Copyright Limitations and Exceptions For Libraries and Archives Presentation to the National Conference on Copyright Limitations and Exceptions 14th May

Copyright Limitations and ExceptionsFor Libraries and Archives

Presentation to the National Conference on Copyright Limitations and Exceptions14th May 2009

Prashant IyengarAlternative Law Forum,

Bangalore

Background – Libraries in IndiaBackground – Libraries in India Since early 1800s public libraries have Since early 1800s public libraries have

performed a vital function of intellectual performed a vital function of intellectual and educational upliftment in India. and educational upliftment in India.

Important role in freedom struggle – seen Important role in freedom struggle – seen as instrument of ‘national awakening’as instrument of ‘national awakening’

Rich histories of public libraries in various Rich histories of public libraries in various parts of India – Eg. In Baroda, Kerala, parts of India – Eg. In Baroda, Kerala, Madras and AndhraMadras and Andhra

Post-independence they have been seen Post-independence they have been seen as an important plank of the adult as an important plank of the adult learning/literacy pogroms of the statelearning/literacy pogroms of the state

Background – Libraries in IndiaBackground – Libraries in India

Many challenges facing public Many challenges facing public libraries todaylibraries today Insufficiency of fundsInsufficiency of funds Declining patronage due to a range of Declining patronage due to a range of

factors including inadequacy of factors including inadequacy of collections.collections.

No nationwide network of libraries. No nationwide network of libraries. Culture of inter-library loan almost absentCulture of inter-library loan almost absent

No national bibliographic database. No national bibliographic database. (Recent attempts being made by the (Recent attempts being made by the National Library, Calcutta in this respect)National Library, Calcutta in this respect)

Background – ImportanceBackground – Importance

Public Libraries lay the foundation for Public Libraries lay the foundation for a strong and durable civil society. a strong and durable civil society.

UNESCO Public Library Manifesto UNESCO Public Library Manifesto 19481948 The public library, the The public library, the local gateway to knowledgelocal gateway to knowledge, ,

provides a basic condition forprovides a basic condition for lifelong learning, lifelong learning, independent decision-making and cultural independent decision-making and cultural development development of the individual and social goups.of the individual and social goups.

Public library as a Public library as a living force living force for education, culture for education, culture and information, and as an and information, and as an essential agent essential agent for the for the fostering of peace and spiritual welfare fostering of peace and spiritual welfare through through the minds of men and women. the minds of men and women.


"Development consists of the "Development consists of the removal of various types of removal of various types of unfreedoms that leave people with unfreedoms that leave people with little choice and little opportunity of little choice and little opportunity of exercising their reasoned agency.” exercising their reasoned agency.”

““The removal of substantial The removal of substantial unfreedoms is constitutive of unfreedoms is constitutive of development " - development " -

Amartya SenAmartya Sen


This paper advocates greater This paper advocates greater freedoms to public libraries as a way freedoms to public libraries as a way of promoting development – amongst of promoting development – amongst them greater relaxations of copyright them greater relaxations of copyright unfreedoms as are consistent with unfreedoms as are consistent with the expansion of the mission of the expansion of the mission of public libraries.public libraries.

Background – Libraries in IndiaBackground – Libraries in India

Broadly three kinds of librariesBroadly three kinds of libraries ‘‘Public Libraries’ Public Libraries’

4 ‘National Libraries’ in Calcutta, Delhi, Mumbai and 4 ‘National Libraries’ in Calcutta, Delhi, Mumbai and ChennaiChennai

Various states Public Library systemsVarious states Public Library systems Institutional LibrariesInstitutional Libraries

University Libraries (publicly/privately funded)University Libraries (publicly/privately funded) Government LibrariesGovernment Libraries Private LibrariesPrivate Libraries

Digital LibrariesDigital Libraries Government fundedGovernment funded PrivatePrivate PersonalPersonal

Background – Five Laws of Library Background – Five Laws of Library Science (1935)Science (1935)

S. Ranganathan – The Father of the Indian S. Ranganathan – The Father of the Indian Library movement Library movement

1.1. Books are for useBooks are for use – as opposed to the then (and – as opposed to the then (and now) prevailing ethos of fetishized ‘preservation’ of now) prevailing ethos of fetishized ‘preservation’ of books by absolutely barring access to them, even from books by absolutely barring access to them, even from the very people who seek access them. the very people who seek access them.

2.2. Books are for allBooks are for all - rights of every class of users be - rights of every class of users be recognized equally irrespective of age, gender, class, recognized equally irrespective of age, gender, class, location/distance or disability. Demands that the location/distance or disability. Demands that the librarian adopt positive measures to reach out to those librarian adopt positive measures to reach out to those who would normally be unable to access libraries – the who would normally be unable to access libraries – the sick and infirm, prisoners undergoing imprisonment, sick and infirm, prisoners undergoing imprisonment, etc. etc.

3.3. To Every Book its reader To Every Book its reader - - every book has its own every book has its own unique reader and that it was the duty of the librarian unique reader and that it was the duty of the librarian to take all necessary steps to see that the book finds to take all necessary steps to see that the book finds its audience its audience

Background – Five Laws of Library Background – Five Laws of Library ScienceScience

Save the time of the readerSave the time of the reader - - Mandates Mandates the adoption of institutional policies and the adoption of institutional policies and administrative procedures that are directed administrative procedures that are directed towards saving the time of the reader. The towards saving the time of the reader. The governing principle in all cases would have to governing principle in all cases would have to be the convenience of the reader over be the convenience of the reader over administrative convenience.administrative convenience.

The library is a growing organismThe library is a growing organism - - libraries should be designed to allow them to libraries should be designed to allow them to grow since ‘an organism that ceases to grow grow since ‘an organism that ceases to grow will petrify and perish’. will petrify and perish’.

Indian Copyright Act – Library Indian Copyright Act – Library ExceptionException

Section 52(1)(o)Section 52(1)(o) The following acts shall not constitute an The following acts shall not constitute an

infringement of copyright, namely: infringement of copyright, namely: ““the making of the making of not more than three copies not more than three copies

of a of a book book (including a pamphlet, sheet of (including a pamphlet, sheet of music, map, chart or plan) by or under the music, map, chart or plan) by or under the direction of the person in charge of a direction of the person in charge of a public public library library for the for the use of the library use of the library if such if such book is book is not available for sale in Indianot available for sale in India;”;”

Is this exception in conformity with Is this exception in conformity with international treaty obligations?international treaty obligations?

Is this an adequate exception in our Is this an adequate exception in our context?context?

Background -Treaty ObligationsBackground -Treaty Obligations

Berne Convention:Berne Convention: Article 2: Extends protection to literary and Article 2: Extends protection to literary and

artistic works.artistic works. Article 9(2) introduced in 1967: Exceptions Article 9(2) introduced in 1967: Exceptions

consistent with the “Three-Step Test”consistent with the “Three-Step Test” ““It shall be a matter for legislation in the countries of It shall be a matter for legislation in the countries of

the Union to permit the the Union to permit the reproductionreproduction of such works in of such works in certain special casescertain special cases, provided that such , provided that such reproductionreproduction does does not conflict withnot conflict with a normal a normal exploitation exploitation of the work and does of the work and does not unreasonably not unreasonably prejudice prejudice the the legitimate interests legitimate interests of the of the authorauthor.”.”

1

2

3

Background -Treaty ObligationsBackground -Treaty Obligations

TRIPs AgreementTRIPs Agreement Article 13: “Members Article 13: “Members shall confineshall confine limitations or limitations or

exceptionsexceptions to exclusive rights to to exclusive rights to certain special certain special cases cases which do which do not conflict with a normal not conflict with a normal exploitation of the work exploitation of the work and do not and do not unreasonably unreasonably prejudice the legitimate interestsprejudice the legitimate interests of the of the right right holderholder.”.”

More restrictive than Berne Convention language More restrictive than Berne Convention language (‘shall confine’ Vs. “shall be a matter of legislation”(‘shall confine’ Vs. “shall be a matter of legislation”

Members states can police each other’s conformity Members states can police each other’s conformity and approach the WTO Dispute Settlement Body in and approach the WTO Dispute Settlement Body in case of non-conformity. ‘Deviance’ punished by case of non-conformity. ‘Deviance’ punished by Individual or collective Sanctions.Individual or collective Sanctions.

1

2

3

Background – Mr. Neel Mason’s Background – Mr. Neel Mason’s ConclusionsConclusions

Section 52(o) conforms with the Berne Convention standardsSection 52(o) conforms with the Berne Convention standards ““the making of the making of not more than three copies not more than three copies of a of a book book

(including a pamphlet, sheet of music, map, chart or plan) by or (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a under the direction of the person in charge of a public library public library for the for the use of the library use of the library if such book is if such book is not available for not available for sale in Indiasale in India;”;”

Exception only applies to Exception only applies to ‘‘Public Libraries’ restricted to 4 national libraries under Delivery Public Libraries’ restricted to 4 national libraries under Delivery

of Books to Public Libraries Act 1954. of Books to Public Libraries Act 1954. But should be expanded to include government notified libraries.But should be expanded to include government notified libraries.

““Books” – Understood as paper, pamphlets etcBooks” – Understood as paper, pamphlets etc But should be expanded to include sound recording and cinemaBut should be expanded to include sound recording and cinema

““not available for sale in India”not available for sale in India” But should be applied to every new edition as wellBut should be applied to every new edition as well

““Use of library” – means copies only to be made for preservationUse of library” – means copies only to be made for preservation ““copies” – restricted to copies in the same mediumcopies” – restricted to copies in the same medium

But open to legislature to provide guidance.But open to legislature to provide guidance.

My commentsMy comments ““Public Libraries”Public Libraries”

Several alternative ways of understanding ‘public Several alternative ways of understanding ‘public library’ since not defined in the Copyright Actlibrary’ since not defined in the Copyright Act

10 states have enacted “Public Library” statutes10 states have enacted “Public Library” statutes Public Library can be understood as Publicly Funded Library Public Library can be understood as Publicly Funded Library

similar to the definition of ‘Public Authority’ under RTI Act.similar to the definition of ‘Public Authority’ under RTI Act. ““Books”Books”

Not defined in the Copyright ActNot defined in the Copyright Act Definition of “books” under several state Public Library Definition of “books” under several state Public Library

Acts includes audio-visual materialActs includes audio-visual material ““Available for sale in India”Available for sale in India”

Interpret availability in terms of affordabilityInterpret availability in terms of affordability Is a book “available for sale in India” if only a few copies Is a book “available for sale in India” if only a few copies

are sold and at an extremely high price? are sold and at an extremely high price?

My commentsMy comments

““Use of the library”Use of the library” Use of the library not confined only to Use of the library not confined only to

preservation.preservation. Right of reproduction of work for Right of reproduction of work for

preservation already covered by Section preservation already covered by Section 52(1)(a) – Fair dealing for private use. 52(1)(a) – Fair dealing for private use. This right is not restricted to public This right is not restricted to public libraries only.libraries only.

Restrictions on format of the copyRestrictions on format of the copy Does not make sense in the context of Does not make sense in the context of

the needs of the public library systemthe needs of the public library system

Preview of Conclusions and Preview of Conclusions and RecommendationsRecommendations

Internationally - Internationally - wide wide disparity in the disparity in the kinds of library exceptions. There is no kinds of library exceptions. There is no “normal” or “standard” library exception.“normal” or “standard” library exception.

Several countries, exception is applicable Several countries, exception is applicable not only to public libraries, but also to not only to public libraries, but also to publicly accessible archives and libraries, publicly accessible archives and libraries, libraries of non-profits etc.libraries of non-profits etc.

In this context it is recommended that In this context it is recommended that India expand the definition of the current India expand the definition of the current library exception to incorporate the library exception to incorporate the freedoms contained in these other freedoms contained in these other legislations.legislations.

Before beginning..Before beginning.. Is there any restriction on making backup copies of works Is there any restriction on making backup copies of works

for private use or preservation? Or, can ALF make for private use or preservation? Or, can ALF make photocopies of books in its library?photocopies of books in its library? Sec 14(a)(i) – Meaning of copyright in literary artistic musical Sec 14(a)(i) – Meaning of copyright in literary artistic musical

and dramatic works– and dramatic works– Exclusive right to reproduce the Exclusive right to reproduce the work in any material form including the storing of it in work in any material form including the storing of it in any medium by electronic meansany medium by electronic means;;

Section 52(1)(a) – Following act is not infringement - Section 52(1)(a) – Following act is not infringement - Fair Fair dealing with a work for private use.dealing with a work for private use.

THE CHANCELLOR MASTERS and SCHOLARS of the University oTHE CHANCELLOR MASTERS and SCHOLARS of the University of Oxford Vs. f Oxford Vs. NarendraNarendra Publishing House Publishing House (Delhi High court, 2008) (Delhi High court, 2008)

The rule regarding "the extent of copying.. does not entail that the The rule regarding "the extent of copying.. does not entail that the reproduction of the reproduction of the entire workentire work would militate against the finding would militate against the finding of fair use.of fair use. There could be cases where the copying could be There could be cases where the copying could be substantial and the courts finds fair use, at the same time there substantial and the courts finds fair use, at the same time there could be cases where the copying though insubstantial could be could be cases where the copying though insubstantial could be held as infringement") held as infringement")

Section 51(1)(b)(iv) aka the ‘Bittorrent Bachao Clause’ – Right Section 51(1)(b)(iv) aka the ‘Bittorrent Bachao Clause’ – Right to “import” one infringing copy for private and domestic use. to “import” one infringing copy for private and domestic use. (Can import via download)(Can import via download)

Comments – “Public Libraries” – 3 Comments – “Public Libraries” – 3 definitionsdefinitions

Three alternative sources of definitions for “public libraries” Three alternative sources of definitions for “public libraries” (Other than the Delivery of Books Act 1954)(Other than the Delivery of Books Act 1954)1.1. State Public Library StatutesState Public Library Statutes

““Libraries” included in Item 12 of the State List under the Seventh Libraries” included in Item 12 of the State List under the Seventh Schedule of the Constitution.Schedule of the Constitution.

Since 1948, around 12 states have enacted “Public Library” Acts, Since 1948, around 12 states have enacted “Public Library” Acts, each with its own definition of public library. Typically they include each with its own definition of public library. Typically they include libraries that receive state funding.libraries that receive state funding.

Eg. §6 Manipur public libraries Act, 1988Eg. §6 Manipur public libraries Act, 1988 ‘‘public library’ means-public library’ means-

A library established or maintained by a district library authority A library established or maintained by a district library authority including the branches and delivery stations such a library;including the branches and delivery stations such a library;

a library established or maintained by the state government and a library established or maintained by the state government and declared open to the public;declared open to the public;

a library established or maintained by any local body or co-a library established or maintained by any local body or co-operative society and declared open to the public;operative society and declared open to the public;

a library declared to be eligible for aid and receiving aid from the a library declared to be eligible for aid and receiving aid from the state government or from the library fund;state government or from the library fund;

and includes any other library notified by the state government as a and includes any other library notified by the state government as a public library for the purposes of this Act;public library for the purposes of this Act;


2.2. Raja Rammohan Roy Library FoundationRaja Rammohan Roy Library Foundation Established in 1972 by the Government of India to Established in 1972 by the Government of India to

spread library services all over the country spread library services all over the country The foundation matches the funds of the states for The foundation matches the funds of the states for

purchasing furniture and books, organizing conferences purchasing furniture and books, organizing conferences and seminars, and providing mobile library service to the and seminars, and providing mobile library service to the rural areas.rural areas.

Until the year 2000, the Foundation had extended Until the year 2000, the Foundation had extended support to over 31000 public libraries in India. (Source: support to over 31000 public libraries in India. (Source: website) website)

Funds Government libraries, aided libraries and Funds Government libraries, aided libraries and registered voluntary organizations conducting or registered voluntary organizations conducting or planning to conduct mobile library services. planning to conduct mobile library services.

Funding to voluntary organisation if their library is Funding to voluntary organisation if their library is not not run for profit run for profit to any individual or a body of individuals to any individual or a body of individuals and the library is and the library is open to all open to all without discrimination.without discrimination.


3.3. ‘‘Public Authority’ under the RTI ActPublic Authority’ under the RTI Act (h) "public authority" means any authority or (h) "public authority" means any authority or

body or institution of self-government body or institution of self-government established or constituted— established or constituted—

(a) by or under the Constitution; (a) by or under the Constitution; (b) by any other law made by Parliament; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (c) by any other law made by State Legislature; (d) by notification issued or order made by the (d) by notification issued or order made by the

appropriate Government, appropriate Government, and includes any— and includes any—

(i) body owned, controlled or substantially financed; (i) body owned, controlled or substantially financed; (ii) non-Government organisation substantially (ii) non-Government organisation substantially

financed, financed, directly or indirectly by funds provided by the directly or indirectly by funds provided by the

appropriate Government; appropriate Government;

Comments – “Public Libraries” – Comments – “Public Libraries” – Implications in the Digital EraImplications in the Digital Era

With regard to libraries subscribing to “Digital With regard to libraries subscribing to “Digital libraries” of the nature outlined above, Siva libraries” of the nature outlined above, Siva Vaidyanathan poses the following problem:Vaidyanathan poses the following problem:

““So imagine this: An electronic journal is streamed into So imagine this: An electronic journal is streamed into a library. A a library. A library never has it on its shelflibrary never has it on its shelf, never owns , never owns a paper copy, can’t archive it for posterity. Its patrons a paper copy, can’t archive it for posterity. Its patrons can access the material and maybe print it, maybe can access the material and maybe print it, maybe not. But if the subscription runs out, if the library loses not. But if the subscription runs out, if the library loses funding and has to cancel that subscription, or if the funding and has to cancel that subscription, or if the company itself goes out of business, all the material is company itself goes out of business, all the material is gone. gone. The library has no trace of what it The library has no trace of what it bought: no record, no archive. It’s lost bought: no record, no archive. It’s lost entirelyentirely.”.”

Section 52(o) becomes Section 52(o) becomes extremely vital extremely vital in this in this context to protect our national interests.context to protect our national interests.


Digital Libraries in IndiaDigital Libraries in India AICTE INDEST ConsortiumAICTE INDEST Consortium

Consortium subscribes to 21 leading full-text electronic Consortium subscribes to 21 leading full-text electronic resources and 6 prominent bibliographic databasesresources and 6 prominent bibliographic databases

Currently the consortium has a membership of 868 Currently the consortium has a membership of 868 institutions, the subscription for 47 of which are borne institutions, the subscription for 47 of which are borne entirely by the Ministry of Human Resources and entirely by the Ministry of Human Resources and Development. 60 institutions receive funding from the Development. 60 institutions receive funding from the AICTE.AICTE.

The access to e-resources for the beneficiary The access to e-resources for the beneficiary institutions under the INDEST Consortium has institutions under the INDEST Consortium has increased from the present level of access to e-increased from the present level of access to e-journals from 100 to 500 to more than 4000 journals in journals from 100 to 500 to more than 4000 journals in case of IITs and IISc.case of IITs and IISc.

Contractual terms forbid archiving. Contractual terms forbid archiving.


UGC INFONETUGC INFONET Provides current and archival access to more Provides current and archival access to more

than 5000 core and peer-reviewed journals than 5000 core and peer-reviewed journals and nine bibliographic databases from 23 and nine bibliographic databases from 23 publishers publishers

So far 153 Universities out of 171 that come So far 153 Universities out of 171 that come under the purview of UGC have been provided under the purview of UGC have been provided differential access to subscribed e-resources differential access to subscribed e-resources

Expenditure incurred by UGC Expenditure incurred by UGC Rs. 16.91 crores in 2004Rs. 16.91 crores in 2004 Rs. 25.92 crores in 2005Rs. 25.92 crores in 2005

Can this consortium be regarded as a “public Can this consortium be regarded as a “public library” under section 52(1)(o) of the ICA?library” under section 52(1)(o) of the ICA?


The Ministry of Information Technology has The Ministry of Information Technology has been providing funding to several been providing funding to several digitisation projects over the past few years.digitisation projects over the past few years.

Among them is the Digital Library of India Among them is the Digital Library of India Project – 22 institutions collaborating as a Project – 22 institutions collaborating as a part of the Carnegie Mellon University’s part of the Carnegie Mellon University’s ‘Million Books Project’. The MIT has provided ‘Million Books Project’. The MIT has provided substantial funding for this project.substantial funding for this project.

Can this library be regarded as a Public Can this library be regarded as a Public Library? Can the DLI digitise copies of books Library? Can the DLI digitise copies of books not available for sale in India.not available for sale in India.

Comments – “Books” – Alternate Comments – “Books” – Alternate DefinitionsDefinitions

Definition of “book” under the Press and Registration of Definition of “book” under the Press and Registration of Books Act 1867Books Act 1867

Several states have an expanded definition of “books” in Several states have an expanded definition of “books” in their public library actstheir public library acts

Haryana Public Libraries Act, 1989 Haryana Public Libraries Act, 1989 (b) “book” includes-(b) “book” includes-

(i). every volume, part or division of a volume be it a printed work or (i). every volume, part or division of a volume be it a printed work or a manuscript or a micro-film or a a manuscript or a micro-film or a video audio cassette or a video audio cassette or a photographphotograph;;

(ii). every sheet of music, map, chart or plan seperately printed or (ii). every sheet of music, map, chart or plan seperately printed or lithographed;lithographed;

(iii). newspapers, periodicals and other such materials;(iii). newspapers, periodicals and other such materials; Goa Public Libraries Act, 1993Goa Public Libraries Act, 1993

(d)“book” includes:-(d)“book” includes:- every volume, part or division of a volume document be it a every volume, part or division of a volume document be it a

printed work or a manuscript or printed work or a manuscript or a microfilm, or a video/audio a microfilm, or a video/audio cassette or a photograph or a compact disccassette or a photograph or a compact disc;;

every sheet of music, chart or plan seperately printed or every sheet of music, chart or plan seperately printed or lithographed;lithographed;

newspapers, periodicals and other such materials;newspapers, periodicals and other such materials;

Comments – Available for Sale in Comments – Available for Sale in IndiaIndia

How is “availability for sale in India” determined?How is “availability for sale in India” determined? If a publisher makes a single copy available for If a publisher makes a single copy available for

sale does that satisfy the requirement? sale does that satisfy the requirement? Section 6 of the Copyright Act – Provided that if in the Section 6 of the Copyright Act – Provided that if in the

opinion of the Copyright Board, the issue of copies or opinion of the Copyright Board, the issue of copies or communication to the public referred to in section 3 was communication to the public referred to in section 3 was of of an insignificant nature an insignificant nature it shall not be deemed to be it shall not be deemed to be publication for the purposes of that section. publication for the purposes of that section.

This indicates that the framers of the Copyright Act did This indicates that the framers of the Copyright Act did not intend that “publication”, “communication”, not intend that “publication”, “communication”, “issuance of copies” and co-ordinate expressions be “issuance of copies” and co-ordinate expressions be understood narrowly or purely in technical terms.understood narrowly or purely in technical terms.

If a publisher makes available several copies for If a publisher makes available several copies for sale at an unaffordably high price is the sale at an unaffordably high price is the requirement of “available for sale” satisfied?requirement of “available for sale” satisfied?

Comments – Available for Sale in Comments – Available for Sale in IndiaIndia

Comments – Use of the library?Comments – Use of the library? ““For the Use of the library”For the Use of the library”

As mentioned before, the right to preserve copies As mentioned before, the right to preserve copies flows from the language of 52(1)(o).flows from the language of 52(1)(o).

By virtue of the doctrine of first sale, libraries By virtue of the doctrine of first sale, libraries (including private lending libraries) have the right (including private lending libraries) have the right to issue books to members. to issue books to members.

Section 52(1)(o) gives public libraries exclusively Section 52(1)(o) gives public libraries exclusively the right to make copies of books that are not the right to make copies of books that are not available in India, and to issue them to its available in India, and to issue them to its members.members.

Legislative intent behind 52(1)(o) cannot have been Legislative intent behind 52(1)(o) cannot have been to only enable public libraries in India to secretly to only enable public libraries in India to secretly store and preserve copies of books that are not store and preserve copies of books that are not otherwise available for sale in India. Only makes otherwise available for sale in India. Only makes sense if these copies can be issued to the public. sense if these copies can be issued to the public.

Comments – Format restrictions?Comments – Format restrictions?

Restrictions on format of the copyRestrictions on format of the copy Does not make sense in the context of the Does not make sense in the context of the

needs of the public library systemneeds of the public library system Does not flow from the language of the Does not flow from the language of the

exception.exception. The ‘threat of misuse’ is not a standard under The ‘threat of misuse’ is not a standard under

Berne Convention or TRIPs. Berne Convention or TRIPs. Does digitisation per se interfere with the Does digitisation per se interfere with the

normal exploitation of a work?normal exploitation of a work? Does digitisation per se unreasonably prejudice Does digitisation per se unreasonably prejudice

the rights of the author/rights holder.the rights of the author/rights holder.

ConclusionsConclusions

Internationally - Internationally - wide wide disparity in the kinds of disparity in the kinds of library exceptions. There is no “normal” or library exceptions. There is no “normal” or “standard” library exception.“standard” library exception.

Several countries, exception is applicable not only Several countries, exception is applicable not only to public libraries, but also to publicly accessible to public libraries, but also to publicly accessible archives and libraries, libraries of non-profits etc.archives and libraries, libraries of non-profits etc.

India is currently not taking advantage of the full India is currently not taking advantage of the full flexibility that a library exception could and ought flexibility that a library exception could and ought to incorporate.to incorporate.

In this context it is recommended that India In this context it is recommended that India expand the definition of the current library expand the definition of the current library exception.exception.

This will allow private non-profit libraries to add This will allow private non-profit libraries to add their resources to the public pool.their resources to the public pool.

ConclusionsConclusions Suggested lines of expansion of definition Suggested lines of expansion of definition

Australia: Australia: Libraries that are not for profit, specifically meaning that the Libraries that are not for profit, specifically meaning that the

library is owned by someone carrying on business for profit.library is owned by someone carrying on business for profit. United States: United States:

It generally applies the library exception to It generally applies the library exception to libraries and libraries and archives that are open to the public or at least to outside archives that are open to the public or at least to outside researchersresearchers; ;

the library may be a private or corporate library. the library may be a private or corporate library. For a librarian to make copies the librarian must have no For a librarian to make copies the librarian must have no

knowledge that the copy is for any purpose “other than private knowledge that the copy is for any purpose “other than private study or research.” In other words, most libraries could qualify study or research.” In other words, most libraries could qualify to use the statute. to use the statute.

The copies are also not required to be for non-commercial The copies are also not required to be for non-commercial purposes, but the librarian is not permitted to act if the purposes, but the librarian is not permitted to act if the librarian is aware that the copies are for the non‑permitted librarian is aware that the copies are for the non‑permitted purposes.purposes.

However, must avoid making the definition too detailed However, must avoid making the definition too detailed (New Zealand example)(New Zealand example)

ConclusionsConclusions Expand scope of applicable worksExpand scope of applicable works

Currently restricted to ‘books’Currently restricted to ‘books’ Even though various state level enactments Even though various state level enactments

have expanded the meaning of the word have expanded the meaning of the word “books”, would be useful to substitute books for “books”, would be useful to substitute books for “works”“works”

Need not specify that copies can be made in Need not specify that copies can be made in “digital format”. This right is already implicit “digital format”. This right is already implicit and need not be disturbed. (On the other hand, and need not be disturbed. (On the other hand, the experience from South Africa highlighted in the experience from South Africa highlighted in the SCCR Library Exception study suggests that the SCCR Library Exception study suggests that librarians are reluctant to interpret copyright librarians are reluctant to interpret copyright provisions in permissive terms. So may be provisions in permissive terms. So may be necessary to introduce specifically permissive necessary to introduce specifically permissive language)language)

ConclusionsConclusions

India has one of the most elaborate India has one of the most elaborate systems of Fair dealing in the world.systems of Fair dealing in the world.

Must be very careful before Must be very careful before tampering with these freedoms. tampering with these freedoms.

Documents

Copyright Limitations and Exceptions For Libraries and Archives Presentation to the National Conference on Copyright Limitations and Exceptions 14th May