This blog has been authored by Ishaan Saluja a first year law student at Hidayatullah National Law University, Raipur
“Under Section 107 of the Copyright Act 1976, allowance is made for fair use for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.”
You may have come across this phrase at least once in your lifetime; maybe as the disclaimer of a YouTube video, or in the footnotes of study modules while preparing for entrance examinations. Why is this phrase used as a disclaimer or mentioned on different materials or along with content?
This exact provision of fair use is given in the Copyright Laws of the US, as mentioned above, under section 107. We have a similar, but not exactly same, provision in India which acts as an exception to infringement under copyright laws. India adopted the approach of Fair Dealing similar to the UK copyright laws. The same is given under Section 52 of the Indian Copyright Act 1957 (herein after referred to as the Act). The said provision is not very old in the Indian Copyright Laws, and the clause of “fair dealings” was added to the Act by the Copyright (Amendment) Act, 2012. This exception does not provide the right to the other party to use the whole of any copyrighted work, upon which the owner has exclusive right. However, it allows the party to use some part of the work with some additions to the original work.
Doctrine of Fair Dealing under Indian Law
The Copyright Act lays down that a person who has created an original work has an exclusive right over the work, and any other person cannot use the same work without the permission of the original owner. The kind of works included is given under Section 13 of the act. But Section 52 of the Act, as mentioned above, provides for a limited use of the said work for some select purposes, without the permission of the original owner of that work. This very provision is known as the “Doctrine of Fair Dealing”, acting as an exception to infringement under the Act.
Section 52 of the Act is somewhat narrow in nature when compared to Section 107 of the US copyright laws, which uses the doctrine of Fair Use. The ambit of Fair Dealing is not sufficiently explained in the Indian Laws. The court over the period of time have developed its ambit taking into consideration the various facts and circumstances of each case. Thus, the scope is very subjective in nature. The question in front of the court is regarding the extent to which an original work may be used by some other person without the permission of the original owner of the work.
Ambit of Fair Dealing
A variety of factors influence the use of copyrighted works that are protected by the provision of fair dealing. The primary consideration is how the copyrighted material will be used. Secondly, it is determined by the nature of the task. When an integral part or feature of a copyrighted work is used, it cannot be considered fair use or fair dealing. If only a few elements of a copyrighted work are used without causing harm to the original work, it does not constitute infringement and falls under the purview of fair dealing. Another important consideration is the impact of such copyrighted work’s use. It must be determined whether the specific use of the copyrighted work has a significant impact on the owner's competition (Messrs Blackwood and Sons Ltd. and others v. A.N. Parasuraman and others) and whether the specific use of the copyrighted work will harm the copyrighted work's potential/original market.
The copyrighted work must be replicated in such a way that it conforms to the framework of fair dealing, resulting in a transformative work created with one's own expertise and labour. The amount of change or imagination involved in a copyrighted work varies according to the characteristics of the content and other external factors. It must be done in such a way that the copyrighted work is only used to aid or facilitate the creation of the end result. The patented work should not constitute a significant portion of the material produced. It is an infringement to produce a “substantial part thereof” of a patented work without permission. As a result, copyrighted material must be reused in such a way that it is transformative when compared to the original work used in the final material prepared, as defined by fair dealing.
The test for fair use was also observed in the case of Civic Chandran v. Ammini Amma, wherein, the court mentioned the factors to be taken into consideration as follows-
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.”