Copyright-Fair Use Doctrine

Copyright aims to protect the authors (writers, artists, music composers, etc.) on their creations which are termed as work. In other words, it guarantees exclusive right to the author to copy or authorizes to copy certain work in relation to literary, dramatic or musical work, not being a computer programme, (2) computer programme, (3) artistic work, (4) cinematographic work, and (5) sound recording. Like all other Intellectual property, copyright is the monopoly right which prevents others from exploiting the work of the author without his prior permission and license. Unauthorized copying of the copyright work leads to violation of the copyright. However, there are certain exceptions where authorization from the author is not required. One such exception is the concept of fair use or fair dealing of the copyright. The idea behind this concept is to encourage the free flow of information.

The term "fair use" originated in the United States that allows limited use of copyrighted material without the prior permission from the rights holders (Folsom v. Marsh, 9 F.Cas. 342 (1841). Fair dealing has not been defined in the Copyright Act, 1957. According to s. 52 (1) (a) & (b) of the Copyright Act, 1957, fair use applies only to literary, dramatic musical or artistic work as a defense. It only applies to work and not to reproduction of the work except quotations or extracts from the work. Fair dealing depends on four factors given as under:

1. the purpose of use
2. the nature of the work
3. the amount of the work used, and
4. the effect of use of the work on the original

Examples of fair dealing: news reporting (summarizing an address or article), research and scholarship (quoting a short passage in a scholarly, scientific or technical work), criticism or comment of a work.

However, fair use amounts to infringement if the copy of the work affects the original. The fair dealing must not lead to competition.

In the case of Kartar Singh Giani v. Ladha Singh, AIR 1934 Lah. 777,the court 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 derive 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.

In view of the above it is concluded that fair use of a copyrighted work should be done in good faith since prior permission is not taken from the author and it should not lead to violation of the copyright work.