The Doctrine of Fair Dealing

Fair dealing is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. It provides the right to reproduce or use copyrighted work in a manner that doesn’t count to be an infringement in accordance with the Copyright (Amendment) Act, 2012. Fair dealing is an exception to the use of the exclusive right of copyrighted work without the owner’s authorisation.

The meaning of “Fair dealing” is not defined under the Copyright Act, but it is explained and applied in legislations that derive its meaning. Fair dealing can be the quotation of excerpts a review or criticism for purposes of illustration or comment. A library, for example, could reproduce a portion of a work to replace a section of a damaged copy of books and the reproduction of a small part of work to illustrate a lesson by a teacher or student. Any copyrighted publication/ part of publication used with the genuine motive without impacting the original owner in the process of strengthening the public interests then it could be termed as fair dealing.

The concept of fair use or fair dealing is enraptured in Section 52 of the Act,

52. Certain acts not to be infringement of copyright. —

(1) The following acts shall not constitute an infringement of copyright, namely, —

[(a) a 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 landmark case for Indian Copyright under fair dealing is Civic Chandran v. Ammini Amma (Kerala High Court, 1996 PTR 142 (Kerala High Court, 1996) (“Civic Chandran”) it laid down the criteria to be considered for the determination:

(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”.

The question of drawing a line between creative criticism and imitation was cleared in this case. Parodies derived from the original work of another artist is difficult to categorise as an infringement or fair dealing. The court held that the parody, in this case, was proposed to criticise the idea propagated by the original drama (in conflict with the respondent drama) and to expose to the public that it had failed to achieve its real objective. Thus, concluding that the reproduced work of drama was not misappropriation/ misuse of the original work.

It can be inferred that in the legislation and the judiciary, parody in Indian law is equally protected under the fair dealing defence. The condition to avail parody as a fair dealing defence involves proving the work does not intend to compete with the copyright holder and the work does not make any improper use of the original work.

Most relatable connection with fair dealing and often confusing to draw the line is fair dealing and education. The popularly known as DU Photocopy case, wherein the Delhi High Court held that the preparation of ‘course packs’ i.e. compilation of photocopies of the relevant portions of different books prescribed in the syllabus, and their distribution to the students by educational institutions do not constitute an infringement of copyright in those books under the Copyright Act, 1957, as long as the inclusion of the works photocopied (irrespective of the quantity) was justified by the purpose of educational instruction. It was held that educational institutions do not require any licenses or permissions from publishers for preparations of such packs that are solely used for instructing students by the teacher.

No doubt fair dealing is a defence available against the authors/ owners of copyright, does it hinder the encouraging innovation and creativity of an artist? These are the underlining facts that are determined in various judicial precedents in India. The concept of fair dealing is not constrained to the sub-clauses of Section 52. Screening of film in educational settings is considered as fair use provided the fair use conditions are met, but with the global pandemic situation, will the screening of movies or films in online classes would fall under the same purview was a point to be clarified. The Section 52 is determined only by the wordings of the provisions and the limitations specified in them.

Among various factors for consideration what qualifies to fair dealing, and an important consideration is the substantial infringement of the work must be seen in order to distinguish between copyright infringement and fair dealing. If the amount copied exceeds the substantial limits, then the fair dealing defence cannot be claimed.

In the case M/S Blackwood and sons Ltd v. A.N. Parasuraman AIR 1959 Mad 410, it was held that,

“…Two points have been urged in connection with the meaning of the expression ‘fair’, in ‘fair dealing’: (1) that in order to constitute unfairness there must be an intention to compete and to deprive of profit from such competition and (2) that unless the motive of the infringer were unfair in the sense of being improper or oblique the dealing would be fair…”

It can be inferred that, the spirit of using the work should stick with the principles of fair usage and must adhere to moral laws. The extraction of original work must not cause competition or loss to the creator.

The doctrine of fair use is not limited to copyright work alone, but the use of trademarks is also covered. For instance, in order to promote a small device of a finished larger product that is used for specific purposes alone, then the device owner has to use the product name for marketing purposes. In such circumstances, the usage of a trading name is not considered an infringement but is an exception under fair use.

For example, if A is manufacturing pressure cooker and B is manufacturing gaskets that fit A’s product. Thus, to promote the gasket, B has to use A’s tradename.

In the Indian law, under Section 30(2)(d) of the Trade Marks Act, 1999 fair use of a trademark by a third party is not an infringement of a registered trademark.

The Act provides that,

“(d) the use of a trade mark by a person in relation to goods adapted to form part of, or to be accessory to, other goods or services in relation to which the trade mark has been used without infringement of the right given by registration under this Act or might for the time being be so used, if the use of the trade mark is reasonably necessary in order to indicate that the goods or services are so adapted, and neither the purpose nor the effect of the use of the trade mark is to indicate, otherwise than in accordance with the fact, a connection in the course of trade between any person and the goods or services, as the case may be;”

It is not considered as an infringement, if the use of a registered trademark is reasonable. It is used in order to relate their part of product or service to the major product or service provided. The trade name should be used in a manner it doesn’t lead to confusion as to trade origin.

The requirements to meet the normative fair use include the product/ service in question must be one not readily identifiable without use of the trademark. The mark or marks may be used as a reasonable necessity to identify the product or service. And lastly, the user must not do anything that would conjunct the mark, suggest promotion or endorsement by the trademark holder.

Fair dealing is a defence of favour when the copied work is significant or for a purpose with the interest of good faith. The legislators have a complied set of provisions for an act not to be an infringement. But the law doesn’t exactly define what fair dealing is particularly.

Every case has its own merits and demerits; therefore, the need lies to weigh all factors based on the individual circumstances to decide the fair dealing. The unauthorised use of a copyrighted work or a tradename is usually an infringement and fair dealing is the defence for it. But the defence of fair dealing doesn’t always ensure the non-infringing action towards the act.

Consequentially it can be said that fair dealing was then a complicated issue to distinguish and even today. The facts of every case determine the implication of provisions and their derivatives than the law itself.  Every case under fair dealing must pass through the tunnel of purpose and character of the use, the nature of copyrighted work that is used. It should look into the amount and substantiality of the portion used when compared to the whole of the work. And finally, the effect of the use upon the market impact or the value of the work.

Fair dealing is considered an integral part of copyright law. The Indian law has kept that in mind to encourage the creations with appropriate protection to the original copyrighted work and trademarks. At uncertain times, it always calls for the best versions of the law being enforced through judgements.

Author: Sneha V Kopparad