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Volume I Issue I | January 2020
DOCTRINE OF FAIR USE: RULE V. STANDARD APPROACH

- Sourish Roy1
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.
ORIGIN AND EVOLUTION OF THE DOCTRINE

Fair use or fair dealing enshrines the situations and exceptions carved out from the author’s exclusive
right over his own creation. The fair use provisions can be resorted to for the exploitation of the
author’s work without infringing the copyright in the work. The “Doctrine of Fair Use” evolved from
the famous Nineteenth Century case of Folsom v. Marsh2 where the Court set forth a four factor test
to ascertain what could be considered a fair use of a copyrightable work. To describe the delicate
difference between fair dealing and copyright infringement, Judge Story famously commented that:
"Patents and copyrights approach, nearer than any other class of cases belonging to forensic
discussions, to what may be called the metaphysics of law, where the distinctions are, or at least may
be, very subtle and refined, and, sometimes, almost evanescent."
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)
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RULE V. STANDARD APPROACH

Every statute book contains legal provisions either in the form of a rule or a standard. As the name
suggests, a rule provides for the hard empirical responses resulting from a specifically initiated trigger
event; the demarcations of the trigger and the response is strictly specific and clearly spelt out in a
narrow and inflexible manner. A standard, on the other hand, describes the trigger and the response in
a soft and flexible manner with room for using one’s mental faculties and ability of judgment to assess
the situation when the trigger is initiated. A rule is meant for strict interpretation of an exhaustive set
of trigger events whereas a standard allows wider or narrower interpretation based on the set of
available facts and the gravity of the dispute at hand.
The fair use or fair dealing provisions in the copyright law of the signatory countries to the TRIPS
agreement are framed either in the form of the rule-based formula or the standard-based test, in
accordance to the guidelines laid down in the statement of Article 13. Section 107 of the US Copyright
Act lays down a four factor standard to determine fair use of a copyrighted work, namely:
• The purpose and character of the use, whether commercial or education;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a
whole;
• The effect of the use on the potential market of the copyrighted work.
The tests are subjective in nature and the fair use of a copyrighted work is determined by the overall
result of the quantitative and qualitative analysis of all the four factors. In Kelly v. Arriba Soft3, the
fair use analysis was performed as under:
• The use was commercial in nature but transformative to the effect of facilitating the
identification of Kelly’s images in the search engine. By doing so, there was minimum loss of
integrity of Kelly’s images. Hence the first factor favours Arriba.
• The work of Kelly was copyrighted and published on the internet. It becomes a likely
presumption towards copyright infringement. So, this factor favoured Kelly.
• For facilitating identification of Kelly’s images, Arriba had to copy the entire image. So this
factor was considered neutral.
• A transformative use is less likely to affect the market of the original work. In turn, the
thumbnails of Kelly’s work on Ariba’s search engine attracted people towards Kelly’s work rather
than pushing them away. Thus this factor favoured Arriba.
The result of the analysis showed that two factors weighed in favour of Arriba in comparison to only
one factor in favour of Kelly, and the other remaining factor was neutral. The Court inferred that the
use of Kelly’s images in Arriba’s search engine was in fact a fair use of the work.
In India, the Copyright Act, 1957 is modelled on a rule-based formula with exhaustive grounds of fair
use of a copyrighted work in clauses (a) to (zc) of Sub-section 1 of Section 52. The grounds are
prescriptive in nature stating “if this, then what” in closed and unambiguous terms. Any use of a
copyrighted work which falls within the determined boundaries of any of the above-mentioned
grounds will be considered a fair use of the work, and will not invite infringement of the author’s
3
280 F.3d 934 (9th Cir. 2002)

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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)

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DOCTRINE OF FAIR USE: RULE V. STANDARD APPROACH

ORIGIN AND EVOLUTION OF THE DOCTRINE

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RULE V. STANDARD APPROACH

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