Fair dealing is an integral part of copyright law and has been widely discussed globally. The doctrine of fair use is an exception to the law that usually protects any material that is considered as copyrighted under the Indian Copyright Act, 1957. It is a very thin line between a legitimate and bona fide fair use of a work from a mala fide and blatant copy of the work.

However, the term 'fair use' has not been defined in the Act and moreover, Section 52 of the Indian Copyright Act, 1957 has provided for limited and in my personal opinion inadequate fair dealing exceptions. Additionally, by providing an exhaustive list of purposes that may be qualified under the fair dealing exception, scope of the law is further limited.

The paper will delve into a deep understanding of the fair dealing exception, the fair use doctrine and discuss its lack of flexibility as imposed by the Indian Copyright Act, 1957. Though, the Indian Parliament has amended Section 52 thrice, the aim of the paper will be to prove that in spite of so many amendments, there still lies need for reform in the fair dealing provision as well as the paper will also point out its mutual benefits to both creators and consumers.

Introduction Of The Concept Of Fair Dealing

A copyright provides an exclusive right to use and distribute to a creator or maker of an original work. Works are protected and intellectual property rights are enforced if it is conducive to social and economic welfare, safeguards an individual's fundamental rights or promotes commerce, competition and innovation. However, there are certain kinds or situations of reproduction or use of an original work carved out as exceptions to copyright infringement.

Article 13 of the TRIPS (Trade Related Aspects of Intellectual Property Rights) explicitly provides:
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder".[1]

Article 9(2) of the Berne Convention also states:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.[2]

Given that all countries that are members of the WTO are obliged to comply with the TRIPS articles and the Berne Convention on Copyright, this principle has been enshrined in substantial territorial copyright legislations.[3]

The principle of conditional grants to proprietary rights in any intellectual property is to promote public interest. [4] It maintains a healthy balance between the competing interests of the society and that of the copyright holders.

This balance was best explained by Mansfield C.J. in Sayre v. Moore:
We must take care to guard against two extremes equally prejudicial: the one, that men of ability…may not be deprived of their just merits, and the rewards of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.[5]

Fair Dealing Under Indian Law

The exception of fair dealing is enacted and understood differently in all countries by their individual laws. In India, standard exceptions or defences to copyright infringement are listed in Section 52 of the Copyright Act, 1957 (hereinafter referred to as Act). The provision of fair dealing makes it certain that for a dealing to be 'fair', the purposes have to fall within the statutorily established purposes of private use, research, criticism and review.

The exception of fair dealing not been defined in the Act but finds its roots in the doctrine of equity [6] and simply put, on the basis of facts and circumstances of a case, it justifies unpermitted use of a copyrighted work. It draws a line between a legitimate, bonafide fair use of a work from a malafide blatant copy of the work.[7] The court in the case of Wiley Eastern Ltd. v. IIM [8] laid down that the rationale of Section 52 and stated that it is to protect the freedom of expression (through research, private study, criticism or review or reporting of current events) enshrined in Article 19 (1) of the Constitution of India.

Lord Denning, while attempting to form a definition in the case of Hubbard v. Vosper, said:
It is impossible to define what is 'fair dealing.' It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them...Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. [9]

As yet, India has no rule of thumb or no set laws that determine the amount of work that can be taken without the permission of the creator for it to classify under the exception of fair dealing. The decision in this matter is largely left up to the Court's discretion, albeit, there are certain guidelines based on which the court has to make its decision, amongst which, public interest being of paramount consideration.

On the basis of courts' decisions in matters of fair dealing, it may be concluded that India, much like United Kingdom has a very strict and limited understanding of the exception. The courts restrict themselves to the exhaustive list of actions which come under the scope of fair dealing. This can be contrasted with 'fair use'.

Fair Use Doctrine Under Us Law

An analysis of the concept of fair dealing is incomplete if its counterpart, fair use, is not discussed. The doctrine of 'Fair Use' also limits the exclusive right granted by copyright law. The case of Gyles v. Wilcox[10] laid the foundation for the notion of fair use and abridgment. Contrary to Indian and United Kingdom's law, the United States law does not provide a list of act that may be considered fair use.

Instead, it relies on a four-factor test, which was first laid down in Folsom v. Marsh,[11] to determine whether a use or act of exploitation may be classified as fair use of a copyrighted piece of work. Irrespective of the nature of the work, it applies on all kinds of copyrights. The test, now incorporated in Section 107 of the United States Copyright Act, 1976 is:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in comparison to the copyrighted work as a whole (de minimus non curat lex); and d) the effect of the use upon the potential market value of the copyrighted work.

In fact, the assessment of fair use though the four-factor test is applicable even if a piece of work is unpublished. That itself is not a bar to a finding of fair use. The case of Lenz v. Universal Music Corporation[12] sparked an interesting conversation on the balance between a creator's right on his work and users' rights.

In 2007, Stephanie Lenz had made a home video of her young children dancing in her kitchen, in which the song Let's Go Crazy by the musical artist Prince could be heard for approximately twenty seconds albeit with poor sound quality. She uploaded the same on YouTube, following which Universal Music Corporation, which owns the copyright to the song, sent YouTube a takedown notice claiming that Lenz's video infringed on their copyright to the song. Lenz challenged the removal asserting that the video made fair use of the song.

More than a decade's worth of litigation followed but it lead the appellate circuit to agree with Lenz and conclude that copyright holders must consider fair use before sending takedown notices.

However, in an attempt to balance the situation, they added:
If, however, a copyright holder forms a subjective good faith belief that the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder's belief even if we would have reached the opposite conclusion.[13]

The decision faced considerable criticism on the ground that it might have gone too far in support of users' right and the US Supreme Court finally decided not to review the case. Therefore, courts need to ensure that they strike the right balance between the two competing rights.

US law on the exception of fair use as under the Copyright Act of 1976 is very, open-ended and leaves room for consideration by the courts. The flexible nature of the exception is useful to accommodate circumstances of each case as well as allow for courts to change their understanding of the provisions overtime in a bid to keep up with this ever- changing and rapidly- developing world.

Criticism And Need For Modification
The aforementioned understanding of the exception under US law makes evident the need for change in our own law. The rigid structuring of India's fair dealing exception limits its scope. Fair dealing under the Act extends to criticism, review and news reporting, research and private study, use of works for educational purposes, parliamentary and judicial proceedings, version recordings or sound alike recordings, use with regard to pictorial, graphic and sculptural works and use with regard to architectural works. Contrary to Indian Copyright law, the laws of UK and the US, both, provide this exception to all categories of copyrightable work.

However, as time has passed by Indian Courts have understood the various facets of fair dealing and come to the conclusion that they cannot only rely on an exhaustive list of uses covered under fair dealing mentioned in the Act. Each case has to be decided on the basis of the facts and circumstances surrounding it. To explain this with an example, we will compare two landmark judgments — the 1959 judgment in the case of Blackwood v. Parasuraman (hereinafter referred to as the Blackwood case) [14] and the 2012 judgement of The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services (hereinafter referred to as the 'RPS case').[15]

In the Blackwood case the Court discusses the fair dealing doctrine and laid down the principles to determine what would be considered 'private use' of a copyrighted piece of work. The Defendant in the case had published guides of the Plaintiff's books and claimed that since the use was that of private study, it would constitute as private use of copyrighted work. The court held that it would strictly construe the meaning of private study limiting it to a student copying a book for his personal use. In fact, restricting its discretion it stated that in order to receive protection under the ambit of fair dealing, the use must be enumerated in the statue of fair dealing.

In the RPS case, three publication houses sought a permanent injunction restraining the Defendants, 'Rameshwari Photocopy Services' (Defendant No. 1), a photocopy shop in the premises of the University of Delhi and the University of Delhi (Defendant No. 2), from photocopying, reproducing and distributing copies of the Plaintiffs' works. RPS had obtained a license from the University to make course packs for the students of the University and so they photocopied excerpts from the publishers' books available in the DU library which the publishers claimed amounted to copyright infringement. On one hand, the publishers asserted that the photocopied material was substantial enough to constitute infringement but on the other hand, the defendants relied on Section 52 of the Act and claimed that they were making fair use of the literary works.

Section 52 (1)(i) specifies that the exception of fair dealing covers the reproduction of any work by a teacher or a pupil in the course of instruction; or as part of the question to be answered in an examination; or in answers to such questions. Instead of sticking to the letter of the law, the court did not confine the word 'instruction' in Section 52 (1)(i)(i) to mean a lecture room or classroom. It included reproduction for the purpose of making and issuing course packs.

The term 'teacher' in Section 52 (1)(i) was also not limited to an individual teacher but understood to include the whole educational institution.
This broader understanding of the provision led the judge to conclude:
Copyright, especially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.

The Court held that such use of the books would be considered fair dealing. In fact, it discussed the case of Cambridge University Press v. Becker[16] where the US District Court for the Northern District of Georgia had decided that a university does not require a license to photocopy below threshold value of 10%. But again, instead of directly applying this decision, the court decided to accommodate the circumstances of the case at hand.

It considered that India lacks in economic growth as compared to other developed countries which means that students may have access to fewer resources and lower means to acquire them. It also felt need for a higher threshold value because of the exceedingly theoretical studies in the university. Aggrieved by the order of Single Judge, the plaintiffs filed an appeal to the Division Bench but later withdrew the suit altogether.

Therefore, going beyond the letter of the law is an important mean to gain the end of justice in a country like India. While, we are developing very fast, the development is not equally divided amongst all and considerations may need to be made every once in a while, such as was made in this case.

Evidently, the Judiciary's understanding of the concept of fair dealing has broadened considerably. However, who is to say that the Single Judge's decision would not have been overruled by a higher court. Fatefully, the Plaintiffs withdrew their case but keeping in mind India's usual approach to the concept of fair dealing, the judgement was justified but far- reaching. On the other hand, US fair dealing laws are more non-conservative, elaborate and flexible.

The concept of Fair Dealing emanates from the Natural Law Theory where access to learning is endangered by the efforts of copyright owners to make a commodity of all the knowledge in the land for the purpose of obtaining private fortunes.[17] Whereas, the Fair Use Doctrine is based on the Utility Theory which tries to balance the utility derived from a piece of work to the user (access to new knowledge, possibly culture) with the benefit (predominantly monetary) accrued to the publishers by investing in the production of books, music, art, films, etc.[18]

India's copyright law leans more towards protection of the creator's rights and does not give ample importance to public's interest in accessing works or the information contained in the works. For a long time, before the RPS case, they did not even consider important factors such as the need and necessity to make unpermitted use of copyrighted works.

Section 52 of the Act gives the impression of being a lengthy list of uses, however, in practice it is very limited. Indian Courts have adhered to this rigid list, with little modification, since its inception. This raises doubts on the credibility, relevance and more importantly on the effectiveness of India's copyright laws. And even if they function adequately as of now, how long can we wait to incorporate necessary changes? Instead of the current codified approach, a more open ended approach, like that of US, would let judges decide on a more case-to-case basis while giving due consideration to important factors.

Distinct Thought [19]
Over the years, several academicians have come up with a plethora of different ways for the application of the concept of fair dealing/use. One such interesting approach, albeit heavily leaning towards the natural law theory, was that of L. Ray Patterson, a professor of law at University of Georgia School of Law. In his article he suggests that the concept of fair use should apply to the copyright owner instead of its users.

He advocates against restriction of personal use and claims that:
Perhaps the greatest disservice of natural law to the jurisprudence of copyright is the emphasis it has placed on the individual's right to be rewarded for his or her creations. Before any creator contributes to culture, he or she takes from that culture, and that is a consideration to be factored into the equation when seeking to balance the right of creators and consumers.

While trying to strike a balance between proprietary claims and earning of profits and liberty, learning and possible misuse, through unpermitted use, he leans towards liberty and the rights of the users. In fact, he has kept in mind the creator's incentive to create. He agrees that creators should be allowed to benefit from their efforts for some time but his main issue is for how long should this easement last? His rationale behind this theory is that the goal of learning cannot wait until the copyright term comes to an end.

Conclusion
Although it is clear that we need to move away from India's understanding of fair dealing and towards US's understanding of fair use, it is noteworthy that US's fair use doctrine also has its own grey areas and should therefore not be blindly relied upon. We need to understand that for a broad defence like fair dealing, there can be no rule of thumb to be strictly adhered to. Each case demands a different understanding of the law and India needs to take an approach that would allow for some judicial discretion in the matter. While, the judiciary has already started broadening its horizons from time to time, the exception as a whole still needs to be reformed and modified so as to stay relevant and efficient.

Bibliography

1. Fair Use: Comparing US and Indian Copyright Law. (2012, May 28). https://www.jurist.org/commentary/2012/05/sandeep-kanak-rathod-copyright/
2. The Chancellor, Masters and Scholars of the University of Oxford v Rameshwari Photocopy Services (CS (OS) 2439/2012, I.As. No. 14632/2012)
3. Dewan, D., & Patki, A. (2014, June 18). Exceptions to copyright infringement – fair dealing.https://www.lexology.com/library/detail.aspx?g=4c426ccb-a002-4256-9a0a-36039b2856a3
4. Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015)
5. Patterson, R., L. (n.d.). UNDERSTANDING FAIR USE. Duke Law Journal: Law and Contemporary Problems,55(2).
6. Ayush Sharma, Indian Perspective of Fair Dealing Under Copyright Law:- Lex Lata or Lex Ferenda, Journal of Intellectual Property Rights, Vol 14, November 2009, Pp 523-531
7. Sivakumar, S., and Lisa P. Lukose. "COPYRIGHT AMENDMENT ACT, 2012: A REVISIT." Journal of the Indian Law Institute 55, no. 2 (2013): 149-74. Accessed November 28, 2020. http://www.jstor.org/stable/43953639.
8. Weinreb, Lloyd L. "Fair's Fair: A Comment on the Fair Use Doctrine." Harvard Law Review 103, no. 5 (1990): 1137-161. Accessed November 28, 2020. doi:10.2307/1341458.
9. Rahul Saha and Sryon Mukherjee,Not so funny now is it? The Serious Issue of parody in Copyright law, available at http://www.nalsar.ac.in/IJIPL/Files/Archives/Volume%201/4.pdf

End-Notes:

1. TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, April 15, 1994
2. Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886
3. Pandey, V. (2014, March 13). 'Fair Dealing' In Copyrights : Is The Indian Law Competent Enough To Meet The Current Challenges? https://www.mondaq.com/india/copyright/299252/fair-dealing-in-copyrights-is-the-indian-law-competent-enough-to-meet-the-current-challenges
4. Dewan, D., & Patki, A. (2014, June 18). Exceptions to copyright infringement – fair dealing. https://www.lexology.com/library/detail.aspx?g=4c426ccb-a002-4256-9a0a-36039b2856a3
5. Sayre v. Moore, (1785) 1 East. 361n, 102 E.R.139
6. Harper & Row Publishers v. Nation Enterprises, 471 US 539.
7. Pandey, V. (2014, March 13). 'Fair Dealing' In Copyrights : Is The Indian Law Competent Enough To Meet The Current Challenges? https://www.mondaq.com/india/copyright/299252/fair-dealing-in-copyrights-is-the-indian-law-competent-enough-to-meet-the-current-challenges
8. Wiley Eastern Ltd. v. IIM, 61 (1996) DLT 281 Para 19.
9. Hubbard v. Vosper, CA 1971 [1972] 2 WLR 389.
10. Gyles v. Wilco, (1740) 26 ER 489
11. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841).
12. Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015)
13. Ibid.
14. Blackwood and Sons Ltd and Others v. A.N. Parasuraman and Others, AIR 1959 Mad 410.
15. The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services, (2016) 160 DRJ (SN) 678
16. Cambridge University Press v. Becker, 863 F. Supp. 2d 1190, 1363–64
17. Patterson, R., L. (n.d.). UNDERSTANDING FAIR USE. Duke Law Journal: Law and Contemporary Problems, 55(2).
18. ELMAHJUB, E., & SUZOR, N. (n.d.). FAIR USE AND FAIRNESS IN COPYRIGHT: A DISTRIBUTIVE JUSTICE PERSPECTIVE ON USERS' RIGHTS. Monash University Law Review, 43(1).
19. Patterson, R., L. (n.d.). UNDERSTANDING FAIR USE. Duke Law Journal: Law and Contemporary Problems, 55(2).