copyright law and digital libraries · 2020-07-14 · pganguli©2020 international covenant on...

Professor Prabuddha Ganguli

Visiting Professor, Rajiv Gandhi School of Intellectual Property Law (RGSOIPL), IIT Kharagpur

Co-Principal Investigator, National Digital Library of India (NDLI), IIT Kharagpur

Advisor, IIT Jodhpur

and

CEO

“VISION-IPR”, Mumbai

[email protected]

Copyright Law

and

Digital Libraries

25th P N Panicker National Reading / Digital Reading Month Celebrations …WebinarJuly 13, 2020

Why is Copyright Relevant in the Context of Information & Knowledge Management

Libraries, Archives and Museums as custodians of diverse works cater to theinformation needs of the Consumers of Copyright

Procure works (copyrighted & non-copyrighted) in various forms (physical anddigital) and make them accessible to consumers by a plethora of services

Libraries, Archives and Museums facilitate the creation of Copyrighted &Non-copyrighted works

Participate with their clients in the process of the creation of works

Libraries, Archives and Museums become conduits for distribution ofCopyrighted and Non-copyrighted works to their clients and to the Public(Publishing)

Exploit diverse media for publishing

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Perspective

International Covenant on Economic, Social and Cultural Rights

entry into force 3 January 1976

The Universal Declaration of Human Rights…….proclaimed by the United Nations General Assembly in Paris on 10 December 1948 General Assembly resolution 217 A

United Nations Declaration on the Rights of Indigenous Peoples adopted at the 107th plenary meeting 13 September 2007

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International Covenant on Economic, Social and Cultural Rightsentry into force 3 January 1976, in accordance with Article 27

Article 15

1. The States Parties to the present Covenant recognize the right ofeveryone:

(a) To take part in cultural life; (b) To enjoy the benefits of scientific progressand its applications; (c) To benefit from the protection of the moral andmaterial interests resulting from any scientific, literary or artistic productionof which he is the author.

2. The steps to be taken by the States Parties to the present Covenant toachieve the full realization of this right shall include those necessary for theconservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect thefreedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to bederived from the encouragement and development of international contactsand co-operation in the scientific and cultural fields.

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The Universal Declaration of Human Rights…….proclaimed by the United Nations General Assembly in Paris

on 10 December 1948 General Assembly resolution 217 A

Article 17.

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

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Article 26.

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be givento their children.

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Article 26:

(1) Everyone has the right to education. Education shall be free, at least in theelementary and fundamental stages. Elementary education shall becompulsory. Technical and professional education shall be made generallyavailable and higher education shall be equally accessible to all on the basisof merit.

(2) Education shall be directed to the full development of the human personalityand to the strengthening of respect for human rights and fundamentalfreedoms. It shall promote understanding, tolerance and friendship amongall nations, racial or religious groups, and shall further the activities of theUnited Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be givento their children.

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Article 27:

(1) Everyone has the right freely to participate in the cultural life of thecommunity, to enjoy the arts and to share in scientific advancement andits benefits.

(2) Everyone has the right to the protection of the moral and materialinterests resulting from any scientific, literary or artistic production ofwhich he is the author.

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Article 1:

right to the full enjoyment, as a collective or as individuals, of all human rights andfundamental freedoms as recognized in the Charter of the United Nations, theUniversal Declaration of Human Rights and international human rights law.

Article 11:

Right to practise and revitalize their cultural traditions and customs. This includesthe right to maintain, protect and develop the past, present and futuremanifestations of their cultures, such as archaeological and historical sites, artefacts,designs, ceremonies, technologies and visual and performing arts and literature.

Effective redress mechanisms for restitution, developed in conjunctionwith indigenous peoples, with respect to their cultural, intellectual,religious and spiritual property taken without their free, prior andinformed consent or in violation of their laws, traditions and customs.

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Article 20:Right to maintain and develop their political, economic and socialsystems or institutions, to be secure in the enjoyment of their ownmeans of subsistence and development, and to engage freely in alltheir traditional and other economic activities.Article 24:Right to maintain health practices, traditional plants, animals,minerals. Right to access all health and social services withoutdiscrimination.

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Article 31:right to maintain, control, protect and develop their culturalheritage, traditional knowledge and traditional culturalexpressions, as well as the manifestations of their sciences,technologies and cultures, including human and genetic resources,seeds, medicines, knowledge of the properties of fauna and flora,oral traditions, literatures, designs, sports and traditional gamesand visual and performing arts. They also have the right tomaintain, control, protect and develop their intellectual propertyover such cultural heritage, traditional knowledge, and traditionalcultural expressions..

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Intertwined Non-Static Framework of Intellectual Property Rights (IPR)

Promoting structured disclosure of developed Knowledge for statutory protection ……Benchmarks, filters and limitations

Global knowledge in open domain for further development and use…appreciation of conditionality for access to knowledge (A2K)

IPR to be subject to certain conditions…..defined limitations including certain actions not considered as infringement of IPR (e.g. ‘fair use’ / fair dealing in copyright)

IPR Processes open to public scrutiny & challenge

Time limitations on IPR

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Intertwined Non-Static Framework of Intellectual Property Rights (IPR)

Obligations of the IPR holder including actions if the IPR holder does not meet obligations

Exhaustion of IPR

IPR transactions including options for benefit sharing arrangements

Enforcement of IPR

Competition Law and IT Laws interfacing with IPR laws

Consumer protection …..discouraging, deception, unfair competition

versus

Ownership of Knowledge

…a key factor

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What is Copyright?

Real PropertyR1, R2, R3, R4, …….. Rn▪ Possess▪ Use▪ Enjoy▪ Transfer (Sell)▪ Encumber▪ Doing Nothing ▪ Destroy▪ Residuary Rights

▪ To reproduce the work in any materialform

▪ To issue copies of the work to thepublic

▪ To perform the work in public▪ To communicate the work to the

public▪ To make any cinematograph film or

sound recording in respect of thework

▪ To make any translation of the work▪ To make any adaptation of the work

Copyright Sandy StretchesImpact of Digital Technology and the Internet……

Do present day IPR Laws address the challenges of an evolving digital ecosystem?

Collapsing Innovation Time Scales

Easy & Speedy transmission, distribution, Reproduction and Reworking

Adaptations and Re-Creations

Storage….. prolific increase in storage capacity

Access to information almost any-time & from anywhere

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Exceptions in Section 52 of the Indian Copyright Act 1957(as amended in 2012)

Include activities related to personal use, review and criticism, various activities ineducational institutions (including use of works in the course (52(i)); performing a playor showing a film or sound recording to a limited audience in the institution 52(j)),certain uses of government / public documents, news reporting, cases where it would bedifficult or unreasonable to enforce copyright e.g. Architectural works in public placespublic statues and so forth.

Section 52(1)(zb) further provides for access to copyrighted works in special formatsfor persons with disabilities.

It may be noted that the term “museum” or the expression “other institutions to whichthe public has access” has been included in Section 52(1)(p) of “The Act”. The term“Archives” has been included in the explanation to Section 52(1)(zb) in “The Act”.

S52(1)(b) ) provides that transient or incidental storage of a work or performancepurely in the technical process of electronic transmission or communication to thepublic does not constitute infringement of copyright.

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S52(1)(c) provides that transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration that is not expressly prohibited by the rights holder would not be infringement of copyright, unless theperson responsible is aware of infringement or has reasonable grounds for believing that such storage is that of an infringing copy.

52(1)(c) is to be read with a provision that if the owner of a copyright work, in a writtencomplaint to the person responsible for digitally storing an infringing copy of the work, complains that such transient or incidental storage is an infringement, then the personresponsible would have to refrain from facilitating access to the infringing copy of the work for a period of 21 days.

If within 21 days, the person responsible does not receive an order from a competent court that directs the person responsible to refrain from providing access, then accessmay be resumed at the end of that period

Exceptions in Section 52 of the Indian Copyright Act 1957(as amended in 2012)

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Section 52(1)(n): the storing of a work in any medium by electronic means by a non-commercial public library, for preservation if the library already possesses a non-digitalcopy of the work. “Possession” would not include a copy on temporary loan: it shouldbe with the library on a permanent basis

Library Exception 1

Library Exception 2

S52(1)(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 chargeof a non-commercial public library for the use of the library if such book is notavailable for sale in India.

Library Exception 3

S 52 (1) (p) the reproduction, for the purpose of research or private study or with aview to publication, of an unpublished literary, dramatic or musical work kept in alibrary, museum or other institution to which the public has access.This is available to any library whether commercial or non-commercial.

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Digitisation in Libraries• Access to educational materials necessary to pursue education and creation of

course packs . “In the course of instruction” and following the Delhi High Court judgement [ The Chancellor, Masters and Scholars of Oxford University vRameshwari Photocopy Services & Ors.], libraries are allowed to prepare digital course packs of books as prepared by and used by educational institutions for instructional purposes

….Take note that you are not circumventing any technological Measures …must not be a violation of Sections 65 A and 65B

• Digital Course Packs…….. Best implemented with certain access controls limiting use of digital course packs only to the users who have institutionalaffiliations.

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Digitisation in Libraries

• Before making any further copies of electronic books, libraries must rely on the contracts that they have signed with copyrights owners.

• Negotiating Licenses, Subscriptions to Books and Journals Especially with Regards to Electronic Resources and Content Providers……. May entail giving up specific rights which a library would normally have if it hadbought a hard copy of books or journals.

e.g.: subscription might allow storage in a standalone computer… the librarycannot display the content in multiple computers or provide access to thematerial through the network

• Interlibrary loan: Lending / Borrowing / exchanging of e-copies again subject to the licence conditions unlike the purchased hard copies

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▪ Single Institution License, Academic Consortia License, Public Libraries License, ebook and journal archive license and lastly the free trial licenses for a limited duration.

▪ Each of these licenses have their own nuances, advantages and disadvantages.

▪ It is necessary to keep in mind whether there are restrictions as to who can access the content.

▪ Who are the authorized users? Does the license allow the library to make the electronic database available only to its patrons or to any visitors or walk-in users to the library?

▪ In most instances license limits access to such databases to only authorized users of the library, especially if the content is allowed to be accessed through the library’s network.

Digitisation in Libraries

Authors Guild v. Google, Inc., No. 13-

4829 (2d Cir. 2015)

• Authors Guild , authors of published books under copyright,

filed suit against Google for copyright infringement.

• Google, acting without permission of rights holders, made

digital copies of tens of millions of books, including plaintiffs',

through its Library Project and its Google books project.

• The District Court concluded that Google's actions constituted

fair use under 17 U.S.C. 107.

• On appeal, plaintiffs challenged the District Court's grant of

summary judgment in favour of Google.

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Authors Guild v. Google, Inc., No. 13-

4829 (2d Cir. 2015)• The Court concluded that: (1) Google’s unauthorized digitizing of

copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use. (2) Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer. Accordingly, the court affirmed the judgment.

• 18.04.2016: The US Supreme Court declined to review Authors Guild v. Google Inc

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• HathiTrust Digital Library is a spin-off of the Google Books LibraryProject which was founded by the Committee on InstitutionalCooperation and the University of California system.

• The collections of these university libraries were digitized by Google andthen combined by HathiTrust.

• HathiTrust’s main objective was the long-term preservation of thecollection.

• Member libraries could order replacement copies of works if (1) themember already owned an original copy, (2) the member’s original copyis lost, destroyed, or stolen, and (3) a replacement copy is unobtainable ata fair price.

Authors Guild, Inc. v. HathiTrust 755 F.3d 87

(2d Cir. 2014)

• The HathiTrust’s Library allowed full-text search.

• For search results found in works in the public domain, the

work was displayed online, and so were works for which

the copyright holder had granted permission.

• For other works, only page numbers and the number of

search results per page were shown.

Services to General Readers

Authors Guild, Inc. v. HathiTrust 755 F.3d 87 (2d Cir. 2014)

• In addition, the HathiTrust made its collection available to studentswith print disabilities (a person who cannot effectively read printbecause of a visual, physical, perceptual, developmental, cognitive, orlearning disability) by offering them secure system access for screenreaders (screen readers are software that allow blind or visuallyimpaired users to read the text that is displayed on the computer screenwith a speech synthesizer or braille display.)

• The collection of works available to print-disabled students throughHathiTrust was often larger in scope and easier to navigate than thoseoffered through most university student disability services

Service for Visually Challenged

Authors Guild, Inc. v. HathiTrust 755 F.3d 87 (2d Cir. 2014)

The Authors Guild filed a copyright infringement suit against HathiTrust Digital

Library.

HathiTrust Digital Library allegedly infringed their copyrights through its use

of books scanned by Google.

Trial Court ruled that HathiTrust's use was permissible under fair use.

The plaintiffs filed an appeal before the Second Circuit Court of Appeal.

The appeal court upheld the Lower Court’s findings of fair use for accessibility and

search, remanding back to the Trial Court the issue as whether the plaintiffs had

allegation about library preservation copies.

The remaining claims were settled on January 6, 2015.

Authors Guild v. HathiTrust 755 F.3d 87

(2d Cir. 2014)

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UTV SOFTWARE COMMUNICATION LTD. AND ORS. v 1337X.TO

AND ORS.

HIGH COURT OF DELHI CS (COMM) 724/2017 & Ors.

Judgment April 10, 2019

(A)Whether an infringer of copyright on the internet is to be treated

differently from an infringer in the physical world? [Court: No]

(B)Whether seeking blocking of a website dedicated to piracy makes one an

opponent of a free and open internet? [Court: No]

(C)What is a ‘Rogue Website‘ ? [Court: Whether it is Flagrantly Infringing

Online Locations (FIOL) including the volume of traffic received by the

website, or whether it contains indexes or categories which provide the

‘means’ for infringement]

(D)Whether the test for determining a ‘Rogue Website‘ is a qualitative or a

quantitative one? [Court: Whether it is overwhelmingly infringing]https://spicyip.com/2019/04/breaking-delhi-high-court-issues-indias-first-dynamic-website-blocking-injunction-for-

copyright-infringement.html

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https://spicyip.com/2019/04/breaking-delhi-high-court-issues-indias-first-dynamic-website-blocking-injunction-for-copyright-infringement.html

UTV SOFTWARE COMMUNICATION LTD. AND ORS. v 1337X.TO

AND ORS.

HIGH COURT OF DELHI CS (COMM) 724/2017 & Ors.

Judgment April 10, 2019

(E) Whether the defendant-websites fall in the category of ‘Rogue Websites‘?

[Court: Yes]

(F) Whether this Court would be justified to pass directions to block the ‘Rogue

Websites‘ in their entirety? [Court: Yes]

(G) How should the Court deal with the hydra headed ‘Rogue Websites‘ who on

being blocked, actually multiply and resurface as redirect or mirror or

alphanumeric websites?

[Court: it creates a new procedure to extend website blocking injunctions

beyond those specified in the court order, to those websites which are ‘mirror /

alphanumeric / redirect’ websites created after the injunction orders, known as

a ‘dynamic injunction’]

https://spicyip.com/2019/04/breaking-delhi-high-court-issues-indias-first-dynamic-website-blocking-injunction-for-

copyright-infringement.html

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The Judgement• Permanent injunction restraining the defendant-websites their

owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, from, in any manner hosting, streaming, reproducing, distributing, making available to the public and / or communicating to the public, or facilitating the same, on their websites, through the internet in any manner whatsoever, any cinematograph work / content / programme / show in relation to which plaintiffs have copyright.

• A decree was also passed directing the ISPs to block access to the said defendant-websites.

• DoT and MEITY were directed to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the said defendant-websites.

https://spicyip.com/2019/04/breaking-delhi-high-court-issues-indias-first-dynamic-website-

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Implications of this judgement

• ‘Dynamic Injunction’, whereby rights-holders do not need to go

through the ‘cumbersome’ process of a judicial order in order to

issue blocking orders to ISPs

• The plaintiffs have been allowed to approach the Joint Registrar of

the Delhi High Court, to extend an injunction order already granted

against a website, against a similar ‘mirror / redirect / alphanumeric’

website which contains the same content as the original website

https://spicyip.com/2019/04/breaking-delhi-high-court-issues-indias-first-dynamic-

website-blocking-injunction-for-copyright-infringement.html

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Jagran Prakashan Limited v Telegram FZ LLC & Ors.,

Delhi High Court, CS(COMM) 146/2020

Judgment on 29 May 2020

• Plaintiff is a publishing company publishing Dainik Jagran in Hindi

• Readers have option to subscribe the physical / print newspaper or log ontothe website to read the daily newspaper in the digital format on the web pageitself.

• There is a security feature by which the readers are not allowed to downloadthe pfd version.

• Telegram is a cloud based instant messaging and voice over IP service.

• These users of Telegram can send messages and exchange photos, videos,stickers, audio and files of any type. Telegram platform grants access andpermission to the users of the application to create various channels whilekeeping the names of the users anonymous.

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Jagran Prakashan Limited v Telegram FZ LLC &

Ors., Delhi High Court, CS(COMM) 146/2020


• Telegram users uploading the pdf version of the e-newspaper. Users subscribing to

the channels are able to download current and previous editions of the e-newspaper.

• Plaintiff claims this is a violation of its copyright

• Section 79 of the Information Technology Act related to Intermediaries. Defendants

cannot escape from its liability on the ground that it is a intermediary hey are

required to conduct due diligence and in terms of Rule-3 sub-rule 4 of the

Information Technology (Intermediaries Guidelines) Rules, 2011 on being

informed about the misuse, the defendant No.1 is required to pull down the said

channels within 36 hours

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Jagran Prakashan Limited v Telegram FZ LLC &

Ors., Delhi High Court, CS(COMM) 146/2020


• The defendant had not send any responses to the notices sent by the Plaintiff.

• The Court granted an ad-interim injunction and also that the defendant could not continue to claim its intermediary status, thereby ordering the defendant to block the infringing channels and to disclose the names of all the users who had started each of the said channels

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Explore the best options to exploit the exceptions and limitations of the Copyright Act .

A Copyright Guide for Librarians in India has been prepared which will shortly be put in the NDLI Site for comments

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Copyright on Sandy Stretches

……Infusion of Autonomous Artificial Intelligence (AI) Technologies

Subtle transition to machines with human like attributes

Enhanced humans with integrated artificial intelligence

…….Blurring Human – Machine Interfaces

…....re-Thinking Copyright Laws

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re-thinking copyright…debating contextual relevance

Ownership of created works? Open Source, Sharing Platforms & Models? Fair Benefit Sharing? Cross-Border

Activities?

Issues vis-a-vis Distance Learning, Library Digitisation, Exchange of Works in Accessible Formats? Info / data acquisition, analysis and trading modes? Criteria for

infringement? Who will be liable & what will the liabilities in case of infringements? …Jurisdiction for enforcement?

Will require new business and transactional models

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The Challenge… Copyright Laws under test in Rugged Terrains

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…… a new dimension in work culture,

communication and ethics

individual user rights, freedom of access to

information and freedom of expression as

required in UN Declaration on Human Rights

copyright law and digital libraries · 2020-07-14 · pganguli©2020 international covenant on...

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