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Balancing Copyright Protection and Public Access: Fair Use and Fair Dealing in a Digital Age

Copyright law is a legal framework designed to protect the rights of creators, such as writers, musicians, artists, and other creative professionals, over their original works. This protection is codified in the Copyright Act, which defines copyright as the exclusive right granted to creators to perform or authorize certain acts in relation to their original works. These works include literary, dramatic, musical, and artistic creations, as well as cinematographic films, sound recordings, and computer programs. Copyright law gives creators the exclusive right to control the reproduction, distribution, and adaptation of their works, including books, music, paintings, songs, and movies, for a specified period.

The primary objective of copyright law is to protect the interests of authors by preventing unauthorized reproduction or exploitation of their works. It ensures that creators can reap the benefits of their intellectual efforts and maintain control over how their works are used and disseminated. This legal protection incentivizes creativity and innovation by providing creators with the assurance that their works will be safeguarded against unauthorized use.

However, copyright law also recognizes the need to balance the exclusive rights of creators with the public interest. This balance is achieved through limitations and exceptions to copyright protection. One significant limitation is the concept of fair use, which allows the use of copyrighted works without the author's permission under certain conditions.

Fair use permits the use of copyrighted material for specific purposes such as research, private study, criticism, or review. This means that individuals can legally copy and use portions of copyrighted works for these purposes without infringing on the copyright holder's exclusive rights. For example, a researcher can use excerpts from a copyrighted book for academic analysis, a student can use a section of a song for a school project, or a critic can quote from a novel in a review.

The term fair use, while crucial to copyright law, is not explicitly defined within the legislation. Instead, its scope and application have been interpreted and clarified by courts over time. Judicial interpretations have sought to outline what constitutes fair use, considering factors such as the purpose of the use, the nature of the work, the amount of the work used, and the effect of the use on the market value of the original work.

Courts have generally approached fair use on a case-by-case basis, examining whether the use of the copyrighted material falls within the permissible purposes and whether it can be considered fair under the circumstances. This interpretative process helps to adapt the concept of fair use to various contexts and evolving uses of copyrighted material.

Historical Background and Origin

The fair use & fair dealing doctrine is a cornerstone of intellectual property law that seeks to balance the protection of creators' rights with the public's interest in accessing knowledge and fostering creativity. The concept of fair use originated in the English common law tradition and has since been incorporated into statutory law in various jurisdictions, including the United States and India.

The roots of fair use can be traced back to the English case law of the 18th century. The seminal case of Folsom v. Marsh in 1841 is often cited as the foundational moment for the doctrine in American jurisprudence. Justice Story, in this case, articulated the need to weigh the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the market value of the original work. This multi-factor analysis laid the groundwork for the statutory embodiment of fair use in the United States.

International Framework

Article 13 of the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) provides specific guidelines on how member countries should handle exceptions and limitations to exclusive rights granted under copyright law. It mandates that any limitations or exceptions should be confined to particular special cases that do not conflict with the normal exploitation of the work and do not unreasonably harm the legitimate interests of the rights holder. This provision ensures that while some use of copyrighted material without permission is allowed, it does not interfere significantly with the commercial value or potential revenue of the copyrighted work.

Article 9(2) of the Berne Convention similarly addresses the issue of exceptions to exclusive rights. It states that national legislations can determine specific exceptions to copyright, as long as these exceptions are limited to special cases, do not interfere with the normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the rights holder. This clause aims to balance the protection of copyright holders with the need for public access to creative works for certain purposes, ensuring that the commercial viability and value of the copyrighted material are not undermined.

Given that all countries that are members of the World Trade Organization (WTO) are required to comply with the TRIPS Agreement and the Berne Convention, the principles outlined in these articles have been incorporated into national copyright legislations worldwide. This international framework ensures a level of uniformity in how exceptions to copyright are handled, though the specifics can vary based on national laws.

National Implementations

The concept of fair use & fair dealing, which serves as a limitation on the rights of copyright holders, is interpreted and enacted differently in various countries according to their individual legal systems. Fair dealing allows the use of copyrighted material without the permission of the rights holder for specific purposes, such as research, private study, criticism, and review.

In India, the provisions related to fair use are outlined in Section 52 of the Copyright Act, 1957. This section lists specific exceptions where the use of copyrighted material is not considered infringement. These exceptions include the use of copyrighted material for private or personal purposes, research, criticism, review, reporting current events, and other similar activities. The Indian legal framework for fair use aligns with the principles of the TRIPS Agreement and the Berne Convention, ensuring that these exceptions do not interfere with the normal exploitation of the work and do not unreasonably prejudice the rights holder's interests.

Doctrine of Fair Dealing

Fair dealing refers to specific exceptions and limitations under copyright law that allow for the use of copyrighted material without obtaining permission from the copyright owner. These exceptions are meant to balance the rights of copyright holders with the need for public access to information and cultural works.

In the context of the Indian Copyright Act, 1957, fair dealing is outlined in Section 52 of the Act. The provision of fair dealing makes it certain that for a dealing to be 'fair', the purposes have to fall within the statutorily established purposes of private use, research, criticism and review. Fair dealing, while not explicitly defined in the Indian Copyright Act, stems from the principles of equity. It allows for the justified use of copyrighted material without permission based on the specific facts and circumstances of each case. This doctrine helps distinguish between legitimate, good-faith use of a work and a malicious, outright copying of it. In the case of Wiley Eastern Ltd. v. IIM , the court explained that the purpose of Section 52 is to safeguard freedom of expression, as guaranteed by Article 19(1) of the Indian Constitution, through avenues like research, private study, criticism or review, and reporting of current events.

Further, the concept of fair dealing was elucidated by the Kerala High Court in the case of Civic Chandran v. Ammini Amma The Court determined that typically, reproducing the entire work or a substantial portion of it would not be allowed under fair dealing; only extracts or quotations would be permissible. Furthermore, the Court outlined specific factors to assess whether reproduction constituted infringement:

The quantity and significance of the material used in relation to the commentary or criticism.
The purpose for which the material was used.
The potential for competition between the original and reproduced works.
Therefore, when determining if a use falls under fair dealing, Indian courts must consider these factors.

Key Permitted Uses under Fair Dealing

Research and Private Study: Individuals are allowed to use copyrighted material for their own private research and study without the need for permission. This means they

can reproduce the material to an extent necessary for personal use. In the case of The Chancellor, Masters & Scholars of the University of Oxford & Ors. vs. Rameshwari Photocopy Services & Anr., the Delhi High Court ruled that photocopying of copyrighted books by a university for its students fell under the exception for educational purposes and was considered fair dealing.

Criticism and Review: Using copyrighted material to critique or review either that specific work or another work is permitted. This is crucial for academic and journalistic purposes, as it allows for freedom of expression and scholarly discourse. In the case of Eastern Book Company & Ors. vs. D.B. Modak & Anr., the Supreme Court of India upheld that a legal commentary on judicial pronouncements fell within the exception for criticism or review.
Reporting of Current Events: Copyrighted material can be used for reporting current events through media like newspapers, broadcasts, or digital platforms. This ensures that journalists and news organizations can inform the public about significant developments without copyright restrictions.
Judicial Proceedings and Legal Advice: The use of copyrighted work in judicial proceedings or for giving professional legal advice is allowed. This provision ensures that legal processes and the provision of legal services are not impeded by copyright law.
Educational Use: Teachers and students can use copyrighted material for instructional purposes. This includes reproduction in the course of teaching and incorporating material into examination questions and answers.
In the landmark case of The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services (2016), the Delhi High Court addressed the issue of fair dealing in the context of educational use. The plaintiffs, major academic publishers including Oxford University Press, Cambridge University Press, and Taylor & Francis, filed a lawsuit against Rameshwari Photocopy Services, a photocopy shop located within the premises of Delhi University. The shop provided course packs to students, which included photocopies of excerpts from various textbooks published by the plaintiffs. The plaintiffs argued that this

constituted copyright infringement, while the defendants, supported by Delhi University, contended that the use fell within the bounds of fair dealing as provided under Section 52 of the Indian Copyright Act.

The Delhi High Court ruled in favor of Rameshwari Photocopy Services, holding that the reproduction of copyrighted material for educational purposes constituted fair dealing under Section 52.

Doctrine of Fair Use

Fair use is a doctrine in the United States that permits limited reproduction of copyrighted material to protect public interest while balancing the rights of copyright holders. Section 107 of the U.S. Copyright Act states that fair use for purposes such as criticism, comment, news reporting, teaching (including making multiple copies for classroom use), scholarship, and research is not considered copyright infringement. It also outlines four factors to determine whether a particular use qualifies as fair use. Essentially, Section 107 provides non-exclusive examples and factors for assessing fair use.

The Four Factors of determining Fair Use is as follows:

1. Purpose and Character of the Use: Non-commercial, educational, or personal use is more likely to be considered fair.

2. Nature of the Work: Uses involving factual works are more likely to be fair compared to highly creative works.

3. Amount and Substantiality: Using a small, non-central portion of the work is more likely to be fair compared to using significant or essential parts.

4. Effect on the Market: If the use negatively impacts the market or potential market for the original work, it is less likely to be considered fair.

In Campbell v. Acuff-Rose Music, Inc . The case involved a parody of Roy Orbison's song "Oh, Pretty Woman" by the rap group 2 Live Crew. 2 Live Crew's version altered the original lyrics and added a distinctive rap style, creating a humorous and transformative work. The group sought a license from Acuff-Rose Music, Inc., the copyright holder of the original song, but was denied. Despite the denial, 2 Live Crew released the parody. The primary issue was

whether 2 Live Crew's parody constituted fair use under Section 107 of the Copyright Act, despite being a commercial work. The Supreme Court ruled in favor of 2 Live Crew, holding that the parody was protected under the fair use doctrine. The Court emphasized the transformative nature of the parody, which gave new expression and meaning to the original work. The fact that the parody was commercial did not automatically disqualify it from being fair use. While the original song was a creative work, the Court noted that parodies often need to use elements of the original work to make their point. The Court acknowledged that 2 Live Crew used a substantial portion of the original song, but found that this was necessary to achieve the parody's transformative purpose. The Court concluded that the parody would not significantly harm the market for the original song or its derivative works, as parodies typically serve a different market function than the originals.

  1. Commercial Use Without Transformative Nature:
    In Harper & Row Publishers, Inc. v. Nation Enterprises in this landmark case, the Supreme Court of the United States held that The Nation magazine's use of unpublished excerpts from President Gerald Ford's memoirs was not fair use. Despite being used for news reporting, the excerpts were taken from the heart of the work and had a direct impact on the market for the original work. The court emphasized that commercial use without transformative nature can weigh heavily against a finding of fair use1.
  2. Use of Entire Work:
    In Amarnath Sehgal v. Union of India (2005) In India, the case of Amarnath Sehgal highlighted the limits of fair dealing when the entire work is used. Sehgal, a renowned sculptor, sued the Government of India for removing and storing his mural in a way that damaged it. The court ruled in favor of Sehgal, stating that the government's actions were not justified under fair dealing provisions. This case underscored that using the entirety of a work, especially in a way that causes damage or degradation, is typically not protected under fair dealing
  3. Reproduction for Commercial Purposes:
    In Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. this case involved a television network that used music videos for commercial purposes. The Delhi High Court ruled that while limited use of copyrighted material might be permissible for news reporting, extensive use for commercial purposes without adding any new expression or meaning does not fall under fair dealing. This decision illustrates that commercial exploitation without significant transformation or commentary is not protected.

Fair Dealing v. Fair Use
Regarding the ideas of fair use and fair dealing, there is a small variance in wording. English and Indian law refers to "fair dealing", whereas US law use the phrase "fair use." It is commonly acknowledged that the meaning of "fair use," which is not specified in the U.S. Copyright Act, is subject to interpretation by courts on a case-by-case basis.

Due to the absence of a legislative definition, Justice Story's four-factor test which was established in Folsom v. Marsh is used to assess fair use in the U.S. It states: "Look to the nature and objects of the selections made the quantity and quality of the materials employed, as well as the extent to which their use could jeopardise the original work's sale, reduce its profitability or replace its goals.

According to the copyright statutes of common law jurisdictions including Great Britain, Canada, Australia, India, and New Zealand, fair dealing is an exception to copyright infringement. The copyright laws in these jurisdictions stipulate that fair dealing of a work protected by copyright will not be considered infringement if such dealing is specified in the Act. This means that, regardless of the original intent of the copier, if a work is copied for a purpose other than those listed in the statute of fair dealing purposes, the copying cannot be considered a fair dealing.

Current Challenges and Solutions in India with Regard to Doctrine
The fair use doctrine in India, known as fair dealing, is pivotal for balancing the rights of copyright holders with the public's access to knowledge and creative expression. However, the digital age and the rapid evolution of technology have presented new challenges. Below are some current challenges faced in India regarding the fair use doctrine and potential solutions to address these issues.

  • Digital Piracy and Copyright Infringement
    With the advent of the internet and digital technologies, digital piracy has become a significant challenge. Unauthorized distribution of copyrighted materials online, including films, music, and books, has escalated, making it difficult to enforce copyright laws effectively.
  • Ambiguity in Fair Dealing Provisions
    The Indian Copyright Act, 1957, provides a list of activities that constitute fair dealing, but these provisions are often vague and open to interpretation. This ambiguity can lead to inconsistent judicial decisions and uncertainty for users regarding what constitutes fair dealing.
  • Lack of Awareness and Education
    Many creators and users are not fully aware of their rights and limitations under the fair use doctrine. This lack of awareness can lead to unintentional infringement or overly cautious behaviour that stifles creativity and innovation.
  • Impact of Digital Platforms
    The rise of digital platforms like YouTube, Facebook, and Instagram has transformed the landscape of content creation and sharing. These platforms often involve user-generated content that may incorporate copyrighted material, raising questions about the application of fair use in this context.
  • Balancing Commercial Interests and Public Access
    The tension between protecting the commercial interests of copyright holders and ensuring public access to knowledge and creative works is an ongoing challenge. Overly restrictive interpretations of fair use can hinder education, research, and cultural development.

  • Clarifying Legal Provisions: There is a need to update and clarify the provisions of the Indian Copyright Act to address the nuances of digital use. Providing clearer guidelines on what constitutes fair dealing, especially in the context of digital media, can help reduce ambiguity. For instance, the law could explicitly address the use of copyrighted material in memes, parodies, and other transformative works.
  • Strengthening Enforcement Mechanisms: Enhancing enforcement mechanisms against digital piracy is crucial. This includes better cooperation between law enforcement agencies, copyright holders, and digital platforms to monitor and take down infringing content. Implementing advanced technologies for tracking and managing copyright violations can also be beneficial.
  • Educational Initiatives: Increasing awareness and education about copyright laws and fair use provisions is essential. This can be achieved through workshops, seminars, and online resources targeted at creators, educators, and the general public. Educational institutions and industry bodies can play a significant role in disseminating this knowledge.
  • Developing a Balanced Approach: Courts and lawmakers should strive for a balanced approach that protects the rights of copyright holders while promoting public access to information. This includes considering the transformative nature of the use, the purpose of the use, and the potential market impact. Developing a flexible, case-by-case approach to fair use can help achieve this balance.
  • Promoting Licensing Models: Encouraging the use of licensing models that allow for flexible and affordable access to copyrighted materials can mitigate conflicts. For example, collective licensing arrangements for educational institutions or simplified licensing for small-scale creators can help ensure that users can legally access and use copyrighted content.
  • Leveraging Technology: Utilizing technology to manage and protect copyright can be a double-edged sword. On one hand, digital rights management (DRM) technologies can help protect content; on the other hand, they should not be so restrictive that they hinder legitimate fair use. Finding a balance through technological solutions like content identification systems that can distinguish between infringement and fair use is key.
In conclusion, the evolution of copyright law, anchored by the doctrines of fair use and fair dealing, illustrates a delicate balance between protecting creators' rights and promoting public access to knowledge and creativity. From its origins in English common law to its statutory implementations in jurisdictions like the United States and India, fair use and fair dealing have adapted to new challenges posed by the digital age.

International agreements such as the TRIPS Agreement and the Berne Convention provide crucial guidelines, ensuring that exceptions to copyright do not undermine the commercial interests of rights holders. However, the rapid expansion of digital platforms and the ubiquity of user-generated content have introduced new complexities, including digital piracy and the need for clearer legal interpretations.

Addressing these challenges requires a multifaceted approach: clarifying legal provisions to accommodate digital uses, strengthening enforcement mechanisms against piracy, enhancing educational initiatives to raise awareness about copyright laws, and promoting flexible licensing models that facilitate legal access to copyrighted materials.

By navigating these issues with a balanced perspective�taking into account the transformative nature of uses, the purpose of the use, and the potential market impact�stakeholders can uphold the dual objectives of copyright law: protecting creators' rights while fostering innovation and public access to creative works. Embracing technological advancements judiciously and fostering international cooperation will be key to maintaining a robust copyright ecosystem that serves both creators and society as a whole in the dynamic digital landscape.

Written By: Pallavi Sarkar

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