KIIT SCHOOL OF LAW , BHUBANESWAR

A Research Paper Of Intellectual Property Rights

B.A.L.L.B, SEMESTER - V

BATCH 2020-2025

UNDER THE GUIDANCE OF:

Prof. Manisha Manashwani

SUBMITTED BY -

KAUSTABH PRAKASH

2083038

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 A Comparative Analysis Of ‘Doctrine Of Fair Use’ - Vis-a-Vis
India And U.S.A

I. ABSTRACT
The Intellectual Property laws seek to promote creativity and protect creative works. The
object of the copyright law is to incentivize the works of the creators. The Copyright laws
grant an exclusive right to the owner of creative work, and the unauthorized use of a
copyrighted work amounts to infringement of the copyright. Nevertheless, this exclusive right
granted to the copyright owner over the creative works is restricted by the “Doctrine of fair
dealing.” This concept allows the public to use or access the copyrighted work for specific
limited purposes. Section 52 of the Act defines fair dealing and enumerates certain acts that
do not amount to copyright infringement. The doctrine of fair dealing is a vital concept under
the Copyright act. It aims to establish a balance between the rights bestowed upon the
copyright owner and the public, but many instances have come forward where this exception
is used in bad faith. Although the Indian legislature has adopted the factor analysis method as
established under the U.S. copyright act, there is a difference between the two. The Indian
legislation sets out an exhaustive list of provisions that come under the purview of fair
dealing and, in a way, restricts the scope of its applicability. On the other hand, the U.S. has a
far broader approach and hence provides an open-ended application that is robust and
flexible. This paper aims at identifying the concept of fair dealing in India and fair use in the
USA by identifying the difference between its application and scope.

II. INTRODUCTION
Intellectual property is an intangible property, which is the outcome of the creation of the
human mind; it includes literary, musical & artistic works, designs, images, symbols,
invention, etc., which can be used in trade and commerce. 1 The Intellectual Property law
protects the rights granted to persons over the creations of their intellect. They give an
exclusive right to the creators over their creations for a limited period of time. The
Copyright law protects the rights of the creators of original works and gives an exclusive
right to the creator. Section 142 defines copyright as an exclusive right to perform or

1
What is Intellectual Property (IP)? Wipo.int, https://www.wipo.int/about-ip/en/ (last visited Oct 2, 2022).

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authorize the performance of any of the following acts in relation to a work or a significant
portion thereof, namely:

1. “Reproduce the work in any form, including storing the work in any form.

2. Issue copies of the work to the public.

3. Perform the work in public.

4. Make any cinematographic film in respect of the work.

5. Translate the work.

6. Make an adaptation of the work.”

Copyright protects all original works of literature, art, music, and drama, as well as sound
recordings and cinematography. The originality of the work is the most significant
consideration when it comes to copyright. In the context of art, original work refers to
creations that are not derivatives of prior works. Unique work is protected regardless of its
substance or quality.

Using another person’s copyrighted work without their consent is considered a copyright
violation. It is the unauthorized use of another person’s work that results in the violation of
the copyright holder’s rights, such as the right to distribute, display, reproduce, or publicly
perform the protected work. Section 513 of the Act provides for acts that amount to
infringement of copyright. Copyright holders’ rights are not unassailable, but they are
restricted in specific ways.

There are many acts and works listed in Section 524 that are not considered infringements of
copyright and are known as statutory exceptions instead. These works can be accessed by
the public at large for specified purposes as enumerated under the section. The main
exception to infringement of copyright is the “Doctrine of fair dealing.”

This doctrine allows the public to use the copyrighted work for limited purposes as
specified in the section without seeking the permission of the copyright owner. The doctrine

2
The Copyright Act, 1957, § 14, No. 14, Acts of Parliament, 1957 (India).
3
The Copyright Act, 1957, § 51, No. 14, Acts of Parliament, 1957 (India).
4
The Copyright Act, 1957, § 52, No. 14, Acts of Parliament, 1957 (India).

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of fair dealing is recognized in the U.K. and India, while fair use is recognized in the USA.
This doctrine was established in the Berne Convention6 and the TRIPS agreement. The
Court in Kartar Singh Giani v. Ladha Singh5 stated that the “fair dealing concept functions
as a limitation and exception to the exclusive and in a way monopolistic right granted by
copyright law.” Again in the case of Chancellor Masters and Scholars of the University of
Oxford vs Narendra Publishing House and Ors6, fair dealing was established as an integral
component of the copyright law. The concept of fair dealing in the United Kingdom is
restrictive and enumerates an exhaustive list of exceptions in the Copyright, Designs and
Patents Act, 1988. Fair dealing in India is majorly based on the U.K. copyright laws and
hence is inflexible.

III.LITERATURE REVIEW

1. Archana. K, “An Analysis on the Principle of Fair Dealing with Special Reference to
Delhi University Photocopy Case.”7 The author states that it has become easy to make
photocopies of the published materials since the invention of the photocopy machine. Since
then, there has been a violation of the copyright as more and more people are making
photocopies of printed materials without authorization. However, the copyrighted work was
utilized to make unauthorized copies of the same, and it was passed off under “fair use.”
The copyright act fails to define the extent of fair use, and hence there have been increased
instances of copyright violation. The author analyzes the concept of fair dealing and
suggests reforms pertaining to the existing legislation.

2. Ayush Sharma, “Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or
Lex Ferenda?”8 The author states that although India has tried to take inspiration from the
USA regarding the fair dealing concept, it has taken a restrictive view and dealt with only
limited issues.
The courts have failed to address several other issues, such as malafide intention. This
concept is a vital part of the Act, but its widespread application is not clearly defined. The

5
Kartar Singh Giani v. Ladha Singh, AIR 1934 Lahore 777
6
2011 (47) P.T.C. 244 (Del)
7
Archana. K, An Analysis On The Principle Of Fair Dealing With Special Reference To Delhi University
Photocopy Case, 7 European Journal of Molecular & Clinical Medicine (2020).
8
Ayush Sharma, Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or Lex Ferenda?, 14
Journal of Intellectual Property Rights , 523-531 (2009).

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provision of fair dealing in the Copyright Act is concise and hence does not explicitly define
the ambit of its application.

3. Dr Prashant Kumar, “Understanding Copyright and the Principle of Fair Use.”9 The
author points out the doctrine of fair dealing is based on the notion that the public needs to
have access to copyrighted work for the purpose of reviewing, criticizing, or creating a
parody for the same. Certain factors are taken into consideration while deciding fair use, such
as the manner in which the copyrighted work is used, the kind of the work, the extent of the
reproduction, and the financial impact of the same on the owner. The researcher construes
this to be true and hence states that deciding the quantum fair use is subjective.

4. Revant Ranjan, “THE FAIR DEALING EXCEPTIONS UNDER INDIAN COPYRIGHT

LAW: A CRITICAL APPRAISAL.”10 The author critically analyses the doctrine of fair dealing
in India and states that this doctrine is limited and confined in application compared to the
USA legislation, which is flexible and broader in the application. The Indian courts are yet to
explore this concept fully, which is the need of the hour. The author also says that there is a
need to balance the interest of the copyright holder and the general public while interpreting
the provisions of fair dealing so that one does not gain at the cost of the other and equilibrium
is maintained.

IV.RESEARCH OBJECTIVES
A.To observe and understand the concept of fair dealing in India.
B. To understand through various studies and landmark cases how Indian courts are dealing
with fair dealing.
C.To understand the impact of fair dealing on the publishing industry.
D.To understand whether fair dealing is really fair.

V.ANALYSIS
I. FAIR DEALING IN INDIA

9
Dr. Prashant Kumar, Understanding Copyright and the Principle of Fair Use, 22 IOSR Journal of Humanities
and Social Science, 104-106 (2017).
10
Revant Ranjan, THE ‘FAIR DEALING’ EXCEPTIONS UNDER INDIAN COPYRIGHT LAW: A
CRITICAL APPRAISAL, 5 South Asian Law Review Journal (2019).

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Fair dealing in India is an exception to the law, which typically safeguards any material
which is considered copyrighted under the Copyrights Act .

It was introduced in India in the year 1914. Although, prior to the conceptualization of this
doctrine in India, in McMillan vs Khan Bahadur Shamsul Ulama Zaka,11 it was held that the
English Copyright law was applicable in India during the rule of the British. The provision
laid down stated that there shall be no copyright infringement by “any fair dealing with any
work for the purposes of private study, research, criticism, review or newspaper summary.”
The Indian legislature was considered to be a weak import of the U.K. Copyright laws, and
hence it was considered to be restrictive in nature.

The current Indian Copyright Law was passed in the year 1957 and was based majorly on
the Copyright law of the U.K. Section 52, deals with the concept of fair dealing, and it has
been amended thrice in 1983, 1994, and 2012. It is a legal doctrine that allows individuals to
use any work protected by the Act to a limited extent in order to preserve the originality of
such a copyrighted work. In India, judges use common sense to decide what constitutes fair
dealing on a subjective outlook by looking at the facts of the cases. The exclusive right
afforded to the copyright owner is severely curtailed by this measure. The courts have
interpreted this by taking into account the economic impact on the copyright owner in
various cases. If the user has a negligible economic impact, then it may be considered fair
dealing. India adopted the “Doctrine of Fair dealing” according to the U.K. Copyright Laws,
which is referred to as fair use in the USA.

Certain seminal instances, like “Gyles vs Wilcox,” which established the notion of “Fair
Abridgment,” and “Folsom vs Marsh,” which established the concept of “Fair Dealing,”
serve as precedents for the Indian cases. The notion of Fair Dealing began to include
musical or cinematographic works with the recent amendment to the Act that is the
Copyright (Amendment) Act.12

Apart from works in computer programming, personal and private works have been
modified since then, and the scope has been expanded to encompass the Indian regime of
Fair Dealing. Fair Dealing has aided disabled people, who can now easily access and share
research or educational materials with other disabled people for private or personal use.

11
1895 (ILR) Bom 557.
12
The Copyright (Amendment) Act, 2012, No. 27, Acts of Parliament, 2012 (India).

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A. CASE LAWS

1. India Tv Independent News & Ors v. Yashraj films Pvt. ltd 13-The defendant aired a
show about the lives of musicians in which they performed their own songs while movie
scenes played in the background as the performance was being videotaped. The Plaintiff, in
this case, alleged that showing this clip in the documentary’s background violated its
copyright. In this case, Section 52 was invoked by the defendants, and they took the defence
of fair dealing. Later, the Court ruled in support of Plaintiff and ordered the defendants to
refrain from making, distributing, or transmitting any cinematograph film or sound
recording, in whole or in part, that belongs to Plaintiff.

This conflict raged for many years, and a variety of viewpoints were considered. Upon
review of an appeal arising from this ruling, the High Court of Delhi further found that the
usual approach to dealing with Section 52 must be overridden. The bench then overturned
the Judge’s orders and tightened the limits that had been placed. Despite this, the appellants
were nonetheless barred from airing the film without a license. As a result of the Copyright
(Amendment) Act26, fair dealing extended to “musical recordings and cinematograph films.”
By rejecting its inflexible and conventional approach, this case resulted in significant
changes and advancements in the fair dealing approach. It was because of this the courts
have begun to realize that there is still a lot of work to be done in order to keep law up to
date with the ever-changing technical and scientific backdrop.

2. Civic Chandran v. Ammini Amma14 - “As a result of this precedent-setting case, the
Kerala High Court ruled that even significant copying of copyrighted work is acceptable if
the copying serves the interests of the public. The objective of reproducing artistic work,
i.e., counter drama, was not misappropriation, said the Court. The duplication was to
generate a play similar to the original.”

Instead, the goal was to reveal the original drama’s fallacy and condemn the ideas it
promoted to the public. Copying for the purpose of criticism did not violate copyright
because it constituted fair dealing.

13
India TV Indepent News Services Pvt. Ltd v. Yahsraj Films Pvt. Ltd., 2013 (53) PTC 586 (Del).
14
Civic Chandran vs Ammini Amma 16 PTC 329 (Kerala).

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A parody was not found to be a copyright violation in this case because the parody was not
exploited or misappropriated. For the purposes of determining whether or not a work is
infringing on someone else’s copyright, the Court established three criteria:

 “the quantum and value of the matter taken in relation to the comments or
criticism;
 the purpose for which it is taken; and
 The likelihood of competition between the two works.”
Although the Indian courts have time and again established the importance of fair dealing in
India and have done away with the traditional approach of dealing with such cases, the
provisions of this section are exhaustive and inflexible. There is a need to widen the horizon
of this concept and include more acts under the ambit of this concept.

II. FAIR USE IN THE USA

The concept of fair dealing in India cannot be understood unless compared to Fair use in the
USA. This doctrine limits the power vested with the copyright owner and seeks to establish
a balance between the copyright owner and the public. The USA does not provide a
comprehensive list of acts that constitute fair use as done in India and the U.K. Instead, it
provides specific factors that decide fair use and hence has a broader scope. The case of
Gyles vs Wilcox established the concept of “fair use.” It was because of this particular case
the idea of “Fair Abridgment,” which was later renamed “Fair Dealing,” was formed. The
Court handed down its first decision on the Fair Use Law principle in this case.

It was found that an abridged version of material that falls under the ambit of copyright can
be regarded as a “new work” that would be independent of the original. This new work
would not infringe upon the rights of the author as it is a creation of hard work, originality,
and creativity. Hence for further clarity, it was construed that two categories of such
abridged works would be recognized such as:

1. True Abridgements: It states that the existing work is created in the most
authentic and innocent form without violating the rights of the author. This results in
new work altogether.
2. Colored Shortenings: It states that the original work is just colored in some way,
or other changes are made to the copyrighted work.

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In Folsom v. Marsh, Justice Story set out specific elements for determining whether a
particular use of a copyrighted work is fair use or not. This was later codified in accordance
with the Copyright Act of the USA. The factors are as follows:

 “The nature and objects of the selections made;

 The nature of the original work;
 The amount is taken; and
 The degree in which the use may prejudice the sale, or diminish the profits, or
supersede

This test is applicable to works that are unpublished and does not exclude them from the
purview of this section if they are unpublished as long as the four factors mentioned above
are established. The USA copyright laws on fair use are flexible and broader in the
application. This flexible nature enables the inclusion of all types of cases relevant to this
concept and doesn’t exclude any circumstance. This provision provides for the constantly
changing and developing world by keeping its ambit expansive.

VI.CONCLUSION
In India, the notion of fair dealing has been largely adopted from the U.K. counterpart,
which is restrictive and inflexible. It enumerates a fully comprehensive list of exceptions
that are included in the purview of fair dealing. Although there have been several
amendments in the fair dealing doctrine in India to increase the purview of its applicability,
there is a need to widen its scope. The concept of fair use in the USA has a farther reach as
compared to India. Fair dealing matters in India have been dealt with in a limited capacity
by the Indian judiciary, despite adopting the “factor analysis” approach from the USA. The
courts have failed to explore the malafide intention while handling the fair dealing cases.
The exception of fair dealing is taken as an excuse to save face by many;

although the courts have tried to deal with such cases with utmost certainty, there are still
instances wherein the extent and scope have not been clearly defined. In India, the provision
of fair dealing is brief and fails to explain the extent of its applicability, whereas the
provision of fair use in the USA is extensive and flexible. When compared to America’s
well-matured copyright legislation, India’s copyright jurisprudence is still in its infancy.

The statute providing for the exception from fair dealing is quite detailed, and the courts
cannot ignore it. The courts must turn to English law and case law, which are exceptionally
adaptive and established.

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Thus, it is necessary to develop a sound copyright jurisprudence in India. Also, there is a
failure to specify what constitutes a significant or insubstantial section of a work. Although,
the approach of the Indian Courts in fair dealing has been widened, and the courts apply the
checklist by going through each circumstance of the case. The Indian courts have made
efforts to widen its ambit, but there still exists an uncertainty. The concept of fair dealing
has not been clearly defined in the Indian legislation, but just an exhaustive list of what
comes within its ambit has been stated.

VII.REFERENCES
1. Elizabeth Verkey, Intellectual Property Law and Practice (Eastern Book Company).

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2. Richard W. Stim, Intellectual Property: Patents, Trademarks, and Copyrights (Delmar
Cengage Learning 2) (2020).
3. Archana. K, An Analysis On The Principle Of Fair Dealing With Special Reference To
Delhi University Photocopy Case, 7 European Journal of Molecular & Clinical Medicine
(2020).
4. Ayush Sharma, Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or
Lex Ferenda?, 14 Journal of Intellectual Property Rights , 523-531 (2009).
5. Revant Ranjan, THE ‘FAIR DEALING’ EXCEPTIONS UNDER INDIAN
COPYRIGHT LAW: A CRITICAL APPRAISAL, 5 South Asian Law Review Journal
(2019).
6. Dr. Prashant Kumar, Understanding Copyright and the Principle of Fair Use, 22 IOSR
Journal of Humanities and Social Science, 104-106 (2017).
7. Critical Analysis Of The Fair Dealing Provision As Under India’s Copyright Law
Legalserviceindia.com, https://www.legalserviceindia.com/legal/article-4831-critical-
analysi s-of-the-fair-dealing-provision-as-under-india-s-copyright-law.html .
8. Limits on Copyright: Doctrine of Fair Use Legal Desire, https://legaldesire.com/limits-
on-copyright-doctrine-of-fair-use/ .

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