The Limits of Fair Use / Fair Dealing

 

There’s a difference between non-infringement vs. becoming actual claimant of the work produced to be then considered as protected under copyright, whether derived/adapted (eg. a theatrical act derived from any book which would explicitly require permission), or, transformed (eg. critical analysis & research that changes characteristics of original work to a greater degree, even without permission under fair use / fair dealing). As non-infringement work isn’t always compounded to be considered as novel minus original; irrespective of the subsequent actions of the original copyright holder; and further, depending on the length & extent of the original work, derived or transformed; question is, can such end products be actually protected under copyright?

Whether game streaming, individuals broadcasting the current events from collating data into a collage, roasting or reviews or analysis consisting of most of the original work, rather a fraction of it; all such aren’t copyrightable.

Let’s take some examples. The background score one uses from YT Library, or from MS Video Editor or Apple’s Movie Maker etc.; one can use only on that particular publishing platform or for personal use as specified in the user agreement; & can’t claim to be the copyright holder of the entire sound or video recording consisting of that score (as the fragmented features is considered original/new i.e. literary, artistic, recording, background score, images). One would ask then why no one object(ed) to many similar or any derived/adapted/reproduced online work, which has been monetised too, eg. game streaming? It’s because, the original copyright holder silently considered it as a free advertising for itself, somewhere floating in the grey area. But the real question is, & I’m going one step further, as was/is such monetising policy correct for such above content, even if the original copyright holder remain(ed) silent? Technically not, because by making such data/content monetized via merely number of clicks or hits & Clickwrap + Browsewrap agreements, the publishing platform as a publisher implicitly converted a default definition of non-commercial usage policy if in case the work isn’t being a greater degree transformative work (let’s say contrary or not, to S.52(1)(a)) for certain acts including education services, research, private use, critical analysis, reviews, research etc. that provide list of fair dealing), into making it a commercial usage policy. But again, no one can ascertain until someone raises concern; thus it becomes difficult.   

Crux is -> purpose, character & the amount of the copyrighted work used or borrowed in the proposed transformative work, defines the Fair Use / Fair Dealing. The rest is considered derived/adapted if permission taken (may be protected individually), & if not, then, infringement. And further there’s difference between borrowing from the original, & transform it to a greater degree, & the more it’s, the more resulting product can have the protection of copyright.

P.S. -> IP is needed to know the original originator, and not as the means for Exploitation of the society in general, which is said in accordance with Article 13 of TRIPS Agreement.

© Pranav Chaturvedi