Copyright is an private right provided to an author, composer or his assignee for certain period of time, to publish, print and make sale of the copies of his original work. So, copyright is related to the artistic creations like books, music, painting , sculptures, films and computer programs etc. copyright protects all kind of human creativity whatever be their form, the only condition is that it must be expressed.
Copyright is the branch of intellectual property which protects unique creation of a human mind. The importance of copyright law was increased due to the technological development, specially in the field of printing, music, entertainment etc.
The main objective of copyright law is to protect the interest of the authors and other right holders and also the collective interest of the society. The interest of author is his right over his creation or work to which he economically exploit whereas such exclusive right is granted to him so that society is benefited by receiving information and knowledge.
The question herein arises is there any limitation and exceptions for libraries and archives under the copyright law. In order to find out answer to this question, we have to put light on the international and Indian perspective that draws up the limitations and exceptions for libraries or archives under the copyright law.
The scope of exception to libraries under copyright regulation was first seen under the Berne convention but it failed to expressly mention the libraries and archives under its exception. Berne convention was the 1st international agreement came into existence for governing copyright and it was accepted in Berne, Switzerland in 1886. The Berne convention provided three-step test. Article 9(2) of the convention established framework for member nations to develop their own exception. The aforesaid test laid down that the exceptions be limited to:
- Special Cases
- That the exception does not conflict with a normal exploitation of the work,
- That the exception does not unreasonably prejudice the legitimate interests of the author.
However, the member states lack on the compliance and interpretation of the convention . The Berne Convention had lacked the binding effect on the member states . Though many countries admit that they are following the provisions of the treaty but it is not the reality.
Tunis Model on copyright
In the year 1976, World Intellectual Property Organization commonly known as WIPO along with UNESCO, came up with a model on copyright which is known as Tunisian Model. The two basic specifications of the model are as given below.:
- its provisions are able to deal with the Paris Act 1971 of the Berne Convention and with the Universal Copyright Convention as revised in 1971.
- its provisions allow for the Roman legal approach of the countries for which it is intended.
Clause (v) of Section 7 of the model provides the exception for reproduction, by
- educational establishment of artistic , public libraries, non commercial documentation centers, scientific institutions,
- literary and scientific works,
- which is lawfully available in the public.
It further provides that-
Reproduction of work or the number of copies made shall be restricted to the needs of the aforesaid beneficiaries and also it shall not be in conflict with the normal exploitation of the work. Moreover, shall not unreasonably hamper the legitimate interest of the authors.
WIPO Treaty on Copyright
WIPO treaty on copyright or WTC is an international treaty adopted by member states of WIPO in the year 1996. The limitations and exceptions to copyright is provided under Article 10 of the treaty. It established the ” three-step ” test to take decision on limitations and exceptions, as given under Article 9(2) of the Berne Convention, extending its application to all rights.
Article 10(1) of WIPO Treaty is reproduced below-
“Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author”.
It means, under special cases, contracting parties under the treaty can make provisions in their domestic laws for limitations or exceptions to the rights granted to authors of literary and artistic works. However, these limitations and exceptions shall not be in conflict with a normal exploitation of work and also do not harm the legitimate interest of the authors.
Article 10(2) of WIPO Treaty is reproduced below-
“Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author”.
It means, when applying the Berne Convention, any limitation or exception to the rights provided to a authors shall be restricted to certain special cases that do not harm normal exploitation of the work and also do not harm the legitimate interest of the authors.
The roots of copyright laws in India can be traced way back in 19th century when the first copyright law was introduced in India with the title ‘ The Indian Copyright Act, 1847’. In the year 1911 the law of copyright was modified in England which lead to modification in the Indian Copyright Act in the year 1914. After the commencement of “Constitution of India” it was felt necessary to enact an independent law on the copyright because of growing public conscience of the copyrights and obligations of authors. Consequently, the Act 14 of 1957 was passed. The Act 14 of 1957 had undergone subsequent amendments in the years 1983, 1984, 1994, 1999 and 2012.
The Copyright ( Amendment ) Act, 2012 came up with the provisions that made the Act of 1957 in conformity with the WIPO Copyright Treaty or WCT, 1996. WTC was negotiated in 1996 to deal with challenges posed to the protection of copyrights and related rights by digital technology and the copyright limitations and exceptions for libraries or archives. The exceptions to copyright for libraries and archives are incorporated under Section 52 of the Act 14 of 1957, 1957 which follows the principle of fair dealings.
Section 52(1)(n) provides exception to non-commercial public libraries for storing a work in electronic for preservation where the library already possesses a non-digital copy of such work. At the same time, Section 52(1)(o) allows the libraries to reproduce not more than three copies of a book ( Including a pamphlet, sheet of music, map, chart or plan ) by the direction of person in charge of a non-commercial public library, in case such book is not available for sale in India and such copies can be made for the use of library. However there arise a question that whether Section 52(1)(o) complies with the obligations under Article 9(2) i.e three-step test and TRIP agreement. The answer to this question is yes as-
- Clause (o) is confined to a special case only books that are not available for sale in India.
- It is restricted to public libraries.
- The clause has not given any other principles or exceptions which would conflict with the legitimate rights of right holder.
Indian copyright law provides exceptions to libraries for use of copyrighted works under the statutory fair dealing provisions of the copyright Act (section 52) as well as under the judicially created fair use exception. The concept of fair dealing is enumerated under Section 52(1)(a) of the Copyright Act, 1957 and is reproduced below-
A fair dealing with any work, not being a computer program, for the purposes of-(i) private or personal use, including research; (ii) criticism or review, whether of that work or of any other work; (iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.
The fair dealing/ fair use exceptions are enshrined under Section 52 of the Copyright Act and also being found in judgments of various courts. In the judgment of division bench of Delhi High Court in the matter of The Chancellor, Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services” which is popularly known as DU photocopy case. In this case the Division bench of Delhi High Court held that “the utilization of copyright work would be fair use to the extent justified for the purpose of education. It would have no concern with the extent of material used, both qualitative or quantitative.
While concluding this study, I would like to throw light on the importance of libraries. Since hundreds of years public libraries has been considered one of most importance source of acquiring knowledge. It helps students, scholars and researchers to conduct their studies out works available in the libraries. As the libraries are the great source of knowledge, the scope of reproduction of works by the libraries could not be restricted absolutely by the copyright laws. In respect of the aforesaid, various international treaties, convention and agreement puts obligation over the member states to incorporate provisions that gives limitations and exceptions to the libraries and archives under their copyright laws.
There is much relevance of three-step test ( provided under section 9(2) of Berne convention ) at the present time. Almost every convention and treaty reiterated the same test and countries have incorporated this test in their municipal laws. The three-step test can also be traced in the Copyright Act, 1957. However, the exception provided in the Act is not satisfactory to the present needs. The liberty to reproduce only three copies under the Copyright Act could not meet demands of vast population of India.
Moreover, the Copyright Act failed to define libraries but at the same time different states came up with their own state enactments which provides for establishment and regulation of libraries in those particular states. At the last I would like to suggest that the scope of exception to libraries and archives under copyright needs to be extended so that the large number of people can have access to the works and at the same time the interest of the authors shall not be hampered by ill-intended exploitation of their work. The concept of fair use/fair dealings provided under the existing law shall also be protected while providing exceptions and limitations for the libraries and archives under copyright laws.
Author: Lalit Mohan,
Delhi Metropolitan Education,GGSIPU ( 4th year )