Fair Dealing and Copyright Exceptions in India: What You Can Use Without Permission

Every copyright system lets some uses go unlicensed. The American approach is an open standard — fair use — argued case by case. India’s is a list: the Act sets out, in some forty clauses, the acts that are not infringement, and a use that does not fit one of them is infringement however reasonable it seems. Knowing the list is therefore most of the battle.

Quick reference

Fair dealing

The core exception permits fair dealing with any work — other than a computer programme — for three purposes:

• private or personal use, including research
• criticism or review, of that work or another
• reporting current events and current affairs, including reporting a lecture delivered in public

Two things follow from the wording. The purpose must be one of the three; a use for advertising, entertainment or commerce is outside it however small. And the dealing must be fair, which the courts have judged by asking how much was taken and how important it was, what the purpose was, and whether the use competes with or substitutes for the original. The Kerala High Court’s Civic Chandran decision, on a play that quoted a rival play to criticise it, set out that approach and it has been followed since. Parody and satire are protected as criticism where they are genuinely commentary and take no more than the commentary needs.

Education

A teacher or pupil may reproduce a work in the course of instruction, in examination questions or answers, and short passages may be included in collections for instructional use. The Delhi High Court held in the university photocopying case that this covers course packs prepared for students on the syllabus, without a quantitative cap, so long as the copying is for instruction — a decision that publishers ultimately chose not to take further. Performance of a work by staff and students of an educational institution, to an audience of staff, students and parents, is also covered.

Libraries

A non-commercial public library may make up to three copies of a book not available for sale in India, and copies of unpublished works for research, and may make preservation copies. The exception does not cover commercial document delivery.

Software

Copying a lawfully obtained computer programme is permitted for the purpose for which it was supplied, for backup against loss, for interoperability where the information is not otherwise available, for testing its functioning, and — for non-commercial personal use — for making copies from a personally legally obtained copy. Fair dealing for research or criticism does not extend to software, which is why the list matters.

Weddings and religious ceremonies

Performing or communicating a literary, dramatic or musical work, or a sound recording, in the course of a bona fide religious ceremony is not infringement, and the Act says a religious ceremony includes a marriage procession and the social festivities associated with a marriage. The government issued a public notice in 2023 telling licensing bodies not to demand fees for wedding functions and telling the public not to pay them. The Delhi High Court has since made two things clear: the exception is a defence — it does not give organisers a right to a declaration in advance — and its scope depends on the facts, so a commercial event attached to a wedding may fall outside it. Who is entitled to license public performance of recorded music in the first place has been separately and intensively litigated, and the position should be checked before any fee is paid or refused.

Disability

Reproducing a work in an accessible format for the benefit of persons with disabilities, by the person or by an organisation working for them on a non-profit basis, is permitted. India was the first country to ratify the Marrakesh Treaty and the exception is deliberately wide.

Public affairs and the rest

The remaining clauses cover reproduction for judicial proceedings and their reporting; for reports of legislative committees; of official Acts and judgments; reading or reciting in public a reasonable extract of a published work; reproducing a newspaper article on current economic, political, social or religious topics unless reproduction is expressly reserved; making a painting or photograph of an artistic work permanently situated in a public place, and including it in a film; reconstructing a building to the same design; making a three-dimensional object from a two-dimensional artistic work for an industrial purpose where the object is purely functional; playing recordings in an enclosed non-commercial club room; amateur performances to a non-paying audience; and importing one copy of a work for private use. Transient copies made in the course of transmission, and storage by an intermediary for providing links, are also outside infringement, subject to the notice-and-takedown procedure.

Statutory licences are different

Two provisions look like exceptions but are not. Cover versions of a sound recording may be made after five years from the original, on notice and payment of royalties. And radio and television broadcasters may broadcast literary and musical works and sound recordings under a statutory licence at rates fixed by the authorities. The Bombay High Court has held that the broadcasting licence does not extend to internet streaming services. Both are licences with conditions, not free uses.

The rule of thumb

If the use is on the list and the dealing is fair, it is permitted. If it is not on the list, it needs a licence, and no amount of good intention or public benefit will supply one. “Educational”, “non-commercial” and “just a few seconds” are the three phrases most often mistaken for defences; none of them is one on its own.

Frequently asked questions

Does India have fair use? No. India has fair dealing for three purposes — private use including research, criticism or review, and reporting current events — plus a closed list of specific exceptions. A use outside the list infringes.

Can I use copyrighted material for educational purposes in India? Reproduction by a teacher or pupil in the course of instruction, examination use, and course packs for students on the syllabus are permitted, as the Delhi High Court held. General “educational” use outside instruction is not automatically covered.

Do I need a licence to play music at a wedding in India? Performing or communicating music or sound recordings in the course of a bona fide religious ceremony, which the Act says includes a marriage and its associated festivities, is not infringement. The exception is a defence rather than a right, and commercial events attached to a wedding may fall outside it.

Can I quote from a book or article? Yes, within fair dealing for criticism, review or reporting, if the amount taken is no more than the purpose needs and the use does not substitute for the original. Quotation for advertising or decoration is not covered.

Is parody allowed under Indian copyright law? Where it is genuine criticism or comment on the work and takes no more than the comment requires, it falls within fair dealing for criticism. A parody that is simply an entertaining copy does not.

Can I make a backup of software I bought? Yes. Making a backup copy of a lawfully obtained programme, and copies needed for interoperability or testing, are expressly permitted.

Useful official resources

• Copyright Office, India — the Act, with the full list of exceptions
• DPIIT — public notices — the 2023 notice on marriage functions

See our related notes on copyright infringement and remedies, what copyright protects and copyright licensing.

Not sure whether a planned use is on the list? Talk to us before it goes out.