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Fair Dealing under Copyright Law: Indian Perspective

Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author
of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations. The doctrine of fair use or fair dealing is an integral part of copyright law. It permits reproduction of the copyrighted work or use in a manner, which but for the exception carved out would have amounted to infringement of copyright. It has, thus, kept out the mischief of the copyright law.

The defence of fair dealing originated as an equitable doctrine allowing certain uses of literary works that copyright would otherwise have prohibited, if prohibiting such uses would stifle the very creativity which that law is designated to foster. Fair dealing also serves as an answer to those “fair” copyright proponents who actively argue that copyright, not being a patent, is not an absolute right and should therefore be balance against user rights. Indeed the fair dealing doctrine is “a key part of the social bargain at the heart of the copyright law, in which as a society we concede certain limited individual property rights to ensure the benefits of creativity to a living culture”.

India’s fair dealing doctrine, along with that of other former UK colonies, has been perceived as having the weak imperial import. Fair dealing, as found in the United Kingdom’s copyright framework has been widely characterized as restrictive, featuring an exhaustive list of defined exceptions. In contrast to Indian and UK provision, which are traditionally applied only to a work used one of the closed list of enumerated purposes, fair use in the US allows any use of a work to be fair pursuant to a set of factors that aid in the decision making process. Apart from this, the US copyright code offers an open list of permissible purposes. The US fair use defense is said to offer flexibility at the expense of certainty, fair dealing, on the other hand, is said to offer certainty but is very rigid.

Members of WTO are obliged to conform with the essential factors of exceptions to copyright as provided by the Berne Convention and Article 13 of the TRIPS agreement which lay down a 3 step test, i.e.; exception must be ‘special’; it must not conflict with normal exploitation and it must not be unreasonably prejudice the legitimate interests of rights holders. It is to be noted that even the TRIPS equations of fair dealing has been considered to be closely aligned with the US doctrine of fair use. Therefore, the US doctrine fair use provision has been construed as the ‘fairest’ of all.

Legislative context of fair dealing in India
In India, the doctrine of fair dealing is statutorily entrenched under Section 52 of the Indian Copyright Act, 1957. The English Copyright Act, 1842 was held to be applicable in India by the Bombay High Court in McMillan V. Khan Bahadur (ILR (1895) 19 Bom.557), even when the Act was not made expressly applicable to India. In 1914, the Indian Legislature passed the Copyright Act 1914, which was essentially the extension of the British Copyright Act, 1911. The Indian Legislature; however had a very limited power of modification and addition.

Fair dealing was first statutorily introduced in 1914 as a more duplication of section 2(1)(i) of the UK Copyright Act, 1911, providing that copyright would not be infringed by ‘any fair dealing with any work for the purposes of private study, research, criticism, review or news paper summary”. The current Indian Copyright Act increased the scope of fair dealing and section 52 of the same Act has been amended thrice.

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