By – Ramesh Vaidyanathan & Nidhi Tandon
Many take inspiration from the copyrighted works of others to create something new, whether it is a movie, song or painting. The works created may be adaptive, derivative or transformative. But the question is whether such inspired work is protected by the doctrine of “Fair Use” under the Copyright Act, 1957(Act). Before we dive deeper, it is important to understand the concepts of adaptation work, derivative work and transformative work.
Adaptation – A work that is the same as the original but is presented in a different format. For instance, conversion of a novel into a screenplay or a photograph converted into a statue. One of the known examples of adaptive work is Harry Potter, the famous fantasy novel that has been adapted into a movie.
Derivative work – A work based on or derived from one or more existing works but includes sufficient elements of originality. One of the known examples is the Superman movie series.
Transformative work – The work created is completely new but has taken inspiration from a pre-existing copyrighted work. Case in point is the famous Indian singer and lyricist, Dr Bhupen Hazarika, who took inspiration from Paul Robson’s Old Man River and made the Assamese song “Bistirnapaarore” that he later translated to Bengali and Hindi. In this song, he changed the lyrics completely but the essence of the original song was not changed.
Fair Use
Fair Use is considered an exception to the infringement of copyright and allows limited use of copyrighted works without the permission of the copyright holder. It allows use of copyrighted work along with some amount of value addition to the original copyrighted work.
For the inspired work to fall within the ambit of Fair Use, the following factors need to be considered:
Nature of work.
The new work is created by using one’s skill and labour, i.e., recreation of the pre–existing copyrighted work by independent research or effort.
The copyrighted work has been used merely to assist or aid the new work created.
There is no reproduction of the essential features of the pre–existing copyrighted work.
There is no intention to compete with the original copyright holder or surpass the work of the copyright holder and make improper use of the pre–existing copyrighted work.[1]
The pre–existing copyrighted work should not be the substantial part of the new work created.
The new work must be different in character and must not be a mere substitute, i.e., the theme of the work is the same but is presented and treated differently.[2]
The new work should not act as a market substitute and not affect the market share of the pre –existing copyrighted work.
Does the inspired work come under the purview of fair use?
Since both adaptive work and derivative work depend considerably on, and use, the original work, they do not fall within the ambit of fair use. It is important to note that adaptive work and derivative work are eligible for protection under the Act only if it is done by seeking necessary license from the owner of the original work. But, what about transformative work? In the case of transformative work, it takes inspiration of the original work; primarily an idea and transforms expressions from that to create new work that criticizes or offers new insights into those existing works.
What do the courts say?
In the landmark judgment of Chancellor Masters & Scholars of The University of Oxford Vs. Narendra Publishing House and Ors.[3], a well-known publisher of academic books published a text book for the students of Class XI and the agreement stipulated that the copyright in the textbooks vested with the publisher. It came to the publisher’s notice later on that the defendant was publishing guide books on mathematics comprising similar questions. The publisher filed a copyright infringement suit against the defendant and claimed copyright in mathematical questions and answers published in their textbooks. The Court ruled that the doctrine of Fair Use is an integral part of copyright law. The same idea may be developed in different ways so that the subsequent work becomes a completely new work and therefore the question of violation of copyright does not arise. The manner of use and purpose of use of the questions found in the publisher’s textbooks and the defendant’s publication was found to be different. The defendant’s works were said to be ‘transformative’ and not amounting to infringement.
Similarly, in Syndicate of the Press of The University of Cambridge Vs. B.D. Bhandari & Anr[4], the Court ruled that the concept of transformative work pertaining to literary work comes within the umbrella of Fair Use.
That having said, the law on transformative musical works is ambiguous. As mentioned above, Dr Bhupen Hazarika’s song is not a mere translation of the original song but is fundamentally a completely new song and only the idea behind the song (which is not copyrightable) has been used in creating it. Such musical works also ought to be recognized as transformative works and be included as part of the Fair Use doctrine.
In India, Fair Use provides a comprehensive list of acts as exceptions to infringement. The ambit of Fair Use is interpretative in nature, and mainly depends on the different ways in which content is used. The Fair Use exception encourages creativity and the concept of transformative work fosters the same. It can be said that transformative works form the bedrock of the doctrine of Fair Use as such works assure breathing space to the creators of such works.
[1] M/s. Blackwood & Sons Ltd. v. A.N. Parasuraman (AIR 1959 Mad. 410)
[2] Syndicate of the Press of the University of Cambridge on Behalf of the Chancellor, Masters and School and Ors. V. B.D. Bhandari and Ors(2011(47)PTC244(Del))
[3] ILR(2009)Del 221
[4] (2011)DLT 246(DB)