Introduction

            The legal concept of copyright gives authors, musicians, artists, and other creators protection over their creations. According to the Copyright Act, it is the solely reserved right to carry out or authorize others to carry out specified acts with respect to original literary, dramatic, musical, and artistic works, cinematography films, and sound recordings, including computer programs. For a specific period of time, it grants the holder some exclusive rights to manage the reproduction of works of authorship, including books, music, paintings, songs, and movies. The purpose of copyright is to shield the creator of a work from any unauthorized duplication or commercialization of their work. On one hand copyright grants exclusive rights to the authors and creators whereas on the other hand it sets out some limitations on the rights of the authors and creators.

           A fair dealing is a restriction on a copyrighted work owner’s rights made without the author’s consent. If a literary, dramatic, musical, or artistic work is fairly used for research, private study, criticism, or evaluation of that work or any other work, it does not violate the author’s rights. Fair dealing is the authorized copying of a work protected by copyright. The phrase “fair dealing” is not specified elsewhere in copyright law, although courts have frequently evaluated such works and tried to determine what exactly constitutes fair dealing.

Legal provisions for Fair dealing:

            Members shall limit limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the Right holder, according to Article 13 of the TRIPS (Trade Related Aspects of Intellectual Property Rights).

            According to Article 9(2) of the Berne Convention, legislation or exceptions to exclusive rights to specific extraordinary instances that do not conflict with a regular exploitation of the work and do not unreasonably impair the right holder’s legitimate interests are to be left up to the individual states.This idea has been codified in significant territorial copyright legislations, as all WTO members are required to abide by the TRIPS articles and the Berne Convention on Copyright. The exception of fair dealing is enacted and understood differently in all countries by their individual laws. In India, standard exceptions or defenses to copyright infringement are listed in Section 52 of Copyright Act, 1957.

Origin and Development of Fair Dealing:

            Copyright law is fundamentally based on the doctrine of fair dealing. The use of works protected by copyright is allowed without fear of violation. In its original form, the defense of “Fair Dealing” was a doctrine of equity that permitted the use of some copyright-eligible works in cases when it would otherwise have been illegal and would have amounted to copyright infringement. This ideology’s main goal is to prevent the development of the creativity and growth for which it was created, which is prohibited by the dogma. One of the most crucial elements of copyright law is the doctrine, which establishes a distinction between a work’s legal, bona fide fair uses and its malicious, flagrant copies.

Fair dealing was officially acknowledged in imperial copyright law for the first time in the UK Copyright Act of 1911. Three key restrictions on owner rights are provided by the fair dealing provisions: fair dealing for the purposes of non-commercial research or private study; fair dealing for the purposes of criticism or review; and fair dealing for the purposes of news reporting.

           The Indian Copyright Act, 1957, which heavily borrows from the UK Copyright law, deals with the notion of fair dealing under Section 52. The defense of fair dealing, which is elaborately incorporated in Section 52 but not elsewhere in the Act, is undefined. A fair use of a literary, dramatic, musical, or artistic work for research, private study, critique, or review, whether of that work or any other work, and for the purpose of reporting current events does not violate the author’s copyright. By adding the phrase “any work,” the Copyright Amendment Act of 2012 has expanded the range of works that can be utilized for private and individual purposes. This Amendment has expanded the application of the fair use rule to cinematography film and musical works.

Doctrine of Fair Dealing:

            The term fair dealing has not been defined in the Act. It is a legal doctrine, which allows a person to make limited use of copyrighted work without the permission of the owner.

            Whether a person’s use of copyrighted material is ‘fair’ would depend entirely upon the facts and circumstances of a given case. The line between “Fair dealing” and infringement is a thin one. In India, there are no set guidelines that define the number of words or passages that can be used without permission from the author. Only the Court applying basic common sense can decide this. It may however be said that the extracted portion should be such that it does not affect the substantial interest of the Author. Fair dealing is a significant limitation on the exclusive right of the copyright owner, it has been interpreted by the courts on a number of occasions by judging the economic right of the copyright owner. It has been interpreted by the courts on a number of occasions by judging the monetary impact it has on the copyright owner. Where the economic impact is not significant, the use may constitute fair dealing. Hubbard v Vosper, [1972] 2 Q.B. 84, is a leading English copyright law case on the defence of fair dealing. The Church of Scientology sued a former member, Cyril Vosper, for copyright infringement due to the publication of a book, The Mind Benders, criticizing Scientology. The Church of Scientology alleged that the books contained material copied from books and documents written by L. Ron Hubbard, as well as containing confidential information pertaining to Scientology courses. Vosper successfully defended the claim under the fair dealing doctrine, with the Court of Appeal deciding unanimously in his favour. The judgment given by Lord Denning clarified the scope and content of the fair dealing defence.

Doctrine of Fair Use:

            Fair use in the United States is incorporated from Justice Story’s 1841 Judgment in Folsom vs. Marsh  9. F.Cas. 342, which was based on the English fair dealing case law. Congress codified fair use in the Copyright Act of 1976. Section 107 provides that fair use for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use). Scholarship and research is not an infringement of copyright. Section 107 then lists four factors that are to be included in the determination of whether the use made of a work in any particular case is a fair use. In other words, Section 107 sets forth nonexclusive purposes and non-exclusive factors for fair use.

The Four Factors of determining Fair Use is as follows:

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole and
4. The effect of the use upon the potential market for or value of the copyrighted work.

1. The purpose and character of use:

            According to the Fair Use legislation itself, nonprofit educational uses are typically preferred over commercial ones. Additionally, the statute expressly identifies a number of uses that are particularly eligible for fair use, including news reporting, criticism, commentary, teaching, scholarship, and research. But not all charitable educational purposes are appropriate. A fair use determination is based on the application of all four criteria, not just the intent. ‘Transformative’ uses or those that are not merely replicas are likewise valued by courts. When the copyrighted work is changed into something new or has a new purpose or significance, such as when quotations are used in papers or bits of a work are combined to create a multimedia product for your own instructional requirements, fair use is more likely to be recognized..

2. The nature of the copyrighted work:

This component centers on the work being used, and depending on the attributes or features of the work, the law permits a greater or lesser scope of fair use. For instance, the unpublished status of a piece of work, like a manuscript or private letter, can be used against it in a fair use determination. According to the courts, copyright holders should have the authority to choose the details around “first publication.” It is typically discouraged and improbable that a use of a work that is commercially available but intended just for the educational market will be regarded as fair. Additionally, since courts frequently give creative works more protection, fair use generally pertains to nonfiction rather than fiction. In general, courts are more protective of art, music, poetry, and literary works.

3. The amount or substantiality of the portion used:

Although the law does not specify a specific quantity cap, it is generally true that the more you consume, the less probable it is that you are making a fair use. Usually, the amount used is assessed in relation to the length of the full original and in light of the amount required to fulfill the intended purpose. The precise original, however, is not often immediately apparent. A book chapter may only make up a small percentage of the overall work, but if the same material were to be published elsewhere as an article or essay, it would be regarded as the full piece. Additionally, the quality of the work is gauged.

            Courts have ruled that even uses of small amounts may be excessive if they take the ‘Main content of the work’. For example, a short clip from a motion picture may usually be acceptable, but not if it showcases the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “Exclusive scoop”. On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. On the other hand, a court has ruled that a ‘thumbnail’ or low-resolution version of an image is a lesser amount. Such a version of an image might adequately serve educational or research purposes.

4. The effect of use on the potential market for a value of the work:

            Perhaps more challenging than the other three aspects is the impact on the market. This factor essentially indicates that if you could have afforded to buy or obtain a license for the copyrighted material, that fact weighs against the determination of fair use. You might just need to conduct a quick market inquiry to see if the work is easily available for purchase or license in order to assess this element. If you are employing a sizable chunk of a book that is for sale at a standard market price, the work might be reasonably accessible. Market effect may be challenging to demonstrate if your goal is to conduct research or academic work. If your goal is commercial, it can be simpler to demonstrate a bad market effects. Occasional quotes or copies may not have a negative impact on the market, but copies of full software works and movies can directly affect the markets for those products.

Fair Dealing v Fair Use

Regarding the ideas of fair use and fair dealing, there is a small discrepancy in wording. While English and Indian law use the word “Fair Dealing,” US law uses the term “Fair Use.” The word “fair use,” which is used in the US but not defined by the US Copyright Act, is generally accepted to be open to interpretation by courts on a case-by-case basis. Due to the absence of a statutory definition, fair use is determined in the United States based on Justice Story’s four-factor test established in Folsom v. Marsh, where it was stated: “Look to the nature and objects of the selections made, the context in which they were made, and the context in which they are being used.

In common law countries including Great Britain, Canada, Australia, India, and New Zealand, copyright regulations provide an exception for fair dealing from copyright infringement. According to the copyright laws in these countries, fair use of a copyrighted work does not constitute infringement if it is expressly permitted. If a work is copied for a purpose other than one that is permitted by law, it cannot be considered fair use, regardless of the copier’s original intent.

          The availability of regulatory advice on how to assess the fairness of a transaction or use is another area of disagreement. Due to the lack of statutory definitions or guidelines describing how fairness is to be assessed in fair dealing laws, it is up to the courts to find the best method for judging the fairness of real transactions with protected works.

Fair Dealing under Indian Copyright Law:

Each nation has its own rules that govern how the exception of fair dealing is applied and understood. In India, Section 52 of the Copyright Act, 1957 lists common exceptions or defenses to copyright infringement. The fair dealing clause stipulates that in order for a transaction to be considered “fair,” the purposes must fit under the legally recognized categories of private use, research, criticism, and review.

The doctrine of equity has its origins in the exception of fair dealing, which, to put it simply, authorizes unauthorized use of a copyrighted work based on the facts and circumstances of a particular case. Fair dealing is not defined in the Act. It distinguishes between a true, lawful fair use of a work and a malicious blatant replica of the work. The court explained the purpose of Section 52 in Wiley Eastern Ltd. v. IIM and noted that it is to defend the freedom of expression (through research, private study, criticism or review, or reporting of current events) guaranteed by Article 19 (1) of the Indian Constitution.

            Lord Denning, while attempting to form a definition in the case of Hubbard v. Vosper, CA 1971 [1972] 2 WLR 389 said: It is impossible to define what is ‘fair dealing’, It must be a question of degree. 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, other considerations may come to mind also. But, after all is said and done, it must be a matter of impression.

India does not yet have a general guideline or a collection of rules that specify how much work can be appropriated without the creator’s consent and still fall within the exemption of fair dealing. However, there are several rules on which the court must base its decision, with the public interest being one of the most important factors. The decision in this case is primarily left to the Court’s discretion.

The Indian courts have endorsed several criteria that may be more or less important in fair dealing situations and which are not supplied by the Indian copyright statute as they have evaluated the doctrine of fair dealing, drawing mostly from UK and US methods. The following three elements have historically been stated and used by the courts while making decisions.

The Amount and substantiality of the portion used:

In Blackwood case, AIR 1959 Mad 410 which involved the reproduction of the work in the form of guides, the court rightfully held that the alleged infringer’s intention is an important but not a decisive factor in determining whether the work in question was copied so substantially that the copying would amount to negative ‘fairness’. The Court took a peculiar stand in SK Dutt v Law Book Co and Ors, AIR 1954 All 570 where the dispute was based on the use of certain quotations from a work. The Court interpreted the fact of acknowledgement by the authors of the plaintiff’s material to mean that if the authors had made any other use of the plaintiff’s book in compiling their own book, they would have acknowledged it; thus, the copying was held not to be a substantial taking.

Purpose and Character of the use:

The next consideration relates to the purpose and character of the use. Section 52 of the Indian Copyright Act also sets out an exhaustive list various purposes that fall under the domain of fair dealing. If the purpose of the reproduction is not one of those enumerated in the statute the question of fair dealing would not arise. The major purposes which the act enumerates are: private study, research, criticism and review. In V Ramaiah v K Lakshmaiah, wherein the question was, whether the Act of the respondent in writing the guide is an infringement of the copyright of the owner, the courts were cautioned to keep in mind that defendants pleading fair dealing should not have used the work without out making any independent contribution, in other words, the work must have been transformative.1989 (9) PTC 137.

The Court in Chancellor masters, which again concerned copying for the purpose of guide books, had laid down that while dealing with the issue of fair dealing, a Court should ask whether the purpose served by the subsequent work is substantially different (or is the same) from the purpose served by the prior work. To be called trans-formative, the subsequent work must be different in character, it must not be a mere substitute.

CONCLUSION:

It is clear from the foregoing that fair dealing is a crucial and significant component of the copyright law. It is also obvious that the idea of fair dealing is not well developed or advanced in India, but thanks to court rulings and other amendments, the doctrine has gained a firm footing in our country’s copyright laws, is developing further, and its application is broadening with each new ruling.

The Doctrine is required to achieve harmony or balance between the Author’s competing monopolistic interests and the general society’s creative objectives. The Doctrine of Fair Dealing encourages creativity in society, which has resulted in a vast range of innovative and amazing achievements that could not have been conceivable without its existence. Thus, in order to both promote and protect such creative works, the Doctrine is crucial and significant to both the development of creativity as well as the progress and globalization of copyright law.