The Fair Use doctrine traces its origins to English common law principles and the Statute of Anne of 1710, which introduced the concept of “fair abridgment.” In the United States, the doctrine emerged through judicial interpretations and was eventually codified in Section 107 of the U.S. Copyright Act of 1976.
The Fair Use doctrine, enshrined in the Copyright Act, is a vital legal concept that strikes a balance between the rights of copyright holders and the freedom of expression and creativity for the society at large.
Doctrine of Fair Dealing is an exception to the law that would usually protect any material that would be considered to be copyrighted as under the Indian Copyright Act, 1957. The fair nature of the dealing depends on the following factors:
- The purpose of use;
- The nature of the work;
- The amount of the work used, and
- The effect of use of the work on the original.
International Application of Fair Use Doctrine
In many places throughout the world, copyright laws and practices have been impacted by the fair use concept. Although various nations may use different terminology and set different standards, the fundamental idea of balancing copyright protection with public rights never changes.
In Canada, the concept of fair dealing provides exceptions for specific purposes such as research, private study, criticism, review, news reporting, education, satire, and parody. Australia follows a similar fair dealing framework, allowing for specific uses such as research, study, criticism, review, news reporting, and parody.
The European Union has a broader framework known as “exceptions and limitations” that provide flexibility in copyright law, including fair dealing-like provisions. Countries like the United Kingdom, Germany, and France have adopted specific exceptions, resembling fair use, to enable transformative uses of copyrighted works.
Cases such as Gyles v. Wilcox had established the concept of “Fair Abridgment” and Folsom v. Marsh have established the concept of what Fair Dealing is. These cases acted as precedents to the Indian cases.
Gyles v. Wilcox, was the first case based on the idea of Fair Use law and was decided by the Court of Chancery of England. This decision had initially established the notion of “Fair Abridgment,” which later came to be known as “Fair Dealing.” In this case, the court decided whether a work that is protected by copyright can be shortened or whether such a work should be treated as a new work that is distinct from the shortened work. In this regard, Lord Hartwicke developed two categories into which such works would be distinguished. First, “True Abridgments” meaning that the work was generated in its most authentic form without breaking the copyright. Secondly, “Coloured Shortenings” meaning that colouring or certain adjustments were made to the original copyrighted work.
In Folsom v. Marsh , court decided on whether the defendants’ words use in its own publication of the letters of former President Washington constitute an act of piracy that violated plaintiffs’ copyright in the original work that the letters had been taken from. It was held that defendants’ publishing was not a reasonable and legitimate abridgment of an original work, the plaintiff’s copyright had been breached (pirated). There was no actual, substantial condensation of the contents, devoid of a true intellectual labour. There was no reason why another bookstore could not do the same if the defendants were allowed to remove 319 letters that were covered by the plaintiffs’ copyright and solely theirs. Instead of just cutting things up quickly, there must be a true, substantial condensing of the materials with intellectual labour and judgement applied, which is what adds the most value to the original work.
In a recent case Google LLC v. Oracle America, the U.S. Supreme Court ruled that Google’s use of Java API (Application Programming Interface) in developing the Android operating system was a fair use. The court found that Google’s use was transformative, served a different purpose from the original work, and did not harm the market for the original work.
Fair Use Doctrine in India
In India, the phrase “fair dealing” included in Section 52 of the Copyright Act, 1957, embodies the Fair Use Doctrine. Fair Dealing provides the restricted use of copyrighted content for particular purposes, such as research, private study, criticism, review, reporting, or legal proceedings, without the copyright holder’s consent.
Section 52 of the Copyright Act of 1957, which serves as the legal framework for the Indian government, outlines specific acts or works that cannot be regarded as copyright infringements, including fair dealing with a literary, dramatic, musical, or artistic work that isn’t a computer programme for the purposes of-
- private or personal use, including research;
- criticism or review, whether of that work or of any other work;
- the reporting of current events and current affairs, including the reporting of a lecture delivered in public.
The Indian courts have recognized the importance of fair dealing as a fundamental aspect of copyright law. In numerous judgments, Indian courts have emphasized the need to strike a balance between the rights of copyright holders and the larger public interest. The courts have adopted an approach that allows for reasonable and necessary uses of copyrighted works while safeguarding the rights of creators.
Similar to the United States, fair use analysis in India involves a consideration of several factors to determine whether a particular use qualifies as fair dealing. These factors include:
- Purpose and Character of the Use:
The purpose and character of the use are assessed, including whether it is commercial or non-profit, transformative in nature, or falls within the ambit of specific fair dealing exceptions.
- Nature of the Copyrighted Work:
The nature of the copyrighted work is examined, considering factors such as its artistic or creative nature, its factual or informational nature, and its status as a published or unpublished work.
- Amount and Substantiality of the Portion Used:
The quantity and significance of the portion of the copyrighted work used are evaluated. Using a small or insignificant portion may be more likely to be considered fair dealing.
- Effect on the Potential Market:
The potential market impact of the use is assessed. If the use significantly impairs the market value of the copyrighted work or the creator’s ability to exploit it, fair dealing may not apply.
In the case of Civic Chandran vs. Ammini Amma the Kerala High Court determined that as long as a parody has not been abused or misappropriated, it does not violate copyright. It was held that Hon’ble Courts may allow only extracts from the work as ‘fair dealing’ in accordance with Section 52 of the Copyright Act, 1957. In accordance with this decision, the Court established the three criteria listed below, which must be taken into account when determining whether a work violates copyright:
- the amount and value of the matter taken in connection to the comments or criticism
- the purpose for which it is taken
- and the possibility that the two pieces will compete.
In the case of Wiley Eastern Ltd. v. IIM, the Delhi High Court explained the purpose of Section 52 and noted that it is to defend the freedom of expression guaranteed by Article 19 (1) of the Constitution (through research, private study, criticism or review, or reporting of current events). Therefore, it may be claimed that Articles 21 and 19 both support the right to research, with Copyright law viewing it as a component of freedom of speech and the Constitution supporting it as a component of maintaining human dignity.
The Delhi High in the case of Rupendra Kashyap v. Jiwan Publishing House,dealt with the applicability of the test of “commercial exploitation” in respect of the defence of fair dealing and stated that the defence of fair dealing would not be available to a publisher who commercially exploits the original work, and in doing so, infringes the copyright, even if the publication is meant for research or private study. The Court held that the statutory defence under section 52(1)(a)(i) would not be applicable to a publisher that publishes a book for commercial exploitation and violates a copyright, even though the book may be used or be intended for use in research or private study. It was established that fair dealing for facilitation purposes is acceptable so long as it does not amount to “commercial exploitation.”
Further in 2012, in the case of New Delhi Television Limited v. ICC Development (International) Limited while dealing with the usage of ticker advertisements, the Court ruled that just because an advertisement is displayed on a copyrighted footage’s ticker when it is shown as part of a news bulletin, it does not follow that using the plaintiffs’ footage during newscasts violates the idea of fair dealing per se. As a result, it was decided that the defendant would be free to run advertisements on tickers even when new or archival footage is shown during routine newscasts, so long as they aren’t exclusively scheduled to run during the coverage of the ICC Twenty 20 World Sri Lanka 2012.
To defining the precise parameters of fair dealing is “both undesirable and impossible,” the court stated. The Delhi High Court used a “four-factor” test to establish whether the defendant engaged in “fair dealing” in its transactions:
- the nature of the copyrighted work
- the user’s intent and character
- the quantity and quality of the piece utilised
- and the impact of the use on the potential market.
The Fair Use doctrine, or its equivalent fair dealing provisions, plays a vital role in copyright law worldwide. In India, fair dealing provisions under Section 52 of the Copyright Act, 1957 ensure that creativity and free expression are not unduly stifled by copyright restrictions. The application of fair use principles globally enables transformative uses, promotes innovation, and safeguards the public’s right to access and engage with creative works. As the digital age presents new challenges and opportunities, fair use remains a fundamental legal concept that balances the rights of copyright holders with the broader public interest in creativity and free expression. Section 52 of the Copyright Act, 1957 lists common exceptions or defences to copyright infringement. The fair dealing clause stipulates that in order for a transaction to be considered “fair,” the purposes must fit into the legally recognised categories of private use, study, criticism, and review.
Fair use has found relevance in contemporary examples across various creative industries. For instance, documentary filmmakers often rely on fair use to incorporate copyrighted materials for purposes of criticism, commentary, or historical documentation. Similarly, parodies and transformative works in the realm of music, literature, and visual arts rely on fair use principles to create new and socially relevant content.
Advertisements often use copyrighted music, artwork, or film clips to create a desired effect. The application of fair use allows advertisers to use these elements within the boundaries of transformative purpose and limited scope.
 (1740) 26 ER 489
 9 F. Cas. 342, 1841 U.S. App. LEXIS 468
 141 S. Ct. 1183
 1996 AIHC 3964
 61 (1996) DLT 281
 (1996) 38 DRJ 1
 (2012) 195 DLT 61 (DB)