Fair Dealing

Intellectual Property Rights play an important part in development of a country’s economy, as it protects the rights of inventors and creators. patents, copyright, trademark, geographical indications and so on, are rights available in India. Original work of the inventor or creator is protected under this law basically. The copyright Act, 1957 was created to protect the rights of the person who created a certain work. It protects the right of inventor so that the uniqueness of that work can be protected and preserved. There are certain kind of works that are protected under Copyright Act, that are artistic works, literary works, musical works, sound recordings etc. Under Copyright Act certain exclusive rights are given to the author of creator under Section 14 of the Act, but there are certain exceptions to the rule that are mentioned under section 52 of the Copyright Act. Fair dealing is one of the exceptions given under section 52.

The term fair dealing is not defined under the act, but it basically is a doctrine that allows the use of copyrighted work to an extent without the permission of the owner. There is no guidelines or provision as to how much use of the work would amount to fair dealing and how much use of the copyrighted work would become infringement. The court has the power to decide whether the case comes under the exception of fair dealing or amounts to infringement. But it can be said that it depends on the impact that the use has on the interest of the author. The court on numerous incidents have noticed that the amount of economic impact on the copyright owner decides which case would amount to infringement.

There are basically four factors that are considered to decide the fair nature of the use of copyrighted work that are:

  1. Purpose of work
  2. Nature of work
  3. Amount of work used
  4. Effect of the work on the original work

It was said in case Kartar Singh Giani v. Ladha Singh by the honourable Hight Court that there are two points that are considered in deciding the meaning of the expression fair, in fair dealing that are, there must be an intention to gain profit from the use of such work to constitute unfair use of the copyrighted work and unless there is a unfair motive of the person infringing the copyright, it cannot be instituted as an infringement and the use will be fair.

Fair Dealing is an important part of Copyright Law. In the global context, it has been a point of constant discussion. However, it can be said that in India it is the least explored area of law, the law relating to fair dealing has always been rigid and ambiguous in India.

The fair dealing exceptions that are provided in the Indian Copyright Law are inadequate and limited to an extent in comparison with the international copyright practices. Although the Indian courts has decided to stick to the exception provided in the Indian law, but this rigid approach taken by the court seems to create a problem in tackling cases in the modern era as there is requirement of flexibility to conclude cases in the present scenario.

Considering the current technological and societal development in the country the rigid approach taken by the court should not be followed. It also leaves no room for Judicial Creativity. So, it is the present need that there must be some reforms with reference to fir dealing law in the country.

Fair dealing is provided as an exception to Copyright law under section 52 of the Act, but the provisions and law related to fair dealing is still vague, there is a need for better and clear provision for fair dealing in India. Courts must decide the case based on their common sense as there is a wide range of situations that can come under fair dealing. So, the need for clear and ambiguous rule relating to fair dealing is increasing every day. 

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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