Fair dealing, fair use and the educational exceptions

1. Why exceptions exist

Exceptions are not a gap in copyright; they are part of its design. The utilitarian theory gives exclusive rights only so far as they encourage creation, and research, criticism, news and education produce more creation if they can draw on existing works. Exceptions also protect freedom of speech under Article 19(1)(a), since copyright restricts reproduction of expression. In Ashdown v. Telegraph Group (Court of Appeal, 2001), the English court accepted that in rare cases freedom of expression may require a court to refuse an injunction for copying even where no statutory defence applies.

2. The international limit: the three-step test

Article 9(2) of Berne allows members to permit reproduction in certain special cases, provided it does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. TRIPS Article 13 extends the test to all exclusive rights, and Article 10 of the WCT repeats it. The WTO panel in US — Section 110(5) of the Copyright Act (2000) held that the US business exemption for playing broadcast music in shops and restaurants failed the test for its broad “business” limb. Indian exceptions must meet the same standard.

3. Section 52: the Indian model

Section 52(1) lists acts that do not infringe. The fair dealing clause is section 52(1)(a): fair dealing with any work, not being a computer programme, for the purposes of

1. private or personal use, including research;
2. criticism or review, whether of that work or any other work;
3. the reporting of current events and current affairs, including the reporting of a lecture delivered in public.

The 2012 amendment extended the clause to all works except computer programmes (earlier it covered literary, dramatic, musical and artistic works only). Other exceptions include:

• transient or incidental storage in the technical process of electronic transmission, and for providing links or access, subject to a notice and takedown procedure (52(1)(b), (c));
• reproduction for judicial proceedings and reports of them (52(1)(d), (e));
• reproduction by a teacher or pupil in the course of instruction, or as part of questions and answers in an examination (52(1)(i));
• performance in an educational institution by staff and students before an audience limited to them (52(1)(j));
• judgments and Acts of a legislature, unless prohibited (52(1)(q));
• adaptation and reproduction for persons with disabilities (52(1)(zb));
• backup copies and adaptation of computer programmes by a lawful possessor (52(1)(aa) onward).

The Act does not define “fair”. The courts have borrowed the factors of the English cases, especially Lord Denning’s judgment in Hubbard v. Vosper (Court of Appeal, 1972): the number and extent of quotations, the use made of them, and the proportion of comment to quotation. In practice Indian courts consider the purpose and character of the use, the amount taken, and the effect on the market for the original, which looks very like the US factors.

4. The Indian cases

• Civic Chandran v. Ammini Amma (Kerala High Court, 1996). A counter-drama answering the famous Malayalam play Ningal Enne Communistakki reproduced parts of it to criticise its politics. The court held that criticism through a parody or counter-drama could be fair dealing, looking at the quantum and value of what was taken in relation to the comment, the purpose, and the likelihood of competition between the two works.
• Syndicate of the Press of the University of Cambridge v. B.D. Bhandari (Delhi High Court Division Bench, 2011). Guidebooks answering questions in a textbook, and using some of its material, were held to be fair dealing for private use and research of students.
• Super Cassettes Industries v. Hamar Television Network (Delhi High Court, 2011). Use of copyrighted songs in a television programme was examined against the purpose, amount and market effect, and the court stressed that commercial use of the heart of a work weighs against fairness.
• India TV Independent News Service v. Yashraj Films (Delhi High Court Division Bench, 2012). Brief use of film songs in a programme with a singer was treated as de minimis, too trivial to infringe.

5. The DU photocopy case (Delhi High Court, 2016)

In The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services, Oxford University Press, Cambridge University Press and Taylor & Francis sued a photocopy shop licensed by Delhi University that prepared course packs of extracts from textbooks on reading lists. The defendants relied on section 52(1)(i).

• Single judge (September 2016). Endlaw J. dismissed the suit. Section 52(1)(i) is not subject to the fair dealing limits of section 52(1)(a). “In the course of instruction” covers the whole process of teaching, including preparation of material for students, and is not confined to a classroom. Copyright, he said, is not an inevitable, divine or natural right but a statutory one, granted to stimulate activity for the public good.
• Division Bench (December 2016). The appeal was decided by Pradeep Nandrajog and Yogesh Khanna JJ. The bench agreed that instruction covers the academic session and that course packs can fall within section 52(1)(i). But it held that the copying must be justified by the purpose of instruction, and that whether the extracts in the packs met that test was a question of fact. It sent the suit back for trial on that issue and did not grant the publishers an interim injunction.
• Withdrawal (2017). The publishers withdrew the suit and did not pursue the trial, so the Division Bench’s reading stands.

6. US fair use: an open-ended model

Section 107 of the US Copyright Act lists illustrative purposes and four factors: the purpose and character of the use, the nature of the work, the amount and substantiality taken, and the effect on the market. Three cases show how it has developed:

• Campbell v. Acuff-Rose Music (1994): 2 Live Crew’s rap parody of “Oh, Pretty Woman” could be fair use. The more transformative the use, the less the other factors weigh, and commerciality is not decisive.
• Google LLC v. Oracle America (2021): Google’s copying of the Java API declaring code to build Android was fair use, given the functional nature of the code and the new platform it allowed.
• Andy Warhol Foundation v. Goldsmith (2023): licensing a Warhol print based on Goldsmith’s photograph to a magazine shared the same commercial purpose as the photograph’s own licensing, so the first factor weighed against fair use. The Court narrowed “transformation” to a different purpose, not a new look.

7. Which model is better?

The UK added exceptions for caricature, parody and pastiche, and for quotation, in 2014 rather than moving to fair use. Some Indian scholars argue that the generous reading of section 52(1)(i) in the DU case shows Indian courts can interpret the list purposively without a general clause.

How this is examined

For a short note on fair use, give the US four factors, the Indian fair dealing purposes, the three-step test and the DU case. For an essay on exceptions, add the full list in section 52, the case law and the comparative table. Problem questions on photocopying, parody or news use should be solved by naming the clause, then testing purpose, amount and market effect.