Authored By – Aishwarya Nevse, Savitribai Phule Pune University

Introduction –

Intellectual Property Rights (IPR) grant exclusive rights to creators over their inventions, literary works, artistic expressions, trademarks, and patents. These rights are intended to encourage innovation and creativity by ensuring that original creators benefit from their work. However, absolute monopoly over creative works can hinder knowledge dissemination, artistic expression, and academic research. This is where the doctrine of fair use plays a crucial role by providing a legal exception to copyright laws. The doctrine allows the use of copyrighted material under specific conditions without requiring permission from the copyright holder. Fair use is particularly relevant in areas like education, journalism, criticism, research, and parody.

The concept of fair use varies across jurisdictions. In India, the doctrine is referred to as fair dealing, governed by Section 52 of the Copyright Act, 1957, which provides a restrictive list of permissible uses. In contrast, the United States follows a broader fair use doctrine under 17 U.S.C. § 107, applying a four-factor test to determine whether a particular use is fair. The United Kingdom, like India, also adheres to the fair dealing principle under the Copyright, Designs, and Patents Act, 1988. These differences in interpretation have led to significant legal debates, judicial decisions, and policy discussions worldwide.

Meaning, Evolution, and Judicial Interpretations –

The doctrine of fair use is rooted in the idea-expression dichotomy, which holds that while expressions of ideas are protected under copyright law, the underlying ideas remain free for use. This principle is particularly important in academic research, news reporting, and educational use, where access to copyrighted works is essential for societal progress. Historically, fair use can be traced back to Folsom v. Marsh (1841) in the United States, where the court first recognized that unauthorized use of copyrighted material could still be lawful if it served a larger public purpose. Over the years, courts have refined this principle through landmark rulings, shaping the contours of fair use across different legal systems.

In India, fair dealing is a statutory exception, meaning courts have less discretion in determining whether a use is fair compared to U.S. courts. The Indian Copyright Act, 1957, Section 52, explicitly lists categories where fair dealing applies, such as personal use, research, criticism, review, and reporting. Unlike the U.S. model, which allows flexibility, the Indian system does not recognize transformative use—a critical factor in many U.S. fair use judgments. For example, in Super Cassettes Industries Ltd. v. Nirala Kishore (2011), the Delhi High Court clarified that fair dealing does not extend to commercial exploitation. Similarly, in Eastern Book Co. v. D.B. Modak (2008), the Supreme Court ruled that mere reproduction of judgments does not qualify as fair use if substantial effort has been invested in curating legal databases.

The U.S. fair use doctrine, codified in Section 107 of the Copyright Act, 1976, evaluates fair use based on four factors: (1) the purpose and character of the use (whether commercial or non-commercial), (2) the nature of the copyrighted work (factual vs. creative), (3) the amount and substantiality of the portion used, and (4) the effect on the market value of the original work. Courts have used these factors flexibly, allowing greater room for transformative works. For example, in Campbell v. Acuff-Rose Music (1994), the U.S. Supreme Court ruled that a commercial parody could still be fair use because it transformed the original work’s meaning. More recently, in Google v. Oracle (2021), the Court held that Google’s use of Java APIs was fair use, reinforcing the doctrine’s adaptability to technological advancements.

Fair Use in Digital Media and Emerging Challenges

With the rapid expansion of digital media, AI-generated content, and online platforms, fair use has become a contentious issue. The internet has blurred traditional boundaries, making copyright enforcement more complex. Platforms like YouTube, Instagram, and TikTok rely heavily on user-generated content, often incorporating copyrighted materials under the fair use doctrine. Courts worldwide face the challenge of determining whether memes, reaction videos, and AI-generated art fall within fair use exemptions. The problem is further complicated by digital copyright enforcement tools like Content ID, which often flag content indiscriminately, leading to potential misuse by large copyright holders.

In India, the restrictive nature of fair dealing makes digital fair use even more challenging, as courts strictly interpret Section 52. This has led to criticism that Indian copyright law fails to accommodate modern creative expressions. In contrast, U.S. courts have adopted a more context-driven approach, often recognizing new forms of fair use. For instance, in Authors Guild v. Google (2015), the court ruled that Google Books’ mass digitization of books was fair use because it provided significant public benefits without replacing the original market. This decision underscored the importance of balancing copyright with technological progress.

Criticism and Need for Reform –

Despite its importance, the doctrine of fair use is often criticized for its vague and inconsistent application. The lack of a clear test in India leads to uncertainty, as courts tend to rely on rigid statutory provisions rather than a flexible balancing approach. Scholars argue that India should adopt a structured test similar to the U.S. four-factor model, which would allow greater judicial discretion in determining fair use. Additionally, fair use exceptions should be expanded to explicitly cover transformative works, AI-generated content, and digital adaptations, which are currently in a legal gray area.

Another major issue is the misuse of fair use defenses in commercial contexts. Many corporations exploit fair use to avoid licensing fees, while copyright holders often overclaim infringement, suppressing legitimate fair use claims. In India, judicial intervention has been inconsistent—sometimes favoring copyright holders and, at other times, protecting users’ rights. There is an urgent need for legislative clarity and guidelines from the judiciary to establish a more predictable fair use framework.

Case Laws (India & International) –

India –

• Eastern Book Co. v. D.B. Modak (2008) 1 SCC 1 – Fair dealing and originality in legal compilations.
• Super Cassettes Industries Ltd. v. Nirala Kishore (2011) – Commercial exploitation and fair dealing restrictions.
• Blackwood & Sons Ltd. v. A.N. Parasuraman (1959) – Fair dealing in academic publishing.

United States –

• Folsom v. Marsh (1841) – Early case defining fair use.
• Sony Corp. v. Universal City Studios (1984) – Established fair use in personal video recording.
• Harper & Row v. Nation Enterprises (1985) – Clarified the effect of fair use on market value.

Conclusion & The Way Forward –

The doctrine of fair use remains one of the most critical yet controversial aspects of copyright law, ensuring a delicate balance between creators’ rights and public interest. While fair use allows education, research, criticism, and transformative works, its application varies across jurisdictions, often leading to legal uncertainties. India’s restrictive fair dealing approach limits its adaptability to new digital challenges, whereas the U.S. fair use doctrine offers more flexibility but is also prone to misuse.

As technology continues to evolve, courts and legislators must redefine fair use to address AI-generated content, streaming services, and digital media platforms. Adopting a hybrid model that combines the U.S. four-factor test with India’s statutory framework could create a more robust, adaptable, and fair copyright system. Moving forward, global copyright harmonization and AI-specific fair use policies will be essential in ensuring a copyright framework that fosters innovation while protecting creators’ rights.

Reference-

Books & Online Sources

1. Narayan, P. – Intellectual Property Law in India (LexisNexis)
2. Cornish, W. R., Llewelyn, D., & Aplin, T. – Intellectual Property: Patents, Copyright, Trade Marks & Allied Rights (Oxford University Press)

Online Sources & Reports

• World Intellectual Property Organization (WIPO) – Fair Use and Copyright Limitations https://www.wipo.int
• U.S. Copyright Office – Fair Use Index https://www.copyright.gov/fair-use/
• Government of India – Copyright Act, 1957 (Bare Act & Amendments) https://copyright.gov.in