Copyright, Culture and Contemporary Debates: A Jurisprudential Analysis of Fair Dealing in India

Abstract

As technological developments continue to disrupt creative industries, they put to test our copyright doctrine. The recent litigation initiated against Sci-Hub and LibGen by three publishers raises complex questions permeating the Indian copyright regime. In this context, it is important to determine the values our copyright system serves and the standards of ‘fairness’ it demands to exempt certain infringements. This paper studies the Indian fair dealing jurisprudence from a theoretical standpoint to argue that it lacks a robust normative foundation. It first maps the prevalent theories of copyright and suggests that the cultural theory not only exposes gaps in the dominant incentive theory but also offers a more comprehensive understanding of copyright. It then analyses Indian fair dealing cases from this viewpoint. While the jurisprudence is largely inconsistent, analysis of two important cases reveals that while their outcome was desirable from a cultural theory perspective, their doctrine is insufficient to excuse certain socially-valuable infringements. Their emphasis on transformativeness coupled with an implicit bar on verbatim reproductions is critical. It is suggested that the Indian fair dealing jurisprudence is unfit to foster a just and attractive culture; one that strives to attain pluralistic values essential for the ‘good life’.