DOCTRINE OF FAIR DEALING IN THE INDIAN COPYRIGHT LAW

This article has been authored by Nandini Gupta a 4th year student at University Institute of Legal Studies, Panjab University



Introduction


Copyright laws in India have been based on the English common law and statutory law. The present Copyright Act, 1957 (“Act”) replaced the 1914 Copyright Law and was made in compliance with the Berne Convention, 1886 and the Universal Copyright Convention, 1952, India being a member to both of the conventions.


Copyright Infringement is the unauthorized use of someone’s copyrighted work, thereby infringing the rights of the copyright holder. Section 51 of the Act states the conditions for copyright infringement. But copyright is not an absolute right and the law covers three types of limitations –


· Temporal Limitation

· Non – Voluntary Licenses

· Fair Dealing


The Doctrine of Fair Dealing

The doctrine of fair dealing, though nowhere defined, is an exception to the infringement of copyright. It states the conditions which define extent to which a copyrighted material can be used. In consonance with the UK Copyright laws, India has adopted the concept of Fair Dealing as well. On the other hand, the same concept is known as ‘Fair Use’ under U.S. Copyright laws. This legal doctrine originally emanated as a doctrine of equity by allowing the use of certain copyrighted works which otherwise would have been prohibited.


Lord Denning in the case of Hubbard v Vosper held fair dealing to be inevitably a matter of degree. He said –


“You must consider first the number and extent of the quotations, and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, they may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression.”


The first case of ‘Fair-Use’ in the United States of America was Folsom vs Marsh wherein four factors were laid down to determine whether a work would come under Fair Use or not by Justice Story. They were –


· The nature and object of the selections made.

· Nature of the original work.

· The amount of the work used.

· The degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.


The above factors were then codified under Section 107 of the US Copyright Act, 1976.

In the Indian law, Section 52 of The Copyright Act, 1957 deals with the doctrine of fair dealing. This legal doctrine enables a person to use someone else’s works in a limited sense without infringing the provisions of the Act. This way due credit is given to the creator of the original content while upholding the content’s originality.


It lays down certain works which would not be considered as an infringement of copyright, namely fair dealing with a literary, dramatic, musical or artistic work not being a computer program for the purposes of[i]


1. Research