Fair Dealing in India
Kartavya Desk Staff
Syllabus: Governance & IP rights
Source: IE
Context: A copyright and defamation dispute between ANI and YouTuber Mohak Mangal has raised critical questions on India’s ambiguous fair use laws in the digital era.
About ANI vs Mohak Mangal dispute:
• ANI filed multiple copyright strikes against Mohak Mangal for using short ANI video clips in at least 10 of his YouTube videos.
• Mangal countered these claims citing fair dealing, accusing ANI of extortion and misuse of copyright provisions.
• ANI additionally filed a case on trademark infringement, defamation, and disparagement, and sought removal of certain videos and tweets.
About Fair Dealing in India:
• What is Fair Use (Fair Dealing)?
Fair dealing, defined under Section 52(1) of the Copyright Act, 1957, permits limited use of copyrighted material without permission. It applies when the purpose is educational, critical, journalistic, or research-based, ensuring balance between creators’ rights and public interest.
Criteria for Fair Use (Qualitative Factors):
• Purpose of Use: When the intent is to inform, educate, or critique—such as in journalism or parody—the use is more likely to be fair. Commercial exploitation or content meant to mislead would fall outside the scope of fair dealing.
• Nature of Work: The use of factual, published, or publicly accessible works tends to be more permissible than unpublished or highly creative works.
• Amount Used: Using small, necessary portions increases the chances of fair use, but even short clips can infringe if they capture the essence of the original.
• Market Impact: Fair use is invalidated if the copied content harms the original’s revenue, substitutes the original, or diverts its audience. The greater the economic loss to the copyright holder, the lesser the chance of qualifying as fair dealing.
Example: In TV Today vs NewsLaundry, limited use of video clips was accepted under fair use since it neither caused financial loss nor undermined the original broadcast’s value.
Other IP Instruments in news:
• Trademark Disparagement: This refers to using a registered trademark in a way that damages its image, credibility, or public perception.
In this case, the Delhi High Court asked Mangal to delete remarks seen as harming ANI’s brand reputation.
• De Minimis Doctrine: Under this principle, minor or trivial uses of copyrighted material may not attract legal scrutiny.
Need for Fair Use Clarity in India’s Digital Ecosystem:
• Digital Expansion Demands Legal Precision: With over 850 million internet users and thousands of content creators, digital India needs clear fair use boundaries.
• AI-Based Takedowns Ignore Indian Law: Global platforms like YouTube apply U.S. DMCA protocols, bypassing Indian copyright exceptions. This often results in wrongful removals of content that would be legal under Section 52.
• Satire, Review, and Education Need Protection: Fair use shields socially relevant content like documentaries, news critique, and parody. Without safeguards, creators may self-censor or face disproportionate legal threats.
Example: Mohak Mangal’s video was taken down by YouTube under DMCA, despite invoking Indian fair dealing for public interest reporting.
Challenges in the Current Fair Use Framework:
• No Defined Duration or Scope: Indian law lacks numerical limits or time thresholds, making it hard for creators to know how much is “too much.” This vagueness increases legal risks and dependency on judicial interpretation.
• Platform-Law Discrepancy: YouTube and other platforms operate on global algorithms that don’t recognise Indian fair use clauses. As a result, even lawful content under Indian law is penalised based on foreign standards.
• Weaponization of Copyright Strikes: Rights holders can misuse copyright takedown tools to suppress criticism or extract payments.
• Low Awareness Among Digital Creators: Many YouTubers and educators are unaware of their fair use protections under Indian law.
• High Judicial Discretion and Cost: Since fair use is judged case-by-case, creators must often go through expensive litigation for clarity. Absence of consistent precedent weakens confidence in creative freedoms.
Way Forward:
• Introduce Statutory Guidelines on Fair Use: Parliament or the Supreme Court must lay down clear boundaries—like time, purpose, and market harm.
• Regulate Platform-Based Takedowns: Rule 75 of the Copyright Rules should be enforced, ensuring content restoration if no court order is obtained in 21 days. Educate Creators on Their Rights: Awareness campaigns, in partnership with civil society and digital platforms, can empower users.
• Develop a Uniform Judicial Doctrine: A standardised fair use test from the Supreme Court or Law Commission will ensure predictability.
• Penalise Misuse of Takedown Systems: There should be strict consequences for entities that file malicious or repetitive copyright strikes.
Conclusion:
India’s fair use regime offers valuable flexibility but suffers from poor enforcement and vague boundaries in the digital era. Clarity, platform accountability, and legal literacy must go hand in hand to preserve freedom of expression online. The ANI vs Mangal case is a pivotal moment for shaping copyright jurisprudence in India’s digital future.
• In a globalized world, Intellectual Property Rights assume significance and are a source of litigation. Broadly distinguish between the terms—Copyrights, Patents and Trade Secrets. (UPSC-2014)