Fair Use Doctrine-What it means for Content Creators?

Introduction

The fair use doctrine in copyright law permits limited use of copyrighted material without permission from the copyright holder, aiming to balance the interests of creators with the public's need for access to creative works. It allows for uses such as criticism, commentary, news reporting, education and research, provided they meet specific criteria, such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market value of the original work.

What is Fair Use?

The fair use doctrine is a key principle in copyright law that allows limited use of copyrighted material without permission from the copyright holder. It is intended to balance the interests of copyright owners with the public interest in the broader dissemination and use of creative works. It promotes freedom of expression and facilitates activities like criticism, commentary, news reporting, teaching, scholarship, and research. To determine whether a specific use qualifies as fair use, courts evaluate four key factors:

1. Purpose and Character of the Use: Whether the use is for commercial or non-commercial purposes and whether it is transformative, meaning it adds new meaning or value to the original work.

2. Nature of the Copyrighted Work: The type of work used, with factual works generally being more favourable to fair use compared to creative works.

3. Amount and Substantiality: The proportion of the work used and whether the portion used is significant in relation to the entire work.

4. Effect on the Market: The impact of the use on the market value or potential market for the original work, including whether it serves as a substitute for the original.

Scope of Fair Use in India

The concept of Fair Use is prominently used in jurisdictions such as the United States, and the similar concept is known as "fair dealing" in India. The provisions for fair dealings have been mentioned in Section 52 of the Indian Copyright Act, 1957. While the term "fair dealing" is not explicitly mentioned in Indian law, fair dealing allows for certain uses of copyrighted material without the copyright holder's permission, provided these uses fall within specific categories and meet certain criteria such as:

1. Permitted Purposes: Fair dealing in India is permitted for the following specific purposes:

• Private or Personal Use: Limited to personal, non-commercial purposes.
• Research or Study: For non-commercial research or educational purposes.
• Criticism or Review: To critique or review the work, provided proper attribution is given.
• Reporting Current Events: For news reporting or covering current events, with proper acknowledgement.
• Parody or Satire: As acknowledged in the case of Indian Performing Right Society Ltd. v. Eastern Book Company (2012), parody and satire may also fall under fair dealing. However, this is not explicitly stated in the statute.

2. Limitations:

• Extent of Use: The amount of copyrighted work that can be used is typically limited to what is necessary for the permitted purpose. For instance, only a small portion of a work might be used for criticism or review.
• Commercial vs. Non-Commercial Use: Fair dealing is generally intended for non-commercial purposes. Uses that have commercial implications are less likely to be considered fair dealing.
• Attribution: Proper attribution of the original work is required to qualify as fair dealing.
• Market Impact: If the use negatively impacts the market value or potential market for the original work, it may not qualify as fair dealing.

3. Judicial Interpretation: Indian courts interpret fair dealing on a case-by-case basis, considering factors such as the purpose of the use, the nature of the copyrighted work, the amount used, and the effect on the market. Landmark cases have clarified and expanded the understanding of fair dealing within these limits.

Examples of Fair Use in India

Under the Copyright Act of 1957, fair dealing in India allows certain uses of copyrighted material without permission for specific purposes. Here are some examples based on the statutory provisions:

1. Private or Personal Use (Section 52(1)(a)):

• Making a copy of a book chapter for personal study or non-commercial research.

2. Research or Study (Section 52(1)(a)):

• Using excerpts from a journal article or book in a thesis or academic research paper.

3. Criticism or Review (Section 52(1)(a)):

• Quoting brief passages from a book or showing small clips from a film in a review or critique published in a newspaper or magazine.

4. Reporting Current Events (Section 52(1)(b)):

• Reproducing short segments from a news video or article to report on current events with proper attribution.

5. Parody or Satire (Interpreted through case law, not explicitly stated):

• Creating a parody or satire based on a copyrighted work, such as a comedic version of a song or film which transforms the original work.

6. Educational Use (Section 52(1)(i)):

• Teachers use excerpts from copyrighted textbooks in classroom presentations or educational materials.

Case Laws Involving Fair Use in India

In the recent case involving YouTuber Dhruv Rathee and Dabur Company, the dispute revolved around Dabur's allegations against Dhruv Rathee's video, which referenced their 'REAL' juice product, Dabur India Limited. Dabur alleged that these depictions infringed on their copyright, which could mislead viewers and negatively impact their brand. The Calcutta High Court passed an interim injunction holding that, even though the video might not seem problematic. Still, it crosses the line by repeatedly mentioning and criticising the petitioner's product "Real Fruit Juice". On a broader note, this case challenges us to rethink the balance between protecting intellectual property and the limit to which the fair use principle can be used to uphold the right to freedom of speech and access to information.

In the case of Super Cassettes Industries Ltd. vs Hamar Television Network Pvt. Ltd., the Delhi High Court ruled in favour of Super Cassettes Industries Ltd., finding that Hamar Television Network Pvt. Ltd. infringed on copyright by broadcasting music videos owned by T-Series without permission. The court held that the use did not qualify as fair dealing because it was for commercial purposes rather than private, educational, or non-commercial use. This case highlighted the importance of obtaining proper licenses for copyrighted material in commercial media and broadcasting.

Practical Tips for Content Creators

For content creators seeking to navigate fair use in copyright, here are some practical tips to help ensure compliance while maximising the benefits of fair use:

1. Understand Fair Use Factors:

• Purpose and Character: Ensure your use is transformative, adding new meaning or value rather than reproducing the original work. Non-commercial and educational uses are more likely to be considered fair use.
• Nature of the Work: Favour factual or non-fictional works over creative works. The use of factual content is likely to be considered fair.
• Amount and Substantiality: Use only the amount necessary for your purpose. Avoid using large portions or the "heart" of the work.
  Effect on the Market: Ensure your use does not negatively impact the original work's value or potential market. It should not act as a substitute for the original work.

2. Transform the Original Work:

• Add New Insight: Modify the original work by adding commentary, critique, or new perspectives.
• Create Parodies or Satire: If appropriate, use the original work in a way that parodies or critiques it, making sure the new work clearly stands apart from the original.

3. Proper Attribution:

• Credit the Source: Always give proper credit to the original creator. This includes citing the source and providing clear attribution.

4. Use Limited Excerpts:

• Minimise Use: Use only the necessary excerpts of the original work. Avoid using large portions or key segments that could diminish the value of the original.

5. Keep Records:

• Document Your Use: Maintain detailed records of how and why you used copyrighted material. This documentation can be useful in case of legal disputes.

6. Consider Licensing:

• Seek Permissions: If you are unsure whether your use qualifies as fair use or if you plan to use substantial portions, consider obtaining a license or permission from the copyright holder.

7. Legal Advice:

• Seek Professional Guidance: If you are uncertain about whether your use qualifies as fair use, consult with a copyright lawyer or legal expert to ensure you are on solid legal ground.

By following these tips, content creators can better navigate the complexities of fair use, minimise the risk of copyright infringement, and responsibly use copyrighted materials in their work.

Conclusion

Thus, fair use doctrine plays a crucial role in fostering creativity, education, and public discourse by allowing limited use of copyrighted material while ensuring that the creator's rights are respected. By understanding the scope of fair dealing in India and practical tips for fair use, people will be able to make informed decisions regarding the scope of fair dealing in India.

References

1. The Copyright Act, 1957

2. Copyright Alliance, /Copyright and Fair Use, /Copyright and Fair Use, https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

3. Sonal Sinha, Fair Use Law in India under Copyright Act: In depth Analysis, https://www.ipthink-tank.com/post/fair-use-law-in-india-under-copyright-act-in-depth-analysis

4. Indian Performing Right Society Ltd. v. Eastern Book Company, https://brieflaws.com/case-briefs/indian-performing-rights-society-v-eastern-indian-motion-pictures-ltd

5. Super Cassettes Industries Ltd. vs Hamar Television Network Pvt. Ltd., https://brieflaws.com/case-briefs/super-cassettes-industries-ltd-v-hamar-television-network-pvt-ltd-and-anr