In the realm of copyright law, the DOCTRINE OF FAIR DEALING serves as a crucial exception, striking a delicate balance between the rights of the creator and the public’s interest in accessing and utilizing copyrighted works. The principle, enshrined in various national laws, allows for the limited use of copyrighted material without requiring permission from the right holder under specific circumstances. However, the interpretation and application of fair dealing can vary significantly across jurisdictions, reflecting the diverse cultural, economic, and legal landscape of different nations.
THE ORIGIN & ESSENCE OF FAIR DEALING ;-
The doctrine of fair dealing finds its roots in the common law tradition., with its origin traced back to the United Kingdom’s Copyright Act 1911. The concept recognizes that certain acts of copying or using copyrighted works should be permitted without constituting infringement, provided they meet specific criteria and serve legitimate purposes.
At its core, the dealing aims to facilitate socially beneficial activities such as research, education, criticism, and commentary, while safeguarding the rights of copyright holders. It acknowledges that an overly rigid application of copyright protection could stifle the free flow of information, hamper creativity, and impede the advancement of knowledge.
COMPARATIVE ANALYSIS ACROSS JURISDICTION:-
- UNITED NATION & COMMONWEALTH NATION :-
In the United Kingdom and many Commonwealth nations, fair dealing is explicitly codified in their respective copyright laws. The UK’s Copyright, Designs, & Patent Act of 1988 provides a detail lists of permitted purposes for fair dealing, including non-commercial research, private study, criticism, review, and news reporting.
- UNITED STATES:-
The UNITED STATES does not employ the term “Fair Dealing” its copyright law recognizes a similar concept known as “fair use”. The fair use doctrine, outlined in 107 of the U.S. Copyright Act, provides a more flexible and open-ended approach. It considers factors such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market for the original work.
3. CANADA: Expanding Fair Dealing:-
Canada’s Copyright Act initially adopted a narrower interpretation of fair dealing, limiting it to specific purposes like research, private study, criticism, review, and news reporting. However, in recent years, the scope of fair dealing has been progressively expanded through key judicial decisions, such as the landmark CCH Canadian Ltd. v. Law Society of Upper Canada case, which introduced a broader, more flexible approach akin to the U.S. fair use doctrine.
4. AUSTRALIA and NEW ZEALAND:-
Like the UK, Australia and New Zealand have codified fair dealing provisions in their respective copyright laws. However, these countries have taken a more expansive approach, incorporating additional permitted purposes beyond the traditional categories, such as parody, satire, and reporting news.
5. CONTINENTAL EUROPE:-
Many European Countries, influenced by civil law traditions, do not explicitly recognize the doctrine of fair dealing. Instead, they have adopted similar concepts, such as the “FAIR USE” principle in Germany and the “QUOTATION RIGHTS” in France, which allows to limited use of copyrighted works under specific circumstances.
6. India: Fair Dealing under the Copyright Act:
In India, the doctrine of fair dealing is enshrined in Section 52 of the Copyright Act, of 1957. This section outlines specific purposes for which fair dealing with copyrighted works is permitted, including research, private study, criticism, review, and news reporting.
However, the interpretation of fair dealing in India has been subject to ongoing discussion and debate. While the Copyright Act provides a non-exhaustive list of permitted purposes, there is no definitive guidance on what constitutes fair dealing, leaving courts to interpret the doctrine on a case-by-case basis. Indian courts have generally taken a more restrictive approach to fair dealing, often considering the commercial impact of the use on the copyright holder’s work. Notable cases such as Civic Chandran v. Ammini Amma and Chancellor Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services have highlighted the need for a more balanced and flexible approach to fair dealing in the Indian context.
The application of fair dealing or its equivalent exceptions requires a careful balancing of competing interests. On one hand, it aims to promote the free exchange of ideas, foster creativity, and facilitate access to knowledge. On the other hand, it must respect the legitimate rights of copyright holders and ensure that their economic incentives to create and disseminate works are not unduly diminished.
This delicate balance is often achieved through a case-by-case analysis, considering factors such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the potential impact on the market for the original work.
Evolving Interpretations and Challenges:
As technology continues to evolve and new forms of creative expression emerge, the interpretation and application of fair dealing principles face ongoing challenges. The digital age has blurred traditional boundaries, giving rise to new issues surrounding the use of copyrighted works in online environments, software development, and emerging technologies like artificial intelligence.
Courts and policymakers must continuously adapt and refine the fair dealing doctrine to address these evolving challenges, ensuring that it remains relevant and effective in promoting innovation while protecting the rights of creators.
Conclusion:
The doctrine of fair dealing, along with its counterparts in various jurisdictions, plays a vital role in copyright law, fostering the dissemination of knowledge, enabling creativity, and facilitating socially beneficial activities. While the specific contours of this exception may vary across nations, its underlying purpose remains consistent: to strike a delicate balance between the rights of creators and the public interest.
As the global landscape of intellectual property continues to evolve, a comparative understanding of fair dealing principles and their application in different jurisdictions becomes increasingly important. By examining the diverse approaches and interpretations across nations, we can gain valuable insights into the nuances and challenges of this doctrine, ultimately contributing to a more harmonized and equitable intellectual property regime that promotes innovation, creativity, and the free flow of information.
Contributed by – Devesh Modi
ICFAI LAW SCHOOL, DEHRADUN (2022–25)