Fair Usage of Content & the Copyright Laws: Lawyers Advice on IP Laws of India | IP Law Firm in Delhi NCR | IP Law Firm in India | IP Attorney in India | IP Attorney in Delhi NCR | IP Lawyer in Delhi NCR

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Copyright is an essential aspect of intellectual property rights, which gives the owner or author of an original work the right to exploit his work and license it and prevent other people from copying it. This is done to ensure that the author is the sole owner is author unless he/ she chooses to sell the work or license it. However, there are times when such copyright is disregarded and people copy the works of other people as well as exploit it. This leads to an infringement of the copyright of the owner.
Recently there have been numerous instances whereby a lot of YouTubers or movie producers tend to use copyrighted music or clips in their videos or movies. They then become party to a lot of litigation disputes, which tends to causes problems and gets dragged on for years. Thus, it is always better to get a license if there is a need to use copyrighted material of another individual.
However, in certain cases, the taking of others copyright material is allowed provided there is a valid defense for doing so.

Fair Use under the Copyrights Act, 1957-
Section 52 of the Copyright Act 1957 is the section defining “Fair Use” which states the reasons as to when any infringement of copyright is allowed or may be overlooked or could be considered legal. Section 52A of the Act covers the rights of sound recordings and cinematographic films. These refer to fair dealing with respect to literary, dramatic, musical or artistic works which is not a computer program for the purposes of-
• Private Use, which includes research purposes.
• Criticism or Review
• Reporting current events in any print media
• Broadcasting or in cinematographic films or by means of photographs
• Reproduction in order to use it in judicial proceedings or of a report of judicial proceeding
• Reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of the Legislature or either House of the Legislature, exclusively for the use of the members of that Legislature
• The reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force
• Publically reading or recitation of any reasonable extract from a literary or dramatic work that has been published
• The Publication in collection, mainly composed of non copyright matter, bona fide intended for the use of educational institutions
• The making of sound recordings if they are made by or with the license or consent of the owner of the right in the Work.

These are just a few examples, however Section 52 enumerates a list of exceptions that could constitute as fair use. Although the term fair use or fair dealing has not been defined anywhere in the Act, it a legal doctrine which is valid and allows limited usage of the copyrighted work without the owner’s permission. However, it is entirely upon the discretion of the court, depending upon the facts and circumstances of the case to decide which use would be considered as ‘fair’. The line between fair use and infringement is a thin one and there are no set guidelines in India as to how much usage would constitute as a fair deal. However, it is understood that the portion extracted must not be substantial so as to affect the interest of the Author. If the economic impact is not substantial, then the use may be constituted as fair dealing.

However, the fair dealing doctrine depends on the following factors-
• Purpose of use
• Nature of work
• Amount of work used
• Effect of the use of work on the original work.

Additionally, as per Section 52A, if a sound recording or video film of another person is being used, due recognition must be given to the copyright holder.

Judicial Understanding-
• In S.K. Dutt v. Law Book Co. (AIR 1954 All 570),it was held that in order for something to be constituted as an infringement of copyright, substantial infringement of the work must subsist and a mere fair dealing would not constitute as substantial infringement.
• It was held in Romesh Chowdhary v. Kh. All Mohammed Nowsheri (AIR 1965 J&K 101) that if the infringement is to be considered as actionable, there must be a colourable imitation of the original with the purpose of deriving a profit.
• The concept of fair use must be extended to permissions that are reasonable in order to use portions of online material that is readily available provided there exists sufficient attribution and there is no violation of statutory or common law rights. This was held in Samruddhi Finstock Limited & Anr. v. Chaitanya Jaiswal & Ors. (2016 SCC OnLine Bom 6615)
• In Kartar Singh Giani v. Ladha Singh (AIR 1924 PC 75), it was held that every individual can take what’s useful from the original work, improve, add and give to the public the whole, including the original work, with certain additions and improvements and thus, there is no invasion of any right.
• In Saregama India Ltd. v. Viacom 18 Motion Pictures & Ors. [(2013) 2 Cal LJ 124], a few lyrics of a song were taken and put in another song. The defense of De Minimis was taken by the defendants and was allowed by the Court, as the Court does not deal with trivial matters. However, this exception is also at the discretion of the Court and may or may not be allowed.

Thus, we can see that although there are certain exceptions to using the copyrighted work without license, in case of a suit of infringement, it would highly depend on the facts and circumstances of the case and the Court is generally strict in estimating the extent of this defense. Therefore, it is always better to get a license to reproduce work in any way.
Authored By: Adv. Anant Sharma & Ankita Sethi