We’re pleased to bring to you a guest post by Dr. Betsy Rajasingh on her recently released book ‘Digital Copyright Law: A Comparative Study of the Limitations and Exceptions Relating to Education’.
Dr. Betsy is an Assistant Professor at Saveetha School of Law, Chennai. Her research interest lies in IP laws, internet laws and the inter-relationship between IP, technology, and social and economic development. After completing her LL.B. at Dr. Ambedkar Government Law College, Chennai, she went on to pursue her LL.M. in IP and Technology Law at the National University of Singapore as a merit scholarship awardee. Subsequently, she completed her Ph.D. in Law studying the impact of digital technology on Indian copyright law, with specific reference to access to education, as a UGC Junior Research Fellowship awardee at the Tamil Nadu Dr. Ambedkar Law University. Apart from research and teaching, Dr. Betsy has also practiced law in Singapore and India, with a focus on intellectual property law.
Digital Copyright Law: A Comparative Study of the Limitations and Exceptions Relating to Education
Dr. Betsy Rajasingh
I am extremely grateful for the opportunity given by the SpicyIP team to share with the IP community at SpicyIP the news of the publication of my book Digital Copyright Law: A Comparative Study of the Limitations and Exceptions Relating to Education (Thomson Reuters, 2020, ISBN 978-93-89891-35-5).
Copyright, which provides monopoly rights to copyright owners, has since its inception aimed to foster a balance between the economic rights granted to the copyright owner with public interest in access to works. This is ensured by way of limitations and exceptions (L&Es) that provide remunerated as well as unremunerated access to copyright works for exempted purposes, including educational use. Historically, beginning from the first Copyright legislation of the world, the Statute of Anne 1710 – quite aptly titled “An Act for the Encouragement of Learning” – copyright has aimed at ensuring “access” for lawful exempted purposes. On the contrary, L&Es under international law, beginning from the first international convention relating to copyright, namely the Berne Convention of 1886, up until the more recent WIPO Copyright Treaty 1996, have remained largely unregulated and rarely mandatory. This can be fairly evident from the fact that most international copyright conventions had emerged as a result of substantial lobbying from copyright owners. For instance, the Berne Convention 1886 was the handiwork of the ALAI (a private organization representing authors); the TRIPS Agreement 1995 was the success story of 12 powerful CEO’s from MNCs in USA;[1] and the WIPO Copyright Treaty 1996 the result of unrelenting lobbying of copyright industries from developed countries, primarily the Motion Picture Association of America.[2]
Against this background, my book aims to question the dominant narrative propagated by developed countries that stronger copyright protection incentivizes the creation of new works. While doing so, the book aims to establish that developmental goals in developing countries such as India do not demand strong copyright protection, which is likely to tilt the traditional copyright balance in favour of copyright owners, but warrant a copyright system that evenly balances the rights of copyright owners with public interest in access to digital copyright works for educational purposes. To this end, the book discusses two important principles that facilitate access and use of copyright works, namely, the doctrine of fair use/fair dealing and the doctrine of first sale/exhaustion by engaging in a comparative study of the Indian Copyright Act 1957 with the copyright legislations of USA, EU and UK, set against international copyright law and its developments.
Structure of the book
The book comprises of seven chapters, which can be thematically divided into three parts, the introduction, discussions on fair use and discussions pertaining to first sale.
Introduction
The book begins with a general introduction and quickly moves on to the first chapter, which introduces the reader to the concept of copyright – its origin, its philosophical justifications, its place in international law and its impact on development. It is introductory in nature and helps the reader understand the basic concepts involved in the study.
The second chapter moves on to discuss the status of copyright law in the digital age, with special reference to Digital Rights Management (DRM), a concept that recurs in the book with relation to the doctrines of fair use and first sale. It introduces the concept of DRM, including its technological aspects. It subsequently discusses the lobbying for stronger copyright protection, by way of DRM legislation, by the copyright industries in developed countries, its induction into international law through the WIPO internet treaties and its subsequent transposition to domestic laws of both developed and developing countries. In particular, it discusses the legal provisions pertaining to DRM in India by comparing it with the DRM laws of USA and EU.
Fair use
The third chapter introduces the reader to the concept of fair use/fair dealing. It studies the origin of the concept of fair use and its current status in domestic laws. In particular it discusses the fair use models used by domestic legislations, namely the general fair use four factor test, the enumerated list of fair dealing exceptions and the hybrid model using a combination of both the enumerated list and factor test, by analyzing the laws of USA, EU, UK and Singapore. The chapter subsequently moves on to discuss the Indian fair dealing exceptions with case law and ends by suggesting the most relevant model for India. This chapter serves as an introduction to fair use, discussed in detail with relation to educational use in Chapter 5.
The fourth chapter analyses the implications of the three-step test, which has been introduced in international law as a limiting provision on the enactment and interpretation of limitations and exceptions to copyright. It traces the growth of the three-step test from a fairly obscure test to a significant limitation on the use of fair dealing exceptions by discussing international instruments relating to copyright, which incorporate the test. It also moves on to discuss the influence of the test in the domestic laws of USA, EU, UK and India and serves as an introduction for a detailed analysis of the test with relation to education and related exceptions under Chapter 5.
The fifth chapter discusses in detail the implications of digitization on education and related exceptions to copyright. It introduces the concept of e-learning and discusses its impact on higher education and copyright law. The chapter uses empirical data from a survey conducted among students and from interviews with lecturers to understand the penetration and use of e-learning in India in institutions of higher learning. It subsequently discusses the usage of digital content in e-learning, with reference to online distance teaching and learning, including through MOOCs. The chapter then studies the education exceptions in international instruments, namely the Berne Convention 1886, Rome Convention 1961, TRIPS Agreement 1995, WIPO Copyright Treaty 1996 and WIPO Performances and Phonograms Treaty 1996, and the implementation and treatment of such exceptions in the national laws of USA, EU, UK and India, with particular reference to the use of digital copyright works. It also suggests changes in the Indian law, where required, to accommodate usage of digital copyright content in e-learning infrastructures. The chapter finally engages in a discussion of the implications of DRM legislation on the exceptions relating to education by engaging in a comparative study of the laws of USA, EU, UK and India. (As the current Covid-19 era has made e-learning the single dominant mode of imparting higher education in India, this chapter gains added import as it discusses the legality of using digital copies of educational materials in the online space by way of the fair use exceptions)
First sale
The sixth chapter discusses the doctrine of first sale/copyright exhaustion. It introduces the concept of parallel imports and discusses the contextual need for parallel imports in India. The chapter then discusses the international instruments and the domestic laws of USA and EU with respect to the status of copyright exhaustion in analogue works. It subsequently engages in a detailed analysis of the legality of parallel imports in India by studying the legislative developments and case law pertaining to parallel imports in India.
The seventh chapter introduces the emerging concept of digital exhaustion and discusses the effect of digitization on the secondary market for copyright works, particularly intangible copyright works sold over the internet. It begins by discussing the arguments against digital exhaustion and analyses the international and domestic developments – particularly in USA and EU – pertaining to digital exhaustion, including the technical and legal difficulties surrounding its application and implementation. The chapter subsequently examines the status of digital exhaustion under Indian law and concludes by providing justifications pertaining to the need for digital exhaustion.
The concluding chapter contains a summary of the conclusions drawn in the course of study and suggests improvements in the Indian copyright law, where required, so as to facilitate unhindered use of digital copyright content for educational purposes.
The book is available for order on Amazon and Kstor (expect delay in delivery due to Covid-19 restriction in certain areas). Questions, feedback and comments are most welcome.
[1] Susan K Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press 2003).
[2] Jessica Litman, Digital Copyright (Prometheus Books 2006) 122–5 0.
Note: The book has been added to our recently published list of IP books (also accessible from the Resources section of the website here).
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Quite ironical that a book on access and fair dealing, arguing against over protective Copyright is behind a Paywall!!