What does not constitute infringement? – Essay

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

A fair dealing with a literary, dramatic, musical or artistic work, not being a computer programme, for the purposes of:

(i) Private use, including research;

(ii) Criticism or review, whether of that work or of any other work;

The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy-

(i) In order to utilize the computer programme for the purpose for which it was supplied; or

(ii) To make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilize the computer programme for the purpose for which it was supplied.

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The doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available;

The observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied; The making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use;

A fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events-

(i) In a newspaper, magazine or similar periodical, or

(ii) By broadcast or in a cinematograph film or by means of photographs.

Explanation:

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;

The reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding;

The reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;

The reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force;

The reading or recitation in public of any reasonable extract from a published literary or dramatic work;

The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not they published for the use of educational institutions, in which copyright subsists:

Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years.

Explanation.- In the case of a work of joint authorship, references in this clause to passages from works shall include references to passages from works by any one or more of the authors of those passages or by any one or more of those authors in collaboration with any other person;

The reproduction of a literary, dramatic, musical or artistic work-

(i) A teacher or a pupil in the course of instruction; or

(ii) Part of the questions to be answered in an examination; or

(iii) Answers to such questions;

The performance, in the course of the activities of an educations¹ institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recording, if the audience is limited to such staff and students, the parents and guardian of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording

The making of sound recordings in respect of any literary, dramatic or musical work, if-

(i) Sound recordings of that work have been made by or with the license or consent of the owner of the right in the work;

(ii) the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf: Provided that-

(i) No alterations shall be made which have not been made previously by or with the consent of the owner of rights, or which are not reasonably necessary for the adaptation of the work for the purpose of making the sound recordings;

(ii) The sound recordings shall not be issued in any form of packaging or with any label which is likely to mislead or confuse the public as to their identity;

(iii) No such sound recording shall be made until the expiration of two calendar years after the end of the year in which the first sound recording of the work was made; and

(iv) The person making such sound recordings shall allow the owner of rights or his duly authorized agent or representative to inspect all records and books of account relating to such sound recording.

Provided further that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this clause, the Copyright Board is, prima facie, satisfied that the complaint is genuine, it pass an order ex parte directing the person making the sound recording cease from making further copies and, after holding such inquiry as it Considers necessary, make such further order as it may deem fit, including order for payment of royalty;

The causing of a recording to be heard in public by utilizing it,

(i) In an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or

(ii) As part of the activities of a club or similar organization which is not established or conducted for profit;

The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution;

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 publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public;

The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a public library for the use of the library if such book is not available for sale in India;

The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access:

Provided that where the identity of the author of any such work or, in the case of a work of joint authorship, of any of the authors is known to the library, museum or other institution, as the case may be, the-provisions of this clause shall apply only if such reproduction is made at a time more than sixty years from the date of the death of the author or, in the case of a work of joint authorship, from the death of the author whose identity is known or, if the identity of more authors than one is known from the death of such of those authors who dies last;

The reproduction or publication of-

(i) Any matter which has been published in any Official Gazette except an Act of a Legislature;

(ii) Any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter;

(iii) The report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government;

(iv) Any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be;

The production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made there under-

(i) If no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or

(ii) Where a translation of such Act or rules or orders in that language has been produced or published by the Government, if the translation is not available for sale to the public:

Provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorized or accepted as authentic by the Government;

The making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture;

The making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any premises to which the public has access;

The inclusion in a cinematograph film of-

(i) Any artistic work permanently situate in a public place or any premises to which the public has access; or

(ii) Any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film;

The use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work:

Provided that he does not thereby repeat or imitate the main design of the work

The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself.