Drawing a balance between fair use and exploitation

By Abhai Pandey, Lex Orbis IP Practice
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Fair use provisions, which are exceptions to infringement of copyright, provide a good balance between private profit and public good and allow the pursuit of research and education. Primarily, it allows the limited reproduction, adaptation or decompilation of copyrighted material in specified circumstances, without requiring permission from rights holders dealing exclusively in the work.

Abhai Pandey Lawyer Lex Orbis IP Practice
Abhai Pandey
Lawyer
Lex Orbis IP Practice

While limiting the owners’ exclusive right to prevent others from exploiting the work without first obtaining permission or a licence, fair use also operates as a set of possible defences against an action for infringement. The Berne Convention for the Protection of Literary and Artistic Works 1886 as modified in 1967 includes the fair use doctrine under article 9 (2).

The convention applies to signatories of the treaty and places limitations on exclusive rights in copyright laws elucidating the three-step test to determine if the use is fair. The use should be (a) in certain special cases only; (b) should not conflict with the normal exploitation of the work; and (c) should not unreasonably prejudice the legitimate interests of the rights holder.

The fair use defence is also well extrapolated in the Indian Copyright Act, 1957. Section 52 describes what constitutes fair use and the courts have also laid down guidelines and parameters for its application. Fair use must be non-commercial and must not interfere with the copyrighted material.

The case of computer software

The World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights under Article 10 states that computer programs, whether in object or source code can be protected as literary works through a copyright or trade secret.

Fair use in relation to a computer program allows lawful owners to store or make electronic copies of a work for individual use or as a security measure against temporary loss. Such reproductions would not invite copyright infringement according to section 52 (1)(aa).

Clause (ab) of the same provision allows users to decompile a program in order to ascertain its interoperability with other programs in the case that such information is not otherwise readily available. This exception also covers decompilation for retrieval, study purposes, improvement of performance, error correction, identifying malicious content, adaptation, interoperability and encryption purposes.

The decompilation of a computer’s binary components, which are structured into code and non-code segments, often results in the discovery of a source code, or the functional elements that aid in managing the interoperability of the program with other programs. Thus, while it is impossible to decompile every program ever written, the process may lead to the discovery of a functionally equivalent code or reverse engineering options.

Decompilation may also be useful to determine parts of a program that are not protected by copyright (e.g. algorithms), without breaching other forms of protection (e.g. patents or trade secrets). In order to use this defence, the following conditions must be fulfilled: 1) The decompilation must be done to obtain the information necessary to create an independent program which can be operated with the decompiled program; 2) The information generated should not be used for any purpose other than what is specified above, and 3) Decompilation is only permissible if the information sought is not readily available.

The End User Licence Agreements cannot restrict this defence. It is for this reason that proposed amendments to the Copyright Act, which call for technological protection measures and rights management information, retain the decompilation defence while suggesting amendments in Section 52.

The idea behind the exception is to encourage the free flow of information. If decompilation was prohibited and permission had to be obtained for the every single use of any computer program, this would result in high transactional costs.

Facilitating creativity

Although numerous exemptions and doctrines have been statutorily embedded or judicially innovated in copyright law, regulators and legal and judicial experts recognize the equally compelling need to promote creative activity.

Fair use privilege ensures that the exclusivity bestowed by copyrights does not stifle the dissemination of information. Fair dealing provisions must be interpreted so as to strike a balance between the exclusive rights granted to a copyright holder and the often competing interests of enriching the public domain. With the advancement of technology, the evolution of the body of law underlying the tenets of copyright law has become paramount.

Abhai Pandey is a lawyer with Lex Orbis IP Practice, a law firm specializing in intellectual property issues.

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