Fair Use And Fair Dealing - A Comparative Study Of India And The United States

Author: LawSphereX

Category: General Law

Published: 2026-08-23T19:48:24.680536+00:00

Updated: 2026-08-26T17:11:29.533+00:00

FAIR USE AND FAIR DEALING: A COMPARATIVE STUDY

OF INDIA AND THE UNITED STATES

M. Harshini, LL.M., Christ (Deemed To Be University), Bengaluru

ABSTRACT

The doctrines of fair use and fair dealing are two of the most important exceptions that are included in copyright laws to protect the public against the possible negative consequences of copyright. These exceptions empower the public to have access to the knowledge they might otherwise be deprived of due to copyright restrictions. Although both India and the United States have taken cognizance of the restraints the copyright laws impose on the exercise of such rights as education, research, ingenuity, and the like, their positions on the matter appear to be quite different with regard to the extent and the application of the limitations.

The practice in the United States is to employ a fair use model that is more open-ended and less rigid based on the legislative provision 107 of the Copyright Act, which gives the court considerable discretion in interpreting it using the criteria outlined therein. On the other hand, India is more in line with a strict fair dealing policy as defined by Section 52 of the Copyright Act with a detailed list of specific activities that do not violate the copyright in question. This comparative research traces the trajectory of the two concepts from their inception till date, delineating the underlying legal principles and showing the shift in judges' attitudes toward these concepts in both countries.

The paper examines the pros and cons of each system in depth, paying particular attention to such issues as technological obsolescence, the dissemination of digital works, and the rights of users. In the final analysis, the study moves to the thesis that India might find it advantageous to incorporate some facets of the U. S style flexibility, yet, without lapsing into the abuse of the copyright law so as to have a regime that would be more balanced and able to adjust to changes. Keywords: Fair Use, Fair Dealing, Copyright Law, Digital Rights, Education, Innovation.

1. INTRODUCTION

Copyright law has been set up to defend the rights of authors, musicians, and the creators of the different kinds of art by giving them certain exclusive rights over their works. At the same time, it needs to maintain a certain equilibrium with the wider public interest in accessing the knowledge, education, research, and cultural enrichment. This equilibrium is maintained through some exceptions and restrictions to copyright protection, with the concepts of fair use and fair dealing being the most important ones. The U. S. made the call to go with the fair use concept, a more versatile and not so well-defined framework as described in Section 107 of the U. S. Copyright Act, 1976. To figure out allowed uses, one court would apply the four-factor test, thus making it possible for the doctrine to keep pace with new technology and new forms of communication.

1 Whereas India is based on a more strict interpretation of the fair dealing principle in Section 52 of the Indian Copyright Act, 1957, which provides an exhaustive list of exceptions such as the use of the work for the owner's private purposes, research, criticism, review, and reporting of the current events. 2 Despite the fact that both fair use and fair dealing are trying to go along with the same idea of trying to keep the rights of copyright holders intact and at the same time, grant the public easier access to the works, their scope and the way the judges apply them vary greatly. In India, the restrictive character of fair dealing has been regularly pointed out as being insufficient for solving modern problems such as digital reproduction, online education, and technological innovation. 3 The U. S.

model, even though it is wider and more adaptable, is known for being uncertain because of the case-by-case nature of the application of the law. 4 This comparative study aims to explore the historical development, legal concepts, and the court's view of fair use and fair dealing in the United States and India. It will analyze how courts in both legal areas have clarified the doctrines, their impact on education and research, and their potential for change in the digital era. In the end, the article puts forward the idea that India would be able to gain by incorporating aspects of the U. S.

1 U.S. Copyright Act of 1976, sec 107

2 Indian Copyright Act, 1957, sec 52

3 Prashant Reddy T. & Sumathi Chandrashekaran, Create, Copy, Disrupt: India’s Intellectual Property

Dilemmas (Oxford University Press, 2017). 4 Pamela Samuelson, “Unbundling Fair Uses,” Fordham Law Review, Vol. 77, No. 5 (2009), pp. 2537–2621.

model, still keeping measures to prevent abuse for a copyright system that is more balanced.

COMPARATIVE ANALYSIS

Legal Framework of Fair Use in The United States The doctrine of fair use is codified in Section 107 of the U. S. Copyright Act, 1976, which provides a flexible standard rather than a fixed list of exceptions. The section states that the “fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. ” However, it explicitly notes that fair use is determined on a case-by-case basis, guided by four non-exclusive factors:5 • Purpose and character of the use, including whether the use is of a commercial nature or for nonprofit educational purposes, and whether it is “transformative” adding new expression or meaning. • Nature of the copyrighted work, with more leeway given for factual works than highly creative works.

• Amount and substantiality of the portion used relative to the copyrighted work as a whole. • Effect of the use upon the potential market for or value of the copyrighted work. 6 This framework is deliberately wide to accommodate the changes the doctrine might go through as a reslt of changes in technology, culture, or creative practice. 7 One of the major things that have been the most successful in shaping the doctrine is the judicial interpretation. For example, Campbell v. Acuff-Rose Music, Inc. (1994)8 is the leading case in which the U. S. Supreme Court decided parody to be a transformative use and Google LLC v. Oracle America, Inc. (2021),9 a case that confirmed fair use in the context of digital reproduction and software interfaces, are the two most important cases that very well illustrate the doctrine’s dynamic and

5 Section 107 of the U.S. Copyright Act, 1976

6 Section 107 of the U.S. Copyright Act, 1976

7 William Fisher, Promises to Keep: Technology, Law and the Future of Entertainment 124–128 (Stanford Univ. Press 2004).

8 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579–580 (1994).

9 Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1194–1197 (2021).

adaptive nature. The ability of the U. S. fair use doctrine to adapt to different situations is what makes it very responsive to such challenges as those brought about by digital technologies, where works are reproduced in a new format, that is, online sharing, educational use in virtual classrooms, and transformative creative works like remixes and mashups. 10This, however, does not mean that there is no uncertainty, as the flexibility of fair use decisions is heavily based on judicial discretion, which in turn leads to unpredictable results. 11 Legal Framework of Fair Dealing in India In India, fair dealing provisions are codified in Section 52 of the Copyright Act, 1957, which specifies a set of exceptions to copyright infringement rather than a broad principle.

The statute enumerates particular acts that constitute fair dealing, including:12 • Private or personal use, including research. • Criticism or review of a work. • Reporting of current events. • Use for judicial proceedings or for instruction in educational institutions. 13 The Indian method, therefore, is still more limited and spells out in detail the same fair use doctrine of the U. S. It is while it shows clarity and certainty that it loses the judicial flexibility. Indian courts at times have read these provisions broadly, for example in the case Civic Chandran v. Ammini Amma (2013)14 which recognised the criticism and the parody as the fair dealing legitimate purposes and the case Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association (2013) 15 which referred to the fair dealing in the context of music performance. 10 See Jane C.

Ginsburg, “Transformative Use and Copyright Law” 64 J. Copyright Soc’y U. S. A. 1, 12–15 (2016)

11 Pamela Samuelson, “Unbundling Fair Uses,” 77 U. Chi. L. Rev. 53, 65–68 (2010).

12 Copyright Act, 1957, Sec 52

13 Copyright Act, 1957, Sec 52

14 Civic Chandran v. Ammini Amma, (2013) 1 KLT 199 (India).

15 Indian Performing Right Soc’y Ltd. v. Eastern Indian Motion Pictures Ass’n, (2013) 53 PTC 311 (Cal.).

Unlike the U. S. , India does not have a general, open-ended fair use clause, that is, only those uses that fall within the specified categories may be considered as fair dealing. Even in cases where they are in line with the purpose of promoting knowledge, education, and public interest, they would not qualify as such. Such strictness affects the adaptability to new technologies, digital learning platforms, and the innovative types of creative expression. Impact Of Digital Technologies and Online Education The rapid advancement of digital technologies and the expansion of online education have significantly reshaped the creation, dissemination, and consumption of copyrighted works. These developments have intensified the importance of copyright limitations and exceptions in maintaining a balance between exclusive rights and public access.

While international instruments such as the Berne Convention provide general parameters for exceptions under the three step test framework, the manner in which domestic legal systems implement these standards determines their adaptability to technological change. 16 In this regard, the structural contrast between the United States’ fair use doctrine and India’s fair dealing framework becomes particularly significant. (a) Impact of Digital Technologies Digital technologies have substantially reduced the cost and effort required to reproduce, store, and distribute creative works. Activities such as digitization, online indexing, remixing, text and data mining, and AI-assisted processing challenge copyright systems that were historically designed around tangible media.

These developments have expanded both opportunities for innovation and the risk of infringement, thereby placing greater interpretative pressure on copyright exceptions. In the United States, the open-ended nature of fair use under Section 107 of the Copyright Act,

1976 enables courts to evaluate novel technological uses through a flexible, case-by-case

analysis.17 Judicial emphasis on “transformative use” has permitted certain digital practices such as search engine indexing and parody to qualify as fair use where they add new expression, meaning, or functional utility.18 However, this flexibility operates strictly within the four-factor 16 Berne Convention for the Protection of Literary and Artistic Works art. 9(2), Sept. 9, 1886, as revised at Paris July 24, 1971, 828 U.N.T.S. 221.

17 17 U.S.C. § 107 (2018).

18 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

balancing framework, particularly with careful consideration of market impact. 19 Courts do not automatically approve digital uses; rather, they assess whether the use substitutes for the original work or causes cognizable market harm. Thus, adaptability exists, but it is structured and conditional. By contrast, India’s fair dealing provisions under Section 52 of the Copyright Act, 1957 follow a closed and enumerated model. 20 While this structure enhances statutory certainty, it does not expressly address emerging technological practices such as large-scale digitization, online dissemination, or the use of copyrighted works in AI training datasets.

Although Indian courts have, in some instances, interpreted fair dealing purposively particularly in educational and critical contexts the absence of a general, open-ended clause limits judicial flexibility when confronting uses that fall outside expressly listed categories. 21 Consequently, uncertainty persists for researchers, educators, and digital creators engaging in technologically mediated uses not clearly contemplated by the statute. (b) Impact of Online Education The expansion of online education accelerated significantly during the COVID-19 pandemic has further highlighted the operational differences between fair use and fair dealing. Digital classrooms, learning management systems, and remote access platforms necessarily involve reproduction and communication of copyrighted works in electronic form.

This shift has intensified reliance on copyright exceptions for legitimate academic purposes. In the United States, fair use has functioned as a flexible mechanism supporting online teaching and research. 22 Courts have recognized that non-commercial educational uses may satisfy the four-factor test, particularly where the use is limited and does not materially impair the market for the original work. 23 Nonetheless, educational use is not automatically fair; compliance depends on proportionality, purpose, and economic impact. India’s statutory framework permits use for instructional purposes within educational institutions,24 but the language of Section 52 was largely drafted with physical classroom

19 Authors Guild v. Google, Inc., 804 F.3d 202, 214–25 (2d Cir. 2015).

20 The Copyright Act, No. 14 of 1957, § 52 (India).

21 Civic Chandran v. Ammini Amma, 1996 PTC (16) 329 (Ker).

22 17 U.S.C. § 107 (2018).

23 Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1202–08 (2021)

24 The Copyright Act, No. 14 of 1957, § 52(1)(i) (India).

settings in contemplation. The provision does not explicitly address digital reproduction, electronic course packs, streaming, or remote access systems. While judicial interpretation has occasionally expanded the scope of educational fair dealing,25 the absence of explicit statutory recognition of online dissemination creates interpretative ambiguity. Institutions must therefore rely on analogical reasoning rather than clear legislative guidance. The rise of digital technologies, the expansion of online education and the effect of global copyright agreements such as the Berne Convention all have a major impact on how the fair use concept is applied in the US and the fair dealing one in India.

These alterations in the environment of the intellectual property law not only put the traditional legal frameworks in question but also point to the need of more flexible and balanced copyright exceptions. Comparative Position The divergence between the two systems reflects a deeper jurisprudential distinction. The U. S. model privileges structured judicial discretion through an open-ended standard governed by a multi-factor balancing test, while the Indian framework emphasizes legislative precision through enumerated statutory exceptions. In the context of digital transformation and online education, a flexible standard appears institutionally better equipped to respond to technological disruption, though it inevitably generates a degree of legal uncertainty.

Conversely, the Indian approach promotes predictability and statutory clarity but may require periodic legislative intervention to address novel uses not contemplated at the time of drafting. The accelerating digitization of knowledge ecosystems thus raises a fundamental normative question: whether existing copyright exceptions in both jurisdictions adequately reconcile innovation, educational access, and public interest with the legitimate economic rights of authors. International Legal Regime and Domestic Implementation A. International framework

Modern copyright exceptions operate within the broader structure of international copyright

25 The Chancellor, Masters & Scholars of the Univ. of Oxford v. Rameshwari Photocopy Serv., 2016 SCC

OnLine Del 13102 (India).

law. The foundational instrument governing limitations and exceptions is the Berne Convention. 26 While the Convention establishes minimum standards of protection for authors, it also permits member states to introduce limitations under what has come to be known as the “three-step test. ” Article 9(2) provides that exceptions must (1) apply only in certain special cases, (2) not conflict with the normal exploitation of the work, and (3) not unreasonably prejudice the legitimate interests of the author. 27 The three-step test does not prescribe a specific model of exception such as fair use or fair dealing but instead establishes outer boundaries within which national legislatures may design their own systems.

This flexibility explains why jurisdictions such as the United States and India have adopted structurally different approaches while remaining compliant with international obligations. The digital environment prompted further clarification through the WIPO Copyright Treaty (WCT). 28 The WCT reaffirmed the applicability of the three-step test to digital uses and emphasized protection of works in online environments. 29 Importantly, however, the Treaty does not mandate a uniform exception structure. Instead, it encourages member states to maintain a balance between effective protection and the public interest, particularly in areas such as education, research, and access to information. 30Accordingly, international copyright law provides a normative framework but leaves significant discretion to domestic legal systems in shaping their exceptions. B.

Domestic Implementation of International Standards

Both the United States and India are signatories to the Berne Convention and the WIPO Copyright Treaty, and both systems operate within the constraints of the three-step test.31 However, their methods of compliance differ structurally. In the United States, judicial interpretation of fair use functions as the primary mechanism for ensuring that exceptions remain confined to uses that do not undermine the normal market for copyrighted works. Courts routinely assess economic substitution and market harm, thereby 26 Berne Convention for the Protection of Literary and Artistic Works art. 9(2), Sept. 9, 1886, as revised at Paris July 24, 1971, 828 U.N.T.S. 221.

27 Id

28 WIPO Copyright Treaty art. 10, Dec. 20, 1996, 2186 U.N.T.S. 121.

29 Id. art. 10(1).

aligning fair use analysis with the second and third limbs of the three-step test. 32 The openended structure of Section 107 thus operates within internationally recognized limits while preserving flexibility. India’s approach reflects compliance through legislative enumeration. Section 52 of the Copyright Act, 1957 identifies specific categories of permitted acts, thereby confining exceptions to “certain special cases” as contemplated under Article 9(2) of the Berne Convention. 33 The enumerated structure seeks to ensure predictability and statutory precision while maintaining adherence to international standards. The divergence between these two systems, therefore, does not arise from inconsistency with international law but from different domestic policy choices within the permissible space allowed by the three-step test.

International treaties establish the boundaries of permissible limitation; national systems determine how those boundaries are operationalized. As digital dissemination, cross-border education, and global research collaborations expand, the interaction between domestic exception regimes and international obligations assumes increasing importance. The adaptability of national copyright systems must therefore be evaluated not only in light of internal policy objectives but also in relation to their continued compatibility with evolving international norms.

ROLE OF JUDICIARY

The judiciary plays a pivotal role in defining the operational scope of copyright limitations and exceptions. While legislatures frame the statutory structure of fair use and fair dealing, it is judicial interpretation that translates these provisions into workable doctrines capable of responding to evolving technological, cultural, and educational contexts. The contrast between the United States and India is particularly visible in how courts interpret flexibility within their respective statutory frameworks. In the United States, courts have consistently treated fair use as a dynamic doctrine requiring case-specific, purposive evaluation. In Campbell v. Acuff-Rose Music, Inc. , the Supreme Court held that a commercial parody could qualify as fair use where it was transformative in 32 Campbell v. Acuff-Rose Music, Inc. , 510 U. S. 569, 590 (1994); Authors Guild v. Google, Inc. , 804 F.

3d 202, 223–25 (2d Cir. 2015).

33 The Copyright Act, No. 14 of 1957, § 52 (India).

character. 34 The Court clarified that commercial nature does not automatically defeat a claim of fairness and emphasized a holistic application of the four statutory factors. The decision significantly strengthened the concept of transformative use, thereby expanding judicial flexibility in accommodating creative reinterpretations of copyrighted works. The adaptive character of U. S. fair use was further illustrated in Authors Guild v. Google, Inc. , where the Second Circuit upheld Google’s digitization of millions of books to create a searchable database. 35 The court concluded that the use was transformative because it enabled new research functionalities without substituting for the original works in the marketplace.

Importantly, the judgment demonstrated judicial willingness to reconcile large-scale technological innovation with the economic interests of copyright holders through structured application of Section 107. In contrast, Indian courts operate within the enumerated framework of Section 52 of the Copyright Act, 1957. In Civic Chandran v. Ammini Amma, the Kerala High Court recognized that parody could fall within the statutory purpose of criticism or review and therefore qualify as fair dealing. 36 However, the Court confined its reasoning to the explicitly listed purposes under Section 52, reflecting a textual and statutory approach rather than reliance on an openended standard. A significant development in the Indian context occurred in The Chancellor, Masters &

Scholars of the University of Oxford v. Rameshwari Photocopy Services, where the Delhi High Court permitted the preparation of course packs for educational purposes under Section 52(1)(i).37 The Court adopted a purposive interpretation that emphasized access to education and the non-commercial character of the use. Nevertheless, the reasoning remained anchored in statutory language rather than the broader balancing analysis characteristic of U.S. fair use jurisprudence. The comparative judicial experience thus reveals a structural distinction. U.S. courts exercise broader interpretative discretion within an open-ended statutory standard, enabling doctrinal evolution through transformative-use analysis and market-harm evaluation. Indian courts,

34 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579–94 (1994)

35 Authors Guild v. Google, Inc., 804 F.3d 202, 214–25 (2d Cir. 2015).

36 Authors Guild v. Google, Inc., 804 F.3d 202, 214–25 (2d Cir. 2015).

37 The Chancellor, Masters & Scholars of the Univ. of Oxford v. Rameshwari Photocopy Servs., 2016 SCC OnLine Del 13102 (India).

although occasionally purposive in interpretation, remain institutionally constrained by the enumerated nature of fair dealing provisions. In both jurisdictions, however, the judiciary functions as a central constitutional actor in mediating the tension between innovation, access to knowledge, and proprietary protection. The evolution of copyright limitations therefore depends not only on legislative reform but also on the interpretative philosophy adopted by courts.

SUGGESTIONS

1. Introduce a Purpose-Driven Exception Framework

One of the significant changes to the law can be a change in the way exceptions are handled. At present, the copyright exceptions in India depend largely on strict categories under Section

52 of the Copyright Act, 1957. This, while giving certainty, often does not accommodate the

new technological environment such as AI created materials, e-learning platforms, or digital archiving.38 If the exceptions had a purpose driven framework, inspired partly by the U.S. Fair Use doctrine, courts would be able to analyze copyright use not as a stand-alone but in relation to its broader meaning like education, criticism, innovation, or public good. Hence, the judges would be able to weigh the rights of copyright holders against the needs of society on a more adaptable, case-by-case basis, without the necessity for a new law every time a technology comes into existence.

2. Make Educational and Research Uses More Understandable

Section 52(1)(i) of the Copyright, 1957 provides exemptions for teaching and research, yet its phrasing is outdated and does not adequately reflect the realities of the digital age. Explicit legislative recognition of practices such as digital reproductions, electronic course packets, photocopying, learning management system (LMS) based teaching, and open-access repositories would bring much-needed clarity. 39 Such reforms would ensure that educators and students may rely on copyrighted materials for legitimate academic purposes without the constant apprehension of litigation. Further, drawing a clear line between non-commercial educational use and commercial exploitation would reduce the legal ambiguities currently 38 Giuseppina D’Agostino, Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use, 28 Comp. Res. L. & Pol. Econ.

(2007), 39 Anurudh Upadhyay, Concept of Fair Use in India and Abroad: A Comparative and Analytical Study of an Exclusive Defense in Law of Copyright, 5(11) Indian J. Legal Rev. 93 (2025).

faced by universities, libraries, and ed-tech platforms. This step would not only strengthen the right to knowledge and education but would also safeguard the commercial interests of authors and publishers.

3. Encourage Transformative Uses

Presently, the Indian copyright law does not openly acknowledge the concept of transformative use, that is, creation that significantly adds new features, explanation, or value from the existing one, and not just a simple replacement. Those are precisely the ways through which the new works come into existence, e. g. , by making use of parody, remix culture, data mining, and AI training datasets, and these new works are the ones that facilitate public discourse and knowledge growth. Simply by utilizing transformative use as a base principle, the courts in India would be in a better position to separate the cases of illegal copying from the ones of social-beneficial inventions.

40 Besides, this would also mean that those artists from derivative and experimental works would have a stronger support to their creations, which is likely to result in the increase of creativity and entrepreneurship in both cultural and technological fields.

4. Promote Harmonization with International Standards:

Align India’s copyright exceptions with international best practices under the Berne Convention and WIPO Copyright Treaty to facilitate cross-border educational and research activities.41

5. Judicial Guidelines for Consistency:

Even when exceptions exist in the statute, courts in India often interpret them inconsistently, leading to uncertainty. For example, different High Courts have taken divergent approaches to fair dealing in educational contexts (e.g., the DU Photocopy case). Issuing judicial guidelines possibly through a Supreme Court authoritative ruling or Law Commission recommendations would help harmonize interpretation across jurisdictions.42

40 Susan Bielstein, Fair Use and Its Users, 52 Cinema J. 127 (2013).

41 Ayush Sharma, Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or Lex Ferenda? 14 J. of Intellectual Property Rights 523 (2009).

42 Protection of Literary and Artistic Works, Sept. 9, 1886; WIPO Copyright Treaty, Dec. 20, 1996.

Such guidelines could set out factors (similar to the U.S. four-factor test for fair use) to evaluate fairness, such as: • the purpose of use (commercial vs. educational), • the nature of the work, • the amount used, and • the effect on the market Uniform standards would promote predictability and reduce unnecessary litigation.

CONCLUSION

The comparison of U. S. fair use with Indian fair dealing clearly indicates the difference in the scope and applicability of the two concepts. Whereas the U. S. fair use doctrine permits the use of copyrighted works in a manner that is transformative, educational, and innovative, the fair dealing framework in India is still quite inflexible and consequently restricts the use of works in the digital and educational sectors. The interpretations of judges in India, who are bound by the list of purposes in the statute, are often resulting in a plethora of conflicting decisions and a lack of certainty.

Amending the restrictions in Indian copyright law to reflect more flexible, purpose driven provisions, acknowledging the use of transformative works, and offering more clear judicial directions for decision-making would be the means of spurring creativity, fostering wider accessibility of knowledge, and striking a better balance between the rights of authors and the public interest. Besides, such reforms would constitute a stronger intellectual property regime in India, diminish the amount of litigation, and facilitate the activities of educational and research sectors in the digital era.