The digital age has revolutionized news consumption and public discourse, with online platforms becoming hubs for critiquing current events and sharing diverse perspectives, often by using short excerpts (“clips”) from existing news broadcasts and other copyrighted material. This practice, while fostering a dynamic information ecosystem, lies at the intersection of copyright protection and freedom of expression. A recent dispute between a major news agency and online commentators has brought India’s “fair dealing” doctrine to the forefront, questioning its application in the digital realm. This article examines fair dealing under Indian copyright law, focusing on short clips in news reporting and online commentary, supported by judicial precedents, and offers suggestions for navigating copyright issues.

Understanding Fair Dealing in India: Section 52 of the Copyright Act

Section 52 of the Copyright Act, 1957, outlines acts not constituting copyright infringement. Two clauses are crucial for news and commentary content creators:

• Section 52(1)(a)(ii): Permits “fair dealing” with a work for “criticism or review, whether of that work or of any other work.”
• Section 52(1)(a)(iii): Permits “fair dealing” for “the reporting of current events and current affairs, including the reporting of a lecture delivered in public.”

Critically, Indian law specifies that “fair dealing” is purpose-specific. Unlike the US “fair use” doctrine, Indian law requires the use to align with one of Section 52’s enumerated purposes for the fair dealing defense to apply.

What Constitutes a “Fair” Dealing?

The Act doesn’t define “fairness”. Courts evaluate cases considering four factors:

1. The Purpose and Character of the Use:
   • Does the use fall under a permitted purpose (criticism, review, reporting current events)?
   • Is the use commercial or non-profit/educational? Commercial use can weigh against fairness but isn’t an absolute bar, especially if the use is transformative.
   • Is the use transformative? A transformative use adds new meaning or insight to the original, rather than merely reproducing it. For instance, using a news clip for analysis or counter-narrative is transformative; re-uploading with minimal commentary isn’t.
2. The Nature of the Copyrighted Work:
   • Fair dealing applies more liberally to factual works like news reports than to highly creative works, due to public interest in disseminating facts.
3. The Amount and Substantiality of the Portion Used:
   • This involves quantitative (length of clip) and qualitative (importance of the portion) assessment. Using a small portion can be substantial if it’s the “heart of the work.”
   • No fixed numerical limits exist. The necessity of the amount for the transformative purpose is key.
4. The Effect of the Use on the Potential Market or Value of the Copyrighted Work:
   • If the new use substitutes the original, harming its market, it’s less likely fair. Uses that critique or comment, potentially driving viewers to the original, are less likely seen as harmful.

Key Judicial Insights on Using Clips

Indian courts have provided important interpretations:

• In TV Today Network Ltd. vs Newslaundry Media Pvt. Ltd., the Delhi High Court addressed the use of short news clips by an online platform for critiquing news reporting. The court found that using “very short clips” for critique, which didn’t substitute the original broadcast, supported fair dealing. It noted the difficulty in arguing that short clips were a “substantial portion” when the aim was critique. This case is significant for online commentary.
• The Delhi High Court in India TV Independent News Service Pvt Ltd vs. Yashraj Films Pvt Ltd applied the de minimis non curat lex principle (“the law does not concern itself with trifles”) to excuse brief, non-commercially exploitative musical excerpts. It also affirmed fair dealing for brief, transformative excerpts by news channels for critique or reporting, if not a substitute for the original. This highlights that minimal, contextually relevant uses can be permissible.
• Conversely, in Super Cassettes Industries Ltd vs. Chintamani Rao (Delhi High Court, 2011), broadcasting entire songs or substantial portions under the guise of news reporting was held to exceed fair dealing. Use of copyrighted material in news must be incidental, not a device to attract viewers.
• The Bombay High Court in Shemaroo Entertainment Limited v. News Nation Network Private Limited (2022) rejected fair dealing and de minimis defenses where a news channel used copyrighted films after its license ended. The court considered licensing history and the defendant’s failure to prove genuine news reporting purposes, showing mere assertion of fair dealing is insufficient and prior conduct matters.

The “Substantiality” Conundrum: How Much is Too Much?

As the Newslaundry case reinforced, Indian law doesn’t set maximum clip lengths. “Substantiality” is primarily qualitative. A short clip can be infringing if it captures the original’s essence. A longer portion might be justifiable if essential for transformative critique and not a market substitute.

De Minimis Use: Navigating the Threshold of Triviality

The de minimis doctrine means the law overlooks trivialities. Certain minimal uses of copyrighted material might not be actionable infringement. Indian courts have sometimes invoked this, especially for fleeting, incidental uses unlikely to impact the original work’s value. The India TV Independent News Service case acknowledged that very brief music excerpts in news might be de minimis if incidental and non-commercial. However, brevity alone isn’t a guarantee; a short excerpt can infringe if it captures the work’s essence. Online, where brief excerpts proliferate, distinguishing trivial use from substantial infringement is complex, and automated moderation often misses these nuances. Creators should use even minimal portions carefully, ensuring context reflects incidental, non-substantial intent.

The Online Platform Quagmire

Platform-level copyright enforcement, like YouTube’s Content ID, scans for copyrighted material. These algorithms struggle with context-dependent fair dealing assessments, potentially flagging legitimate transformative uses. Allegations have arisen that some rights holders might misuse platform mechanisms (issuing strikes and demanding payment for withdrawal) regardless of a valid fair dealing defense, raising concerns about abuse of the takedown process.

Legal Recourse: What Can Parties Do?

1. Copyright Owners: Cease and desist notices, platform takedowns, civil remedies (injunctions, damages), and criminal sanctions (for commercial infringement).
2. Content Creators/Users: Fair dealing defense in court, platform counter-notifications, and challenging allegations in court. Section 60 allows suing against groundless infringement threats, relevant when facing demands to withdraw strikes for arguably fair use.

Navigating the Path Forward

Indian fair dealing law aims to balance copyright protection with public interest in accessing works for criticism, review, and news reporting.

For content creators and news entities using clips:

• Prioritise Transformative Use: Add new meaning or analysis; avoid simple reproduction.
• Use Minimally and Purposefully: Use only what’s necessary for your transformative purpose, directly serving critique or report.
• Attribute Clearly: Always credit the original source; it shows good faith.
• Understand and Articulate Your Purpose: Ensure use genuinely falls under Section 52 categories.

The application of copyright law in the dynamic digital landscape continues to evolve. While fair dealing is a vital exception, its boundaries are often tested. Recent disputes underscore the need for informed creators, responsible rights enforcement, and refined platform mechanisms to accommodate fair dealing nuances.

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