LIBRARY EXCEPTION AND COPYRIGHT CONFUSION

THIS ARTICLE WAS WRITTEN BY TANISHA SINHA, A STUDENT OF GALGOTIAS UNIVERSITY.

INTRODUCTION

“Creating a system within which libraries can function effectively is a key element in achieving the meaningful balance of objects in copyright law”

-United states constitution[1]

The pandemic indeed rearranging our lives and requires us to think how several laws operates.

The main legitimization of cutting out a library exemption under copyright law is to guarantee that availability to research and safeguarding of data assets are made accessible to all, explicitly focusing on people who have restricted assets. The presence of the said exemption caught under copyright law fills the essential need to guarantee reasonable spread and making of existing and new works which is additionally a demonstrative factor of the harmonious need to stimulate creation of works in addition to fulfilling the factor of accessibility of such works[2].

The library exception can be sorted as an overall exemption and an essential part of copyright law, The patents in medical contexts are recent now, however boundaries of copyrights are also being tested. With the world on virtual platform the question on how copyright laws and “fair use” provisions extend to online users.

No splendid line test exists for deciding if a specific use is “fair use” or an act of infringement, so each utilization requires a one case at a time case determination[3]. It resembles an open-ended legal doctrine. fair use is a safeguard to a suit for infringement. It’s an exception of the copyright laws which access the content without permission of owner but institution such as libraries serve public interest in a broader way will it come u der the exception also?

Library Exception under Copyright Law: A Brief Analysis

The term of “library exemption under copyright law” from an expansive perspective permits libraries to make duplicates of protected works without the requirement for approval from the creator or legitimate copyright owner[4]. Indian copyright law gives exemptions for use of protected works under the statutory fair dealing of the copyright Act (section 52) just as under the judicially made fair use exception.

Comprehensively the law licenses use of protected works by libraries for the accompanying purposes:

1. research and education
2. Instructions, teaching and training
3. Private examination;
4. activities of schooling organization;
5. Survey and analysis;

This is not an exhaustive list and is subject to judicial interpretation based on facts, degree of use and impressions/ objective of use.

However, the Indian Copyright Act doesn’t explicitly outline exceptions for libraries, most exception gave in the treaty will fall inside the extent of fair use/fair dealing exceptions to copyright in India.

It is to be noticed that with the quick expansion in digitization, the idea of libraries are quickly changing and taking the action to the cyber space example sci-hub, libgen etc.

In order to ensure that such protected material is ensured on advanced medium like licit online research data base, nations have set up mechanical measures and digital rights information management to combat issues of piracy and online copyright infringement[5].

In India, section 65A and section 65B of the Copyright Act manage security of technological measures and rights the management information to control and prevent robbery and online copyright infringement among other burgeoning issues.

PANDEMIC AND COPYRIGHT EXCEPTION

In the wake of covid-19 the education finding its way through virtual methods however, this unprecedented and unexpected shift to online education will bring the issue of copyright.

Because of development of data innovation, on a single snap, a huge number of duplicates can be produced and the data can be flowed across the globe. This has acquired news challenges for the protection of copyright. Aside from the use of protected material in online classes, the sharing of protected material through advanced libraries is a worry. As of now, the Copyright Act painfully falls short in addressing concerns with respect to setting up computerized libraries, even in such circumstances of crisis.

section 52(1)(n), got through the 2012 Copyright Amendment Act, allows a ‘non-commercial public library’ to store a digital duplicate of those works which it’s anything but an actual duplicate of, for the purpose of preservation[6]. While this takes into account for storage of digital copy, it gives no clarity concerning the reasonability of distribution/communication of that copy.

Further, varying terms ‘library’, ‘non-commercial library’ and ‘non-profit library’ are used in the Copyright Act, creating more turmoil in regards to if college libraries are covered under this provision or not.

Any defence against copyright infringement with the end goal of digital lending would essentially depend on two guards – first, that the ‘lending’ of a legally possessed copy of a literary work doesn’t infringe copyright as characterized under Section 14 of the Copyright Act; and second, that the use is, in any event, fair dealing, ensured under Section 52 of the Copyright act.

1. sci-hub libgen case

On 6th January 2021, the Delhi High Court considered the matter to be significant for the public’s thought. The court consented to hear the researchers, scientists, and understudies prior to passing an interim order in the copyright infringement.

The court decided this as an application was recorded by the Delhi Science Forum, Society for Knowledge Commons, and a group of 20 scholars and researchers. They said that the obstructing of ‘free-download’ sites will deny the scientific researchers in poor and developing nations as these sites give admittance to explore.[7]

2. DU photocopying case (university of oxford and ors. V. rameshwari photocopy services)

In a landmark judgment, the Division Bench of the Delhi High Court on December 9, 2016 decided that the readiness ‘course packs’ for example accumulation of copies of the significant portion of various books recommended in the syllabus, and their distribution to the students by educational institutions doesn’t establish infringement of copyright in those books under the Copyright Act, 1957, as long as the inclusion of the works copied (independent of the amount) was justified by the reason for educational institution. It held that such copying qualifies as reproduction of the work by an educator in the course of instruction and along these lines doesn’t add up to copyright infringement by virtue of Section 52(1)(i) of the Act. As a result, it held that the instructive educational institution doesn’t need a permit or consent from the publishers for making and distributing course packs to students if the protected materials included in them are important with the end goal of educational use by the educator to the class.[8]

3. US Archive NGO lawsuit

In March 2021, the US-based Internet Archive suspended wait-list for the 1.4 million books in its inventory by making a “national Emergency Library” intended to go on until the finish of the lockdown. According to the Archive, this was done to give students access to assigned readings and library materials.

however, four major publishing houses sued the Archive, asserting that it added up to copyright infringement and privacy. For the uninitiated, the Archive is a NGO that portrays itself as an internet library for “offering permanent access for scientists, researchers, historical collections that exist in digital format.” It uses an arrangement of controlled digital lending that incompletely depends on the first sale doctrine, which gives the purchaser of a book the option to sell, loan or dispose it. It contends that the lockdown made physical books in libraries difficult to reach to general society and it is attempting to fill this “phenomenal need” for books.  The ruling of this case will have a significant implication in examining another jurisdiction as well.

CONCLUSION

This issue basically strikes at the center of the IPR law, which plans to boost development and progress for society by adjusting the economic right of copyright holders while additionally empowering access for public great. therefore, user rights are a significant segment of copyright law also, since empowering access may better serve the bigger objective of development and progress. “Fair use” arrangements are a significant manner by which this equilibrium is struck in copyright frameworks all around the world.

In India, the Copyright Act has a restricted clause in its “fair dealing” provisions permitting libraries to store digital duplicates of works effectively in their possession. But there is no clarity on whether access to and distribution of such work is allowed. There aren’t any provisions specific to digitalized libraries and systems, for example, controlled digital lending have not yet been tried in courts here. This prompts vulnerability on the legality of providing digital library access in India. As a component of guaranteeing consideration and access to resources and services, evaluate how copyright law should adjust to digital technologies and how existing rights ought to work in a digital context.

The Government of India under the aegis of the Ministry of Science and Technology has proposed the aspiring venture of “one nation, one subscription” which means to defy the issue of individual institutional journal subscription, this drive is to be accomplished through negotiation with worldwide publisher which at present is by all accounts over-ambitious, remembering the enormous power used by such publishing houses.

[1] United States Constitution, Art. 1, Cl. 8.

[2] Kenneth D. Crews, Copyright Exceptions and Limitations: Libraries and Services, WIPO

[3] United States v. Elcom Ltd., 203 F Supp 2d 1111, 1121 (N D Cal 2002) (citing Harper & Row Publishers, Inc. v. Nation Enters, 471 US 539 (549) (1985).

[4] World Intellectual Property Organization SCCR, Study on Copyright Limitations and Exceptions for Libraries

[5] Copyright Exceptions for Libraries Widespread, Study at WIPO Shows, But Disharmony Persists,

[6] https://ndlproject.iitkgp.ac.in

[7] https://iprlawindia.org/sci-hub-libgen-case

[8] spicyip.com/resources-links/du-photocopy-case