Adv. Gayathri S.B., Inter University Centre for IPR Studies, Kerala
ABSTRACT
Fair dealing operates on a closed list of purposes, meaning that the permitted uses of copyrighted material are explicitly defined by law. The specific purposes allowed can vary slightly from country to country within jurisdictions that use the fair dealing doctrine, fair use operates in an open list of purposes which is determined by a general set of principles and a four-factor test. The distinct social, economic, and cultural conditions of a developing country must be considered when deciding which model is better suitable. India's copyright policy has been affected by its historical ties to English law, which has resulted in the country adopting a fair dealing approach akin to that of the United Kingdom. Like the EU and UK, India has a thorough list of uses that are not considered to violate copyright under Section 52 of the Indian Copyright Act 1957.It means that India is following the fair dealing approach, rather than a fair use approach. Even though Indian Copyright law is more inclined towards the fair dealing, the approach by Indian Court is something different. The Indian courts have developed three criteria to determine fairdealing because the Indian Copyright Act 1957 does not define it. These are: "“The Amount and Substantiality of the Dealing, Purpose, Character (and Commercial Nature) of the Dealing and Effect on the Potential Market: Likelihood of Competition."1It is interesting to note that these elements align with the fair use standards established by law as restrictions on exclusive rights under US Copyright Code, Section 107.2 This paper tries to analyze how the fair dealing provisions tries to explore the various provisions of fair dealing in India and how it helps in the accessibility of copyrighted works especially in this digital age.
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