Fair Use vs. Fair Dealing: A Missed Opportunity for Creativity in India?

The doctrine of "fair use" in the United States is often hailed as a flexible and creativity-enabling legal principle - one that operates on an open-ended, contextual evaluation of purpose, nature, amount, and market impact. 

This four-factor test is at the heart of American copyright jurisprudence and offers a legal breathing space for transformation, remixing, critique, commentary, and even satire.

In contrast, Indian law is often said to follow a stricter approach, via the "fair dealing" framework under Section 52 of the Copyright Act, 1957. This provision offers what appears to be a closed list of permitted exceptions -criticism, review, research, reporting of current events, etc. - which ostensibly narrows its application.

But does it really?

On a closer look, many of the enumerated exceptions under Section 52 are themselves wide and open to interpretation. “Research,” “criticism,” “review” - these aren’t rigid boxes. Their breadth depends entirely on judicial reading.

It must be borne in mind that Indian courts have shown signs of flexibility. Consider the application of the de minimis doctrine - where courts disregard trivial or insignificant uses of copyrighted content. Mohak Mangal anyone? Notably, in deploying the principle of de minimis, Indian courts have often relied on reasoning remarkably close to the U.S. four-factor test.

This leads to an important insight: even if the statutory design of Indian law appears narrower, the actual judicial outcomes may not be as far apart from U.S. results as one might imagine. The legal reasoning may differ - but the conclusions may, in some instances, converge.

Which then begs the question: If Indian courts may arrive at similar outcomes, then why retain a system that gives the impression of rigidity?

This isn’t just an academic musing. There’s a real cost to be considered here. 

The American "fair use" idea, by design, fosters a culture of transformative creativity - sampling, remixing, parody, educational reinterpretations, and even meme culture thrive because of it. 

The Indian regime, even if judicially flexible in practice, doesn’t signal that same openness. That perception alone might deter creators, educators, and technologists from innovating with existing content. 

So if one were to convince oneself that in all "soft" or even "hard" cases, Indian courts would invariably find infringement where U.S. courts would lean toward fair use - it would raise genuine concerns about whether we’re stifling our own creative economy unnecessarily.

There is scope here for deeper study - and perhaps policy recalibration. A comparative legal paper highlighting these nuances and case law divergences might help clarify the air and even inform potential amendments. Necessity of this study is greater especially when India wishes to foster a 21st-century copyright regime that aligns with a global creative economy and the realities of digital-first cultural expression.

Do Indian creators have it harder as compared to American creators because of the idea of "fair dealing" in Indian copyright regime.