Fair Use Of Copyrights And Comparative Analysis Of Its Various Dimensions In Digital Era

Author: LawSphereX

Category: Technology, Cyber & Privacy

Published: 2026-08-23T19:48:34.454014+00:00

Updated: 2026-08-26T17:11:29.644+00:00

FAIR USE OF COPYRIGHTS AND COMPARATIVE

ANALYSIS OF ITS VARIOUS DIMENSIONS IN DIGITAL

ERA

Pawan Kumar, Research Scholar, Department of Law, Central University of Karnataka Dr. Anant D Chinchure, Assistant Professor, Department of Law, Central University of Karnataka

ABSTRACT

A right in intellectual property gives uninterrupted power to its authors and

creators for utilization and beneficial enjoyment from economic and other perspective. Ownership leads to many dimensions of rights in such work which after statutory recognition protects its interest over such object and creation. Appreciation of intellectual work leads to promoting economic growth and development in science and technology. It is important to protect the creator's work and the fruit of his mental labour same time it is also required to effectively provide a way for constructive use of that work by masses up to an extent without infringing the rights of an author and creator. Fair use or fair dealing is provided in almost every dimension of copyright which allows its use in good faith by the stakeholders in many circumstances. Digitalised content in growing technological innovation also need same protection under copyright law.

Easy accessibility of digital content raises the concern. Protection of work in copyright provides a time duration under which its uses belong completely to its author and creator which also provides some general right for its fair use or dealing by others. This paper attempts to analyse different dimensions of fair use or fair dealing in different statutes of copyright in digital era and also to critically examine them for available means of its prospective use without any infringement. Keywords: Intellectual property, copyright protection, economic importance, fair use, Infringement of rights, statutory recognition.

“There can be no Liberty unless there is Economic Liberty”- Margaret Thatcher Introduction Fair use of intellectual property strengthens and enhances the knowledge system in various areas. Intellectual minds cultivate and maximize the accessibility of limited resources. It encourages those stakeholders to have limited access to the exploration of intellectual ideas and their expressions in different fields of knowledge. It is a statutory right to use, for a limited extent, any work or creation without first obtaining the holder's permission for such right. Fair use or dealing is an affirmative defence for the infringement of the protected work of its creator. It is provided to defend commentary and criticism in the existing knowledge, the right to produce for comparison and contribute to the existing information.

Digitalization in every sphere of copyright law makes it more accessible to the people. The copyright domain has faced new challenges after the advent of new technology and Artificial Intelligence. 1 Digitalization of the content allowed contenting developers to have accessibility to work belonging to others. These contents are globally accessible, which requires attention from policymakers. However, human rights considerations cannot be overlooked, so there must be a balance between the author and its beneficial users. Whenever any question arises about using someone else's work or creation, it is to determine whether its use is for commercial or noncommercial purposes. Commercial use of any work is considered an infringement of rights, whereas non-commercial use can be considered fair use.

However, it is easier to find infringement from the work which published but from unpublished work, it is more difficult to establish infringement2. India Fair dealing finds an essential place in copyright law, which originated as the doctrine of equity in the interest of individuals seeking access to copyrightable work. Indian copyright law does not define fair dealing but provides its impression in the Statutory Copyright Act 1957 u/s 52. Indian copyright law provides extensive protection to the author or creator in different fields, such as work in literature, art and craftsmanship, music work, cinematographic films, and creation, including sound recording. However, it protects the original work of an author in all

1 V.K Ahuja, Artificial Intelligence and Copyright: Issues and Challenges, ILI Law Reviews, (2020).

2‘Dr Vishal Mahalwar, “fair dealing in copyright: corollary of fundamental rights” In Dr.Priya rai, Dr. R.K Sharma et.al.(eds.), Transforming Dimension of IPR Challenges for New Age Libraries 117 (2015).

fields. However, sound recording and cinematograph films allow derivative work the same kind of protection available for the original work. The holder of a copyrighted work has a bundle of rights to exercise their dominion over their work and allows stakeholders or others to use it after obtaining prior permission, which is guided by statutory law. Protection available to the author prohibits others from making any commercial gain from that work but permits them to use it reasonably for non-commercial purposes or reference to others3. Fair dealing of copyright work might be for private study, criticism, analysis, research, compilations, reference, teaching etc. 4 however, it comes up with the task of courts to establish the work as fair dealing.

In a Case5 Church Scientology filed an infringement case against Cyril Vosper regarding a book publication criticizing specific material copied from an earlier book by L. Ren Hubbard, which had some restricted knowledge. The court of appeal decided in favour of Vosper as well defined under fair dealing. The courts find it difficult to provide uniform applicable norms for fair dealing but after examination of case laws they provide some factors to be considered as per the UK and U. S. approaches as follows-

1. The amount and substantiality of the portion used

2. Purpose and the character of use

3. Effect on the potential market

In a case6, it was establish by court that following test to determine whether the used work is fair dealing. The court emphasises the three things as commercial exploitation, publication and amount of work used or taken for any purpose specified. The amount and substantiality of the portion used for the fair purpose are less than the whole work; however, there are fewer chances to come under fair use. It depends upon the circumstances and nature of the work used. Sometimes, a substantial part of the work copied, even if it is a tiny portion of the whole work, comes under the infringement of the original work

3 Sufia Ahmed “Fair Dealing in Indian Copyright Law”26 JIPR 96(2021).

4 Copyright Act, 1999 (Act no 49 of 1999).

5‘Hubbard v Vosper (1972) 2 Q.B.84.

6 Ashdown v.Telegraph Group Ltd ECDR 32(2002).

as in the case7 where news Article quotation of 400 words from president Fords Memoir of

200000 words was considered to be sufficient as infringement because portion used was the

‘Heart of the Work’. The purpose and character of the use are considered to establish whether the work is used for commercial gain or non-profit educational purposes. It must establish how the work advances and disseminates knowledge to the people. The reviewer can cite much of the work for fair and reasonable criticism without infringing the owner's rights. It was held by the U. S Supreme Court in the case8 if the purpose of the work is transformative it is more likely to be considering as fair use. The court has to investigate the effect on the potential market and whether such use affects the business and market of the real author. However, if the plaintiff failed to establish its effect on the market, the court might consider such as fair use in some cases. In the case of Harper & Row, the U. S. Supreme Court considered this factor ‘the single most important element of fair use.

’ In evaluating the factor of effect on the potential market, the court considers two things: firstly, whether the word used is a direct substitute to the original work in the market where it is entire duplication supersedes the object of the original in the market, and secondly, the court also considers whether the potential market harm subsist beyond direct duplication of work when the availability of the licensing of the work and commercial copy Shops.

USA

There is a minor difference between fair use and fair dealing terminology. In the United States, it is used for fair use, and in India and England, it is used for fair dealing. However, under the United States copyright law, the term fair use is not defined, which is decided by the courts after examining the matter before it. In a case9, congress in the Copyright Act, 1976 u/s 107 codified fair use which covers the use of work in the way of teaching, news reporting, criticism, comment multiple copies for classroom etc. It is provided under section 107 that the court must consider the four factors for deciding whether any work is the fair use or infringement of rights of a person as follows-

7 Harper & Row v. Nation Enterprises 471 U.S 539(1985)

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

9 Folsom vs. Marsh 9. F.Cas. 342(1841).

1. Purpose and character are used.

2. Nature of the copyrighted work.

3. The amount used for such purpose.

4. Impact of the use on the market and its value.

Other factors may influence the conclusion drawn by the court in different situations in different case examine by the court it did not provide any straight jacket formula to decide the ambit of fair use as to amount and extent of work without permission to be used by a person. 10 United Kingdom UK Copyright Act 1911 explained about notion of fair dealing which again elaborated in 1956 Copyright Act. It provides for certain limited portion for the different works as events, criticism, reporting, and study. Fair dealing in UK is narrower and limited application as compare to United States fair use doctrine.

11 However, it was again emphasised by UK Copyright, Designs and Patents Act of 1988 u/s 29, 30, 33 which enhance fair dealing after addition typographical arrangement of quoted material which is in CDPA as rights of publisher must not violated if it complied with fair dealing provisions. 12 It has long been claimed that the United Kingdom should adopt the American fair use idea. Legislation in the United Kingdom has not sought to limit the precise amounts of content that may be used in fair dealing; instead, fair dealing is assessed according to whether a use falls under one of the defined areas for use after giving recognition to source and purpose is not to gain commercial benefit which affects the interest of the right holder. Dimensions of copyrighted work 10 U. S. Copyright Office Fair Use Index available at : www. copyright. gov/fair-use(visited on September 17 2023).

11 Copyright Exceptions and Fair Dealing available at: www. ed. ac. uk/information-services/library-museumgallery/library-help/copyright/copyright-exceptions-and-fair-dealing (visited on September 22 2023). 12 Lynette owen, Fair Dealing: A Concept in U. K Copyright Law, Wiley Online Library, Learned Publishing, 28: 229–231(2015).

Literary work Copyright protection is available for the original literary work in areas of academic work, research notes, short notes of cases, business letters, editorials, articles, directories, catalogues, contract forms, textbooks, and a compilation of works, etc. ; the protection subsists in the original literary work which did not concern about originality of ideas but expressions of thoughts and such expressions needs to originate from the author of copyright. 13 This fair use, such as news reporting, private study, research work, teaching, and review, is not considered as infringement. It is provided for research as systematic inquiry or investigation, and acquiring knowledge by applying the mind under expression of the same allows for private and personal research and not for industrial research.

Fair dealing also included reporting public lectures, addresses, speeches, and sermons. There must be a co-ordination between societal and individual interest. Artistic work It provides artistic craftsmanship or any sculpture or such work permanently situated in public places or places where the public has easy access to making, publishing, painting, drawing, engraving, or photographing such work. It is subject to the author's moral rights concerning dignity without harming any image and value associated with such work. Statutory law also provides for the use of any other artistic work in a cinematograph film if it is collateral to background or incidental to the main characters in the films. It is well established that to obtain a no-objection certificate from a model or a person whose picture might become an artistic work.

14 Musical work Technology has emerged with the advent of time, with new challenges for its utility. It was observed regarding musical systems where millions of individuals infringe by taking it from different mediums and devices. However, owners got right over their compositions and complete ownership to utilize their fruit of labour, including receiving royalties. Copyright in 13Civic Chandran v. Ammini Amma, PTC 670 (Ker HC) 675-677 1996. 14 Copyright Manual on Registration of Artistic works and Incidental Issues, Department of Industrial Policy and Promotion,Ministry of Commerce and Industry, Government of India.

music receives bundles of other rights as printed and recorded in a document. 15The original song is embellished, changed, and transferred to qualify as an original work. The original song's elements are added and removed from the new composition via audio mixing. According to Section 52(1)(j), the copyright owner's permission for specific changes and uses of works like music and sound recordings is required. It entails a legal license to utilize a copyrighted work in a particular manner, so long as the user pays the required payments and abides by the law. However, it is provided that it can be remixed after two years of publication by providing a certain fee to the original owner of the copyright. Cinematograph and sound recording Statutory law recognises the fair dealing in India16.

According to Section 52 (1)(za) of the Act, the performance and public communication of a musical work or sound recording during various ceremonies performed by various governmental and non-governmental institutions in India. Religious ceremonies, including marriage processions and other social celebrations connected to marriage, will be considered for this Article. Many artists employ music sampling to create, produce, and perform their works. The digital sampler, a powerful musical instrument, allows performers to create fresh song recordings by sampling typically tiny amounts of sound recordings. Since samples are typically only a small fraction of the original compositions, it is becoming more common for musicians to refrain from crediting the source of the sample or obtaining permission from the original copyright holders by the de minimis or fair use doctrines.

Challenges in Digital Era In the growing technological advancement of digital era the internet or access to digital resources for the public is easy. Copyright protection which is available in its various dimensions expands to computer programs and databases. In the digital era, its importance has increased for intellectual property readily available to the masses. There are several ways available in digital platforms. Among them, piracy is a significant concern, consisting of illicit 15Department of Promotion of industry and Internal Trade, Office of Copyright available at:www. ijlpp. com/copyright-and-music (visited on November 12 2023).

16 The Indian Copyright Act, 1957,(Act no 14 of 1957) S 52.

duplication of music, films, software, books, photos, and videos on websites. Copyright rules differ in the statutes of different nations. However, it has been witnessed in this era that significant infringements consist of piracy, infringement, and unlawful use. Copyright rules provided with prior permission from the owner have a negative right where the owner can prevent others from infringing their rights. It becomes a threat to the ownership right. 17 Internet service provides free access to the material available on digital platforms, which becomes a significant threat to the rights of the content creators, which is being violated by easy access to the same. Copyright violations on social media rapidly increased with global assistance from service providers.

Social media content is presumed accessible by users as they are involved in various activities such as reposting, storing, and re-distributing on digital platforms. However, it must be born in the mind that content available on social media does not have free access. For such reason, prior permission is the sine qua non from the author before involving such content. It is observed that to exercise these rights, they used to repost, save, share, and use the content without proper permission from the author of the content, which results in copyright infringement. The development of multimedia and technology gives an easy opportunity to generate a perfect copy of the work that belongs to others. Access to knowledge sharing on digital platform arise a threat to content and information as it originates from a distinctive source which must be recognised by users.

It’s a vast challenge for service providers to make accountancy over the content which widely available on various digital platforms. However there are policies framed by policy makers need effective check among activities over the digital platforms. It is further mentioned that there is large number of areas where access to content and use of information available on various digital platforms can be justified. Internet piracy is a significant concern in the digital era of copyright, which is spreading over the global market. Easy access to digital resources is a primary global concern in this age. Work in various dimensions of copyright is available for the general masses for a specific purpose for research and study in academic and other related fields.

Safeguarding the rights of the author is the primary concern, which can be done by the digital watermark on the content created by the authors so it can reduce the chances of the infringement of the mental work of 17 Alok kumar Yadav, “Copyright In digital era” Available at https://rmlnlu. ac. in/webj/alok_kumar_yadav. pdf (visited on january 12 2024).

the author. 18 Various social media platforms like Facebook, YouTube which have millions of users daily, share content in text, audio, video, graphics, images, photos, design, Art, etc. ; these social media platforms have their privacy policy under their disclaimer, which needs to be abided by the users so they can not infringe the content which belongs to others. Digital Millennium Copyright Act 1996 explains the infringement by AI developers using social media content. These social media platforms cannot store infringed data if they know about it, and when it comes to their knowledge, they need to take action against the person who violates their policy Artificial Intelligence and Copyright Protection Copyright protection faces some emerging issues with the advent of Artificial Intelligence in different dimensions such as literary, artistic, musical, drawing, painting, etc.

With the growing technological development, the human mind always strives towards excellence in every sphere of life. Statutes are created to recognize and protect human creations, although they are neutral when done with the assistance of artificial intelligence. However, utility in contemporary era justified Data used to AI Algorithms which is protected under copyright in United States with certain restrictions. It is the transformative use of AI data which comes under the doctrine of fair use. 19 Many innovative applications in the market, like ChatGPT, DALL. E, and others, are used by thousands of people daily. Content developed by these applications comes under the question, for which our statutory law is silent for Generative AI. Companies use the fair use doctrine to defend their transformative work.

Legal questions about their authorship still existed before AI companies, especially about their rights and the real author of the content. However, emerging ideas and their expressions are consistently recognized under transformative work by the Supreme Court. 20 When the question arises of their authorship, it always lies in the legal person given recognition by the statutory law. A machine cannot be given recognition as the author of a work; however, Neerja Chaudhary, “Digital copyright law and protection of rights” available at: https://law. dypvp. edu. in/plr/Publication/Research-Papers/Neerja-Choudhuri/Digital-Copyright-Law. pdf (visited on fabruary 15 2024). 19 Patrick K. Lin, Fairs Fair: How Public Benefit Considerations in The Fair use Doctrine can Patch Bias in Artificial Intelligence System, IJLSE, Vol 11, Issue 2, 2023.

20 Benjamin L.W Sobel, Artificial Intelligence Fair Use Crisis, 41 column, J.L & Arts 45(2017).

it can be used as a tool by the natural person who is the real author of the content. Indian copyright law does not define ‘Computer Generated Work’ but recognizes the author who created such work using the machine as a tool and is given recognition for the same. 21 Treaties and Conventions Berne convention It was the first-ever international instrument that focused on reconciling the law relating to the copyright and providing specific minimum standards to be followed by member nations to give equal protection for work within and beyond the boundaries. It also provides the convention with certain exceptions of rights to make quotations from the copyrightable work as provided under section 10(1), so it will come under fair practice when its use does not exceed the limits provided thereunder.

The beginning of the industrialization in printing sparked the protection of original works as the demand for literature increased with time for the printing of books and materials. It also leads to establishment of Hague court for settlement of disputes between the member nations. These treaties give them equal privilege to be exempt them from ambit of its jurisdiction. 22 Trade Related Aspect of Intellectual Property Right (TRIPS) Protection of copyright is now available to computer programs, including other IP protection programs with patent protection in countries like the United States. Many developing countries involve software in their multiple sectors of IT industries, hospitality, schools, hospitals, etc. The Western global market was dominated by tech giant microsoft, which provides digital platforms for significant companies to access their data with a security system.

TRIPS Agreement provides implementation of many international instruments, such as the Berne and Paris Conventions. It provides compliance of Article 1 to 21 of Berne Convention by member nations. It has been observed that member states shall comply with the minimum standards set out by the international instruments, which make attempts to reconcile and uniform the laws relating to intellectual property in different areas. It was high to provide Trans

21 Supra Note 1.

22 World intellectual Property Organisation, available at

https://www.wipo.int/treaties/en/ip/berne#:~:text=The%20Berne%20Convention%2C%20adopted%20in,whom %2C%20and%20on%20what%20terms.(visited on February 20 2024).

boundary protection to the copyright law, which also provides ways for its fair use by the member nations. The global market has become the hub of information and knowledge sharing in different areas to enhance human endeavours to access digital platforms at various levels. Time needs the regulation over these access for specified and limited purpose after giving due recognition to the original source. 23 WIPO Copyright Treaty 1996 This treaty relates to Digital technology and the internet in cyberspace, which was adopted in Geneva in 1996 by a diplomatic conference. Berne Convention Article 2 provides specific criteria for adopting digital technology in certain areas. However, this treaty provides more exhaustive rights to the authors than the Berne Convention. Computer programs were given recognition as literary works entitled to the same protection in all the member nations.

Securing the author's rights is essential as they come under economic rights. This treaty under the Berne Convention secures three rights: the right to distribution, the rental rights and communication to public. Data Compilations that involves mental labour and skill of the human mind constitutes intellectual creation and is entitled to copyright protection. Majorly this treaty covers almost all computer programs and related creations for exclusive protection for the same. 24 The Digital Millennium copyright Act 1998 This Act gives effects for the WIPO copyright treaty, which makes it more compatible with the digital copyright areas. This act has specific objectives to combat piracy prevention in the digital environment. It is also concerned with the restriction on certain materials to be taken for e-sources in digital libraries of educational institutions.

It further raises illegal copies of software using specifics used in the digital workplace. It is concerned that the liability of service providers for providing information that might not relate to copyright infringement can be accessed materials that are accessed by the faculty in educational institutions with the assistance of service providers using computer and digital platforms. This Act aligned with other related acts, but it limits the liability of internet service providers for giving access to

23 Kanika Dawar “Copyright in Digital Era” IARJSET, Vol. 8, Issue 6, June (2021).

24 World intellectual property Organisation available At https://www.wipo.int/treaties/en/ip/wct/(visited on march

12 2014).

information available on digital platforms but does not exempt them from any liability that arises otherwise. 25 Protection of Data Bases in India It is provided that in India, the databases and compilations created using mental labour and skill were protected under literary and artistic work, which required that work be the author's original creation, including computer programs, tables, and similar compilations. Literary and artistic work involves skill labour and judgement protected under copyright law. However protection recognises under section 2(o) as it subsists in original work of author including computer programs tables and compilations. It is further provided that using of infringing any computer program can be imprisonment up to 3 years for the same.

Indian courts are also recognises data basis which creates by using skill and mental labour for compilations and similar other data basis as literary work and need equal protection. It further mention compilations customers list and service render to them by devoting time, effort, and mental labour comes under the protection as literary work. 26 Conclusion and Suggestions Indian copyright law which emerge with the pertaining situations and demands in the growing advent of technological innovations strive towards protection of real author. However other social needs and human rights considerations also given emphasis to provide way for its productive use by the masses. Judicial interpretation safeguards the way for its wide applicability to the different circumstances.

Complexity in the dimensions of copyright and now on digital platform makes Indian copyright law vigilant over the emerging situations. However Indian copyright law emerge under the ages of common law but with the advancement of technology focuses on the viability to cover the contemporary issues in the different dimensions of copyright law. Some factors are the same as applied by several nations which provides by the Supreme Court in United States in different cases before it. Several international conventions provides for implementation of regulations regarding fair use of copyright. United States copyright law is 25 Copyright office of the U. S Available at https://www. copyright. gov/legislation/dmca. pdf (visited on April 20 2024).

26 Supra Note 15,

viable and grown with the technological advancement of the nation. Copyrights law striving towards achieving requisite coverage in the advent of technology. In the time of knowledge sharing beyond the boundaries on digital platform requires recognition and protection in the other nations. It has been observed that current law in India which covers different dimensions of copyright including Computer Programmes and data bases are nonviable to cover future technology modifications. Digital content uses and modes of application challenge the applicability of laws. This is required that situations must be handled with modification in regulations as time times demands and adoption of laws viable for the future technological modification must be in tune with the time.

International instruments guided the Trans boundary protection of material which provides mandates to be adopted and followed by member nations in their national laws. Transmission of work in digital platform has inherited threat of piracy and infringement which can be curtailed by provision of online licensing system for the same. Apart from this digital watermark on the content can reduce the risk of piracy and infringement. When copyright infringement occurs on digital platform then in such situation jurisdictional issues also needs to be address by the specific regulations. Thus the boundary less nature of internet needs to co-ordinated between different nations and monitored by the international organisations. There must balance in-between needs of the society and protection of author of rights in which education will be important factor in changing the scenario.

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