This controversy also brings to the fore the issue of a lack of awareness about the existing copyright regime in India. Anybody surfing the Internet has come across videos from Indian content creators, where they mention S.107 of the United States Copyright Act, 1976, titled 'Fair Use' in either the description or the initial few seconds of their videos, expecting to find harbour against infringement prosecution.

Intellectual Property Rights are territorial and nature, and while Mandal's defence would stand a great chance at being covered by the doctrine of 'fair use', the same has no statutory recognition in India. With the sole intention of shedding light on the Indian Copyright regime and applicable provisions thereunder to the issue at hand, I have proceeded to write this article,

Copyright Law And Fair Dealing

Copyright Law is founded upon the intent to balance the competing interests of two stakeholders, the author/owner of a creative work, and the society at large. On one hand it grants exclusive right to enjoyment and exploitation of a creative work to its author/owner in order to incentivize authors and creators, and on the other it carves out certain exceptions to this right of exclusive use to ensure that certain dealings with copyrighted material by a user are not considered infringement, ensuring that education, scientific growth and the overall holistic growth of a society are not stifled.

Indian copyright regime, following into the footsteps of UK, has tried to achieve this delicate balance by incorporating 'fair dealings' with creative works under Section 52 of the Indian Copyright Act, 1957 (“ICA”). Section 52(1)(a) states that “fair dealing with any work, not being a computer programme” shall not constitute an infringement of copyright if done for any one of three purposes, (i)Private or personal use; (ii) criticism or review, whether of that work or of any other work; (iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.

“Work” here would encompass any original literary, dramatic, musical and artistic work; a cinematographic film; and a sound recording. While Mandal's team might foreseeably find themselves covered under one of the purposes for which Fair Dealing is statutorily protected, i.e., Section 52(i)(a)(iii), the issue of whether his use will be deemed as 'fair' will remain for the Courts to decide.

Judicial Pronouncements Guiding Fair Dealing

The ICA has specified the purposes for which a fair dealing with any work shall not constitute infringement, however, it does not define the parameters for a dealing to be considered as 'fair'. While there is no authoritative ruling that applies across India for all Courts to apply when venturing into this determination, certain High Court rulings may prove to guide, if not command, the adjudication of 'fairness' in fair dealing.

The Kerala High Court, in Civic Chandran Vs. Ammini Amma[1], laid down certain factors for determining whether a challenged usage of copyrighted material would find protection in 'Fair Dealing.' These factors are:

i. First, the courts must assess the quantity and value of the work. The court observed that although it would not be proper to lay down a hard and fast rule for covering all cases where infringement is alleged, it would be reasonable to assume that the re-production of the whole work or substantial portion of it would normally stand the scrutiny of fair dealing.

ii. Secondly, the purpose of such usage should fall under one of the three purposes stated in S.52(1)(i).

iii. Thirdly, Court would have to satisfy itself that the author of the copyrighted material would not suffer any monetary loss due to the competition between the original work and the user's work in the market.

Parameters of 'fair' in fair dealing arose for consideration in the case of Blackwood v. Parasuraman[2]. Even though the case was adjudicated based on the Copyright Act, 1911, passed by the UK Parliament that was made applicable to India, the provision for fair dealing was also included therein. The Court held that at first, infringement in the sense that the plaintiff's copyrighted material has been substantially reproduced has to be established in order to invoke the defence of fair dealing as the provision proceeds on the presumption that the mentioned act would constitute infringement if the same did not receive protection under this provision. The Court proceeded to lay down the following factors:

i. If there is a substantial reproduction of the copyrighted work quantitatively;

ii. Whether the copied portion constitutes a valuable portion of the copyrighted work.

It is only after this threshold is met that the Court would proceed to determine whether there was any 'fair dealing' of the copyrighted material.

The Defence Of De Minimis & Limited Use

In India TV Independent News Service Vs. Yashraj Films[3], a division bench of the Delhi HC was concerned with adjudicating upon the validity of the usage of the first line of the lyrics of a song owned by the plaintiff in an advertisement made by the defendant for spreading public awareness. The division bench observed that Copyright Law invites maximum trivial violations owing to the nature of the right. From a hotel waiter singing the “Happy Birthday” song to a tourist clicking a picture of a sculpture, these are acts of infringement, however, they are so trivial that they do not warrant the attention of the Court. The Court held the de minimis principle, which states that trivial and trifling matters are not to be entertained by Courts of Law, to be applicable and suited to Copyright Law owing to its aforesaid nature without considering whether the act would have constituted 'fair dealing' in the first place. The Court applied 5 factors which are to be considered together for applying the de minimis rule, which are:

i. The type and degree of harm caused;

ii. The cost of adjudication of the matter;

iii. Intent behind the legal obligation that stands infringed;

iv. The Effect of the act on 3rd party rights; and

v. The Wrongdoer's intent.

In the case of ESPN Star Sports v. Global Broadcast News Ltd[4]., the court deliberated on the limits of using copyrighted video content and weighed it against the concept of fair dealing. Although it ultimately held that unauthorized and prolonged telecast/replay of cricket match footage by the news channel (Global Broadcast News Ltd.) amounted to infringement of ESPN Star Sports' broadcast reproduction rights, but for Mandal's team and similar content creators, this case offers persuasive commentary.

The Court emphasized that “prolonged and repeated footage” cannot be excused under the garb of “news reporting.” But in saying so, it observed that limited, non-repetitive use which neither substitutes the original copyrighted work nor harms its market potential could well fall within the exception of fair dealing.

Global Platforms, Local Rules

Here, the battlefield for Mandal and ANI is YouTube — a global platform operating under local legal frameworks. YouTube's copyright enforcement is primarily governed by the US's “fair use” doctrine and stemming from the Digital Millennium Copyright Act (DMCA). However, YouTube has clarified that it does take “local rules” into account when processing copyright removal requests.

In India, those local rules would include:

• Section 52(1)(a) of the Indian Copyright Act, and
• The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, particularly Rule 3(1), which obligates intermediaries like YouTube to exercise due diligence — including redressal of copyright infringement complaints — or risk losing the safe harbour under Section 79 of the Information Technology Act, 2000.

In short, YouTube may operate under a US-centric model, but in India, it cannot ignore the statutory fair dealing exceptions and compliance requirements under Indian law.

Having visited the applicable copyright law on the Mohak Mandal and ANI controversy, an amendment to S.52 of the Indian Copyright Act, 1957 might serve to inform content creators and copyright owners better.

Given the statutory nature of the protection of 'fair dealing' in Indian law, specific provisions addressing the issues pertaining to usage arising between content creators and copyright owners may bring about the much-desired certainty in determination of fairness of usage in such cases. For example, a statutory direction exempting certain works, mostly online content like informative videos and memes, from infringement prosecution if the quantity of the portion/clip used does not exceed a certain threshold and offers no possibility of competition to the copyrighted work, may help nip such issues in the bud.

As India's digital economy grows, and with the number of independent creators in India rising with every passing hour, the Legislature's wisdom needs application in this regard. A general doctrine like 'Fair use' may sound enticing, but it has to be borne in mind that the Judiciary in the United States has extensively laid down the law in this regard since the 19th century. Adopting such a doctrine in India would then require another few decades, if not more, to achieve the same level of literature on guiding principles that establish certainty in this regard. It is best that the Legislature sticks to its tradition of adapting the laws with evolving times and springs into action soon.

Arihant Shrivardhan is a Law-Cum-Research Associate at Supreme Court Of India & Harshita Rawat is an Advocate  practicing at New Delhi. Views are personal.