Fair Dealing- Indian Perspective

To create the next generation of original work, it is critical to stay up to date on new developments and happenings around the world. This makes access to copyrighted material and knowledge a must.

Fair Dealing- Indian Perspective

Copyright laws give the creator a set of exclusive rights to original, literal, dramatic, musical, and artistic work; cinematographic films; and sound recordings for a set period. As per section 14 of the Copyright Act, 1957, the owner of the copyright work can print, publish, perform, make any translations, or adaptations, and also assign or license each of these rights for a limited term. The owner can also authorize or prohibit acts concerning his work. Hence, copyright laws not only protect the product of one’s intellect but also reward creativity.

To create the next generation of original work, it is critical to stay up to date on new developments and happenings around the world. This makes access to copyrighted material and knowledge a must. Protection of the economic and moral rights in copyright material is a creator’s human right, but at the same time, access to knowledge in itself forms a human right for others. The purpose of copyright welfare legislation is to strike a balance between the copyright holder’s rights and the public interest. Exceptions and limitations, such as "fair dealing," are attached to copyright to protect the public's right of access to works and information transmission.

What is fair dealing?

The system of copyright tries to balance fairness theory and welfare theory, through fair dealing. The fair dealing doctrine allows for the replication or use of copyrighted work in ways that would have been a copyright infringement if not for the exception. It allows for limited use of protected works to maintain their integrity and originality. The argument for allowing this exception is that, in some cases, limited use of a copyrighted work may be more beneficial to the public than complete prohibition. The TRIPS agreement and Berne convention also recognize the concept of fair dealing. Article 13 of TRIPS enshrines the doctrine as “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”

Fair dealing and India

Section 52 of the Copyright Act, 1957 incorporates the laws relating to fair dealing, but the term "fair dealing" is nowhere defined in the Indian Copyright Act. It lays down certain acts if adhering to standards or tests affirmed in the provisions cannot be considered an infringement and reproduction of the work can be termed fair dealing.

In Kartar Singh Giani v. Ladha Singh, the High Court observed that: "Two points have been urged in connection with the meaning of the expression fair, in fair dealing; (1) that to constitute unfairness there must be an intention to compete and to derive profit from such competition; and (2) that unless the motive of the infringer were unfair in the sense of being improper, the dealing would be fair."

Indian courts have time and again attempted to decipher the ambit of fair dealing by interpreting such works. The four-factor test was borrowed from the American Pretty Women case to help determine the nature of fair dealing:

i) The intended use (educational or critical purposes, for example).

ii) The nature of the work (whether the work is eligible for copyright protection or not).

iii)The amount of the work used (the substantiality of the portion used)

iv)The effect of the work on the original (whether the market value of the original work will be adversely affected or not).

In R G Anand v Delux Films, the Apex court highlighted two very important concepts: the substantial similarity and the copyrightability of ideas. Substantiality is purely a qualitative question as the Copyright Act does not define what is substantial or insubstantial. It depends on how distinctive and important it is to the overall work. The larger the copy, the less fair the deal is. The court held that "If the defendants' work is nothing but a literal imitation of the copyrighted work with some variations here and there, it would amount to a violation of the copyright." In other words, to be actionable, the copy must be a substantial and material one, which at once leads to the conclusion that the defendant is guilty of an act of piracy. "The apex court issued multiple guidelines for qualitative and quantitative tests to determine copyright infringement.

The doctrine of fair dealing also aids in strengthening the fundamental rights granted under article 19 of the Constitution of India. It was observed by the court in Wiley Eastern Ltd. & Ors. v. Indian Institute of Management that the basic purpose of Section 52 is to protect freedom of expression under Article 19(1) of the Constitution of India so that research, private study, criticism, or review or reporting of ongoing events could be continued and protected.


Concerning copyright work, the goal of fair dealing is to fulfil a dual purpose: to safeguard individual rights while simultaneously serving the interests of society. A welfare society must strike a balance between two competing and equally important interests: the monopoly of authors, which acts as an incentive to create and produce; and the fact that such a monopoly must never cause hindrance to others' creative ability or the public's right to build upon previous works. However, the courts have repeatedly stated that it is impossible to develop a single "rule of thumb" that can be used in all cases of fair dealing because each case has its own set of facts and circumstances. The fact is that the challenges to this defence are that the Indian courts and legislature have yet to thoroughly examine the scope of fair dealing, which is a crucial exception in the copyright regime.