How Does the Fair Use Concept Work in India?

What is Fair Use?

At the outset, it is important to clarify the usages of Fair Use and Fair Dealing. Fair Use is often used to denote both concepts in common usage, though India, strictly speaking, follows the Fair Dealing doctrine as per Commonwealth norms. For the purposes of this article, Fair Use is used as a general term, except when speaking specifically about features of Fair Dealing norms, where that is used instead.  

Fair use is a doctrine often referred in the copyright laws. It was first recognized in the case of Folsom v. Marsh. In this case it was observed that-

“……we must often, in deciding questions of this sort, look to the nature and objects of the selection made, the quantity and value of the material used and the degree to which the use may prejudice the same or diminish the profits or supersede the objects of the original work.”

Fair use depends and varies in various situations. In simple layman’s language, the concept of fair use means that a copyrightable material can be used under certain circumstances without being under any liability. Fair use is a doctrine which is used for promoting use of unlicensed works under certain given situations.

copyright, fair use

International Fair Use Norms

Under the Berne Convention, a three step test was incorporated to see if something counted as fair use or not. In 1994 it was incorporated under the TRIPS Agreement (Agreement relating to Trade Related Aspects of Intellectual Property Rights), which is bound to be followed by every signatory nation. These here cumulative tests are:

Fair use applies to certain special cases.

Which are not in conflict with the normal exploitation of the copyrightable material.

And where the legitimate rights of the right holder are not prejudiced.

Under the copyright laws of United States of America, ideas are presented in an exclusive manner- ie, each circumstance is judged by a set of four standards to see if the use is fair or not. A four factor test is prevalent to check upon whether certain acts amount to fair use, which are-

1. The purpose and the character of the use

2. The nature of the copyrighted material

3. The amount and the substantial portion of the work which is being used from the copyrighted material

4. The effect of such act on the potential market or the value of such work

In comparison, in accordance with the United Kingdom’s Copyright laws, India has adopted the concept of an inclusive list of specific circumstances of “fair dealing” for the past years. Section 52 of the Indian Copyright Act contains a list of circumstances where the one can reproduce a work and it can be considered as a fair use. It is a clearly defined statutory framework, covering instances of research, comments, news reporting, teaching etc. and to what extent they qualify as fair use.

Fair use shouldn’t be used as a license for unlimited use of creative works; it only acts as a defense when a suit for infringement of copyright is brought up. If any other act other than those mentioned under section 52 is committed it would constitute an infringement of copyright.

Indian Developments to the Fair Dealing Doctrine

While the detailed list of exceptions to infringement does make it easier for the courts and litigants to see the limits of fair use, there are still instances where such usages fall into a grey area. One such landmark case is that of Civic Chandran v Ammini Amma, where the courts discussed if parodies came under fair dealing. The answer to this was complicated; in the words of the court itself-

“The term ‘fair dealing’ has not been defined as such in the Act. But section 52(1)(a) and (b) of specifically refers to ‘fair dealing’ of the work and not to reproduction of the work. Accordingly, it may be reasonable to hold that the re-production of the whole or a substantial portion of it as such will not normally be permitted and only extracts or quotations from the work will alone be permitted even as fair dealing.”

The Court, after establishing this norm, carved out the exception as follows;

“In such cases, court has to take into consideration (1) the quantum and value of the matter taken in relation to the comments or criticism; (2) the purpose for which it is taken; and (3) the likelihood of competition between the two works”

Conclusion

Established Indian law currently has a fair dealing doctrine that is a combination of the objective (Section 52) and the subjective (the criteria detailed by the court, in case of grey-area exceptions). Our country has been able to create legitimate grounds, as this whole concept of recognizing this concept of fair dealing is to promote creativity and growth which can be expressed in several ways to encourage people to make new contents with careful consideration of the copyrighted material.

Author: Debarati Mukherjee, Legal Intern at PA Legal.

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