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Copyright Fair Use and Libraries
Madhu K. S.
Assistant Librarian,
National Law School of India University,
Bangalore.
E-ma...
Abstract
• Fair use exceptions in copyright law facilitate the use of
copyrighted works for the purpose of research and
ed...
Literature Review
• Libraries intermediaries between readers and book
publishers. However in matters of copyright, suspici...
Origins of Copyright Protection
• Having copyright over a work gives the author of the
work exclusive right to deal with t...
Theories of copyright
Basically 4 theories of copyright
• Labour-desert: labour, hard work as the basis
• Welfare theory: ...
Fair Use Doctrine
• Copyright is all about balancing the rights of various
stakeholders
• Copyright subsists for a certain...
Fair use as backbone for libraries
• Libraries are supposed to index the materials
by using the title, author name, subjec...
International legal regime for fair use
• Most countries of the world provide fair use
exceptions in their copyright laws
...
Law on Fair Use in India
• Provided in Sec. 52 of Copyright Act, 1957
Section 52(1)(a) for three purposes:
• 1. private or...
Fair use exceptions
• Under Section 52(1)(i), reproduction of any work by a
teacher or a pupil in the course of instructio...
Course Packs
• Course packs are compilation of course materials
collected from different sources such as books, journals
a...
Fair use for visually impaired persons
• Marrakesh Treaty for visually impaired persons (June 2013)
by WIPO provides speci...
Digital Rights Management
• Since digital content can be replicated easily and at a lower
cost, publishers have now starte...
Conflicts within Copyright Act
• Indian Copyright Act, 1957 has incorporated Section
65A which is titled “protection again...
Conclusion and Suggestions
• Librarians have always respected the copyright laws
and within the limits of law are trying t...
References
• Amlan Mohanty. (2014). Five Reasons Why Course Packs are Legal in India.
Retrieved from http://techlawtopia.c...
References
• Marrakesh Treaty to Facilitate Access to Published Works for
Persons Who Are Blind, Visually Impaired or Othe...
THANK YOU
Thanks to: PQR, XYZ, ABC
Feedback to:
MADHU K S
Asst. Librarian, NLSIU
madhunls@gmail.com | Follow me: @biblaw o...
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Copyright fair use and libraries madhu nlsiu and gagan

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Fair use exceptions in copyright law facilitate the use of copyrighted works for the purpose of research and education. These exceptions protect the academic community from the offence of copyright infringement. Fair use exceptions are limitations on copyright law and have helped librarians in carrying out their work of dissemination of knowledge. This paper discusses the various theories that support copyright protection and the need for fair use. By analysing the fair use exceptions under Indian Copyright Act, 1957 that are relevant to libraries, this paper takes a view that the law needs to provide better protection for libraries in matters of fair use.

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Copyright fair use and libraries madhu nlsiu and gagan

  1. 1. Copyright Fair Use and Libraries Madhu K. S. Assistant Librarian, National Law School of India University, Bangalore. E-mail: madhunls@gmail.com Gagan K. UGC Junior Research Fellow, Department of Studies in Law, University of Mysore, E-mail: gagan555@gmail.com
  2. 2. Abstract • Fair use exceptions in copyright law facilitate the use of copyrighted works for the purpose of research and education. • These exceptions protect the academic community from the offence of copyright infringement. • Fair use exceptions are limitations on copyright law and have helped librarians in carrying out their work of dissemination of knowledge. • This paper discusses the various theories that support copyright protection and the need for fair use. • By analysing the fair use exceptions under Indian Copyright Act, 1957 that are relevant to libraries, this paper takes a view that the law needs to provide better protection for libraries in matters of fair use.
  3. 3. Literature Review • Libraries intermediaries between readers and book publishers. However in matters of copyright, suspicion between the two (Nick Moore, 2000) • Knowing about copyright and the exceptions such as fair use are very important to librarians (Fisher, 2010) • The importance of DRM and its implications on libraries have been documented (Denise M. Davis & Tim Lafferty, 2002) • We can find some literature on Indian copyright law and fair use (Ayush Sharma, 2009). • RESEARCH GAP: However, research on libraries and Indian copyright law are not found.
  4. 4. Origins of Copyright Protection • Having copyright over a work gives the author of the work exclusive right to deal with that work in the present day legal systems in most of the countries today. • This was not the case in the 17th century. In fact, most of the countries passed copyright legislations only in the 20th century. • After the invention of printing press, works of authors were easily duplicated by the printers and the authors were not paid any royalty, thereby depriving them of their livelihood. • The British Statute of Anne which was passed 1710 is one of the earliest known copyright legislations of the world.
  5. 5. Theories of copyright Basically 4 theories of copyright • Labour-desert: labour, hard work as the basis • Welfare theory: public good and welfare as the basis. Based on utilitarian model. • Personhood theory: a creative work is the extension of the personality • Culture theory: copyright promotes
  6. 6. Fair Use Doctrine • Copyright is all about balancing the rights of various stakeholders • Copyright subsists for a certain period and does not vest forever • Certain uses of copyrighted works will not be considered as infringement if done within reasonable limits • 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 classroom instruction is not copyright infringement.
  7. 7. Fair use as backbone for libraries • Libraries are supposed to index the materials by using the title, author name, subject and other information available in the books and journals • This falls under fair use exceptions • Even making of newspaper clippings by librarians is allowed under fair use exceptions
  8. 8. International legal regime for fair use • Most countries of the world provide fair use exceptions in their copyright laws • Article 13 of TRIPS Agreement provides guidelines for fair use exceptions • European Union Copyright Directive provides fair use exceptions for research and other purposes • In USA, Section 107 of 17 US Code provides fair use exceptions
  9. 9. 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
  10. 10. Fair use exceptions • Under Section 52(1)(i), reproduction of any work by a teacher or a pupil in the course of instruction is considered as fair use. • Section 52(1)(n) gives special privilege to non-commercial public libraries to store works in electronic medium for the purpose of preservation, if the library already possesses a non-digital copy of the work. • Section 52(1)(o) allows non-commercial public libraries to make not more than three copies of a book, if such book is not available for sale in India. • Section 52(1)(p) states that for the purpose of research, unpublished works kept in libraries and museums can be reproduced.
  11. 11. Course Packs • Course packs are compilation of course materials collected from different sources such as books, journals and newspapers. • In USA, in the case of Cambridge University Press v. Becker, held that course packs are legal, provided within the threshold limit • India, Delhi High Court (ongoing case) has held course packs 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 a threshold limit for fair use when it comes to educational and research purposes (Amlan Mohanty, 2014).
  12. 12. Fair use for visually impaired persons • Marrakesh Treaty for visually impaired persons (June 2013) by WIPO provides special exceptions to copyright law to facilitate conversion of materials to a format that is accessible to the blind people. • Indian Copyright law also facilitates access to the visually impaired persons by providing exceptions • IFLA Licensing Principles (2000) provides that the law of the country to which licensee belongs should be applicable for the contract • LACUNA: However, many foreign publishers are not ready to recognise the rights of the visually impaired persons. They argue that Copyright Act of India is not applicable to them!
  13. 13. Digital Rights Management • Since digital content can be replicated easily and at a lower cost, publishers have now started relying on Digital Rights Management (DRM). • The electronic resources are now encrypted and can be controlled by the publishers as per the terms of the license. • For example, an E-book can be licensed to one single user and the file will work only on one single device. • This is markedly from the way in which traditional printed books work. • With the printed books, we usually share them with our friends and colleagues. • However, such sharing is not possible if DRM measures are put in place (Denise M. Davis & Tim Lafferty, 2002). Several rights groups have termed DRM as “digital restrictions management”.
  14. 14. Conflicts within Copyright Act • Indian Copyright Act, 1957 has incorporated Section 65A which is titled “protection against circumvention of technological measures”. • Under this provision, tampering with the DRM measures is a punishable offence. • DRM measures restrict the scope of fair use possibilities for libraries and academic community. • For example, a book though copyrighted can be photocopied fairly for educational purposes. • But, an E-book which is protected from being printed cannot be printed unless the technological measure (such as the encryption) is circumvented. This act becomes punishable, although it is allowed as per fair use exceptions under Section 52.
  15. 15. Conclusion and Suggestions • Librarians have always respected the copyright laws and within the limits of law are trying to disseminate information to the society at affordable costs. • However, the copyright law on fair use is still not favourable to the librarians. • Many of the works done in a bona fide manner for dissemination of knowledge may be categorized as infringing copyright. • It is suggested that special exceptions are to be made for public libraries in the copyright law to facilitate better knowledge dissemination.
  16. 16. 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 Fair Use. Loy. U. Chi. LJ, 24, 143. • Ayush Sharma. (2009). Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or Lex Ferenda. Journal of Intellectual Property Rights, 14, 523–531. • Cole, J. Y. (1971). OF COPYRIGHT, MEN & A NATIONAL LIBRARY. The Quarterly 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 from http://nsdl.niscair.res.in/jspui/handle/123456789/970 • IFLA. (2004). Limitations and Exceptions to Copyright and Neighbouring Rights 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
  17. 17. References • Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. (2013, June 28). Retrieved from http://www.wipo.int/treaties/en/ip/marrakesh/ • Netanel, N. W. (1996). Copyright and a democratic civil society. Yale Law 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 of intellectual property law. Retrieved from http://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 Labor and Possession. Ohio St. LJ, 51, 517.
  18. 18. THANK YOU Thanks to: PQR, XYZ, ABC Feedback to: MADHU K S Asst. Librarian, NLSIU madhunls@gmail.com | Follow me: @biblaw on twitter Gagan K, UGC Junior Research Fellow gagan555@gmail.com

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