Drawing a balance between fair use and exploitation

Fair use provisions, which are exceptions to infringement of copyright, provide a good balance between private profit and public good and allow the pursuit of research and education. Primarily, it allows the limited reproduction, adaptation or decompilation of copyrighted material in specified circumstances, without requiring permission from rights holders dealing exclusively in the work.

While limiting the owners’ exclusive right to prevent others from exploiting the work without first obtaining permission or a licence, fair use also operates as a set of possible defences against an action for infringement. The Berne Convention for the Protection of Literary and Artistic Works 1886 as modified in 1967 includes the fair use doctrine under article 9 (2).

The convention applies to signatories of the treaty and places limitations on exclusive rights in copyright laws elucidating the three-step test to determine if the use is fair. The use should be (a) in certain special cases only; (b) should not conflict with the normal exploitation of the work; and (c) should not unreasonably prejudice the legitimate interests of the rights holder.

Abhai Pandey is a lawyer with Lex Orbis IP Practice, a law firm specializing in intellectual property issues.