Fair use exceptions for libraries under Indian copyright law

 
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. Broadly the law permits use of copyrighted works by libraries for the following purposes:

1. Research and education;
2. Instructions, teaching and training;
3. Private study;
4. Enabling access to the disabled;
5. Activities of education institution;
6. Review and criticism;
7. Searching and data mining;
8. Storage and preservation; and
9. Access to knowledge.

The fair dealing and fair use exceptions are provided under Section 52 of the Copyright Act and have emanated from different court decision, notably the Delhi High Court decision in The Chancellor, Masters & Scholars of the University of Oxford & Ors vs Rameshwari Photocopy Services[1] with respect to photocopying.
The table below summarizes activities of libraries that would be considered fair under the Indian copyright law:

SL No	Action		Permissibility	Comment
1	Photocopying copyrighted books or materials (For research, education and/or private study)		NA	In the course of instructions as part of education  Section 52(1)(a) and Section 52(1)(i)
	a) Parts of books		Permitted	See Para 73 of DU Copyright Case
	b) Photographing parts of books		Permitted	This include photographing using cameras See Para 78 of DU Copyright Case
	c) Entire books		Not Permitted	Might not be considered fair use or fair dealing unless the book is not available for circulation in India
	d) Articles		Permitted	Articles include research papers, journal publications, blog posts etc
	e) Charging for photocopying		Permitted	Reasonable price can include photocopying and assistance charges
2	Reproducing copyrighted works/materials		NA	Materials may include audio or video content such as audio lectures, songs, films or documentaries.
	a)  Digital copy for storage		Permitted	See Section 52(1)(n) of the Copyright Act. This exception is applicable only for storage purposes and not for distribution
	b)  Digital copy for searching		Permissible	No specific provision exists, however it will be considered as fair use
	c)   Printing digital copies created under (a) and (b)		Not-permitted	Can be printed only when original copy is destroyed
	d)   Books not in circulation in India		Permitted	See Section 52 (1) (o) of the Copyright Act Only three copies can be made
	e)  Printing parts of digital books for course pack/course  works/ research		Permitted	Provided E-books are legally purchased by the library
	f)  Printing entire digital books		Not permitted	Unless permitted under the license
	g)  Unpublished Works  for private study or  research		Permitted	See Section 52(1)(y)
3	Issuance and/or distribution of Copyrighted books/ materials	NA		Materials may include audio or video content such as audio lectures, songs, films, documentaries.
	a)   To professors, students or members	Permitted		NA
	b)  To third parties for private use or research	Permitted		See Section 52(1)(a)
	c)  Inter library loan	Permissible		NA
	d)  Access to E-books on library platform	Permitted		Provided e-books are acquired legally and subject to permissions/ restrictions provided in the license agreement, and fair dealing/ fair use provisions.
4	Conversion of copyrighted books/ materials into accessible format for the disabled		NA	NA
	a)   Creating e-books, audio books, braille books etc from the books available in the library		Permitted	See Section 51(1)(Zb)
	b)   Making copies of materials mentioned in (a)		Permitted	NA
	c)   Issuance/ distribution of copies to disabled persons		Permitted	For the purposes of private or personal use, education or research
	d)  Charging for materials mentioned in (a)		Permitted	Reasonable charges to recover the cost of creation
5	Performance of copyrighted materials		NA	Performance of songs, films, plays, artworks or books
	a)   Performance in events before students, staff and parents		permitted	See Section 52(1) (j) of copyright act
	b)  Charging for events		Not permitted	NA
6	Translation of copyrighted works/ materials		NA	NA
	a)  For purposes of fair use/ dealing		Permitted	NA
	b)  Course packs		Permitted	NA
7	Circumvention OF DRM Measures		NA	NA
	a) For purposes of fair use/ dealing		Permitted	See Section 65(A)
8	Making and distributing Course Packs		NA	NA
	a)   Master reference copy		Permitted	Master reference copy can include chapters or paragraphs from copyrighted books, articles  or any other copyrighted materials
	b)   Copies of course pack		Permitted	NA
	c)  Selling course pack		Permitted	Reasonable price can include photocopying and assistance charges
	d)  Outsourcing copying/sale of course packs		permitted	Reasonable price can include photocopying and assistance charges
	e)  Combination of copyrighted and public domain works		Permitted	See Section 52(1) (h) of Copyrighted

 
Note: Permitted usage have been generalized and Readers are advised to review specific sections and cases to understand the scope and extend of the said exceptions.
This is not an exhaustive list and is subject to judicial interpretation based on facts, degree of use and impressions/ objective of use.
Relevant provisions from the Indian Copyright Ac, 1957 as amended t relating to day to day functions of libraries are given below:
Section 52(1) The following acts shall not constitute an infringement of copyright, namely:

• a fair dealing with any work, not being a computer programme, 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.

(h) the publication in a collection, mainly composed of non-copyright matter, bona fide intended for instructional use, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for such use in which copyright subsists: Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years.
(i) the reproduction of any work— (i) by a teacher or a pupil in the course of instruction; or (ii) as part of the questions to be answered in an examination; or (iii) in answers to such questions
(j) the performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recording if the audience is limited to such staff and students, the parents and guardians of the students and persons connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording;
(n) the storing of a work in any medium by electronic means by a noncommercial public library, for preservation if the library already possesses a non-digital copy of the work;
(o) the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a non-commercial public library public library for the use of the library if such book is not available for sale in India
(p) the reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access
(zb) the adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format, by— (i) any person to facilitate persons with disability to access to works including sharing with any person with disability of such accessible format for private or personal use, educational purpose or research; or  (ii) any organisation working for the benefit of the persons with disabilities in case the normal format prevents the enjoyment of such works by such persons: Provided that the copies of the works in such accessible format are made available to the persons with disabilities on a non-profit basis but to recover only the cost of production: Provided further that the organization shall ensure that the copies of works in such accessible format are used only by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business.
(2) The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself.

WIPO Treaty on Library Exceptions

WIPO Member States are currently working on a treaty on copyright limitations and exceptions for libraries and archives. The treaty aims to set some basic standards for library exceptions such as parallel imports, copying for research, education, private study, etc., facilitation of access to disabled, inter-library loan, cross-border use of works, library assistance, and orphan works among others. A draft version of the treaty may be accessed at: http://www.wipo.int/edocs/mdocs/mdocs/en/wipo_reg_cr_sin_15/wipo_reg_cr_sin_15_t_17.pdf.Though the Indian Copyright Act does not specifically outline exceptions for libraries, most exceptions provided in the treaty will fall within the scope of fair use/fair dealing exceptions to copyright in India.
 
 
[1] http://lobis.nic.in/ddir/dhc/RSE/judgement/16-09-2016/RSE16092016S24392012.pdf