Fair Use
Fair Use
Fair Use
in
Volume I Issue I | January 2020
INTRODUCTION
The copyright in a work exists only on the expression of the work by the author; the underlying idea
in the work is uncopyrightable. Unlike patent, copyright law recognises independent creation. The
intellectual property right called Copyright stands on two basic pillars:
• Encouraging and incentivising the creation of the author; and
• Widest possible dissemination of the idea underlying the creative work among the
public.
The extent and limitations of copyright in a work is meant to balance the competing interests of the
author and that of the underprivileged class of readers. The author is entitled to the exclusive rights on
his creation and a market monopoly over it. On the contrary, the duty of a welfare State is to make
available the underlying idea in the work to all the subjects of the State so that any furtherance or
development of the disseminated idea is possible through a subsequent independent creation. The
conflicting interests have boosted the idea of bringing a fair use or fair dealing provision in the law of
copyright.
The doctrine evolved through the next century and eventually got encoded in Section 107 of the US
Copyright Act, 1976. The same was adopted in Article 13 of the Agreement on Trade-related Aspects
of Intellectual Property Rights (TRIPS) binding all member nations of the World Trade Organisation
(WTO). The statement of Article 13 confines the limitations of the author’s exclusive rights to:
• Certain special cases,
• Which do not interfere with the normal exploitation of the work, and
• Which do not unduly prejudice the legitimate interests of the right holder.
1
Student, L.L.B., Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur
2
9. F.Cas. 342 (C.C.D. Mass. 1841)
3
280 F.3d 934 (9th Cir. 2002)
exclusive right under Section 14 of the Copyright Act, 1957. In spite of following a rule-based formula,
the term “fair dealing” in clause (a) is nowhere defined in objective terms. In Hubbard v. Vosper4,
Lord Denning said the term “fair dealing” cannot be specifically defined. It is a question of degree of
copying and proportions of the copyrightable elements in the work. If an intention to replace the
author’s work and enter the market of the author can be legitimately inferred, then it shall be termed
as unfair dealing of the copyrightable work.
The question of fair dealing came before the Delhi High Court in The Chancellor Masters and
Scholars of the University of Oxford v. Narendra Publishing House and Ors.5, where the Court
adjudged the solved guide book published by the defendants to be a transformative work over the
mathematics textbooks published by the plaintiffs. A transformative work containing even the
verbatim copy of the copyrighted work has a different market than the market of the copyrighted work,
and hence can be considered a fair dealing of the copyrighted work.
CONCLUSION
A comparison drawn between the rule and standard based approach shows that a rule-based formula
is very restrictive. It does not allow the inclusion of any new exceptions, which is very possible to be
incorporated by a standard-based test. In Indian jurisprudence most litigations are argued on the
subjective term of “fair dealing” in clause (a) of Sub-section 1 of Section 52. Even the courts have
adopted the four factor test from the US Copyright jurisprudence to answer the questions on “fair
dealing” of a copyrighted work. In light of this, the standard-based test looks more comprehensive in
resolving disputes on “fair use” or “fair dealing” in copyright law.
4
(1972) 1 All ER 1023 p. 1027
5
2008(38)PTC385(Del)