Fair Use in Copyright Law: Balancing Innovation and Protection

Abstract:

Copyright law seeks to balance two competing interests: the rights of creators to control and profit from their intellectual labour, and the public’s right to access, use, and build upon existing works. The doctrine of fair use in the United States, and its counterpart fair dealing in India, represent important legal mechanisms to achieve this balance. While the U.S. adopts a broad, flexible four-factor test, Indian law relies on an exhaustive statutory list of exceptions under Section 52 of the Copyright Act 1957.

This article provides a comparative analysis of fair use and fair dealing, tracing their judicial evolution through landmark cases, and exploring their role in safeguarding free expression, education, and innovation. It also considers the challenges posed by emerging technologies such as artificial intelligence and digital platforms. The analysis suggests that although both systems aim to reconcile competing interests, India’s restrictive framework may require reform to address new technological realities.

Introduction:

Copyright is one of the foundational elements of intellectual property law, designed to encourage creativity by granting exclusive rights to authors and artists. However, absolute protection risks stifling new creativity, commentary, education, and cultural development. This tension necessitates exceptions and limitations.

The U.S. doctrine of fair use, codified in Section 107 of the Copyright Act 1976, permits unauthorised use of copyrighted works under certain circumstances. By contrast, Indian law recognises fair dealing, codified in Section 52 of the Copyright Act 1957, which provides an exhaustive list of permissible uses. The divergence between these frameworks reflects broader philosophical differences: U.S. copyright law emphasises judicial discretion and flexibility, while Indian law prioritises statutory certainty.

This article analyses both doctrines, examines case law, and highlights their implications for law, policy, and practice in a rapidly evolving digital landscape.

Fair Use under U.S. Copyright Law:

The U.S. Copyright Act, 17 U.S.C. Section 107, sets out the fair use doctrine. Unlike rigid exceptions, fair use is an open-ended and flexible defence, assessed through a four-factor balancing test:

1. Purpose and character of the use: whether it is commercial or educational, and whether the use is transformative.
2. Nature of the copyrighted work: factual works are more susceptible to fair use than highly creative works.
3. Amount and substantiality of the portion used: both quantitative and qualitative assessments apply.
4. Effect of the use on the potential market: whether the use substitutes for or harms the market of the original.

No single factor is decisive; instead, courts weigh them holistically.

Landmark U.S. Cases:

• Campbell v Acuff-Rose Music, Inc (1994): The Supreme Court held that 2 Live Crew’s parody of Roy Orbison’s song Oh, Pretty Woman could constitute fair use despite its commercial purpose, as it was transformative.¹
• Harper & Row v Nation Enterprises (1985): Use of excerpts from President Ford’s unpublished memoir was held not to be fair use, emphasising the significance of market harm and the unpublished status.²
• Authors Guild v Google, Inc (2015): Google’s digitization of millions of books for search purposes was found to be transformative and permissible under fair use.³
• Andy Warhol Foundation v Goldsmith (2023): The Court denied fair use, holding that Warhol’s silk-screen adaptation of Lynn Goldsmith’s photograph of Prince was insufficiently transformative given its commercial licensing purpose.⁴

These cases demonstrate the flexibility of U.S. fair use in accommodating transformative uses, but also its unpredictability.

Fair Dealing under Indian Copyright Law:

Unlike the U.S., India follows a closed-list model of exceptions. Section 52 of the Copyright Act 1957 defines acts that do not constitute infringement. Key exceptions include:

• Private or personal use, including research.
• Criticism or review, of the work or of another work.
• Reporting of current events and affairs, including use in newspapers, magazines, and broadcasts.
• Use in judicial proceedings or for professional advice by a legal practitioner.
• Educational use, such as reproduction in the course of instruction, examination, or as part of teaching materials.
• Use by libraries, including reproduction for preservation.
• Performance by amateur clubs or societies for non-profit purposes.

The Indian model offers certainty but lacks flexibility. Courts have occasionally expanded interpretations to serve public interest, but judicial discretion is constrained by the statutory framework.

Landmark Indian Cases:

• The Chancellor, Masters & Scholars of the University of Oxford v Rameshwari Photocopy Services (2016) (“DU Photocopy case”): The Delhi High Court held that photocopying textbooks for educational course packs constituted fair dealing. The Court underscored that copyright should not become a barrier to education in a developing country.⁵
• Najma Heptulla v Orient Longman Ltd (1989): The Delhi High Court examined authorship in the context of Maulana Abul Kalam Azad’s autobiography. While not directly about fair dealing, the case shaped Indian copyright jurisprudence by recognising joint authorship based on contribution to ideas, not merely transcription.⁶

These judgments reflect the Indian courts’ sensitivity to public interest, particularly in education, though bound by statutory limits.

Comparative Analysis – Fair Use v. Fair Dealing:

The U.S. approach provides flexibility by enabling courts to adapt the doctrine to new situations, such as digital uses, search engines, and transformative parodies. However, it introduces uncertainty due to judicial discretion and fact-specific inquiry.

The Indian approach provides clarity by defining permissible uses, reducing litigation unpredictability. Yet, it risks rigidity in the face of evolving technologies such as AI, online platforms, and digital education.

While both systems aim to balance rights and access, their philosophies diverge:

• S. law prioritises judicial flexibility and transformation, aligning with free speech values.
• Indian law prioritises statutory certainty and exhaustive exceptions, aligning with developmental and educational imperatives.

Emerging Challenges – AI, Digital Platforms, and Globalization:

New technologies challenge the boundaries of fair use and fair dealing.

1. Artificial Intelligence: AI models often rely on large datasets that include copyrighted material. In the U.S., courts may assess such training under the transformative use doctrine. In India, the absence of a flexible standard complicates AI regulation.
2. Digital Education: Online teaching often requires reproduction and dissemination of copyrighted works. While U.S. law may accommodate this under fair use, Indian law depends on the scope of Section 52.
3. Global Platforms: With platforms like YouTube, TikTok, and Spotify, questions arise regarding user-generated content, parody, and remix culture. A rigid model like India’s risks being outpaced by global practices.
4. Access to Knowledge in the Global South: The DU Photocopy case illustrates the tension between enforcing international copyright norms and ensuring equitable access to education.

Creator’s Quandary – The Unpredictability of Fair Use:

The doctrine of fair use, designed to strike a delicate balance between safeguarding intellectual property rights and promoting public access to information, faces a significant criticism: the pervasive legal ambiguity it introduces for content originators.

The evaluative framework, often referred to as the four-factor test, operates not as a prescriptive code of conduct but as an adaptable, context-dependent assessment. Consequently, innovators and artists frequently remain uncertain whether their appropriation of existing material will be deemed permissible or illicit until after enduring a protracted and expensive judicial process.

Critics contend that this inherent lack of clarity erodes the entitlements of original copyright holders. Furthermore, it can stifle their impetus to generate fresh intellectual property, as the imprecise nature of the law inadvertently facilitates the unapproved and uncompensated utilization of their creations by third parties.

Transformative Use:

Transformative Use is a key concept within U.S. fair use law, referring to a use of a copyrighted work that changes the original work’s purpose, meaning, or message. Instead of merely reproducing the original, a transformative use adds new expression, meaning, or information, thereby creating a new work. For a use to be considered transformative, it must not be a direct substitute for the original work, and the new work must have a different character or serve a different purpose. Examples include a documentary that uses a short clip from a film to critique it, a parody that uses a song to mock its creator or a political figure, or an artist creating a collage that uses a copyrighted photo to make a new statement about society.

Conclusion:

Fair use and fair dealing remain central to the copyright balance between protection and access. The U.S. system, though unpredictable, allows dynamic adaptation to new technologies through judicial discretion. India’s system, while certain, risks obsolescence without legislative reform.

As technology continues to reshape creative practices, particularly with AI and digital platforms, both systems will face pressure to evolve. A possible middle path may involve India adopting a more flexible, open-ended fair use standard, while retaining safeguards for educational and developmental access. Ultimately, the success of copyright law depends on maintaining this delicate balance between creators’ rights and societal needs. References:

1. Campbell v Acuff-Rose Music, Inc 510 US 569 (1994).
2. Harper & Row Publishers, Inc v Nation Enterprises 471 US 539 (1985).
3. Authors Guild v Google, Inc 804 F 3d 202 (2d Cir 2015).
4. Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith 598 US __ (2023).
5. The Chancellor, Masters & Scholars of the University of Oxford v Rameshwari Photocopy Services (2016) 160 DRJ 716 (Del HC).
6. Najma Heptulla v Orient Longman Ltd 1989 (2) ACR 124 (Del HC).
7. Copyright Act 1957 (India), s 52.
8. Copyright Act 1976 (US), 17 USC § 107.