Doctrine Of Fair Use

Introduction 

Intellectual Property Rights (IPR) are rights given to creators and inventors by law to safeguard their innovations, creative works, and brand names. They encompass rights in copyrights, trademarks, patents, designs, and geographical indications, among others. By granting authors the sole right to use their creations for a limited time, intellectual property rights (IPR) seek to promote innovation and creativity.

They are not absolute. To achieve a balance between private ownership and the public interest, they are subject to certain restrictions and exceptions. The Doctrine of Fair Use is one such important restriction, especially in the fields of copyright and trademark law.

What is the Doctrine of Fair Use?

The doctrine of fair use is a central tenet in intellectual property regulation (IPR), specifically in copyright and trademark, which aims to harmonize creators’ rights with the greater public interest. It permits restricted use of protected work without a right holder’s permission, but only if such use complies with the legal requirements. Fair use acts as a protection against the monopolization of expression, creativity, and knowledge in order to ensure that protection under copyright law does not come at the expense of free speech, education, or innovation.

In copyright law, fair use is judged based on four key factors, i.e., “Purpose and character of the use (e.g., commercial or educational), Nature of the original work, Amount and significance of the portion used, and Impact on the market value of the original work.”^[1] In trademark law, fair use, mostly descriptive and nominative use, is allowed so long as it is honest use, which doesn’t confuse consumers or damage the reputation of the trademark.

In an era where digital media, user-generated content, parodies, memes, and web commentary, the fair use doctrine keeps adapting. It has the significant function of ensuring balance between the sole rights of creators and the collective rights of society to make use of, utilize, and construct upon available knowledge and creativity.

In India, this principle is known as the “Doctrine of Fair Dealing”, as enshrined under Section 52 of the Copyright Act, 1957, which allows limited use of copyrighted material for purposes such as private or personal use, criticism, review, reporting current events, and education.

Fair Use and Fair Dealing

The doctrine of Fair Use, a concept under U.S. copyright law, is a flexible and open-ended exception codified in Section 107 of the U.S. Copyright Act. Originating from Folsom v. Marsh^[2], “it is assessed using a four-factor test:

1. Purpose and character of use – Educational, critical, or transformative uses (e.g., parody) are more likely to qualify, even if commercial, as seen in Campbell v. Acuff-Rose Music, Inc.^[3]
2. Nature of the work – Factual works are more likely to be considered fair use than creative works.
3. Amount used – Even small portions may be infringing if they capture the core of the original.
4. Market effect – Uses that harm the market value or potential of the original work are less likely to be fair use.”

This doctrine allows courts to adapt fair use to various contexts, including education, parody, and software, promoting innovation and access to knowledge.^[4]

In contrast, the doctrine of Fair Dealing is rooted in UK law and adopted by India through Section 52(1)(a) of the Copyright Act, 1957. It is narrower and more rule-based, listing specific permitted uses like personal use, research, criticism, review, and news reporting. Unlike U.S. law, parody, satire, and transformative uses lack clear statutory protection. However, Indian courts have increasingly interpreted fair dealing liberally, especially in public interest cases. In Civic Chandran v. Ammini Amma^[5], “the Kerala High Court recognized parody under the doctrine, laying down three measures to determine it:

1. Amount and value of the portion used,
2. Purpose of use, and
3. Potential competition with the original work.”

Thus, while India’s fair dealing remains more restrictive than U.S. fair use, its interpretation is evolving to support free expression, education, and creativity in the digital era.^[6]

Legal Framework

Doctrine Fair Use in International Law

The doctrine is not only recognised in domestic law but also in international law enshrined in the Berne Convention and TRIPS Agreement. Article 13 of TRIPS^[7], administered by the World Trade Organization (WTO), lays down a pivotal three-step test to govern exceptions and limitations to exclusive rights, i.e.,

1. “Apply only to specific and limited cases, 
2. Do not interfere with the normal commercial use of the work, and 
3. Do not unfairly harm the legitimate interests of the rights holder.”

It requires that member states only permit these restrictions under certain, exceptional circumstances. This three-step process is also given in Article 9(2) of the Berne Convention^[8] same as earlier. Under certain extraordinary circumstances that do not interfere with the work’s regular utilisation or unreasonably impact the copyright owner’s legitimate interests, it permits member countries to allow reproductions of copyrighted content. Collectively, these clauses provide a global norm that strikes a balance between the rights of creators and the general public’s access to information and cultural works, serving as the legal cornerstone for national fair use and fair dealing policies in all countries, including India.

Doctrine Fair Use in Domestic Law

1. Section 52 of the Indian Copyright Act, 1957

The statutory foundation of fair dealing in India is this provision, which specifically enumerates the circumstances in which using a work protected by copyright does not amount to infringement. key exceptions include:

• Personal use and research (Sec. 52(1)(a)(i))^[9]: Use for private study, including research.
• Criticism and review (Sec. 52(1)(a)(ii))^[10]: Use for critique or analysis, with acknowledgment.
• News reporting and current events (Sec. 52(1)(a)(iii))^[11]: Reproduction for reporting purposes.
• Judicial proceedings (Sec. 52(1)(q))^[12]: Use in court proceedings and judgments.
• Educational use (Sec. 52(1)(i), (j), etc.)^[13]: Permissible use in classrooms, libraries, or for teaching.
• Parody and satire: Although not explicitly mentioned, Indian courts (e.g., Civic Chandran v. Ammini Amma^[14]) have recognized parody as fair dealing if it meets the test of purpose, quantity, and market impact.

2. Fair Use in Trademarks – Section 30 of the Trade Marks Act, 1999

In the realm of trademarks, India also acknowledges fair use under Section 30, which covers:

• Descriptive fair use (Sec. 30(2)(a))^[15]: is the use of a mark to characterise attributes such as sort, quality, or origin. For instance, A company sells soap and says on its label: “Made with Himalayan Salt.” If “Himalayan”was a registered trademark, using it here just to describe the salt’s origin would be allowed.
• Nominative fair use (Sec. 30(2)(d))^[16]: This means using someone else’s trademark to refer to their product or service, especially to show compatibility or make comparisons, without suggesting any official link or endorsement, especially in contexts like comparative advertising, parody, or satire. 

Indian courts are very strict when it comes to nominative fair use, because it can easily confuse customers or seem like a fake endorsement. In Consim Info Pvt. Ltd. v. Google India Pvt. Ltd.^[17], “The court said that if you’re using another’s mark, it must be necessary, limited, and not misleading. The Court provided the following parameters to be kept in mind before qualifying use as nominative fair use:

1. The trademark owner’s product or service must not be readily identifiable without use of the trademark;
2. The company must use only as much of the mark as is necessary to identify the product, or service; and
3. The company must do nothing that would suggest any sponsorship or endorsement by the trademark owner that does not exist.”

In simpler words, the court will consider- can people understand what the product is without using the trademark? Only use what’s needed, not more. The use must not make it look like the original brand is involved or endorsing it; If you copy the brand’s style or color, it might look misleading.

Nominative use includes Comparative Advertising, which means using a competitor’s trademark to compare products or services can be fair use, as long as it is truthful and not misleading. And News, Commentary, and Criticism, which means using a trademark in news reports, commentary, or criticism is generally considered fair use, as long as it’s relevant to the content and not intended to mislead consumers. 

Findings- A Line Drawn on Use of Protected Content

When the use is excessive or deceptive, courts have established a clear boundary. The court determined that it was illegal to use movie tunes for amusement purposes under the guise of news reporting in India TV v. Yashraj Films^[18]. The use of the trademark “HAWKINS” in a similar stylised manner on spare parts packaging was also rejected as nominative fair use in Hawkins Cookers v. Murugan Enterprises^[19] because it might lead customers to believe that the brand was endorsed.

The court, however, affirmed the use of the “TATA” mark in a satirical online game that criticised the company’s environmental practices as fair use because it was non-commercial, non-deceptive, and in the public interest in Tata Sons v. Greenpeace International^[20]. According to the Delhi High Court’s ruling in the DU Photocopy case^[21], photocopying academic publications for student course packs was not illegal because it was done for educational purposes and did not negatively impact the original market.  

These decisions show that while use that unduly replicates essential features, harms the market, or misleads the public usually amounts to infringement, fair use is allowed when it is honest, limited, required, and unlikely to confuse or compete.

 Courts look at the intent, character, scope, and effect of usage to decide whether a use of intellectual property is fair use or infringement. Generally, commercial uses that take advantage of the original work or deceive customers usually amount to infringement, whereas transformative and restricted uses that serve the public interest, such as education, criticism, or parody, are more likely to be classified as fair use. 

Conclusion

The idea of fair use, also known as fair dealing in India, is a vital safeguard against the monopoly that intellectual property rights provide, making sure that innovation and information access are not restricted.  By evaluating elements including the usage’s impact, scope, and intent, courts establish a distinct boundary between fair use and infringement.  Commercial or deceptive uses that hurt the original work’s market are not protected, but truthful, restricted, and transformative uses for criticism, education, or the public interest are.  

Fair use is still crucial for striking a balance between the rights of artists, public access, and innovation as digital information grows.

Author: Akshaya Shankhwar, 3^rd year, NUSRL, Ranchi

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^[1] Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841).

^[2] Id. at 1.

^[3] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

^[4] Fair Dealing in India: An Analysis Vis-à-Vis Fair Use in the United States, 29 J. Intellect. Prop. Rights (2024), https://or.niscpr.res.in/index.php/JIPR/article/view/7528.

^[5] Civic Chandran v. Ammini Amma,  (1996) 1 KLT 608.

^[6] Manupatra, FAIR DEALINGS AND FAIR USE: CRITICALLY ANALYSING THE COPYRIGHT EXEMPTION DOCTRINES IN PLACE IN INDIA AND THE UNITED STATES, https://articles.manupatra.com/article-details?id=undefined&ifile=undefined (last visited Jul. 2, 2025).

^[7] Agreement on Trade-Related Aspects of Intellectual Property Rights art. 13, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299.

^[8] Berne Convention for the Protection of Literary and Artistic Works art. 9(2), Sept. 9, 1886, as revised at Paris, July 24, 1971, 1161 U.N.T.S. 3.

^[9] The Copyright Act, No. 14 of 1957, § 52(1)(a)(i).

^[10] Id. § 52(1)(a)(ii).

^[11] Id. § 52(1)(a)(iii).

^[12] Id. § 52(1)(q).

^[13] Id. §§ 52(1)(i), 52(1)(j).

^[14] Id at 5.

^[15] The Trade Marks Act, No. 47 of 1999, § 30(2)(a).

^[16] Id. § 30(2)(d).

^[17] Consim Info Pvt. Ltd. v. Google India Pvt. Ltd., 2013 (54) PTC 578 (Mad).

^[18] India TV Indep. News Serv. Pvt. Ltd. v. Yashraj Films Pvt. Ltd., 2012 SCC OnLine Del 2645.

^[19] Hawkins Cookers Ltd. v. Murugan Enters., 2008 (38) PTC 288 (Mad).

^[20] Tata Sons Ltd. v. Greenpeace Int’l, 178 (2011) DLT 705 (Del).

^[21] Chancellor, Masters & Scholars of the Univ. of Oxford v. Rameshwari Photocopy Servs., 2016 SCC OnLine Del 4859.

Link to similar articles: https://jpassociates.co.in/memes-and-copyright/