About The

Authors

Jagdish Sagar Professor (Dr)

Prabuddha Ganguli

A Copyright and entertainment lawyer practising

independently since 2012, Jagdish Sagar’s main practice is in
An author of 6 books on Intellectual Property Rights,
the music industry, films and performers’ rights. However, his
publications and contribution to IPR over the decades, he has
expertise also includes other copyright areas and some
received recognitions and awards from national and
general practice including constitutional writ litigation. Earlier,
international agencies. He has been practising in the field of
as a civil servant, he participated in the TRIPS negotiations as
Intellectual Property Rights since 1991. Since 2001 he has
India’s sole copyright negotiator, and steered major
been managing his consulting firm as CEO of VISION-IPR
TRIPS-compliant copyright amendments to India’s copyright
offering services in the management of Intellectual Property
law; having exposure to international copyright has also given
Rights and Knowledge Management. He held the prestigious
advice in this area. Has frequently spoken on copyright issues
position as Honorary Scientific Consultant for Innovation and
in India and abroad.
IPR matters to the Office of the Principal Scientific Adviser,
Government of India from 2005 to January 2018. He is also an
international consultant to the World Intellectual Property
Organisation (WIPO). All India Council for Technical Education
(AICTE) has engaged him as a “MARGADARSHAK” to mentor
several Universities in India. He is also Co-Principal
Investigator in the National Digital Library of India (NDLI)
project at IIT Kharagpur and Advisor to IIT Jodhpur.

Prof. (Dr.) Vishwas

H. Devaiah

Prof. (Dr.) Vishwas Devaiah is a Professor at the Jindal Global

Law School, Director of Centre for Post Graduate Law School.
He is also the Executive Director of the Centre for Intellectual
Property and Technology Law (CIPTEL), and Director of
JIRICO where he has led research and capacity building of Prof. (Dr.)
JIRICO. Dr. Devaiah was awarded the 2015 Microsoft IP Indranath Gupta
Teaching Fellowship to engage with researchers in the
University of Washington Law School in Seattle.
Prof. (Dr.) lndranath Gupta is a Professor at the Jindal Global
Law School, Dean of Research & Controller of Examinations at
OPJGU. He is Director of JIRICO and Senior Fellow at the
Jindal Institute of Behavioural Sciences (JIBS). His current
projects include copyright infringement on online platforms
with researchers at Nanyang Technological University in
Singapore, National Digital Library of India Project with IIT
Kharagpur, and FRAND licensing in the ICT sector.

Page 2
 Contributors
Prof. Prabuddha Ganguli
CEO, VISION-IPR; Rajiv Gandhi School for Intellectual Property
Law, Indian Institute of
Technology Kharagpur; Co-Principal Investigator, National
Digital Library of India, IIT
Kharagpur; West Bengal, India; Advisor, IIT Jodhpur.

Prof. Indranath Gupta and Prof. Vishwas H. Devaiah

Jindal Global Law School, O.P. Jindal Global University

Mr. Jagdish Sagar

Advocate

Supported by:
National Digital Library of India (NDLI);
Indian Institute of Technology Kharagpur,
WestBengal, India

Disclaimer-This Guide should not be treated as a legal

opinion. In specific situations
professional legal advice ought to be sought. The authors’
opinions are personal.

Copyright:
Copyright belongs to the authors and the work is licensed
under the terms of Creative
Commons Attribution 4.0 International Licence
https://creativecommons.org/licenses/by-nc-
sa/2.0/

Page 3
 TABLE OF
CONTENTS
INTRODUCTION 5 Technology Circumvention 12

What is Copyright? 5 Orphan works - 12

The Concept of Public Domain 6 Section 52(1)(p): 12

What are the Rights of Creator and 6 Section 31A: 13

Who would be the Owner of Works?
Underlying works: 13

The concept of Author’s Special 6 Performers’ rights: 13

Rights
Making works available in a format 14
accessible to persons with
What Works would not receive 6
disabilities
Copyright protection
Template for making work 14
Copyright Ownership: 6 accessible to disabled persons

International Conventions and 7 Compulsory Licence 15

Agreements Educational Exceptions 15

How to transfer Copyright 7 Display Publicising a library’s 15

collection
Making the collection available 15

COPYRIGHT AND 7 online

LIBRARY OPERATIONS Users’ Rights 15

Non-commercial public library 7 Declaration by User/Patrons of the 15

library
Electronic storage for preservation 8
Template of Declaration 15
Making of a Non-Digital Copy from a 8
Preserved Digital Copy Institutional publications/ theses 16
and dissertations/working papers
Template for record-keeping 8
Government publications/ datasets 16
Copies of unavailable books 9
Concluding Remarks 16

Books not available for sale in India 9

Template for record-keeping 9 GLOSSARY 17

Negotiating Licenses, Subscriptions 10

to Books and Journals Especially with
Regards to Electronic Resources

Electronic resources and Fair dealing 11

exceptions

Page 4
 INTRODUCTION What is
Copyright?
Expressions in diverse forms are as old as human existence
and have served as means of communication, documentation
& recording of thoughts, events, and feeling. Societal Under the Copyright Act, 1957 (as amended in 2012),
evolution and sophistication in technologies, has not only henceforth called “The Act”, “Copyright” connotes the bundle
resulted in irreversible changes in the nature and forms of of “exclusive rights” (subject to certain exceptions as defined
expressions, but also the diverse tools and means for their in copyright law) that the law confers on the owners of
fixing and transmission. Printing, photography, recording & copyright. Thus, copyright subsists in all works that are not in
amp; transmission of sound and telegraphy, were the early the public domain and which are specified in the Copyright
disruptive technological advances. The last few decades have Act, namely literary, dramatic, musical and artistic works, and
experienced unprecedented advancement in technologies cinematograph films; sound recordings also enjoy copyright. It
related to reproduction, storing, transmission and is to be appreciated that not all expressions are subject matter
transformation of information in digital form. All such of copyright. Copyright Laws in various jurisdictions provide
developments have collectively widened the opportunities for indicators that help to identify expressions that are
creative expressions including their archiving, adaptations, copyrightable and differentiates them from those that are not
transmission, storage and use. copyrightable (Section 13 of “The Act”). The Copyright
Rules, 2013 came into force from 14 March 2013 providing
The creators of expressions aspire for the widest distribution procedures to be adopted for the execution of various
in society and use of their creations. Simultaneously, such provisions of the Copyright Act. 1
creators desire a fair return for their efforts, protection against
unauthorized reproduction & misuse, and reasonable Further, it is to be appreciated that Copyright can be enforced
recognition as fuel for their continued creative endeavours. both in civil and criminal courts. The Copyright Act also
Copyright and the Related Rights as one of the tools of provides for a constituted Intellectual Property Appellate
Intellectual Property Rights (IPR) provides protection for the Board as an alternative forum to the Courts for resolution of
broadest range of creative works not in the public domain. issues related to assignments and payment of royalties.
Copyright by its very nature interfaces with works that may be Under specific circumstances related to copyright, the
classed as literary, dramatic, musical and artistic works Customs Department under the Commissioner of Customs
including painting, architectural, works of artistic can exercise its powers to seize infringing imports in
craftsmanship including industrial drawing, sculpture, conjunction with courts that have jurisdiction. 2
computer programs and computer-generated works,
lectures, films and (in India and some other countries, in Registration of copyright is not mandatory. Copyright subsists
sound recordings) etc. Neighbouring rights or related rights with the author as soon as the work is created. The © mark
cover broadcasts, cablecasts, (and, in some countries, sound with the name of the author and the date may be inserted in
recordings). the form of a copyright notice in the work though it is not
mandatory as well.
Technologies related to creation, reproduction, storage, However, on registration of the work in the Copyright Office,
transmission and communication have dynamically the details such as the names, titles of the registered works,
influenced and impacted copyright laws in terms of their names and addresses of authors, publishers and owners of
jurisprudence, scope, definitions, nature and extent of rights, copyright, etc., are entered in the Register of Copyrights, which
features of enforcement, jurisdictional aspects etc. can serve as evidence of the existence of the work at the
time of registration. A copyright registration certificate is of
Librarians and Information professionals are engaged in evidentiary value to that extent only. 3
dealing with copyrighted and non- copyrighted material in
their regular activities related to creating and maintaining The term of copyright in most cases shall subsist for the life
collections of books, journals, reports and documents of of the author and 60 years after the death of the author. In
numerous types, ensuring their preservation, providing for some cases, including sound recording and cinematographic
their access and distribution by many means / mode to the film the term is 60 years from the date of publication. For
public (e.g. facilitating borrowing, photocopying, interlibrary more details, please refer to annexure 3. It is to be appreciated
loans), publishing and making available to public that the term of copyright cannot be renewed. 4
announcements of new arrivals in the library collections,
creation of metadata to aid in identifying, searching & Terms and expressions frequently used in the field of
retrieving of targeted information, providing electronic links of copyright in conventional libraries and digital libraries are:
their collections to digital platforms as digital libraries, etc. works, original work, derivative work, ownership, author,
adaptation, artistic work, literary work, work of sculpture, work
This Copyright Guide for Libraries in India has been developed of architecture, photograph, musical work, engraving,
with the objective of creating an easy to understand manual computer, computer program, course packs, performance,
and use the nuances of the copyright laws in India together performer, composer, producer, cinematograph film, and
with the Information Technology Act in India in the context of audiovisual production, publication, broadcast,
diverse operations in non- digital and digital libraries including communication to public, cable-cast, infringing copy,
digital platforms such as the National Digital Library of bootlegged, fair use, fair dealing, transformative use, personal
India (NDLI). use, duplication equipment, reprography, sound recording,
digitisation, e-books, e-publications, work of joint authorship,
employment, contract of service, contract for service,
government work, moral rights, copyright society and
duration/term of copyright, licensing, transfer of rights,
assignment [For more details please refer to the glossary at
Page 5
the end of this Guide].
 The author or his legal representatives shall
The concept have the perpetual right to restrain or claim damages in

of Public Domain
respect of any distortion, mutilation,
modification or other acts in relation to the work, if such
distortion, mutilation, modification or other
acts that would be prejudicial to his honour or reputation. The
The public domain comprises: (a) works in which the term of moral rights remain with the author
copyright has expired; (b) material, which is not copyrightable, even after the transfer (assignment or transfer of title of the
e.g. because it is not “original”; (c) works which were created, work) of the economic rights.
or whose authors died, before there was any copyright law
(copyright being a purely statutory right);
in India that means before the Imperial Copyright Act, 1911
came into force.
What Works
would not receive
What are the Rights Copyright protection
of Creator and Who
would be the Owner Copyright protects “expression”; mere ideas, and concepts
including but not limited to procedures,
of Works methods of work and mathematical concepts as such are not
protected by copyright.

According to Section 15 of The Act, copyright shall not subsist

Central to copyright is the recognition of the creator and the under this Act in any design, which is registered under the
owner of the work. Ownership, which is transferrable by Designs Act, 2000 (16 of 2000)]. Further, copyright in any
“assignment” and for the use of which the owner may grant design, which is capable of being registered under the Designs
licences, means the right to exercise the exclusive rights Act, 2000 (16 of 2000)] but which has not been so registered,
enumerated in Section 14 (Sections 14 and 17 of “The Act”). shall cease as soon as any article to which the design has
Copyright subsists in the expression and not in the underlying been applied has been reproduced more than fifty times by an
ideas. industrial process by the owner of the copyright or, with his
licence, by any other person. 7
Hence documentation and establishment of the authorship,
the time, place of creation of the work, the nature of the Copyright is a purely statutory right: there is no copyright
creative work and the circumstances under which the work is except as specifically granted by the Act. Section 16 of The
created are of significance as they determine the contour of Act states that no person shall be entitled to copyright or any
rights of the author / owner of the work, nature of the right, the similar right in any work, whether published or unpublished,
duration of the right and scope of monopoly. Copyright otherwise than under and in accordance with the provisions of
subsists as soon as the work is created. this Act or of any other law for the time being in force.
Therefore, the list of the works in Section 14 are of
Further, it is to be understood that “The Act” confers significance.
protection in the following two forms namely Economic Rights
(named “Copyright” in our Act) and Moral Rights of the author
(named “Author’s Special Rights” in our Act. 5

Both economic and moral rights subsist in original literary,

Copyright
dramatic, musical and artistic works; cinematographs films ownership:
and sound recordings. The economic rights enjoyed by the
owner of copyright are elaborated in Section 14 of “The Act”.
The author of a work is normally the first owner of copyright.
However, Section 17 of the Act lays down a few exceptions to
The concept of this rule, which arise mainly in the case of works created by an
employee for an employer’
Author’s Special The general rule is that where a work is created under a
Rights contract of service or apprenticeship the first owner of
copyright, absent a contract to the contrary, is the employer
(though he does not become the author, and the author
retains his moral rights unless waived.). This situation of a
Section 57 of “The Act” refers to what are commonly called “contract of service” does not apply to a contract for service
the “moral rights” of an author (“Author’s where the author is an independent contractor: such an
Special Rights”) specifically with regard to what are generally author, to whom work has been outsourced, does not lose
called “Right of Paternity”, and “Right copyright ownership absent a contract to the contrary.
of Integrity”. The “Right of Paternity” refers to a right of an
author to claim authorship of the work and a However, there are a few special cases to bear in mind:
right to prevent all others from claiming authorship of his
work. Moral rights also seek to protect the (1) Unlike other instances of works created under a contract
integrity of a work and the author’s connection with it. of service, in the case of a literary, dramatic or artistic work
(including of course a photograph) made in the course of
employment by a newspaper or magazine/journal etc.
Page 6
the employer’s first ownership of copyright is limited to the The same applies to neighbouring rights including performers’
use of the work in the same newspaper or magazine, and for rights, broadcast reproduction
all other purposes the author remains the first owner of rights and to the agreed exceptions for the disabled in the
copyright. case of countries that have joined the
Marrakesh Treaty.
(2) Secondly, in the case of a photograph taken, or a painting
or portrait drawn, or an engraving or a cinematograph film
(as distinct from its underlying works) made for valuable
consideration, the person at whose instance the work was How to transfer
created is the first owner of copyright; in such cases an
independent contractor who may have made the work is not
Copyright
the first owner of copyright.

(3) Thirdly, films are treated as a special case: even where the The transfer of economic right in a copyright is called an
“underlying works” like music, lyrics, screenplay, assignment. “The Act” mandates that the mode of transfer of
choreography, artistic works such as set design, etc. are made title of the economic rights in a copyright by way of an
for a film under a contract of service, the producer (who assignment by the owner of the copyright must be in writing, it
remains author of the film per se) is not the first owner of must identify the specific rights assigned and should specify
copyright in the said underlying works though made by his the period and territory. The assignee becomes the owner of
employees, and has to obtain assignments from them as copyright for the rights assigned to him. [Section 18 and 19]
authors thereof.
The copyright owner may grant a license (Permission) by way
(4) Fourthly, in the case of Government works (i.e. works of a contract for any specific use of the work. In the case of
made for the Government whether by Governments servants licenses, there is no transfer of ownership or title to the
or not) the first owner of copyright is the Government, absent copyrighted work. Most licences are non-exclusive, i.e. the
an agreement to the contrary. The same principle applies to owner of copyright can grant such licences to as many users
works made for a public sector organisation or for an as he wishes. [Section 30]
international organisation whose copyrights are protected in
India by notification under Section 41 of the Act.

Finally, a note of caution: the American term “work for hire” is

gaining currency in India, quite unthinkingly. It should be COPYRIGHT AND
LIBRARY OPERATIONS
eschewed because in some situations in US law what we call
contracts for employment are treated just like our contracts of
employment, and thus a person outsourcing work to an
independent contractor becomes the first owner of copyright
where he would not in India; further US law does not Library operations need to be carried out respecting the rights
distinguish between authorship and first ownership of copyright owners. Further, the Copyright Act (the “Act)
of copyright in such cases, hence the first owner of copyright carves out some exceptions specifically for libraries: it is
who is not the author in Indian law, may be designated the important to avail of them within the law. Further, it is
“author” under the US “work for hire” doctrine. 8 necessary to be aware of the rights and obligations of users of
the library in order to enable them to make lawful use of their
rights.
International Conventions Copyright law is not generally concerned with the ownership
and Agreements of physical copies, but rather with the intangible rights
subsisting in their contents. Generally, a person who commits
an infringing act will be liable regardless of who owns the
physical copy. However, the position is slightly different in the
India is a member of the international conventions and
case of the library exceptions discussed below.
agreements such as the Berne Convention; Universal
Copyright Convention (UCC); the Convention for the Protection
of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms (Phonograms Convention)
and the Agreement on Trade-Related Aspects of Intellectual
“Non-commercial
Property Rights; the WIPO Copyright Treaty; the WIPO public library”
Performances and Phonograms Treaty; The Marrakesh Treaty
to Facilitate Access to Published Works for Persons Who Are
Blind, Visually Impaired, or Otherwise Print Disabled (MVT); the
Digital storage for archival purposes and the reproduction for
Beijing Treaty on Audiovisual Performances.
the library’s use of books that are not available for sale in India
are two special exceptions enjoyed only by “non-commercial
As a member of the Berne Convention any work first published
public libraries”. 11
outside India in any of the convention countries enjoy
protection in India at par with the protection granted to Indian
“Non-commercial public library” includes any library (a) that is
works with the exception that if the term specified in the
either maintained/ established/aided by the Government or
country of origin is shorter than that in India, the work will be
notified by the Government as a public library or whose
protected for the shorter term in India and the converse in the
primary activities are the collection and preservation of books,
case of Indian works protected in other countries that are
periodicals and other documents and the provision of library
members of the relevant conventions. 10
services and (b) which makes its collection accessible to the
public.
Page 7
To elaborate: the term “commercial” essentially connotes activities involving trading. A “non- commercial public library” would be one
that is (a) non-commercial in this sense (whether or not earning a profit by other means, like membership fees) and (b) is “public”.
The term “public” is wide: whatever is not “private” in the commonly understood sense of being limited to a private circle of family and
friends is “public”. For our purposes the library’s collection should be accessible to the public (notwithstanding that it may impose
membership conditions like paid membership). 12

Electronic storage
for preservation
Under Section 52(1)(n) of the Act a non-commercial public library may “store a work in any medium by electronic means…for
preservation if [the] library already possesses a non - digital copy of the work.”

This is the only one of the library exceptions that applies to any kind of work, i.e. literary, dramatic, musical or artistic works or films or
sound recordings. The precondition is that the library should possess a non-digital copy. “Possession” would not include a copy on
temporary loan: it should be with the library on a permanent basis.

The purpose being preservation, the library is free to create a non-digital copy of the work from the preserved digital copy to replace
the non-digital copy that has been lost or destroyed or is in such a damaged condition that it cannot be used for library operations.

Making of a Non-Digital
Copy from a Preserved
Digital Copy
It is desirable that libraries should avail themselves of the exception under Section 52(1)(n) of the Copyright Act by making digital
copies of their non-digital collections in order to ensure that at all times copies of the work must be available in libraries. An indexed
record of the such digital copies must be maintained at all times.

Template for record keeping

MAKING OF A NON-DIGITAL COPY FROM A PRESERVED DIGITAL COPY

The Copyright Act, 1957 governs the preservation of a work through electronic means by a non-commercial public
library.

It is hereby declared that:

1. (Title of the work /literary work/dramatic work/musical work (sheet music/ sound recording)/cinematograph film
(celluloid/DVD etc.) as recorded in the library catalogue has been maintained by the library from (year acquired by the
library).

2. That due to (mention the reason) the work is mutilated /destroyed on (date).

3. A non-digital copy has been created from the backup digital copy on (date) and has been included in the library
collection.

Date: Signature of the Authorized Person

Page 8
 Copies of Template for Record
unavailable books Keeping
Under Section 52(1)(o) of the Act the person in charge of a
non-commercial public library, or persons acting under his or Three Copies of a book/ a pamphlet/ sheet of
her direction, may make up to three copies, for the use of the music/map, chart/ plan/ if it is not available for sale in
library, of a “book” that is not available for sale in India. India
Second-hand books available from on-line retail or
serendipitously from a second-hand bookseller should not be The Copyright Act, 1957 governs the making of three
considered as being available for sale in India. The courts copies of a book/ a pamphlet, sheet of music, map,
have held that items priced beyond the means of most chart or plan by a non-commercial public library if
people may also be treated as not available for sale in India.13 such work is not available for
sale in India.
This exception is limited to non-digital formats. A “book” need
not be sheets of paper bound between hard covers, though It is hereby declared that the library:
that is its usual sense. It is broadly, a physical carrier of two- 1. Made reasonable attempts to acquire (Title of the
dimensional works (including two-dimensional work) published by (name of the publisher, year of
representations of three- dimensional works). publication) by placing an order for the same on (date).
Under the Act “book” includes (but is not limited to) a
pamphlet, sheet of music, map, chart, or plan. Issues of 2. That the same was not made available to any
printed journals or magazines, newspapers and such other distributer in India as on (date).
print documents would also count as books. 14
3. Under the direction of the person in
If a book becomes available for sale in India after copies have charge-of-the-library three copies of the book/ a
made in good faith under this exception the library may pamphlet/ sheet of music/ map/ chart/ plan was made
continue to use these copies as they were lawfully made at on (date) for the use of the library.
the time when made and the Act does not restrict their use (in
contrast with the digital storage exception, which is strictly for
preservation.
Date:
Person Digitization in libraries

Books not available

for sale in India Signature of the Authorized

For books that are not available for sale in India. It is important
for libraries to exhaust all possibilities before photocopying
multiple copies of the available copy. The Section in the
Copyright Act containing this provision does not explicitly
allow libraries to make three copies of e-books that are not
available for sale in India. Therefore, the language of the
Section deals with physical copies of books.

Page 9
Modern day libraries are custodians of knowledge and cultural
materials. Physical Libraries are slowly transitioning into Negotiating Licenses,
Subscriptions to Books
digital spaces, providing access to books and journals. In
some instances, libraries are also digitizing and archiving
materials that are in the public domain and uploading
copyrighted material with the sole aim of increasing access to and Journals Especially
knowledge or to enable people to engage with cultural and
historical materials. However, it is important for libraries
with Regards to Electronic
involved in digital archiving of materials to ascertain
ownership of copyright in such materials and get permission
Resources
to digitize such material for public non-commercial use.

Projects on digitization of information resources, conversion It has become necessary for libraries to maintain electronic
of physical documents into digital formats for preservation resources and provide access to its patrons. Electronic
and diverse uses are common activities in most institutions. resources could be in varied forms like subscriptions to
Extreme care with respect to copyright must be exercised in electronic databases, e-books, e-journals etc. It is necessary
executing digitization projects. Assessment of what may be to understand that this primarily requires a library to sign
digitized merely for the creation of archives for preservation licensing agreements with content providers. This generally
and / or distributed and made accessible to users is now an entails giving up specific rights which a library would normally
imperative. Similarly, execution of interlibrary loans of have if it had bought a hard copy of books or journals.
e-resources either created or procured, must also be
subjected to a process of “due diligence” with regard to It is important to note that libraries do not own the e-book or
copyright. e-journal, but will only have limited access to the content as
per the terms of the licensing agreement. The licensing
Section 65A titled “Protection of technological measures” and agreement in most instances will dictate the terms of access
Section 65B titled “Protection of Rights Management and it might be more restrictive than what copyright law might
Information” which are discussed further below link the allow as the terms of the contract may require library to sign
Copyright Act with the provisions also covered under the away privileges that libraries are provided under copyright law.
Information Technology Act 2000 as amended from
time to time. 15 The terms of license that a library signs to gains access to
electronic resources might narrow down access to content.
The Copyright Act must therefore also be read with the Licensing content is more like renting than buying something.
provisions of the Information Technology Act 2000 amended Publishers and information vendors may add several
in 2008 which deal with issues related to “Electronic conditions to the use of their digital resources. Similarly, the
Signatures”, “legal validity of electronic documents”, content may be available to some, or all, of the library’s users.
“Technology Circumvention”, “Intermediary liabilities”, For instance, a subscription might allow the library to store the
“Freedom of Expression”, “Privacy & Surveillance”, “Power content in a standalone computer in which case the library
to collect, monitor traffic data”, “Encryption”, “Cyber Crimes”, cannot display the content in multiple computers or provide
and penal provisions. access to the material through the network wherein multiple
users can access the content at the same time.
Libraries serve as the nerve-centre of knowledge storing and
circulation in educational institutions, especially in the Further, there are multiple ways in which a library can gain
developing world where access to knowledge is of the key access to electronic resources. There is a possibility of the
concerns. Access to educational materials which are library signing a Single Institution License, Academic
necessary to pursue higher education in a developing country Consortia License, Public Libraries License, e-book and
like India is one of the primary concerns and the judiciary has journal archive license and lastly the free trial licenses for a
intervened to clarify that libraries can play a key role in the limited duration. 17 Each of these licenses have their own
creation of course packs. Within the meaning of the phrase “in nuances, advantages and disadvantages. However, regardless
the course of instruction” and following the Delhi High Court of the type of license the library enters into, it is necessary to
judgement, libraries are allowed to prepare digital course keep in mind whether there are restrictions as to who can
packs of books as prepared by and used by educational access the content. Who are the authorized users? Does the
institutions for instructional use. The Chancellor, Masters and license allow the library to make the electronic database
Scholars of Oxford University v Rameshwari Photocopy available only to its patrons or to any visitors or walk-in users
Services & Ors. 16 Once prepared, digital course packs to the library? In most instances license limits access to such
are likely to be widely distributed and therefore libraries are databases to only authorized users of the library, especially if
better off in implementing certain access controls. These the content is allowed to be accessed through the library’s
access controls will limit the use of digital course packs only network.
to the users who have institutional affiliations.

Libraries tend to have numerous electronic resources. The

specific exceptions for libraries mentioned under the
Copyright Act do not extend to libraries having only electronic
books in their collection. Before making any further copies of
electronic books, libraries must rely on the contracts that they
have signed with copyrights owners.

Page 10
 The exclusive rights of copyright owners are subject to certain
Electronic resources limitations and exceptions. The limitations include the term of

and Fair dealing exceptions

copyright (i.e. works fall in public domain after a certain period
of time) and rights are sometimes subject to non-voluntary
licenses. For example, the Act provides for compulsory
licenses; the one most relevant for this discussion is Section
By “exceptions” we generally mean specific exceptions like 31A of the Act. It also provides for statutory licences, which do
those carved out in S.52 of the not require specific grant by any authority but may be enjoyed
Copyright Act: these are acts which would be infringing but for by operation of law: one that may at times be of interest to
their inclusion in S.52. librarians is the statutory licences for cover versions under
Section 31C of the Act.
In Section 52, there are exceptions specific to libraries, which
are discussed below. Other exceptions in Section 52 include The Digital Platforms are now a reality and the technologies of
activities related to personal use, review and criticism, today and the future will provide facile and speedy access for
various activities in educational institutions (including use of information managers / librarians to create user friendly
works in the course (52(i)); performing a play or showing a databases, technologies that will facilitate interoperability
film or sound recording to a limited audience in the institution between diverse platforms and devices thereby establishing
52(j), certain uses of government / public documents, news “inter and intra” linkages between platforms. This will be a
reporting, cases where it would be difficult or unreasonable to boon for the users irrespective of jurisdictions in which they
enforce copyright e.g. Architectural works in public places will operate. However, copyright and other IPR laws will have
public statues and so forth. to applied taking into account the technological advances; as
we have seen some amendments to deal with this new
Section 52(1)(zb) further provides for access to copyrighted environment have been made, but more are likely to come
works in special formats for persons with disabilities. into existence in future. Law Experts and Information
Managers / Librarians / IT Professionals will have to work
It may be noted that the term “museum” or the expression together to resolve the challenging emerging interface issues.
“other institutions to which the public has access” has been Further, librarians ought to familiarize themselves with the
included in Section 52(1)(p) of “The Act”. The term “Archives” nuances of contractual obligations related to access and
has been included in the explanation to Section 52(1) (zb) in distribution involving digital resources. Cross-border issues
“The Act”. may also have to be addressed.

S52(1)(b) provides that transient or incidental storage of a Further, the terms of license may impose restrictions on
work or performance purely in the technical process of copying, downloading and printing of materials accessed
electronic transmission or communication to the public does through electronic databases. Terms of license may in general
not constitute infringement of copyright. allow the authorized user to print a single copy of an e-book or
resource for private study, scholarship or research. In some
S52(1)(c) provides that transient or incidental storage of a instances, it might allow the course instructor to develop a
work or performance for the purpose of providing electronic course pack using the contents of the electronic database
links, access or integration that is not expressly prohibited provided the access to the course pack is restricted to the
by the rights holder would not be infringement of copyright, students who are enrolled in a course. However, the extent of
unless the person responsible is aware of infringement or has copying and printing of the material is entirely dependent on
reasonable grounds for believing that such storage is that of the terms of the license. For instance, many e-book archives/
an infringing copy. databases impose restrictions on number of pages that can
be printed or downloaded. In some instances, such archives
52(1)(c), is to be read with a provision that if the owner of a have technological measures that prevent copying and
copyright work, in a written complaint to the person printing. Encryption and user authentication systems might be
responsible for digitally storing an infringing copy of the work, required by the database provider, which may provide access
complains that such transient or incidental storage is an and also involve copy protection technology. Libraries will
infringement, then the person responsible would have have to ensure such technological measures are not
to refrain from facilitating access to the infringing copy of the tampered in any way and impose restrictions on its authorized
work for a period of 21 days. If within 21 days, the person users to not circumvent it.
responsible does not receive an order from a competent court
that directs the person responsible to refrain from providing Regardless of restrictive licensing terms that might prevent
access, then access may be resumed at the end of that copying, printing or downloading e-books and electronic
period. journals, it is likely that courts would be inclined strike down
such restrictive clauses on the ground that such clauses are
Infringement (S.51): Any act included in S.14 done without the fall within the parameters of Section 52 of the Act or are
permission of the copyright owner is an act of infringement, against public policy, though this cannot be assured in the
subject to the exceptions in Section 52. absence of any such judicial pronouncement as yet. Fair
dealing of a copyrighted work as per Section 52 of the
Certain activities permitted by the Copyright Act for use Copyright Act cannot be completely restricted or prevented as
without permission of the copyright owners in “The Act” to such a term in the license would directly contravene the
address the issue of how to strike an appropriate balance provisions of the statute and such terms may be held to be
between the authors’ interest in preserving the integrity of unenforceable. Delhi High Court in a recent judgement has
copyright, and the public’s right to enjoy the benefits of stated that the holder of copyright is:
copyrighted works in the larger interests to meet societal
needs. [ Delhi University case]

Page 11
“not entitled in law to impose any restrictions curtailing the “Orphan works” came into current discourse long after the
fair [dealing] thereof” and that “the legal action even if any Copyright Act, 1957 was enacted, and no subsequent
taken by holder of copyright against any other person for amendment has addressed the question. However, dealing
violating the conditions illegally imposed by the holder of with orphan works is a very real problem that librarians have
copyright, would thus fail.” to face and therefore, for the time being, we have to see how
far we can make use of existing provisions of the Copyright
Further, Section 23 of the Contract Act 1872, also states that a Act, none of which was actually drafted to deal with orphan
contract is unenforceable if the terms of the contract are works.
“opposed to public policy” or “if permitted, it would defeat the
provisions of any law”. Fair dealing exception is built into to The problem with orphan works is that there is a genuine
the copyright legislation primarily to strike a balance between public interest in making them accessible to a wider
protection of copyrighted work and access to content. Fair readership. The only effective means of doing so is by
dealing allows limited copying of work for the purposes of publishing them. However, the term, “Publication” is very
research, private study, criticism or review and reporting of widely defined in Section 3 of the Act: it means making the
events. Given that S. 52(1) allows for access to content, any work available whether by issuing physical copies of the work
restriction imposed on the library or its patrons, to use or by “communication to the public”. The latter is a very wide
e-books and e-journals for the abovesaid purposes through term including every other possible means of making the work
contractual agreement would defeat the provisions of Section available to the public. It would cover making and issuing
52 of the Copyright Act and, would, therefore, be copies in print or any other format, a live performance,
unenforceable under Section 23 of the Contract Act. physical display, broadcasting, uploading on the internet, etc.
The circumstances in which the work exists or has been in
somebody’s possession normally provide sufficient

Technology Circumvention information. In any case if the identity of the copyright owner,
or the fact of publication, becomes known to the institution, it
may no longer avail itself of the exception discussed below.

Section 65A provides protection against circumvention of The first thing to examine is whether the work is still in
effective technological measures (in effect, creating use or copyright or has fallen into the public domain. The tests are
access controls to works uploaded on the Internet) that may the same for all works, but the facts may be more difficult to
be applied to copies of a work and provides for penalisation by ascertain in the case of orphan works. This is important
way of imprisonment that may extend to two years and because civil liability for copyright infringement is “strict
payment of a fine, subject to the exceptions laid down in the liability”: under the proviso to Section 55(1) of the Act, you are
Section, which are quite broad. exempt from liability only if you can show that you were
unaware or had no reasonable ground for believing that
Section 65B states that any person, who knowingly, removes copyright subsisted in the work. This implies some due
or alters any rights management information without diligence by the librarian before treating a work as an orphan
Management authority, or Information, distributes, imports for work.
distribution, broadcasts or communicates to the public,
without authority, copies of any work, or performance knowing We have already referred to Section 52 of the Copyright Act,
that electronic rights management information has been which exempts a number of acts in respect of in-copyright
removed or altered without authority, shall be punishable with works from liability for infringement, the library exceptions
imprisonment which may extend to two years and shall also under Sections 52(1) (n), (o) and (p) being particularly relevant
be liable to fine, as well as to civil remedies. Digital rights for our purposes. Sections 52(1) (n) and (o) apply indifferently
management information includes means of identifying whether the work is an orphan work or not, but Sections
copies of a work (e.g. by digital “watermarking” and of tracing 52(1)(p) and 31A are (if serendipitously) relevant to orphan
the copying and transmission of such copies. works.

Therefore, information resource centres need to take

appropriate care while using / uploading / reformatting /
reworking on any copyrighted works. Section 52(1)(p):

Orphan works Section 52(1)(p), which deals with unpublished works kept in
any library, museum or other institution to which the public
has access, is useful but has two limitations. Firstly, it does
not extend to all classes of copyright work: notably not to
The notion of “orphan works” as a unified concept is relatively artistic works, cinematograph films and sound recordings.
recent: relevant legislation in some jurisdiction was enacted in Secondly it does not extend to cases where the library or other
the 2010s, adopting different strategies; some countries, relevant institution knows who the author of the work is: in
including the U.S., have yet to formulate their legislation. other words, this exemption does not help us in the case of
works which are orphan works for the reason that the author,
A compendious definition is provided by the U.S. Copyright though known, is not traceable.
Office:
“… any original work of authorship for which a good faith Section 52(1)(p) is nevertheless useful because the works that
prospective user cannot readily identify and/or locate the it covers—literary, dramatic and musical--are not subject to
copyright owner(s) in a situation where permission from the the “fair dealing” test of Section 52(1)(a). Section 52(1)(p)
copyright owner(s) is necessary as a matter of law.” allows the reproduction of the entire work, not only for private
use and research but even “with a view to publication”.

Page 12
The library may facilitate the complete reproduction of the
work for private use and research. However, the library may be
faced with the problem of making a valuable asset in its
Underlying works:
possession available to someone for private publication, for
profit: the law does not forbid it. So far as digital
By “underlying works” we mean works incorporated in a film
communication to the public is concerned a good strategy
or sound recording that would also be capable of independent
might be for the library to simply publish the work on its own
exploitation. In the case of both sound recordings and films
website first. However, the library should devise a transparent
these would include recorded vocal and instrumental music
policy regarding the grant of permission to publish such a
and words accompanying vocal music. The screenplay
work in print format.
(script), choreographic works, etc. would also be among the
possible underlying works in the case of a film. Since
The law does not state the consequences if the author
underlying works are authored by natural persons, copyright
appears. In such a case, the publication would have been
subsists in them until the expiration of sixty years from the
made lawfully and the author would have no remedy for the
commencement of the year following the year of the author’s
past; but he/she might possibly succeed in restraining further
death, whereas the term of copyright in films and sound
publication or demand a licence fee (which would be
recordings is sixty years from the date of publication. Hence
prospective).
the film is almost certain to fall into the public domain before
expiration of the term of copyright in all the underlying works.

Section 31A: The authors (i.e. producers) of films and sound recordings are
usually identifiable, but they might be orphan works if the
present copyright owner cannot be found (e.g. if the producer
company was liquidated). In the case of films that have fallen
Unlike Section 52(1)(p), Section 31A applies to all classes of into the public domain, the rights of the authors of underlying
work: artistic works, orphan-work films and sound recordings works are limited to the extent that under Section 52(1)(y) the
can be published by recourse to Section 31A though not under “exhibition” of a film that has itself fallen into the public
Section 52(1)(p). But Section 31A, again, is somewhat domain is not an infringement.
problematic, particularly in the case of films and sound
recordings, not having been drafted with orphan works in The term “exhibition” is not defined but it may be taken to be
mind. projection or playing of the film that is not private, i.e. is not
confined to a limited circle of family and friends. Private
Section 31A applies to works which, whether already exhibition is never infringing, and as far as copying is
published or not, are “withheld from the public in India, the concerned, copying for private use, research etc. is permitted
author is dead or unknown or cannot be traced, or the owner subject to “fair dealing” under Section 52(1)(a). It is suggested
of the copyright in such work cannot be found…”. In effect this that in the case of a film “fair dealing” may cover reproduction
provision comes into play in all cases where the work is still in of the entire film assuming bona fide use for the purposes of
copyright but is being withheld from the public in India private use, research etc.
whether deliberately or by omission. (Whether the author is
dead is hardly pertinent for us: the work might still be in
copyright and the current copyright owner might still be
unknown or untraceable.) Performers’ rights:
The Intellectual Property Appellate Board (IPAB) may grant a
compulsory licence to publish any work under Section 31A, on
Performers’ rights are relevant in the case of films and sound
application, after following a prescribed procedure and subject
recordings. If the film or sound recording was published after
to certain conditions, the most important condition being the
10.05.1995, being the date on which the Copyright
payment of royalty at rates fixed by the IPAB. Royalty as fixed
(Amendment) Act, 1994, came into force, the performers of
by the IPAB will have to be paid to the copyright owner if and
recorded instrumental and vocal music enjoy performers’
when he/she is discovered or decides to reveal
rights; in the case of film the actors also enjoy such rights.
himself/herself. The Copyright Rules do not provide the IPAB
Performers’ rights do not subsist in films or sound recordings
with any guidance as to the basis on which licence fees
made before that date.
should be fixed under Section 31A.
Performers’ rights in sound recordings as initially introduced
Libraries could reduce their expenses by applying for
comprised the right of recording the performance: the
compulsory licences limited to online publication seeking
performer had the exclusive right to allow his/her
fixation of the licence fee on that basis. The work would thus
performance to be recorded either generally or for any
have been made available to the public and would no longer
particular purpose; however, once the performer had
fall within the scope of Section 31A.
permitted his/her performance to be included in a film, he/she
had no further right to object to exploitation of the film. These
But further, neither the Act nor the Rules prescribe anything
are the rights that performers enjoy in films and sound
about the custody of the licence fee; specific orders would
recordings created between 10.05.1995 and 20.12.2012.
need to be obtained from the IPAB (to fix the fee prospectively
after the author becomes known, if possible) or the library
The rights of performers were widened considerably by the
would have to devise some mechanism, like a fund, to address
amending Act of 2012, which came into effect on 21.06.2012.
the contingency that the copyright owner reveals himself.
Since that date the performer has concurrently the same
rights in the sound recording or film as the producer, namely
to reproduce and issue copies of the film or sound recording
to the public; communicate the performance to the public; or
sell or give on commercial rental or offer it to the public for the
said purposes.
Page 13
In addition, the performer has a specifically enumerated right Any fee charged to make works available in accessible
against the broadcast of the performance without his or her formats should be towards recovering the cost of production.
permission. The performer whose performance is
incorporated in a film cannot object to the exploitation of the Further, any organization that is making the works available in
film; but now he/she would still have a right to royalty: the rate accessible formats to persons with disabilities will have to
would be subject to negotiation or the right would be waived. ensure that such copies are not available or circulated to
others through ordinary channels of business.
Section 39 provides that the exceptions in Section 52
including Section 52(1)(p)), will apply mutatis mutandis to Any organisation that is making works available in accessible
performers’ rights. However, this is not the case with a format to persons with disabilities includes an organisation
compulsory licence under Section 31A (which we shall deal registered under Section 12A of the Income-Tax Act, 1961 and
with below). working for the benefit of persons with disability or recognised
under Chapter X of the Persons with Disabilities (Equal
It is, further, pertinent to note that the term of the performers’ Opportunities, Protection of Rights and full Participation) Act,
right may sometimes exceed the term of copyright in the 1995 or receiving grants from the Government for facilitating
sound recording or film, as may happen in the case of the access to persons with disabilities or an educational
authors of underlying works, the term of performers’ rights institution or library or archives recognised by the Government
also being fifty years from the commencement of the year
following the year of the death of the performer.

However, Section 52(1)(p) can still be applied to such Template for making work
performances until they fall into the public domain. Further, it
is a reasonable interpretation of the law that a compulsory accessible to disabled
licence under Section 31A applies to the performances
recorded in a film or sound recording: Section 31A would
persons
otherwise be meaningless. Further, in the case of films, we
may also note that the exception in Section 52(1)(y),
discussed above, in regard to the exhibition of the film, would
also apply to performances. Declaration by any organization working for the benefit
of Persons with Disabilities seeking to make a work in a
This exception applies to any kind of institution, be it a format accessible to persons with disabilities
library (whether non- commercial or not), a museum, an
educational institution or anything of the kind. The The Copyright Act, 1957 governs the adaptation,
exception may be availed of by any person, not only by the reproduction, issue of copies or communica- tion to the
institution itself; though it does not of itself create a right of public of any work in any accessible format by any
access to the institution’s collection. person to facilitate persons with disability to access
works.
What is excepted from copyright liability is reproduction (even
of the whole work) “for the purpose of research or private The (name of the institution working for the benefit of
study” or “with a view to publication”. persons with disabilities), hereby declares that:
The orphan work exception, obviously, does not come into - (title of the work) published by (name of the publisher
play where the institution knows the identity of the author(s) and year of publication) has been made available in an
and the work has yet to fall into the public domain. accessible format (specify the format) to (name of the
disabled per- son) with disabilities (type of disability) for
private or personal use, educational purpose only.
Making works available - The above said work has been transformed to the
in a format accessible accessible format (specify the format) and would be

to persons with disabilities

made available to persons with disabilities only.

- The access to the persons with disabilities is being

provided on a not-for-profit basis and only cost of
production is being recovered.
The Copyright (Amendment) Act, 2012 incorporated Section
52(1)(zb) with objective of implementing the Marrakesh Treaty
- The accessible format will not be made available to
to Facilitate Access to Published Works for Persons Who Are
users who are not authorized to re- ceive content.
Blind, Visually Impaired or Otherwise Print Disabled. Section
52(1)(zb) allows any person or any organization to adapt,
- That the content transformed into accessible format
reproduce, or communicate any work in any accessible format
will not be stored in multiple devices except for the
in order to facilitate persons with disabilities to use the work
limited purposes of creating a back-up on servers.
for personal use, educational or research purposes. Persons
with disabilities includes not only visually challenged persons,
- That all reasonable measures have been employed by
but also other print-handicapped persons.
the organization to ensure such accessible formats
Section 52(1)(zb) enables any person, including libraries, to
(specify the format) are not in ordinary channels of
provide works in an accessible format to persons with
circulation.
disabilities if such access are made available on a non-profit
basis.

Signature Date
Page 14
 Compulsory Licence Making the collection
available online
Under Section 31B of the Act, the Intellectual Property
Appellate Board may, on application following the procedure
laid down, grant a compulsory license to publish a work if the Uploading a copyrighted work without the copyright owner’s
work has been withheld from the public in India or if the licence would be infringing, the library can only publicise the
author is dead or unknown or cannot be traced or the owner availability of such a work either in its collection or on
of copyright in the work cannot be foundThis is the only third-party websites in the manner discussed above.
provision in the Act whereby orphan works that are not literary,
dramatic or musical works can be made available to the
public. Users’ Rights

Educational Exceptions Under Section 51(1)(a) anyone—which includes anyone using

any library, whether a non- commercial public library or
not—may reproduce any kind of work for private and personal
use including research, or for criticism and review of that work
Librarians can be involved in the exercise of the “educational or of any other work, or for reporting current events.
exceptions” by educational institutions, particularly Section
52(1)(i). This exception allows This is not carte blanche for free or unlimited copying: it is
subject strictly to “fair dealing”. Fair dealing means,
“… the reproduction of any work— essentially, copying as much as is necessary for the purpose
but no more. There can be no hard-and-fast rule but the
1- by a teacher or a pupil in the course of instruction, or underlying principle is honesty of purpose: to take an extreme
2- as part of the questions to be answered in an case, copying the whole work is generally incompatible with
examination; or fair dealing. Copying for the purpose of research may require
3- n answers to such questions.” larger extracts than may be quoted in a work based on such
research. Again, to the extent that the point can be made
The term “in the course of instruction”, has been interpreted effectively without extracts in a piece of criticism and review,
very liberally by the Delhi High Court The Chancellor, Masters extracts should not be used. Fair dealing in the case of
and Scholars of Oxford University v Rameshwari Photocopy reporting current events is particularly restricted: if an event
Services & Ors. The issue was whether the prior preparation of can be reported without extracts from any in copyright work
course packs comprising different chapters from different (e.g. in reporting the death of an author or performer, or
academic works, photocopied and spiral bound, for the use of writing an obituary, the use of extended extracts of the
students as background reading for interactive classes author’s work is not permissible.) By honesty of purpose we
amounted to reproduction of a work “in the course of mean that the person making the reproduction is not trying, so
instruction” and the High Court, both at the trial and appellate to speak, to ride on the coat-tails of the author, and does not
levels, answered the question affirmatively. intend to appropriate the extract copied for its own expressive
value, even with due attribution: rather he should merely copy
A library or other institution which is not actually conducting for his own use in preparing his own
instructional activities would be on safe ground in making
extracts from works in its collection available for copying literary, artistic or other expression. Finally, we must add that
strictly for the purposes of Section 52(1)(i). The extracts there can be no hard-and-fast rule as to the scope of “fair
should be relevant to the subject of the course pack and in no dealing”: the term has to be seen as explaining itself in the
case should the whole book (howsoever short) be copied.1 facts of a particular case.

A library needs to facilitate fair dealing reproduction for the

Display Publicising above purposes, this being very consistent with the library’s
raison d’etre, yet avoid liability for “secondary infringement” or
a library’s collection for “authorising” infringement. It is impossible to monitor the
scale or nature of copying, but it would be prudent for the
library to acquaint users with this principle, and obtain signed
undertakings with warranties and indemnities, which should
There should not be any objection to displaying the jackets, also cover moral rights.
bibliographical details and the like in the premises of the
institution, or by uploading the same on any index or as
particulars of new acquisitions onto the institution’s website
or in leaflets for members. There should likewise be no Declaration by
User/Patrons of library
objection to very brief abstracts prepared in the institution
itself being put up either in the library premises or on its
website. The purpose is merely to point the reader to the work;
thus, for example, hyperlinking even to a third-party website is
permissible, but not deep-linking or framing. Users and Patrons admitted in libraries are seldom asked to
sign on copyright declarations framed within the legislative
interventions on private use and research.

Page 15
There isn’t any standard form used in libraries and often
libraries not falling within any institutional framework i.e.
schools, colleges, universities use forms merely to identify and
verify details of patrons. Libraries falling within any
institutional framework may end up using forms that do not
necessarily follow the overall ethos of private use and
research.

Template of Declaration

I, Mr./Ms………………….residing at …………....declare that following pages/chapter from (title of the copyrighted work) published by
(name of the publisher) have been photocopied and that copy :

1- I will not use the copy except for research or private study.

2- To the best of my knowledge no other person with whom I work or study has made similar request for substantially the
same content.

3- I will not distribute a copy of it to any other person and will not make multiple copies of the same.

4- I have not previously been supplied with a copy of the same material by you or any other librarian.

5- I understand that if the declaration is false with regard to the copy supplied to me by the abovesaid library, that it will be an
infringing copy and I shall be liable for infringement of the copyright.

Signature………………………………… Date…………………………

Copyright in Government publications vests in the

Institutional publications/ Government for sixty years from the date of publication.

theses and dissertations/

Government publications not yet in the public domain are
however subject to the exceptions provided for in Section 52,
working papers including library exceptions.

So far as datasets/databases are concerned, copyright

subsists only in the selection and arrangement of their
The author of a thesis or dissertation, or the author(s) of a content if the same is distinctive1 and not in any facts
working paper, are the first owners of copyright. The library themselves. Works included in a database are subject to
might be the first owner of copyright in the case of working copyright law.
papers that are made by regular employees (but not
outsourced work). The discussion of unpublished works hereinabove would also
apply to unpublished Government works except that access to
If these are unpublished works, copyright in them subsists Government works held in Central Government archives is
until they are published and, thereafter, for the normal term of governed by the Public Records Act and, therefore, it is that
copyright. They can be published without the author’s Act rather than the Copyright Act that should first be referred
permission only where one of library exceptions applies. The to in regard to such archives. The same applies to any
library is however entitled to make inventories of such legislation governing State Archives
unpublished works.

As already mentioned, the person who makes a speech or

lecture is the first owner of copyright, even if the speech or
Concluding Remarks
lecture is read out by another person.

The nuances of the Indian Copyright Act 1957 (as amended in

2012) immensely influences operations related to libraries/
Government publications/ information centres. This guide lights the path of Information

datasets Managers / Librarians while servicing the users of their

facilities. However, for specific contextual issues that might be
subject to interpretation of the provisions of The Act, it is
advisable to seek professional inputs from Copyright Experts.
It ought to be appreciated that case laws in copyright related
matters have evolved and are still evolving with the
introduction of new technologies, especially in Digital
Page 16 Technologies and Artificial Intelligence.
 GLOSSARY Broadcast: Communication to the public by means of
electronic waves by a broadcasting organisation in
accordance with its broadcasting licence in terms of mode of
broadcast, wave length, territory etc. This is one of different
kinds of communication to the public and, in India, does not
NB: This glossary is intended only to be of general assistance
extend to the internet.
to librarians for quick reference; the definitions should not be
relied upon as legal advice.
Broadcast Reproduction Right: The related
right/neighbouring right enjoyed by broadcasting
Adaptation: A work created by adapting a pre-existing work to
organisations over their signals, to prevent piracy thereof. This
a different class of work, or a different genre or a different use,
right is distinct from any copyright subsisting in the content
e.g. a translation; a film made out of a play; a film or a play
that is broadcast.
made in respect of a novel; a graphic novel made out of a
literary work; a new arrangement of a musical work, etc.
Cinematograph film: A work of visual recording, including the
sound track. “Audiovisual work” is a synonym. The authorship
Artistic work: besides traditional forms such as paintings,
of cinematograph films varies in different jurisdictions. In India
sculptures, engravings etc., this term also includes
as in most common law jurisdictions, the author of a film is
engineering drawings, maps and the like; photographs; and
the producer, being the person who takes the initiative and
architectural works. Artistic works must be original, but merit
responsibility for creation of the film. Elsewhere films have
is irrelevant. In the case of architectural works, however, the
multiple authorship usually with some provision ensuring that
structure must have some artistic character or design.
the producer can exploit the film without hindrance.
Assignment: Transfer in writing of title in a copyright work,
which may be for the whole bundle of rights for the term of
Civil law: In copyright parlance, this term refers to all legal
copyright or limited to some rights, or for a limited period
systems which are not based on common law.
short of the term of copyright, or for a limited geographical
area: these parameters must be specified in the agreement.
Common law: A body of law that has been developed over the
Consideration for an assignment is commonly by way of a
centuries by treating previous judicial decisions as binding
lump sum payment and/ or the payment of royalty at agreed
law. Generally speaking this principle (technically called stare
rates.
decisis) applies in the UK and in all countries that were ever
under British rule in the past, including the United States. All
Author: The person who creates the work. In India and
other countries are generally referred to as “civil law”
generally in common law jurisdictions, an author may be
countries. It is important to note that legislation always
either a natural or a juridical person (i.e. a company or other
overrides the common law.
corporate entity that can sue or be sued). In civil law
jurisdictions, generally speaking, only natural persons can be
Compulsory licence: A licence granted by an authority (in
authors. Mainly for this reason, the Berne Convention and
India the Intellectual Property Appellate Board) without the
subsequent copyright treaties do not define the term “author”
author’s consent, on the application of a third party. Examples
but leave the definition to national legislation.
in India include instances where a published work is now
being withheld from the public, or where the author cannot be
Berne Convention: The principal multilateral treaty on
traced, etc.
copyright. Its basic principles are national treatment and
minimum standards of copyright protection. Reciprocity is
Compilation: Compilations of data (which otherwise are to
applied rather than national treatment in a few cases, the
protected by copyright) or other material (which would include
important one being the term of copyright.
public domain works) whether manual or digital, including
machine readable form, are protected by copyright only to the
Beijing Treaty on Audiovisual Performances, 2012: This
extent that they constitute “intellectual creation”. This
treaty binds its member States to protect audiovisual
protection does not extend to contents of the database that
performance on the same basis as aural performances. India
are not protected by copyright.
has acceded to this treaty: in fact Indian law was already
compliant with the same.
Contract for service: Any agreement to provide services by a
person who is not an employee but an independent contractor,
Berne Union: The Berne Convention as originally signed in
e.g. an outsourcing agreement.
1886 has been succeeded by various “Acts” (1908, 1928,
1948, 1967 and 1971) each of which is a self-contained treaty.
Contract of service: An employment agreement.
The contracting States collectively form the “Berne Union”,
wherein a State that may not have acceded to the latest Act
Copyright: The bundle of exclusive rights granted to authors
remains a member of the Union bound reciprocally with the
by law; copyright subsists only in original works and not in
other member States only by the previous Act which it has
other subject matter and is strictly a statutory right, i.e. it
acceded to.
subsists by virtue only of legislation and not otherwise. In
India, copyright subsists in original literary, dramatic, musical
Book: A book is not per se a work but commonly comprises
and artistic works and in cinematograph films and sound
bound sheets of paper—or any other format, like an e-book or,
recordings.
in former times, a scroll—on which two-dimensional works,
e.g. literary works, artistic works, musical notation etc. are
Copyright owner: In most cases the author or any subsequent
fixed.
assignee of a work; and in all cases the authors of literary,
dramatic, musical or artistic works included in a
cinematograph film. Further, in the case of a photograph,
painting, portrait, engraving or cinematograph film
commissioned for valuable consideration, or of a work made
under a contract of service or of apprenticeship, the employer
is the first owner of copyright.
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An exclusive licensee is also a copyright owner for the Fixation: The embodiment of a work in some physical format;
purpose of seeking legal remedies. It may be noted that in the e.g. a literary work in a book, a musical work in either a sound
case of Government works the first owner of copyright is the recording or in musical notation, etc. Fixation is a condition for
Government. The same principle applies to works created for the subsistence of copyright generally in common law
public sector organisations and generally to international countries with the exception of India. The Berne Convention
organisations that India is a member of. leaves the matter to national law.

Copyright society: An organisation authorised by the Government work: A work created for the Government.
Government to administer the licensing rights of its copyright
owning members in respect of any particular class of work. A Idea-expression dichotomy: This is one of the most
copyright society is the only body that can issue licences fundamental principles in copyright law: copyright protects the
without being the owner or exclusive licensee of the works expression of ideas or concepts, but not the ideas themselves.
licensed. Internationally, the term “collecting society” is more Ideas thus remain in the public domain, preserving freedom of
common. expression, while copyright subsists in their expression as
embodied in a work. There can be no comprehensive
Cover version: The recorded performance of a published definition of either an idea or an expression, or any “bright line”
musical work (or possibly a literary or dramatic work) distinction between the two: in some cases the distinction is
published under statutory licence subject to compliance with difficult to make and becomes the subject of litigation. The
certain conditions, notably the payment of royalty to the TRIPS Agreement specifies that copyright protection “shall
copyright owner at prescribed rates. It is important to note extend to expressions but not to ideas, procedures, methods
that this statutory licence is against copyright owner of the of operation or mathematical expressions as such.”
recorded musical etc. work and does not concern the
copyright owner of the sound recording. Indian work: A literary, dramatic or musical work of which the
author is an Indian citizen, or which is first published in India,
Derivative work: A general term (not occurring in the or in the case of an unpublished work, where the author was a
Copyright Act) for any work that owes its existence to the prior citizen of India when the work was created. However, it may
existence of another work; it includes all adaptations but is a be noted that the term “Indian work” has a specialised sense
wider term also including for example the ”remake” “prequel” and that, in accordance with its international treaty
or “sequel” of a film; the reuse of a character from a obligations, broadly the same principles apply to all works.
pre-existing literary or dramatic work or film, etc.
Infringement: The doing of any act that requires the copyright
Economic rights: The rights of the copyright owner to exploit owner’s licence, without such licence; also, knowingly and for
the work, as distinct from moral rights. In India and other profit permitting the use of any place for infringement.
common law jurisdictions, the term “copyright” is applied only
to economic rights. Intermediary: An intermediary is a person who receives, stores
or transmits electronic data and makes it available or provides
Exclusive licence: A transfer in writing of specified rights for services in regard to it to third parties.
any specified period (within the term of copyright) for any
specified geographical area whereby the transferred rights Intermediary liability: The vexed question of the liability of
vest exclusively in the licensee, excluding even the licensor intermediaries for copyright infringement or infringement of
himself. To be distinguished from non- exclusive licences, other rights. The question is too complex for elaboration here.
which can be granted simultaneously to more than one
licensee. Limitations and Exceptions: The balance between the
interests of users and copyright owners is maintained by
Exhaustion: The principle that copyright subsists only in the limiting the scope of copyright. The scope of copyright is
first sale of a work (e.g. it would not apply to second-hand limited by the fact that copyright subsists only for a limited
copies). It is not applicable to the exploitation of computer term; that it does not subsist in ideas (and thus does not
programs, films and sound recordings. interfere with freedom of expression); that it may be subject to
non-voluntary licensing; that it does not extend to certain
Exploitation: The legitimate exercise of copyright for profit activities like the private performance of works. Exceptions, on
(mainly by licensing or by assignment). the other hand, do not limit the scope of copyright per se but
comprise specific acts which are exempt from liability for
Fair use and fair dealing: These terms are often used infringement but would otherwise be infringing; these include
interchangeably, though they do not mean quite the same the reproduction, subject to “fair dealing”, of a work for
thing. “Fair use” is a broad U.S. term covering all exceptions in private use, research or criticism, or for news reporting;
general terms, depending on the nature, extent, purpose and certain exceptions for educational purposes; for certain acts
commercial effect of any use of a copyright work on the facts done on educational premises; or for various other purposes
of the case. “Fair dealing” in India and other common law such as reporting judicial decisions.
jurisdictions generally is a precondition for the exercise of the
exceptions of personal use, research, criticism and news Making available: When used independently this term
reporting, meaning reasonable use of the work according to generally means making a work available for the public to
the actual requirement. The term is also sometimes used enjoy at times and places of their choice, the main instance
loosely for all the copyright exceptions enumerated in the being uploading the work on the internet.
statute.
Marrakesh Treaty, 2013. An international treaty under which
contracting States are obliged to provide for the needs of
persons with visual or other impairments. India is a party to
this treaty and its Copyright Act provides a suitable exception.

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Moral rights: Certain rights, referred to in Indian law as Public domain: The body of works that is not protected by
“author’s special rights”, that are personal to the author and copyright as the term has expired or because they were
(unlike economic rights) cannot be transferred. The two created, or the author had died, before the law of copyright
principal moral rights mandated by the relevant international existed, or for any other reason.
treaties and incorporated in Indian law are the right of
paternity (i.e. attribution of the work to the author) and the Related rights, also known internationally as neighbouring
right of integrity (i.e. the right to seek remedies against rights are rights that subsist not in works but in other subject
mutilations, distortions etc. of the work that are injurious to matter and, hence, are not deemed to be created by authors.
the author’s honour and reputation). In some countries, The neighbouring rights required by the international treaty
including India, moral rights are perpetual and can be enforced system, to which India conforms, are the rights of producers
by the author’s heirs or legal representatives. It may be noted of phonograms, of broadcasting organisations, and of
that performers also now enjoy moral rights, because of the performers.
risk of digital manipulation.
Reprography: Copying and reproducing documents. In India
National Treatment: The principle enshrined in the Berne the term is usually applied to physical reprography by
Convention and other international treaties that each photocopying.
contracting State shall protect works originating in other
member states in accordance with its own laws. It may be Rights management information: Digital watermarks or other
noted that this principle does not apply to the definition of digital information stored in digital copies of a work to identify
“author”. Further, the principle of reciprocity, rather than or trace the use of the copy.
national treatment, applies in certain cases, notably in regard
to the term of copyright: no contracting State is obliged to Rome Convention, 1961: This Convention dealt with
protect a work originating in another contracting State beyond neighbouring rights. India never acceded to it, which has now
the term of copyright in such other contracting state, e.g. a become immaterial after India’s accession to
country where the term of copyright is 70 years need protect
Indian works only for 60 years, the latter being the term of Sound recording: A recording of sounds made by any means
copyright in India. on any medium. Sound recordings are protected by copyright
in India and generally in common law jurisdictions but,
Non-voluntary licence: A licence that does not require the elsewhere, and in the international treaty system, are
copyright owner’s consent. It can be a compulsory licence, protected by a related/neighbouring right.
which is granted on application by a competent authority on
terms fixed by such authority, or a statutory licence granted Statutory licence: A licence granted by operation of law,
directly by operation of law, which any person can avail subject to statutory conditions but not requiring any specific
himself of subject to conditions laid down by the statute. grant of licence by any authority. The statutory licence for
cover versions is an example.
Original: Copyright subsists in original works; however,
originality in copyright law does not imply novelty or merit; it Technological measures: Inbuilt software features of a work
means only that the work originates from the author without or website limiting access to and/ or use of the work. Subject
having been reproduced from another work, and that the to certain exceptions analagous to fair dealing, the
author has applied at least a minimal degree of labour, skill circumvention of technological measures is a criminal offence
and mental effort. in India.

Orphan works: Works that are still in copyright, but the Three-step test: All members of the World Trade Organisation
copyright owner cannot be traced. are obliged under the TRIPS Agreement to confine the scope
of all limitations and exceptions in their copyright laws to
Performer: In India the definition covers performers both of special cases that do not conflict with a normal exploitation of
works (literary and dramatic works, including lectures) and the work, and do not unreasonably prejudice the legitimate
other performers; and also covers performers of audio-visual interests of the copyright owner. This is an expansion of the
works. Internationally, protection for audiovisual performers corresponding provision in the Berne Convention that applies
has been introduced by the Beijing Treaty which a number of only to the right of reproduction.
countries have acceded to; however many countries do not as
yet protect audiovisual performances TRIPS Agreement (or “TRIPS”): The commonly used acronym
for the Agreement on Trade Related Intellectual Property
Phonogram: The term for sound recording that is used in the Rights which is one of the agreements acceded to by all
relevant international treaties. members of the World Trade Organisation (WTO) i.e. by most
countries in the world, India included. This Agreement does
Phonograms Convention: An international convention of 1971 not apply to moral rights but incorporates all the other
protecting the producers of phonograms from the duplication provisions of the Berne Convention, adding further provisions
or importation of their phonograms in other contracting thereto, hence it is described as “Berne Plus”.
States, including India.
Universal Copyright Convention, 1952 (UCC): This
Piracy: This is not a term of law, but is commonly used for the Convention, which is administered by the United Nations
production of exact copies of a work on a commercial scale Educational and Cultural Organisation (UNESCO) was created
for infringing exploitation. for certain countries (including the U.S. and the then U.S.S.R)
which did not accept the terms of the Berne Convention,
Publication: Under Indian law, the act of making a work particularly regarding registration or other formalities for the
available to the public either by issuing copies to the public or enjoyment of copyright and the term of copyright. Since these
by communication to the public. two major countries, with others, have since acceded to the
Berne Convention and in any case are bound by TRIPS, UCC is
no longer of much convention.
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WIPO Copyright Treaty, 1996: An international treaty that
updates the Berne Convention to deal with digital matters. Its
most important additions to the existing regime are the
protection of Technological Measures and of Rights
Management Information. India has acceded to this treaty.

WIPO Performances and Phonograms Treaty, 1996: An

international treaty that updates the international neighouring
rights regime to deal with digital matters, but also
standardising the scope of neighbouring rights in
performances and sound recordings. It provides for the
protection of Technological Measures and of Rights
Management Information. India has acceded to this treaty.

Work: Works are the subject matter in which copyright

subsists. They are distinguishable from the subject matter of
related/neighbouring rights because they are created by
authors. Performers and broadcasting organisations, for
example, are clearly not authors. It may be noted that the
Berne Convention and, where relevant, subsequent treaties,
include cinematograph films among works. The requirement
under the Berne Convention and all subsequent treaties is
broad, being an open list intended to cover all possible works;
India and most common law countries (with the notable
exception of the U.S.) have closed lists enumerating literary,
dramatic, musical and artistic works, works of artistic
craftsmanship etc. But such terms are usually defined broadly
enough to meet treaty requirements.

Work for hire: An American term best avoided in India as it

makes no clear distinction between contracts of service and
contracts for service as in Indian law.

World Intellectual Property Organisation (WIPO): The United

Nations organisation, based in Geneva, that deals with all
forms of intellectual property. Except for TRIPS and UCC it
administers all international treaties pertaining to copyright
and neighbouring rights.

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