Fair use and fair dealing online, remedies under the Copyright Act, 1957, and the applicability of the DMCA

Law of Intellectual Property and Information Technology · Unit III · Topic 6 of 12 · 8 min read

Indian fair dealing under section 52 compared with US fair use and its digital cases (Sony, Campbell, Kelly, Authors Guild v Google, Google v Oracle, Warhol), civil, criminal and administrative remedies including John Doe and dynamic injunctions, and the DMCA's anti-circumvention and safe harbour provisions and how far they reach India.

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On this page

1. Fair dealing in India
2. US fair use and the digital cases
3. Remedies under the Copyright Act, 1957
4. The Digital Millennium Copyright Act, 1998
5. Applicability of the DMCA in India
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. India has fair dealing for listed purposes, not open-ended US fair use, though Indian courts read the purposes generously. Remedies are civil (section 55), criminal (sections 63 to 65B) and by border and police measures, with Indian courts adding John Doe and dynamic injunctions for online piracy. The DMCA is a US statute and does not apply in India of its own force, but its notice-and-takedown model shapes Indian practice. Note the date: the syllabus says 1996, but the DMCA was enacted in 1998 to implement the 1996 WIPO treaties.

1. Fair dealing in India

Section 52(1)(a), as amended in 2012, permits fair dealing with any work, not being a computer programme, for (i) private or personal use, including research; (ii) criticism or review; and (iii) reporting of current events and current affairs, including a lecture delivered in public. The 2012 amendment extended it to all works, including films and sound recordings. Other clauses relevant online are the transient storage exceptions (section 52(1)(b) and (c)), the software exceptions (section 52(1)(aa) to (ad)) and the exceptions for persons with disabilities (section 52(1)(zb), extended after India ratified the Marrakesh Treaty).

The courts weigh the amount taken, the purpose, and whether the use competes with the original.

Civic Chandran v. Ammini Amma (Kerala High Court, 1996): a counter-drama that used parts of a play to criticise it was fair dealing; the test is whether the use is for criticism, the quantity taken, and whether it competes.
ESPN Star Sports v. Global Broadcast News (Delhi High Court Division Bench, 2008) and Super Cassettes v. Hamar Television (Delhi High Court, 2011): use of sports and film clips by news channels judged by quantity, purpose and market effect.
University of Oxford v. Rameshwari Photocopy Services (Delhi High Court Division Bench, 2016): course packs photocopied for students fell within section 52(1)(i), reproduction by a teacher or pupil in the course of instruction, which the court read to cover the whole process of instruction; the suit was later withdrawn by the publishers.

2. US fair use and the digital cases

Section 107 of the US Copyright Act lists four factors: the purpose and character of the use, including whether it is commercial or transformative; the nature of the work; the amount and substantiality used; and the effect on the potential market.

Sony Corp. v. Universal City Studios (1984): home time-shifting of broadcasts is fair use, and a technology capable of substantial non-infringing uses does not make its maker liable.
Campbell v. Acuff-Rose (1994): a parody can be fair use; the central question is whether the new work is transformative.
Kelly v. Arriba Soft (9th Cir., 2003) and Perfect 10 v. Amazon (9th Cir., 2007): search engine thumbnails are fair use because they serve a different, indexing function.
Authors Guild v. Google (2nd Cir., 2015): scanning millions of books to make them searchable and show snippets is fair use.
Google LLC v. Oracle America (2021): Google’s copying of declaring code of the Java API to let programmers use familiar commands on Android was fair use.
Andy Warhol Foundation v. Goldsmith (2023): licensing a Warhol print based on a photograph to a magazine was not fair use, because it served the same commercial purpose as the photograph. Transformation of meaning is not enough where the uses substitute for each other.

Debate: should India adopt fair use? For: a closed list cannot anticipate search engines, text and data mining, AI training or user-generated remix; US-style flexibility allowed its technology sector to grow. Against: an open standard creates uncertainty and favours those who can afford litigation; Indian courts already read the listed purposes broadly; and the three-step test in Berne Article 9(2), TRIPS Article 13 and WCT Article 10 favours defined exceptions. Several scholars propose a hybrid: specific exceptions plus a residual clause.

3. Remedies under the Copyright Act, 1957

Civil

Section 55: injunction, damages, accounts and other remedies conferred by law for infringement of a right. Where the defendant proves it was unaware and had no reasonable ground for believing copyright subsisted, only an injunction and an account of profits are available.
Section 58: infringing copies and plates are deemed the owner’s property for proceedings for their recovery or for damages for conversion.
Section 62: suit in the District Court where the plaintiff resides or carries on business.
Interim relief: interim injunctions on the usual tests, Anton Piller orders for inspection and seizure, and Mareva orders.
John Doe (Ashok Kumar) orders: against unidentified infringers, first granted in Taj Television v. Rajan Mandal (Delhi High Court, 2003) against cable operators showing World Cup football, and now routine before film releases.
Website blocking and dynamic injunctions: UTV Software v. 1337x.to (Delhi High Court, 2019) blocked rogue sites and allowed extension to mirrors; later orders, such as Universal City Studios v. Dotmovies.baby (Delhi High Court, 2023), extended protection to works not yet created at the date of the suit (“dynamic plus”).
Damages: Delhi High Court has awarded punitive and exemplary damages against software pirates and counterfeiters, for example Microsoft Corp. v. Yogesh Papat (2005). Later Division Bench decisions have cautioned that punitive damages need proof of flagrant conduct.

Criminal

Section 63: knowing infringement or abetment, imprisonment of six months to three years and fine of fifty thousand to two lakh rupees; section 63A, enhanced punishment on second conviction.
Section 63B: knowing use of an infringing copy of a computer programme.
Section 64: a police officer not below the rank of sub-inspector may seize infringing copies without warrant.
Sections 65A and 65B: circumvention of technological measures with intent to infringe, and removal or alteration of rights management information.

Administrative

Section 53 and the IP Rights (Imported Goods) Enforcement Rules, 2007: Customs may suspend clearance of infringing imports.
Blocking under section 69A of the IT Act and takedown under the IT Rules, 2021, which require intermediaries to make reasonable efforts to ensure users do not host content that infringes any patent, trade mark, copyright or other proprietary rights.

4. The Digital Millennium Copyright Act, 1998

The DMCA implemented the WCT and WPPT in the US and added an intermediary liability regime.

Title I: anti-circumvention (17 U.S.C. §§1201–1202)

Bans circumvention of technological measures that control access to a work.
Bans trafficking in devices or services primarily designed to circumvent access or copy controls.
Protects copyright management information.
Exemptions are fixed by the Librarian of Congress every three years.
Universal City Studios v. Corley (2nd Cir., 2001) upheld an injunction against posting the DeCSS decryption program for DVDs against a free speech challenge. Chamberlain v. Skylink (Fed. Cir., 2004) required a link between circumvention and infringement; MDY Industries v. Blizzard (9th Cir., 2010) did not.

Title II: safe harbours (17 U.S.C. §512)

Service providers are not liable for damages for (a) transitory network communications, (b) system caching, (c) information stored at the direction of users, and (d) information location tools such as links and search engines, if they:

adopt and implement a repeat-infringer policy and accommodate standard technical measures;
for hosting, lack actual knowledge or “red flag” awareness of infringing material, do not receive a financial benefit directly attributable to infringement where they have the right and ability to control it, and expeditiously remove material on a proper notice;
designate an agent to receive notices.

A user whose material is removed may send a counter-notice, after which the material is restored unless the complainant sues. Section 512(m) says there is no duty to monitor; section 512(f) penalises knowing misrepresentation in notices, and Lenz v. Universal Music (9th Cir., 2015) requires a right holder to consider fair use before sending one. Viacom v. YouTube (2nd Cir., 2012) held that knowledge must be of specific infringing clips.

5. Applicability of the DMCA in India

No direct application. Copyright is territorial; acts in India are governed by Indian law. A US DMCA notice has no legal force against an Indian site.
Practical reach. Global platforms headquartered in the US apply their DMCA procedures worldwide, so Indian right holders routinely use DMCA notices to remove content from those platforms and search results.
Indian equivalents. Section 65A is narrower than section 1201: circumvention is an offence only with intent to infringe, there is no device ban, and acts not prohibited by the Act are allowed. Section 52(1)(c) gives a 21-day takedown that lapses without a court order, unlike the DMCA’s counter-notice. Section 79 of the IT Act, read with Shreya Singhal v. Union of India, 2015 INSC 257, protects intermediaries that act on actual knowledge; MySpace (2016) read this as specific knowledge from a right holder’s notice, close to the DMCA standard.
Other models. The EU e-Commerce Directive (2000), now the Digital Services Act (2022), and Article 17 of the DSM Directive (2019), which moves platforms from notice-and-takedown to licensing and filtering.

How this is examined

Likely long questions: “Discuss the doctrine of fair use in the digital environment with reference to Indian and US law.” “Examine the remedies available for infringement of copyright under the Copyright Act, 1957, especially against online piracy.” “Critically examine the provisions of the DMCA and their applicability to India.”

Likely short notes: fair dealing; transformative use; John Doe order; dynamic injunction; notice and takedown; safe harbour under section 512; section 65A.