Most discussed these days is plagiarism and copyright violations. When there is a substantial copying of the work, it crosses the limits of plagiarism and becomes infringement.

Copyright is a limited monopoly which has its origin in protection, and no monopoly can be granted over a subject-matter borrowed from the public domain. But then when a work is launched in the public domain and is required for others for either elaborating or incorporating certain aspects of it for academic research or related activities, then, without infringing the copyright of the author the only possible means to have access to it are the exceptions including the concept of fair dealing. These provisions permit using part of a copyrighted material to a certain extent.

In fact, the competing interests of the right holders and the users of copyright work rests on a delicate balance and Copyright law maintains it with the help of fair use or fair dealing provisions. 'Fair dealing' is a formulation known to jurisdictions that evolved out of the British common law copyright system. These provisions provide protection for materials taken for research or study, criticism or review, reporting the news and for purposes related to judicial proceedings.

The general purpose of copyright protection is to afford authors the right to reap the fruits of their expression and to promote the store of information and objects of culture available for public enjoyment and application. But the underlying objective of fair dealing or fair use provision is to strike a balance between author's monopoly which threatens to infringe unduly on public use of the ideas or objects of that expression and make it accessible to the public. As such the provision does not provide for any economic incentive to the author.

In India, Section 52 of the Indian Copyrights Act explains what all are not legally infringements. The section begins with fair dealing as one of the exceptions of infringement. Accordingly, "fair dealing with a literary, dramatic, musical or artistic work for the purposes of (i) research or private study; or (ii) criticism or review, whether of that work or of any other work" does not constitute infringement.

Considering what falls within the ambit of 'research and study', the Act does not define the terms but the dictionary meaning of the term 'research' as considered in decisions mean 'diligent protracted investigation especially for the purpose of adding to human knowledge, studious enquiry.'(Lal's The Copyright Act, 3rd Ed., Law Publishers India Pvt Ltd., p.562).

Elaborating the context of studies, the Section further holds that 'the reproduction of a literary work...(i) by a teacher or a pupil in the course of instruction or (ii) as part of the question to be answered in an examination; or (iii) in answer to such question.' (Sec. 52 (1) (h) of Copyright Act) also comes under exception to copyright infringement. Juxtaposing this aspect to the use of materials to publish guides the vexed question is when does such a usage amount to infringement.

In Syndicate Press of University of Cambridge & Anr. v. Kasturi Lal & Sons, 2006(32) PTC 487 (Del.), the plaintiffs were reputed publishers with an international standing and were holding all rights with regard to the publication "Advance Grammar in Use by Martin Hewings".
The subject work had been prescribed and used in several institutions and universities the world over and was inter alia prescribed by Guru Nanak Dev University, Amritsar also for the students of Bachelor of Arts Part I, II and III. The international price of the book was about $ 29 but it produced a low price edition at the price of Rs 95 approx. US $2.

The cause of action arose when the defendant had published three books, which contained brazen copies of the reproduction of the subject work including exercises and answer keys. The defendant had also copied the scheme of the exercise, answers and placement of topics. An ex-parte order of ad-interim injunction was passed in favour of the plaintiff. The defendants appeared after notice and contented that it published approved books by various universities including GNDU as well as guide books and had previously published guide books for the students of GNDU, the guides completely elucidated and clarified the English paper as per the syllabus, the plaintiffs’ book was in one volume whereas their book was in three volumes, the case fell within the exception clauses under Section 52 of the Act, the guides were published for the benefit of the students under the public domain and the guide was in the nature of research work/review. The plaintiffs presented extracts of their as well as defendant’s subject work.

The court while dealing with the facts of the case agreed to the observations of Ramesh Chaudhary & Ors. V. Ali. Mohd. (AIR 1965 J& K 101) that verbatim lifting of the text to the extent of copying the complete set of exercise and the key to such exercises can in no manner be termed as a review, criticism or a guide to the original work. There had been instances where the court had observed that copyright should never be used as a means to close all avenues of research and scholarship and all franchise of human knowledge (Kartar Singh v. Ladha Singh, AIR 1934 Lahore 777). But the instant case involved the verbatim lifting of the text to the extent of copying the complete set of exercise and the key to the exercise. And hence, the court observed that the act of the defendants could not be termed to be a review, criticism or a guide to the original work. Very well acknowledging the relevance of copyrighted work being made available for academic purposes the Court also opined that:

“ While the universal nature of knowledge and its dissemination freely is a laudatory concept but it must not transgress rights of an author guaranteed by the Copyright Act. Those who possess the ability to create also possess the right to assert that their creation be recognized and identified with them. They have the right to proclaim that no other person infringes upon their claim of originality and the right to limit the use and prevent the abuse of their creation.”

Thus in the instant case it was held that since the defendant’s book was not a criticism or review, none of the exceptions under Section 52 could be attracted and that as such the defendant’s act amounted to copyright infringement.

Determining as to what amounts to copyright infringement depends on the facts of a case. Exceptions are to be construed as aides which provide access to explore a given subject work for the benefit of those interested. When copyrighted works are used it should be in consonance with the moral justification for providing such copyright protection, that a person should be able to reap the benefits of his or her own creation or mechanical labour.