PROJECT WORK SUBMITTED ON BEHALF OF PARTIAL

FULFILMENT OF REQUIREMENT OF THE DEGREE OF

B.A. L.L.B(H)

HUMAN RIGHTS LAW PROJECT WORK

“COPYRIGHT RELATION WITH HUMAN RIGHT”

Submitted to- Submitted by

Mr. Ashutosh Tripathi Gurpreet Singh

Human Rights Faculty A11911111029,

Section A

Semester

Acknowledgment

1

I Gurpreet Singh student of Amity Law School-2, Noida semester 7, section-A

want to express my special thanks and gratitude to Mr. Ashutosh Tripathi for

entitling me this project work on “COPYRIGHT RELATION WITH HUMAN

RIGHT”. While researching on this topic I came to know about so many new

things. Secondly I would also like to thank my parents and friends who helped

me a lot in finalizing this project within the limited time frame.

Thank you.

2

TABLE OF CONTENTS1. Introduction

2. Human Right & Intellectual Property Right

3. Human Right, contribution to knowledge and Intellectual Property Right:

4. Copyright & Right to Education

5. The link between copyright law and education

6. The fundamental hurdle: the cost of learning materials

7. Oxford & Cambridge University Publishers v Rameshwari Photocopy

Services

8. Fair dealing of copyright laws in India

9. Bibliography

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1. Introduction Human rights and Intellectual Property rights, especially patent right regime, are two

branches of law that have overcome their initial shyness of each other and are now

becoming increasingly intertwined by the day. These two subjects have developed in virtual

isolation from each other for several decades. However, during the past few years, there

have been a plethora of international standard setting activities, which have begun to

explore the nooks and crannies that represent the common haunts of patent law on the one

hand and human rights law on the other. Patent rights have now spread throughout the

world by virtue of an intrinsic network of bilateral, regional and multilateral treaties like

World Trade Organisation etc. and the extensive usage of such rights that resulted from this

spread has had an inevitable effect on human rights. Perhaps an appropriate example will

be the implications for the right to health.

The aim of a ‘human rights approach’ to patents can be expressed as a desire to obtain an

inherent balance between the moral and economic rights of inventors and the wider

interests and needs of the society. An integral component of intellectual property, patents

emerged into the global limelight only during the 20th century. In the words of Carla Hesse,

“The concept of intellectual property – the idea that an idea can be owned – is a child of the

European Enlightenment.” A whole array of contrasting rights, some statutory, some

common law, some equitable, protect creative patentable inventions for varying periods of

time, against use by others of the same. Human rights, on the other hand, mean those basic

rights and freedoms to which all humans are entitled, like the right to life and liberty,

freedom of thought and expression, and equality before the law, those basic standards

without which people cannot live in dignity.

2. Human Right & Intellectual Property Right The relationship between human rights and contributions to knowledge has been at the

centre of important debates over the past several years. The International Covenant on

Economic, Social and Cultural Rights (Covenant) is in many ways the most crucial legal

instrument through which the relationship between the two fields can be examined. Firstly,

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it recognises, for instance, the rights to health and food which are some of the rights whose

realisation can be affected in developing countries that adopt or strengthen intellectual

property rights frameworks based on the commitments they take under the TRIPS

Agreement or other intellectual property rights treaties.

Secondly, it recognises at Article 15(1)c the need to reward individuals and groups that

make specific intellectual contributions that benefit society. It must be noted at the outset

that the rewards which are recognised under the Covenant are not related to existing

intellectual property rights regimes. There may be cases where the realisation of this right

may be effected through existing intellectual property rights but on the whole, there is no

necessary correspondence between the rights recognised in the Covenant at Article 15 and

existing intellectual property rights. This is important as it indicates that the Covenant

provides a basis for the recognition of all intellectual contributions and not only the ones

that fit within the existing intellectual property rights paradigm. In other words, Article

15(1)c is broad enough to accommodate the claims of traditional knowledge holders for

instance.

The Committee on Economic, Social and Cultural Rights which oversees the implementation

of the Covenant decided to examine in more detail the relationship between contributions

to knowledge and human rights several years ago. The Committee started by focusing on

the impacts of existing intellectual property rights on the realisation of human rights. This

culminated in the adoption of a Statement issued in 2001. Subsequently, the Committee

undertook the preparation of a politically and legally more significant document in the form

of a General Comment. Its adoption is expected at the next session of the Committee in

November 2004. This General Comment which would in practice replace the 2001

Statement will constitute an authoritative interpretation of Article 15(1)c of the Covenant.

Unlike the 2001 Statement, the proposed General Comment focuses mostly on the rights of

individual contributors to knowledge and gives little space to questions concerning the

impacts of intellectual property rights on human rights.

3. Human Right, contribution to knowledge and Intellectual Property Right:

There are at least two ways in which links between human rights, contributions to

knowledge and existing intellectual property rights can be analysed. Firstly, existing

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intellectual property rights can have impacts on the realisation of human rights recognised

in the Covenant such as the right to food or the right to health. These can be positive or

negative impacts depending on the specific legal regime which is introduced. In the context

of the introduction and strengthening of intellectual property rights standards brought

about through the Agreement on Trade-Related Aspects of Intellectual Property Rights

(TRIPS Agreement) in developing countries, intellectual property rights raise a number of

concern with regard to their impacts on the realisation of human rights in general and the

right to health and to food in particular.

Secondly, the Covenant includes at Article 15 a number of rights which are related to

culture and science. Article 15(1) is particularly important and reads as follows:

The States Parties to the present Covenant recognize the right of everyone:

a) To take part in cultural life;

b) To enjoy the benefits of scientific progress and its applications;

c) To benefit from the protection of the moral and material interests resulting from any

scientific, literary or artistic production of which he is the author.

The relationship between human rights and intellectual contributions was a topic of debate

during the drafting of the Covenant. Subsequently, it only came back into the limelight as a

result of problems faced by developing countries in the context of their implementation of

the TRIPS Agreement. In the past decade, there has been increasing interest for these

questions and different bodies have addressed certain aspects of the issue. The Sub

Commission on Human Rights has, for instance, come to the conclusion that:

since the implementation of the TRIPS Agreement does not adequately reflect the

fundamental nature and indivisibility of all human rights, including the right of everyone to

enjoy the benefits of scientific progress and its applications, the right to health, the right to

food, and the right to self-determination, there are apparent conflicts between the

intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and

international human rights law, on the other.

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Following what became a highly public controversy concerning access to drugs, medical

patents and the right to health in the context of the price of HIV/AIDS drugs in sub-Saharan

African countries most affected by the epidemics, the ESCR Committee decided to first

adopt a statement on intellectual property rights and human rights in 2001 as a first step

towards the adoption of a General Comment. The 2001 Statement was adopted in the

wake of the collapse of the case filed by pharmaceutical companies against the South

African government for attempting to limit their patent rights and the Doha Health

Declaration adopted by the 2001 Ministerial Conference of the WTO. In this

Statement, the ESCR Committee specifically argued that the protection of the moral and

material interests of authors must be balanced with the right to take part in cultural life also

introduced at Article 15. It argued that intellectual property protection must serve the

objective of human well-being which is primarily given legal expression through human

rights. In other words, intellectual property regimes should promote and protect all human

rights. More specifically, the Committee stated that any intellectual property rights regime

that would make it more difficult for a state to comply with its core obligations in relation to

the right to health and food would be inconsistent with the legally binding obligations of the

concerned state. In other words, the Statement was clearly concerned with the impacts that

intellectual property rights can have over the enjoyment of human rights.

The proposed General Comment was meant to build on the Statement and to provide a

more elaborate interpretation of the relationship between human rights and intellectual

property rights. The first general characteristic of the draft General Comment is that it

adopts a much narrower focus than the Statement. Firstly, it focuses only on questions

related to the recognition of intellectual contributions as human rights and only makes

passing comments on the impacts of existing intellectual property rights on the realisation

of human rights in general. Secondly, even within the context of this narrow framework, the

draft General Comment carves itself an even narrower niche by focusing exclusively on sub-

paragraph (c) of Article 15(1). In other words, it focuses on the interests and rights of the

individual author and inventor and leaves aside the other parts of Article 15(1) which focus

on everyone’s right to benefit from the development of science and to enjoy their own

culture.

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The rest of this article examines in more detail some of the main issues that arise from the

existing draft General Comment. It first analyses some issues related to the recognition of

intellectual property rights as human rights and then examines questions concerning the

impact of existing intellectual property rights regimes on the realisation of human rights.

Finally, it also examines some ways in which an intellectual property rights approach to

human rights could be made more relevant in today’s world.

4. Copyright & Right to Education Copyright is a legal right created by the law of a country, that grants the creator of an

original work exclusive rights to its use and distribution, usually for a limited time, with the

intention of enabling the creator (e.g. the photographer of a photograph or the author of a

book) to receive compensation for their intellectual effort.

Copyright is a form of intellectual property (as patents, trademarks and trade secrets are),

applicable to any expressible form of an idea or information. It is often shared, then

percentage holders are commonly called rightsholders legally, contractually and in

associated "rights" business functions. Generally rightsholders have "the right to copy", but

also the right to be credited for the work, to determine who may adapt the work to other

forms, who may perform the work, who may financially benefit from it, and other related

rights.

The Copyright Act, 1957(Act No. 14 of 1957) governs the laws & applicable rules related to

the subject of copyrights in India. Copyright Law in the country was governed by the

Copyright Act of 1914, was essentially the extension of the British Copyright Act, 1911 to

India, and borrowed extensively from the new Copyright Act of the United Kingdom of 1956.

All copyright related laws are governed by the Copyright Act, 1957. The Copyright Act today

is compliant with most international conventions and treaties in the field of copyrights. India

is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal

Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual

Property Rights (TRIPS) Agreement of 1995. Though India is not a member of the Rome

Convention of 1961, WIPO Copyrights Treaty (WCT) and the WIPO Performances and

Phonograms Treaty (WPPT), the Copyright Act is compliant with it.

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The Right to Education, envisioned at first as a Directive Principle of State Policy under the

Indian Constitution, has now become a fundamental right, enshrined in the Constitution. Its

implementation under Central and State legislation is still under way, but its evolution in

fact extended over decades, and was initiated by the judiciary.

In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Ors. [1981] AIR

746 1981 SCR (2) 516, 1981 SCC (1) 608 1981 SCALE (1) 79 the Court laid down the

foundation for the fundamental right to education, with its interpretation of the right to life,

embedded in Article 21 of the Indian constitution. It outlined a broad vision of the right to

life:

“The right to life enshrined in Article 21…means something much more than just physical

survival. Every limb or faculty through which life is enjoyed is thus protected by Article 21

and a fortiori, this would include the faculties of thinking and feeling. The right to life

includes the right to live with human dignity and all that goes along with it, namely, the bare

necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading,

writing and expressing oneself in diverse forms”

The right to education is a universal entitlement to education, recognized in the

International Covenant on Economic, Social and Cultural Rights as a human right that

includes the right to free, compulsory primary education for all, an obligation to develop

secondary education accessible to all, in particular by the progressive introduction of free

secondary education, as well as an obligation to develop equitable access to higher

education, ideally by the progressive introduction of free higher education. The right to

education also includes a responsibility to provide basic education for individuals who have

not completed primary education. In addition to these access to education provisions, the

right to education encompasses the obligation to rule out discrimination at all levels of the

educational system, to set minimum standards and to improve quality of education.

5. The link between copyright law and education The incredibly high costs of educational materials in the developing world, and the

prevalence of piracy, the importance of copyright law for developing countries is clear.

Developing countries must structure their copyright laws in ways that maximize the

availability of low cost books, as well as the ability of educational institutions to provide

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learning materials through distance learning programs without having to pay prohibitively

high royalties.

The link between copyright and learning is indeed an old one, and the free dissemination of

knowledge and culture has always informed the normative spirit. of copyright law. The first

copyright statute, The Statute of Anne, was titled An Act for the Advancement of Learning.

This approach which emphasized public interest in the circulation of knowledge was the

philosophical basis for granting limited exclusive rights to authors. Today, the concern for

the public interest has been recognized by all major international institutions and clearly

articulated in all major instruments tasked with the global regulation of copyright.

However, as Amy Kapczynski, in her insightful survey of the “access to knowledge” (A2K)

movement argues, the framing of debates on intellectual property (IP) is vital.30 For the

past two decades, IP has been framed only from the perspective of private property and the

rights of copyright owners. This has created an imbalanced system, biased towards IP rights

owners.

As P. Bernt Hugenholtz and Ruth Okediji put it:-

“Unfortunately, the idea of public interest in copyright has tended to focus on one aspect,

namely the maximum protection of creative enterprise through the grant of exclusive rights

to authors. The other component of public interest － that of ensuring optimal access to

creative works and stimulating broad dissemination of knowledge and downstream

creativity – has been historically left to the discretion of individual States, thus producing a

patchwork effect with respect to copyright limitations and exceptions.”

As such, it is essential to frame international copyright provisions in a way that redirects

copyright back to its historical purpose of securing the public interest. Recently support has

grown for such a shift, for framing IP in a human rights context. The access to knowledge

and access to medicine movements reflect this growing consensus. For our purposes,

recounting the public interest provisions embedded in international IP instruments will help

make the case for such reframing IP in this way.

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Even though the Agreement on Trade-Related Aspects of International Property Rights

(TRIPS) is primarily a trade agreement, its provisions cannot be divorced from the larger

objectives that the agreement lays out. These include the recognition, in the agreement’s of

intellectual property, including developmental and technological objectives." More

specifically, Articles 7 and 8 point to other factors that member states are to take into

account in implementing their TRIPS obligations. Article 7 titled “Objectives”, provides:

The protection and enforcement of intellectual property rights should contribute to the

promotion of technological innovation and to the transfer and dissemination of technology,

to the mutual advantage of producers and users of technological knowledge, and in a

manner conducive to social and economic welfare, and to a balance of rights and

obligations.

It is clear from the wording of the article that copyright protection is justified insofar as it

achieves the goal of social and economic welfare.

Article 8(1) then provides that member states may, in formulating or amending their laws

and regulations, adopt "measures necessary to protect public health and nutrition, and to

promote the public interest in sectors of vital importance to their socio-economic and

technological development, provided that such measures are consistent with the provisions

of this Agreement." Article 8(2) further allows for "appropriate measures... consistent with

the provisions of this Agreement" that may be needed to prevent the abuse of intellectual

property rights (IPRs) or "practices which unreasonably restrain trade or adversely affect the

international transfer of technology." It is clear from these provisions then, that when

interpreting TRIPS in the light of the agreement’s object and purpose, it is necessary to

weigh the interests of rights holders against other competing public interests, such as

educational and developmental concerns. In other words, it would be mistaken to adopt a

maximalist pro-rights view.

The “access to knowledge” agenda has also been complemented by an institutional

recognition of developmental needs. As a result of lobbying by developing countries, the

World Intellectual Property Organization (WIPO) adopted the Development Agenda which is

more receptive to the needs of developing countries. The agenda seeks to further the goals

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of the UN Millennium Declaration (2000) to which it explicitly refers for policy direction. Of

particular relevance, paragraph 6 of the Declaration states:

Global challenges must be managed in a way that distributes the costs and burdens fairly in

accordance with basic principles of equity and social justice. Those who suffer or who

benefit least deserve help from those who benefit most. Furthermore, the Declaration

affirms a commitment to ensuring that “the benefits of new technologies, especially

information and communication technologies are available to all.” The Declaration and

related Millennium Development Goals (MDGs) point to the centrality of education to

development in setting the goal of universal primary education.

Furthermore, the Declaration affirms a commitment to ensuring that “the benefits of new

technologies, especially information and communication technologies are available to all.”

The Declaration and related Millennium Development Goals (MDGs) point to the centrality

of education to development in setting the goal of universal primary education.

As a UN agency, WIPO is bound to observe the principles of the Millennium Declaration.

Given that the Millennium Declaration and the MDGs both recognize education as essential

to development, the international IP regime must be guided by educational goals.

The implementation of the Development Agenda by WIPO provides an important

opportunity for Member States to collectively discuss limitations and exceptions to IP law.

The exceptions and limitations that should receive priority in these discussions are those

which best advance the Development Agenda. These include exceptions and limitations with

respect to education, libraries, translation, interoperability and access by sensory disabled

persons.

Increasing efforts in this area have, however, been directed at the articulation of a core set

of explicit limitations and exceptions and its integration into the current multilateral system

in order to counteract the ever-expanding panoply of proprietary rights of copyright

owners. WIPO, the key institution responsible for the development of substantive standards

of international copyright law, has recently commissioned several studies on limitations and

exceptions reflecting some of these efforts.

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Building on these proposals, the recommendations for a Development Agenda adopted in

October 2007 contain a number of education-related mandates.

6. The fundamental hurdle: the cost of learning materials It is impossible to understand the challenges facing education in India—and the critical

importance of copyright law to it—without putting the costs of learning materials into

perspective. There is a common assumption that the cost of books in India is relatively low,

and hence affordable. However, a recent study on prices of books using a comparative

purchasing power analysis reveals otherwise.

This exercise yields several insights. First, absolute prices of books may often be higher in

the global South than in the global North. Second, consumers in the South have to commit

significantly higher proportions of their income to buy these books. Third, if consumers in

the United States had to pay the same proportion of their income towards these books as

their counterparts in South Africa and India, the results would be ludicrous: $1027.50 for

Mandela’s Long Walk to Freedom and $941.20 for the Oxford English Dictionary. It is

instructive then, to note that the prospect of paying $440.50 for Roy’s God of Small Things

in the United States is manifestly alarming, whereas, paying $6.60 for the book in India

(which in Indian terms is exactly the same value as $440.50 in the United States, by this

logic) is not treated with similar outrage.

A recent study conducted by the Ministry of Human Resources Development (MHRD) details

the extent of copyright piracy in India:

Book piracy, in India, primarily depends on two factors, namely, the price of the book and its

popularity. These two factors positively contribute to piracy. Piracy is generally confined to

foreign and good indigenous books because these books are demanded in large quantities

and are also priced high. The types of books pirated mostly are medical, engineering and

other professional books, encyclopedia and popular fictions. The piracy is also widespread

with respect to books published by National Council of Educational Research & Training

(NCERT), National Open School and Board(s) of Secondary Education. These books even if

priced low are having large demand. Besides the above, piracy in the form of mass

photocopying of books is largely prevalent in India, especially in and around educational

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institutions. Students borrow books from libraries and then get these photocopied from the

photocopier kept at the institution where from the books are borrowed.

It is clear then that without some means of reducing the costs of books, piracy will continue

apace, and education will continue to be hobbled. Reforms to India’s Copyright Act may

succeed in this respect where global attempts have failed.

7. Oxford & Cambridge University Publishers v Rameshwari Photocopy Services

Accompanying a team conducting a raid against a photocopying shop outside AIIMS a few

years ago a copyright lawyer had a moment of revelation akin to the apocryphal story of St

Paul’s conversion on the road to Damascus when Paul was asked by God “Why do you

persecute me?”. In this case even as the photocopier was being arrested he defiantly turned

to the lawyer and said “If I don’t sell these photocopies where do you think your doctors are

going to come from? The lawyer in question is now a leading expert on copyright and public

interest and one wonders whether a similar question posed to the lawyers representing

Oxford and Cambridge University Press would evoke a similar change of heart especially if

they considered their own route to becoming lawyers. The fact of the matter is that in most

academic disciplines textbooks are extremely expensive and unaffordable for the average

student and if one attempted to buy all the books which are prescribed for a course it would

mean that only very few privileged students would afford an education in India. While one

often hopes for a commonsensical change of heart from lawyers and copyright owners one

cannot bank on it which is why the law in India has a number of provisions which allow for

exceptions and limitation to copyright law. The educational use exception in India is indeed

one of the widest in the world and designed to address the needs of education in a

developing country. Cambridge and Oxford university press along with Francis and Tailor

have filed a copyright infringement petition against Rameshwari Photocopy services and the

Delhi university claiming that the course packs that are distributed are in violation of

copyright. Describing the course packs as infringing and pirated copies the petitioners have

claimed damages to the tune of sixty lakhs. The inflated damages sought is not surprising at

all and works within the logic of the assumption that every photocopy is a lost sale but aside

from this dubious assumption inflated sums are usually a part of the shock and awe tactics

that copyright owners use to establish a test case.

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Lets understand how course packs work and then examine the law on the point. Most

students will testify that the university library have a maximum of one to three copies of

books that are shared by hundreds of students and the course pack is therefore an

institutionalized practice to ensure that all students have access to learning materials. This

has been the subject of much controversy in many countries but particularly so in the

United States, and any one who has studied in the US will know the severe restrictions that

are placed on the ability to provide course packs even as students pay a hefty sum for

textbooks. One of the clearest exceptions in copyright is the fair use exception which

legalizes certain acts without the permission of copyright owners, and within fair use the

education exception is what governs photocopying and the creation of course packs. Of the

four principles in the US one of them include ‘the effect of the use upon the potential

market for or value of the copyrighted work’. This is a principle that has been used to

effectively narrow fair use in the US. Unlike the US which has a set of principles guiding fair

use in India we follow the English system of fair dealing which enumerates a set of statutory

exceptions and in India there are two important provisions which allow for educational

exceptions. Sec. 52(1)(i) allows for ‘the reproduction of any work by a teacher or a pupil in

the course of instruction’ or as a part of questions or answers to questions. Further Sec.

52(1)(a) allows for a fair dealing with any work (except computer programs) for the

purposes of private or personal use, including research. It is therefore very much within the

rights of the university and the students to create course packs and to access photocopies of

academic texts and articles in the course of instruction. The fact that the Copyright Act in

India does not lay down any quantitative restrictions when it comes to personal use or

educational use even though such restrictions operate for other kinds of usages is indicative

of the intention of the policy makers to ensure that there is adequate access to learning

materials. Rameshwari Photocopy services is integrated within the university system by

account of the fact that it operates on the basis of a license provided by the university which

mandates the price and nature of services and it would make sense for the university and

the photocopiers to have a unified stand since what is at stake is not just the future of a

single photocopying shop but the future of access to educational materials in India. The

Supreme Court in the Francis Coralie Mullin case (1981) has held that the right to life in Art

21 is not just about physical survival and includes the right to ‘facilities for reading, writing

15

and expressing oneself in diverse forms’. And when Copyright comes in the way of a

fundamental right it clear what should be given precedence.

8. Fair dealing of copyright laws in India

The laws relating to fair dealing have been incorporated in Section 52 of The Copyrights Act,

1957. As the Indian Copyright Act does not defines the term "fair dealing" , the courts have

on various occasions referred to the authority English caseHubbard v Vosper2 on the subject

matter. The words of Lord Denning in this case lay down a much descriptive outline of fair

dealing-

"It is impossible to define what is "fair dealing". It must be a question of degree. You must

first consider the number and extent of the quotations and extracts.... then you must

consider the use made of them....Next, you must consider the proportions...other

considerations may come into mind also. But, after all is said and done, it is a matter of

impression."

The Indian laws related to "fair dealing" is always considered rigid and conventional as it

provides an exhaustive list and any use falling out of the statutory list is considered as an act

of infringement. Unlike this, the US doctrine of "fair use" keeps its doors open for any new

exception which constitutes fair and bonafide use of a copyright work. As the Indian courts

have explored and unveiled the various facets of fair dealing, they have said that there

cannot be a definite or exhaustible list of uses which can come within the purview of fair

dealing but it has to be decided depending upon the facts and circumstances of each case.

Apparently, such conclusions have been drawn more from the US and UK approaches and

less from the Indian statutory laws.

But apparently, the Indian courts have also started paying attention to the same. The best

example of this development is the case of (INDIA TV) INDEPENDENT NEWS SERVICES Pvt.

Ltd vs YASHRAJ FILMS PRIVATE LIMITED & SUPER CASSETTES LTD VS..3, where one of the

various grounds of dispute was that the defendants "India TV" broadcasted a TV show

wherein a documentary is shown on the life of singers and they perform their own son-gs.

16

While the singer sings, clips of scenes from the movies are shown in the background. The

plaintiffs claimed that such acts of the defendants amounted to infringement of their

copyright. However, the defendants claimed that such use of the plaintiff's copyrighted

material constituted fair dealing within the meanings of section 52 of The Copyrights Act.

The Delhi High Court in its judgment restrained the defendants from distributing,

broadcasting or otherwise publishing or in any other way exploiting any cinematograph film,

sound recordings or part thereof that is owned by the plaintiff. However, if we look at the

present case from a slightly different perspective, there are certain questions which still

remain unanswered. In my opinion the argument of the counsel for defendant stating that

"the singer who has recorded a song which has gone on to become a hit has a sense of

ownership over such a song, and that it would be very unreasonable-to the point of being

unfair and cruel to the said singer, to say that he/she cannot sing the said song in a TV or

other interactive program in front of an audience, only because the copyright in the

underlying literary and musical works resides in some other person(s)" also withholds a valid

point. But since such use does not come within the exhaustive list provided under section 52

of the act, they were deprived of any remedy in the fair dealing laws.

But, after a long litigation saga, in the appeal from the above order, the Hon'ble bench of

the Delhi High Court also felt the need of a diversion from the conventional approach and

thus the decision of the single judge was set aside and the restrictions thus imposed were

accordingly removed. However, the Appellants were still prohibited from displaying any

cinematographic films without permission.

This judgment indicates that the courts also have started feeling that there is still much left

to look upon, to consider to keep the legislations hand in hand with the technological and

scientific developments going across the world.

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BIBLIOGRAPHY

1. Oxford and Cambridge University Publishers v. Students of India by

Lawrence liang, 27 august 2012, Kafila.org.

2. http://cis-india.org/a2k/publications/exceptions-limitations-education

3. India: "fair dealing" in copyrights: is the Indian law competent enough to

meet the current challenges? Article by Vaibhavi Pandey.

4. Human Right and Intellectual Property Rights. By Dr. Philippe Cullet

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