Fair Use or Fair Abuse?
Exploring the Prevailing Tensions Between Academic Freedom and Copyright Abstract
The doctrine of "fair use" serves as a vital bridge between protection of copyright and the furtherance of academic freedom. In India, unlike the U.S., fair use is ambiguously defined, with Section 52(1) providing a broad set of exceptions. Further, there is limited judicial clarity as courts are adopting variable approach suited to facts and circumstances and the guidelines in this regard. This essay aims to streamline jurisprudence in this area by categorising possible classes of reproduction in terms of nature and manner of reproduction. A category-wise examination will offer clarity through a critical and objective lens to distinguish fair use from copyright infringement. Central to this exploration are issues of substantiality, functionality, and the extent of use. The extent of use is connected particularly to digital content sharing. With the advent of platforms increasingly sharing copyrighted materials at scale and coming up of a recent US Judgment against Internet Archive, questions about legality of similar websites in India have arisen. The essay makes a distinct case, either in favour or against the satisfaction of fair use doctrine at the touchstone of a conjunctive test of made of recognised factors. The essay seeks to alleviate the prevailing tensions between academic freedom and copyright. It tends to find out a balanced approach which addresses interests of both, the authors as well as academicians. Such an approach could align the rights of authors with public access to knowledge, striking a meaningful equilibrium between innovation, information freedom, and copyright integrity.
The intersection between copyright and education is multidimensional. While education empowers public, copyright is a sign of such empowerment. As integral it sounds in theory, so intricate is its application which requires a fine balance to ensure that exclusive right of copyright doesn’t come in the way of right to education and vice-versa. Copyright, which is sometimes misunderstood as merely a contractual or legal tool, is equally a socio-economically significant tool1 thus education cannot be held to override copyright in the event of conflict.
1 1. Balganesh S, Wee Loon N-L, Sun H, eds. The Cambridge Handbook of Copyright Limitations and Exceptions. Cambridge University Press; 2021.
The test of “fair dealing”, used synonymous to “fair use”, is not well defined in India unlike in other jurisdictions like U.S. where statute lays down a four-prong test to assess fair use. In India, section 52(1)(a) entails a general exception and other clauses (h), (j) and (p) entail exceptions specifically to facilitate use of copyrighted works by students, academicians and others in pursuance of education and research or other such similar fair uses. The provision was broadly drafted to confer huge scope to suitably apply it suitably to the factual matrix.2 However, it has in practice led courts to apply the doctrine varyingly. Resultantly, there is vagueness in understanding of the provision and application of the doctrine to specific situations. It has been observed that there are different factors have been relied on by courts to assess fairness of usage and different weightage has been given to these factors on a case to case basis.3 The most landmark ruling in this context, the Chancellor of Oxford University & Ors. v Rameshwari Photocopy Services4, by the Division Bench of High Court held the breadth of course of instruction wide enough to exempt the act of issuing photocopy of course pack. The course pack in the case was a tailormade compilation of relevant portions of books. Although the reasoning in the judgment clearly suggests a liberal approach, it runs short of answering surrounding relevant questions like the role substantiality of copyright protected work and functionality of the reproduced work plays in the fair use assessment.
The advent of the internet and other technological advances has raised a pressing question: platforms are now reproducing content for the public without authority to publish. Consequently, academicians enjoy easy access to vast volumes of content. This method of handling copyright-protected works risks causing significant losses for authors, regardless of whether the person reproducing the work profits. The question of how far reproduced work should be accessible under fair dealing remains speculative, as there is no authoritative ruling on the matter.
Notably, a recent U.S. judgment has drawn global attention in the ongoing debate on the legality of websites providing free access to copyrighted works. The ruling denied fair use protection to Internet Archive, a nonprofit digitizing and lending copyrighted books.5 While examining recent trends in comparative jurisdictions, it is evident that reliance should be placed on educational purpose while upholding the copyright integrity of authors, especially when they
2 Report of the Joint Committee on Copyright Bill, 1955 < https://spicyip.com/wp- content/uploads/2020/04/Report-of-the-JPC-on-the-Copyright-Bill-1955-Nov.-14-1956.pdf>.
3 Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. & Another , 2011 (45) PTC 70 (Del.) at
pp. 88-89
4 The Chancellor, Masters and Scholars of the University of Oxford and Ors. v. Rameshwari Photocopy Services & Ors., (2016) 16 DRJ (SN) 678.
5 Hachette Book Group v Internet Archive, 664 F.Supp.3d 370 (S.D.N.Y. 2023).
suffer economic harm that dilutes their copyright. This conflict between copyright holders and academicians has led to speculation on the fate of similar websites in India. Whether this reasoning will resonate in India, where platforms like Sci-Hub and LibGen present similar challenges, will be explored in this essay.
All these questions raised above can be divided and sub-divided in form of following issues:
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Issue of Substantiality: Whether it is permitted to reproduce entire work in the course of instruction?
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Issue of Functionality: Whether it is permitted to reproduce a work that falls outside course of instruction?
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Issue of Extent: Whether it is permitted to provide access to a reproduced work to the public at large?
The fair use doctrine finds mention in the Copyright Act as follows:
“(1)The following acts shall not constitute an infringement of copyright, namely:
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a fair dealing with any work, not being a computer programme, for the purposes of— (i)private or personal use, including research;
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criticism or review, whether of that work or of any other work;
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the reporting of current events and current affairs, including the reporting of a lecture delivered in public.”
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As the provision is indicative and non-exhaustive, courts have broken down the provision and carved out some factors requisite to fulfil the criteria of fair use. The factors found to be commonly adopted6 can be condensed as follows:
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the purpose of the use as to whether it is primarily to make profit or to meet the objective of education or research;
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the effect of the use upon the potential market for or value of the copyrighted work;
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the substantiality of the portion used in relation to the copyrighted work as a whole.
Scrutiny of Issues by virtue of fair-doctrine test
It is pertinent to scrutinise the issues of substantiality, functionality and extent in light of the three factors stated out above. However, in reference to the third factor, it is an established fact
6 Blackwood and Sons Ltd. and Others v. A. N. Parasuraman and Others , AIR 1959 Mad 410; Civic Chandran v. Ammini Amma , 1996 Patent and Trade Mark Reporter 142.; Hubbard v. Vosper (1972) 2 Q.B. 84 (C.A.) ; Sony Corporation v. Universal City Studios, Inc., 464 US 417 (1984) .
now that if there are changes made in the reproduced work, by addition of criticism, commentary or review or otherwise, the transformed use may be deemed to be a fair.7 Here’s a refined version of the text:
To examine the issues related to restrictions on fair use for academicians, we are assuming that the reproduced work is an exact replica of the original, used solely for educational purposes, and not in a way that gives the impression that the academician is the author or copyright owner. In any event, if an academician uses the work in a manner that creates such an impression, they would not be entitled to claim the defence of fair use.8
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Issue of Substantiality: Whether it is permitted to reproduce entire work in the course of instruction?
The purpose of the use:
Section 52 (1)(i) of the Act unconditionally exempts reproduction of work by a teacher or pupil in the course of instruction. There is no stipulation that permits only a portion of the copyrighted work as a whole in the course of instruction. Thus, commercial or non-commercial application makes no difference. In absence of any ambiguity, assuming that employment of commercial means is not protected will be contradictory to legislative intent.
The potential to affect the market of copyrighted work:
On similar lines, presuming that when the potential market is affected by the act of reproduction, the same is not protected, would be against legislative scheme. Further, the market or value of the copyrighted work in practicality will not be hit if the subject matter of the work is one that forms part of instruction. The reason is that in every such institution, where the two parties, teacher and pupil, are involved, there will be a defined syllabus of instruction. These subject matters typically will be those which are popularly recognised and adopted in giving instruction and thus, sources on these subject matters are most likely to have a huge
7 Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. & Another , 2011 (45) PTC 70 (Del.) at
pp. 88-89
8 The Copyright Act, 1957, (Act 14 of 1957), s. 51; Directive 96/9/EC of The European Parliament And Of The Council, art. 6.
market. Therefore, a dereliction causing negative impact on potential market is immaterial in the case of reproduction of entire work in course of instruction.9
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Issue of Functionality: Whether it is permitted to reproduce a work that falls outside course of instruction?
Reproduction of a copyright shielded work outside course of instruction can be divided into two categories: 2.1 within topic of instruction and; 2.2 outside topic of instruction.
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These are those works which are although not covered in the course of instruction but they fall within the purview of the topic of instruction. For instance, in course of instruction of the subject of labour law, there is possibility that the Maternity Benefit Act, the Plantations Labour Act have not been touched upon by the teacher in the course of instruction. However, these Acts will be covered within the topic of instruction, that is Labour Law.
The purpose of the use:
A material that falls outside course of instruction but falls within the ambit of the topic of instruction is still a good material in pursuance of instruction. To cover everything within the course of instruction for a teacher when they are instructing on a topic to student(s) is nether possible due to time and other constraints, nor is it imperative due to significance of self-study prospects of the student(s). It can be said that the purpose of education, is not vitiated only because the reproduced work falls outside the course of instruction if it is part of the topic of instruction. Moreover, affording protection to it aligns with the legislative intent behind course of instruction.10
The potential to affect the market of copyrighted work:
It is proposed that the market or value of a copyrighted work is not likely to be hit if the subject matter of the work is one that forms part of topic of instruction. It is so because as proposed
9 Sony Corp. of Am v. Universal City Studios, Inc. , 464 U.S. 417, 449-50 (1984) ; Bill Graham Archives, 448 F.3d at 613.
10 Report of the Joint Committee on Copyright Bill, 1955 < https://spicyip.com/wp- content/uploads/2020/04/Report-of-the-JPC-on-the-Copyright-Bill-1955-Nov.-14-1956.pdf>.
earlier, the topics of instruction will be those which are elementary for scholarship. Hence, most of them are most likely to belong to a recognised and mainstream field and thereby have a decently running market. Therefore, although market of copyrighted work would be negatively affected, the effect is not severe enough to disallow students from accessing content other than taught for sake of better understanding of the topic. Alternatively, it will defeat the very motive to facilitate education under the common law principle from which the fair use doctrine evolved.
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Outside the topic of instruction
Use of copyrighted work outside topic of instruction can be classified into two categories; that is: 2.2.1 related to the field of instruction and; 2.2.2 unrelated to the field of instruction.
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Related to field of instruction
A material related to the field of instruction can be understood as that which in recognised so general public opinion. For instance, law school may provide a facility for physical photo-copy or digital photo-copy from its portal to students to books on laws not at all touched in instruction. They may be on general topics ranging from a book on how to moot or write a judgment to a simplistic handbook on how to write an answer.
The purpose of the use:
Although these materials fall outside the purview of section 52(1)(i), they should be exempted from liability because all these materials are related to topic of instruction and thus, attract protection under section 52(1)(a). It is well settled that fair dealing under section 52(1)(a) can take form of criticism, comment, news reporting, teaching, scholarship, or research. In the present times, it is universally recognised that education should be approached holistically and comprehensively. Use of such materials by academicians ultimately indirectly aid education in the particular field and they facilitate participation in extra-curricular activities undertaken by students independent of institution. The purpose of imparting education cannot be extracted from accessing these crucial materials. Therefore, regardless of commercial benefits accruing
out of reproduction, say by photo-copy, the purpose of education should be regarded as by and large met.11
The potential to affect the market of copyrighted work:
The market of copyrighted works is not undermined in case of materials related to topic of instruction. Rather, usage of these materials gives an indirect impetus to market of copyrighted works. It is so because books on materials which are only related to the syllabus of instruction are likely to remain unnoticed if they are not associated with the mainstream topic of instruction. These books are likely to come to light only under the shadow of the topic of instruction leading to demand of these books. Thus, the little harm caused because of commercialisation due to reproduction is outweighed by the positive benefit rendered by dissemination.
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Unrelated to the field of instruction
A material unrelated to the field of instruction can be understood as all those materials which are recognised so in general public opinion. For instance, law school may provide a facility for physical photo-copy or digital photo-copy from its portal to students of books on subjects like medical sciences, self-help book, comics, biography or a fictional novel.
The purpose of the use:
Using works unrelated to instruction cannot be considered fair use, as it does not advance the educational objectives of teachers or institutions, even if it may incidentally enhance knowledge. Institutions may sell unrelated material solely for profit, effectively replacing the author's role. In cases where the institution is non-profit, allowing such use still infringes on the copyright holder’s rights, particularly for authors not writing for educational purposes. For instance, a story writer’s copyright cannot be curtailed simply because they express personal ideas through literary means without an educational intent. When these works lack technical knowledge, the fair use exception for educational advancement is inapplicable and does not fall under section 52(1)(a).
11 Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. & Another , 2011 (45) PTC 70 (Del.) at
pp. 88-89; The Chancellor, Masters and Scholars of the University of Oxford and Ors. Versus Rameshwari Photocopy Services & Ors., (2016) 16 DRJ (SN) 678.
The potential to affect the market of copyrighted work
The potential harm by making use of works unrelated to the field of instruction cannot be remitted because, since the institution has nothing to do with the material, there is high probability that the institution has undertaken the act only to make money out of the market of copyrighted work. Further, in the scenario, books are not concerned with academics, like a biography, novel, since there is absence of educational institution buying the books on large scale or paying license fees to access the material online, the loss caused to the market of copyrighted work will not be set-off certainly. Hence, due to the potential of causing huge loss to the copyright holders, reproduction of unrelated works should not be permitted.
Therefore, since neither of the factors are satisfied, fair use under section 52(1)(a) doesn’t hold as a defence on matters unrelated to the topic of instruction.
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Issue of Extent: Whether it is permitted to provide access to reproduced work to the public at large?
It is pertinent to highlight at the outset that the question of extent cannot arise outside cyberspace because if a teacher or pupil reproduces work neither for private use nor for educational purpose but for providing access to the public other than those involved in academics, they are unequivocally liable of copyright infringement. However, it gets tricky in cyberspace, because while using them, provision of access meant for students through a website, the public at large automatically is bound to get access. Giving a blanket green flag or turning a red flag cannot be shown to such internet services because, it is crucial on the one hand, to utilise the merits of internet in fair usage and on the other hand, to regulate abuse of fair use.
The purpose of the use:
It is well settled that fair use should be in furtherance of educational or research purpose primarily, despite it may result into commercial benefits as a by-product.12 In that regard, the
12 Authors Guild v. Google , (Case 1:05-cv-08136-DC Document 1088), U.S. District Court, Southern District of New York, No. 05-08136; The Chancellor, Masters and Scholars of the University of Oxford and Ors. Versus Rameshwari Photocopy Services & Ors., (2016) 16 DRJ (SN) 678.
purpose of online websites can be derived from classifying them into two categories, those carried out: 3.1 for commercial purpose and those carried out; 3.2 for non-commercial purpose.
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If a platform engages in provision of service for commercial purpose, their purpose clearly fails the test of purpose of the use because it’s purpose is not one of those enlisted as a valid purpose for fair use, such as scholarship, teaching, reporting, research, etc. The purpose of commercial websites to engage in the business of running a website primarily is not subject to protection.13
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If an online platform provides free service, it’s non-commercial nature can be deemed to be in furtherance of facilitating education or research. It is so because although a website may not be maintained for educational purpose and the purpose may purely be to run a website, it has the effect of meeting educational purpose in practice. Nobody will differ on the assertion that services of government-run repositories or non-profit organisations like Sci-Hub aim to provide unrestricted access to scientific knowledge. Thus, their purpose aligns with fair use.
The potential to affect the market of copyrighted work:
An online platform causes huge loss to copyright holders because of firstly, its immeasurably wide reach and secondly, its indefinitely wide range of sources of content. Although there are pressing arguments which are sufficient to dissatisfy the test of potential to affect market of copyright holder, giving due regards to the equally pressing fruits yielded by the websites as underscored by fraternity of academicians of the country, there is an inevitable need to work out on terms with the loss incurred by copyright holders.14 To pursue the same, online platforms can be divided into two categories, 3.1 for commercial purpose and; 3.2 for non-commercial purpose.
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13 Rupendra Kashyap v. Jiwan Publishing House (1996) PTC 439 (Del) .
14 Religious Technology Center v. Netcom On-Line Communications Services, Inc. , 907 F. Supp. 1361 (N.D. Cal. 1995).
When a website generates profit from provision of its repository service, its profits are illegitimate in every legal sense. It amounts to unjust enrichment on one hand and causes denial of right of just enrichment of copyright holders guaranteed under Article 19(1)(g). Thereafter, it cannot be justified on ground of favourable consequences made to the public.
Therefore, services of platforms capitalise on content belonging to others, since their purpose is to run a business venture, and they are cause walloping losses to copyright holders whose works would alternatively be sold in the market, fail from fulfilling the test of fair use.
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It is necessary to pass the second prong that assesses potential to cause loss to satisfy the test of fair use besides satisfaction of the condition of purpose of online services that don’t commercialise the reproduction. This is the same argument that tilted the ruling against Internet Archive. Technically, the massiveness of loss holds true in the Indian economic position and its legal regime as well. However, what else is true of Indian position is that we cannot afford to restrict operation of websites like Sci-Hub and LibGen due to public interest involved. The gains enjoyed by the people of India out of their operation of these websites are humongous as data suggests.15 It is pertinent to remind at this point that we assumed before delving into analysis in this essay that the reproduction being scrutinised in this essay is without modification.
To balance the right of access and ownership, a plausible solution is proposed by further dividing the concerned work into two categories: whether the copyrighted work is: 3.2.1 in public domain; 3.2.2 not in public domain.
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The content that is readily available free of cost or at nominal fee is being referred to herein as material in public domain. This kind of content can range from classic books by popular authors widely published to an article published in a journal with easy access. If the content is available on one public platform without payment of substantial fees, there is no harm in publishing the same content on another platform. It is proposed that supply of this class of content should be entitled to protection as fair use because if it causes lesser range of loss to the market. A person
15 Singh, V.K., Piryani, R. & Srichandan, S.S. (2020), The Case of Significant Variations in Gold- Green and Black Open Access: Evidence from Indian Research Output. Scientometrics, 124(1): 515–531.
who if doesn’t get access from the online platform concerned will anyways access it from some other way as it must be in circulation since it is in public domain.
The Internet Archive judgment took a strict stance, denying protection to a non-commercial platform. In contrast, India has traditionally been more flexible in favor of fair dealing. Section 52 of the Copyright Act supports a broader interpretation, especially for educational use, given the emphasis on education amidst high illiteracy and unemployment rates. Indian courts also tend to prioritize access to knowledge, supporting a broader scope for non-commercial educational content platforms.16 This liberal approach, rooted in public interest, allows more latitude for platforms that primarily serve public knowledge-sharing needs.17 One cannot ignore public interest when it is the very foundation of evolution of the defence of fair use in common law.18
Thus, it is warranted to make an exception in favour of content in public domain in the Indian context. The end result of permitting it is eased access and not gain of access which otherwise would be lost. Thus, reproducing this category of content can be treated as an exception as fair use on the pretext of public interest.
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Another category of content is all the remaining content which is not in public domain. An online platform if gives access to content which is guarded by the rightful owner behind walls requiring payment of substantial fees has potential to vitiate the guards of paywall leading to collapse of all the sources of income generation of copyright holder. This category of content is peculiar to journals like Elsevier, Taylor & Francis Sage, etc. charging high fees for access. These reputed journals publish content meeting top-notch standards of rich quality on scientifically or otherwise crucial topics. One may argue on ethical grounds that it is unreasonable and unjust to allow a skewed dissemination of highly regarded scientific and technical information on the basis of financial capability.
However, these arguments cannot be allowed in an objective application of legal jurisprudence of copyright. Moreover, there is every possibility that permitting breach of exclusivity of copyright holders’ rights will in turn prove detrimental to the scholarship. Denial of entitlement of exclusive rights casts a sharp deterrence effect because it deprives them of the fees. It is not
16 Kartar Singh v. Ladha Singh, AIR 1934 Lahore 777.
17 Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. & Another, 2011 (45) PTC 70 (Del.) at
pp. 88-89.
18 Beloff v. Pressdram Ltd. , (1973) 1 All ER 241.
easy to pull off publication of content of higher degree without incurring high cost of time, effort and money on empirical studies, experiments and other transaction costs. Depriving them of fees will amount to deprivation of compensation and will cast a chilling effect. Hence, the exercise of publishing content not in public domain must be sanctioned.
Plausible Solution to Access Copyrighted Work not in Public Domain
It was established in the earlier section of the essay how content not available in public domain at nominal rates doesn’t satisfy the two-fold test of fair use. Public interest argument is strong but not strong enough to declare the acts of shadow online platforms in the form they exist legal. Nonetheless, there are some plausible solutions by which we can mitigate the loss of public interest. If these solutions are adopted, it will become warranted to treat the service of online service providers working on non-commercial basis as fair use. In past as well, in various instances, courts have relied on public interest to grant exception.19 There are multiple reservations for public health carved out in the patent policy as well. On similar lines, it may now be time to approach our copyright protections for education with similar commitment. These solutions offer a middle-ground solution to reconcile the interest of both, the academicians as well as authors. The solutions are discussed hereinafter.
An arrangement can be made to mandate a periodical payment of reasonable fees to the author as a charge for providing access to their works. The arrangement can be effected by private players singularly or collectively or by government to incentivise development of knowledge- rich content by scholars and spread of knowledge-rich content at the same time.
To qualify as fair use when disseminating work in public interest, modest transformations should be adopted to create a distinct purpose or presentation of the copyright protected work. Modifying the medium, reinterpreting key elements, and contextualizing excerpts within new settings can make the work serve a different role, reinforcing its public interest value while preserving fair use principles. In Authors Guild v Google20, providing scanned version to the
19 Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. & Another , 2011 (45) PTC 70 (Del.) at
pp. 88-89.
20 Authors Guild v. Google , (Case 1:05-cv-08136-DC Document 1088), U.S. District Court, SDNY, No. 05- 08136.
public in form of snippets was allowed on ground of transformed usage. This approach will promote a fair balance between respecting copyright and enabling meaningful public access to knowledge and analysis.
|
Issue (Whether it is permissible to reproduce…) |
Purpose of reproduction |
Potential to affect market |
Whether qualifies as fair use |
||
|
An entire work in course of instruction? |
✅ |
✅ |
✅ |
||
|
A work outside course of instruction? |
But within the bounds of topic of instruction? |
✅ |
✅ |
✅ |
|
|
And outside the bounds of topic of instruction |
But related to the field of instruction? |
✅ |
✅ |
✅ |
|
|
And unrelated to the field of instruction? |
✅ |
✅ |
✅ |
||
|
For the public at large |
And for commercial purpose? |
✅ |
✅ |
✅ |
|
|
But for non- commercial purpose |
But if the copyright protected work is in public domain? |
✅ |
✅ |
✅ |
|
|
And if the copyright protected work is not in public domain? |
✅ |
✅ |
✅ |
In conclusion, the evolving nature of fair use highlights the delicate balance between academic freedom and copyright protections. While fair use supports educational and research needs, the rise of digital platforms has fueled debates over "fair" reproduction. Key issues—substantiality, functionality, and extent—show that educational benefit must be balanced against copyright holders' financial interests. The U.S. and India address this balance differently, reflecting diverse views on fair use and fair dealing. India’s liberal stance keeps platforms like Sci-Hub and LibGen both controversial and valuable for scientific research access, despite potential market losses for publishers.
This essay classifies online platforms as commercial or non-commercial based on purpose. Commercial platforms, which profit from copyrighted content, infringe fair use by prioritizing financial gain over education, disrupting markets and undermining authors’ rights. In contrast, non-commercial platforms that provide free access for educational or research purposes are viewed more favorably, although they still impact the academic content market. Despite aligning with educational fair use, these platforms can reduce rightful compensation for authors and publishers. The essay stresses the need for nuanced regulations to mitigate economic harm while ensuring fair access.
A viable solution involves a middle-ground approach, such as reasonable compensation for creators or transforming educational use in ways that add value. This would balance public interest with authorship rights, preserving accessibility for academic innovation. Such a balanced framework would support academic progress while upholding creators' rights, fostering sustainable knowledge sharing. Online platforms are not virtual photocopy shops; rather, they serve as libraries in cyberspace.