Supported by:

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 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

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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

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 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.

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 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.

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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

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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

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 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”.
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“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
comprised the right of recording the performance: the
We have already referred to Section 52 of the performer had the exclusive right to allow his/her performance
Copyright Act, which exempts a number of acts in to be recorded either generally or for any particular purpose;
respect of in-copyright works from liability for however, once the performer had permitted his/her
infringement, the library exceptions under Sections performance to be included in a film, he/she had no further
52(1) (n), (o) and (p) being particularly relevant for our right to object to the exploitation of the film. These are the
purposes. Sections 52(1) (n) and (o) apply indifferently rights that performers enjoy in films and sound recordings
whether the work is an orphan work or not, but created between 10.05.1995 and 20.12.2012.
Sections 5 2 ( 1 ) ( p ) and 31 A are ( if serendipitously)
relevant to orphan works. The rights of performers were widened considerably by the
amending Act of 2012, which came into effect on 21.06.2012.

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
Underlying works: said purposes.

In addition, the performer has a specifically enumerated right

By “underlying works” we mean works incorporated in a film or against the broadcast of the performance without his or her
sound recording that would also be capable of independent permission. The performer whose performance is
exploitation. In the case of both sound recordings and films incorporated in a film cannot object to the exploitation of the
these would include recorded vocal and instrumental music film; but now he/she would still have a royalty right: the rate
and words accompanying vocal music. The screenplay would be subject to negotiation or the right would be waived.
(script), choreographic works, etc. would also be among the
possible underlying works in the case of a film. Since Section 39 provides that the exceptions in Section 52 including
underlying works are authored by natural persons, copyright Section 52(1)(p), will apply mutatis mutandis to performers’
subsists in them until the expiration of sixty years from the rights. However, this is not the case with a compulsory licence
commencement of the year following the year of the author’s under Section 31A (which we shall deal with below).
death, whereas the term of copyright in films and sound
recordings is sixty years from the date of publication. Hence It is, further, pertinent to note that the term of the performers
the film is almost certain to fall into the public domain before right may sometimes exceed the term of copyright in the
expiration of the term of copyright in all the underlying works. sound recording or film, as may happen in the case of the
authors of underlying works, the term of performers’ rights
The authors (i.e. producers) of films and sound recordings are also being fifty years from the commencement of the year
usually identifiable, but they might be orphan works if the following the year of the death of the performer.
Page 19
However, Section 52(1)(p) can still be applied to such
performances until they fall into the public domain. Further, it Template for making
is a reasonable interpretation of the law that a compulsory
licence under Section 31A applies to the performances
work accessible to
recorded in a film or sound recording: Section 31A would
otherwise, be meaningless. Further, in the case of films, we
disabled persons
may also note that the exception in Section 52(1)(y),
discussed above, regarding the exhibition of the film, would
also apply to performances.
This exception applies to any kind of institution, be it a library
(whether non- commercial or not), a museum, an educational Declaration by any organization working for the
institution or anything of the kind. The exception maybe benefit of Persons with Disabilities seeking to make
availed of by any person, not only by the institution itself; a work in a format accessible to persons with
though it does not of itself create a right of access to the disabilities.
institution’s collection.
The Copyright Act, 1957 governs the adaptation,
What is excepted from copyright liability is a reproduction reproduction, issue of copies, or communicate to the
(even of the whole work) “for research or private public of any work in an accessible format by any
study” or “with a view to publication”. The orphan work person to facilitate persons with disabilities to access
exception does not come into play where the works.
institution knows the identity of the author(s) and the work has
yet to fall into the public domain. The (name of the institution working for the benefit of
persons with disabilities), hereby declares that:

(title of the work) published by (name of the publisher

Making works available in and year of publication) has been made available in an
accessible format (specify the format) to (name of the
a format accessible to disabled per- son) with disabilities (type of disability)
for private or personal use, educational purposes only.
persons with disabilities The above-said work has been transformed to the
accessible format (specify the format) and would be
made available to persons with disabilities only.
The Copyright (Amendment) Act, 2012 incorporated Section
52(1)(zb) with objective of implementing the Marrakesh Treaty Access to persons with disabilities is being provided
to Facilitate Access to Published Works for Persons Who Are on a not-for-profit basis and the only cost of
Blind, Visually Impaired, or Otherwise Print Disabled. Section production is being recovered.
52(1)(zb) allows any person or any organization to adapt,
reproduce, or communicate any work in any accessible format The accessible format will not be made available to
to facilitate persons with disabilities to use the work users who are not authorized to receive content.
for personal use, educational or research purposes. Persons That the content transformed into an accessible
with disabilities includes not only visually challenged persons, format will not be stored in multiple devices except for
but also other print-handicapped persons. the limited purposes of creating a backup on servers.
That all reasonable measures have been employed by
Section 52(1)(zb) enables any person, including libraries, to the organization to ensure such accessible formats
provide works in an accessible format to persons with (specify the format) are not in ordinary channels of
disabilities if such access is made available on a non-profit circulation.
basis. Any fee charged to make works available in accessible
formats should be towards recovering the cost of production.
Signature Date
Further, any organization that is making the works available in
accessible formats to persons with disabilities will have to
ensure that such copies are not available or circulated to
others through ordinary channels of business.

Display Publicising a
Any organization that is making works available in accessible
format to persons with disabilities includes an organization
registered under Section 12A of the Income-Tax Act, 1961 and
working for the benefit of persons with disabilities or library’s collection
recognized under Chapter X of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 or receiving grants from the There should not be any objection to displaying the jackets,
Government for facilitating access to persons with disabilities bibliographical details and the like in the premises of the
or an educational institution or library or archives recognized institution, or by uploading the same on any index or as
by the Government. particulars of new acquisitions onto the institution’s website or
in leaflets for members. There should likewise be no 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.
Page 20
 A library or other institution which is not conducting
Section 52 ( 1) ( zb ), the adaptation, reproduction , instructional activities would be on safe ground in making
issue of copies or communication to the extracts from works in its collection available for copying
public of any work in an accessible format, by— strictly for Section 52(1)(I). The extracts should be relevant to
the subject of the course pack and in no case should the
(i) any person to facilitate persons with disabilities to whole book (howsoever short) be copied.
access to works including sharing with any person
with disability of such accessible format for private or
personal use, educational purpose or research;or Educational Exceptions -
(ii) any organization working for the benefit of the Section 52 (1)(I) states-the reproduction of any work—
persons with disabilities in case the normal format
prevents the enjoyment of such works by such (i) by a teacher or a pupil in the course of
Persons: instruction; or
Provided that the copies of the works in such (ii) as part of the question to be answered in an
the accessible format is made available to the persons examination; or
with disabilities on a non-profit basis but to recover
only the cost of production: (iii) in answers to such questions; are exempted
from copyright infringement.
Provided further that the organization shall ensure that
the copies of works in such accessible format are This was reiterated in the Delhi High Court case The
used only by persons with disabilities and takes Chancellor ,Masters and Scholars of Oxford University
reasonable steps to prevent its entry into ordinary v Rameshwari Photocopy Services & Ors. The Court
channels of business. held that -

In the context of teaching and use of copyrighted

material, the fairness in the use can be determined on
the touchstone of 'extent justified by the purpose'. In
Compulsory Licence other words, the utilization of the copyrighted work
would be a fair use to the extent justified for purpose
of education. It would have no concern with the extent
of the material used, both qualitative or quantitative.
The High Court [now replacing the Intellectual Property The reason being, 'to utilize' means to make or render
Appellate Board (IPAB) after the Ordinance of 4 April 2021] useful. To put it differently, so much of the copyrighted
may, on application following the procedure laid down, grant a work can be fairly used which is necessary to
compulsory licence to publish a work if the work has been effectuate the purpose of the use
withheld from the public in India or if the author is dead or i.e. make the learner understand what is intended to be
unknown or cannot be traced or the owner of copyright in the understood.
work cannot be found. This is the only provision in the Act
whereby orphan works that are not literary, dramatic or The Court’s reiterate section 52 (1) (i) and held that
reproduction of work as part of ‘course of instruction’
and also as part of a question or even an answer is
permissible and are exempted from copyright

Educational Exceptions infringement.

There should not be any objection to displaying the jackets,

Librarians can be involved in the exercise of the “educational bibliographical details and the like in the premises of the
exceptions” by educational institutions, particularly Section institution, or by uploading the same on any index or as
52(1)(I). This exception allows “… the reproduction of any particulars of new acquisitions onto the institution’s website or
Work— in leaflets for members. There should likewise be no objection
to very brief abstracts prepared in the institution itself being
(i) by a teacher or a pupil in the course of instruction, or put up either in the library premises or on its website. The
(ii) as part of the questions to be answered in an purpose is merely to point the reader to the work; thus, for
examination; or example, hyperlinking even to a third-party website is
(iii) in answers to such questions.” 24 permissible, but not deep-linking or framing.

The term “in the course of instruction”, 25 has been interpreted

very liberally by the Delhi High Court The Chancellor, Masters
and Scholars of Oxford University v Rameshwari Photocopy
Services & Ors.26 The issue was whether the prior preparation
Publicising the collection
of course, packs comprising different chapters from different
academic works, photocopied and spiral bound, for the use of
students as background reading for interactive classes Uploading a copyrighted work without the copyright owner’s
amounted to the reproduction of a work “in the course of licence would be infringing, the library can only publicise the
instruction” and the High Court, both at the trial and appellate availability of such a work either in its collection or on third-
levels, answered the question affirmatively. party websites in the manner discussed above.

Page 21
 Users’ Rights Template of Declaration

I....MR/MS..... declare that following

Under Section 51(1)(a) anyone—which includes anyone using pages/chapter from (title of the copyrighted work)
any library, whether a non-commercial public library or published by (name of the publisher) have been
not—may reproduce any kind of work for private and personal photocopied and that copy :
use including research, or for criticism and review of that work I will not use the copy except for research or private
or of any other work, or for reporting current events. study.

This is not carte blanche for free or unlimited copying: it is To the best of my knowledge no other person with
subject strictly to “fair dealing”. Fair dealing means, essentially, whom I work or study has made similar request for
copying as much as is necessary for the purpose but no more. substantially the same content.

There can be no hard-and-fast rule, but the underlying principle I will not distribute a copy of it to any other person and
is the honesty of purpose: to take an extreme case, copying will not make multiple copies of the same.
the whole work is generally incompatible with fair dealing.
Copying for the purpose of research may require larger I have not previously been supplied with a copy of the
extracts than may be quoted in a work based on such same material by you or any other librarian.
research. Again, to the extent that the point can be made
effectively without extracts in a piece of criticism and review, I understand that if the declaration is false with regard
extracts should not be used. to the copy supplied to me by the abovesaid library,
that it will be an infringing copy and I shall be liable for
Fair dealing in the case of reporting current events is infringement of the copyright.
particularly restricted: if an event can be reported without
extracts from any in-copyright work (e.g. in reporting the death
of an author or performer, or writing an obituary, the use of Signature Date
extended extracts of the author’s work are not permissible.) By
honesty of purpose we mean that the person making the
reproduction is not trying, so to speak, to ride on the coat-tails
of the author, and does not intend to appropriate the extract
copied for its own expressive value, even with due attribution:
rather he should merely copy for his own use in preparing his
own literary, artistic, or another expression. Finally, we must
add that there can be no hard-and-fast rule as to the scope of
“fair dealing”: the term has to be seen as explaining itself in the
facts of a particular case. 27
Institutional publications/
A library needs to facilitate fair dealing reproduction for the
theses and dissertations/
above purposes, this being very consistent with the library’s working papers
raison d’etre, yet avoid liability for “secondary infringement” or
for “authorizing” infringement.28 It is impossible to monitor the
scale or nature of copying, but it would be prudent for the The author of a thesis or dissertation, or the author(s) of a
library to acquaint users with this principle, and obtain signed working paper, are the first owners of copyright. The library
undertakings with warranties and indemnities, which should might be the first owner of copyright in the case of working
also cover moral rights. papers that are made by regular employees (but not
outsourced work).

If these are unpublished works, copyright in them subsists

until they are published and, thereafter, for the normal term of
copyright. They can be published without the author’s
Declaration by User permission only where one of library exceptions applies. The
library is however entitled to make inventories of such
unpublished works. As already mentioned, the person who
Users and Patrons admitted to libraries are seldom asked to makes a speech or lecture is the first owner of copyright, even
sign on copyright declarations framed within the legislative if the speech or lecture is read out by another person.
exception on private use and research. There isn’t any
standard form used in 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.

Page 22
 Government publications/
datasets
Copyright in Government publications vests in the Government
for sixty years from the date of publication. Government
publications not yet in the public domain are however subject
to the exceptions provided for in Section 52, including library
exceptions.

So far as datasets/databases are concerned, copyright

subsists only in the selection and arrangement of their content
if the same is distinctive1 and not in any facts themselves.
Works included in a database are subject to copyright law.

The discussion of unpublished works hereinabove would also

apply to unpublished Government works except that access to
Government works held in Central Government archives is
governed by the Public Records Act and, therefore, it is that
Act rather than the Copyright Act that should first be referred
to in regard to such archives. The same applies to any
legislation governing State Archives.

Concluding Remarks
The nuances of the Indian Copyright Act 1957 (as amended in
2012) immensely influence operations related to libraries/
information centers. This guide lights the path of Information
Managers / Librarians while servicing the users of their
facilities. However, for specific contextual issues that might be
subject to the 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 evolving with the
introduction of new technologies, especially in Digital
Technologies and Artificial Intelligence.

Page 23
 GLOSSARY broadcast, wavelength, territory etc. This is one of dierent
kinds of communication to the public and, in India, does not
extend to the internet.

Broadcast Reproduction Right: The related right/

neighbouring right enjoyed by broadcasting organisations
NB: This glossary is intended only to be of general
over their signals, to prevent piracy thereof. This right is
assistance to librarians for quick reference; the definitions
distinct from any copyright subsisting in the content that is
should not be relied upon as legal advice.
broadcast.
Adaptation: A work created by adapting a pre-existing work to
Cinematograph film: A work of visual recording, including the
a different class of work, or a different genre or a different use,
soundtrack. “Audiovisual work” is a synonym. The authorship
e.g. a translation; a film made out of a play; a film or a play
of cinematograph films varies in different jurisdictions. In India
made in respect of a novel; a graphic novel made out of a
as in most common law jurisdictions, the author of a film is
literary work; a new arrangement of a musical work, etc.
the producer, being the person who takes the initiative and
responsibility for the creation of the film. Elsewhere films have
Artistic work: Besides traditional forms such as paintings,
multiple authorship usually with some provision ensuring that
sculptures, engravings, etc., this term also includes
the producer can exploit the film without hindrance.
engineering drawings, maps, and the like; photographs; and
architectural works. Artistic works must be original, but merit
Civil law: In copyright parlance, this term refers to all legal
is irrelevant. In the case of architectural works, however, the
systems that are not based on common law.
structure must have some artistic character or design.
Common law: A body of law that has been developed over the
Assignment: Transfer in writing of title in a copyrighted work,
centuries by treating previous judicial decisions as binding law.
which maybe for the whole bundle of rights for the term of
Generally speaking this principle (technically called stare
copyright or limited to some rights, or for a limited period short
decisis) applies in the UK and in all countries that were ever
of the term of copyright, or for a limited geographical area:
under British rule in the past, including the United States. All
These parameters must be specified in the agreement.
other countries are generally referred to as “civil law”
Consideration for an assignment is commonly by way of a
countries. It is important to note that legislation always
lump-sum payment and/ or the payment of royalty at agreed
overrides the common law.
rates.
Compulsory licence: A licence granted by an authority (in India
Author: The person who creates the work. In India and
the High Court, though until recently it was Intellectual
generally in common law jurisdictions, an author may be either
Property Appellate Board) without the author’s consent, on the
a natural or a juridical person (i.e. a company or other
application of a third party. Examples in India include
corporate entity that can sue or be sued). In civil law
instances where a published work is now being withheld from
jurisdictions, generally speaking, only natural persons can be
the public, or where the author cannot be traced, etc.
authors. Mainly, for this reason, the Berne Convention and
subsequent copyright treaties do not define the term “author”
Compilation: Compilations of data whether manual or digital,
but leave the definition to national legislation.
including machine-readable form, are protected by copyright
only to the extent that they constitute “intellectual creation”.
Berne Convention: The principal multilateral treaty on
This protection does not extend to contents of the database
copyright. Its basic principles are national treatment and
that are not protected by copyright. Further, it is without
minimum standards of copyright protection. Reciprocity is
prejudice to the copyright that may subsist in any of the
applied rather than national treatment in a few cases, the
contents of the database.
important one being the term of copyright.
Contract for service: Any agreement to provide services by a
Beijing Treaty on Audiovisual Performances, 2012: This
person who is not an employee but an independent contractor,
treaty binds its member States to protect audiovisual
e.g. an outsourcing agreement.
performance on the same basis as aural performances. India
has acceded to this treaty: in fact, Indian law was already
Contract of service: An employment agreement.
compliant with the same.
Copyright: The bundle of exclusive rights granted to authors
Berne Union: The Berne Convention as originally signed in
by law; copyright subsists only in original works and not in
1886 has been succeeded by various “Acts” (1908, 1928, 1948,
other subject matter and is strictly a statutory right, i.e. it
1967 and 1971) each of which is a self-contained treaty. The
subsists by virtue only of legislation and not otherwise. In
contracting States collectively form the “Berne Union”, wherein
India, copyright subsists in original literary, dramatic, musical
a State that may not have acceded to the latest Act remains a
and artistic works and in cinematograph films and sound
member of the Union bound reciprocally with the other
recordings.
member States only by the previous Act which it has acceded
to.
Copyright owner: In most cases the author or any subsequent
assignee of work; and in all cases the authors of literary,
Book: A book is not per se a work but commonly comprises
dramatic, musical, or artistic works included in a
bound sheets of paper—or any other format, like an e-book or,
cinematograph film. Further, in the case of a photograph,
in former times, a scroll—on which two- dimensional works,
painting, portrait, engraving or cinematograph film
e.g. literary works, artistic works, musical notation, etc. are
commissioned for valuable consideration, or of a work made
fixed.
under a contract of service or of apprenticeship, the employer
is the first owner of the copyright. An exclusive licensee is also
Broadcast: Communication to the public using
a copyright owner to seek legal remedies. It maybe noted that
electronic waves by a broadcasting organization in
in the case of Government works the first owner of the
accordance with its broadcasting licence in terms of mode of
Page 24
copyright is the Government. The same principle applies to countries except for India. The Berne Convention
works created for public sector organizations and generally to leaves the matter to national law.
international organizations that India is a member of.
Government work: A work created for the Government.
Copyright society: An organisation authorised by the
Government to administer the licensing rights of its copyright Idea-expression dichotomy: This is one of the most
owning members in respect of any particular class of work. A fundamental principles in copyright law: copyright protects the
copyright society is the only body that can issue licences expression of ideas or concepts, but not the ideas themselves.
without being the owner or exclusive licensee of the works Ideas thus remain in the public domain, preserving freedom of
licensed. Internationally, the term “collecting society” is more expression, while copyright subsists in their expression as
common. embodied in a work. There can be no comprehensive definition
of either an idea or an expression or any “bright line”
Cover version: The recorded performance of a published distinction between the two: in some cases, the distinction is
musical work (or possibly a literary or dramatic work) difficult to make and becomes the subject of litigation. The
published under statutory licence subject to compliance with TRIPS Agreement specifies that copyright protection “ shall
certain conditions, notably the payment of royalty to the extend to expressions but not to ideas, procedures, methods
copyright owner at prescribed rates. It is important to note of operation or mathematical expressions as such.”
that this statutory licence is against the copyright owner of
the recorded musical etc. work and does not concern the Indian work: A literary, dramatic, or musical work of which the
copyright owner of the sound recording. author is an Indian citizen, or which is first published in India,
or in the case of an unpublished work, where the author was a
Derivative work: A general term (not occurring in the Copyright citizen of India when the work was created. However, it may be
Act) for any work that owes its existence to the prior existence noted that the term “Indian work” has a specialised sense and
of another work; it includes all adaptations but is a wider term that, in accordance with its international treaty obligations,
also including for example the” remake” “prequel” or “sequel” of broadly the same principles apply to all works.
a film; the reuse of a character from a pre-existing literary or
dramatic work or film, etc. Infringement: The doing of any act that requires the copyright
owner’s licence, without such licence; also, knowingly and for
Economic rights: The rights of the copyright owner to exploit profit permitting the use of any place for infringement.
the work, as distinct from moral rights. In India and other Intermediary: An intermediary is a person who receives, stores
common law jurisdictions, the term “copyright” is applied only or transmits electronic data and makes it available or provides
to economic rights. services regarding it to third parties.

Exclusive licence: A transfer in writing of specified rights for Intermediary: An intermediary is a person who receives, stores
any specified period (within the term of copyright) for any or transmits electronic data and makes it available or provides
specified geographical area whereby the transferred rights services in regard to it to third parties.
vest exclusively in the licensee, excluding even the licensor
himself. To be distinguished from non-exclusive licences, Intermediary liability: The vexed question of the liability of
which can be granted simultaneously to more than one intermediaries for copyright infringement or infringement of
licensee. other rights. The question is too complex for elaboration here.

Exhaustion: The principle that copyright subsists only in the Limitations and Exceptions: The balance between the
first sale of a work (e.g. it would not apply to second-hand interests of users and copyright owners is maintained by
copies). It does not apply to the exploitation of computer limiting the scope of copyright. The scope of copyright is
programs, films, and sound recordings. limited by the fact that copyright subsists only for a limited
term; that it does not subsist in ideas (and thus does not
Exploitation: The legitimate exercise of copyright for profit interfere with freedom of expression); that it may be subject to
(mainly by licensing or by assignment). non-voluntary licensing; that it does not extend to certain
activities like the private performance of works. Exceptions, on
the other hand, do not limit the scope of copyright per se but
Fair use and fair dealing: These terms are often used comprise specific acts which are exempt from liability for
interchangeably, though they do not mean quite the same infringement but would otherwise be infringing; these include
thing. “Fair use” is a broad U.S. term covering all exceptions in the reproduction, subject to “fair dealing”, of a work for private
general terms, depending on nature, extent, purpose and use, research or criticism, or for news reporting; certain
the commercial effect of any use of a copyrighted work on the exceptions for educational purposes; for certain acts done on
facts of the case. “Fair dealing” in India and other common law educational premises; or for various other purposes such as
jurisdictions generally is a precondition for the exercise of the reporting judicial decisions.
exceptions of personal use, research, criticism, and news
reporting, meaning reasonable use of the work according to Making available: When used independently this term
the actual requirement. The term is also sometimes used generally means making a work available for the public to
loosely for all the copyright exceptions enumerated in the enjoy at times and places of their choice, the main instance
statute. being uploading the work on the internet.

Fixation: The embodiment of work in some physical format, Marrakesh Treaty, 2013. An international treaty under which
e.g. a literary work in a book, a musical work in either a sound contracting States are obliged to provide for the needs of
recording or in musical notation, etc. Fixation is a condition for persons with visual or other impairments. India is a party to
the subsistence of copyright generally in common law this treaty and its Copyright Act provides a suitable exception.

Moral rights: Certain rights, referred to in Indian law as

Page 25
“author’s special rights”, that are personal to the author and created, or the author had died, before the law of copyright
(unlike economic rights) cannot be transferred. The two existed, or for any other reason.
principal moral rights mandated by the relevant international
treaties and incorporated in Indian law are the right of Related rights, also known internationally as neighbouring
paternity (i.e., attribution of the work to the author) and the rights are rights that subsist not in works but other subject
right of integrity (i.e. the right to seek remedies against matter and, hence, are not deemed to be created by authors.
mutilations, distortions etc. of the work that are injurious to The neighbouring rights required by the international treaty
the author ’ s honour and reputation). In some countries, system, to which India conforms, are the rights of producers
including India, moral rights are perpetual and can be enforced of phonograms, of broadcast in gorganisations, and of
by the author’s heirs or legal representatives. It may be noted performers.
that performers also now enjoy moral rights, because of the
risk of digital manipulation. Reprography: Copying and reproducing documents. In India
the term is usually applied to physical reprography by
National Treatment: The principle enshrined in the Berne photocopying.
Convention and other international treaties that each
contracting State shall protect works originating in other Rights management information: Digital watermarks or other
member states in accordance with its own laws. It may be digital information stored in digital copies of a work to identify
noted that this principle does not apply to the definition of or trace the use of the copy.
“author”. Further, the principle of reciprocity, rather than
national treatment, applies in certain cases, notably in regard Rome Convention, 1961: This Convention dealt with
to the term of copyright: no contracting State is obliged to neighbouring rights. India did not accede to it until 2018. In
protect a work originating in another contracting State beyond view of India’s accession to the TRIPS Agreement, and
the term of copyright in such other contracting state, e.g. a thereafter to the WIPO Performers and Phonograms Treaty
country where the term of copyright is 70 years need protect (WPPT) it is of little practical significance.
Indian works only for 60 years, the latter being the term of
copyright in India. Sound recording: A recording of sounds made by any means
on any medium. Sound recordings are protected by copyright
Non-voluntary licence: A licence that does not require the in India and generally in common law jurisdictions but,
copyright owner’s consent. It can be a compulsory licence, elsewhere, and in the international treaty system, are protected
which is granted on application by a competent authority on by a related/ neighbouring right.
terms fixed by such authority, or a statutory licence granted
directly by operation of law, which any person can avail himself Statutory licence: A licence granted by operation of law,
of subject to conditions laid down by the statute. subject to statutory conditions but not requiring any specific
grant of licence by any authority. The statutory licence for
Original: Copyright subsists in original works; however, cover versions is an example.
originality in copyright law does not imply novelty or merit; it
means only that the work originates from the author without Technological measures: Inbuilt software features of a work
having been reproduced from another work, and that the or website limiting access to and/ or use of the work. Subject
author has applied at least a minimal degree of labour, skill to certain exceptions analogous to fair dealing, the
and mental effort. circumvention of technological measures is a criminal offence
in India.
Orphan works: Works that are still in copyright, but the
copyright owner cannot be traced. Three-step test: All members of the World Trade Organisation
are obliged under the TRIPS Agreement to confine the scope
Performer: In India the definition covers performers both of of all limitations and exceptions in their copyright laws to
works (literary and dramatic works, including lectures) and special cases that do not conflict with a normal exploitation of
other performers; and also covers performers of audio-visual the work, and do not unreasonably prejudice the legitimate
works. Internationally, protection for audiovisual performers interests of the copyright owner. This is an expansion of the
has been introduced by the Beijing Treaty which several corresponding provision in the Berne Convention that applies
countries have acceded to; however many countries do not as only to the right of reproduction.
yet protect audiovisual performances.
Phonogram: The term for sound recording that is used in the TRIPS Agreement (or “TRIPS”): The commonly used acronym
relevant international treaties. for the Agreement on Trade-Related Intellectual Property
Rights which is one of the agreements acceded to by all
Phonograms Convention: An international convention of 1971 members of the World Trade Organisation (WTO) i.e. by most
protecting the producers of phonograms from the duplication countries in the world, India included. This Agreement does
or importation of their phonograms in other contracting not apply to moral rights but incorporates all the other
States, including India. provisions of the Berne Convention, adding further provisions
thereto, hence it is described as “Berne Plus”.
Piracy: This is not a term of law but is commonly used for the
production of exact copies of a work on a commercial scale Universal Copyright Convention, 1952 (UCC): This
for infringing exploitation. Convention, which is administered by the United Nations
Educational and Cultural Organisation (UNESCO) was created
Publication: Under Indian law, the act of making a work for certain countries (including the U.S. and the then U.S.S.R)
available to the public either by issuing copies to the public which did not accept the terms of the Berne Convention,
or by communication to the public. particularly regarding registration or other formalities for the
enjoyment of copyright and the term of copyright. Since these
Public domain: The body of works that is not protected by two major countries, with others, have since acceded to the
copyright as the term has expired or because they were Berne Convention and in any case are bound by TRIPS, UCC is

Page 26
no longer of much significance.

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 neighbouring
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 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.

Page 27
 END NOTES 2012)(An Act further to amend the Copyright Act, 1957)

18. The Copyright(Amendment)Act, 20l2 (No. 27 of

2012)(An Act further to amend the Copyright Act, 1957):
1. The Copyright Act, 1957 (14 of 1957); The
Section 65A
Copyright(Amendment)Act,20l2 (No. 27 of 2012) (An Act
19. Tekla Corporation & Anr v. Survo Ghosh & Anr.
further to amend the Copyright Act, 1957); Copyright Rules,
AIR 2014 Del 184
1958; The Copyright Rules, 2013; The Copyright (Amendment)
Rules, 2016
20. See Ujwala Uppaluri, ‘The Libraries Exception: What the
Amended Copyright Act Does (and Should Do) for Preserving
2. The Copyright( Amendment)Act,20l2 (No. 27 of 2012 ):
and Sharing Knowledge in the Digital Era’ 5 NUJS L. Rev. 665
Sections 22
(2012).
3. The Copyright Rules, 2013: Chapter XIII, Registration of
21. Orphan Works and Mass Digitization: A Report of the
Copyright
Register of Copyrights <https://www. copyright.gov/or-
phan/reports/orphan-works2 015.pdf> (last visited 15th
4. The Copyright Act, 1957 (14 of 1957): Section 62
May 2020)
5. The Copyright Act, 1957 (14 of 1957); Section 57
22. The Copyright Act, 1957 (14 of 1957): Section 52(1)(p)
6. Amar Nath Sehgal v Union of India 2005 (30) PTC 253
23. Intellectual Property Appellate Board: G o v e r n m e n t
(Del)
o f I n d i a & l t ; h t t p s : / / w w w. ipab.gov.in/index.php>
(last visited 14th May 2020)
7. Ritika Private Limited v Biba Apparels Private Limited [
DHC CS(OS) No. 182/2011 (2016)]
24. CS(OS) 2439/2012) 16 Sep 2016, Delhi High Court
8. Works Made for Hire & lt ; https://www.copyright.
25. CS(OS) 2439/2012) 16 Sep 2016, Delhi High Court
gov/circs/circ30.pdf> (last visited on 4 th July 2020)
26. CS(OS) 2439/2012) 16 Sep 2016, Delhi High Court
9. Summaries of Conventions, Treaties and Agreements
Administered by WIPO <https:// www.wipo.int/edocs/pub-
27. Hubbard v. Vosper (1972) 1 All ER 1023 p. 1027, 471
docs/en/intproperty/442/ wipo_pub_442.pdf> (last visited
U.S. 539985).
on 4 th July 2020)
28. Associated Newspapers v News Group Newspapers,
10. Berne Notification No. 108, Berne Convention for the
[1986] RPC 515.
Protection of Literary and Artistic Works: Declaration by the
Republic of India Extending the Effects of its Ratification of the
29. British Broadcasting Corporation v British Satellite
Paris Act (1971) to Articles 1 to 21 and the Appendix <
Broadcasting Ltd. (1991) 3 All ER 833
https://www. wipo.int/treaties/en/notifications/berne/treaty_
berne_108.html> (last visited 2nd July 2020)

11. The Copyright Act, 1957 (14 of 1957): Section 52(1)(n)

and 52(1)(o)

12. Official archives also meet the definition of a non-com-

mercial public library. However, access to their contents are
governed by special laws. See Ujwala Uppaluri, ‘The Libraries
Exception: What the Amended Copyright Act Does (and Should
Do) for Preserving and Sharing Knowledge in the Digital Era’ 5
NUJS L. Rev. 665 (2012).

13. The Copyright Act, 1957 (14 of 1957): Section 52(1)(o)

14. The Copyright(Amendment)Act,20l2 (No. 27 of

2012)(An Act further to amend the Copyright Act, 1957); The
Information Technology Act, 2000 (No. 21 of 2000 ) ; The
Information Technology (Amendment) Act, 2008 (No. 9 of
2009)

15. RFA(OS) 81/2016, Delhi High Court

16. ames S. Heller, Paul Hellyer & Benjamin J. Keele,

Librarian's Copyright Companion (William S. Hein and
Co., 2012).

17. The Copyright(Amendment)Act, 20l2 (No. 27 of

Page 28