INDIA TV INDEPENDENT NEWS SERVICE PVT. LTD. & ORS.

VS. YASHRAJ FILMS PVT. LTD.

А Project submitted for fulfilment of course Intellectual Property Rights for the requirement of the
degree B.А., LL. B (Hons.) for academic session 2022-2023.

Submitted by: Kinjal Keya

(2121)
Submitted to: Prof. Dr. S.C. Roy
Faculty, Intellectual Property Law

Session: 2019-2024
Semester: VII

CHАNАKYА NАTIONАL LАW UNIVERSITY, PАTNА

MITHАPUR, 800001

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 ACKNOWLEDGEMENT

I place on my record my sincere thanks to all who helped me in making this project a reality.
This project could not have been completed without the sincere efforts of my kith and kin. They
supported me in every possible way and helped me not only by providing me information but
also in the making of this project. They provided me with all the emotion and support that I
needed and they proved to be a source of my constant extrinsic motivation. This project would
have become a futile effort in their absence. I would like to mention the name of my Professsor
of Intellectual Property Rights, Prof. Dr. S.C. Roy, who provided me not only with technical
know-how of the project but also got me through the struggles of making a project on such an
important topic. The topic has many criticisms associated with it, mostly because of erroneous
interpretation of sources but it was only because of the guidance of a real teacher that helped me
in the completion of this project.

A very special thanks to my friends who were there to support me in every possible way, ranging
from aiding me in finding the relevant materials to helping me in cracking the trick of
formatting. Their help was such that it would always be remembered by me.

At last, I would like to thanks each and every one who was there with me during the making of
this project and who helped me either directly or indirectly. Their immense contribution means a
lot to me and this journey would not have been possible in the absence of their tireless efforts.

THANKING YOU

NAME: KINJAL KEYA

ROLL NO.: 2121 (4th Year, 7th Semester, 2018-23)

COURSE: B.A., LL.B.

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 DECLARATION

I hereby declare that the work reported in the project titled “Fair dealing for the purpose of
reporting current events” submitted by me Kinjal Keya, Roll No. 2121, student of B.A., LL.B.,
batch of 2019-24 is my original work and has not been copied from anywhere else. I hereby
declare that all the statements made above are true to my best knowledge.

(Kinjal Keya)

Chanakya National Law University

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TABLE OF CONTENTS

1. INTRODUCTION

2. DOCTRINE OF FAIR DEALING

3. INDIA TV INDEPENDENT NEWS SERVICE PVT. LTD. & ORS. VS.

YASHRAJ FILMS PVT. LTD: CASE SUMMARY

4. FAIR DEALINGS IN INDIAN COPYRIGHTS LAW

5. JUDICIAL DEALING OF FAIR TREATMENT

6. CONCLUSION

7. BIBLIOGRAPHY

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 1. INTRODUCTION

The author of any literary, dramatic work, the artist of any artistic work or the producer of any
cinematographic film or sound recording, as well as the composer of any musical work is free to
enjoy a number of rights in relation to their work, exclusive only to them or to any other person or
organisation, to whom such rights have been either assigned or licensed. But only in the case of the
assignment of rights, would the assigned party enjoy complete monopoly over the copyright
owner’s work, as the license only grants a limited number of rights to the licensee, which are
regulated by the original owner of the work.

These exclusive rights, that the owner of a particular work enjoys, are prescribed by the Copyright
in the said work. WIPO (World Intellectual Property Organization) defines Copyright as a legal
term used to describe the rights that creators have over their literary and artistic works. Works
covered by copyright range from books, music, paintings, sculpture, and films, to computer
programs, databases, advertisements, maps, and technical drawings. 1 The Copyright Act, 1957 does
not provide a proper definition of Copyright in the definition clause of the Act, but it defines
copyright in one of the sections2 as an exclusive right, subject to the provisions of the Copyright
Act, 1957 to do or authorise the doing of any of the acts in respect of a work or any substantial part
thereof, as follows-

In the case of a literary, dramatic or musical work, not being a computer programme, to reproduce
the work in any material form including the storing of it in any medium by electronic means, to
issue copies of the work to the public not being copies already in circulation, to perform the work in
public, or communicate it to the public, to make any cinematograph film or sound recording in
respect of the work, to make any translation of the work, to make any adaptation of the work or to
do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to
the work in sub-clauses (i) to (vi).3

1 What is Copyright? WIPO, https://www.wipo.int/copyright/en/. (last accessed Aug 14, 2022)

2 The Copyright Act, 1957 (Act 14 of 1957), S. 14

3 The Copyright Act, 1957 (Act 14 of 1957), S. 14(a)

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In the case of a computer programme, to do any of the acts specified in clause (a), to sell or give on
commercial rental or offer for sale or for commercial rental any copy of the computer programme,
provided that such commercial rental does not apply in respect of computer programmes where the
programme itself is not the essential object of the rental.

In the case of an artistic work, to reproduce the work in any material form including the storing of it
in any medium by electronic or other means or the depiction in three-dimensions (3D) of a two-
dimensional (2D) work or the depiction in two-dimensions (2D) of a three-dimensional (3D) work,
to communicate the work to the public, to issue copies of the work to the public not being copies
already in circulation, to include the work in any cinematograph film, to make any adaptation of the
work, to do in relation to adaptation of the work any of the acts specified in relation to the work in
sub-clauses (i) to (iv).4

In the case of a cinematograph film, to make a copy of the film, including a photograph of any
image forming part thereof; or storing of it in any medium by electronic or other means, to sell or
give on commercial rental or offer for sale or for such rental, any copy of the film, or to
communicate the film to the public.5

In the case of a sound recording, to make any other sound recording embodying it including storing
of it in any medium by electronic or other means, to sell or give on commercial rental or offer for
sale or for such rental, any copy of the sound recording, or to communicate the sound recording to
the public.6

The main purpose why a copyright is granted is to offer the creator or the maker of a creative and
original work an exclusive right over its subsequent use and distribution. 7 Although, obtaining a
copyright for any literary, artistic, musical work or a cinematographic film or a sound recording etc.
protects such a work from any unauthorized use by any individual or an organization other than the
owner of the copyright, but such a work protected by copyright can still be used in whole or as a

4 The Copyright Act, 1957 (Act 14 of 1957), S. 14(b)

5 The Copyright Act, 1957 (Act 14 of 1957), S. 14(c)
6 The Copyright Act, 1957 (Act 14 of 1957), S. 14(d)
7 The Copyright Act, 1957 (Act 14 of 1957), S. 14(e)
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derivative part of any other work or project, without the permission or the authorization of the
owner of copyright, and such a use would not constitute an infringement of the copyright in such a
work and in no way would be an illegal act, provided that the copyrighted work is not being
exploited or used for any monetary gain, which could in turn harm the monetary opportunities or
monetary gain of the owner of the copyright. This phenomenon is known as the Doctrine of Fair
Dealing. In order to balance the competing interests of the society and that of the copyright holders,
certain exceptions are provided in the Copyright Act in favor of the society in general. 8 The concept
of fair dealing has also been recognized in the Berne Convention 9 as well as the TRIPS
Agreement.10

The Doctrine of Fair Dealing is primarily followed and is recognized in Commonwealth countries,
but it does have a corresponding version in American Copyright law as well, which is known as
the Doctrine of Fair Use.

3
http://dipp.nic.in/sites/default/files/CFPC_2017_FINAL_RELEASED_28.8.17_0.pdf (accessed
on 17 august 2021)
4
www.wipo.int/sme/en/best_practices

8 Luis C Schmidt, The Changing Face of Copyright, 34 Copyright World 190 (2009)
9 The Berne Convention for the Protection of Literary and Artistic Works, 1886
10 TRIPS Agreement, Art. 13
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1.1. Research Methodology

The Researcher will be relying on Doctrinal method of research to complete this project.

1.2. Hypotheses

That the concept of fair dealing of work helps in expansion of knowledge and promotes
creativity.

1.3. Sources of Data

For this study, doctrinal research method was utilized. Various articles, and books were used
extensively in framing all the data and figures in appropriate form, essential for this study.

1.4. Aims and objectives

The aim of this research paper is to understand the concept of Fair Dealing under Copyright Law
in India in light of the case of India Tv Independent News Service Pvt. Ltd. & Ors. Vs. Yashraj
Films Pvt. Ltd.

The object of this paper is to analyse the divergent legal provisions and tests existing in Berne
Convention, TRIPs and WTC and India regarding library and archives.

1.5. Research Problem

Whether the principle of fair dealing as laid under section 52(1) is misused or not ?

1.6. Limitation of the study

The Researcher as a student has completed the project; he has access to a limited area and having
a limited time.

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 2. DOCTRINE OF FAIR DEALING

While endeavoring to understand the definition of fair dealing, it is appropriate to look at the
observations of Lord Denning in the famous case of Hubbard v. Vosper,11 where he specifically
pointed out-

“It is impossible to define what is ‘fair dealing.’ It must be a question of degree. You must consider
first the number and extent of the quotations and extracts. Are they altogether too many and too
long to be fair? Then you must consider the use made of them…Other considerations may come to
mind also. But, after all is said and done, it must be a matter of impression.”

As per the observations of Lord Denning 12, it can be inferred that in order to understand, whether
there exists any fair dealing in any work, what must be considered is the degree of use or the extent,
to which the work has been used in the sense that, whether the use is too much or too less. Apart
from this, what must also be seen is in what sense the work has been used and what impression such
use of the work leaves in the mind of the perceiver about the novelty of the derivative work. This
definition, though has helped to somewhat define Fair Dealing, it is a very vague and imprecise
definition, since it does not clearly define as to what is Fair Dealing, or what constitutes fair dealing
or which uses of the work are exempt from the domain of infringement of copyright and only delves
into the extent of the use of the work and though it has tried to define certain aspects to consider
while deciding the nature of the work, it still leaves out various other considerations and leaves it a
bit ambiguous.

Numerous attempts have been made to define the term Fair Dealing, such as in the case of S.K.
Dutt v. Law Book Co and Ors,13 the Court stated that, “As per the principle of fair dealing, the
reproduction or use of a copyrighted work is permitted by law, which would otherwise have
amounted to an infringement of copyright of the content owner.”
11 [1972] 2 WLR 389
12  Alfred Thompson “Tom” Denning, Baron Denning (1899–1999) was the most celebrated English judge of the 20th
century and was known as “the people’s judge” for his willingness to override precedent to do what he saw as justice
and for his simply-worded judgments.
13 AIR 1954 All 570
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The court in the case of Harper & Row Publishers v. Nation Enterprise14s stated that, the concept
of fair dealing finds its roots in the doctrine of equity. It allows the use of certain copyrightable
works, the usage of which would otherwise have been illegal and would have amounted to a clear
breach of the copyright of the owner. The prior permission of the author of the content is also not
required.15

The court in the case of Kartar Singh v. Ladha Singh16, stated their observations that, “fair dealing
concept functions as a limitation and exception to the exclusive and in a way monopolistic right
granted by copyright law”.

The court in the case of The Chancellor Masters and Scholars of the University of Oxford v.
Narendra Publishing House and Ors17, stated that Fair Dealing is an integral part of the copyright
law.

In the case of Pro Sieben Media AG v. Carlton UK Television Ltd 18, it was pointed out by the court
that English fair dealing provisions “define with extraordinary precision and rigidity the ambit of
various exceptions to copyright protection.” Therefore, it states that in accordance with the law in
operation in the UK, for a fair dealing defense to be effective there is a 2-step test, that the purpose
must be enumerated in statute, and then, if it is enumerated in the statute, it must be shown to be
fair. If either of the 2 condition is not fulfilled, the defense falls flat. It can be noticed from a bare
interpretation of the above, that fair dealing is only accepted for very specific and clear uses.

In various jurisdictions, the courts have attempted to set out the test to check for the fairness in fair
dealings.19 However, it is important to note that the most commonly known and generally used test

14 471 US 539
15 Giuseppina D‟ Agostino, Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to UK
Fair Dealing and Fair Use, 53 MCGILL LAW JOURNAL 309 (2008).
16 1934 SCC OnLine Lah 277
17 2008 (38) PTC 385 (Del).
18 [1997] E.M.L.R. 509, 516.
19 T.G. Newby, What’s Fair Here is Not Fair Everywhere: Does the American Fair Use Doctrine Violate International
Copyright Law? 51 Stanford Law Review 1633 (1999).
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is known as the 4-factor test, which was laid down by the Courts in the USA. They pointed out that,
the four steps involved in this test are basically20-

1. The reason and nature of use.

2. The quantity and substantiality of the fraction taken.

3. The nature of copyrighted work.

4. The effect of the use upon the prospective market.

The concept of fair dealing, in the copyright framework of the United Kingdom is very restraining
in nature and contains an exhaustive list of exceptions, which have been defined in the CDPA,
198821. In practice, this exhaustive list of exceptions in the UK legislation for fair dealing is very
rigid in nature and is disproportionately inflexible 22. The Copyright Act, 1957 which has been
widely borrowed from the UK Copyright Law presents the same sort of rigidity in the matters of
fair dealing.

20 Rich Stim, ‘Measuring Fair Use: the Four Factors’ Copyright & Fair Use, Stanford University Libraries
(2010), http://fairuse.stanford.edu/overview/fair-use/four-factors. (last accessed Aug 14, 2020).
21 Copyright, Designs and Patents Act, 1988.
22 Justice Laddie, Copyright: Over-strength, over-regulated, over-rated, 18 (5) European Intellectual Property Review
253 (1996).
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 3. INDIA TV INDEPENDENT NEWS SERVICE PVT. LTD. & ORS. VS.
YASHRAJ FILMS PVT. LTD: CASE SUMMARY

There were two suits filed by Yash Raj Films. In one suit, the Defendant used the first line of the
lyrics of a hit song ‘Kajra Re Kajra Re Tere Kare Kare Naina’ in an advertisement.
In another suit, during a chat show, Vasundhara Das, a singer, during course of the chat sang nine
stanzas, either in full or in part, from her songs during the course of singing, clippings from the
cinematographic film concerned were displayed in the background.
The Plaintiff filed a suit and the Single Judge of the Delhi High Court gave it an injunction. The
Defendants filed an appeal before the Division Bench. The Division Bench allowed the appeal by
applying the ‘Doctrine of De Minimis’.
The Division Bench asked Plaintiff’s counsel that if the maker of the advertisement in first case,
would have approached his clients for appropriating half a line from the sound recording and had
told the purpose of the advertisement i.e. consumer awareness and consumer education, what would
his clients had charged. Counsel stated probably nothing, but if the advertisement was found to be
of a commercial value, learned senior counsel said that his clients would have probably charged
around 10,000/-.
On the facts of the case the Division Bench observed:
As compared to other areas of law, copyright invites maximum trivial violations. Clicking a picture
of a sculpture or the waiters and the waitresses singing ‘Happy Birthday To You’ at a birthday
party, are ready examples minor violations of copyright.
One solution to trivial copyright violation is application of legal maxim de minimis non curat lex,
often shortened to ‘de minimis’ which means:
(i) The law does not concern itself with trifles; and
(ii) The law does not regard trifles; and
(iii) The law cares not for small things.
Three features of the Copyright Law are largely responsible for applying the ‘Doctrine of De
Minimis’:
(i) any type of work that is fixed and contains even a modicum of creativity is copyrightable.
(ii) Copyright attaches to these works automatically without the need for registration.
(iii) Rights of copyright owners are wide.
Therefore, It is not in society’s best interest to adjudicate these copyright disputes because ultimate
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compensation paid would not justify public expenditure in the adjudicatory process.
The factors commonly considered by Courts in applying de minimis are well listed:
(i) the size and type of the harm
(ii) the cost of adjudication
(iii) the purpose of the violated legal obligation
(iv) the effect on the legal rights of third parties
(v) the intent of the wrongdoer
In the advertisement in first case, size of the harm is use of mere five words. The intent of the
defendant is not to steal. The intent is to create the scene of a small kirana shop. The purpose of the
allegedly violated legal obligation i.e. infringement of a sound recording is to prevent a wrongful
gain to oneself by appropriating the work of the other, and suffice would it be to state that the
advertisement being a consumer awareness advertisement would not be of any personal financial
gain to the advertiser. In light of the statement of Plaintiff’s counsel, a sum of Rs. 10,000/- be too
trivial a sum vis-a-vis the social cost of adjudication. Thus, the infraction is trivial and attracts the
defence of de minimis.
In the TV Show in second case, one cannot separate from the life of the performer her performances
and if in the natural setting of a chat show she were to sing, as long as the singing duration is
limited to a minute or so, it would be a case of de minimis use. However, if major part of the
programme is consumed by the performer singing, it may be a different situation. The facts of each
chat show, its theme, its setting and the participation by the live audience at the show are all factors
which have to be kept in mind. In this case, the intention was to inform the viewers how Vasundhra
Das was introduced into music and what milestones she achieved in her life. Thus, unless at the
evidence led to the contrary at the trial, prima facie, the defence of de minimis would be available
even to Vasundhra Das as also India TV in relation to the programme.
The Appeals were allowed. However, a limited injunction was granted to Plaintiff to the extent that
no visual clippings from any cinematographic films would be displayed.

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 4.FAIR DEALINGS IN INDIAN COPYRIGHTS LAW

The concept of fair dealing was first introduced in India in a statute in the year 1914. But, even
before the introduction of the concept of Fair Dealing in India under the Indian Copyright Act,
1914, 23the Bombay High Court, in the case of McMillan v. Khan Bahadur Shamsul Ulama Zaka24
held that the English Copyright Act, 1842 was applicable in India. The provision stated that
copyright would not be infringed by ‘any fair dealing with any work for the purposes of private
study, research, criticism, review or newspaper summary’. The present Copyright Statute of India
which was passed way back in 1957 also had extensively borrowed from the new Copyright Act of
UK of the year 1956.25

The concept of fair dealing is primarily dealt with in Section 52 of the Copyright Act, 1957. This
section has been amended a number of times since 1957. This section was first amended by the
Copyright (Amendment) Act, 1983, and subsequently by the Copyright (Amendment) Act, 1994
and 1999 and finally by the most recent Copyright (Amendment) Act of 2012.

Section 52 of the Indian Copyright Act, 1957

Section 52 of the Indian Copyright Act, 1957 states that certain acts would not constitute
infringement of copyright. Section 52(1) prescribes a list of acts, which shall not constitute an
infringement of copyright.

Section 52(1)(a) provides for the Doctrine of Fair Dealing, and it states that a fair dealing with any
work, not being a computer program, for the purposes of private or personal use, including research,
criticism or review, whether of that work or of any other work, the reporting of current events and
current affairs, including the reporting of a lecture delivered in public would not constitute
infringement.

23 The Indian Copyright Act, 1914 (Act 3 of 1914), S. 2(1)(I)

24 (1895) ILR Bom 557.
25 Narayan P, Copyright and Industrial Designs 8 (3rd ed. Eastern Law House, Calcutta 2002).
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The Explanation appended to the section states that the storing of any work in any electronic
medium for the purposes mentioned in this clause, including the incidental storage of any computer
program which is not itself an infringing copy for the said purposes, shall not constitute
infringement of copyright.

The provisions under Section 52 makes it evident, that for the applicability of the concept of Fair
Dealing, the acts or the purposes would have to fall within the statutorily established purposes of
private use, research, criticism and review as firmly provided under Section 52 of the Indian
Copyright Act, 1957. Albeit, the Section primarily deals with the doctrine of Fair Dealing and
provides for when the dealing is considered to be fair, but the term “Fair Dealing” has not been
defined anywhere in the Act. However, the said section does specify as to what shall not amount to
the violation of copyright.

The 2012 amendment to the Copyright Act was brought in order to generally extend these
provisions. This amendment has, among other things, extended the fair dealing provision to
cinematographic films and musical works. The provision under Section 52(1)(a) has been amended
in order to provide fair dealing with any work for the purposes of private and personal use with the
exception of it being a computer program.

The categorized acts or purposes as under Section 52 have been interpreted as exhaustive, inflexible
and definite since any use, act, purpose or dealing which does not fall definitively within the
enumerated grounds as specified in the section, is considered to be an infringement of the copyright.

There have been numerous judicial pronouncements, which has helped further the development of
the Doctrine of Fair Dealing in United Kingdom, India as well as laid the groundwork for the
development of the Doctrine of Fair Use in United States of America.

Fair dealing is an important concept in Indian Copyright law. However, despite its importance in
the Copyright regime and the importance of the Copyright regime to advancement of technology,
the concept remains relatively unexplored in India.. The doctrine of ‘fair use’ or ‘fair dealing’ is an
integral part of Copyright law. It permits reproduction of the Copyrighted work or use in a manner,
which, but for the exception carved out would have amounted to infringement of Copyright. It has
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thus, been kept out of the mischief of the Copyright law. The Copyright Act provides for “fair
dealing” or “statutory licensing”. Sections 31, 32-A and 52 provide for compulsory or statutory
licensing of certain literary, scientific or artistic works for instructional and certain other activities
subject to reporting and royalty payment requirements.

In India, the doctrine of fair dealing is statutorily entrenched under Section 52 of the Indian
Copyright Act, 1957. The English Copyright Act, was 1842 was held to be applicable in
India by the Bombay High Court in McMillan v Khan Bahadur Shamsul ulma Zaka , even when
the Act was not made expressly applicable to India. Fair dealing was first statutorily introduced
in 1914 as a mere duplication of Section 2(1)(i) of the UK Copyright Act, 1911, providing that
Copyright would not be infringed by ‘any fair dealing with any work for the purposes of
private study, research, criticism , review or newspaper summary’. The current Indian Copyright
statute i.e., the Indian Copyright Act was passed in 1957 as an ‘independent and a self contained
law’. Even the new legislation had extensively borrowed, both textually and in basic
principles, from the new UK Copyright Act, 1956. However, the scope of fair dealing was
increased in the statue of 1957 and ‘a fair dealing with any work for the purposes of radio
summary or judicial proceeding’ was hereafter proclaimed not to constitute an infringement of
Copyright. Since 1957, Section 52, which constitutes fair dealing, has been amended thrice. The
first minor amendment brought to Section 52 was by the Copyright Amendment Act, 1983 (23 of
1983) whereby an explanation below sub- clause (ii) of clause (b) has been inserted. The Section
was, however, comprehensively amended by the Copyright Amendment Act, 1994. Activities like
private research and dealing with computer programmes and their copying by a lawful
possessor were incorporated into the provision and making sound recordings of any literary,
dramatic and musical works in certain circumstances were declared to constitute fair dealing.
The latest amendment brought to Section 52 was in the year 1999, which again sought to
address issues relating to computer programm

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 5 JUDICIAL DEALING OF FAIR TREATMENT

In Civic Chandran v Ammini Amma26, the Court observed, The Indian Copyright Act under
Section 52 carves out fair dealing from Copyright infringement as affirmative defenses, which
places the onus of proving the defenses onto the user once the copyright owner establishes prima
facie infringement by substantial copying of expression. However, the fair dealing cases in India do
not always establish prima facie infringement before considering the application of fair dealing.
In Blackwood and Sons Ltd and Others v. AN Parasuraman and ors 27 the Court held that, the
enumerated purposes under Section 52 have been typically interpreted as exhaustive,
inflexible and certain, since any use not falling strictly within an enumerated ground is
considered an infringement. The courts have time and again reiterated that it is impossible
to develop a ‘rule of thumb’ for cases of fair dealing as each case depends upon in its own facts
and circumstance.
In SK Dutt v Law Book Co and Ors28 where the dispute was based on the use of certain
quotations from a work. The Court interpreted the fact of acknowledgement by the authors
of the plaintiff's material to mean that had the authors made any other use of the plaintiff's
book in compiling their own book, they would have acknowledged it; thus, the copying was
held not to be a substantial taking.
In Academy of General Edu, Manipal and Anr v. B Malini Mallya, the Court held, When a fair
dealing is made, inter alia , of a literary or dramatic work for the purpose of private use
including research and criticism or review, whether of that work or of any other work, there can be
no claim as to Copyright infringement. Thus, if some performance or dance is carried out
within the purview of the said clause, the mischief of Copyright cannot be claimed. Yet
again, if such performance is conducted before a non-paying audience by the appellant, which is
an institution if it comes within the amateur club or society, the same would not constitute any
violation.
In The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing

26 PTC 329 (Kerala)

27  Blackwood and Sons Ltd. And Ors, vs. A.N. Parasuraman And Ors. AIR 1959 Mad 410
28  AIR 1954 All 570
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House and Ors,29 the court laid down that while dealing with the issue of fair dealing, a Court
should ask whether the purpose served by the subsequent (or infringing) work is substantially
different (or is the same) from the purpose served by the prior work. To be called
transformative, the subsequent work must be different in character; it must not be a mere
substitute, in that, it not sufficient that only superficial changes are made, the basic character
remaining the same. This determination, according to the Court, is closely knit with the other
three factors, and therefore, central to the determination of ‘fair use’, i.e., if the work is
transformative, then it might not matter that the copying is whole or substantial. Again, if it
is transformative, it may not act as a market substitute and consequently, will not affect the
market share of the prior work. the Court also held that the purpose and manner of use by
the defendants of the questions found in the plaintiff's textbooks were not only different but,
additionally, the defendants' works can be said to be 'transformative', amounting to ‘review’
under Section 52(1)(a)(ii) of the Act. Here, term ‘review’ was interpreted in a contextual
background. The plaintiff’s claim to Copyright was premised on the work being a ‘literary’
one. Review or commentary, of a part of such mathematical work too was seen in the background
of this claim. In context of a mathematical work, a review was interpreted to be a re-
examination or a treatise on the subject.
In Super cassette Industries v Nirulas Corner House (P) Ltd30, where the plaintiff alleged Copyright
infringement on the ground that few audio clippings of songs in which they owned Copyright
were played on the television in an enclosed room of the defendant's hotel, the Court, while
rejecting the defence of fair dealing in terms of Section 52(1)(k) held that the two categories
'hotels' and 'similar commercial establishment' gives a clue to Parliamentary intention to exclude
the operation of such categories of establishments from the benefit of what are obviously
deemed not infringements and that such provisions should receive a restricted interpretation,
having regard to the nature of the expressions used. These provisions were held to be
pointers to the legislative intent of treating use of televisions and sound recordings, in hotels
as communications to the public as opposed to a private purpose, even if played in an enclosed
hotel room. Therefore, the Court declined to extend the law beyond its meaning to take
care of any perceived broader legislative purpose.
In E M Forster and Anr v A N Parasuram31, which involved alleged violation of plaintiff's
29 2008 (38) PTC 385 (Del)
30 https://indiankanoon.org/doc/541742/
31 https://indiankanoon.org/doc/1461268/.
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Copyright by reproduction of his book in a guide, that the Court explicitly divided its decision
between the determination of infringement (that copying must be substantial enough to render
an infringement), and the determination of fair dealing (that the copying must not be too
substantial) and refused to deal with the issue of fair dealing until infringement was found.
This structured approach in analyzing the issue of substantiality is rare among Indian cases of
fair dealing. Execution is the enforcement of decrees and orders by the process of court, so as to
enable the decree-holder to realize the fruits of the decree. The execution is complete when the
judgment-creditor or decree-holder gets money or other thing awarded to him by the judgment,
decree or order.

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 6.CONCLUSION

Though, the Indian courts have borrowed the US born, ‘factor analysis method’ in the assessment of
fair dealing, the Indian judiciary has only considered issues concerning fair dealing in each case in a
limited context. It is therefore left without much opportunity to take a holistic view of how these
issues may interact together or an analytical view of how these issues may be broken down. The
courts have not been able to explore other factors, such as, bad faith because they have not come at
issue. Though such factors may not have been expressly highlighted as a potential factor, this
silence, however, does not mean that such factors cannot feature in future cases.32
Rather than incorporating fair use by the introduction of factor analysis method in the Indian
Copyright Act, Indian courts should rather seek to build on the distinctive features of its fair dealing
regime, such as its policy preoccupations and other factors (in addition to those incorporated in the
US code) for determining fair dealing that helps introduce the element of flexibility.
The doctrine of fair dealing is indisputably a necessity. However, its role in the overall scheme of
copyright law remains to be defined. Precisely, Indian copyright jurisprudence is awaiting its
watershed equivalent of Folsom v Marsh to address fundamental issues about the purpose, meaning
and application of the Indian law on fair dealing.
The Calcutta High court admitted the dearth of judicial jurisprudence on copyright matters, in
Barbara Taylor Bradford v Sahara Media Entertainment Ltd in the following words:
‘Our country is singularly devoid of reported decisions in copyright actions, at least up to
the present day. We have had the case of R G Anand shown to us; but from that time until
now there appears to have been no Indian authority which either side found worth citing
before us. The statutory sections are therefore the first things to see’
Nonetheless, the approach of the Indian courts, even if sometimes too rigid or limited is a very
cautious and disciplined one. The notion of exceptions to copyright infringement which had in the
past been largely premised on a narrow interpretation of its scope, the Indian courts have now
broadened its scope. Indeed, in the recent fair dealing cases, the courts' approach generally has been
to examine the cases by going through each of the factors in the backdrop of the enumerated
purposes as a checklist, weighing each of them in favour of the copyright owner or the user and
then tallying up the net score. This approach has in a way been effective to prevent the doctrine
from freezing.
32 https://www.channel4.com/producers-handbook/c4-guidelines/fair-dealing-guidelines
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It is without dispute that both the US and the Indian legislation purport to maximize the promotion
of creativity and the dissemination of information at the same time. Fair dealing and fair use both
appear as defences to the otherwise closed monopoly entrenched in the legislation. But the real
differences between India and its US counterparts can be traced ultimately in the policy
preoccupations of their respective courts. The provision for fair dealing in the Indian Act is brief
and does not define the meaning or the application of the defence. The provision for fair use in the
American Act, on the other hand, is more elaborate, culminated from extensive judicial reflection.
The American Act is flexible and open for further advancement and is so intended by its legislators.
Indian legislators, desiring certainty, have chosen the conservative approach and the Indian judicial
jurisprudence is reflective of this approach.33

33 https://www.lexisnexis.co.uk/legal/commentary/halsburys-laws-of-england/sports-law/fair-dealing-for-the-purpose-
of-reporting-current-events.
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 BIBLIOGRAPHY

BOOKS
● Narayanan, P., ’Intellectual Property Law,’ 3rd edition, 2009, Eastern Law House
● Poorvi Chotani,’Copyright and Emerging Technology’ MIPR VOL.1, 2007,A-149.
● Lal, The Copyright Act , 3rd edn (Law Publishers India, Allahabad), 1995
● V.K. Ahuja, Law relating to Intellectual Property Rights,3rd edition, 2017, Lexis Nexis
● Ayush Sharma , Indian Perspective of Fair Dealing under Copyright Law, Journal of
Intellectual Property Rights , Vol. 14 (November 2009)

WEBSITES
● http://centerforsocialmedia.org
● http://www.legalserviceindia.com/article/l195-Copyright-Law-inIndia.html
● http://www.worldlawdirect.com/forum/law-wiki/30666-copyright-fair-use-law.html
● http://www.umuc.edu/library/copy.html
● http://en.wikipedia.org/wiki

STATUTES
● The Copyright Act, 1957

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