & SUPER CASSETTES LTD VS..3, where one of the
various grounds of dispute was that the defendants "India TV" broadcasted a TV show
wherein a documentary is shown on the life of singers and they perform their own son-gs.
16
While the singer sings, clips of scenes from the movies are shown in the background. The
plaintiffs claimed that such acts of the defendants amounted to infringement of their
copyright. However, the defendants claimed that such use of the plaintiff's copyrighted
material constituted fair dealing within the meanings of section 52 of The Copyrights Act.
The Delhi High Court in its judgment restrained the defendants from distributing,
broadcasting or otherwise publishing or in any other way exploiting any cinematograph film,
sound recordings or part thereof that is owned by the plaintiff. However, if we look at the
present case from a slightly different perspective, there are certain questions which still
remain unanswered. In my opinion the argument of the counsel for defendant stating that
"the singer who has recorded a song which has gone on to become a hit has a sense of
ownership over such a song, and that it would be very unreasonable-to the point of being
unfair and cruel to the said singer, to say that he/she cannot sing the said song in a TV or
other interactive program in front of an audience, only because the copyright in the
underlying literary and musical works resides in some other person(s)" also withholds a valid
point. But since such use does not come within the exhaustive list provided under section 52
of the act, they were deprived of any remedy in the fair dealing laws.
But, after a long litigation saga, in the appeal from the above order, the Hon'ble bench of
the Delhi High Court also felt the need of a diversion from the conventional approach and
thus the decision of the single judge was set aside and the restrictions thus imposed were
accordingly removed. However, the Appellants were still prohibited from displaying any
cinematographic films without permission.
This judgment indicates that the courts also have started feeling that there is still much left
to look upon, to consider to keep the legislations hand in hand with the technological and
scientific developments going across the world.
17
BIBLIOGRAPHY
1. Oxford and Cambridge University Publishers v. Students of India by
Lawrence liang, 27 august 2012, Kafila.org.
2. http://cis-india.org/a2k/publications/exceptions-limitations-education
3. India: "fair dealing" in copyrights: is the Indian law competent enough to
meet the current challenges? Article by Vaibhavi Pandey.
4. Human Right and Intellectual Property Rights. By Dr. Philippe Cullet
18