A PROJECT ON

“AN INSIGHT : DOCTRINE OF FAIR

USE ’’

SUBMITTED TO:

MR. AMAN GAUTAM

SUBMITTED BY

ASHWINA NAMTA

BALLB-A

4TH YEAR

ENROLLMENT NO. – 18FLICDDN02034

ICFAI LAW SCHOOL,

THE ICFAI UNIVERSITY,DEHRADUN

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT
OBJECT AND METHODOLOGY

1.COPYRIGHT
1.1 INTRODUCTION
1.2 HISTORY
1.3 SCOPE
1.4 EXCLUSIVE RIGHTS
1.5 DURATION
1.6 LIMITATIONS & EXCEPTIONS TO COPYRIGHT
2. FAIR USE AND FAIR DEALING
2.1 INTRODUCTION
2.2 WHAT DO YOU MEAN BY FAIR USE UNDER THE INDIAN COPYRIGHT
ACT?
2.3 HOW CAN FAIR USE BE INCORPORATED AS A DEFENCE IN COPYRIGHT
INFRINGEMENT LITIGATION?
2.4 HOW IS FAIR DEALING DISADVANTAGEOUS TO THE OWNER OF A
COPYRIGHT?

3. CASES OF DOCTRINEFAIR USE IN COPYRIGHT ACT.

4. CONCLUSION
5. BIBLIOGRAPHY

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 ACKNOWLEGEMENT

I, ASHWINA NAMTA, I feel myself highly elated, as it gives me tremendous pleasure to come
out with work on the topic “AN INSIGHT : DOCTRINE OF FAIR USE ’’

First of all I express my sincere gratitude to my Professor MR. AMAN GAUTAM SIR who
enlightened me with such a wonderful topic. Without Him, I think I would have accomplished
only a fraction of what I eventually did. I thank her for putting her trust in me and giving me a
project topic such as this and for having the faith in me to deliver.

Next I express my humble gratitude to my parents for their constant motivation and selfless

support. I would thank my brother for guiding me. 

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 OBJECT AND METHODOLOGY

 RESEARCH METHODOLOGY

The methodology used in this research project is simply based on the contents
provided in different books and self analysis through internet sources as well
meaning thereby sources of this project is based on the method of book reading
and internet.

The problem of this research project is based on the title “AN INSIGHT :
DOCTRINE OF FAIR USE

 AIM AND OBJECTICE OF RESEARCH

The main aim behind making this project is to find out the various aspects of this doctrine and
judicial attitude on this issue and appropriate suggestions will be given accordingly.

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 COPYRIGHT

1.1 INTRODUCTION
Copyright has been internationally standardized, lasting between fifty to a hundred years from
the author's death, or a finite period for anonymous or corporate authorship; some jurisdictions
have required formalities to establishing copyright, most recognize copyright in any completed
work, without formal registration. Generally, copyright is enforced as a civil matter, though
some jurisdictions do apply criminal sanctions.

Most jurisdictions recognize copyright limitations, allowing "fair" exceptions to the author's
exclusivity of copyright, and giving users certain rights. The development of the Internet, digital
media, computer network technologies, such as peer-to-peer file sharing, have prompted
reinterpretation of these exceptions, introduced new difficulties in enforcing copyright, and
inspired additional challenges to copyright law's philosophic basis. Simultaneously, businesses
with great economic dependence upon copyright have advocated the extension and expansion of
their copy rights, and sought additional legal and technological enforcement.
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, been kept out of the mischief of
the Copyright law.1

Fair dealing uses are research and study; review and critique; news reportage and the giving of
professional advice (i.e. legal advice). Under current Australian law it is still a breach of
copyright to copy, reproduce or adapt copyright material for personal or private use without
permission from the copyright owner. Other technical exemptions from infringement may also
apply, such as the temporary reproduction of a work in machine readable form for a computer.
Educational use is regarded as ‘fair use’ in most jurisdictions, but the restrictions vary wildly
from nation to nation.

1
SK Duttv.Law Book Co and Ors , AIR 1954 All 570 at Para12 and Kartar Singh v Ladha Singh , AIR 1934 Lah
777.
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Fairs use is also called Fair dealing .It means usage of copyrighted literary work (literary work
means not only literature but also include maps, diagrams and flow in for non-commercial
purposes.) For eg.Research, education or any other form of unprohibited usage is not the
infringement of copyright because the usage is covered under fair-dealing. Fair dealing include
proper acknowledgement. The right of fair dealing include assimilation and usage of information
for the purpose of general awareness.2

COPYRIGHT LAW IN INDIA

In India, the Copyright Act 1957, was passed on 4 th June, 1957, and came into force on 21 st
January, 1958. Drastic Amendment in the Act was brought about by the Copyright (Amendment)
Act, 1983. Soon after, was introduced another major amendment, in1984. Then came into force
the Copyright (Amendment) Act, 1992, thereafter the Act was again thoroughly amended by the
Copyright (Amendment) Act, 1994, which came into force w.e.f.10.5.1995.The setting of
Copyright Office and Copyright Board assures full protection of all rights in relation to a work in
which Copyright subsists, whether of user or of licensee or of publishers. In 1999 an important
amendment is made and now the Indian Copyright law is equal to international standard.

1.2 HISTORY

1.2.1 STATUTE OF ANNE (1710)

The concept of copyright originates with the Statute of Anne (1710) in Britain. It established the
author of a work as the owner of the right to copy that work and the concept of a fixed term for
that copyright. It was created as an act "for the encouragement of learning", as it had been noted
at the time that publishers were reprinting the works of authors without their consent "to their
very great detriment, and too often to the Ruin of them and their Families".

2
https://en.wikipedia.org/wiki/Fair_dealing

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 1.2.2 BERNE CONVENTION (1186)

The 1886 Berne Convention first established recognition of copyrights among sovereign nations.
Under the Berne Convention, copyrights for creative works do not have to be asserted or
declared, as they are automatically in force at creation: an author need not "register" or "apply
for" a copyright in countries adhering to the Berne Convention. As soon as a work is "fixed", that
is, written or recorded on some physical medium, its author is automatically entitled to all
copyrights in the work, and to any derivative works unless and until the author explicitly
disclaims them, or until the copyright expires.3

1.3 SCOPE

Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".
Specifics vary by jurisdiction, but these can include poems, theses, plays, other literary works,
movies, dances, musical compositions, audio recordings, paintings, drawings, sculptures,
photographs, software, radio and television and broadcasts. Copyright does not cover ideas and
information themselves, only the form or manner in which they are expressed.

1.4 EXCLUSIVE RIGHTS

 To produce copies or reproductions of the work and to sell those copies (mechanical
rights; including, sometimes, electronic copies: distribution rights)
 To import or export the work
 To create derivative works (works that adapt the original work)
 To perform or display the work publicly (performance rights)
 To sell or assign these rights to others
 To transmit or display by radio or video (broadcasting rights)

3
https://en.wikipedia.org/wiki/Fair_dealing

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1.5 DURATION

Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can
depend on several factors, including the type of work (e.g. musical composition, novel), whether
the work has been published or not, and whether the work was created by an individual or a
corporation. In most of the world, the default length of copyright is the life of the author plus
either 50 or 70 years. In the United States, the term for most existing works is a fixed number of
years after the date of creation or publication. In some countries (for example, the US and the
UK), copyrights expire at the end of the calendar year in question.

In India, the duration of the copyright is the life of the author plus 60 years.

1.6 LIMITATIONS & EXCEPTIONS TO COPYRIGHT

The expression ‘limitations and exceptions to copyright’ refers to situations in which the
exclusive rights granted to authors, or their assignees under copyright law do not apply.

FAIR USE AND FAIR DEALING

Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine,
codified by the Copyright Act of 1976, permits some copying and distribution without permission
of the copyright holder or payment to same.
Doctrine of Fair Dealing is an exception to the law that would usually protect any material that
would be considered to be copyrighted as under the Indian Copyright Act, 1957 (hereinafter
known as the “Act”). It is a legal doctrine which permits a person to use any work which is
protected under the Act with limited usage of such work so as to maintain the sanctity and
originality of such work as well as the registered proprietor of the work. 4

4
https://blog.ipleaders.in/fair-use-law-india-copyright-act/
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The meaning of “Fair Dealing” depends on different facts and circumstances. In India, the Court
applies basic common sense so that they can determine as to what can be constituted as Fair
Dealing on the case- to- case basis. Fair dealing is a significant limitation on the exclusive right
of the copyright owner. It has been interpreted by the courts on a number of occasions by judging
the economic impact it has on the copyright owner. Where the economic impact is not
significant, the use may constitute fair dealing. The fair nature of the dealing depends on the
following four factors:

1. the purpose of use;

2. the nature of the work;
3. the amount of the work used, and
4. the effect of use of the work on the original.

In consonance with the UK Copyright laws, India has adopted the concept of Fair Dealing for the
past years. On the other hand, the same concept is known as “Fair Use” under U.S. Copyright
laws. Cases such as Gyles vs Wilcox which had established the concept of “Fair Abridgment”
and Folsom vs Marsh have established the concept of what Fair Dealing is. These cases acted as
precedents to the Indian cases which will be discussed in brief later in this assignment. 
In the recent amendment that has been made in the Act known as the Copyright (Amendment)
Act, 2012, the concept of Fair Dealing has also included works in the line of musical or
cinematographic in nature. The reason for this is that since both personal and private works have
been amended in the recent Act except work done in the line of computer programming, the
scope has become much wider to consider what can be considered to be Fair Dealing under the
Indian Regime. Also, Fair Dealing has been considered to benefit disabled persons who can now
access works including sharing with any person with a disability for private or personal use,
research or for any other educational purposes. 5

WHAT DO YOU MEAN BY FAIR USE UNDER THE INDIAN

COPYRIGHT ACT?
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Under Indian regime legal framework being the Copyright Act, 1957, section 52
lays down certain acts or works that cannot be considered as an infringement of
copyright namely fair dealing with a literary, dramatic, musical or artistic work not
being a computer program for the purposes of-

 fair dealing with any work, not being a computer programme, for the purposes of—
(i) “private or personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events and current affairs, including the reporting of a lecture
delivered in public.
 the transient or incidental storage of a work or performance purely in the technical
process of electronic transmission or communication to the public;
 transient or incidental storage of a work or performance for the purpose of providing
electronic links, access or integration, where such links, access or integration has not
been expressly prohibited by the right holder, unless the person responsible is aware or
has reasonable grounds for believing that such storage is of an infringing copy:
  the reproduction of any work for the purpose of a judicial proceeding or for the purpose
of a report of a judicial proceeding;

The Court along with the above mentioned provision, also relies upon classic cases which has
been dealt in brief in the next chapter as to what and up to how much extent any work which is
abridged as under the Act can be considered to be “Fair Use” of the copyrighted work which in
fact, is an extremely technical based issue that is seen by the Court mainly looking into the fact
of the case.

HOW CAN FAIR USE BE INCORPORATED AS A DEFENCE IN

COPYRIGHT INFRINGEMENT LITIGATION?

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When a person is faced with Copyright infringement litigation, he/she can adopt either of the two
strategies as a defence;
1. They can challenge the Copyright ability of the work 
2. Argue that the work was well within the ambit of fair dealing under Section 52 of the
Copyright Act, 1957.
The United States Copyright Law specifies several factors in order to determine whether the
acts fall within the ambit of fair use, the Indian courts have accepted these factors too in order to
determine whether an act constitutes a fair dealing as provided under Section 52 of the Copyright
Act, 1957 or else it amounts to infringement of a Copyright. 
The factors are as follows:
 The purpose and character of the use of such work, it has to be determined  whether the
work is of commercial nature or for a non profit/educational purpose. 
 Nature of the Copyrighted work.
 The portion used  as a part of the Copyrighted work as whole.
 The effect of the use of such work on the market or value of the copyrighted work. 
 Not a substitute for the original work.
 Also, is transformative in nature that is, adds new meaning and message to the original.


If these factors are present in a work it can be dealt under the scope of fair dealing and in a
Copyright litigation the defence would have to prove how his/her work has incorporated all the
above mentioned factors so as to not result in infringement of a Copyrighted work.
The factors are thoroughly considered by the courts before determining as to whether the work
can be considered within the scope of fair dealing.6

In the United Kingdom an exception to Copyright Infringement is prevalent in the form of fair
dealing. However, the fair use is limited in scope as it only extends to research, private study,
criticism, review and news reporting and it is irrelevant whether fair use is for general use or for
a purpose not specified in the Copyright, Designs and Patents Act, 1998.

6
https://www.legalserviceindia.com/legal/article-4714-doctrine-of-fair-dealing-under-copyright-law
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The European Commission released a communication about the new European Copyright
framework at the end of 2015. The main highlight of this framework is to increase the levels of
harmonization, make relevant exceptions mandatory for member states to implement and
ensure that it functions across the borders within the EU. The Canadian courts have also found
more flexibility in the country’s fair dealing statute moving it substantially closer to a fair use
model without abandoning the fair dealing framework.

HOW IS FAIR DEALING DISADVANTAGEOUS TO THE OWNER OF A

COPYRIGHT? 

There has always been a thin line of difference between Infringement and Fair Dealing.

Section 52 of the Copyright Act 1957 does not permit the reproduction of the whole work.  Such
substantial copying and reproduction of the whole of the work would amount to infringement
however; one of the major loopholes present in the Indian Copyright Act is that it does not define
what substantial or insubstantial portion of the Copyright work is. As per the legal interpretation
of the provision it is clear to one and all that only the insubstantial portion of the original
copyright work comes within the ambit of fair dealing. The question of whether a work is fair
dealing or not is a qualitative one that differs from case to case. 7

CASES

7
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 1. CCH CANADIAN LTD. V. LAW SOCIETY OF UPPER CANADA (2004)

CCH Canadian Limited v. Law Society of Upper Canada, is the landmark Supreme Court of
Canada case that establishes the bounds of fair dealing in Canadian copyright law. The Law
Society of Upper Canada was sued for copyright infringement for providing photocopy services
to researchers. The Court unanimously held that the Law Society's practice fell within the bounds
of fair dealing.

2. CIVIC CHANDRAN VS AMMINI AMMA- 

In this case, the Court considered that a parody did not constitute an infringement of
copyright as long as it has not been misused or misappropriated. In consonance with this
case, the Court established the following three tests which is to be taken into consideration to
determine work to be an infringement of copyright:
1. “the quantum and value of the matter taken in relation to the comments or criticism; 
2. the purpose for which it is taken; and 
3. the likelihood of competition between the two works.”

3. MGM STUDIOS, INC. V. GROKSTER, LTD. (2005)8

A US Supreme Court decision in which the Court unanimously held that defendant P2P file
sharing companies Grokster and Streamcast (maker of Morpheus) could be sued for inducing
copyright infringement for acts taken in the course of marketing file sharing software. The
plaintiffs were a consortium of 28 of the largest entertainment companies (led by Metro-
Goldwyn-Mayer studios).

8
3. MGM STUDIOS, INC. V. GROKSTER, LTD. (2005)
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 CONCLUSION

The Doctrine of Fair Use developed over the years as courts tried to balance the rights of
copyright owners with society's interest in allowing copying in certain, limited circumstances. In
the context of computer technologies, the ‘Fair Use’ Doctrine is often used in the context of
Reverse Engineering. Under Trade Secret Principles, it is generally accepted to "Reverse
Engineering" a product to determine how the product works. Reverse Engineering may involve
analyzing circuit board layouts, "peeling" back an integrated circuit chip, or decompiling
computer software. It is impossible to decompile software and then analyze the results without
making a copy (or a derivative work) of the software, the making of these copies in the context
of reverse engineering is a ‘Fair Use’ and is not Copyright infringement. It is without dispute that
the Indian Copyright Act, purport to maximize the promotion of creativity and the dissemination
of information at the same time, but it is different from US counterpart which traces ultimately in
the policy pre-occupations of the Indian and US Courts. The provision for Fair Dealing in the
Indian Act is brief and does not define the meaning or the application of the defence. The
provision for the ‘Fair Use’ in the American Act is more elaborate and extensive. The American
Act is more flexible and open for further advancement and is so intended by its legislators.
Indian legislators, desiring certainty, have chosen the conservative approach and the Indian
judicial jurisprudence is reflective of this approach. Considering the global nature of the digital
environment, it is in the interest of both right-holders and users that exceptions and limitation to
the exclusive rights of reproduction and communication to the public and provisions on
applicable laws be harmonized as much as possible. For an optimum development of the internet,
harmonization should occur at international level, Specific situations in various countries to be
taken into account.

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 REFERENCES

 SITES

 https://www.legalserviceindia.com/legal/article-4714-doctrine-of-fair-dealing-under-copyright-
law
 https://blog.ipleaders.in/fair-use-law-india-copyright-act/

 https://en.wikipedia.org/wiki/Fair_dealing

 BOOKS

 V.K AHUJA

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