Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. It permits reproduction or use of copyrighted work 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 copyright law.1 The defense of "fair dealing" initially originated and emanated as a doctrine of equity which allows the use of certain copyrightable works, which would otherwise have been prohibited and would have amounted to infringement of copyright. The main idea behind this doctrine is to prevent the stagnation of the growth of creativity for whose progress the law has been designed.
This doctrine is one of the most important aspects of Copyright Law which draws a line between a legitimate, bonafide fair use of a work from a malafide blatant copy of the work. This is the reason why this doctrine was explicitly enshrined in Article 13 of the TRIPS (Trade Related Aspects of Intellectual Property Rights) which runs as follows- "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". As we all know, all the member countries of WTO are obliged to comply with the Berne Convention on Copyright as well as the articles of TRIPS. Consequently, this doctrine has been given place in almost all the Territorial Copyright legislations of the member countries. However, there still remains a difference if the individual laws of fair dealing enacted in different countries are compared. While some of the legislations are keeping a rigid approach, the others have kept their doors open to embrace any new act which can be treated as fair dealing. The Indian and UK copyright laws regarding fair dealing are often characterized as very limited and restrictive as they work in accordance with an exhaustive list of actions which come under the scope of fair dealing. Whereas the US laws of "fair use" provide a wide and open ambit for the fair users of a copyright work. While on one hand the Indian and UK laws of fair dealing work strictly within the framework of the enlisted actions which constitute fair dealing, the American laws of fair use is open for interpretation and works with the help of only certain guideline factors which help in determining the extent of "fairness" involved in the work.
It is to be noted that the US doctrine of "fair use" is considered to be the fairest of all as it is the most closely designed law with the TRIPS.
With the passage of time, India has gone through tremendous technological ameliorations but still procures a very limited scope in the law of fair dealing. But if we look towards the west, continuous advancements through innovative interpretations and judicial activism have been introduced in this field.
Fair dealing laws vis-à-vis India –
The laws relating to fair dealing have been incorporated in Section 52 of The Copyrights Act, 1957. As the Indian Copyright Act does not defines the term "fair dealing" , the courts have on various occasions referred to the authority English case Hubbard v Vosper2 on the subject matter. The words of Lord Denning in this case lay down a much descriptive outline of fair dealing-
"It is impossible to define what is "fair dealing". It must be a question of degree. You must first consider the number and extent of the quotations and extracts.... then you must consider the use made of them....Next, you must consider the proportions...other considerations may come into mind also. But, after all is said and done, it is a matter of impression."
The Indian laws related to "fair dealing" is always considered rigid and conventional as it provides an exhaustive list and any use falling out of the statutory list is considered as an act of infringement. Unlike this, the US doctrine of "fair use" keeps its doors open for any new exception which constitutes fair and bonafide use of a copyright work. As the Indian courts have explored and unveiled the various facets of fair dealing, they have said that there cannot be a definite or exhaustible list of uses which can come within the purview of fair dealing but it has to be decided depending upon the facts and circumstances of each case. Apparently, such conclusions have been drawn more from the US and UK approaches and less from the Indian statutory laws.
But apparently, the Indian courts have also started paying attention to the same. The best example of this development is the case of (INDIA TV) INDEPENDENT NEWS SERVICES Pvt. Ltd vs YASHRAJ FILMS PRIVATE LIMITED & SUPER CASSETTES LTD VS..3, where one of the various grounds of dispute was that the defendants "India TV" broadcasted a TV show wherein a documentary is shown on the life of singers and they perform their own songs. While the singer sings, clips of scenes from the movies are shown in the background. The plaintiffs claimed that such acts of the defendants amounted to infringement of their copyright. However, the defendants claimed that such use of the plaintiff's copyrighted material constituted fair dealing within the meanings of section 52 of The Copyrights Act. The Delhi High Court in its judgment restrained the defendants from distributing, broadcasting or otherwise publishing or in any other way exploiting any cinematograph film, sound recordings or part thereof that is owned by the plaintiff. However, if we look at the present case from a slightly different perspective, there are certain questions which still remain unanswered. In my opinion the argument of the counsel for defendant stating that "the singer who has recorded a song which has gone on to become a hit has a sense of ownership over such a song, and that it would be very unreasonable-to the point of being unfair and cruel to the said singer, to say that he/she cannot sing the said song in a TV or other interactive program in front of an audience, only because the copyright in the underlying literary and musical works resides in some other person(s)" also withholds a valid point. But since such use does not come within the exhaustive list provided under section 52 of the act, they were deprived of any remedy in the fair dealing laws.
But, after a long litigation saga, in the appeal from the above order, the Hon'ble bench of the Delhi High Court also felt the need of a diversion from the conventional approach and thus the decision of the single judge was set aside and the restrictions thus imposed were accordingly removed. However, the Appellants were still prohibited from displaying any cinematographic films without permission.
This judgment indicates that the courts also have started feeling that there is still much left to look upon, to consider to keep the legislations hand in hand with the technological and scientific developments going across the world.
Undoubtedly, "fair dealing" is a necessary doctrine, not only in the Copyright laws but also in strengthening the protection given to the citizens under Article 19 of the Constitution of India. But the Indian law related to fair dealing is very limited and confined as compared to the US fair dealing laws which is more elaborate and keeps a flexible approach. Perhaps, the Indian legislators wanted more certainty in the provisions that is the reason behind the conservative approach which reflects in Section 52 of The Indian Copyright Act. Though the courts have adapted the US approach from time to time in its decisions, the author here likes to submit that the overall defense of fair dealing available in our country is yet to be examined, enlarged and defined.
1 SK DUTT v. LAW BOOK CO. & Ors. AIR 1954 ALL 750
2 (1972) 1 All ER 1023 p. 1027.
3 FAO (OS) 583/2011