National Digital Library of India’s (NDLI) Copyright Guide (Feedback) – Part I

The National Digital Library of India (NDLI) has come up with India’s first Copyright Guide for Indian Libraries. The stated objective of NDLI is to educate, enable and empower the youth using quality knowledge and learning resources while harnessing the power of the digital medium. This Guide has been created, keeping in mind our current age where new technologies and gatekeepers of knowledge make it difficult for librarians to understand and deal with multiple issues pertaining to copyrights.

It is a crisp 20 page document available here for public review and NDLI has invited feedback on it by 30^th September, 2020 via a Google form posted on the same page. The feedback is meant to source focused and relevant views for the prospective users of the Guide, and this feedback is solicited through 9 questions provided by the NDLI.

Overall, the Guide seems to have been drafted, keeping accessibility in mind. To that effect, it tries to simplify the complicatedly drafted provisions in the Indian Copyright Act pertaining to library exceptions. It purports to be a skeletal explanation of the law as it stands and the rights implicated in the functions of the library. However, this is no easy task and while the Guide has done an admirable job, there is room for some improvement and clarification. Regardless, it is to be kept in mind that the Guide is meant to be an informative or indicative, rather than analytical document. For the purposes of this two-part post, I will look to respond to some of the questions posed in this feedback questionnaire. I will also analyse how the templates and declarations meant to scope permissible and impermissible uses, can contribute to a permissions and clearance culture that inevitably restricts fair dealing. It would be wonderful if more informed readers and stakeholders could also add their views through feedback or in the comments below.

 What additional aspects could be included in the introductory part of the guide?

The introduction merits some reference to the role of libraries in democratising access to knowledge, in a knowledge importing developing country like ours. Rhetoric assumes importance in constructing positive rights in the public domain instead of negative exceptions limited to the fair dealing section which comes much later in the Guide. For lay readers, the Guide introduces the rights of creators and the objectives of the Copyright Act without introducing any corresponding responsibility for libraries furthering the rights of users. The state aims to open up access to information as a public good for all via libraries with the objective of improving overall social welfare. This should find some mention upfront in the introduction, for the readers’ ease of navigation. The public domain has also been defined without any reference to user rights.

Does the section on “Non-commercial public library” need any further elaboration? If so, any specific suggestions?

Soon after the Copyright (Amendment) Act, 2012, Ujwala Uppaluri had noted in the context of its references to libraries that more than anything, clarity within existing provisions of the law was needed most direly. This is because many operative terms in definitions have been left undefined. The 2012 amendment replaced ‘public library’ with ‘non-commercial library’ in Section 52(1)(o). This is made troubling by the fact that a simple reference to libraries can be found in Sections 52(1)(p) and 52(1)(z)(b) whereas Sections 52(1)(n) and 52(1)(o) mention ‘non-commercial public libraries’. The only qualifier defined in the Statute is ‘non-profit libraries’ in Section 2(fa). This leaves us with the understanding that these qualifiers are distinct from each other since they evidence legislative intent of using different terminologies for different sections.

The Guide defines non-commercial library to include any library “(a) that is either maintained/ established/aided by the Government or notified by the Government as a public library or whose primary activities are the collection and preservation of books, periodicals and other documents and the provision of library services and (b) which makes its collection accessible to the public.”

This definition has not been cited and is probably culled out by the authors themselves in the absence of any statutory definition. It is crucial to mention this. Central Legislation such as the Delivery of Books and Newspapers (Public Libraries) Act, 1954 refers to ‘public library’ as a library designated for the state to ensure that publishers deliver their works, including all books, newspapers and serials, as part of their legal deposits with the libraries. Moreover, fourteen state public library acts have variously defined public libraries.

The definition in the Guide is not very clear regarding both its sources and content. In this regard, it is evident that membership conditions such as paid membership have no bearing on determining whether the library is accessible to the public or not. However, it would also help to mention more illustrations, for example some membership or eligibility conditions apart from payment that could impact the library’s being a non-commercial public library. Notably, The Statements of Objects and Reasons of the 2012 Amendment Act in its notes on clauses mentions that, “Clause (o) of sub-section (1) of section 52 is proposed to be amended to extend its applicability to non-commercial public libraries as well.” (page 24). This could mean that the Amendment in the clauses that mention non-commercial public libraries were poorly drafted but meant to be inclusive of public libraries.

Are all the templates in the guide clear for implementation?

The templates for record-keeping are easily understandable and fit to be used. However, the entire exercise of designing templates to restrict libraries’ liability raises some more structural questions. This is because it constitutes a very specific interpretation of the law, not necessarily warranted by statute or case law. In the United States, libraries are allowed to give copies to individuals if there is no indication that these copies will be used for prohibited purposes [Title 17, United States Code, Section 108(d)(1)(e)(1)]. The presumption is that users will make use of these copies for permitted purposes and libraries are not liable unless they have notice of infringement. The position in the United Kingdom in contrast is that the librarian must satisfy a more proactive role in ensuring that the copies are made only for non-commercial purposes or private study [Copyright, Designs and Patents Act, 1988, §39(1) (U.K.)]. In this regard, there is nothing in the Indian law (statutory or case law) to say that our statute must be interpreted more restrictively (qua users) like that of the U.K. instead of requiring notice for libraries’ liability, like in the U.S. This is discussed in greater detail in the next post, given Indian Courts’ expansive interpretation of fair dealing purposes as user rights.

It is particularly important to note here that while deliberating the libraries exceptions and reproduction rights as part of the WIPO’s Standing Committee on Copyright and Related Rights, India had categorically stressed upon obviating any upper limits on the scale of copying, which India argued should entail a determination based upon the purpose of the use as per fair practice acknowledged by Article 10 of the Berne Convention instead of the number of copies made.

In contrast to this, the Guide’s template on making work accessible to disabled persons prohibits storage of works on multiple devices except for creating a backup on servers. These templates, (except the ones for internal recordkeeping) where they serve as declarations by librarians or users regarding the number of copies allowed to be made, can be rights restrictive. In this regard, Section 52(1)(o) of the Act allows the person in charge of a non-commercial public library, or persons acting under his or her direction, to make up to three copies, for the use of the library, of a “book” that is not available for sale in India. Second-hand books available from on-line retail or serendipitously from a second-hand bookseller should not be considered as being available for sale in India. Here, it may be useful to refer to the applicability of the first sale doctrine to physical and digital sales, in determining both whether they can be considered ‘available for sale in India’ and the rights of libraries over the books purchased (I have explored this issue in some detail here.) Books that are priced beyond the means of most people are not available for sale in India as per the Guide, but the source/footnote for this is yet to be inserted.

Is the section on “Display” sufficiently explained for a librarian to decide on how to implement this provision in the library?

This section provides that, “There should not be any objection to displaying the jackets, bibliographical details and the like in the premises of the institution, or by uploading the same on any index or as particulars of new acquisitions onto the institution’s website or in leaflets for members.” It is important to note here, particularly in the context of digital indexing that meta-data is often proprietary and to be able to use it, libraries may have to incur additional costs.

Does the section on technology circumvention need and further elaboration?

Section 65B pertaining to Digital Rights Management has been explained correctly by the Guide. However, Section 65A pertaining to Technological Protection Measures (TPMs) is explained as providing “protection against circumvention of effective technological measures (in effect, creating use or access controls to works uploaded on the Internet) that may be applied to copies of a work.” This crucially omits that as per the Act, in order to be penalised under this section, the circumvention of an effective TPM must be done “with the intention of infringing” the rights under the Copyright Act. As a result, breaking TPMs for fair dealing would not attract punishment under this Section unlike what is conveyed by the Guide.

Other concerns posed by the Guide regarding the section on fair dealing and user rights will be discussed in Part II of this post.

Please click here to view Part II of this post.