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‘Fair Use’ Exception in Copyrights



Affirmative defense to a copyright infringement action is fair usage. It could be used to prosecute all sorts of unauthorized use of copyrighted content in any medium. In certain cases, the fair use exemption allows a party to use a work without the consent of the copyright owner and without compensating the copyright owner.Criticism, comment, news reporting, teaching, scholarship, and research are all examples of activity that may qualify as a fair use according to the copyright law.

The work’s effect on the existing and potential market should be ‘de minimis’ or in pursuit of socially valuable goals, or both.They must also meet the cumulative three-step criteria enshrined in the Berne Convention and reaffirmed by the TRIPS Agreement, which states that use must not conflict with the work’s usual exploitation and must not unreasonably impair the copyright holder’s legitimate interests. Fair use must be considered as an exception to the owner’s exclusive right, not as permission to copy.

Fair use isn’t a one-size-fits-all formula or the existence of a watertight compartment. Its parameters aren’t specified in any way. Because there is no clear cut rule for deciding whether a specific use is “fair use” or an act of infringement, each use must be assessed on its own merits. It’s similar to an undefined legal philosophy. In the event of an infringement lawsuit, fair use might be used as a defense.

Fair use is not a ‘license,’ but rather a privilege that allows someone defending against a copyright infringement complaint to avoid the clutches of copyright law.

In each situation, a court will consider the following factors in assessing whether a particular use of a work is constituted a fair use:

(1) The intention and character of the use, along with whether it is commercial or educational;

(2) The characteristics of the copyrighted work;

(3) The quantity and substantiality of the portion used in relation to the copyrighted work overall; and

(4) The effect of the use on the copyrighted work’s potential market for or value.

Each of these elements is addressed briefly below.

  1. Intention and character of the use

In the past, the first factor has played a key role in determining fair usage. In recent cases, its function appears to have risen considerably, to the point that it may now be the primary rationale for a decision of fair use. The first consideration is whether the information will be used for commercial or educational objectives.On the surface, this study does not appear to be overly complicated. However, a relatively recent concept known as “transformative use” has been added into the first component throughout the years. Transformative uses are those that contribute something new to the work, such as a new purpose or character, and do not replace the work’s original usage.It is nearly usually judged to be a fair use if the usage is found to be transformative. The border between the types of alterations that fall under the derivative use right and those that are considered transformative use has become increasingly blurry in recent years.It’s safe to state that this is a developing area of the law that has further complicated the already muddled notion of fair use.

  • Characteristics

This is the least complex of the four fair use considerations, making it the easiest to assess. The more original a copyrighted work is, the more probable a fair use determination will be made. This element supports the copyright owner when the copyright work being utilized is a work of fiction, but it favors a fair use decision when the work is a factual work.This aspect is also influenced by the work’s publication status. The use of a copyrighted work that hasn’t been published is less likely to be considered fair.

  • The quantity and the substantiality of the portion used

This factor examines how much copyrighted work was used in relation to the total amount of copyrighted work. This element will favor a finding of fair use when the amount used is small in comparison to the copyrighted material. When the amount used is large in relation to the copyrighted work, on the other hand, this aspect will favor the copyright owner.

There are numerous significant considerations to make here:

  • This element takes into account not only how much quantitative data was used, but also how much qualitative information was utilized. If the section used was the “essence” of the work, for example, this aspect will certainly count against a determination of fair use, even though the portion was however a minor amount.
  • Traditionally, it was considered unethical to use a complete work. However, there have been a few recent incidents that have cast doubt on this notion.
  • This sum is calculated in regard to the copyrighted work and not the allegedly infringing work. As a result, it makes no difference whether the amount used is a small or big percentage of the allegedly infringing work.
  • Effect of the use

This has always been the most important of the all fair use factors. This may no longer be the case, as current court decisions have focused on whether the usage is regarded “transformative” under the first fair use criteria.This factor evaluates not only whether the defendant’s actions may impair the existing market, but also whether the use may damage market opportunities that the copyright owner could exploit if the usage were to become extensive.


It can be reasonably inferred that the standard for determining whether a copyrighted work is a Fair Use of such work varies from case to case because the circumstances must take precedence over the law.Although this legislature has endeavored to make law on this idea more flexible yet precise, section 52 of the Copyright Act, 1957 provides a legitimate basis for the audience to rely on this regulation for the time being in India.India has been able to establish a proper ground as of now under Article 13 of the TRIPS because the whole idea of having an exception against copyright protection is to foster creativity and growth that can be transformed and expressed in many other new ways, in order to encourage people to achieve such levels of creativity while paying careful attention to the original copyrighted work.


Contributed by:– Nidhi Jha, Legal intern at LLL

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