What constitutes fair dealing of works? Discuss the principles applied by the courts in determining fair dealing of works.”
QUESTION 5
“What constitutes fair dealing of works? Discuss the principles applied by the courts in determining fair dealing of works.”
⟡ INTRODUCTION
Fair dealing is a major limitation on copyright.
While copyright protects authors’ rights, fair dealing ensures that public interest, education, research, criticism, reporting, and private use remain unrestricted.
Under the Copyright Act, Sections 52(1)(a)–(zb) list various acts that are not infringement. These are called fair dealing provisions.
Fair dealing balances:
- Public interest
- Freedom of speech
- Knowledge sharing
- Author’s rights
⟡ MEANING OF FAIR DEALING
Fair dealing means permitted use of copyrighted works without the author’s permission for specific purposes, provided the use is fair, reasonable, and not harmful to the author’s economic rights.
In India, fair dealing is purpose-based, not open-ended.
⟡ PURPOSES RECOGNISED AS FAIR DEALING (Section 52)
1. Private or personal use (including research)
Reading, downloading or copying for personal study is allowed.
2. Criticism or review
Quoting or reproducing parts of a work for criticism or review is fair dealing.
3. Reporting current events
Use of copyrighted content for news reporting is fair.
4. Educational uses
Teachers and students can use works for instruction, explanation, or examination.
5. Library uses
Libraries can make limited copies for preservation or research.
6. Incidental inclusion
If a copyrighted work appears accidentally in a film or photograph, it is fair dealing.
7. Disabled persons’ access
Formats created for persons with disabilities are permitted.
⟡ PRINCIPLES FOR DETERMINING FAIR DEALING (JUDICIAL TESTS)
Courts have developed certain tests to determine whether a particular use is “fair.”
These tests are derived from multiple Indian and foreign judgments.
**1. Purpose and Character of Use Test
Courts check:
- Purpose (educational, commercial, criticism?)
- Whether the use transforms the original
- Whether the use is for public benefit
Non-commercial and educational uses are more likely to be considered fair.
**2. Amount and Substantiality Test
The court examines:
- How much of the original work is used?
- Is the “heart” or “core” of the work copied?
Even copying a small portion may be unfair if it is the most important part.
**3. Effect on the Market Test (Most Important Test)
Courts check:
- Does the use harm the author’s market?
- Does it replace the original?
- Does it reduce the author’s economic reward?
If the copying causes commercial loss, it is not fair dealing.
**4. Nature of the Work Test
If the work is unpublished, artistic, or creative, stricter standards apply.
If it is factual, courts allow more flexibility.
**5. Good Faith and Honest Use Test
Courts evaluate:
- Whether the user acted honestly
- Whether the purpose was legitimate or to exploit the work
⟡ IMPORTANT CASE LAWS
1. Civic Chandran v. Ammini Amma (Kerala HC, 1996)
Facts: Defendant used parts of a drama to produce a counter-drama (satire).
Held:
- Purpose was criticism.
- Only necessary parts were used.
- Use did not harm the original’s market.
Therefore, it was fair dealing.
Court established the “purpose,” “amount,” and “market effect” tests.
2. India TV Independent News Service v. Yashraj Films (Delhi HC, 2012)
Held:
- Reporting news cannot use entire songs or film clips.
- Only short, necessary clips allowed.
- Extensive use harms the original’s economic rights.
3. Super Cassettes (T-Series) v. Hamar Television Network (Delhi HC, 2011)
Using full songs in TV programs for entertainment is not fair use.
4. Blackwood v. Parasuraman (1959 Madras HC)
Reproducing textbooks for students was held not fair dealing if it substantially copied the original.
5. The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services (2016 Delhi HC)
Major Judgment for Education Purpose
Held:
- Photocopying parts of books for university course packs is fair dealing.
- Sections 52 permit educational use.
- No negative impact on the market for textbooks.
This case expanded educational fair dealing.
⟡ IMPORTANT POINTS FROM CASE LAWS
- Fair dealing depends on facts of each case.
- Not all copying is infringement.
- Purpose matters more than quantity.
- Educational and public-interest use is strongly protected.
- Commercial exploitation is never fair dealing.
- The most crucial factor: market harm.
⟡ CONCLUSION
Fair dealing is an important safeguard allowing free use of copyrighted works for:
- Research
- Education
- Criticism
- Review
- News reporting
- Personal use
Courts apply the following principles:
- Purpose of use
- Amount and substantiality
- Effect on market
- Nature of the work
- Good faith
Fair dealing ensures a balanced copyright system by protecting both authors’ rights and public access to knowledge.
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