What is Fair Use?

Fair use doctrine was a judicially created doctrine which owes its origins to the famous 1841 case of Folsom v. Marsh10, where Justice Story observed:

"......we must often, in deciding questions of this sort, look to the nature and objects of the selection made, the quantity and value of the material used and the degree to which the use may prejudice the same or diminish the profits or supersede the objects of the original work."11

Fair use supports "socially laudable purposes,"12 typically, if not exclusively, involving the use of the copyrighted work by a second author.13 The U.S. Copyright Act specifies that the "fair use of a copyrighted work, including such use by reproduction in copies...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."14 While fair use explicitly applies to such uses of copyrighted work, the defense is not limited to these areas.15

The effect on the current and potential market of the work be of 'de minmis' nature or in pursuance of meeting socially valuable ends or both. They also have to conform to the cumulative three-step test enshrined in the Berne Convention and reinforced by the TRIPS Agreement, where use should not conflict with the normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the copyright holder. Fair use has to be viewed not as permission to copy but as an exception to the exclusive right of the owner.16

Fair use is not a straight-jacket formula or existing in a watertight compartment. Its parameters are not defined as such. No bright line test exists for determining whether any particular use is "fair use'' or an act of infringement, so each use requires a case-by-case determination.17 It is like an openended legal doctrine. Fair use is a defense to a suit for infringement.

Fair use is not a 'license' but in the nature of a privilege by virtue of which, the person pleading defense against a suit for infringement can escape the clutches of copyright law. As Crews18 points out, fair use doctrine helps to prevent the copyright

owners' exclusive rights from interfering with the Framers' stated purpose of the promotion of learning. The larger goal of copyright is the advancement of human knowledge. The doctrine of fair use has developed over the years as courts tried to balance the rights of copyright owners with society's interest in allowing copying in limited circumstances. This doctrine has at its core, a fundamental belief that not all copying should be banned, particularly in socially important endeavors such as criticism, news reporting, teaching and research.19

The term 'fair use' is peculiar to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions such as U.K. and India.20 Until codification of the fair use doctrine in the 1976 Act, fair use was a judge-made right21 developed to preserve the constitutionality of copyright legislation by protecting First Amendment values.22 Thus, the doctrine of fair use is an evolving principle of the U.S. Judiciary over the years. This doctrine has now been codified in Section 107 of Copyright law and has been described as "the most troublesome in the whole law of copyright".23 It is a judge made law codified in Section 10724 of the U.S. Code.

For balancing the tension between the economics of copyright law vis-à-vis social objective, four factors have been placed under Section 107 of US Act and they are:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

What is Fair Dealing?

Fair dealing is permitted for private use including for the purpose of research25 or criticism26 or review27. Such a 'fair dealing' provision also extends to reproduce literary, dramatic, musical or artistic work for the purpose of reporting current events in a newspaper, magazine or similar periodical28 or by broadcast29 or in a cinematograph film or by means of photographs30 or using excerpts of a performance or of a broadcast in the reporting of current events or for bonafide review, teaching or research.31 Further, it has been inserted through an amendment in 1994, that the act of making copies or adaptation of a computer program by the lawful possessor for which it was supplied or as a means to offer temporary against loss, destruction or damage of the program.

In the case of Civic Chandran v. Ammini Amma32, the learned judge observed:

"The term 'fair dealing' has not been defined as such in the Act. But section 52(1)(a) and (b) of specifically refers to 'fair dealing' of the work and not to reproduction of the work. Accordingly, it may be reasonable to hold that the re-production of the whole or a substantial portion of it as such will not normally be permitted and only extracts or quotations from the work will alone be permitted even as fair dealing." Further the court held that "In such cases, court has to take into consideration (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"; it is similar to the four factor test of the U.S. fair use doctrine.

Fair dealing is not a license to violate the exclusive right of the copyright owner. One cannot copy from another and claim refuge under the garb of fair dealing. Simply giving the credit to the original author would not help either. Even where the user has copied a substantial part of the work, it would not be considered as 'fair' and 'legitimate' since copyright protection requires reasonable skill and labour to reach the threshold of originality and quality for protection.

In one case before the High Court of Andhra Pradesh, involving an appeal where the trial court had held that the film was an adaptation of the novel and since copyright permission had not been obtained, the act constituted piracy, the court read the four factor test as an important criteria in adjudging whether the cinematographic film infringes the copyrighted literary work and arrived at the conclusion that if the person infringing the copyrighted work obtains a direct pecuniary benefit from the use of the copy in its stream of commerce, then it would be considered to be an unfair user for profit. 33

Difference Between Fair Dealing and Fair Use

"Fair dealing" and "fair use" are related concepts pertaining to user's rights under copyright law. It is nevertheless important to understand that fair dealing and fair use are not synonymous terms since their meaning and scope are defined by different legal systems. It is challenging to adequately summarize the shared and divergent underpinnings of fair dealing and fair use succinctly. The following brief comparison aims to merely sketch a broad picture of some of the basic similarities and differences between fair dealing and fair use.

Fair dealing is an exception to copyright infringement laid out in the copyright statutes of common law jurisdictions such as Great Britain, Canada, Australia and New Zealand. The copyright acts of these jurisdictions provide that fair dealing of a copyrighted work will not amount to infringement if such dealing is stated in the act. This means, if a work is copied for a purpose other than the statutory fair dealing purposes, the copying cannot be a fair dealing regardless of the copier's intention.

Fair use is a limitation on exclusive rights in works of authorship granted under U.S. copyright law.

Title 17 of the United States Code states that fair use of a copyrighted work is not an infringement of copyright. Title 17 provides an open-ended list of purposes that may be fair use - "purposes such as criticism, comment, news reporting and teaching (including multiple copies for classroom use) " - instead of listing a finite list of purposes defining the bounds of acts that may be fair dealing.

Another point of divergence is the availability of statutory guidance on how the fairness of a dealing or use should be evaluated. Since fair dealing provisions generally lack statutory definitions or regulations specifying how fairness is to be determined, the appropriate approach to assess the fairness of actual dealings with protected works is a matter for the courts to decide. In Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada set out a two-step analytical framework to assess fair dealing in which the second step identifies six fairness factors. The court said the extent to which the factors are relevant may vary from case to case and noted some cases may require consideration of factors beyond the six identified in the framework.

In contrast, the fair use provision in U.S. copyright law prescribes four factors that must be included in a fairness determination: 1) purpose and character of the use, 2) nature of the copyrighted work, 3) amount and substantiality of the portion of the work used and 4) effect of the use on the potential market or value of the work. These fair use factors are similar to the six CCH fair dealing factors (purpose, character, amount, and effect of the dealing, nature of the work, and alternatives to the dealing) but U.S. and Canadian case law have applied the fairness factors in different ways.

In the U.K., a defense to copyright infringement exists in the form of fair dealing. Fair dealing protection is limited to specific uses such as research and private study (both must be non-commercial), criticism, review, and news reporting. Thus, protection is only afforded if the use of the copyrighted work falls into these categories and it does not matter whether the use is fair in general or fair for a purpose not specified in the Copyright, Designs and Patents Act of 1988.


10 9 F Cas 342 (1841).

11 William Z., Nasri, Crisis in Copyright (29, Allen Kent Ed., Marcel Dekker, Inc., 1976).

12 Universal City Studios, Inc., v. Sony Corp. of Am., 659 F 3d 963 (971-72) (9th Cir 1981) at 479.

13 Universal City Studios, Inc., v. Sony Corp. of Am., 659 F 3d 963 (971-72) (9th Cir 1981) at 478 n.31.

14 17 USC Section 107 (2000). In addition to fair use, Sections 108 through 122 of the Act specify additional limitations on the creator's exclusive rights.

15 S. 107 of US Copyright Act. 16 Ibid.

17 United States v. Elcom Ltd., 203 F Supp 2d 1111, 1121 (N D Cal 2002) (citing Harper & Row Publishers, Inc. v. Nation Enters, 471 US 539 (549) (1985).

18 Crews K.D Copyright, fair use, and the challenge for universities: Promoting the progress of higher education, University of Chicago Press; 1993, pgs. 24 and 25.

19 The Fair Use Statute In Fair Use in Copyright available at from http:// www.bitlaw.com/copyright/fair_use.html.

20 "Fair Use" is generally the term used in US law and in other countries with similar doctrines with a Common Law Heritage.

21 The four factors of analysis for fair use set forth above derive from the classic opinion of Joseph Story in Folsom v. Marsh, 9 Cas 342 (1841).

22 The first amendment to the United States Constitution envisages the Freedom of Speech.

23 Dellar v. Samuel Goldwyn, Inc., 104 f 2d 661 (662) (1939).

24 US Code, title 17, Chapter 1, S. 107.

25 S. 52(a)(i) of the Indian Copyright Act, 1957 as subs. by Act 38 of 1994, S. 17 (w.e.f. 10-5-1995).

26 In the United States, it is call parody.

27 Ibid., S. 52(a)(ii).

28 Ibid., S. 52(b)(i).

29 The word 'broadcast' has been subs. by Act 23 of 1983, S. 2, for "radiodiffusion" (w.e.f. 9-8-1984).

30 Ibid., S. 52(b)(ii).

31 Section 39(b) of the Indian Copyright Act, 1957 as subs. by Act 38 of 1994, Section 15 (w.e.f. 10-5-1995).

32 1996 PTC 670 (Ker HC) 675-677.

33 K. Murari v. Muppala Ranganayakamma, 1987 (2) ALT 699 (718).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.