Exceptions to Copyright (Fair Use): All You Need to Know

Exceptions to Copyright (Fair Use): All You Need to Know

This article on Fair Use: Exceptions to Copyright is written by Subham Banerjee, a 3rd-year student from Kingston Law Collegeand an intern at Legal Upanishad.


Protection of Intellectual Property Rights exists to promote the public interest by protecting a person’s rights. This in turn promotes innovation and social and economic welfare. Copyright is one such intellectual property right that protects the works of a person. In ways like protection from re-production, protection from publication, and other ways. Copyright law is guided under Copyright Act, 1957, in India. There are some exceptions or defences against copyright infringement; as it may seem, to this law on the basis of the doctrine of ‘fair use. It is governed by some factors. We will be discussing this exception in this paper.

The exceptions to Copyright Law:

The Copyright law has some limitations or exceptions which act as a defence mechanism against copyright infringement. Section 52 of the Copyright Act, 1957, deals with the exceptions to copyright law. The doctrine of fair use is the basis of the exceptions.

Meaning of Fair Use:

The doctrine of fair use basically means that a person is eligible to use the copyrighted works of another without their permission. ‘Fair Use’ has not been mentioned or defined under the Copyright Act, 1957, it is rather a legal doctrine. “Fair use doctrine was a judicially created doctrine which owes its origins to the famous 1841 case of  Folsom vs Marsh, where Justice Story observed:

“……we must often, in deciding questions of this sort, look to the nature and objects of the selection made, the quantity and value of the material used and the degree to which the use may prejudice the same or diminish the profits or supersede the objects of the original work.” 

(Sambhar, 2020)

The Copyright Law provides some standards for use of a copyrighted item without the permission of the author or owner; such as news reporting, criticism, making a parody, research, and teaching, to qualify as means of fair use. Under these circumstances, the person using a copyrighted product would not have to compensate the copyright owner. There are no rigid rules to state when a copyrighted work has been used fairly and when not. It depends upon the circumstances of the given cases.

The Court has the discretionary power to decide whether the use was ‘fair’ in nature or not. So, the above-mentioned standards are again based on some factors; to determine whether their use has actually been fair in nature or not. There are mainly four factors that determine the use of a copyrighted work as ‘fair’, they are as follows:

Purpose of use-

From the name itself, it becomes clear what means by it. The reason for the use of the copyrighted work becomes an essential factor for the determination of ‘fair use’ of the work in the subject. The main thing that is to be looked after is whether the copyrighted work has been used for commercial or profit-making purposes or has been used for non-profit making, or educational purposes. In recent times this factor has come up to be of predominant reason to find about the fair use of a work. This determination of this factor may seem short and simple but in reality, it is way more a complex process.

Recently there has been a development in this factor for precise determination of the purpose of use of a work, which is known as the ‘transformative use’. It means that there have been some changes made to the copyrighted work for using it for a different purpose and thus it does not make the new result of the copyrighted product a substitute for the main work and will fall under ‘fair use’. Transformative use has thus become a line for the determination of fair use.

Nature of work-

The nature of the copyrighted work that has been used also plays a very significant role in determining whether there has been ‘fair use’ of the work or not. For instance, if the copyrighted work is of fiction in nature then ‘fair use’ of the work will be hard to find as it will be solely based on the conscience and judgment of the human mind, whereas if the work is of factual nature, i.e., dealing with facts, then its fair use can easily be determined because facts will be same for all and it cannot be altered that much. This factor is very less complex than all the other factors in the determination of fair use.

Amount of the work that is used- 

The basic point of a determination here is that if the amount of work that has been used from the copyrighted work as a whole is insignificant or little, then the fair use doctrine will come into effect but if the work used is of a significant amount then it will become hard to determine whether there has a fair use of the product or not. Some underlining factors further help in determining the above factor which is as follows:

I) The amount of work used shall not only be calculated quantitatively but also needs to be calculated qualitatively to determine the above factor. It means that if the amount used is very less in nature but it forms a significant part of the work as a whole then it will weigh the same as a large portion of the work has been used. 

II) The amount of work used shall be considered on the basis of the copyrighted work and not on the basis of the work that has been influenced by the copyrighted work, i.e., if the amount of work used forms a very little part of the influenced work but is of the good amount in respect of the copyrighted work, then the determination of fair use of the work becomes hard.

Effect of the use on the original work-  

This factor has been of most significance in determining whether there has been fair use of the work. The main thing in question here is whether the use of the copyrighted product has caused any ill economic effect on the original work or not. The effect not only is limited to present circumstances but also transcends to future circumstances like whether it will affect any future market where the original work could have been used for economic gains.

Suggestions and Conclusion:

Copyright law is of utmost importance today and the determination of its ‘fair use’ is very sensitive in nature. The concept of ‘fair use’ is still in the development process. Thus the number of factors determining it is ever-changing. For instance, the factor of ‘effect on the original work’ was considered to be the most important. But in recent developments, the ‘transformative use’ theory has gained more importance.

The determination process should be well researched and well-conducted or else the copyright owner can suffer and be deprived of his right. Day by day the importance of copyright as an intellectual property right is increasing. The courts have the significant power to determine the legitimacy of a work that should be used wisely.


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