Fair dealing and the right to reproduce (articles)

I’m still on my “fair-dealing” hobby horse. Earlier last week, in my post relating to the Mint Legal notice, I had rather hastily admitted that Copyright law might not expressly permit the reproduction of articles in their entirety. Now, I’m not so certain.

1. Firstly, there’s the express language of Section 52(1)(m) of the Copyright Act which reads:
   

   “(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;”

   The clause creates a blanket presumption that all newspapers, magazines (including online) and periodicals can reproduce in entirety articles on “current political, social or religious topics” . This is subject to the author expressly reserving to himself/herself the right of such reproduction.

   The article that sparked the Mint’s ire was authored by one Seema Singh. I just checked the Mint site and there is no statement by her either at the foot of the article or anywhere on the website where she expressly reserves the right to reproduce to herself.

   Section 52(1)(m) only allows the author (as opposed to the publisher/”first owner”) to reserve the right of such reproduction – which means that HT-Media’s prohibition on reproduction in its Terms of Use will not serve the same purpose. The reservation must be “express” which means that it cannot be arrived at impliedly.

   There are good grounds to believe that Section 52(1)(m) survives even the exclusive assignment of copyrights by authors to publishers, and may even be seen as an additional right in the hands of the author not enumerated in Section 14. It is the right of the author of an article of political importance to reach the maximum possible audience if she wishes, and not to be silenced by non-publication, merely because he or she happened to assign rights to a particular media company.

   There is legislative wisdom behind the vesting of such powers in the author, and behind setting up the right to reproduce articles as the general presumption against which the author has the right to demur.

2. Secondly, the ambit of the fair-dealing right enshrined in Section 52(1)(a) and (b) is fairly wide and recognizes that the extent of permissible copying may vary with the purpose and characteristics of the use. Specifically, reproducing works to make them more accessible might amount to a transformational use even though it is not transformation in the sense of “altering the original expression with new expression meaning or message”.

   (See THE CHANCELLOR MASTERS and SCHOLARS of the University of Oxford Vs. Narendra Publishing House The rule regarding “the extent of copying.. does not entail that the reproduction of the entire work would militate against the finding of fair use. There could be cases where the copying could be substantial and the courts finds fair use, at the same time there could be cases where the copying though insubstantial could be held as infringement”)
   (See Also Kelly v. Arriba Soft)

There are a host of other authorities in India to support the view that CSE’s non-commercial, public-interest use will weigh heavily in the court’s determination.
I’m following this article up with a longer one that analyses fair-dealing in India.