Copyright Guide for Librarians in India (NDLI) PDF 2021

Supported by: Page 1 FROM THE DESK OF NATIONAL DIGITAL LIBRARY OF INDIA (NDLI) The National Digital Library of India (NDLI), sponsored by Matilal of IIT Kharagpur, Mr. G. R. Raghavender, Joint Ministry of Education, Government of India, is an initiative Secretary, Department of Justice, Ministry of Law & envisaged to educate, enable and empower young Indians Justice, who was a key member of the team drafting from the very grassroots with quality knowledge and learning Copyright Act 2012, and Prof. Ganguli. A syndicated workshop resources across geographies, using the power of digital. was also conducted and the proceedings containing the inputs However, like every new wave possesses its own set of of the participants was documented. A clear action for NDLI challenges, execution of our vision of a ubiquitous digital emerged with the decision to initiate the preparation of a knowledge resource has brought forth its own techno-legal Copyright Guide covering both non-digital and digital libraries quicksand. As gatekeepers of knowledge standing at the door in India to familiarise librarians with the nuances of the Indian of a digital era, modern-day librarians are frequently faced with Copyright Act, with the objective of aiding our librarians to multifarious issues with regards to copyright. efficiently perform their duties with due regard to the copyright related issues. Copyright as a subject is typically not well understood, and librarians who deal with a large volume of “copyrighted works”, NDLI put together a team of distinguished volunteers are often not fully aware of its implications. Copyright issues, comprising Prof. Prabuddha Ganguli, Mr. Jagdish Sagar both genuine and apprehensions, cause road-blocks in the (Copyright and Entertainment Lawyer), Prof. Vishwas Devaiah integration of Institutional Digital Repositories (IDRs). NDLI, and Prof. lndranath Gupta (both faculty at the Jindal Global after extensive deliberations in multiple fora, decided to Law School) to prepare the copyright guide. The team facilitate the creation and publication of an easy-to-understand undertook the arduous task of analyzing over 300 queries guide on Copyright for Librarians in India covering both raised, collated, curated, and structured into broad categories non-digital and digital libraries. in the IIM Ahmedabad and National Workshop on Copyright Issues in Digital Libraries and prepared the first draft of the On 30th August 2017, in an event in IIM Ahmedabad to Copyright Guide. celebrate the 125th Birth Anniversary of the legendary Dr. S. R. Ranganathan, Prof. Prabuddha Ganguli, the then Visiting A brainstorming session to deliberate on the first draft of the Professor of Rajiv Gandhi School of Intellectual Property Law guide was held on the first day of the National Workshop on at IIT Kharagpur, delivered a talk on copyright and knowledge Adoption of Rights Statements for Digital Libraries in India access, which was attended by over 150 librarians and organized by NDLI during 7th and 8th September, 2019. The information professionals. The participants of this interactive drafting Team, together with Prof. Padmavati M (Faculty and session emphasized the urgent need for a basic manual on the then Dean of Rajiv Gandhi School of Intellectual Property the Copyright Act in India. Late Dr. H Anil Kumar, the then Law at IIT Kharagpur), Prof. Shreya Matilal, Mr. Hoshiar Singh, Librarian in Indian Institute of Management Ahmedabad and (Registrar of Copyright, Government of India), Dr. B Sutradhar, Prof. Ganguli with a team of dedicated librarians in India and Prof. Partha Sarathi Mukhopadhyay (Professor, Library collated, classified, and structured the copyright-related and information Science, Kalyani University) and several queries of the relevance of library stakeholders. participants of the workshop including Mr. N.V. Sathyanaranaya (MD Informatics (India) Ltd.), provided NDLI organized the first National Workshop on Copyright significant inputs to the first draft. Issues in Digital Libraries on 9th and 10th February 2018 under the able leadership of Prof. Prabuddha Ganguli and The drafting team incorporated the suggestions of the support from Dr. B. Sutradhar, Librarian, IIT Kharagpur. The September 2019 Workshop and prepared the second version workshop was attended by over 200 libraries and information which was put up for public consultation on the NDLI Website professionals from across India. This meeting deliberated on in August 2020. NDLI initiated an additional special drive to results of the August 2017 discussions including those faced individually reach each and every participant of the previous by NDLI in its ongoing efforts to provide a seamless workshops for their feedback on this draft version. At the end multilingual platform of information and data resources. of 6 months of public consultation, over 50 critical and constructive responses were received from the stakeholders. Illuminating insights into the Copyright Act, possible pitfalls, These were duly considered and addressed while preparing exceptions to the Copyright Act in India especially applicable the final version of the Guide. to libraries, Copyright Related Case Studies, and Global Good Practices were presented by a team of experts, namely, Mr. This Guide is an easy-to-use manual to hand-hold the Anjan Sen, of Anjan Sen Associates, Prof. Shreya librarians, information professionals, and stakeholders on the Page 2 basic features of the copyright law in India, to be read with the represent these gaps with proposed amends to the Copyright relevant provisions of the Information Technology Act in India. Act for enhanced and affordable access to information The guide is intended to assist them to appreciate the and knowledge in the digital platforms. copyright-related issues that impact the functioning of non-digital and digital libraries including digital platforms such We thank the Team and all participants in the process of as the NDLI. It is to be understood that legal advice ought to developing of this manual for their voluntary and selfless be sought as every copyright issue is to be evaluated in its contributions. We are hopeful that librarians and information specific context. It is expected that several questions will professionals will find this Guide handy and useful to tackle emerge while using the guide by the stakeholders. effectively the multifarious issues related to copyright for both non-digital and digital libraries. We are indebted to Justice We would encourage the users of this guide to provide their Prathiba M. Singh for her erudite foreword to this guide. feedback for the next editions of the guide to address. During the preparation of this guide, NDLI has realised that there are several gaps especially related to the library exceptions in the Indian Copyright Act (as amended in 2012). NDLI hopes to Prof. Partha Pratim Chakrabarti Prof. Partha Pratim Das Principal Investigator Joint Principal Investigator National Digital Library of India and National Digital Library of India and Professor, Computer Science & Engineering Professor, Computer Science & Engineering IIT Kharagpur IIT Kharagpur 12th August, 2021 Page 3 ACKNOWLEDGEMENTS The idea to have a copyright guide for Librarians in India The spontaneous continued and ardent support of the germinated during the talk that was delivered by Professor National Digital Library of India (NDLI) provided the most Prabuddha Ganguli in IIM Ahmedabad on 30th August 2017 facilitative platform for the preparation of this guide. We are on the occasion of the 125th Birth Anniversary of the most grateful to each and every member of the NDLI team for legendary Dr. S. R. Ranganathan which was attended by over extending their help at every stage of this project. 150 librarians and information professionals. A draft version of this guide was put up for public viewing and comments for several weeks in 2020. We thank each and Post this talk, Late Dr. H Anil Kumar, the then Librarian in every stakeholder who so meticulously studied the draft and Indian Institute of Management Ahmedabad with his offered their comments, which ensured that the guide dedicated team consisting of Dr. Hiral Patel, Mr. Mallikarjun addresses the key copyright-related issues that librarians and Dora and Dr. M. Panduranga Swamy, took up the arduous task information professionals face in the execution of their daily of collating all the copyright-related queries put forth by the Functions. participants. We are very appreciative of the intense efforts of this team for classifying and structuring the questions, which We are indebted to Justice Prathiba M. Singh for her insightful are essential pillars of this copyright guide which is intended to comments and foreword to this guide. be an easy-to-understand manual taking librarians through the basics of Copyright Act in India together with the Information Technology Act. Inputs from Professor Shreya Matilal of the Rajiv Gandhi School of Intellectual Property Rights, Shri Hoshiar Singh, Registrar of Copyright, Government of India, and Dr. G R Raghavender, Joint Secretary, Department of Justice, Ministry of Law & Justice, Government of India at the initial stages of this work is gratefully acknowledged. We are particularly grateful to Mr. N.V. Sathyanaranaya, MD Informatics (India) Ltd for his constant encouragement and inputs throughout the course of this work. We have had the benefit of discussions with innumerable librarians, copyright professionals, and experts during the preparation of this guide addressing issues that may impact the work in the diverse operations of non-digital and digital libraries including digital platforms such as the National Digital Library of India (NDLI). We thank them for their exceptional contributions. Page 4 About The Contributors 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 JIRICO. Dr. Prof. (Dr.) Devaiah was awarded the 2015 Microsoft IP Teaching Indranath Gupta 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 5 THIS DOCUMENT IS ONLY A DRAFT FOR PUBLIC CONSULTATION. PLEASE DO NOT CITE OR QUOTE WITHOUT THE PERMISSION OF THE AUTHORS. Supported by: Contributors Professor (Dr) Prabuddha Ganguli CEO, Vision-IPR Co-Principal Investigator, National Digital Library of India, IIT Kharagpur Honorary Visiting Professor, Jawaharlal Nehru University, New Delhi Emeritus Professor, Vishwakarma University, Pune Advisor and Adjunct Faculty, IIT Jodhpur Prof. (Dr.) Indranath Gupta Professor, Jindal Global Law School Dean of Research Director, Jindal Initiative on Research in IP and Competition (JIRICO) Senior Fellow, Jindal Institute of Behavioural Sciences (JIBS) O.P. Jindal Global University Mr. Jagdish Sagar Advocate Prof. (Dr.) Vishwas H. Devaiah Professor & Vice Dean and Director, Centre for Post Graduate Legal Studies (CPGLS), Executive Director, Centre for Intellectual Property Rights Studies and Managing Editor, Academic Journals and Law Reviews, Jindal Global Law School 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/ Date of publication : August 12, 2021 Page 6 Page 7 TABLE OF CONTENTS INTRODUCTION 9 Technology Circumvention 16 What is Copyright? 9 Orphan works - 17 The Concept of Public Domain 10 Section 52(1)(p): 17 What are the Rights of Creator and 10 Section 31A: 18 Who would be the Owner of Works? Underlying works: 19 Transfer of Copyright 11 Performers’ rights: 19 What Works would not receive Making works available in a format 20 11 accessible to persons with Copyright protection disabilities Copyright Ownership 12 Template for making work 20 accessible to disabled persons International Conventions and 12 Agreements Display Publicising a library’s 20 collection Compulsory Licence 21 COPYRIGHT AND 12 LIBRARY OPERATIONS Educational Exceptions 21 Publicising the collection 21 Non-commercial public library 13 Users’ Rights 22 Digital storage for preservation 13 Declaration by User 22 Making of a Non-Digital Copy from a 13 Preserved Digital Copy Template of Declaration 22 Template for record-keeping 13 Institutional publications/ theses 22 and dissertations/working papers Copies of unavailable books 14 Government publications/ datasets 23 Books not available for sale in India 14 Concluding Remarks 23 Template for record-keeping 14 Digitisation 14 Negotiating Licences, Subscriptions 15 GLOSSARY 24 to Books and Journals Especially with Regards to Electronic Resources END NOTES 28 Exceptions 15 Page 8 INTRODUCTION What is Copyright? Expressions in diverse forms are as old as human existence “Copyright” connotes the bundle of “exclusive rights” (subject and have served as means of communication, documentation to certain exceptions as defined in copyright law) that the law & recording of thoughts, events, and feelings. Societal confers on the owners of the copyright. Copyright is purely a evolution and sophistication in technologies has not only statutory right i.e., there is no copyright except to the extent resulted in irreversible changes in the nature and forms of provided by statute, namely (in India) the Copyright Act, 1957 expressions, but also the diverse tools and means for their (the “Act”) which has been amended several times, most fixing and transmission. Printing, photography, recording & recently in 2012. The Copyright Rules, 2013 provide for certain transmission of sound and telegraphy were the early procedural matters.¹ disruptive technological advances. The last few decades have experienced unprecedented advancement in technologies Copyright subsists by operation of law from the moment a related to reproduction, storing, transmission and work is created: i.e., there is no need to apply to any authority transformation of information in digital form. All such to enjoy the right as in, for example, the case of patents and developments have collectively widened the opportunities for trademarks. In India. When an author is a natural person (i.e. creative expressions including their archiving, adaptations, an individual human being) the term of copyright is sixty years transmission, storage, and use. from the beginning of the year following the year of the authors' death or, in the case of joint authorship (i.e. where the The creators of expressions aspire for the widest distribution contributions of different authors are not distinguishable) the in society and use of their creations. Simultaneously, such year of the death of the last surviving author: this obviates the creators desire a fair return for their efforts, protection against need to ascertain birthdays though it remains necessary to unauthorized reproduction & misuse, and reasonable ascertain the year of death which, fortunately, is a less difficult recognition as fuel for their continued creative endeavours. task than in the pre-digital era. In certain other cases, like films Copyright and the Related Rights as one of the tools of or sound recordings, or where authorship may be of a Intellectual Property Rights (IPR) protects corporate nature, the year of publication (i.e. the making of the the broadest range of creative works not in the public domain. work available to the public by any means) substitutes the Copyright by its very nature interfaces with works that may be year of the author's death in the same formula (i.e. sixty years classed as literary, dramatic, musical, and artistic works from the commencement of the year following the year of first including painting, architecture, works of artistic publication). The term of copyright cannot be extended.² craftsmanship including industrial drawing, sculpture, computer programs and computer-generated works, Since copyright subsists by operation of law, neither lectures, films and (in India and some other countries, in registration nor any other procedure is mandatory. The © mark sound recordings) etc. Neighboring rights or related rights with the name of the author or copyright owner and the date cover broadcasts, cablecasts, (and, in some countries, sound maybe inserted in the form of a copyright notice in the work recordings). though it too is not mandatory. However, on registration of the work in the Copyright Office, details such as the names, titles Technologies related to creation, reproduction, storage, of the registered works, names and addresses of authors, transmission and communication have dynamically influenced publishers and owners of copyright, etc., are entered in the and impacted copyright laws in terms of their jurisprudence, Register of Copyrights, which can serve as evidence of the scope, definitions, nature, and extent of rights, features of existence of the work at the time of registration. A copyright enforcement, jurisdictional aspects, etc. registration certificate is of evidentiary value to that extent only: it is not evidence of copyright ownership.³ Librarians and Information professionals are engaged in dealing with copyrighted and non-copyrighted material in their Copyright subsists in literary, dramatic, musical, and artistic regular activities related to creating and maintaining works and cinematograph films; sound recordings also enjoy collections of books, journals, reports, and documents of copyright in India and many other countries, though not numerous types, ensuring their preservation, providing for their universally. There are no comprehensive definitions of literary, access and distribution by many means/mode to the public dramatic, musical, and artistic works, but the Act does specify (e.g. facilitating borrowing, photocopying, interlibrary loans), instances where the copyright meaning of the term might not publishing and making available to the public be obvious. For example, computer programs are literary announcements of new arrivals in the library collections, works, as are compilations including databases and tables (if creation of metadata to aid in identifying, searching & their structure and organization show some degree of retrieving of targeted information, providing electronic links of intellectual contribution; but not the facts compiled their collections to digital platforms as digital libraries, etc. themselves). “Artistic works” include what one would expect, like paintings, sculptures, engravings, and drawings; This Copyright Guide for Libraries in India has been developed photographs and works of architecture (including architectural to create an easy to understand manual models) and works of artistic craftsmanship are also artistic and use the nuances of the copyright laws in India together works. However, the term “drawing” also includes diagrams, with the Information Technology Act in India in the context of maps, charts, and plans without regard to merit. Copyright law diverse operations in non-digital and digital libraries including generally applies the ordinary, common-sense meaning of digital platforms such as the National Digital Library of India terms subject to the expanded definitions that we have just (NDLI). referred to. It should be noted that merit is irrelevant; the work must merely be original in the basic sense of not being a reproduction of another work and copyright requires only a very minimal degree of mental effort to subsist in a work. Copyright does not extend to ideas, mere facts, algorithms or mathematical formulas etc., hence it is commonly identified as “expression” in an “idea/expression dichotomy”. Page 9 “Neighbouring rights” or rights related to copyright include the rights of broadcasters against theft of their signals by other broadcasters and against cablecasts; in some countries, What are the Rights sound recordings; and performers’ rights, i.e., aural or visual of Creator and Who performances of music, dance, or stage or screen acting, or variety entertainment like juggling, acrobatics, magic etc. Like would be the Owner copyright, neighbouring rights are purely statutory and subsist by operation of law, the general distinction between copyright of Works and neighbouring rights is that the latter are rights in subject matter other than “works” created by “authors”. The Rights granted to a Copyright owner are 1. Economic Rights, The main rights of copyright owners are a bundle of exclusive 2. Moral Rights (Author’s Special Rights) 5 rights, i.e., the copyright owner’s exclusive right to do or to authorise certain acts. These include the rights to reproduce a In our Act, as in the laws of many other countries, economic work (including electronic storage), the right to issue copies or rights are designated as “copyright” and moral rights are to communicate the work to the public by all or any other treated as a separate right. means such as broadcasting, performing a work in public i.e., before an audience whether physical or virtual, and making a “Economic Rights” allow the copyright owner to gain work available on the internet. Further rights include the right monetary beneﬁts from the work. There are mainly two ways to translate a work or to adapt a work (e.g., making a ﬁlm or for the owner to gain monetary beneﬁts- play based on a novel, adapting a musical work to a different genre etc). In the case of computer programs, ﬁlms and sound First, the copyright owner has the option of granting licenses recordings, the copyright owner also has exclusive rights to which permit others to use the copyright material. These rent out the work for commercial purposes, or to sell the work licenses are mostly non-exclusive (i.e do not prevent the or offer it for sale—this is an exception to the general rule of licensor from licensing the same rights to others) and do not “exhaustion” under which copyright is not infringed by the involve transfer of ownership or title (sec.30). For instance, subsequent sale of copies already in circulation (for example radio channels acquire licenses from the copyright owner to the sale of second-hand books). It is pertinent to mention here play their music on the radio. that under the Copyright Act the term “publish” has a very wide meaning, covering all forms of issuing copies and all forms of Second, is the right to sell the ownership of copyright. The communication to the public. ownership of copyright is transferable by “assignment.” The transfer should be done in writing and must also identify the It is important for librarians to understand that copyright speciﬁc rights assigned while mentioning the period and subsists in intangible property. In the most obvious and territory. common case of a book, copyright subsists in the contents of the book, not in the physical copy. For this reason, copyright “Moral rights” of an author, named “author’s special rights” in subsists in the contents regardless of the format or the vehicle India’s Copyright Act: these comprises two rights generally in which a copyright work may be expressed or communicated known (though the Act does not use these terms,) as the to the public. “Right of Paternity”, and “Right of Integrity”. The owner of copyright can enforce his rights both in civil and criminal courts. Until very recently the Copyright Act also The “Right of Paternity” refers to the right of an author to vested certain powers in the Intellectual Property Appellate claim authorship of the work and the right to prevent all others Board as an alternative forum to the Courts for resolution of from claiming authorship of his work. Moral rights also seek to issues related to assignments and payment of royalties. protect the integrity of a work and the author’s connection with speciﬁc circumstances related to copyright; the IPAB has now it. The author can seek legal remedies in a Court for been abolished and its functions, though different from infringement of his right to restrain or claim damages in normal judicial proceedings, have been transferred to the High respect of any distortion, mutilation, modiﬁcation or other acts Court.The Customs Department under the Commissioner of in relation to the work, if such distortion, mutilation, Customs also has some powers to seize infringing imports modiﬁcation or other acts would be prejudicial to his honour or in conjunction with courts that have jurisdiction. 4 reputation. 6 Some of the terms that librarians may come across in Unlike, economic rights, moral rights in India and several other connection with copyright are included in the Glossary. countries are perpetual (capable of being exercised by the author’s legal representative after the author’s death) and not subject to any limited term. Further, by their very nature moral The concept rights cannot be transferred, though it is possible (except in a of Public Domain few countries) to waive them. Public Domain comprises of Work/Material which is not Economic Rights protected by copyrights. A work may not be copyright protected for the following reasons :- Section 14 (a) of “The Act” gives the copyright owner to the exclusive right to the following in case of literary, (a) Works in which the term of copyright has expired; (b) dramatic, or musical work not being a computer Material, which is not copyrightable, e.g., because it is not programme- “original”; (c) Works which were created, or whose authors died, before there was any copyright law; in India that means (i) to reproduce the work in any material form including before the Imperial Copyright Act, 1911 came into force the storing of it in any medium by electronic means; Page 10 (ii) to issue copies of the work to the public not being Section 19 Mode of assignment.— copies already in circulation; (iii) to perform the work in public, or communicate it to [(1)] No assignment of the copyright in any work shall the public; be valid unless it is in writing signed by the assignor or (iv) to make any cinematograph ﬁlm or sound by his duly authorised agent. recording in respect of the work; (v) to make any translation of the work; (2) The assignment of copyright in any work shall (vi) to make any adaptation of the work; identify such work, and shall specify the rights (vii) to do, in relation to a translation or an adaptation assigned and the duration and territorial extent of such of the work, any of the acts speciﬁed in relation to the assignment. work in sub-clauses (i) to (vi); (3) The assignment of copyright in any work shall also specify the amount of [royalty and any other For further information on Economic Rights one can consideration payable], to the author or his legal heirs read the entire sections 14 and 17. during the currency of the assignment and the assignment shall be subject to revision, extension or Moral Rights of the Author- termination on terms mutually agreed upon by the parties. Section 57. Author’s special rights.— (1) Independently of the author’s copyright and even (4) Where the assignee does not exercise the rights after the assignment either wholly or partially of the assigned to him under any of the other sub-sections of said copyright, the author of a work shall have the this section within a period of one year from the date right— of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry 1. (a) to claim authorship of the work; and of the said period unless otherwise speciﬁed in the 2. (b) to restrain or claim damages in respect of any assignment. distortion, mutilation, modiﬁcation or other act in relation to the said work if such distortion, mutilation, (5) If the period of assignment is not stated, it shall modiﬁcation or other act would be prejudicial to his be deemed to be ﬁve years from the date of honour or reputation: Provided that the author shall not assignment. have any right to restrain or claim damages in respect of any adaptation of a computer programme to which (6) If the territorial extent of assignment of the clause (aa) of sub-section (1) of section 52 applies. rights is not speciﬁed, it shall be presumed to extend within India. Explanation.— Failure to display a work or to For further information on transfer of copyright, one display it to the satisfaction of the author shall can read the entire sections 18 & 19. not be deemed to be an infringement of the rights conferred by this section.] Licences (2) The right conferred upon an author of a work by sub-section (1), may be exercised by the Section 30. Licences by owners of copyright. — legal representatives of the author. The owner of the copyright in any existing work or the prospective owner of the copyright in any future work Transfer of Copyright may grant any interest in the right by licence in writing by him or by his duly authorised agent: Section 18. Assignment of copyright.— (1) The owner of the copyright in an existing work or Provided that in the case of a licence relating to the prospective owner of the copyright in a future copyright in any future work, the licence shall take work may assign to any person the copyright effect only when the work comes into existence. either wholly or partially and either generally or subject to limitations and either for the whole of the copyright Explanation. — Where a person to whom a or any part thereof: Provided that in the case of the licence relating to copyright in any future work is assignment of copyright in any future work, the granted under this section dies before the work comes assignment shall take effect only when the work into existence, his legal representatives shall, in the comes into existence. absence of any provision to the contrary in the licence, be entitled to the beneﬁt of the licence. (2) Where the assignee of a copyright becomes entitled to any right comprised in th copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have What Works effect accordingly. would not receive (3) In this section, the expression “assignee” as Copyright protection respects the assignment of the copyright in any future work includes the legal representatives of the Copyright protects “expression,” it does not protect mere ideas, assignee, if the assignee dies before the work comes and concepts including but not limited to procedures, methods into existence. of work and mathematical concepts. Page 11 Fourthly, in the case of Government works (i.e., works made What works would not receive Copyright protection- 7 for the Government whether by Governments servants or not) the ﬁrst owner of copyright is the Government, absent an Section 15 of the Act- (1) Copyright shall not subsist agreement to the contrary. The same principle applies to under this Act in any design which is registered under works made for a public sector organisation or for an the [Designs Act, 2000 (16 of 2000)]. international organisation whose copyrights are protected in India by notiﬁcation under Section 41 of the Act. (2) Copyright in any design, which is capable of being registered under the [Designs Act, 2000 (16 of 2000)] but Finally, a note of caution: The North American term “work for which has not been so registered, shall cease as soon hire” is gaining popularity in India, quite unthinkingly. It should as any article to which the design has been applied has be eschewed because in some situations in US law what we been reproduced more than ﬁfty times by an industrial call contracts for employment are treated just like our process by the owner of the copyright or, with his contracts of employment, and thus a person outsourcing work licence, by any other person. to an independent contractor becomes the ﬁrst owner of copyright where he would not in India; further, US law does not distinguish between authorship and ﬁrst ownership of copyright in such cases, hence the ﬁrst owner of copyright Copyright ownership: who is not the author in Indian law , may be designated the “author” under the US “work for hire” doctrine.8 The author of a work is normally the ﬁrst owner of copyright. However, section 17 of the Act lays down a few exceptions to this rule, which arise mainly in the case of works created by an International Conventions employee for an ‘employer.’ and Agreements The general rule is that where a work is created under a contract of service or apprenticeship the ﬁrst owner of India is a member of the main international conventions and copyright, absent a contract to the contrary, is the employer agreements on copyright and neighbouring rights including (though he does not become the author, and the author retains the Berne Convention (the principal Convention on copyright); his moral rights unless waived). This situation of a “contract of the Universal Copyright Convention (UCC); the Rome service” does not apply to a contract for service where the Convention for the Protection of Performers, Producers of author is an independent contractor: such an author, to whom Phonograms and Broadcasting Organisation, and the work has been outsourced, does not lose copyright ownership Agreement on Trade-Related Aspects of Intellectual Property absent a contract to the contrary. Rights; the WIPO Copyright Treaty; the WIPO Performances and Phonograms Treaty; The Marrakesh Treaty to Facilitate However, there are a few special cases to bear in mind: Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVT).9 Firstly, unlike other instances of works created under a contract of service, in the case of a literary, dramatic or artistic By virtue of the Berne Convention, any work ﬁrst published work (including of course a photograph) made in the course of outside India in any of the convention countries enjoys employment by a newspaper or magazine/ journal etc. the protection in India at par with the protection granted to Indian employer’s ﬁrst ownership of copyright is limited to the use of works. It is automatic as it does not require any registration or the work in the same newspaper or magazine, and for all other procedure. However, there is an exception: if the term purposes the author remains the ﬁrst owner of copyright. speciﬁed in the country of origin is shorter than that in India, the work will be protected for the shorter term in India and the Secondly, in the case of a photograph taken, or a painting or converse in the case of Indian works protected in other portrait drawn, or an engraving or a cinematograph ﬁlm (as countries. 10 distinct from its underlying works) made for valuable consideration, the person at whose instance the work was For example, in Canada the copyright protection term is life of created is the ﬁrst owner of copyright; in such cases an the author plus 50 years whereas in India it is the life of the independent contractor who may have made the work is not author plus 60 years. Therefore, any work produced in Canada the ﬁrst owner of copyright. will have 50 years of protection after the death of the author in India rather than 60 years (the period of copyright protection Thirdly, ﬁlms are treated as a special case: even where the granted under our Act.”). “underlying works” like music, lyrics, screenplay, choreography, artistic works such as set design, etc. are made for a ﬁlm The same applies to neighbouring rights including performers’ under a contract of service, the producer (who remains author rights, broadcast reproduction rights and to the agreed of the ﬁlm per se) is not the ﬁrst owner of copyright in the said exceptions for the disabled in the case of countries that have underlying works though made by his employees and has to joined the Marrakesh Treaty. obtain assignments from them as authors thereof. However, in India, as in many other countries, the producer i.e., the person who takes the initiative and responsibility for making the ﬁlm, is the author of the ﬁlm as a whole. The rationale for this is COPYRIGHT AND LIBRARY OPERATIONS that the ﬁlm is more than the sum of its parts and the actual contributions of others like screenwriters, directors etc. may vary from ﬁlm to ﬁlm. (On the other hand, in some countries, authorship vests in a group of contributors to the ﬁlm but Library operations need to be carried out respecting the rights there are restraints on their preventing the producer from of copyright owners. However, the Act carves out some exploiting the ﬁlm.) exceptions speciﬁcally for libraries: it is important to avail of them within the law. Further, it is necessary to be aware of the rights and obligations of users of the library in order to enable Page 12 them to make lawful use of their rights. Copyright law is not generally concerned with the ownership of physical copies, but rather with the intangible rights subsisting in their contents. Generally, a person who commits an Section 52 of the Act makes a reference to infringing act will be liable regardless of who owns the non-commercial public library under sub-sections- physical copy. 52 1 (n) the storing of a work in any medium by As mentioned before the "Act" does allow certain exceptions electronic means by a non-commercial public library, for the libraries, however, it does not permit the libraries the for preservation if the library already possesses a freedom to achieve the overarching goal of providing universal non-digital copy of the work; access. Unfortunately, the lack of access has now become a differentiation between the haves and the have nots, 52 1 (o) the making of not more than three copies of a something the courts have time and again tried to overcome. book (including a pamphlet, sheet of music, map, chart These attempts giving some respite have also led to lack of or plan) by or under the direction of the person in clarity. charge of a [non- commercial public library] for the use of the library, if such book is not available for sale in India; “Non-commercial public library” Digital storage for archival purposes and the reproduction for the library’s use of books that are not available for sale in India Making of a Non-Digital are two special exceptions enjoyed only by “non- commercial public libraries”.11 Copy from a Preserved “Non-commercial public library,” though the term is not Digital Copy speciﬁcally deﬁned in the Act, includes any library (a) that is either maintained/ established/ aided by the Government or It is desirable that libraries should avail themselves of the notiﬁed by the Government as a public library or whose exception under Section 52(1)(n) of the Copyright Act by primary activities are the collection and preservation of books, making digital copies of their non-digital collections in order to periodicals and other documents and the provision of library ensure that at all times copies of the work are available in the services and (b) which makes its collection accessible to the library. An indexed record of such digital copies must be public. maintained at all times. To elaborate: the term “ commercial” essentially connotes activities involving trading. A “non- commercial public library” would be one that is Template for record keeping (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 MAKING OF A DIGITAL COPY circle of family and friends is “public”. For our purposes the FROM A PRESERVED PHYSICAL COPY library’s collection should be accessible to the public (notwithstanding that it may impose membership conditions The Copyright Act, 1957 governs the preservation of a like paid membership).12 work through electronic means by a non-commercial public library. Digital storage It is hereby declared that: for preservation 1. (Title of the work /literary work/dramatic work/musical work (sheet music/ sound Under Section 52(1)(n) of the Act a non-commercial public recording)/cinematograph ﬁlm (celluloid/DVD library may “store work in any medium by electronic means etc.) as recorded in the library catalogue has been for preservation if [the] library already possesses a non -digital maintained by the library from (year acquired by the copy of the work.” library). This is the only one of the library exceptions that apply to any kind of work, i.e., literary, dramatic, musical, or artistic 2. That due to (mention the reason) the work is works or films or sound recordings. The precondition is that mutilated /destroyed on (date). the library should possess a non-digital copy. “Possession” would not include a copy on a temporary loan: it should be 3. A digital copy has been created from the with the library on a permanent basis. PHYSICAL copy on (date) and has been included in the library collection The purpose being preservation, the library is free to create a non-digital copy of the work from the preserved digital copy to Date: Signature of the Authorized Person: 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. Page 13 Copies of DIGITISATION unavailable books Modern day libraries are custodians of knowledge and cultural materials. Physical libraries are slowly transitioning into digital spaces, providing access to books and journals. In some Under Section 52(1)(o) of the Act the person in charge of a instances, libraries are also digitizing and archiving materials non-commercial public library, or persons acting under his or that are in the public domain and uploading copyrighted her direction, may make up to three copies, for the use of the material with the sole aim of increasing access to knowledge library of a “book” that is not available for sale in India. This or to enable people to engage with cultural and historical exception is limited to non-digital formats. materials. However, it is important for libraries involved in digital archiving of materials to ascertain ownership of Second-hand books available from online retail or copyright in such materials and get permission to digitize such serendipitously from a second-hand bookseller should not be material for public non-commercial use. considered as being available for sale in India. Further, the courts have held that items priced beyond the means of most Projects on digitization of information resources, conversion people may also be treated as not available for sale in India. A of physical documents into digital formats for preservation “book” need not be sheets of paper bound between and diverse uses are common activities in most institutions. hardcovers, though that is its usual sense. It is broadly, a Extreme care with respect to copyright must be exercised in physical carrier of two-dimensional works ( including two - executing digitization projects. Assessment of what may be dimensional representations of three-dimensional works). digitized merely for the creation of archives for preservation and / or distribution and made accessible to users is now an Under the Act “book” includes (but is not limited to) a imperative. Similarly, execution of interlibrary loans of e- pamphlet, sheet of music, map, chart, or plan. Issues of resources either created or procured, must also be subjected printed journals or magazines, newspapers, and such other to a process of “due diligence” with regard to copyright. print documents would also count as books. If a book becomes available for sale in India after copies have been Section 65A titled “Protection of technological measures” and made in good faith under this exception the library may Section 65B titled “Protection of Rights Management continue to use these copies as they were lawfully made at the Information,” which are discussed further below, link the time when made and the Act does not restrict their use (in Copyright Act with provisions also covered under the contrast with the digital storage exception, which is strictly for Information Technology Act 2000 as amended from time to preservation.) time. 14 Libraries serve as the nerve-centre of knowledge storing and Template for Record circulation in educational institutions, especially in the Keeping developing world where access to knowledge is a key concern. 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 Three Copies of a book/ a pamphlet/ sheet of their collection. Before making any further copies of electronic music/map, chart/ plan, if it is not available for sale in books, libraries must rely on the contracts that they have India signed with copyrights owners. The Copyright Act, 1957 governs the making of three Access to educational materials which are necessary to copies of a book/ a pamphlet, sheet of music, map, pursue higher education in a developing country like India is chart or plan by a non-commercial public library if such one of the primary concerns and the judiciary has intervened work is not availablefor to clarify that libraries can play a key role in the creation of sale in India. course packs. Within the meaning of the phrase “in the course of instruction” 15 and following the Delhi High Court judgement, It is hereby declared that the library: libraries are allowed to prepare digital course packs of books as prepared by and used by educational institutions for 1. Made reasonable attempts to acquire (Title of the instructional use. work) published by (name of the publisher, year of publication) by placing an order for the same on (date). Once prepared, digital course packs are likely to be widely distributed and therefore libraries are better off implementing 2. That the same was not made available to any such access controls as they are able to. These access distributor in India as on (date). controls will limit the use of digital course packs only to the users who have institutional aﬃliations. 3. Under the direction of the person in charge-of-the-library three copies of the book/ a pamphlet/ sheet of music/ map/ chart/ plan was made on (date) for the use of the library. Within the meaning of the phrase “in the course of instruction” and following the Delhi High Court Date: judgement, libraries are allowed to prepare digital course packs of books as prepared by and used by educational Signature of the Authorized Person in charge of institutions for instructional use. The Chancellor, Masters Digitisation and Scholars of Oxford University v Rameshwari Photocopy Services & Ors. Once prepared, digital course Page 14 In most instances licenses limit access to such databases only to authorized users of the library, especially if the content packs are likely to be widely distributed and therefore is allowed to be accessed through the library’s network. libraries are better off in implementing certain access controls. These access controls will limit the use of digital course packs only to the users who have institutional affiliations. Exceptions By “exceptions” we generally mean speciﬁc exceptions like those carved out in Section 52 of the Copyright Act. It is to be appreciated that these are acts which would be infringing, but for their inclusion in Section 52. Negotiating Licences, In Section 52, there are exceptions speciﬁc to libraries, which are discussed below. Subscriptions to Books Other exceptions in Section 52 include activities related to and Journals Especially personal use, review and criticism, various activities in with Regard to educational institutions (including use of works in the course of instruction (52(I)); performing a play or showing a ﬁlm or Electronic Resources sound recording to a limited audience in the institution 52(j), certain uses of government / public documents, news reporting, cases where it would be diﬃcult or unreasonable to enforce copyright e.g. Architectural works in public places, public statues and so forth. It has become necessary for libraries to maintain electronic resources and provide access to their patrons. Electronic Section 52(1)(zb) provides for access to copyrighted works in resources could be in varied forms like subscriptions to special formats for persons with disabilities. electronic databases, e-books, e-journals, etc. It is necessary to understand that this primarily requires a library to sign It may be noted that the term “museum” or the expression licensing agreements with content providers. This generally “other institutions to which the public has access” has been entails giving up specific rights which a library would normally included in Section 52(1)(p) of the Act. have if it had bought a hard copy of a book or journal. For instance, the library is not the owner of online resources like The term “Archives” has been included in the explanation to Journals. Section 52(1) (zb) in “The Act”. It is important to note that libraries do not necessarily own the S52(1)(b) provides that transient or incidental storage of a e-book or e-journal but will only have limited access to the work or performance purely in the technical process of content as per the terms of the licensing agreement. The electronic transmission or communication to the public does licensing agreement in most instances will dictate the terms not constitute infringement of copyright. of access and it might be more restrictive than what copyright law might allow as the terms of the contract may require a S52(1) (c) provides that transient or incidental storage of a library to sign away privileges that libraries are provided under work or performance for the purpose of providing electronic copyright law. links, access or integration that is not expressly prohibited by the rights holder would not be infringement of copyright, The terms of the licence that library signs to gain access to unless the person responsible is aware of infringement or has electronic resources might narrow down access to content. reasonable grounds for believing that such storage is of an Licensing content is more like renting than buying something. infringing copy. Publishers and information vendors may add several conditions to the use of their digital resources. Similarly, the 52(1) (c), is to be read with a proviso that if the owner of a content may be available to some, or all, of the library’s users. copyright work, in a written complaint to the person For instance, a subscription might allow the library to store the responsible for digitally storing an infringing copy of the work, content in a standalone computer in which case the library complains that such transient or incidental storage is an cannot display the content on multiple computers or provide infringement, then the person responsible would have to access to the material through the network wherein multiple refrain from facilitating access to the infringing copy of the users could access the content at the same time. work for a period of 21 days. If within 21 days, the person responsible does not receive an order from a competent court Further, there are multiple ways in which a library can gain that directs the person responsible to refrain from providing access to electronic resources. There is a possibility of the access, then access may be resumed at the end of that period. library signing a Single Institution Licence, Academic Consortia Licence, Public Libraries Licence, e-book and journal Infringement (S.51): means any act included in S.14 (i.e. in the archive licence, and lastly the free trial licences for a limited copyright bundle of rights done without the permission of the duration. Each of these licenses has its own nuances, copyright owner is an act of infringement, subject to the advantages, and disadvantages. However, regardless of the exceptions in Section 52. type of licence the library enters into, it is necessary to keep in mind whether there are restrictions as to who can access the Certain activities permitted by the Copyright Act for use content. Who are the authorized users? Does the licence allow without permission of the copyright owners in the Act, to the library to make the electronic database available only to its address the issue of how to strike an appropriate balance patrons or to any visitors or walk-in users of the library? between the authors’ interest in preserving the integrity of copyright, and the public’s right to enjoy the beneﬁts of Page 15 copyrighted works in the larger interests to meet societal “not entitled in law to impose any restrictions curtailing the fair needs. [dealing] thereof” and that “the legal action even if any taken by holder of copyright against any other person for violating the The exclusive rights of copyright owners are subject to certain conditions illegally imposed by the holder of copyright, would limitations and exceptions. The limitations include the term of thus fail.” 18 copyright (i.e. works fall in public domain after a certain period of time) and rights are sometimes subject to non-voluntary Further, Section 23 of the Contract Act 1872, also states that a licenses. For example, the Act provides for compulsory contract is unenforceable if the terms of the contract are licenses; the one most relevant for this discussion is Section “opposed to public policy” or “if permitted, it would defeat the 31A of the Act. It also provides for statutory licences, which do provisions of any law”. 19 not require speciﬁc grant by any authority but may be enjoyed by operation of law: one that may at times be of interest to Fair dealings exception are built into to the copyright librarians is the statutory licence for cover versions under legislation primarily to strike a balance between protection of Section 31C of the Act. copyrighted work and access to content. The Digital Platforms are now a reality and the technologies of Fair dealing allows limited copying of work for the purposes of today and the future will provide facile and speedy access for research, private study, criticism or review and reporting of information managers / librarians to create user friendly events. databases, technologies that will facilitate interoperability between diverse platforms and devices thereby establishing Given that S. 52(1) allows for access to content, any restriction “inter and intra” linkages between platforms. This will be a imposed on the library or its patrons, to use e-books and boon for the users irrespective of the jurisdictions in which e-journals for the above purposes through contractual they operate. However, copyright and other IPR laws will have agreement would defeat the provisions of Section 52 of the to be applied taking technological advances into account; as Copyright Act and, may, therefore, be unenforceable under we have seen some amendments to deal with this new Section 23 of the Contract Act. environment have been made, but more are likely to come into existence in future. Further, the terms of licence may impose restrictions on copying, downloading and printing of materials accessed through electronic databases. Terms of licence may in general Technology Circumvention allow the authorized user to print a single copy of an e-book or resource for private study, scholarship or research. In some instances, it might allow the course instructor to develop a The Act provides that if someone– course pack using the contents of the electronic database, provided the access to the course pack is restricted to the - Purposely circumvents the technological measures that are students who are enrolled in a course. applied to copies of work, the individual may be penalized by way of imprisonment that may extend to two years and However, the extent of copying and printing of the material is payment of a fine. entirely dependent on the terms of the licence. For instance, many e-book archives/ databases impose restrictions on -Also, if someone alters or removes any rights management number of pages that can be printed or downloaded. In some information without the proper authorization from the instances, such archives have technological measures that Management, the same would be penalized by way of prevent copying and printing. Encryption and user imprisonment up to 2 years and would also be liable to a fine. authentication systems might be required by the database Explanation- Digital rights management information includes provider, which may provide access and also involve copy means of identifying copies of a work, for instance, protection technology. Libraries will have to ensure that such “watermarking” and of tracing the copying and transmission of technological measures are not tampered in any way and such copies. impose restrictions on its authorized users to not circumvent it. Therefore, information resource centers need to take appropriate care while using / uploading/reformatting/ Further, librarians ought to try to familiarize themselves with reworking on any copyrighted works. the nuances of contractual obligations related to access and distribution involving digital resources. Cross-border issues may also have to be addressed. Technology Circumvention in the act is covered Regardless of restrictive licensing terms that might prevent under sections 65 A & 65 B- copying, printing or downloading e-books and electronic journals, it is likely that courts would be inclined to strike down 65 A. Protection of technological measures.— such restrictive clauses on the ground that such clauses fall within the parameters of Section 52 of the Act or are against (1) Any person who circumvents an effective public policy, though this cannot be assured in the absence of technological measure applied for any such judicial pronouncement as yet. Fair dealing of a protecting any of the rights conferred by this Act, with copyrighted work as per Section 52 of the Copyright Act the intention of infringing such rights shall be cannot be completely restricted or prevented as such a term in punishable with imprisonment which may extend to the licence would directly contravene the provisions of the two years and shall also be liable to fine. statute and such terms may be held to be unenforceable. Delhi High Court in a recent judgement has stated that the holder of (2) Nothing in sub-section (1) shall prevent any copyright is: person from,— Page 16 “… any original work of authorship for which a good faith prospective user cannot readily identify and/or locate the copyright owner(s) in a situation where permission from the (a) doing anything referred to therein for a copyright owner(s) is necessary as a matter of law.” 21 purpose not expressly prohibited by this Act: Provided that any person facilitating circumvention by “Orphan works” came into current discourse long after the another person of a technological measure for such a Copyright Act, 1957 was enacted, and no subsequent purpose shall maintain a complete record of such amendment has addressed the question. However, dealing other person including his name, address and all with orphan works is a very real problem that librarians have to relevant particulars necessary to identify him and the face and therefore, for the time being, we have to see how far purpose for which he has been facilitated; or we can make use of existing provisions of the Copyright Act, none of which was actually drafted to deal with orphan works. (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or The problem with orphan works is that there is a genuine public interest in making them accessible to a wider (c) conducting any lawful investigation; or readership. The only effective means of doing so is by publishing them. However, the term, “Publication” is very widely (d) doing anything necessary for the purpose deﬁned in Section 3 of the Act: it means making the work of testing the security of a computer system or a available whether by issuing physical copies of the work or by computer network with the authorisation of its “communication to the public”. The latter is a very wide term owner; Or including every other possible means of making the work available to the public. It would cover making and issuing (e) operator; or copies in print or any other format, a live performance, physical display, broadcasting, uploading on the internet, etc. (f) doing anything necessary to circumvent The circumstances in which the work exists or has been in technological measures intended for the identification somebody’s possession normally provide suﬃcient or surveillance of a user; or information. In any case if the identity of the copyright owner, or the fact of publication, becomes known to the institution, it (g) taking measures necessary in the interest may no longer avail itself of the exception discussed below. of national security. The ﬁrst thing to examine is whether the work is still in 65B. Protection of Rights Management Information.— copyright or has fallen into the public domain. The tests are Any person, who knowingly, — the same for all works, but the facts may be more diﬃcult to ascertain in the case of orphan works. This is important (i) removes or alters any rights management because civil liability for copyright infringement is “strict information without authority, or liability”: under the proviso to Section 55(1) of the Act, you are (ii) distributes, imports for distribution, broadcasts exempt from liability only if you can show that you were or communicates to the public, without authority, unaware or had no reasonable ground for believing that copies of any work, or performance knowing that copyright subsisted in the work. This implies some due electronic rights management information has been diligence by the librarian before treating a work as an orphan removed or altered without authority, shall be work. punishable with imprisonment which may extend to two years and shall also be liable to fine: We have already referred to Section 52 of the Copyright Act, which exempts a number of acts in respect of in-copyright Provided that if the rights management information works from liability for infringement, the library exceptions has been tampered with in any work, the owner of under Sections 52(1) (n), (o) and (p) being particularly relevant copyright in such work may also avail of civil remedies for our purposes. Sections 52(1) (n) and (o) apply indifferently provided under Chapter XII against the persons whether the work is an orphan work or not, but Sections Including in such acts. 52(1)(p) and 31A are (if serendipitously) relevant to orphan works. Section 52(1)(p): Section 52 ( 1 ) ( p), 22 which deals with unpublished works kept in any library, museum or other institution to which the Orphan works public has access, is useful but has two limitations. Firstly, it does not extend to all classes of copyright work: notably not to artistic works, cinematograph ﬁlms and sound recordings. The notion of “orphan works” as a uniﬁed concept is relatively Secondly it does not extend to cases where the library or other recent: relevant legislation in some jurisdiction was enacted in relevant institution knows who the author of the work is: in the 2010s, adopting different strategies; some countries, other words, this exemption does not help us in the case of including the U.S., have yet to formulate their legislation. works which are orphan works for the reason that the author, though known, is not traceable. A compendious deﬁnition is provided by the U.S. Copyright Oﬃce: Section 52(1)(p) is nevertheless useful because the works that it covers—literary, dramatic and musical--are not made subject to the “fair dealing” test of Section 52(1)(a). Page 17 The library may facilitate the complete reproduction of the procedure and subject to certain conditions, the most work for private use and research. However, the library may be important condition being the payment of royalty at rates fixed faced with the problem of making a valuable asset in its by the Court. Royalty, as fixed by the Appropriate Court [now possession available to someone for private publication, replacing the Intellectual Property Appellate Board (IPAB) after for-profit: the law does not forbid it. So far as digital the Ordinance of 4 April 2021], will have to be paid to the communication to the public is concerned a good strategy copyright owner if and when he/she is discovered or decides might be for the library to simply publish the work on its to reveal himself/herself. The Copyright Rules do not provide website first. However, the library should devise a transparent the Appropriate Court [now replacing the Intellectual Property policy regarding the grant of permission to publish such a Appellate Board (IPAB) after the Ordinance of 4 April 2021] work in print format. with any guidance as to the basis on which licence fees should be fixed under Section 31A. The law does not state the consequences if the author appears. In such a case, the publication would have been Libraries could reduce their expenses by applying for made lawfully and the author would have no remedy for the compulsory licenses limited to online publications seeking past; but he/she might succeed in restraining further fixation of the licence fee on that basis. The work would thus publication or demand a license fee (which would be have been made available to the public and would no longer prospective) fall within the scope of Section 31A. But further, neither the Act nor the Rules prescribe anything about the custody of the licence fee; specific orders would Unpublished Work need to be obtained from the Appropriate Court [now replacing the Intellectual Property Appellate Board (IPAB) after the Section 52 (1) (p) of the Act- Ordinance of 4 April 2021] (to fix the fee prospectively after the author becomes known, if possible) or the library (p) the reproduction, for the purpose of research or would have to devise some mechanism, like a fund, to address private study or with a view to publication, of an the contingency that the copyright owner reveals himself. unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access: Provided that where the identity of the author of any such work or, in the case of a work of joint authorship, “The Act” deals with orphan works under section 31 A of any of the authors is known to the library, museum through compulsory licensing of unpublished work. or other institution, as the case may be, the provisions Section 31A. Compulsory licence in unpublished or of this clause shall apply only if such reproduction is published works. — made at a time more than [sixty years] from the date of the death of the author or, in the case of a work of joint (1) Where, in the case of any unpublished work or authorship, from the death of the author whose any work published or communicated to the public and identity is known or, if the identity of more authors than the work is withheld from the public in India, the author one is known from the death of such of those authors is dead or unknown or cannot be traced, or the owner who dies last; of the copyright in such work cannot be found, any person may apply to the Appellate Board for a licence to publish or communicate to the public such work or a translation thereof in any language. Section 31A: (2) Before making an application under sub- section (1), the applicant shall publish his proposal in one Unlike Section 52(1)(p), Section 31A applies to all classes of issue of a daily newspaper in the English language work: artistic works, the orphan- work films, and sound having circulation in the major part of the country and recordings can be published by recourse to Section 31A where the application is for the publication of a though not under Section 52(1)(p). But Section 31A, again, is translation in any language, also in one issue of any somewhat problematic, particularly in the case of films and daily newspaper in that language. sound recordings, not having been drafted with orphan works in mind. (3) Every such application shall be made in such form as may be prescribed and shall be accompanied Section 31A applies to works which, whether already with a copy of the advertisement issued under published or not, are “withheld from the public in India, the sub-section (2) and such fee as may be prescribed. author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found…”. In effect this (4) Where an application is made to the Appellate provision comes into play in all cases where the work is still in Board under this section, it may, after holding such copyright but is being withheld from the public in India inquiry as may be prescribed, direct the Registrar of whether deliberately or by omission. (Whether the author is Copyrights to grant to the applicant a licence to dead is hardly pertinent for us: the work might still be in publish the work or a translation thereof in the copyright and the current copyright owner might still be language mentioned in the application subject to the unknown or untraceable.) payment of such royalty and subject to such other terms and conditions as the Appellate Board may The High Court [now replacing the Intellectual Property determine, and thereupon the Registrar of Copyrights Appellate Board (IPAB) after the Ordinance of 4 April 2021] 23 shall grant the licence to the applicant in accordance may grant a compulsory licence to publish any work under with the direction of the Appellate Board. Section 31A, on application, after following a prescribed Page 18 present copyright owner cannot be found (e.g. if the producer (5) Where a licence is granted under this section, company was liquidated). In the case of ﬁlms that have fallen the Registrar of Copyrights may, by order, direct the into the public domain, the rights of the authors of underlying applicant to deposit the amount of the royalty works are limited to the extent that under Section 52(1)(y) the determined by the Appellate Board in the public “exhibition” of a ﬁlm that has itself fallen into the public domain account of India or in any other account speciﬁed by is not an infringement. the Appellate Board so as to enable the owner of the copyright or, as the case may be, his heirs, executors The term “exhibition” is not deﬁned but it may be taken to be or the legal representatives to claim such royalty at any projection or playing of the ﬁlm that is not private, i.e., is not time. conﬁned to a limited circle of family and friends. Private exhibition is never infringing, and as far as copying is (6) Without prejudice to the foregoing provisions of concerned, copying for private use, research etc. is permitted this section, in the case of a work referred to in subject to “fair dealing” under Section 52(1)(a). It is suggested sub-section (1), if the original author is dead, the that in the case of a ﬁlm “fair dealing” may cover reproduction Central Government may, if it considers that the of the entire ﬁlm assuming bona ﬁde use for the purposes of publication of the work is desirable in the national private use, research etc. interest, require the heirs, executors or legal representatives of the author to publish such work within such period as may be speciﬁed by it. Performers’ rights: (7) Where any work is not published within the period speciﬁed by the Central Government under Performers’ rights are relevant in the case of films and sound sub-section (6), the Appellate Board may, on an recordings. application made by any person for permission to publish the work and after hearing the parties If the film or sound recording was published after 10.05.1995, concerned, permit such publication on payment of being the date on which the Copyright (Amendment) Act, such royalty as the Appellate Board may, in the 1994, came into force, the performers of recorded circumstances of such case, determine in the instrumental and vocal music enjoy performers’ rights; in the prescribed manner. case of the film the actors also enjoy such rights. Performers’ rights do not subsist in films or sound recordings made before Since section 31 A (1) uses the phrase “unknown or that date. cannot be traced,” one can apply for compulsory licensing for orphan works. Performers’ rights in sound recordings as initially introduced

Copyright Guide for Librarians in India (NDLI) PDF 2021

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