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Fair use under Copyright Law

January 25, 2023

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This article is written by Nishka Kamath, a graduate of Nalanda Law College, University of Mumbai. It gives an in-depth overview of the fair use doctrine under Indian Copyright Law. Moreover, a global perspective of the fair use doctrine is talked about inter alia.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Several people draw inspiration from the copyrighted works of others to create something unique of their own, whether it’s a painting, a movie, a song, or even this article. The new work thus produced may either be adaptive, derivative, or transformative (discussed below). A question might occur to your mind as to “whether such pieces of work are protected by the doctrine of fair use under the Copyright Act, 1957 or not?” or “whether such pieces cause any copyright infringement?”

This article is an attempt to shed light on all such questions and to elucidate the concept of fair use under copyright law.

A brief history of fair use in India

The history of fair use in India goes back to the 17th century when the French expressions were copied by some English authors without prior permission. This practice of infringement in no time became inevitable, thus paving a way for enacting law(s) against copyright infringement of any copyrighted content in the coming years.

Fair use under Copyright Law: a detailed analysis

The purpose of copyright law is to safeguard the interests of the creator and their original work. The original work can only be used with prior permission from the creator; however, there are certain exceptions to this principle, one of them being the concept of fair use and fair dealings.

Fair use and fair dealing

The concepts of fair use and fair dealing are related to copyright law, but they are not synonymous with each other. Their scopes are defined under different legal systems. It is challenging to summarise adequately; below is just a brief overview of the distinctions between them.

What is fair use

As mentioned above, fair use is an exception to the infringement of copyright and enables a narrow usage of copyrighted works without the prior consent of the individual holding copyright against the original copyrighted work. It allows the usage of copyrighted work, provided some value is added to the original copyrighted piece of work. It is pertinent to know that adaptive and derivative works of an original work do not fall under the category of fair use doctrine exceptions. The factors considered for a piece of work to fall under the ambit of fair use are discussed in detail below.

What is fair dealing

Fair dealing is another exception to copyright infringement in countries like Canada, Australia, Great Britain, New Zealand, etc. These countries’ copyright acts include provisions for copyrighted works that do not constitute infringement if the dealing is specified in the act; in other words, if an original work is copied for a purpose other than the statutory fair dealing purposes, the copyright cannot be considered a fair dealing, regardless of the intentions of the individual copying the work.

In India, the terms “fair use” and “fair dealings” are used interchangeably. Let us understand the key differences between the two terms.

Difference between fair use and fair dealing: a tabular representation

Prima facie the terms ‘fair use’ and ‘fair dealing’ may sound synonymous to each other, but their scope and meaning are distinct as portrayed below:

	Fair use	Fair dealing
Applicability	For fair use, the application list is quite illustrative and subjective.	Fair dealings only apply to those uses or exceptions mentioned in the law.
Scope	Fair use has a wider scope, as only the test of fairness has to be passed, even if used for an unspecified purpose.	Whereas the scope of fair dealings is narrower in comparison to fair use, as fair dealings are applicable only for specific purposes as opposed to fair use.
Nature	Fair use is flexible and resistant to change, especially those that lead to uncertainty.	The fair dealing exceptions are said to be uncertain too, especially for terms like ‘parody’ and ‘satire’ that are not defined under any provision.

Where is the principle of fair use applicable

As mentioned above, the principle of fair use is applicable in cases of “transformative work”. For instance, one can refer to or copy certain parts of the copyrighted work to create their own work in cases of criticism or parody, among other things.

The quantity and whether the usage is just under the fair use doctrine will depend on the discretion of the court to a large extent. The court, while determining the same, will consider the circumstances and facts of the case.

Fair use under Indian Copyright Law: an overview

Section 52 of the Copyright Act, 1957

Section 52 of the Copyright Act, 1957, has provisions regarding exceptions to copyright infringement and limited usage of the already copyrighted work of an individual without prior permission. The entire Section has provisions on what constitutes fair use and fair dealings under the Copyright Act. These exceptions, along with other exceptions to the fair use doctrine, are discussed in brief below.

Berne Convention and TRIPS Agreements

The Berne Convention for the Protection of the Literary and Artistic Works, 1886, commonly known as the “Berne Convention,” along with the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement, has provisions for the incorporation of the “fair use concept” in national legislation.

Three-step test under the Berne Convention

The Berne Convention has a three-step test for fair use. It also asserts that the laws of the countries must mandatorily have provisions for reproducing work in the following instances:

In certain special cases.
The original work must not be milked/exploited by the reproductive work.
The new reproductory work must not be prejudicial against the interest of its author(s).

Examples of fair use

There is no straight-jacket formula to establish whether something qualifies as fair use; hence, it is always advisable to seek advice from a copyright attorney before taking on a significant activity that would depend on the fair use doctrine as a copyright infringement defence. However, there are some instances that have been used to portray the activities to which the doctrine is applicable. The following are some examples:

Quoting a few lines from a play

Re-quoting or using a couple of lines from a play, say, in a blog is permissible under the doctrine of fair use. The reason behind this is that the amount of work copied is quite small, and the work in the blog is oftentimes used for critical analysis. In other words, quoting or excerpting a work for the purpose of review, criticism, or comment is acceptable under the fair use doctrine.

Sharing a video parody of a renowned song online

Let us assume someone has uploaded a video parody of a popular song to Instagram. Now a question might occur in your mind, “Will that be fair use?” The answer will be yes because a parody is considered a transformative work as it creates something new.

Non-profit educational uses

Suppose a professor, say, Ms. A, has uploaded a picture of the current president on her class website, stating that this will be the topic of discussion in the next social science class as a part of the curriculum; this will be said to be fair use considering the educational motive behind it.

New reporting

In a news report, if there is a summary of an article with proper annotations and credit, such use can come under the fair use doctrine.

Any non-commercial use

Any work that is published for private commercial gain will not come under the principle of fair use.

Adaptation, derivative work, and transformative work under fair use doctrine

Before we dive into the nitty-gritty of the fair use doctrine, it is crucial that we understand the basics of it, and to do so, we need to know the following:

What is adaptation

Adaptation can be described as the original work presented distinctly. Say, the transition of a novel like that of Shakespeare’s Hamlet into a screenplay or J. K. Rowling’s famous novel, Harry Potter, into a movie.

What is derivative work

A derivative work can be defined as a work that is derived from one or more existing works but has enough original elements. For instance, the Spiderman or Superman movie series.

What is transformative work

The term “transformative work” can refer to work that is entirely new yet has been inspired by an already existing copyrighted work. For instance, the Assamese song “Bistirnapaarore” by Dr. Bhupen Hazarika took inspiration from the song “Old Man River” by Paul Robson and also translated it into Bengali and Hindi by changing the lyrics totally but keeping the essence of the song intact.

The conditions of fair use

Under copyright law, the only way to determine whether a particular use is fair use or not is via the federal courts. The judges determine the fair usage policy with the four conditions, which are discussed in detail below. It is pertinent to note that these factors act as guidelines for the courts to reach a decision; however, they are free to make decisions based on the facts of the case at hand. In simple words, the judge has the right to determine whether a particular usage is a fair use at his discretion.

The purpose and character of the use

The purpose and character of your intended use are of utmost importance when deciding whether the particular use is fair use or not. While dealing with it, a question can be asked like the one mentioned below:

Whether you are creating something new or whether the news immaterial is just a copy of the original piece.
Whether any value has been added to the original work by the new creation, such as new information, new aesthetics, new insights, or the like.
Whether the new material that has been taken from the original work transformed into a new creation by adding new expression or meaning to it.

It is pertinent to note that it is not a cakewalk to determine which creation is transformative or to what extent the original work has been transformed. For instance, in the case of Warner Bros. Entertainment, Inc. v. RDR Books (2008), the creation of the Harry Potter encyclopaedia (that made Harry Potter conditions available in one volume) has been said to be “slightly transformative,” but the transformative quality was not sufficient for the creation to come under the fair use doctrine.

The nature of the copyrighted work

There is more leeway in copying from factual works like biographies than from fictional works like plays and novels, as the same proves beneficial to the public at large. Moreover, there will be a greater advantage in copying from materials that are already published than from unpublished work, the reason being that the scope of fair use for unpublished work is not as broad as it is for published work because it is at the author’s discretion to determine how he/she would want to announce it to the public. Simply put, using information from primarily factual works will have a greater advantage under the fair use doctrine than using purely fictional works.

The volume and substantiality of the part borrowed

It is oftentimes believed that the smaller the quantity of copied material, the greater the chances of it being excused under the fair use doctrine, but that is not the case. Even if a small portion of work is copied, the same will not come under the fair use doctrine if the copied work is said to have been taken from the “heart” of the original work. So, an individual may get into trouble if he/she copies the most noteworthy aspects of the original creation. For instance, it will most likely not be fair use to copy the words “I can’t get no satisfaction” from the song “Satisfaction.”

There is no straightjacket formula for how much quantity is a fair use; however, it is said one must not quote more than a few words or paragraphs from a book, article, or poem, or add more than a chart, image, illustration, or any other artwork in a book or newsletter without the permission of the artist. However, there is no absolute word limit on fair use; for instance, adding 200 words from the copyrighted work to a 300-word new creation will not amount to fair use. Nonetheless, copying 2,000 words from a work consisting of 500,000 words may amount to fair usage. Ultimately, it all depends on the circumstances and the facts of the case.

The volume and substantiality of the part borrowed in the case of parody

The aforementioned rule does not have to be true in the case of parodies because the Supreme Court in the US case of Campbell v. Acuff-Rose Music (1994) affirmed that “the heart is also what most readily conjures up the (original) for parody, and it is the heart at which parody takes aim.” In short, as per the Supreme Court’s decision, a parodist is allowed to borrow a larger portion, even the heart of the original work, to conjure up the original work.

The effect of the usage on the prospective market

Another crucial condition under fair use is whether the new creation divests the original copyright owner of income or hinders the creation of a new or potential market for the copyrighted work. In any circumstance, if the original copyright owner is deprived of any source of income, it is very likely that a lawsuit will be filed against the owner of the transformative work, and the same will be so even when the new work is not competing with the original work.

For instance, in the case of Rogers v. Koons (1992), an artist, without taking prior permission from the owner of the copyrighted work, i.e., the creator, created wood sculptures using the copyrighted photographs of the creator and earned a huge amount of money by selling these sculptures. When the creator of the photographs sued the artist, the artist contended that the sculptures were fair use as the photographer would never have considered making sculptures using his photographs as a reference. However, the Court opined that it did not matter if the photographer had considered making sculptures or not; what actually matters is whether there is scope for a potential market for selling sculptures of the photographs or not.

The effect of the usage on the prospective market in case of parody

Even here, parody is given a distinct fair use analysis for the impact it would cause on the market, for there is a possibility that a parody may reduce or even destroy the market value of the original work, i.e., there is a possibility that the parody is so good that the public can never take the original work seriously ever again. Yashraj Mukhate’s “Rasode Me Kon Tha Song” is one such example.

A circuit judge in the case of Fisher v. Dees (1986) asserted, “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original—any bad review can have that effect—but whether it fulfils the demand for the original.”

The fifth fair use factor: Are you good or bad

While studying cases on fair use, you might come across situations where the rules contradict the ones expressed in this doctrine. Fair use includes subjective judgments, often affected by elements like the discretion of a judge or jury or his individual sense of right or wrong. Irrespective of the fact that offending a judge is not fair use, an individual should be aware that a morally offended judge or jury may rationalise its decision against fair use.

For instance, in the case of Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc. (1986), a manufacturer of novelty cards parodied the successful children’s dolls, the Cabbage Patch Kids. The parody series was named “Garbage Pail Kids” and used repulsive and bizarre names and characters to ridicule the wholesome image of Cabbage Patch.

Exceptions to infringement under fair use principle

Exceptions to infringement under Copyright Act, 1957

Under the Copyright Act, 1957, certain acts do not amount to infringement of copyright. Some of the exceptions are as follows:

A fair dealing with any creation, not being a computer programme, for the purpose of-

i. Private or personal use, including research;

ii. Criticism or review, whether of the work or any other work;

iii. Covering current affairs and current events, including the coverage of a lecture given in public.

The reading or recitation in public of reasonable extracts from an already published literary or dramatic work;
Reproducing any research work or private study with the motive of publication of an unpublished literary, dramatic, or musical work kept in a library, museum, or other institution that is accessible to the public at large.
The production or publication of any Act or set of rules or orders in a language that is not already translated in or published, or produced by the Government.

The de minimus defence

There have been certain cases in the history of copyright law wherein courts, without even conducting the fair use policy have given the authority to individuals to use it considering the amount of material copied. For instance, in the motion picture Seven, a few copyrighted photographs appeared in the film, which prompted the copyright owner to file a suit against the producer of the movie. The Court in this case [Sandoval v. New Line Cinema Corp. (1998)] concluded that the photos “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable.” The Court affirmed that the quantity of the copyrighted work occurring in the movie was less, excused the use of photographs under the “de minimus” doctrine, and stated there was no need for any fair use analysis.

However, there have been cases where this doctrine has been declared unacceptable. For instance, in the case of Ringgold v. Black Entertainment Television, Inc. (1997), the Court opined that using a copyrighted poster for 27 seconds in the background of the TV show “Roc” was not de minimus.

So, now you might wonder, what made this case any different from the one mentioned above, and why was the use of photographs in the Seven case accepted and the use of posters denied? The Court stated that in the case at hand, the poster was clearly visible and could be identified with enough observation for the “average lay observer” to view the imagery and colourful style of the creator.

Inspired work and fair use principle

While reading about fair use, a question might occur in your mind as to “whether inspired work will be an exception under the fair use doctrine?” Let’s find out.

The exception of fair use doctrine for adaptive and derivative works

As stated above, adaptive and derivative works are not novel in nature, the reason being that they use and rely particularly on the original work. So, they do not fall under the purview of fair use exceptions. Further, it is pertinent to note that adaptive and derivative works are entitled to protection only after receiving proper licensing from the owner of the original copyrighted work.

The exception of fair use doctrine for transformative work

Now you might think, “What about transformative work?” In the case of transformative work, the original work is used as inspiration for creating the new work, perhaps an idea or expression transformed into something new, thus offering insights into the previous work.

Chancellor Masters & Scholars of The University of Oxford v. Narendra Publishing House and Ors. (2008)

In this famous case, the Delhi High Court opined that the “fair use” doctrine is an essential part of copyright law. One idea can be moulded into distinct ways to create new work, and the question of copyright infringement does not arise here.

The main issue here was that a renowned publisher had published a book and mentioned in the agreement (between the defendant and the publisher) that the copyright in the book vested with the publisher. It later occurred to the publisher that the defendant was publishing guidebooks containing similar questions. The publisher then filed a suit against the defendant on the grounds of copyright infringement.

The Delhi High Court held that since the manner of use of the defendant’s publication and that of the publisher’s textbook was dissimilar, the defendant was said to have created a “transformative” work, not amounting to infringement.

Interesting fact:

There is a week particularly dedicated to fair use and dealing in the United States and Canada, amongst other jurisdictions. The 2023 Fair Use/Fair Dealing Week will commence on February 20, 2023. This annual week is celebrated with the motive of promoting and discussing the opportunities presented, celebrating the stories of success, and explaining the doctrine of fair use and fair dealing. Further, individuals from various sectors, like art, music, film, academia, etc., flock together to share their experiences and promote the importance of fair use in their community.

Fair use and freedom of speech

Fair use is another exception to the fair use doctrine and is quite an important legal tool in a free, democratic society like ours. It will not be an exaggeration to state that fair use is as important as any of the fundamental rights enshrined in the Constitution of India. Copyright holders have the legal right to protect their work from duplication or distribution of copies in the public domain, as well as to prevent someone from creating derivatives of their work or portraying their work to the general public; however, there are limitations to this right. If these exclusive rights had not been limited, copyright holders would have had complete or near-complete control over the use of their work. Without this fair use doctrine, the following consequences would have occurred:

A politician would have complete control over the delivery of his speech and no news channel would have the authority to publish it.
A researcher would have complete control over his/her work and could preclude another individual from producing criticism or quoting the research.
An artist would have the right to charge every visitor who visited a museum where his work was on display.
A publisher would have the right to charge a school for asking for remuneration every time a child reads a book.
The entire genres of music like jazz, rap, and hip-hop would stop existing as the first person to create the type would have the sole copyright to that genre of music.
A journalist would barely have any news to publish or address the audience at large, and the first person to witness it would claim its copyright.
Academic fields like history, art, and modern literature would nearly disappear.

We, as a society, value education, individual participation in government, and free speech. Without a healthy use of the fair use doctrine, there is a threat that individuals will lose their rights, which is why we need to balance the usage of the fair use doctrine, even though the struggle to do so is ongoing.

Case laws on freedom of speech and fair use doctrine

Consim Info Pvt. Ltd v. Google India Pvt. Ltd. (2012)

The Madras High Court, in this case, ruled that any unauthorised use of a trademark must meet three conditions in order to be considered “normative fair use,” namely:

The product or service in question must not be easily recognised without the use of the trademark.
Only as much of the mark or marks as is fairly important to recognise the product or service should be engaged in.
The consumer must not do anything that implies sponsorship or endorsement by the trademark owner while using the mark.

If only the aforementioned conditions are met, the defence of fair usage will be accepted.

Havells v. Amritanshu (2015)

In this case, the Delhi High Court reached a verdict that for any advertisement to be qualified as normative use under the fair use doctrine and under Ar ticle 19 (freedom of speech and expression), it is important that the specific quality or qualities of the product be specified, which distinguish the product from that of its competitor, and that the comparison must be accurate and true.

Wiley Eastern Ltd. v. Indian Institute of Management (1995)

The Delhi High Court, in this case, opined that “The basic purpose of Section 52 is to protect the freedom of expression under Article 19(1) of the Constitution of India-so that research, private study, criticism or review or reporting of current events could be protected.“

Judicial pronouncements on the principle of fair use: Indian perspective

Below are some of the recent instances where the doctrine of fair use came into play.

Shemaroo Entertainment Limited v. News Nation Network Private Limited (2022)

In this case, the Bombay High Court restricted the new channel titled “News Nation” from incorporating, recording, distributing, broadcasting, telecasting, disseminating, or publishing any work from the catalogue of the plaintiff, i.e., Shemaroo Entertainment.

The plaintiff, in this case, filed a suit against the defendant for using their content, even though there was an agreement made between the two parties that were later terminated. The defendant, in his defence, argued that he had used the content in issue while reporting news, which is just considering the doctrine of fair use and “de minimis”, and that the same was done not to individually or commercially exploit the work of the plaintiff but only to report the news. The defendant further contended de minimis use, as the use of the clip in issue was less than a minute.

The Bombay High Court made a decision in favour of the plaintiff, stating that the plaintiff had terminated the contract and hence the defendant had no right to use the content. Further, the Court said that a mere quantitative analysis of the duration of the content does not make a huge difference; thus, a meagre use of one minute does not make the defendant not guilty of copyright infringement. Furthermore, the defendant did not produce any material to support his argument that the content was used as part of its ordinary course of business for news reporting.

Super Cassettes Industries v. Mr Chintamani Rao & Ors. (2011)

In this case, the Delhi High Court opined that while determining what constitutes reportage of current events as criticism or review, courts must take a liberal approach. The Court further opined that using the copyrighted work merely for copyrighted work does not amount to unfair usage and that any transformative work will not be fair usage under the fair use doctrine.

Saregama India Ltd. & Ors. v. Alkesh Gupta & Ors. (2013)

In this case, the Calcutta High Court opined that permitting streaming or filtering another copyrighted sound recording on a website is not permissible. If the copyrighted content is being downloaded by some other website, this will lead to an infringement. Such an issue is not permitted under fair use if the website receives a fee or revenue from its sponsors or from third parties. The Court further asserted that such a usage amounts to commercial exploitation and cannot come under personal or private use.

Tips Industries Ltd v. Wynk Ltd. And Anr. (2019)

In this case, the Bombay High Court opined that making available another’s repertoire of copyrighted songs over a music streaming/OTT platform will not come under the exception of fair use or fair dealing for the purpose of private or personal use. Here, it was held that selling and/or commercially renting any copyrighted sound recordings for the purpose of commercial gain cannot come under fair dealing for the purpose of personal or private use or conducting research.

Devendrakumar Ramchandra Dwivedi v. State of Gujarat and Ors. (2009)

In this case, the issue of whether playing music at Navratri, a Dandiya event, a Garba programme, or other festival-related events where there are entry charges falls under the purview of fair use or not, was raised before the Gujarat High Court. The Court held that, usually, fair use and fair dealing in such matters refer to on-profit performances of music and other non-dramatic works. It further propounded that the basic gist of these doctrines is to absolve live performances of such works when they are not used for a commercial motive or when they are used for the purpose of education, religion, or charity and not for any ulterior motive or private or economic gain.

Further, the Court stated that playing music during Navratri, aarti, a marriage procession, other social gatherings related to marriage, or any official ceremony of the government is permissible under Section 52(1)(u)(za) of the Copyright Act. Furthermore, since there is no commercial purpose, no entry charge or procedure for admission, or any hidden agenda like personal or economic gain, playing music during such ceremonies is permissible.

Masters & Scholars of University of Oxford v. Rameshwari Photocopy Services (2016)

The Delhi High Court, in this renowned case, held that use of copyrighted material for educational purposes will not lead to an infringement of copyright. The Court said that reproducing copyrighted material from coursebooks for academic purposes does not require prior permission from the publisher for distribution.

Judicial pronouncements on the principle of fair use: a global perspective

Sony Corp. of America v. Universal City Studios, Inc. (1984)

In this landmark case, the United States Supreme Court ruled that making personal recordings of entire television programmes for time-shifting purposes does not amount to copyright infringement but rather comes under the fair usage policy. Further, the Court affirmed that the makers of home movie recording equipment, like Betamax and other VCRs, will not amount to copyright infringement.

The Donald Duck case

In this case (Disney v. Geva), the Israeli Supreme Court addressed the doctrine of fair dealing provisions for the first time via the work of the late artist David Geva. In this case, Geva created a character named “Moby Duck” in a book titled “The Duck Book” and remodelled Donald Duck (a Walt Disney’s famous character) with a Tembel hat and a curl on the forehead, thus giving typical Israeli features to the character. Upon seeing this, Disney sued Geva for copyright infringement. Geva contended that his use of Donald Duck’s character was a parody and would fall under the fair use policy under American laws. Even though the Court made a decision against him, it set the foundation for fair use exceptions, and the Court readily accepted the four fair use factors as discussed under Section 107 of the US Act.

The influence of fair use internationally: a global perspective

Each country has a distinct fair use policy, which is why it is always advisable to refer to the fair use laws of the particular state or country. A lot of countries have taken inspiration from the four factors laid down in US law, whereas there are other countries that are quite different from the US fair use framework. Let’s look at a few countries.

Fair use in the United States

Under US law, the following, inter alia, are protected under the fair use doctrine:

Satire,
Critiques,
News broadcasting,
Research and education.

The concept of fair use in US copyright law emerged in the 19th century after a suit was filed for copyright infringement by Charles Folsom, who published a biography of George Washington, and the respondent reproduced around 353 pages from the same work. Even though a decision was made in favour of the plaintiff, Justice Joseph Story laid out the four factors of fair use, which, to date, are being used across the globe. The four factors are as follows:

The purpose and character of the use,
The nature of the copyrighted work,
The amount of copyrighted work used,
The effect of the use on the potential market for the work.

Fair use in the United Kingdom

In the United Kingdom, there is a fair dealing policy discussed under Sections 29 and 30 of the Copyright, Designs and Patents Act 1988. Under this provision, there are three situations where fair dealing is a valid defence, namely:

Where the copyrighted material is used for the purpose of research or private study,
Where the copyrighted material is used for criticism or review,
Where it is copied with the intention of reporting current events.

These defences can be contrasted with the US provisions that have a rigid acceptable policy, i.e., the four-factor policy.

Fair use in Singapore

In Singapore, there is a doctrine of fair dealing, and it has been discussed under Section 35 of the Copyright Act, 1987, after the 2004 Amendment. The conditions discussed above, the first four, to be precise- have been included in this Section after the Amendment for matters related to fair use.

Fair use in Malaysia

Even in Malaysia, there was an Amendment carried out in 2012 to Section 13(2)(a) of the Copyright Act, 1987. Even in Malaysia, the four factors for fair use as stated under US law are incorporated.

Fair use in Australia

There has been quite a debate on whether fair use policy must be implemented or not in Australia since 1998. In most of the inquiries, the Australian Government was in favour of introducing a “flexible and open” fair-use policy.

In 2012, the Australian Law Reform Commission (ALRC) was instructed to carry out a survey on whether the exceptions and statutory licences in the Copyright Act, 1968, were enough and appropriate in the digital environment. In 2013, the ALRC released Copyright and the Digital Economy, where it made recommendations on incorporating the US-style framework on fair use.

Further, in 2015, a public inquiry into Australia’s intellectual property system was instructed to be taken to the Productivity Commission. In 2016, a report titled “Intellectual Property Arrangements” was released with the key recommendation of replacing ‘fair dealing” with “fair use.” The Australian Government was hesitant and responded by saying that this would “publicly consult on more flexible copyright exceptions.”

Moreover, in 2018, the Department of Communications and the Arts started a conference and asked the public to make submissions in response to its “Copyright Modernisation Consultation Paper.” Out of 89 submissions, 39 were in favour of fair use, 39 were against it, and 11 could not make an inference; the final report is not yet released.

Presently, under Australian law, the following does not constitute fair dealing:

News reporting,
Criticism or review,
Parody or satire,
Personal research or study,
Judicial proceedings or professional advice,
Access by a person with a disability.

Fair use in South Korea

In South Korea, there is the Korean Copyright Act, which was amended in 2012; here, changes were made in Article 35-3. This Act, too, outlines the four-factor test, similar to the United States law.

Fair use in Israel

Israel, too, has a new copyright law for fair use that includes a similar US-style framework. Under this law, fair use is permitted for the following purposes:

Private study,
Research,
Criticism,
Review,
Journalistic reporting, inter alia.

Fair use in Poland

In Poland, the fair use doctrine is covered under the Polish Copyright Law under Articles 23–35. Under Polish law, a distinction is made between private and public use. So, if the usage of any copyrighted material is for public or commercial purposes, a fine will be imposed. The defendant has to provide evidence that he/she used the copyrighted content for private purposes as opposed to public purposes, as contended by the plaintiff.

Conclusion

To sum it all up, for the copyrighted work to fall under the ambit of fair use or fair dealing by being modified into a transformative work, it is crucial that the work be created using one’s own expertise and labour. The amount of copyrighted work in another work generally referred to as the “transformative work,” must be in a manner that would portray that the work is merely being used as a guide or help to the final content. Moreover, it is pertinent to remember that the main motive of the fair use doctrine is to avoid any sort of hindrance to the growth of the original creator.

In a country like India, the concept of fair use and fair dealings goes beyond Section 52 of the Copyright Act, as mentioned above, there are exceptions like the de minimis defence, and the free speech exception, inter alia. The ambit of fair use or fair dealings, especially in India, depends on the facts, circumstances, and external factors of the case.

Frequently Asked Questions (FAQs) on the fair use principle

How much-copyrighted work can be used without prior permission from the original owner?

In the US as well as Indian law, a limited portion of work, including quotations for criticism, news reporting, scholarly reports, etc., is permissible. There are no set rules for how much quantity is a fair use; it usually depends on the circumstance and the facts of the case at hand.

Can an owner sue another individual who has copied his/her work?

If copyrighted work is used without prior permission, there is a possibility that a suit can be filed against the person infringing the content. However, certain set principles under the fair use doctrines allow for the use of a quote or sample without prior authorisation, such as when the content is used for educational purposes. But if there is any doubt about taking permission, the copyright officer will always recommend taking permission before using the work.

How can an individual obtain permission to use another person’s work?

Usually, one can obtain permission by directly asking the owner of the copyrighted work. If one does not know who the owner is, he/she can request the copyright officer to conduct a search of its records or may perform a search by himself/herself.

How can an individual find out who owns the copyright to a particular work?

One can obtain information available on records. Usually, upon request, the copyright officer will assist in finding who owns the copyrighted work in many countries.

Whereas in India, information on the copyrighted work can be found on the Search Registered Work page. The search can be conducted by choosing one or more options from Diary No., RoC (Registrar of Companies) No., applicant, and title. For instance, assuming the diary number is used to search for a particular registered work, in this case, all the information pertaining to the RoC number, the titles of the work, the diary number, and the applicant’s name will be displayed.

What is an e-register?

The e-register is a monthly database in pdf format that contains the RoC issued in a particular month. It has all the RoCs issued in a particular month, the diary number, RoC Mo, date, title of the work, category, and name of the applicant. The RoCs were issued in 2016, so all the data from that year is available on the e-register website.

References

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