Fair dealing as a defense to an action for infringement of copyright

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Copyright law confers upon the owner of the work a bundle of exclusive rights in respect of the reproduction of the work and other acts which enables the owner to get financial benefits by exercising such rights. If any of these acts relating to the work is carried out by a person other than the owner without a licence from the owner or a competent authority under the Act, it constitutes infringement of copyright in the work. Since copyright is granted only for a limited period, there will be no infringement if the reproduction of the work or other acts concerned are carried out after the term of the copyright has expired. The exclusive rights conferred on the owner depends on the nature of the work in which copyright subsists.

Accordingly the type of acts which will constitute infringement will also depend upon the nature of the work. Section 51 defines infringement of copyright generally. section 52 gives a long list of acts which do not constitute infringement of copyright. These are in the nature of exceptions to the exclusive rights conferred upon the copyright owner. They also serve as defence in an action for infringement of copyright.

Section 51 in the Copyright Act, 1957

51. When copyright infringed.—Copyright in a work shall be deemed to be infringed—

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act—

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or] 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or]"

(b) when any person—

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or

(iii) by way of trade exhibits in public, or

(iv) imports 2[***] into India, 2[***] into India," any infringing copies of the work: 3[Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.] Explanation.—For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.


Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. It permits reproduction or use of copyrighted work in a manner, which, but for the exception carved out would have amounted to infringement of copyright. It has thus been kept out of the mischief of copyright law.1 The defense of "fair dealing" initially originated and emanated as a doctrine of equity which allows the use of certain copyrightable works, which would otherwise have been prohibited and would have amounted to infringement of copyright. The main idea behind this doctrine is to prevent the stagnation of the growth of creativity for whose progress the law has been designed.

This doctrine is one of the most important aspects of Copyright Law which draws a line between a legitimate, bonafide fair use of a work from a malafide blatant copy of the work. This is the reason why this doctrine was explicitly enshrined in Article 13 of the TRIPS (Trade Related Aspects of Intellectual Property Rights) which runs as follows- "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". As we all know, all the member countries of WTO are obliged to comply with the Berne Convention on Copyright as well as the articles of TRIPS. Consequently, this doctrine has been given place in almost all the Territorial Copyright legislations of the member countries. However, there still remains a difference if the individual laws of fair dealing enacted in different countries are compared. While some of the legislations are keeping a rigid approach, the others have kept their doors open to embrace any new act which can be treated as fair dealing. The Indian and UK copyright laws regarding fair dealing are often characterized as very limited and restrictive as they work in accordance with an exhaustive list of actions which come under the scope of fair dealing. Whereas the US laws of "fair use" provide a wide and open ambit for the fair users of a copyright work. While on one hand the Indian and UK laws of fair dealing work strictly within the framework of the enlisted actions which constitute fair dealing, the American laws of fair use is open for interpretation and works with the help of only certain guideline factors which help in determining the extent of "fairness" involved in the work.

It is to be noted that the US doctrine of "fair use" is considered to be the fairest of all as it is the most closely designed law with the TRIPS.

With the passage of time, India has gone through tremendous technological ameliorations but still procures a very limited scope in the law of fair dealing. But if we look towards the west, continuous advancements through innovative interpretations and judicial activism have been introduced in this field.


1787: U.S. Constitution

According to Article I, Section 8, Clause 8 of the U.S. Constitution, "the Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." 1790: Copyright Act of 1790

The First Congress implemented the copyright provision of the U.S. Constitution in 1790. The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies, was modeled on the Statute of Anne (1710). It granted American authors the right to print, re-print, or publish their work for a period of fourteen years and to renew for another fourteen. The law was meant to provide an incentive to authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, the monopoly was limited in order to stimulate creativity and the advancement of "science and the useful arts" through wide public access to works in the "public domain." Major revisions to the act were implemented in 1831, 1870, 1909, and 1976. The Copyright Act 1957 (as amended by the Copyright Amendment Act 2012) governs the subject of copyright law in India.[1] The Act is applicable from 21 January 1958.[2] The history of copyright law in India can be traced back to its colonial era under the British Empire.[3] The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957.[4] The most recent amendment was in the year 2012, through the Copyright (Amendment) Act 2012.[5] India is a member of most of the important international conventions governing the area of copyright law, including the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951, the Rome Convention of 1961 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).[6] But India is not a member of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).


"Copyright provides essential incentives for authors and artists to develop creative new works by ensuring their rights will be respected as they make their works available on-line."' 9 International treaties play a vital role in setting standards to protect copyrights. The two most recent treaties that attempt to do this are the WIPO Internet Treaties. 20 The treaties provide protection to domestic works abroad and give authors the exclusive right to authorize their works for availability over the Internet.2' The treaties cannot be effective to combat Internet piracy in the music industry unless ever country that has Internet access follows the standards set out in the WIPO Internet Treaties. Even with ratification, the treaties still fall short because they lack enforcement standards. The violators not only have to be identified, the proper jurisdiction of law also has to be determined.22 International treaties will clearly provide important standards to protect the music industry, but copyright holders must do everything possible to prevent an infringement in the first place. The high-speed changes in technology will not allow the music industry to rely on treaties that take years to go into effect, or court decisions that may take just as long and are even more unpredictable. The music industry needs to supplement governments' intervention by self imposing mandates to prevent infringement. Shutting down ISP's through court action will not stop the piracy.23 The music industry must protect itself by implementing prevention devices before their work reaches the international market. Part II of this Note familiarizes the reader with the problem of copyright infringement over the Internet, specifically in the music industry. It proceeds to discuss existing copyright laws in the United States, Japan, and Great Britain. It further considers the dilemma faced by ISP's and provides reasons why a courtroom is not the proper battleground. Part III briefly chronicles international copyright protection but focuses on the most recent international treaties, the WIPO Internet Treaties.


An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners. To establish infringement, the plaintiff must prove: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[1]

Ownership of a valid copyright consists of: “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”[2] A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4). If the defendant rebuts the plaintiff’s prima facie evidence, then the above elements of valid copyright ownership become essential to the plaintiff’s case.

The primary discussion in most copyright infringement cases, and here, is the second element of infringement, namely, the analysis of whether the defendant’s work copies the constituent elements of the plaintiff’s work that are original. This element requires proof: (1) of actual copying of the plaintiff’s work by the defendant and (2) that such copying constitutes an improper appropriation of the plaintiff’s work.