Fair Use and Fair Dealing

Premised on realizing a balance between protection and access, ‘limitations and exceptions’ play an important role in the any copyright system. Jurisdictions around the world are generally thought to adopt one of two possible approaches to structuring limitations and exceptions: (a) the fair dealing approach, which delineates highly specific and carefully-worded exceptions with little room for judicial discretion, and (b) the fair use approach, which relies on more open-ended language and its contextual tailoring by courts. This chapter undertakes a comparative analysis of these two approaches using the Indian and US copyright systems as its focus. It shows that, although the two countries adopt different approaches as formal matter, in practice, they show far more convergence and similarity than might be predicted from the pure black letter of the law. In the process, the chapter casts doubt on the ubiquity and utility of the distinction in comparative copyright thinking.