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Fair Dealing and Copyright in India

Courtesy/By: Joanna Lisa Mathias | 2021-01-13 16:13     Views : 45

Copyright is the lawful right to regulate the use of his or her work by others by an author, artist, composer, or another creator. Generally speaking, without the creator's permission, a copyrighted work should not be duplicated, disseminated, or appropriated by anyone. Fair dealing is a restriction and exception to the exclusive right given to the author of an artistic work under copyright law. It permits the reproduction or use of patented work in a way that would have amounted to an infringement of copyright, except for the loophole carved out. Therefore, it was held out of the mischief of copyright law. Initially, the defense of "fair dealing" emanated as a doctrine of equity that allows such copyrightable works to be used, which would otherwise have been forbidden and would have amounted to copyright infringement. The primary concept behind this doctrine is to avoid the stagnation of the innovation growth for which the legislation has been intended to advance. This doctrine distinguishes blatant copying and actual bonafide fair usage of work. The importance of this doctrine is enshrined in Article 13 of TRIPS which states that “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”. All WTO member countries are expected to comply with both the Berne Convention on Copyright and the TRIPS Articles. The Indian and UK copyright laws on fair dealing are often defined as very narrow and restrictive as they function in compliance with an exhaustive list of fair dealing acts. Whereas the "fair use" laws of the United States provide a wide and open space for fair copyright users. Section 52 of The Copyrights Act, 1957 incorporated the laws relating to fair dealing. The word "fair dealing" is not specified under the Indian Copyright Act. Its definition is taken from English cases which define fair use as to a degree of use, i.e number, and extent of use. As the Indian courts have analyzed and revealed the different facets of fair dealing, they have said that there can be no definite or exhaustive list of uses that can fall within the scope of fair dealing, but depending on the facts and circumstances of each case, it must be determined. Such findings have been taken more from the approaches of the US and the UK and less from Indian statutory rules. Under the garb of fair dealing, one does not copy from another and claim refuge. Simply giving the original author the credit wouldn't help either. Even if a large part of the work has been copied by the recipient, it will not be treated as 'fair' and 'legitimate' because enforcement of copyright requires reasonable ability and labor to meet the level of originality and quality for protection. In conclusion, fair dealing is a necessary doctrine that also guarantees the constitutional right under article 19 which is freedom of expression.


This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.

Courtesy/By: Joanna Lisa Mathias | 2021-01-13 16:13

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