Author: Khushi Maheshwari

Caught in the Click: Understanding Dark Patterns in the Digital Age

Khushi MaheshwariLeave a comment

Have you ever tried to cancel a subscription and ended up in a never-ending loop? Or clicked “No” only to be guilted into saying yes? These are not UX bugs. They’re features. Intentionally deceptive ones. Welcome to the world of dark patterns.

What are dark patterns?

Dark patterns can be defined as “practices or deceptive design pattern using user interface or user experience interactions on any platform that is designed to mislead or trick users to do something they originally did not intend or want to do, by subverting or impairing the consumer autonomy, decision making or choice, amounting to misleading advertisement or unfair trade practice or violation of consumer rights.”

Wait, what do you mean? Basically – dark patterns are design practices in websites or apps that intentionally trick or manipulate users into making decisions they wouldn’t otherwise make – like buying something, sharing personal data, or signing up for a service.

The term was coined by Harry Brignull – to communicate the unscrupulous nature of such patterns, and also the fact that it can be shadowy and hard to pin down. Governments around the world – including India – are now catching up to this shady side of digital design.

What are some identified dark patterns in India?

Dark PatternExampleExplanation
False urgencyA hotel booking site shows “Only 2 rooms left!” when actually dozens are available.Misleads users into rushing a decision based on a non-existent scarcity — unlawful pressure tactic.
Basket sneakingE‑commerce checkout auto‑adds a small “donation to charity” via pre‑checked box.Adds extra cost without explicit consent, relying on user inattention.
Confirm shamingA flight site asks “Skip travel insurance? I’ll be irresponsible” in the opt‑out button.Uses guilt/shame to manipulate user choice.
Forced actionHealth site forces newsletter signup before allowing purchase of vitamins.Makes unrelated promotion compulsory to complete a transaction.
Subscription trapOTT platform hides subscription cancellation behind email & phone request.Cancelling is made deliberately harder than subscribing.
Interface interference“No” button in app pop-up is faint/unreadable, while “Yes” is bright and prominent.UI design nudges users toward a specific choice.
Bait and switch“Download premium anniversary offer!” — but at final step, it’s a higher‑priced plan.Promises one thing but delivers another at checkout.
Drip pricingFlight ticket listed at ₹3,000 — but at checkout add ₹800 in “service fees” not previously shown.Hides full cost until late in the purchase process.
Disguised advertisementA blog post shows “user review” box which is in fact a paid placement.Ads are disguised as authentic user-generated content.
NaggingNews app repeatedly prompts “Enable notifications” every time user opens it.Repetitive pop-ups push users toward unwanted actions.
Trick questionCheckbox reads: “Uncheck if you don’t want to stop receiving offers” — double negatives confuse users.Confusing language leads to unintended consent.
SaaS billingFree trial ends and auto-converts to paid monthly plan without notifying a user.Continues charging without alerting the user.
Rogue malwareScareware popup on a download site claims your PC is infected and urges purchase of fake antivirus.Tricks users into installing malware disguised as a solution.
Example of Basket Sneaking
Example of False Urgency
Example of Confirm Shaming

Why do dark patterns work?

Dark patterns are effective because they take advantage of how our brains process information and make decisions. We are not always rational and logical when we interact with online platforms. We often rely on heuristics (mental shortcuts) that help us save time and effort, but can also lead us to errors and biases. For example:

  • Availability: We tend to judge the likelihood of events based on how easily we can recall examples from memory. For example, we might think that a product is popular or high-quality if we see many positive reviews or ratings, even if they are fake or biased.
  • Anchoring: We tend to rely too much on the first piece of information we see when making judgments. For example, we might think that a product is a good deal if it is marked down from a high original price, even if the original price was inflated or arbitrary.
  • Confirmation Bias: We tend to seek out and favor information that confirms our existing beliefs and opinions. For example, we might ignore or dismiss negative reviews or ratings of a product that we already like or want to buy.
  • Loss Aversion: We tend to prefer avoiding losses over acquiring gains of equal value. For example, we might be more likely to buy a product if we are told that we will lose a discount or a free trial if we don’t act soon.
  • Reciprocity: We tend to feel obliged to return favors or gifts that are given to us. For example, we might be more likely to sign up for a newsletter or a subscription if we are offered a free ebook or a trial period.

By leveraging these psychological tendencies, dark patterns can nudge users into decisions that feel natural in the moment – but aren’t necessarily in their best interest.

How is India dealing with dark patterns?

Guidelines for Prevention and Regulation of Dark Patterns, 2023

In November 2023, India became one of the first countries to formally recognize and ban dark patterns through the Guidelines for Prevention and Regulation of Dark Patterns, 2023 [“Guidelines”] issued by the Department of Consumer Affairs. These were backed by the Consumer Protection Act, 2019 [“CPA”], which prohibits unfair trade practices. The abovementioned 13 specific dark patterns are identified in the Indian guidelines. These dark patterns are now considered “unfair trade practices” under Section 2(47) of the CPA, and can attract penalties from the Central Consumer Protection Authority [“CCPA”]. As per Section 3 of the Guidelines, all (i) platforms that are systematically offering goods or services in India, (ii) advertisers, and (iii) sellers are covered under these Guidelines. Interestingly, the Jagriti app, along with the Jago Grahak Jago app and Jagriti Dashboard, are tools launched by the Department of Consumer Affairs to combat dark patterns and protect consumers. The Jagriti app specifically allows users to report websites or e-commerce platforms that they suspect are using dark patterns, which are then investigated by the CCPA.

The DPDP Act, 2023

While the Digital Personal Data Protection Act, 2023 [“DPDP Act“] doesn’t mention “dark patterns” by name, it contains several provisions that implicitly outlaw them. The Digital Personal Data Protection Act, 2023 focuses heavily on ensuring that personal data is processed only after obtaining valid consent from users.

Under Section 6(1) of the DPDP Act, consent must be free, specific, informed, unconditional and unambiguous. This means users must clearly know what they’re agreeing to – and cannot be misled, forced, or manipulated. Dark patterns such as pre-selected checkboxes, “accept all” popups without alternatives, or vague privacy options fall afoul of this requirement. If a user is tricked into giving consent, that consent is invalid under the DPDP Act.

Section 6(5) of the Act requires that withdrawing consent be as easy as it was to give. This is a direct counter to the “roach motel” pattern, where users can easily sign up but can’t figure out how to unsubscribe or revoke access. The DPDP Act demands that platforms offer a straightforward, visible way to opt out. Burying unsubscribe links under layers of menus or making users email support to delete their account will no longer be acceptable.

Section 5(2) of the Act mandates that notices be given in clear and plain language. This means no more walls of legalese, vague clauses, or hidden disclosures. Users must be able to read and comprehend how their data will be used, by whom, and for what purpose. Dark patterns often rely on confusing, overwhelming notices to slide questionable practices past the user – something this clause seeks to prevent.

Section 6(2) of the Act restricts data processing only for the purpose consented to by the user. This strikes at the heart of another dark pattern – bundled or forced consent. For instance, if an app asks for access to your location “to personalize your feed” but also uses it for ad tracking, that’s a violation. Users must consent to each purpose separately and clearly, and companies cannot hide behind vague catch-all terms like “service improvement.”

Therefore, even without saying the words “dark patterns,” the DPDP Act provides strong legal protections against them. By focusing on meaningful consent, purpose limitation, clarity, and ease of withdrawal, the Act effectively outlaws the most common manipulative UX strategies.

IT Rules, 2021

Though the Information Technology Act, 2000 [“IT Act”], India’s foundational cyber law, does not explicitly refer to dark patterns, it contains certain provisions – especially through the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 [“2021 Rules”] that can be interpreted to address these deceptive practices.

Deceptive design may violate Rule 3(1)(a), which requires that intermediaries ensure users do not host or transmit content that is deceptive or misleading in nature. While this was originally meant to tackle misinformation and fraud, it can be interpreted to cover UI-based deception – such as misleading subscription flows, fake urgency timers, or misdirection through color and placement. When a design tricks a user into giving consent or making a purchase unintentionally, it arguably becomes “misleading.”

SSMIs – platforms with over 50 lakh registered users – have additional obligations, such as publishing terms of use in clear language, allowing voluntary user verification, providing controls for privacy and content visibility. If these privacy controls are buried, confusing, or hard to access, that could violate both the letter and spirit of these rules. Platforms that hide opt-out settings or trick users into consenting to broad data use could be scrutinized for failing their duty of transparency.

The 2021 Rules also have due diligence obligations under Rule 3(1)(b). This clause requires platforms to exercise due diligence to ensure their services aren’t used in ways that are unethical or illegal. If the platform itself employs deceptive UX design to drive up engagement, data collection, or purchases, that could be seen as a failure of due diligence.

Dark patterns not only deceive users – they potentially create a misleading digital environment, which these rules were designed to prevent.

ASCI

The Advertising Council of India [“ASCI”] is a self-regulatory organization for the advertising industry to protect the interest of consumers against false and misleading advertisements. ASCI is increasingly stepping into the space of dark patterns, particularly in the context of digital advertising and influencer marketing, where manipulative tactics are often deployed to mislead consumers. In November 2022, the ASCI released a discussion paper highlighting various kinds of dark patterns being used by digital platforms to manipulate consumer’s choices and patterns. Subsequently, in June 2023 the ASCI issued guidelines on Deceptive Design Patterns in India [“ASCI Guidelines”] to further the objective of the ASCI Code to ensure honesty from the advertiser and prevent the advertisers from taking advantage of vulnerable customers by any omission, exaggeration, implication, or ambiguity in the advertisements. The ASCI Guidelines talks about dark patterns like drip pricing, bait and switch, false urgency, and disguised ads.

What’s the recent update relating to enforcement of law against dark patterns?

On June 5, 2025, the CCPA issued an advisory under the CPA, calling on all e-commerce platforms operating in India to:

  • Conduct a self-audit within 3 months to identify and eliminate dark patterns;
  • Submit a public self-declaration of compliance;
  • Ensure their platform’s design and consent mechanisms do not violate the Guidelines or the Consumer Protection (E-Commerce) Rules, 2020.

This advisory applies to all platforms offering goods or services online, regardless of sector – including food delivery apps, travel portals, e-commerce sites, ed-tech platforms, and digital marketplaces.

Effective from June 6, 2025, and valid through December 31, 2026, the advisory sets out a forward-looking framework for enhancing consumer protection in the digital economy. Although framed as an advisory, it functions as an extension of the existing Guidelines issued under the CPA, and thus carries enforceable weight. 

Additionally, a Joint Working Group [“JWG“] has been formed by the Department of Consumer Affairs to monitor compliance and further action. The JWG includes representatives from relevant ministries, regulators, voluntary consumer organizations, and national law universities. This group is tasked with identifying violations of dark patterns, sharing findings regularly with the department, and suggesting awareness programs for consumers.

The Copy That! View

Dark patterns represent the dark side of digital design – one that undermines user trust, autonomy, and dignity. But India is moving quickly to push back. From hard law (Consumer Protection Act, DPDP Act) to platform governance (IT Rules), and soft law (ASCI self-regulation), a growing framework is emerging to prioritize user rights over manipulative engagement. The next step is enforcement, awareness, and business compliance. Digital players – big and small – must now ask themselves: “Are we designing for users… or designing around them?” Because the age of “caught in the click” may finally be coming to an end.

Pay or Perish? ANI v. YouTubers and the Future of Fair Dealing in India

Khushi MaheshwariLeave a comment

In a recent and intensifying controversy, several Indian YouTubers have accused leading news agency Asian News International [“ANI”] of using copyright enforcement tools not merely to protect its content but to strong-arm creators into paying hefty amounts under the threat of YouTube channel termination.

While ANI claims it is asserting its legitimate intellectual property [“IP”] rights and is fairly seeking compensation for use of its copyrighted material, creators argue that their usage of the footage falls under fair dealing and that ANI’s actions amount to extortion.

This blog takes a closer look at the legal tangle and asks: Is ANI enforcing its rights, or gaming the system? Has Mohak Mangal infringed ANI’s copyright?

The What: The Dispute in a Nutshell

What’s ANI being accused of, exactly?

According to public statements by creators like Mohak Mangal, ANI has been issuing copyright strikes on YouTube for the use of short news clips, sometimes lasting only a few seconds. For example, Mohak stated that the first strike came from an 11-second clip used in a 16-minute-long video, and a second strike came from a 9-second clip used in a 38-minute video.

After issuing the strikes, creators are reportedly contacted by ANI’s representatives and asked to pay between ₹1.5-5 lakh per strike as a retrospective license fee, in exchange for the withdrawal of the strikes.

Why does this matter? Because of how YouTube’s “three-strike” rule works.

What is YouTube’s three-strike policy?

In addition to Community Guidelines strikes – which are basically YouTube’s rules of the road on how to behave on the platform – the platform also enforces copyright strikes. These happen when a content owner submits a legal request to remove your video for using their copyrighted material. YouTube checks the request, and if it’s legit, the video is taken down to comply with the law of copyright.

Here’s how the policy plays out:

  1. Strike One: A warning shot. You lose some features for a week.
  2. Strike Two: A bigger red flag. Two weeks of restrictions, and your channel is on thin ice.
  3. Strike Three: You’re done. Your entire channel – videos, subscribers, history gets deleted.

This system is meant to deter repeat infringers. But here’s the twist: it can also be used as a pressure tactic. Critics argue that ANI’s representatives are weaponizing this system – using the threat of strikes and channel deletion to corner creators into paying up. With no real appeal system and the risk of losing years of work, creators are often left with no practical option but to pay. Many feel they’re being forced to pay under duress, regardless of whether their use actually counts as infringement.

What is ANI’s side of the story?

 “As the exclusive copyright holder of its content, ANI has the sole legal right to communicate its work to the public or license its use. Enforcing these rights through mechanisms like YouTube’s copyright policy or legal action is not extortion. It is the lawful protection of property, as guaranteed by copyright law. Anyone disputing our rights is free to seek legal recourse,” ANI said in a statement to the Reporter’s Collective.

Following the viral spread of Mohak’s video, ANI has initiated a defamation lawsuit against him in the Delhi High Court. The court ordered Mohak to take down specific mentions of ANI, which he has done. Separately, ANI has filed another lawsuit accusing him of unlawfully using and reproducing ten of its videos on his channel and even using ANI’s logo without permission.

The How: A Legal Lens

How does fair use work in the U.S.?

The U.S. adopts a more flexible “fair use” doctrine under Section 107 of its Copyright Act, 1976, which allows for the reproduction of copyrighted work to a certain degree (often limited), in order to protect public interest, while balancing the rights of the holders. It is non-exhaustive and evaluated on a case-by-case basis using four fairness factors:

  1. Purpose and character of the use (whether it’s commercial or transformative);
  2. Nature of the copyrighted work;
  3. Amount and substantiality used;
  4. Effect on the potential market or value of the work.

Because of this flexibility, U.S. creators have a broader defense under fair use than Indian creators do under fair dealing, especially since “transformative use” is explicitly recognized and developed in American case law.

How does fair dealing work in India?

India, on the other hand, follows a stricter “fair dealing” doctrine, codified under Section 52 of the Copyright Act, 1957. This lays out a specific list of scenarios, like private research, criticism or review, reporting of current events, education, or judicial proceedings, where copying isn’t considered infringement. Unlike fair use, this list is exhaustive, not illustrative. That means if your purpose isn’t on the list, you’re likely out of luck.

In practice, the lack of clear legal guidelines on permissible usage and on fair dealing means its application often hinges on case-by-case judicial interpretation such as whether a 10-second clip in a 20-minute analysis qualifies as fair dealing.

Fair dealing in India does not permit full reproduction of content but the use of brief excerpts accompanied by commentary, criticism, or for news reporting is generally considered non-infringing. The creators claim their use of ANI’s footage within these legal limits.

How are they different? Fair use v. Fair dealing

Let’s take a landmark U.S. case as an illustration.  In Campbell v. Acuff-Rose Music, Inc.1 from 1994, the rap group 2 Live Crew created a parody of Roy Orbison’s 1964 hit “Oh, Pretty Woman.” They used the song’s distinctive bassline and opening lyrics but altered the rest of the track to include humorous and sexually explicit content. Despite being denied permission by the copyright owner, Acuff-Rose Music, 2 Live Crew released the parody commercially. The U.S. Supreme Court ruled in favor of 2 Live Crew, holding that the parody constituted fair use, as it was transformative, offered social commentary, and did not harm the original song’s market. The Court emphasized that even commercial use could qualify as fair use if it added new meaning or expression.

In contrast, under the Indian Copyright Act, 1957, this use would likely not be protected as fair dealing. India’s law permits fair dealing only for specific purposes. Parody and satire are not explicitly recognized as fair dealing. Moreover, Indian courts interpret fair dealing more conservatively, often requiring that the copied portion be minimal and the purpose closely aligned with the listed exceptions. Therefore, a commercial parody like 2 Live Crew’s, even if transformative, would likely constitute copyright infringement in India.

Applying the Law to Mohak Mangal

Mohak’s videos typically explain policy issues, critique media narratives, or offer political commentary – using small clips of ANI footage to make a point or set context.

If we were in the U.S., this kind of use would likely qualify as fair use in my opinion because:

  • It’s transformative – adding commentary and new context;
  • It’s made in the public interest;
  • Only brief clips are used;
  • It doesn’t hurt ANI’s market for the footage.

Under Indian law, things are murkier. But in my view, Mohak has a shot under the “criticism or review” exception in Section 52(1)(a)(ii). Let’s run it through the Indian three-factor test, which was evolved in Civic Chandran v. Ammini Amma2 [“Civic Chandran”]:

  1. Purpose of use – Was it criticism/review or commercial gain?

Mohak’s content consists of explainers and critiques of policy or media narratives. Even though his videos are monetized, Indian courts (like in Civic Chandran) have held that monetization alone doesn’t negate fair dealing, especially when the primary intent is educational or critical.

  • Extent and substantiality – How much was used? Was it the “heart” of the work?

Mohak used 9-11 second clips in 16-38 minute videos. Under the de minimis principle (though not codified in Indian law, it has been judicially invoked), trivial use that doesn’t capture the essence or marketable core of the original is not infringement. Since the use is both short and supplementary and not central in the present case, this factor supports him.

  • Market effect – Did it substitute the original work or harm ANI’s business?

His audience watches the videos for his commentary and not the ANI footage. Hence, there’s little market overlap or substitution. This strengthens the case that it doesn’t affect ANI’s business value.

Therefore, in all three factors, Mohak is well-positioned. However, his defence is not bulletproof either. ANI’s arguments are not frivolous – they rest on the ambiguity of Indian copyright law, the narrow reading of exceptions, and the fact platform enforcement favours rightholders.

ANI could potentially argue that Mohak is not actually critiquing or reviewing ANI’s footage but is using it as background material. For instance, if he uses a video of a minister speaking on healthcare, ANI could say that he is not reviewing or analysing the ANI footage but using it as a narrative device. If Mohak then tries to claim that he is reporting current events, which is a mentioned purpose under fair dealing, ANI may argue that his videos are opinion-driven content and not neutral reporting of ongoing events (courts in India interpret “reporting of current events” narrowly). ANI could also argue that though the used clips are brief, they are deliberately chosen and repeated across multiple videos. Deliberate reuse implies editorial intent and reliance, and hence, may not fall under fair dealing. Lastly, ANI may claim that even short clips of their content can substitute their value, especially on a platform like YouTube where attention span of the user is short, because then the users may not visit ANI’s own platform.

The Copy That! View

This ANI v. YouTubers dispute sits at a complex intersection of copyright law, creator rights, and digital platform dynamics.

Legally speaking, ANI is within its rights to enforce copyright over its content, and to seek compensation where its works are used without authorization. From a statutory perspective, asserting these rights through YouTube’s copyright tools or even the courts is not inherently unlawful.

Alas, legality is not the same as ethics. While ANI’s actions may not meet the legal threshold for extortion, the optics and power dynamics raise concerns. Threatening creators with takedowns and steep fees for minimal, non-substitutive clips used in critique creates an ecosystem of coercive licensing. This chilling effect discourages public interest commentary and disproportionately impacts smaller or independent creators.

To address this imbalance, reforms are needed such as clearer statutory guidance on digital fair dealing, and platform-level changes like neutral, expert-reviewed counter-notice mechanisms. Until then, “pay or perish” may remain a grim but lawful reality for Indian content creators navigating legacy media power in the digital age.

Coming to Mohak’s case, while his use fits the spirit of fair dealing, in the absence of clear legal standards, it is the court’s perception that could tip the scale. Additionally, even if his defence stands in court, YouTube’s enforcement doesn’t always wait for a legal nuance and may take down the content anyway. His case is a strong example of transformative and proportionate fair dealing in digital journalism. The eventual court ruling could set a vital precedent, especially for defining and defending transformative use within India’s fair dealing regime.

Copy That! will keep tracking this case. Follow us for more updates on IP and media law developments.

  1. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). ↩︎
  2. Civic Chandran and Ors. vs. C. Ammini Amma and Ors., 1996 PTC 670 (Ker HC) 675-677 ↩︎

Kunal Kamra in Hot Water Again: A Case of Satire or Copyright Violation?

Khushi MaheshwariLeave a comment

What happened?

In March 2025, comedian Kunal Kamra released Naya Bharat, a satirical comedy video that used iconic Bollywood tunes like “Hawa Hawai” and “Bholi Si Surat” to deliver biting political commentary. The video struck a chord with many but also a nerve with some. It quickly gained traction and was just as quickly taken down, reportedly following copyright claims by music label T-Series.

This brings up a pressing legal question: was Kamra’s musical satire an act of copyright infringement, or is it protected under the fair dealing doctrine?

Why is it controversial? Understanding the allegations

Though no official complaint has been made public, the takedown suggests possible allegations of:

  • Unauthorized use of copyrighted musical compositions,
  • Adaptation through rewritten lyrics,
  • Breach of YouTube’s Content ID rules.

At the core of this controversy lies a deeper debate: does political satire, particularly when using popular melodies, fall under legal exceptions to copyright? (At the outset, I clarify that Kunal’s take that parody and satire definitely come under fair legal use is incorrect.)

How does the Indian copyright law treat parody and satire?

India follows a stricter “fair dealing” doctrine, codified under Section 52 of the Copyright Act, 1957. This lays out a specific list of scenarios, like private research, criticism or review, reporting of current events, education, or judicial proceedings, where copying isn’t considered infringement. Unlike fair use, this list is exhaustive, not illustrative. That means if your purpose isn’t on the list, you’re likely out of luck.

In practice, the lack of clear legal guidelines on permissible usage and on fair use means its application often hinges on case-by-case judicial interpretation such as whether Kamra’s altered lyrics and borrowed melodies were used to critique the originals or merely to attract attention, and whether his work transformed the source material enough to qualify as protected parody rather than commercial exploitation.

Fair dealing in India does not permit full reproduction of content but the use of brief excerpts accompanied by commentary, criticism, or for news reporting is generally considered non-infringing.

In the present case of parody and satire, though it’s not mentioned by the statute, Indian courts have read it into fair dealing. Let’s have a look at some landmark Indian cases.

In India TV v. Yashraj Films1 [“India TV“], satirical film clips used in a news segment were allowed as criticism. The court reaffirmed that humorous or mocking critique still qualifies as transformative use. It also held that the use of film clips in a satirical news segment did not harm the market for the original songs or films, because the purpose was criticism and commentary, not entertainment or substitution. The court emphasized that transformative and critical use, even if it involves recognizable works, does not compete with or replace the original in the market.

In Civic Chandran v. Ammini Amma2 [“Civic Chandran“], a play that parodied a popular drama in the form of a counter-drama was challenged for infringement. The court upheld the parody as fair dealing, stressing the need to protect ideological and political critique. The relevance of these precedents is that they show that parody, especially of a political nature, is legally permissible, even without express mention in the statute.

Similarly, Kamra’s satirical video Naya Bharat appears to have been created primarily for the purpose of political critique. Like the counter-drama in Civic Chandran, his work reproduces parts of well-known songs to anchor his criticism. The use of iconic Bollywood melodies arguably served as a deliberate contrast to the serious political content, amplifying the satirical tone. While Kamra may have earned revenue through platform monetization, courts have held that commercial gain alone does not negate a fair dealing defense, especially when the work is transformative and the borrowed elements serve a critical and arguably necessary expressive function. Additionally, Kamra’s work does not function as a substitute for the original songs “Hawa Hawai” or “Bholi Si Surat.” No reasonable viewer would watch Naya Bharat instead of listening to the original Lata Mangeshkar rendition. The video’s goal is to politically critique the “New India,” not to replicate or redistribute the entertainment value of Bollywood hits. Thus, Naya Bharat does not threaten T-Series’ market or licensing interests in any meaningful sense—reinforcing its claim to fair dealing.

How does U.S. law help clarify the issue?

The U.S. adopts a more flexible “fair use” doctrine under Section 107 of its Copyright Act, 1976, which allows for the reproduction of copyrighted work to a certain degree (often limited), in order to protect public interest, while balancing the rights of the holders. It is non-exhaustive and evaluated on a case-by-case basis using four fairness factors:

1.     Purpose and character of the use (whether it’s commercial or transformative);

2.     Nature of the copyrighted work;

3.     Amount and substantiality used;

4.     Effect on the potential market or value of the work.

Let’s look at both supportive and restrictive landmark cases. In Campbell v. Acuff-Rose Music, Inc.13, the rap group 2 Live Crew created a parody of Roy Orbison’s 1964 hit “Oh, Pretty Woman.” They used the song’s distinctive bassline and opening lyrics but altered the rest of the track to include humorous and sexually explicit content. Despite being denied permission by the copyright owner, Acuff-Rose Music, 2 Live Crew released the parody commercially. The U.S. Supreme Court ruled in favor of 2 Live Crew, holding that the parody constituted fair use, as it was transformative, offered social commentary, and did not harm the original song’s market. The court emphasized that even commercial use could qualify as fair use if it added new meaning or expression. Additionally, the court here also clarified that a parody is unlikely to usurp the market for the original work because it serves a different purpose – commentary rather than entertainment. This case supports Kamra’s defense. Like 2 Live Crew, he rewrote lyrics to comment on broader themes (here, political critique), using only what was necessary to evoke the original.

However, in MGM v. Honda4, a James Bond-like ad using similar music was ruled not fair use because it didn’t critique the original, it merely borrowed style and fame for commercial appeal. This case shows that just invoking a familiar work without clear critique of the original can weigh against fair use. If Kamra’s video had simply used Bollywood songs to gain attention without commenting on the original songs or offering political critique, this precedent would cut against him. However, Kamra’s lyrics clearly transformed the meaning of the songs into pointed political commentary, unlike Honda’s advertisement, which only borrowed the “coolness” of Bond without satire.

How does Rule 23 fit in?

Some may argue that Kamra should have complied with Rule 23 of the Copyright Rules, which governs cover versions. However, I argue that the rule applies to musical renditions or adaptations for performance, not necessarily to transformative parody for critique. If the parody qualifies as criticism, the rule may not apply. Moreover, Rule 23 cannot override Section 52 exceptions.

What’s the verdict? Infringement or commentary?

In my opinion, Kamra’s Naya Bharat is:

  • Transformative: It rewrites lyrics to generate new, critical meaning.
  • Non-substitutive: Viewers won’t confuse it with the original songs.
  • Proportionate: It uses only what’s necessary to deliver the commentary.
  • Aimed at critique: It engages in social and political criticism.
  • Minimal market impact: It is unlikely to affect the market value or audience for the original songs—consistent with Indian and international judicial reasoning.

All this brings it within the fair dealing exception under Section 52(1)(a)(ii) of Indian copyright law and fair use under U.S. law. Far from infringing, Naya Bharat is a legally permissible expression of political dissent through art.

The Copy That! View

Kunal Kamra’s Naya Bharat likely qualifies as fair dealing under Indian copyright law. It is transformative, critical, and proportionate in its use of original material. Indian precedents such as Civic Chandran and India TV, along with international cases like Campbell, support the view that parody is not merely derivative, but a legitimate and protected form of political expression. Moreover, in Ashutosh Dubey v. Netflix5, the Delhi High Court recognized that stand-up comedians often exaggerate for effect, and their work is generally understood as satire rather than statements of fact. This reinforces the idea that political satire should be viewed through a lens of creative expression, not literal infringement.

That said, Kamra’s legal position – while hopeful, is not without vulnerabilities. Indian law lacks an explicit exception for parody, and enforcement mechanisms on platforms often bypass fair dealing analysis. As the Civic Chandran judgment also noted, the permissible extent of copying depends on context, with no hard-and-fast rule to guide creators. Until Indian law expressly recognizes parody as a protected form of critique, works like Naya Bharat will remain at risk, walking a legal tightrope between creative expression and censorship.

  1. India TV Independent News Service Pvt. Ltd. & Ors. v. Yashraj Films Pvt. Ltd. (2013 (53) PTC 586 (Del)) ↩︎
  2. Civic Chandran and Ors. v. C. Ammini Amma and Ors., 1996 PTC 670 (Ker HC) 675-677 ↩︎
  3. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).  ↩︎
  4. Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., Inc., 900 F. Supp. 1287 (C.D. Cal. 1995) ↩︎
  5. Ashutosh Dubey v. Netflix, MANU/DE/1008/2020 ↩︎