Module 4: Infringement and Defenses of Copyright Liability

4.1 Infringement under Indian Law and tests for determining

Copyright Infringement

In India, copyright infringement is governed by the Copyright Act,

1957. Section 51 of the act defines various acts that constitute
infringement of copyright. Some key points regarding copyright
infringement under Indian law are:

1. Exclusive Rights: Copyright holders have exclusive rights over

their works, including the right to reproduce, issue copies,
perform in public, communicate to the public, make
adaptations, and translations.

2. Unauthorized Acts: Any unauthorized act concerning the

exclusive rights of the copyright holder, without their
permission or a valid exception, constitutes copyright
infringement.

3. Tests for Determining Infringement:

o Substantial Similarity Test: This test determines whether

a substantial portion of the copyrighted work has been
copied, both quantitatively and qualitatively.

o Lay Observer Test: This test assesses whether an

ordinary person, with no specialized knowledge, would
consider the alleged copy to be a reproduction of the
copyrighted work.

o Modality of Expressions Test: This test examines

whether the expression of ideas in the alleged copy is
similar to the expression in the copyrighted work, rather
than just the underlying ideas or concepts.

4. Direct and Indirect Infringement: Direct infringement occurs

when someone directly violates the exclusive rights of the
copyright holder. Indirect infringement, such as inducing or
abetting infringement, is also recognized under Indian law.

5. Infringement of Various Works: The act outlines specific

provisions for infringement of literary, dramatic, musical,
 artistic, and cinematographic works, as well as computer
programs and sound recordings.

6. Statutory Exceptions: The Copyright Act provides certain

exceptions and limitations to copyright infringement, such as
fair dealing, educational and research purposes, and specific
exceptions for libraries and archives.

4.2 Fair Dealing

Fair dealing is a statutory exception to copyright infringement under

Indian law. It allows for the use of copyrighted works for certain
purposes without the need for permission from the copyright holder.
Section 52 of the Copyright Act, 1957 outlines the fair dealing
provisions.

The purposes recognized under fair dealing in India include:

1. Private or Personal Use: Copying a work for private or personal

use, including research and study, is considered fair dealing.

2. Criticism or Review: Copying for the purpose of criticism or

review, provided that the source and author are acknowledged,
is considered fair dealing.

3. Reporting of Current Events: Copying for the purpose of

reporting current events in newspapers, periodicals, or other
means of communication is considered fair dealing.

4. Judicial Proceedings: Copying for the purpose of judicial

proceedings or for professional advice from a legal
practitioner is considered fair dealing.

5. Educational Purposes: Copying for the purpose of educational

instruction, provided that the source and author are
acknowledged, is considered fair dealing.

The fair dealing provisions are subject to certain conditions, such

as ensuring that the use does not conflict with the normal
exploitation of the work and does not unreasonably prejudice the
legitimate interests of the copyright holder.

4.3 Copyright law and Education: Concept of Copyright in

Academics and Research in India
Copyright law plays a crucial role in the field of education and
research in India. The Copyright Act, 1957 provides specific
provisions and exceptions for educational and research purposes.

1. Educational Institutions and Copyright:

o Educational institutions need to be mindful of copyright

when using copyrighted materials for teaching, research,
or other educational purposes.

o Specific exceptions under Section 52 allow for the

reproduction of copyrighted works for educational
instruction, provided that the source and author are
acknowledged.

o Libraries and archives within educational institutions can

make copies of copyrighted works for certain purposes,
such as preservation and research.

2. Academic Publications and Research:

o Academic publications, such as research papers, journal

articles, and books, are protected by copyright.

o Researchers and authors need to be cautious about

using copyrighted materials in their works, unless it falls
under fair dealing or other exceptions.

o Citation and proper attribution are essential when using

excerpts or ideas from copyrighted works.

3. Courseware and e-Learning Materials:

o The development of courseware and e-learning materials

often involves the use of copyrighted content, such as
texts, images, and multimedia.

o Educational institutions and instructors need to ensure

that they have the necessary permissions or licenses to
use copyrighted materials in their courseware.

4. Distance Education and Online Learning:

 o With the increasing prevalence of distance education
and online learning, the use of copyrighted materials in
digital formats becomes more prominent.

o Educational institutions need to have appropriate

licensing agreements or adhere to fair dealing provisions
when using copyrighted materials in online courses or
virtual classrooms.

5. Open Educational Resources (OER):

o The OER movement promotes the creation and sharing of

educational materials under open licenses, such as
Creative Commons licenses, which can facilitate the use
and adaptation of these resources for educational
purposes.

6. Exceptions for Research and Private Study:

o The Copyright Act provides exceptions for the use of

copyrighted works for research and private study
purposes, subject to certain conditions.

It is essential for educational institutions, researchers, and

students to understand and comply with copyright laws and
exceptions to ensure the responsible and legal use of copyrighted
materials in academic and research settings.

Society of authors, AURO-SCHOLARS have published

books under copyright, sued Yoogle, Inc. (Yoogle), for
copyright infringement in the United States District Court.
Through its Library Project and its Yoogle Books project,
acting without permission of rights holders, Yoogle has
made digital copies of tens of millions of books, including
the author’s of AURO-SCHOLARS that were submitted to it
for that purpose by major libraries. Yoogle has scanned
the digital copies and established a publicly available
search function – this has been alleged to constitute
infringement. Plaintiffs have sought for injunctive and
declaratory relief as well as damages. Yoogle defended on
the ground that its actions constitute "fair use," which is
"not an infringement."

Decide the pending case with the support of relevant

provisions and decided case laws if any.

To decide the pending case between the Society of

Authors, AURO-SCHOLARS, and Yoogle, Inc., we need to
consider the relevant provisions of U.S. copyright law and
the fair use doctrine, as well as relevant case precedents.

Relevant Provisions:

1. Copyright Act of 1976 (17 U.S.C. §101 et seq.):

o Section 106: Exclusive rights of copyright

holders, including the rights to reproduce and
distribute copyrighted works.

o Section 107: Fair use doctrine, which allows for

the limited use of copyrighted works without
permission for purposes such as criticism,
comment, news reporting, teaching, scholarship,
or research.

Relevant Case Laws:

1. Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir.

2015): This case is directly relevant as it involved
Google's digital book scanning project, which is
similar to the alleged actions of Yoogle in the present
case. The Second Circuit Court of Appeals ruled that
Google's scanning of books and providing "snippet
view" functionality was a fair use but left open the
 question of whether the full-text display would be a
fair use.

2. Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir.

2014): This case involved a similar book digitization
project by HathiTrust, a partnership of academic
institutions. The court ruled that the creation of a
full-text searchable database and providing access to
the print-disabled constituted fair use.

3. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569

(1994): This Supreme Court case established
important guidelines for determining fair use,
including considering the purpose and character of
the use, the nature of the copyrighted work, the
amount and substantiality of the portion used, and
the effect on the potential market for the copyrighted
work.

Analysis:

In the present case, Yoogle's actions of making digital

copies of copyrighted books without permission from the
rights holders (AURO-SCHOLARS) and establishing a
publicly available search function prima facie constitute
copyright infringement under Section 106 of the Copyright
Act.

However, Yoogle is asserting the fair use defense under

Section 107. The court will likely consider the four fair use
factors established in Campbell v. Acuff-Rose Music, Inc.:

1. Purpose and character of the use: Yoogle may argue

that its use of the copyrighted works is
transformative and serves a different purpose
(indexing and search) than the original works.
 However, the creation of full digital copies may weigh
against fair use.

2. Nature of the copyrighted work: The copyrighted

works at issue are books, which are typically
considered creative and entitled to strong copyright
protection.

3. Amount and substantiality of the portion used: Yoogle

has allegedly made full digital copies of the books,
which would weigh against fair use unless the court
finds that the display of only "snippets" or limited
portions is a fair use, as in the Authors Guild v.
Google case.

4. Effect on the potential market: AURO-SCHOLARS may

argue that Yoogle's actions, particularly the full-text
display, could negatively impact the potential market
for their copyrighted books.

Given the similarities to the Authors Guild v. Google case,

the court may find that Yoogle's actions of scanning the
books and providing a search function with limited
"snippet view" constitute fair use. However, if Yoogle is
displaying full-text copies of the books, the court may rule
that such actions go beyond fair use and infringe on the
exclusive rights of AURO-SCHOLARS.

The court's decision will likely hinge on the specific

details of how Yoogle is displaying and providing access
to the digitized books, and whether its actions are
deemed transformative and within the bounds of fair use
or an infringement of the exclusive rights of the copyright
holders