Fair use is a legal doctrine that allows an individual to enjoy limited use of a protected work

without permission from the creator. It is a flexible concept that aims to promote creativity,
innovation, and the free flow of ideas while still respecting the rights of content creators.1 This
is commonly practiced in The US, and it’s usually assessed on a case-by-case basis, considering
several factors, including the purpose and character of the use, the nature of the work, the
amount and substantiality of the portion used, and the effect of the use on the market for the
original work. Additionally, in Campbell v. Acuff-Rose Music, Inc., the Court ruled that a
parody of the song "Oh, Pretty Woman" by 2 Live Crew was fair use. The court emphasized
that transformative use, which adds new meaning or message to the original work, is an
important factor in determining fair use. Fair dealing(Practiced in the UK) is a legal doctrine
that allows a certain amount of copying for purposes of 'research or private study'. Thus fair
dealing is slightly stricter as it has a narrower scope and can be applied only for given purposes
and exceptions provided in the law.

Therefore, this essay will start by exploring the concept of fair use/fair dealing in various forms
of intellectual property .i.e.copyrights, trademarks, and patents. Thereafter, we will examine
how this concept has led to significant implications for creativity (i.e., in fields such as music,
literature, and visual arts) and access to knowledge (i.e., its use by teachers to enhance teaching,
and by researchers in their studies). All in all this work will highlight the implications of fair
use/fair dealing including encouraging the creation of new works that build on existing ones
and inspire new ideas and innovations in educational and artistic content, it also provides a
comprehensive understanding of various subject matter, broadens the scope of academic
inquiry, and facilitates greater access to knowledge for researchers.

1
Faster Capital- Fair Use and Intellectual Property Rights: What You Need to Know
CONCEPT OF FAIR USE/FAIR DEALING IN INTELLECTUAL PROPERTY LAW

FAIR USE/FAIR DEALING UNDER COPYRIGHT PROTECTION:

Copyright Includes literary works, musical compositions, films, software, and other creative
works. fair use/ fair dealing are exceptions in copyright, allowing individuals to use
copyrighted materials without obtaining permission. This is seen under Article 9(2) of The
Berne Convention for The Protection of Literary and Artisitic Works2 provides that
individuals are permitted to reproduce works in the following situations: “For certain special
cases, when the reproduction doesn’t conflict with the normal exploitation of the work, and if it
does not unreasonably prejudice the legitimate interests of the author.” For instance, If a student
comes across an interesting piece of a quote from a copyrighted work and wants to use the
quote to support their argument, This would be considered fair use as it is used for educational
purposes and doesnt affect the market value of the work. However, the original author needs to
be acknowledged and well-cited to maintain integrity.

Additionally, in the case of Feist Pubs. Inc. v. Rural Tel. Svc. Co. Inc.3, the primary purpose
of copyright is to “build freely upon the ideas and information conveyed by a work…It is the
means by which copyright advances the progress of science and art.”This simply emphasizes
that fair use of copyrighted works favors progress. The concept of fair use/fair dealing in
copyright protection allows limited use of the copyrighted work by people other than the owner
for the purpose of encouraging news reporting, research, criticism, and review which
simultaneously impacts creativity and access to knowledge in society.

FAIR USE/FAIR DEALING UNDER TRADE & SERVICE MARKS PROTECTION :

Trademarks are recognizable signs, phrases, or symbols that denote a product or service and
legally differentiate it from all others of its kind. Fair use in trademark law can apply in a wide
variety of scenarios, as long as the mark is used in good faith and the use isn’t likely to cause

2
as Amended on 1979
3
Justia Law
confusion among consumers. This is seen under Article 17 of The TRIPS Agreement4 which
provides an exception to the owner’s right to exclusivity, this includes fair use of descriptive
terms, provided that the use is fair and respects both the trademark owner's rights and the rights
of third parties who might need to use these terms. Additionally, It is permitted to use
trademarks for Product reviews, Comparative advertising, and Parody.

Moreover, In an Indian case of Express Bottlers Services Pvt. Ltd. vs. Pepsi Inc. & Ors,5 The
court held that The plaintiff is not required to sue insignificant infringers who do not harm their
business interests. The concept of fair use/fair dealing under trademarks protection allows
descriptive fair use of terms by third parties and simultaneously balances the rights of
trademark owners with the public's interest in free expression, comparative advertising, and
access to information.

FAIR USE/FAIR DEALING UNDER PATENT PROTECTION:

Patents are legal rights granted to inventors, giving them exclusive rights to make, use, and sell
their inventions for a certain period, usually 20 years. Concerning fair use/fair dealing under the
use of patents by a third party, Article 28 of the TRIPS Agreement6 provides for actions that
don’t amount to infringement and these include: Making, using, selling, or importing a patented
invention solely to develop and submit information required by law.

Additionally, Article 30 of the TRIPS Agreement7 provides for limitations of the exclusive
use granted to patent owners and these include allowing a third party to use the patented work
provided that they do not unreasonably prejudice the legitimate interests of the patent owner.
For instance, in the Indian case of Ayer Intellectual Property Gmbh v. Alembic
Pharmaceuticals Ltd8, the court confirmed that exporting a patented invention for
non-commercial purposes (such as regulatory approval) falls within the scope of Section 107A
4
Agreement on Trade-Related Aspects Of Intellectual Property Rights
5
AJAY AMITABH SUMAN, ADVOCATE- DELHI HIGH COURT
6
Agreement on Trade-Related Aspects Of Intellectual Property Rights
7
Agreement on Trade-Related Aspects Of Intellectual Property Rights
8
S. MAJUMDAR & CO- Patent and Trademarks Attorneys
of the Indian Patent Act(Article 29 of The TRIPS Agreement). Moreover, the third party is
required to comply with Article 31 of the TRIPS Agreement9 while exercising this exception.
The concept of fair use/fair dealing in patents protection supports research and innovation by
allowing the use of patented inventions for regulatory purposes without infringing on patent
rights. This ensures that the benefits of new inventions can be quickly and efficiently brought to
market, promoting public access, further innovation, and competition.

IMPLICATIONS FOR CREATIVITY

1) Encourages the creation of new works that build on existing ones: For instance, In
the field of Music, Musicians benefit from fair use when creating transformative works.
A notable example is the case of Vanilla Ice vs David Bowie & Queen song In this
case, "Ice Ice Baby" by Vanilla Ice, sampled the bassline from Queen and David Bowie's
"Under Pressure." The court ruled in favor of fair use as Vanilla Ice's song added a new
dimension and transformed the original work. Therefore, In this case, it is seen that fair
use under intellectual property rights encourages the creation of new works that build on
existing ones. Similarly, mashup artists who combine elements from different songs to
create a unique composition often rely on fair use for their creations.10 Therefore in the
field of music, it is seen as fair use.

2) Inspires New Ideas and Innovations in Educational and Artistic Content: In the
field of Literature, Authors, and writers rely on fair use when incorporating
copyrighted material into their literary works. For example, in the book "The Wind Done
Gone," Alice Randall used characters and elements from Margaret Mitchell's "Gone with
the Wind" to create a parody and critique of the original work.11 This introduces new
ideas and perspectives, encouraging both educational and artistic innovation, This shows
how fair use can lead to the development of creative works that offer new interpretations
and insights.
9
Agreement on Trade-Related Aspects Of Intellectual Property Rights
10
FasterCapital- Fair Use and Intellectual Property Rights: What You Need to Know
11
FasterCapital- Fair Use and Intellectual Property Rights: What You Need to Know
 3) Provides a comprehensive understanding of various subject matter12: For instance
In the field of Films and Television, Fair use allows filmmakers and television
producers to incorporate copyrighted material into their work for commentary purposes.
A great example is documentaries which often rely on fair use to include copyrighted
footage, photographs, or music to support their narratives and provide a comprehensive
understanding of the subject matter.13

IMPLICATIONS ON ACCESS TO KNOWLEDGE:

1) Facilitates greater access to knowledge for researchers: Fair use plays a crucial role
in education and research by allowing teachers, students, and scholars to use copyrighted
material for educational purposes. For instance, teachers may use copyrighted images,
specific writings from books, or clips from movies to improve their lessons. Similarly,
researchers may include copyrighted material in their studies, such as using a portion of
a book to support their arguments.

2) Helps with preservation of copyrighted works: Fair use allows libraries to store
copyrighted works to provide access to educational materials to researchers and students.
This provides easier availability and enhances the access to knowledge for the society.
For instance, a school library that holds various academic writings significantly
contributes to a student’s body of knowledge, thus improving access to knowledge. For
instance, In the case of Authors Guild v. Google, the court ruled in favor of fair use for
Google's book-scanning project. Google scanned millions of books, including
copyrighted works, to create a searchable database. The court considered the project
transformative, as it provided a valuable research tool and did not substitute the original
books.14

12
Chat GPT- AI Chatbot
13
FasterCapital- Fair Use and Intellectual Property Rights: What You Need to Know
14
FasterCapital- Fair Use and Intellectual Property Rights: What You Need to Know
3) Broadens the scope of academic inquiry: Fair use broadens the scope of academic
inquiry by providing flexibility to the use of copyrighted work by academicians and
students. For instance, allowing students to consult various academic writings for their
assignments, allows greater access to diverse perspectives of a particular subject matter
from various writers, thus widening their scope of academic inquiry and contributing to
their body of knowledge.
REFERENCES
- FasterCapital Article - Fair Use and Intellectual Property Rights: What You Need to
Know
- Linkedln report by AJAY AMITABH SUMAN, ADVOCATE- DELHI HIGH COURT
- Intellectual Property Article by S. MAJUMDAR & CO on Patent and Trademarks
Attorneys
- CHAT GPT- AI ChatBot
- Agreement on Trade-Related Aspects Of Intellectual Property Rights-TRIPS Agreement
- Berne Convetion for The Protection of Literary and Artisitic Works as Amended on
1979