University of Botswana Law Journal - PULP

172 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
analysis, inter-operability, and protection against loss and for non-commercial
personal use. 25 All these provisions rely on the same basic principle behind
fair dealing, which is that fair dealing must be permitted for non-economic
purposes of study and analysis, but if they affect the copyright-holder’s
market adversely, they must not be allowed.
3. FAIR DEALING FOR “PRIVATE USE,
INCLUDING RESEARCH”, “CRITICISM OR
REVIEW”
Section 52(1)(a) provides for fair dealing for these purposes. In Blackwood v
Parasuraman, 26 the High Court set forth the basic principles for determining
what constitutes “private use”. In that case, the defendant had published guides
for two of plaintiff’s books. Fair dealing for the purpose of private study was
claimed, but was rejected by the Court. The Court held that private study only
covers the student copying the book for his own use, and not circulation of
copies among other students. In other words, “private study” has been given a
restricted meaning. However, problems creep up if one notices the change in
wording from “private study” in the erstwhile legislation to “private use” in the
present one, which may mean to include almost any use with the copyrighted
material as long as it is fair. In such a circumstance, one can give a more
plausible meaning to the fair dealing exception here – by limiting the scope of
“fair” in fair dealing to include only those actions which have no intention to
compete with the original and which do not have any improper or oblique
motives.
An important departure can be witnessed from the UK Act, because
of the 2003 Amendment there inserting the non-commercial purpose and
sufficient acknowledgment requirements as aforementioned, and no such
corresponding riders existing in the Indian legislation. However, the concept
of fairness itself as has been understood implies that the nature of the fair
dealing must be such so as not to affect the pecuniary interests of the
copyright-holder by competing with him. The reason why perhaps such a
requirement does not exist in the Indian Act is because it is still of foremost
significance to encourage research and study, and regardless of whether such
research is carried out by commercial organisations for commercial purposes,
it must be encouraged. It might suffice to say here that India is not ready to
restrict research and study to only non-commercial uses and the scales must
25 Section 52(1) (aa) to (ad), Copyright Act. For the position in US, see: Rice, D.A., “Sega And Beyond: A
Beacon For Fair Use Analysis ... At Least As Far As It Goes”, 19 Dayton L.Rev. 1131 (1994). See also:
Asarch, C.D., “Is Turn About Fair Play? Copyright Law and the Fair Use of Computer Software Loaded
into RAM” 95Mich. L. Rev. 654 (1996). In UK, Section 28A, 29(4A) and 50BA, CDPA, inserted by the
2003 Amendment permit making temporary copies of computer programmes and observing, testing and
studying computer programmes.
26 AIR 1959 Mad 410.