“Books are for use” may have been written with physical libraries in mind, but the principle is just as relevant in today’s digital age. With copyright amendments reportedly in the offing, Maneesha Gupta examines why India’s library and archival exceptions need updating to enable meaningful digital preservation and access to knowledge, particularly for students and researchers. Maneesha is a fifth-year B.A. LL.B. (Hons.) student at NMIMS School of Law, Bengaluru, and a participant in the SpicyIP Summer School 2026.
Digital Archiving: The MVP!
By Maneesha Gupta
(With National Librarian’s Day coming up on August 12, honoring Dr. S.R. Ranganathan, Father of Library Science in India, it is a great time to reflect on his Five Laws of Library Science, particularly ‘Books are for use’ and ‘Save the time of the Reader’. Digital Archiving carries this legacy forward by enabling access for students and researchers from all backgrounds.)
It has been 14 years since the Copyright Act of 1957 (the “Act” for this blog) woke up to any amendment. The last amendment was introduced in 2012 after years of careful consultation with stakeholders from the film, music, publishing, and broadcasting industries, among others, as mentioned in the 227th Parliament Standing Committee on HRD Report. Now, as news of the possibility of a Copyright Amendment Bill is in the offing, and the discussion is gaining more and more momentum, it is important to look at the areas of improvement in the statute to do its job right- maintain a balance between the interest of the owners of the copyright in protecting their works and the interest of the public to have access to those works. This blog attempts to highlight mending points of the Act in the light of Digital Archiving- the need of the hour in the education sector.
The era of printed copies of materials is slowly phasing out, and the way we receive education is evolving quickly. With time, stakeholders in the education sector have moved towards digitalization. E-books, Massive Open Online Courses (MOOCs), Controlled Digital Lending (CDL), Online Public Access Catalog (OPAC), Learning Management System (LMS), Educational Apps, and National Digital Library of India (NDLI) are tools of the present, enabling easier access to knowledge for students and researchers with disabilities and those from marginalized sections. However, these tools might not stay forever. The course is removed/the e-book chapters are deleted/the websites are shut/the licences expire/and/or the platforms evolve. What if I cite webpages to this blog, and a few years later you click on them only to see 404? What happens to the growth of education, fair dealing exception, and constitutional guarantee then?
The calm to this chaos is Digital Archiving, which is preserving, migrating, and reproducing digital knowledge. Take the example of SpicyIP’s Flashback Series that goes back in time to resurrect almost two-decade-old IP legal battles from 2005. The series tracks archives available in e-spaces to map errors and developments from the past, meaningfully contributing to the present dialogue on IP. What if such archives were not in place? Without digital archives, it would have been difficult to access, verify, and utilize knowledge. Digital archives contribute significantly towards educating the masses. (Quick shout out to key initiatives like the Lucknow Digital Library with easy access to a lot of rare books!)
When I say ‘reproducing’, it is natural for the Copyright Act, 1957 to enter the discussion. Copyright law in India allows digital archiving under the Fair Dealing provisions of Section 52. It is then crucial to analyze this statutory protection, which largely benefits stakeholders in the education sector, such as students, researchers, professors, and academic institutions, and then discuss key statutory gaps with an Amendment in sight.
Update These Laws, Please?
Provisions relevant to archiving set out in the Act are:
- Section 52(1)(n) provides for making electronic storage of already possessed physical copies of works by non-commercial public libraries for preservation purposes;
- Section 52(1)(o) allows making up to 3 copies of books not available for sale in India by or under the direction of the person in charge of a non-commercial public library; and
- Section 52(1)(p) allows reproducing historical manuscripts and archives for study or research or private study, or with a view to publication of unpublished works kept in a library, museum or publicly accessible ‘other institutions’.
Three of these provisions, with a few fixes, can have far-reaching impacts on the education sector. One common flaw I found in them was the limited applicability of these exceptions to physical infrastructures.
Section 52(1)(n) and 52(1)(o) apply only to “non-commercial” public libraries, which are nowhere defined in the Act. The 227th Parliament Standing Committee on HRD Report suggests that it was a deliberate choice not to define “non-commercial” so that there was room for judicial flexibility. However, this statutory silence still creates ambiguity when institutions attempt to define the term, resulting in narrower scopes.
In 2022, the NDLI launched India’s first Copyright Guide for Indian Libraries, which defined a non-commercial public library as any government-supported, public-access institution whose primary purpose is collecting, preserving, and providing public access to books and documents without a profit motive. This definition is problematic because why does a public library have to be funded by the government to be ‘non-commercial’? If an amendment allowing digital archives is sought, the scope of such provisions remains narrow because where would that leave digital archives hosted by university libraries or private institutions? A student should not worry about whether the university they enrolled in receives government funding.
Even if the “non-commercial” criteria were resolved, exceptions would remain tied to physical premises. In this trail of thought, Section 52(1)(p) is still somewhat flexible as it extends the exception to libraries, museums, or other institutions accessible to the public, depending on the case. That being said, could these ‘other institutions’ be a public website? Could it also include digital archives, online repositories, and similar e-learning spaces? Clearing ambiguity here is important to extend the exception to the electronic counterparts and move in the direction of the Access to Knowledge movement.
Now that we have addressed the scope and definitional limits of non-commercial public libraries, let’s delve into the conditional grant of permission to non-commercial public libraries, under Section 52(1)(n), to store digital copies of physical works for preservation purposes. The condition is that the library must have a non-digital copy of the work.
What was progressive once may not be progressive today. Back in 2012, it was great that physical libraries would not be disadvantaged if they scanned books to prevent physical copies from going bad. But in 2026, mere scanning and keeping digital copies is a small chunk of the institutions’ job. Real work lies in running CDL and active digital access. Preservation cannot exist in a vacuum. Dissemination of digital copies must be legally protected, or else institutions remain in a legal lacuna, and publishers would come after them when they see Digital Copies floating in the system.
Section 52(1)(n) applies only if a non-digital copy of the work is already available to the libraries. I think this doesn’t align well with the growing trend of ‘Digital India’, a flagship programme of the Government of India to transform India into a digitally empowered society and knowledge economy. Launched on July 1, 2015, the programme envisioned India moving away from the print era. So the prerequisite condition of already possessing a non-digital copy appears contradictory, as several academic institutions today are ‘online-only’, and significant materials are born-digital. The provision should factor into this change in how we consume research and knowledge today.
Next in the alter-queue is Section 52(1)(o) that allows the person in charge of a non-commercial public library or someone under their direction to make copies of a book (including pamphlet, sheet of music, map, chart or plan)- subject to conditions: the copies are for the use of library, not be more than three, and the work copied is not available for sale in India. The phrase ‘for the use of library’ is not up-to-date because, if it were, it would not ignore the pros that come with CDL- helping students and researchers from rural India to access geographically distant libraries remotely. Also, modern publications come with more than what the Section 52(1)(o) envisions. Many printed books have e-resources embedded in them. What about the protection when copying those electronic and mixed-media resources? The provision should not protect only literary and printed works. E-books and other electronic materials live up to the dream of mass-digitizing and scaling up public knowledge. However, downloading them would automatically create a permanent copy unless someone deletes it, or mandates deletion- rendering the cap of a maximum of three copies invalid.
‘The non-availability of books for sale in India’ condition would have worked had international e-commerce websites not existed because they enable digital work today to be technically “available for sale” globally. Since they do exist, differentiating books based on availability for sale would be a daunting task for the library staff.
At last, in the line of reform stands Section 52(1)(p), which applies strictly to unpublished literary, dramatic, or musical work kept in a library, museum or other institution to which the public has access, reproduced for research, private study, or with a view to publication. Here, the exemption extended to ‘digital reproduction’ would make sense as modern digital repositories rely on access control systems and watermarks to secure advanced remote research, protect the author’s copyright and prevent data theft.
The unique problem with this provision is that the work needs to be unpublished. What is published and what is archived? A very thin line. Imagine a museum digitally archiving a rare, historic unpublished manuscript. Would that be a publication, or a communication to the public, or simply archival? Answers to this would determine whether institutions are liable for copyright infringement. (Apart from making space for a digital archive, Section 52(1)(p) is also plagued by its proviso making libraries and museums wait for six decades before reproducing the works if the author is known, leading to a massive graveyard of orphan works- the works whose authors are known but are untraceable.)
Another provision that caught my eye during this research was Section 52(1)(zb), which was introduced in the 2012 Amendment to align with the Marrakesh Treaty. I think this section too can make some tweaks to benefit from fast tech for a very important cause. The provision only allows for adaptation by a non-profit organization, with specified Income-Tax registration or Government recognition. Whereas today, persons with disabilities benefit from advanced text-to-speech e-platforms, AI conversion tools, and online repositories. These advancements would call for a change in what constitutes an organization.
Ever since the landmark DU Photocopy Case (2016), it was recognized that educational access must take precedence over copyright monopolies and that the interpretation of law cannot and should not be in such a way that does not reflect the realities of our education system. But in an era of AI tools, interactive MOOCs, and e-libraries, students and institutions are constantly pushed into legal gray areas just to access soft copies and digital learning materials. I believe the government has an excellent opportunity to take a proactive step by engaging students, teachers, researchers, and academic institutions in the consultation process of a long-overdue amendment to level the playing field for digital access to knowledge in India. Students who are already navigating systemic hurdles in education should not have to face additional legal risks to access a book and its varied digital substitutes!
