Note: This detailed copyright disclaimer under section 107 guide is only applicable in India.
The Copyright Act’s Section 107, also interchangeably termed the Fair Use Act, was created to define the fair use of copyrighted material. It establishes an outline concerning the extent of the use of copyrighted material for criticism, comments, news reporting, teaching, scholarship, and research. In India this provision is provided under the Indian Copyright Act, 1957 Section 52(1)(a) which allows any fair use and dealing with any copyright matters about the literary, dramatic, musical, or artistic work is permissible.
A copyright disclaimer can be added to any work that utilizes copyrighted content under fair use, offering protection against potential copyright infringement claims. Fair use is the provision that allows any additional insights, criticism, or parody of the original copyrighted work without seeking the permission of the copyright owner. The purpose of the copyright disclaimer with every reproduction is to indicate to the readers or viewers of the reproductions that this reproduction does not infringe the copyright of the original work. There are several criteria to evaluate whether the reproduction falls under fair use including the reason and nature of the use (end-use whether commercial or educational & research), the nature of the protected work, the proportion of the work used about the whole, and the effect of the usage on the market value or potential market of the copyrighted work.
Scope of Section 107
Section 107 extends to various forms of media, including but not limited to written works, audio recordings, images, and videos. There are times when an author will seek to copy the work to perform fair use in an attempt to educate the audience, write or research critique, or report a news story. But, it also seeks to maintain a considered approach to their use and exploitation and fostering creativity, and innovation in the public interest.
Copyright disclaimers apply only when a copyrighted work is reproduced. Any person reproducing or using a copyrighted work can give a copyright disclaimer that reproduction of his/her work is protected under Section 107 Copyright Act. It also includes the details of the source (copyright work) of the content used in reproduction. Fair use should also be considered carefully since it is not a carte blanche or an exception to utilize copyrighted material. Each case requires a determination, based on consideration of various factors, including the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the market for the original work.
Understanding the nuances of copyright, especially under Section 107, is crucial for anyone involved in creative work. For those starting their own business, Online Sole Proprietorship Registration can help ensure compliance with copyright laws while protecting their original content.
The following sections will illustrate some examples of how Section 107 could be invoked and also discuss its implications for copyright proprietors and fair users as well.
Factors considered for fair use under Section 107 (The ‘Four-Factors Test’ )
Section 107 of the Act outlines four factors to evaluate if an unauthorized reproduction qualifies as fair use. These factors are:
| Factor | Description |
|---|---|
| Purpose and character of the use | Was it transformative, adding something new or serving a different purpose from the original? Research, criticism, or teaching purposes are more likely to be considered transformative and examined as fair use because they serve a broader social need. However, the profit motive is the other area that is also taken into consideration, where the works made for profit are less likely to be considered fair use protection. |
| Nature of the copyrighted work: | The nature of the copyrighted work may also affect fair use consideration. Like for instance, a non-fictional work is more likely to be protected under Section 107 than fictional one. This is due to everyday facts being included in non-fiction literary works, which contain less originality than fictional texts. This is also the reason news reporting is one of the purposes that fall under the provisions of fair use in Section 107. |
| Proportion of the copyrighted work used | Was it transformative, adding something new, or serving a different purpose from the original? Research, criticism, or teaching purposes are more likely to be considered transformative and examined as fair use because they serve a broader social need. However, the profit motive is the other area that is also taken into consideration, where the works made for profit are less likely to be considered fair use protection. |
| The impact of the new work on the market value of the original work | Whether the new work is likely to affect the potential market for the original. Fair use might be claimed when the reproduction is not likely to substantially draw away the original work’s audience. Use of a copyrighted work could thus not be considered fair use should it adversely affect the marketability of the original work. |
Instances of Fair Use Cases
1. Oxford University Press v. R. R. Chaudhary (2012)
Case – Did the reproduction of sections in the course packs constitute copyright infringement?
Outcome – In August 2012, the Oxford University Press, Cambridge University Press, and Taylor and Francis (“Oxford”) instituted suit against Rameshwari Photocopy Services (RPS) and Delhi University (DU) for violating the copyrights of Oxford concerning unauthorized use and reproduction of the books of Oxford to develop and sell “course packs,” which were enfolding packages of references for students’ use. The Learned single bench of the Delhi High Court granted the application for an interim injunction against RPS and DU from producing and selling the course packs or reproducing their compilations.
Later, in September 2016, the HC ruled for RPS and DU, stating that the existence of copyright over literary works does not mean that the author is an absolute owner of the work, it is rather a right to inspire progress in the arts for public intellectual prosperity.
2. Campbell v. Acuff-Rose Music, -(1994)
Case – ‘Oh, Pretty Woman’, a song famously recorded by Roy Orbison, was parodied by the rap group 2 Live Crew.
Outcome – The Supreme Court agreed with 2 Live Crew and ruled in their favor, establishing that the parody was a transformative use of the original and therefore a protected fair use. The 2 Live Crew case also made explicit the concept of transformative use as a major threshold in fair use analysis.
3. Google v. Oracle America, Inc. (2021)
Case – Google used portions of Oracle’s Java API in its Android operating system.
Outcome – Google won. The Supreme Court ruled that Google’s use of the Java API was allowed as a fair use. This was an extremely complex technical case, with strong arguments on both sides, but the key point is that the market impact of the use plays a crucial role in the fair use analysis.
4. Super Cassettes Industries Limited v. MySpace Inc. and Anr.
Case – SCIL sought to sue MySpace, a site for social networking, for allowing its users to upload and disseminate copyrighted music without, so the argument went, proper licensing.
Outcome – In its ruling, the court declared that Super Cassettes Industries Ltd had proved its case. MySpace was declared guilty of violating copyright as it ‘engaged in, abetted, or contributed to’ copyright violation and they should have adopted all reasonable practices to prevent works under copyright from being distributed without authorization.
5. Sony Corp. v. Universal City Studios – (1984)
Case: Sony Corp. of America manufactured VCRs, which enabled one to tape television programs that were copyrighted.
Outcome: – The Supreme Court sided with the defendant Sony and decided that home videotaping for personal use was a fair use of copyright law. This decision established time-shifting as a fair use.
Advantages of Copyright Disclaimer
1. It secures the legal rights to the owner’s work by indicating that the reproduced work belongs to him/her.
2. Shows that you are complying with copyright laws and respecting others’ rights.
3. Provides an environment conducive to creativity and innovation.
4. Establishes the claim of fair use before a case reaches court, making it easier to legally prove your intentions. This protection also provides some shield to reproducers from legal disputes.
➢ Adding a disclaimer shows that you are legally aware and a credible source of information.
➢It enhances the copyright holder’s reputation by affirming that the work belongs to them. It serves as an asset, preserving the creator’s unique form of expression.
Note: This detailed copyright disclaimer under section 107 guide is only applicable in India.
Writing a Copyright Disclaimer
It is important to justify your action when copying content from a copyrighted work. If you’re a reproducer, it’s important to make your justification compelling enough to dissuade the copyright owner from pursuing legal action for infringement.
You should not create derivative works from copyright-protected materials unless they understand Section 107 and fair use thoroughly and fall under its reasonable grounds. On the other hand, if you feel that your reproduction constitutes a fair use under Section 107, then you must be careful in drafting your submission. Simple phrases like “no copyright infringement intended” are futile. To write a good copyright disclaimer, perform these steps:
1. Acknowledge the Facts
You should initiate your disclaimer with a testimony that you do use certain copyrighted materials and that these materials formed part of your work without the copyright owner’s permission. This honest admission will make a good basis for your disclaimer.
2. Describe the Copyright Owner
An authentic description of the copyrighted works you have used, including the name of the copyright owner, should follow. If, for instance, you have used a photograph of their work, you might consider mentioning some or all of the elements of their work included in your reproduction. It’s also very helpful to specify how much of the copyrighted material you used.
3. Elucidate the Purpose
Here, you should clearly state why you were using the copyrighted work. This part is crucial for convincing the copyright owner you have fair use. Explain how reproducing all copyrighted material in your new work benefits society or fits into any category of fair use as stipulated by Section 107. If what you’re doing is non-profit use, indicate that’s the case, which may lend some degree of credibility to your argument.
4. Append a Fair Use Notice
The last paragraph should repeat the fair use notice stating that you are, indeed, using someone’s work, but if someone wishes to reproduce that material, they must ask for the copyright owner’s permission.
Potential Limitations and Challenges
The following issues still need to be rectified:
(a) A subjective analysis of some of Section 107 fair use factors – In particular, the purpose and character of the use and the effect of market effects on copyright work required case-by-case analysis, which can lead to differing opinions and possible outcomes.
(b) The next major issue is the high degree of ambiguity this definition carries. “Transformative use” is a phrase that further refers to applying a work in a new or different context-is highly subjective and therefore left to interpretation.
(c) Furthermore, the enforcement of fair use rights can also present challenges. Copyright holders might disagree with a fair use claim, which could result in the case entering the legal domain and incurring further financial costs.
Conclusion
Section 107 acknowledges others’ intellectual property rights while citing the fair use principle. It gives credit to someone else’s intellectual property rights while also crediting fair use. Although Section 107 defines fair use, its interpretation is subjective and varies from one case to another. Using copyrighted material without permission is legally punishable, so simply adding a disclaimer offers no real protection for the reproducer.
Given that this is the case, creators should avoid this practice as much as possible. If, however, it is very much necessary to use copyrighted material, the safest way of avoiding any legal difficulties is to find out who owns the work (or the relevant agency) and to ask for permission from him/her, legally. This can often require a sole proprietorship registration if you are operating as a business.”Once such permission has been granted, the work may be used under conditions laid out and agreed upon. Although this can be quite a time-consuming process, it will save you from the costs and hassle of legal disputes.