Creativity is a part and parcel of copyright. The copyright law requires originality and creativity for a work to be protected. This means that the work must have been developed by the creator independently. Copyright law serves as a significant foundation for the protection of the creative and created works, ensuring that the authors, artists and the creators have the right and the power to control and get benefit from their intellectual property. By providing exclusive rights to the creators, the copy right law incentivizes innovation, free exchange of ideas, promotion of cultural development and helps ensure that the creators are fairly compensated for their work.

Indian Copyright Act, 1957 provides a private right in in copyright which extensively deals with provisions that guarantee access to knowledge as well. Copyright is a legal right given to the author for a particular period for original literary, dramatic, artistic works, and musical work whether published or unpublished. These rights provided are not absolute but are subject to restrictions and limitations by law.

Origin and Development of Fair Use/ Fair Dealing

The concept of "Fair Dealing" initially originated and emanated as a Doctrine of Equity which allows the use of certain copyrightable works which would normally be considered as infringement. The significant purpose behind this doctrine is to prohibit the stagnation of the growth and creativity.

For the first time it was the UK Copyright Act, 1911 wherein fair dealing was recognized in the imperial copyright legislation. The Fair dealing provisions provide three important limitations to owner's rights, namely fair dealing for the purposes of non-commercial research or private study, criticism or review and news reporting.

In India the doctrine of fair dealing has been dealt with under Section 52 of the Indian Copyright Act, 1957 which has been borrowed from the UK Copyright law.

Legal Provisions
The Berne convention along with the TRIPS agreement has provisions for the incorporation of the doctrine of fair use. Article 13 under the TRIPS agreement provides that the member countries shall confine to exceptions and limitations to exclusive rights. Any country could bring in exceptions to copyright violation provided it satisfies 3 conditions namely:

1. Exception confines only to special cases
2. Does not conflict with the normal exploitation of the work
3. Does not unreasonably prejudice the interests of the right holder (Article 13 of the TRIPS agreement)

The Berne convention provides that it shall be the duty of the member countries to permit the reproduction of such works in certain cases and it shall not affect the legal right of the copyright holder. (Article 9(2) of the Berne Convention, 1886)

Section 52 of the act provides exceptions and defenses to copyright infringement in detail. The provision of the doctrine of fair use is one of the important components of section 52 and one has to be fair under this section that needs to fall within the established purposes of private use, research, criticism and review.

Doctrine of Fair Dealing in India

Copyright is an author's right to his artistic, literary and musical works. The works created by copyright cover a variety of rights in books, music, paintings, sculpture, films, computer programs, databases, etc. 4In India, the duration or time limit of the copyright is the lifetime of the author or artist and 60 years after the death of the creator. Copyright protection is available for expression only and not to ideas, methods of operations, procedures, concepts of mathematics. However, there are certain situations in which reproduction or use of original work is considered as exceptions to copyright infringement.

The term fair dealing has not been defined in the act. The line between fair dealing and infringement is a very thin one. The Copyright Act of 1957 allows the reproduction of certain copyrighted material without the permission of the original copyright holder. The provisions for fair dealings have been mentioned in Section 52 (1a). The rest of the provisions in section 52 deals with the infringement.

The concept of fair dealings was explained by the Kerala High Court in the case of Civic Chandran v. Ammini Amma (1996 PTC 670 (Ker HC) 675-677), where the Court held that: "it may be reasonable to hold that the re-production of the whole or a substantial portion of it as such will not normally be permitted and only extracts or quotations from the work will alone be permitted even as fair dealing".

The Court, in the same case, has pointed out certain factors to consider if the reproduction constituted infringement. They were:

• The quantum and value of the matter taken in relation to the comments or criticism;
• The purpose for which it is taken.
• And the likelihood of competition between the two works.

In the case of DU photocopy (Masters & Scholars of University of Oxford v. Rameshwari Photocopy Services) (MANU/DE/2497/2016), the Delhi High Court held that the reproduction of copyrighted material such as coursebooks used in academia don't require a license from their publishers in order to be distributed.

Also, In Wiley Eastern Ltd. v. Indian Institute of Management, (MANU/DE/0694/1995) the Delhi High Court stated 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."

The courts have taken a lenient approach in research and education whereas more stringent approach when it comes to the application of fair dealings laws in other cases. In the case of India TV Independent News Services Pvt. Ltd. v. Yash Raj Films Pvt. Ltd (MANU/DE/3928/2012) the use of small part of a copyrighted music in a television show was considered not as fair dealings. Three publishers namely, American Chemical Society, Elsevier, and Wiley attempted to prevent Sci-hub, a website that helps access academic and scientific papers, from publishing them as they claim Sci-hub infringes their copyright. Sci- hub claims it us protected under fair dealings as they are helping in education and progress in the science.

This Sci- Hub website was founded by Alexandra Elbakyan and she was seeking rejection of plaint filed by the publishers but the Delhi High Court has dismissed the application as it was not considered as fair dealing even though it is for academic and research purpose. (Elsevier Ltd and others. V. Alexandra Elbakyan and others, 2022/DHC/004702)

Thus, as far as India is concerned there is no set laws or rules which can be taken into consideration for the determination of fair dealing. It is totally left to the discretion of the court.

Doctrine of Fair Use in the United States

This doctrine of fair use is used for the reproduction of a copyrighted work to a certain degree by protecting the interests of the creator and at the same time for the protection of public interest.

The concept of fair use was first used in the case of Folsom V. Marsh (9. F. Cas. 342 (C.C.D. Mass. 1841). This case goes back to the 19th century and the concept was laid down by Sir Justice Joseph Story. The case was that the defendant had reproduced 353 pages of the complainant's biography of George Washington. The defendant argued that they were the works of the president and thus belonged to the public. The case was held in favor of the complainant. This was considered as Copyright Infringement. The justice also laid down a four-factor test which is still in use and codified as section 107 of the copyright act of 1976 in US.

The factor factors are:

• Purpose and Character of the Use
• Nature of the Copyrighted Work
• Amount of Copyrighted Work Used
• Effect of the Use on Potential Market for the Work

If defendant's use is non-commercial, academic, scientific, or historical, then it is indeed fair use, because copyright law supports promoting scholarship, research, teaching, and commentary. A check should be made on the public benefit of allowing the use and owner's potential financial advantage from denying it.

The Court further opined that the makers of home movie recording equipment, such as Betamax and other VCRs are not accountable for violating copyright.

In another case of Campbell v. Acuff-Rose Music, Inc (MANU/USSC/0019/1994), the US Supreme Court ruled that when the use's intent is transformative or for a different goal from the original then it doesn't violate the owner's right.

Doctrine of Fair Dealing in United Kingdom

The concept of fair usage exists within UK copyright law also referred to as fair dealing, or free use and fair practice.

Fair dealing is talked in Sections 29 and 30 of the Copyright, Designs and Patents Act 1988, which outlines three instance where fair dealing is a legitimate.

• If it is for the purposes of research or private study;
• If it is for the purpose of criticism, review or quotation;
• Where it is utilized for the purposes of reporting current events (Not applicable to photographs)

Balancing Creativity and Access to Knowledge

Fair dealing doesn't serve as an excuse for copying the content of another person and doesn't validate stealing or unauthorized usage of the creator's work. The heart and soul of the fair use doctrine is that the idea of copying for the purpose of spreading knowledge and thereby benefitting the community should not be against the law. The whole purpose behind the doctrine of fair use is that the knowledge access must be given to the public at large and should not be stagnant at the copyright owner's hands.

Lord Denning, while attempting to form a definition in the case of Hubbard Vosper said: It is impossible to define what is 'fair dealing', It must be a question of degree. It must be a matter of impression. So Balancing creativity of the creator' work and knowledge access to the public at large play a crucial role in determining the "Fair Use".

Conclusion
From the above, it could be easily understood that the fair use doctrine forms an essential part of copyright law. In India, though the doctrine is not well developed with a strong statutory background, it is developing through the pronouncements of judicial decisions and the scope is expanding. The doctrine of Fair use is necessary in order to bring harmony and balance between the creators and the society. Thus, the doctrine plays a vital role in enhancing the creativity and thereby leads to the development of copyright law.

Award Winning Article Is Written By: Ms.Manjari V

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