Introduction
In the ever-evolving world of Intellectual Property (IP), the concept of fair use has always balanced on a fine line between creative freedom and legal boundaries. But in recent years, as enforcement mechanisms tighten across the globe, propelled by technological advancements and platform-based policing, a new phenomenon is taking shape — the Fair Use Clash.
In India, the IP landscape is facing unprecedented turbulence. Emerging technologies, digital transformation, and automated enforcement are colliding with traditional fair dealing doctrines under the Copyright Act, 1957, reshaping how courts and corporations view content use, creativity, and ownership.
The Rise of Enforcement-First Strategies
From YouTube takedowns to automated copyright strikes, enforcement tools now operate on a “shoot first, ask later” model. Algorithms don’t understand nuance — they scan, match, and strike.
Thousands of artists, educators, and commentators find their legitimate fair use content blocked or demonetized, often without human review. This automated crackdown lies at the heart of the Fair Use Clash — where the intent of the law is crushed under the weight of algorithmic overreach.
What Is the ‘Fair Use Clash’?
Under the Indian Copyright Act, 1957, Section 52 provides fair dealing exceptions for purposes such as:
- Private or personal use
- Research and study
- Criticism or review
- News reporting
- Educational use
However, these traditional categories struggle to accommodate modern digital realities — especially AI training, algorithmic content filtering, and data-driven creativity.
The Fair Use Clash represents the growing tension between:
- AI-driven enforcement and stricter IP protection, and
- The principle of fair dealing, which allows limited, transformative use of copyrighted work for public interest purposes.
As AI enforcement strengthens, the flexibility of fair use is increasingly under threat — particularly in jurisdictions like India, where fair dealing is a codified exception rather than a broad, interpretive doctrine.
How Courts Decide: Infringement vs. Permitted Use
Two recurring themes define how Indian courts assess the boundary between infringement and fair dealing:
1. Idea vs. Expression
Copyright protects expression, not ideas. In R.G. Anand v. Deluxe Films (1978 AIR 1613), the Supreme Court held that similarity in ideas or themes doesn’t amount to infringement unless the mode of expression is substantially copied.
The test is simple: Would a reasonable viewer conclude that the later work is a copy of the original’s expression?
2. Substantial Similarity and Colourable Imitation
Courts examine whether there is substantial copying of protected expression, such as plot, characterization, sequence, or arrangement. Minor overlaps or common ideas do not qualify.
This judicial restraint ensures that creativity and inspiration are not stifled by overbroad claims of ownership.
Case in Point: Creators vs. Corporates
Today’s digital creators — those producing reaction videos, mashups, parodies, or educational explainers — often operate within fair dealing limits.
However, corporate copyright bots and automated enforcement systems don’t differentiate between transformative content and blatant infringement. As a result:
- Academic institutions struggle to use snippets of copyrighted work in online courses.
- Indie artists face takedowns even for satirical or parody content.
- Journalists quoting or critiquing political ads or media works face platform strikes.
This overreach isn’t just a digital inconvenience — it’s a systemic challenge to free expression, public discourse, and creative remixing.
Intellectual Property Lawyer in BTM Layout
The Legal Grey Zone
Fair use and fair dealing differ widely across global jurisdictions, creating confusion for online creators:
- United States: Fair use is an affirmative defense, judged on a four-factor test (purpose, nature, amount, and market impact).
- India: Fair dealing is a codified exception under Sections 52 and 39 of the Copyright Act.
- European Union: Operates under narrow exceptions, with limited flexibility.
This jurisdictional mismatch fuels inconsistency in global enforcement — where one piece of content might be lawful in India but blocked elsewhere by AI-driven moderation tools.
Enforcement Trends — What’s Changing Now
1. Platform Enforcement and Speed
Platforms like YouTube, Meta, and Indian streaming services now adopt notice-and-takedown systems and automated Content-ID tools. While fast, these systems often remove content before proper legal evaluation, leaving creators with limited appeal options.
The result? Legitimate fair dealing content disappears overnight, with creators caught in digital limbo.
2. Right-Holders’ Expanded Tactics
Corporates are increasingly seeking injunctions and interim reliefs to halt alleged infringement quickly. While courts like in R.G. Anand reaffirm the idea-expression boundary, injunctions remain a powerful enforcement tool when expression is clearly copied.
3. Sectoral Pressure Points
Most clashes occur in sectors such as:
- Education: Use of clips in online learning
- News and commentary: Reporting and analysis of copyrighted works
- Parody and remix culture: Transformative, humorous, or satirical reuse
While academic and journalistic use is somewhat protected, creative remixes often fall into a legal grey zone.
What’s Next: Towards Balance, Not Blame
The future demands balance between innovation and protection, not a binary war between creators and corporations. There’s a growing call for:
- Human oversight in algorithmic enforcement
- Transparent appeal mechanisms on digital platforms
- Public-interest exceptions to be codified and expanded
- Global harmonization of fair use principles for the digital age
Ultimately, this is not just a legal debate — it’s about preserving the spirit of creativity, commentary, and criticism that fair use was designed to protect.
Conclusion
As enforcement tools become smarter and more pervasive, the stakes in the Fair Use Clash continue to rise. The path ahead must include legal reform, digital literacy, and balanced enforcement frameworks that safeguard both creators’ rights and public interest.
Fair use was never meant to be a loophole — it’s a cornerstone of creativity, ensuring that knowledge, critique, and culture remain alive in a digital world that’s constantly watching.
Disclaimer: This blog is for general informational purposes only and does not constitute legal advice. Privacy laws may vary based on circumstances and jurisdiction. Readers are advised to consult a qualified legal professional, such as Bisani Legal, for specific advice regarding data protection, privacy rights, or related legal concerns.
