INTRODUCTION
If we may imagine a scenario, wherein, ‘A’, the creator of a song, puts out the same on a social media platform, attracting a lot of media attention and public approval. ‘A’ further cashes upon the same song which he so arduously composed and later produced.
‘B’, a smaller content creator, takes a 1-minute clip out of that song and places it in the background of an animated clip from a popular cartoon episode. ‘B’ then goes on to post the same clip on the same social media platform and monetizes the views and likes the clips gets, and nowhere in the process stops to first acquire the consent of ‘A’, the creator of the song that boosted the circulation of said animated clip. On the other hand, ‘C’, a music theory teacher, in his classroom, uses a 1-minute clip from the same song in a lecture to teach his students about the intricacies of musical notes and such, without the consent of ‘A’- the original creator of the song.
In this scenario, both ‘B’ and ‘C’ have used ‘A’’s original work without ‘A’’s consent and yet, only ‘B’ would here be held liable for having infringed upon the rights that ‘A’ has over his song, being the original creator of the same. Here, ‘C’’s lack of liability has been given way through the concept of fair dealing.
The Doctrine of Fair Dealing is an age-old concept that excuses, under specific circumstances, utilization of copyrighted material without the consent of the original owner of said copyrighted material. The term ‘Fair Dealing’ had not been expressly defined under any act; instead, its interpretation has evolved through numerous judicial precedents.
Balance between Private Interest and Public Interest
![]()
EVOLUTION
This doctrine was first expressly noted in 1740 in the Court of Chancery of England, as “the Doctrine of Fair Abridgement” in the case of Gyles vs Wilcox[1]. In this case, the phrases ‘true abridgements’ and ‘coloured shortenings’ were developed by Lord Hartwicke to distinguish between authentic works and slight adjustments made in the original copyrighted work. Then, the case of Folsom v. Marsh[2] distinctively established the concept of fair dealing, wherein it was held that “One may cite fairly from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, as it is clear that if he thus cites the most important parts of the work, with a view, not to criticize but to supersede the use of original work, and substitute the review for it, such a use will be deemed a piracy…”
Both of the aforementioned cases have acted as precedents in establishing the concept of fair dealing the way it is followed today in India. From the preceding precedents, a clear inference of the meaning of the ‘Doctrine of Fair Dealing’ can be drawn. The term Fair Dealing stands for a set of limitations or exceptions to the exclusive right of the copyright owner over the use of its original creative work.
LEGAL BACKING
In India, Section 52 of the Copyright Act, 1957 provides for this particular exception to copyright infringement. However, as has already been noted above, said exception exists only in the context of certain specific circumstances. The same are as follows:
● For the purpose of teaching/ research/ private study.
● For criticism and review
● For the reporting of current events
● For utilization in judicial proceedings
● For non-commercial displays by clubs and societies
● For any other purpose that may benefit a differently abled person, however, the benefit must be non-pecuniary in nature.
The Doctrine of Fair Dealing plays a crucial role in India’s Intellectual Property Regime, in alignment with international agreements. Specifically, Article 13 of the TRIPS Agreement mandates that limitations and exceptions to exclusive rights should be restricted to special cases that do not hinder normal exploitation of the work and do not unreasonably prejudice the rights of the holder. Additionally, the Berne Convention, through Article 10(1), allows for exceptions, such as “quotations” from publicly available works, provided they adhere to fair practices and are justified by the purpose. These international covenants emphasize the importance of fair dealing and its incorporation into Indian copyright law, ensuring a balanced approach between copyright protection and the broader public interest in accessing and using copyrighted material.
PRE-REQUISITES TO FAIR DEALING
Other than this, there further exist certain conditions that must be fulfilled in order to ensure that fair dealing is indeed carried out fairly. For the same, it is necessary that the utilization of the original work must not be continuous and/or repetitive, that the portion utilized must be little and what can truly not be done without and that there were no other substitutes available for the same. Further that the utilization be done keeping in mind the interest of the public at large and not for private benefit.
It is pertinent to note that to constitute fair dealing; the credit must be given wherever due, i.e., the original creator must be duly acknowledged.
The same has been affirmed in the case of Super Cassettes Industries Limited v. Chintamani Rao[3], by Justice Vipin Sanghi, who has stated that: “The purpose – ostensibly or obliquely, should not be to ride piggy back on the work of another. The focus of attention, and interest of the producer/author of the work and the viewer/listener should not be the work of another, but the work created by the person who may, bona fide be using the work of another for the specific purpose of criticism or review of that work, or of any other work. The work of another cannot be used for any other purpose. The copyright protected work of another cannot be used out of context. There has to be an intellectual input and an original mental exercise undertaken by the person bona fide lifting or copying the literary, dramatic, musical or artistic work, which should involve either the criticism or review of the lifted/copied work, or of any other work. Copying of the work of another for any other purpose, such as, to make one’s own programme more interesting, attractive or enjoyable is not permitted. The underlying theme and focus of; and, in substance, the new work should necessarily be an exercise to either criticize or review either the bona fide copied work, or any other work. A person cannot, in the name of “fair dealing”, lift or copy literary, dramatic, musical or artistic work of another to such an extent that it ceases to be a “fair dealing” and becomes a blatant act of copying the work of another.”
CHALLENGES IN ENSURING FAIR DEALING
The challenge apparent at the first glance would have to be the subjective nature of the doctrine itself. Even though the legislature has time and again made it so that no ambiguities remain with the same, one cannot doubt that much of the subjectivity being herein referred to stems from the subjective nature of the facts of the case, which may be similar, but will rarely ever be the same.
The above has been well explored in the case of Ten Events and Entertainment v Novex Communications Private Limited & Ors[4], which involved, in a nutshell, the plaintiff, an event management enterprise filing a plaint after being asked by hotels to obtain a license from Defendants 1 to 3 who held the copyrights in the songs that the plaintiff would play in said events in the above-mentioned hotels. It was alleged that the defendants themselves had called upon the hotels to ensure that any person, playing songs in which, they (defendants) held copyright, obtained a license or a no objection certificate (NOC) from them before doing so. According to the plaintiff, no such license or NOC was required, in view of Section 52(1)(za) of the Copyright Act, 1975.
In this case, the Hon’ble Court held that for a social festivity to be granted the exemption to copyright infringement provided in Section 52(1)(za), it need not be of religious nature, and further stated, “What celebrations, and what festivities, would qualify as ―social festivities associated with the marriage‖ is clearly a pure question of fact, to be decided on a case to case basis. There cannot, in my view, be any strict yardstick by which one could definitively regard a particular function, or ceremony, as a ―social festivity associated with the marriage.” And also, that, “Then again, not every social festivity associated with the marriage qualifies for the benefit of Section 52(1)(za), read with the Explanation thereto. The social festivity in question has to be bona fide. Unfortunately, the Copyright Act does not provide any guidance as to when a particular ceremony could be regarded as bona fide. This, again, would be an issue which may arise on a case to case basis.” … “Undeniably, however, there exists a view, by a Division Bench of a Constitutional Court, that the exemption granted by the various clauses of Section 52(1), including clause (za) and the Explanation thereto, are not intended to apply to commercial festivities or ceremonies, but cater to non-profit activities”
The High Court concurred with the Defendants’ argument that a comprehensive statement asserting that there is no requirement to obtain licenses or a No Objection Certificate (NOC) from the copyright holders for playing recordings at wedding ceremonies is unmerited and cannot be granted. Therefore, forming rigid boundaries as what will or will not qualify as fair dealing is not possible.
Other than this, even though the Doctrine of Fair dealing has been scrupulously developed by the courts over time, there exist still certain facets relating to Fair dealing that pose enormous and multifaceted challenges, specifically in relation to the digital age, and encompass issues such as determining fair use with AI content generation, safeguarding data privacy, and addressing algorithmic bias. Additionally, Enforcement of Fair Dealing in the digital realm, managing global content, and navigating copyright and software complexities add further layers of complexity. These challenges intersect with the emergence of new work types, digital distribution issues, and digital copyright management.
SOLUTIONS
Addressing these multifaceted issues arising from fair dealing necessitates efforts in various areas, including:
1. Legislative Reforms: Introduction of legislative reforms include continuous adaptation of copyright laws to accommodate technological advancements while maintaining a fair balance between creators’ rights and public interests as well as introduction of regulations to ensure transparency in AI and algorithmic systems, promoting fairness and data privacy.
2. Mass Education and International Collaboration: Public education and awareness campaigns are essential to empower individuals to make informed decisions in fair dealing and copyright matters, fostering digital literacy and ethical content creation. Collaboration among stakeholders, such as creators, technology companies, policymakers, and legal experts, is encouraged to find innovative solutions. International cooperation is vital to harmonize fair dealing provisions and reduce inconsistencies in global copyright practices.
3. Technological Innovations: Investing in advanced monitoring and enforcement tools is necessary to track and mitigate copyright infringement effectively. Ethical AI development is encouraged to prioritize ethical content creation, reduce algorithmic bias, and protect privacy. Ongoing market research is conducted to gain insights into evolving digital markets and user behavior.; Investing in advanced monitoring and enforcement tools is necessary to track and mitigate copyright infringement effectively. Ethical AI development is encouraged to prioritize ethical content creation, reduce algorithmic bias, and protect privacy. Ongoing market research is conducted to gain insights into evolving digital markets and user behavior.; Investing in advanced monitoring and enforcement tools is necessary to track and mitigate copyright infringement effectively. Ethical AI development is encouraged to prioritize ethical content creation, reduce algorithmic bias, and protect privacy. Ongoing market research is conducted to gain insights into evolving digital markets and user behaviour.
CONCLUSION
It is thus well established by now what is the Doctrine of Fair Dealing and what exactly is meant by the word ‘fair’ in the context of the same. This doctrine was necessary to further the general public’s interest as it is not always possible to obtain the consent of the owner of some original work and if said was made into being a be-all and end-all condition, all of the development that has till date been possible due to the same would ipso facto cease to exist.
Further, we must take note of the fact that the things mentioned in this article are by no means conclusive and depend largely upon the context in which the concept of fair dealing is used, the facts of the case in question and the discretion of the competent authority deciding the case.
Thus, in conclusion of this article, it is being inserted that fair dealing is an ever-evolving concept and a strong defense that can be employed to lift the liability of copyright infringement, so long as the criteria required are satisfied. However, the extent and the scope of this concept are extensive to such levels that it becomes impossible to touch upon more than the mere basics in an article such as this and can only be rightly exploited through thorough research and extensive reflection upon the same.
AUTHORED BY – ARCHI JAIN
EDITED BY – SWATI AGRAWAL
[1] Gyles vs Wilcox, (1740) 3 Atk 143 : 26 Er 489
[2] Folsom v. Marsh, 9 F Cas 342, 348 (1841) [3] Super Cassettes Industries Limited v. Chintamani Rao, 2011 SCC OnLine Del 4712 [4] Ten Events and Entertainment v Novex Communications Private Limited & Ors, 2023 SCC OnLine Del 2800
