copyright fair use and libraries madhu nlsiu and gagan
TRANSCRIPT
Copyright Fair Use and Libraries
Madhu K. S.Assistant Librarian,
National Law School of India University,Bangalore.
E-mail: [email protected]
Gagan K.UGC Junior Research Fellow,
Department of Studies in Law,University of Mysore,
E-mail: [email protected]
Abstract
• Fair use exceptions in copyright law facilitate the use ofcopyrighted works for the purpose of research andeducation.
• These exceptions protect the academic community fromthe offence of copyright infringement.
• Fair use exceptions are limitations on copyright law andhave helped librarians in carrying out their work ofdissemination of knowledge.
• This paper discusses the various theories that supportcopyright protection and the need for fair use.
• By analysing the fair use exceptions under Indian CopyrightAct, 1957 that are relevant to libraries, this paper takes aview that the law needs to provide better protection forlibraries in matters of fair use.
Literature Review
• Libraries intermediaries between readers and bookpublishers. However in matters of copyright, suspicionbetween the two (Nick Moore, 2000)
• Knowing about copyright and the exceptions such asfair use are very important to librarians (Fisher, 2010)
• The importance of DRM and its implications onlibraries have been documented (Denise M. Davis &Tim Lafferty, 2002)
• We can find some literature on Indian copyright lawand fair use (Ayush Sharma, 2009).
• RESEARCH GAP: However, research on libraries andIndian copyright law are not found.
Origins of Copyright Protection
• Having copyright over a work gives the author of thework exclusive right to deal with that work in thepresent day legal systems in most of the countriestoday.
• This was not the case in the 17th century. In fact, mostof the countries passed copyright legislations only inthe 20th century.
• After the invention of printing press, works of authorswere easily duplicated by the printers and the authorswere not paid any royalty, thereby depriving them oftheir livelihood.
• The British Statute of Anne which was passed 1710 isone of the earliest known copyright legislations of theworld.
Theories of copyright
Basically 4 theories of copyright
• Labour-desert: labour, hard work as the basis
• Welfare theory: public good and welfare asthe basis. Based on utilitarian model.
• Personhood theory: a creative work is theextension of the personality
• Culture theory: copyright promotes
Fair Use Doctrine
• Copyright is all about balancing the rights of variousstakeholders
• Copyright subsists for a certain period and does notvest forever
• Certain uses of copyrighted works will not beconsidered as infringement if done within reasonablelimits
• These exceptions are provided for the public good• Special exceptions are provided for educational use,
academic community and research purposes. For eg.:photocopying of some pages of a book for classroominstruction is not copyright infringement.
Fair use as backbone for libraries
• Libraries are supposed to index the materialsby using the title, author name, subject andother information available in the books andjournals
• This falls under fair use exceptions
• Even making of newspaper clippings bylibrarians is allowed under fair use exceptions
International legal regime for fair use
• Most countries of the world provide fair useexceptions in their copyright laws
• Article 13 of TRIPS Agreement providesguidelines for fair use exceptions
• European Union Copyright Directive providesfair use exceptions for research and otherpurposes
• In USA, Section 107 of 17 US Code providesfair use exceptions
Law on Fair Use in India
• Provided in Sec. 52 of Copyright Act, 1957
Section 52(1)(a) for three purposes:
• 1. private or personal use including research;
• 2. criticism or review; and
• 3. reporting current events
Fair use exceptions
• Under Section 52(1)(i), reproduction of any work by ateacher or a pupil in the course of instruction is consideredas fair use.
• Section 52(1)(n) gives special privilege to non-commercialpublic libraries to store works in electronic medium for thepurpose of preservation, if the library already possesses anon-digital copy of the work.
• Section 52(1)(o) allows non-commercial public libraries tomake not more than three copies of a book, if such book isnot available for sale in India.
• Section 52(1)(p) states that for the purpose of research,unpublished works kept in libraries and museums can bereproduced.
Course Packs
• Course packs are compilation of course materialscollected from different sources such as books, journalsand newspapers.
• In USA, in the case of Cambridge University Press v.Becker, held that course packs are legal, providedwithin the threshold limit
• India, Delhi High Court (ongoing case) has held coursepacks to be illegal (case against Delhi University)
• It has been pointed out that the Indian copyright law,unlike the U.S. counterpart does not prescribe athreshold limit for fair use when it comes toeducational and research purposes (Amlan Mohanty,2014).
Fair use for visually impaired persons
• Marrakesh Treaty for visually impaired persons (June 2013)by WIPO provides special exceptions to copyright law tofacilitate conversion of materials to a format that isaccessible to the blind people.
• Indian Copyright law also facilitates access to the visuallyimpaired persons by providing exceptions
• IFLA Licensing Principles (2000) provides that the law of thecountry to which licensee belongs should be applicable forthe contract
• LACUNA: However, many foreign publishers are not readyto recognise the rights of the visually impaired persons.They argue that Copyright Act of India is not applicable tothem!
Digital Rights Management• Since digital content can be replicated easily and at a lower
cost, publishers have now started relying on Digital RightsManagement (DRM).
• The electronic resources are now encrypted and can becontrolled by the publishers as per the terms of the license.
• For example, an E-book can be licensed to one single userand the file will work only on one single device.
• This is markedly from the way in which traditional printedbooks work.
• With the printed books, we usually share them with ourfriends and colleagues.
• However, such sharing is not possible if DRM measures areput in place (Denise M. Davis & Tim Lafferty, 2002). Severalrights groups have termed DRM as “digital restrictionsmanagement”.
Conflicts within Copyright Act• Indian Copyright Act, 1957 has incorporated Section
65A which is titled “protection against circumventionof technological measures”.
• Under this provision, tampering with the DRMmeasures is a punishable offence.
• DRM measures restrict the scope of fair usepossibilities for libraries and academic community.
• For example, a book though copyrighted can bephotocopied fairly for educational purposes.
• But, an E-book which is protected from being printedcannot be printed unless the technological measure(such as the encryption) is circumvented. This actbecomes punishable, although it is allowed as per fairuse exceptions under Section 52.
Conclusion and Suggestions
• Librarians have always respected the copyright lawsand within the limits of law are trying to disseminateinformation to the society at affordable costs.
• However, the copyright law on fair use is still notfavourable to the librarians.
• Many of the works done in a bona fide manner fordissemination of knowledge may be categorized asinfringing copyright.
• It is suggested that special exceptions are to be madefor public libraries in the copyright law to facilitatebetter knowledge dissemination.
References• Amlan Mohanty. (2014). Five Reasons Why Course Packs are Legal in India.
Retrieved from http://techlawtopia.com/five-reasons-why-course-packs-are-legal-in-india/
• Anderson, M. G., & Brown, P. F. (1992). Economics behind Copyright FairUse. Loy. U. Chi. LJ, 24, 143.
• Ayush Sharma. (2009). Indian Perspective of Fair Dealing under CopyrightLaw: Lex Lata or Lex Ferenda. Journal of Intellectual Property Rights, 14,523–531.
• Cole, J. Y. (1971). OF COPYRIGHT, MEN & A NATIONAL LIBRARY. TheQuarterly Journal of the Library of Congress, 28(2), 114–136.
• Denise M. Davis, & Tim Lafferty. (2002). Digital rights management:implications for libraries. The Bottom Line, 15(1), 18–23.doi:10.1108/08880450210415725
• Fisher, W. (2010). Copyright for Librarians. Retrieved fromhttp://nsdl.niscair.res.in/jspui/handle/123456789/970
• IFLA. (2004). Limitations and Exceptions to Copyright and NeighbouringRights in the Digital Environment: An International Library Perspective.Retrieved from http://www.ifla.org/publications/limitations-and-exceptions-to-copyright-and-neighbouring-rights-in-the-digital-environm
References• Marrakesh Treaty to Facilitate Access to Published Works for
Persons Who Are Blind, Visually Impaired or Otherwise PrintDisabled. (2013, June 28). Retrieved fromhttp://www.wipo.int/treaties/en/ip/marrakesh/
• Netanel, N. W. (1996). Copyright and a democratic civil society. YaleLaw Journal, 283–387.
• Nick Moore. (2000). The Internet and the library. Library Review,49(9), 422–428. doi:10.1108/00242530010354029
• Patterson, L. (1987). Free speech, copyright, fair use. Vand. L. Rev.,40, 1.
• Posner, R. A., & Landes, W. M. (2003). The economic structure ofintellectual property law. Retrieved fromhttp://chicagounbound.uchicago.edu/books/224/
• Radin, M. J. (1982). Property & personhood. Stanford Law Review,957–1015.
• Yen, A. C. (1990). Restoring the Natural Law: Copyright as Laborand Possession. Ohio St. LJ, 51, 517.
THANK YOU
Thanks to: PQR, XYZ, ABC
Feedback to:MADHU K S
Asst. Librarian, [email protected] | Follow me: @biblaw on twitter
Gagan K, UGC Junior Research Fellow