Fair Dealing Under Copyright

DOCTRINE OF FAIR DEALING IN COYRIGHT
1. The Doctrine of Fair Dealing, while constituting an exception or limitation to copyright

infringement, states that certain acts, which generally, only the copyright holder is entitled
to do in respect of a work protected by copyright, may in circumstances specified by law,
be done without the authorization of the copyright holder. It basically facilitates use of
copyrighted works without the permission of the copyright holder.
2. It constitutes an exception or limitation or defense to copyright infringement in public
interest.
3. It is considered as an essential part of copyright law as it seeks to achieve a balance between
the rights of the copyright holder and those of the public with respect to the work in
question.
4. Origin & Development of the Doctrine:
A) The earliest discussion of fair dealing can be traced back to the decision given in Gyles
v Wilcox (1740) by the Court of Chancery of England that established the doctrine of
fair abridgement which later evolved into the concept of fair use.
B) A U.S. Court, in one of the earliest decisions on fair use, in Folsom v Marsh (1841),
Judge Joseph Story, partly relying on a body of English Copyright law, formulated the
four factor test for determining whether the use of a work in a particular case qualifies
as fair or not.
This decision was then repeatedly cited as a precedent on what uses might be
considered fair and subsequently, led to the codification of the doctrine of fair use in
the US Copyright Statute (Section 107 of 17 USC).
C) The aforesaid four factors, as they stand today, 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.
D) In the abovementioned case, Judge Story, while repudiating the "doctrine of fair
abridgement", established what is now known as the “doctrine of fair use” (known as
fair dealing in India and the U.K.).
5. Doctrine of Fair Dealing in the Indian Jurisdiction:

A) Section 52 of the Copyright Act, 1957, which constitutes the statutory framework for fair
dealing in India, follows the common law and does not define fair dealing per se.
It does however provide an exhaustive list of certain specific acts and the purposes for
which they may be done, which “shall not constitute infringement of copyright”. While
some of those exceptions to copyright infringement apply to all kinds of works, some apply
to only a particular kind of work.
(NOTE: 4 tabular representations of section 52 have been provided in a separate word
document).
B) The concept of fair dealing found in the UK copyright law as well as the Indian copyright law,
is much more restrictive that its US counterpart, fair use. While the Indian law provides a
specific list of fair dealing acts and purposes, the US law uses a certain set of factors to classify
fair use.
List of Important Case Laws

1. Chancellor Masters and Scholars of University of Oxford v. Narender Publishing House
(2008 Delhi HC) - 52(1)(a)(ii)
2. Super Cassette Industries v. Hamar Television Netowrk Pvt. Ltd. (2011 Delhi HC) -
52(1)(a)(i) and (ii)
3. Syndicate of the Press of the University of Cambridge v. B.D. Bhandari & Anr. (2011
Delhi HC) – s 52(1)(h) later renumbered as 52(1)(i) after the 2012 Amendment
4. Eastern Book Company v. Navin J Desai (2001 Delhi HC) - s 52(1)(q)…..reiterated by
the Supreme Court in Eastern Book Company v. D.B. Modak (2008).
5. The Chancellors, Masters & Scholars of the University of Oxford & Ors v. Rameshwari
Photocopy Services & Ors. (DU Photocopying Case) (2016 Delhi HC)
(NOTE: Case laws 1-4 will be covered by material photocopied from a textbook whereas the DU
Photocopy Case is to be briefly read from the following information/link:
https://spicyip.com/resources-links/du-photocopy-case
For the purpose of your exams, knowing just the ratio of the decision would be perfectly alright!
Go through the rest of the article instead of directly skipping to the judgment only if you wish to
know the context in which the judgement was given. Nevertheless, the following should make an
even shorter reading.)
DU PHOTOCOPYING CASE:
The Delhi University Photocopy case which began in the year 2012, came to an end when the
Oxford University Press, Cambridge University Press, and Taylor and Francis (hereinafter referred
to as "Publishers") withdrew their copyright suit against Delhi University and Rameshwari
Photocopier. This battle which continued for 5 years was expected to continue for a few more
years. One of the reason of withdrawal could be that a group of Oxford University Students,
Alumni and Academicians urged the Publishers to refrain from appealing this progressive decision
of the Division Bench so as to make knowledge accessible and affordable for all students.
Brief summary of events:
1. In the year 2012, the Publishers filed a suit for infringement of Copyright against
Rameshwari Photocopy Services and the University of Delhi for making Photostatted
course packs or study material available to the students, without taking any permission
from the publisher.
2. The High Court of Delhi granted ad interim injunction whereby the defendant was
restrained from making and selling course packs and also reproducing the plaintiff
publication by compiling the same either in the book form or course packs.
3. During the trial Society for the Promotion of Educational Access and Knowledge (ASEAK)
and Association of Students for Equitable Access to Knowledge (ASEAK) were impleaded
as Defendants.
4. In September 2016, the Delhi High Court decided the case in favor of the Defendants and
held that "Copyright, especially in literary works, is thus not inevitable, divine, or natural
right that confers on theauthors the absolute ownership of their creators. It is designed
rather to stimulate activities and progress in the arts for the intellectual enrichment of the
public."
5. Aggrieved by the order of Single Judge the Publishers filed an appeal to the Division Bench.
In addition to withdrawing the case from the Delhi High Court, the Publishers assured that
it was not going to take up the issue before any other higher court, such as the Supreme
Court of India.
6. On December 9, 2016 the Division Bench of the Delhi High Court decided the appeal
interpreting Section 52(1)(i) of the Copyright Act as permitting photocopying of
copyrighted works for preparation of course packs and remanded the suit to the single
bench for a fact specific determination on whether the copyrighted materials included in
the course packs in this case were necessary for the purpose of instructional use by the
teacher to the class.
7. On March 9, 2017 the Publishers withdrew the suit from the Delhi High Court.
In addition to withdrawing the case from the Delhi High Court, the Publishers assured that it
was not going to take up the issue before any other higher court, such as the Supreme Court of
India.

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DOCTRINE OF FAIR DEALING IN COYRIGHT

1. The Doctrine of Fair Dealing, while constituting an exception or limitation to copyright

5. Doctrine of Fair Dealing in the Indian Jurisdiction:

List of Important Case Laws

Brief summary of events:

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