• Oishika Banerji

Playing it fair amidst digitalization


The doctrine of fair use or fair dealing behaves as a protective mechanism for maintaining the balance between the interests of the copyright holders and the public at large, within the copyright regime. The need for the doctrine arises because of the negative trait acquired by copyright itself. To simply the same, it can be said that copyright is often perceived as a negative right because while on one hand, it extends protection to the copyright owner, it imposes a restriction on all other individuals to use the copyrighted work without seeking permission from the owner. With digitalization knocking on the doors of the copyright fraternity, an imbalance can be noticed when it comes to maintenance between the two aims of the regime that has been brought to the light above. What this calls for is clearly a reassessment of the existing statutory protection available to both the copyright holders and the general public.


The general concern of the original creators is the ease initiated by the digital era in making information readily available for the general public to be involved in unauthorized usage of the same. Although all types of copyrighted materials have experienced nonpermissive Internet dissemination, the most affected sector has been music to date. With the birth of compressed music files like the MPEG-1 Audio Layer 3, or MP3, the Internet has become a platform for the burgeoning trading post for the purpose of song distribution. The notable case of UMG Recordings, Inc. v. MP3.com, Inc has made it clear that judicial interpretations of traditional copyright law in the cyberspace context have limited the public interest, especially as fair use has traditionally been understood.


In the year 2015, a challenging case recognized by the name of Authors Guild v. Google, Inc appeared before the Courts of Appeal. The case revolved around the Google-made electronic database that was created to function as a library and included copying of several books and journals belonging to original owners without seeking their permission. The court's observation can be categorized into the two following heads;

  • Unauthorized copying of copyrighted creations by Google can be termed as highly transformative by nature and therefore although the act was meant for commercial purposes, it was not sufficient enough to showcase denial of fair use.

  • The purpose the act carried along was consistent with the copyright law which by its very nature fails to amount to infringement.

This case brought a revolutionary change in the copyright arena as the ambit of the doctrine of fair dealing experienced a divergent calling.


The introduction of digitalization has made it necessary for the existing statutes to redefine themselves in order to be flexible enough to work it out with the growing technological intervention. In 1998, the United States adopted the Digital Millennium Copyright Act (DMCA) as a result of the revision of the Copyright Act, 1976. Followed by this, in 2001, Copyright Directive was embraced by the European Union. In recent years, Canada brought in the Copyright Modernization Act, 2012 to walk at par with the technological advancements. Although there comes no express mention of the doctrine in Indian legislations, Section 52 of the Indian Copyright Act, 1957 lists out certain acts which if carried out will not be amounting to copyright infringement. The provision incorporates computer programs among many other purposes.


The term fair use has not been gifted with an ideal definition which makes it difficult for courts across the globe to interpret it. For American copyright law, the doctrine of fair use or fair dealing is the ultimate statement of the utilitarian goal. The essence of the doctrine lies in safeguarding the existing work from infringement while providing scope for new works to prevail for the public. Not only has fair use been ignored categorically on the international level but also digital legislation at the domestic level domestic have failed to address and provide relevance to the equitable doctrine of fair use. Therefore, there comes an indispensable need to redefine the grounds on which fair use is examined in this digital age. As information flows freely through cyberspace, the role of the user has expanded and this calls for a higher level of protection for the public parallelly with the authorized owner.








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