Copyright law and the Academic Libraries - Inflibnet

Trends in Information Management (TRIM) ISSN: 0973-4163 8(2), pp. 111-122

Copyright law and the Academic Libraries: a perspective *

Lalitha Aswath † Anjaneya Reddy.N.M Abstract Purpose: The purpose is to emphasize the significance of copyright laws in the academic environment. The origin of the copyright law dates back to 1662 or 1710 of Queen Anne who set a pattern for formal copyright statutes at the international level and in India copyright regime came into practice with the Indian copyright act 1957, amended five times has richly influenced by British copyright act. But not many (even librarians) are aware of its existence and its enforcement, influence on library collection and library services. In India the legal position under the act is that only very specific activities are permitted as regards to libraries and library services and much needs to be done for copyright awareness. Methodology: This study has used general survey of literature and public opinion with regards to copyright issues. Findings: Not many were aware of the issues relating to copyright laws. Keywords: Copyright law, copyright and academic libraries, copyright and digital libraries, Indian copyright act. Paper Type: Conceptual.

Introduction opyright is connected with a creative artistic or literary expression. The copyrighted material can be a book, a picture, a sculpture, a painting, jewellery designs, a motion picture, music, or anything that is the result of a person’s creative mind that take a physical shape and has no function other than the beauty and relativity of the thing itself (Indian Copyright Act, 1957). Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work. Unlike a patent, the thing being copy righted must be functionless or useless. Copyright is protection on the expression of an artistic idea that is “Fixed in any tangible medium of expression”. The term “Fixed” means that the artistic expression is written on paper or painted on canvas or shaped in stone. Copyright laws prohibit other people from making copies of the “Fixed” tangible medium of expression.

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Professor and Chairperson, D.L.I.Sc., Bangalore University, Bangalore, India Allience University Library, Bangalore, India

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However, copyright only protects the expressive elements of a broad range of works including books, graphical works, dramatic works, choreography, musical compositions, sound recordings, films, sculpture, architectural works and computer programs. It does not extend to facts, ideas, or utilitarian aspects of such works in the form of an article, paper or a book, not the idea as such. Copyright law promotes creativity in literature and the arts by affording authors and artist’s lengthy terms of protection against copying. The concept of copyright is essentially a by product of modern society. In the ancient times, the works of art and literature were created to satisfy one’s curiosity in leisure time and as a consequence there of to build up one’s image in the society with the objective of achieving. The law relating to protection of copyright was developed after the innovation of the printing. The printing press has made it possible to produce a large number of copies of any work. In order to protect the work of an author for getting legal financial gain, an exclusive right for limited period is granted to the authors, composers, artists and designers of the original work (WIPO, 2012). Review of Literature Modern copyright law has been influenced by an array of older legal rights that have been recognized throughout history, including the moral rights of the author who created a work, the economic rights of a benefactor who paid to have a copy made, the property rights of the individual owner of a copy, and a sovereign's right to censor and to regulate the printing industry. The origins of some of these rights can be traced back to ancient Greek culture, ancient Jewish law, and ancient Roman law (Bettig, 1996). Copyright and intellectual property rights (IPR) have been established and extended over hundreds of years. Although initially developed to give a publisher control over the right to publish (copy) a work, they were extended to give rights to authors, painters, photographers, film producers, software writers, and many others. 'Access to information' is the exhortation of the recent past and today is essential in business, education, and research and has a direct impact on literacy levels, economic growth, and quality of life. Information hubs/houses like archives, libraries and museums, etc. have had a fundamental role to play in the development of a democratic society by enabling access for all members of the community to a wide range of knowledge, ideas, opinion as well as cultural, and scientific and educational information (Macqueen, Waelde & Laurie, 2007; Deazley, 2006). Copyright has become an issue in an ever growing digital library environment. These issues are like, Copyright of literary works; Exceptions to copyright; Preservation copies; Preparing for negotiation;

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Licensing agreement; Garnering of permission to digitize etc (Oppenheim, 2000). Ferullo (2003) gives an overview of some of the major copyright issues for libraries in a digital environment. The article explores how statutory and case law determines the path; libraries must take to accomplish their mission. Copyright law is complex and ambiguous. It poses many challenges for librarians, but it is crucial that librarians have a basic understanding of the various provisions of the law in order to make informed decisions. However, the law is only one part of the equation. The interpretation of the law by the courts must also be constantly evaluated for potential impact to libraries. Sheat (2004) suggests that libraries should keep abreast of International copyright standards and domestic case law to ensure their interpretation, legislation maintains a balance between the "public interest" and the rights of copyright owners to earn a living from their works. Myers (2005) writes how the libraries can help with online learning copyright issues. Online learning is a result of new copying technologies. Digital media can now be copied and distributed quickly, cheaply, widely, and with no degradation of quality. Bhatt, (2006) traces the issues related to copyright laws and their application to libraries. The Government of India's concern about the protection of the intellectual property of authors and the application of copyright laws in relation to the advent of information and communication technology are discussed. This article deals with the role of library and information scientists on the technological environment and advocates for the amendment of existing copyright laws, particularly the use of intellectual creation and thought content of the authors. Kumar (2009) elucidates the need for creating awareness among the creators of information and knowledge about IPR has become imperative because in the digital environment it becomes difficult to prove rights violation. Smith and Hansen (2010) presented the steps to achieve a user-friendly law on copyright renewal for libraries. These steps, which also elucidate the complexities of the U.S. law on copyright protection and fair use, include anti-circumvention exceptions, pre-emption of nonnegotiable contracts, and preservation options for sound recordings. Genesis of Copyright Laws The history of copyright laws can be traced back to 1662, when the concept was developed to protect publishers against piracy due to the technological advances, which made cheap and easy printing of books (Urs, 2004). During 18th century in England Queen Anne, around 1710, set a pattern for formal copyright statutes. England was followed by the United States in 1790 when the first U.S. copyright law was enacted by Congress and by France in 1793. Since then, the copyright laws have TRIM 8(2) July-Dec 2012

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spread worldwide and several International bodies came into existence to look into the copyright laws and their enactment. For example, International bodies like Berne Convention in 1886, the Universal copyright convention, 1952 and the Berne and Paris conventions in 1971. To make sure that conventions stay current and signatory countries observe them, a number of world bodies have been created mainly to administer the conventions. The World Intellectual Property Organization (WIPO) created in 1967, the U.N. Educational Scientific and Cultural Organization (UNESCO) and the World Trade Organization (WTO) are now charged with administrating the Trade-Related Aspects of Intellectual Property Rights (TRIPS). These organizations, together with National legislatures, keep these conventions and National copyright acts current through amendments. As stated earlier, USA, UK and several countries world over have made the provision of copyright in order to protect the legacy of human creation. India has the copyright law but Indian Copyright Act provides certain exceptions, generally referred to as “fair use” or “fair deal” includes reproduction of literary, artistic, or dramatic work for private use, research use, criticism, reviews, training and educational purposes. A few exemptions are also provided under the copyright acts of USA and UK under the term “Fair Use” though the copyright holders have become unhappy with the concept (Rikowski, 2003). Copyright Law: International Scenario Copyright law is one of the segments of the Intellectual Property Rights (Wagner, 1998). Intellectual property can be divided into two groups: (i) Intellectual Property which includes inventions, trademarks, industrial design and geographical indications; (ii) Copyright which includes: writings, paintings, musical works, dramatics works, audiovisual works, sound recordings, photographic works, broadcast, sculpture, drawings, architectural works etc. In UK, the Patents Act 1977, Copyright, Designs and Patents Act 1988 and Trade Marks Act 1994 are the principal statutes protecting intellectual property. However, the World Trade Organization (WTO) is the body, which envisages a single institutional framework for IPR issues. The WTO encompasses General Agreement on Tariffs and Trade (GATT) as modified by the Uruguay Round and all agreements and arrangements concluded under GATT auspices and the complete results of the Uruguay Round. The Uruguay Round of Multilateral Trade Negotiations concluded on 15th April, 1994 with final signature of 123 ministers. The eighth round of trade negotiations undertaken by GATT originally covered international trade rules with jurisdiction only at international border. In Uruguay Round, however, GATT extended to three new areas in its scope i.e. investment, intellectual property rights, TRIM 8(2) July-Dec 2012

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and services. In addition, it now also covers agriculture and textiles, which were outside GATT purview. The Intellectual Property Rights (IPR) comes under the domain of GATT. The object of TRIPS is to reduce distortions and barriers to international trade, by taking into account the need to promote effective and adequate protection of IPR’s and to ensure that measures and procedures to enforce intellectual property rights do not become barrier to the legitimate trade. The World Intellectual Property Organization (WIPO, 2012) is a specialized U.N. agency to deal with Intellectual Property Rights. The term IPR refers to the following categories of intellectual properties covered under sections 1 to 7 of Part II GATT, 1994. Section 1 deals with copyright and other related rights; Section 2 is on Trademarks Section; Section 3 has the provisions for Geographical indications; Section 4 deals with Industrial Design; Section 5 has laws related to Patents (including micro organisms and plant varieties); Section 6 has Laws for Layout design (Topographies) and Section 7 deals with Protection of undisclosed information. As per the Section 1 of Part II GATT copyright law covers the following: 1. Rights for reproduction, i.e. exclusive rights to make copies of the work. For the purposes of this right, a copy of any work can be in any form in which the work is fixed and from which it can be perceived, reproduced or communicated either directly or with the help of a machine. 2. Rights for modification/adaptation, i.e. exclusive rights to modify and make adaptations and create derivative works. A work in a different medium such as a film as compared to a book is an adaptation or a derivative. 3. Rights for distribution, i.e. the rights distributes the work to the public. 4. Rights for public performance, i.e. the right to recite, plays, dance, or act with or without the aid of a machine. Copyright protection automatically subsists in all works of authorship from the moment of creation. The TRIPS Agreement provides a minimum standard for the duration of copyright protection. In the case of a person, the term is the life of the author plus 50 years. In the case of a corporate entity, it is 50 years from the end of the calendar year of authorized publication or, in the absence of publications, from the end of the calendar year of making (TRIPS Article 12). The term of protection for live performances that are recorded is 50 years for the performer and producer, and 20 years for the broadcaster of the work. The United States recently upgraded its protection for copyrighted works as part of the Digital Millennium Copyright Act, or DMCA. If the work is made for TRIM 8(2) July-Dec 2012

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hire, the copyright lasts for 120 years from the time of creation of 95 years from the first publication, whichever is shorter. However, there are a few exceptions to the Copyright laws. They are: 1. Libraries and archives are permitted to make up to three copies of unpublished copyrighted works for the purposes of preservation, security or for deposit for research use in another library or archive. Libraries can also make up to three copies of a published work to replace a work in their collection if it is damaged, deteriorated or lost, or the format of which has become obsolete. 2. For Fair Use. The definition of the term ‘Fair Use’ needs to be explained in the light of the following facts:  It should be used for non-profit educational purpose, not for commercial purpose.  Nature of the copyright work  Whether the whole work has been copied or small part of the work is copied. 3. The matter of disposition of a particular copy of a copyright is limited by the first sale doctrine, according to which the owner of that particular copy of the work may sell or transfer that copy. Libraries lending and marketing of used books are governed by the first sale doctrine. Copyright Law in India The Indian Copyright Act, 1957 came into effect in independent India from January 1958. This Act has been amended five times since then, i.e., in 1983, 1984, 1992, 1994 and 1999, with the amendment of 1994 being the most substantial. Prior to the Act of 1957, the Law of Copyrights in the country was governed by the Copyright Act of 1914. This Act was essentially the extension of the British Copyright Act, 1911 to India. Even the Copyright Act, 1957 borrowed extensively from the new Copyright Act of the United Kingdom of 1956. The Copyright Act, 1957 continues with the common law traditions. Developments elsewhere have brought about certain degree of convergence in copyright regimes in the developed world. In 1999 some of the amendments, which were made, are: 1. Increased term of copyright of performers from 25 years to life time of author plus 60 years in case of single author and in case of joint author last surviving author plus 50 years to 60 years. 2. Amendment definition of literary works 3. Meaning of copyright in respect of computer programmes 4. New provisions pertaining to power of Government of India to apply the provision relating to broadcasting organization and performers of broadcasting organization. (Indian Copyright Act, 1957) TRIM 8(2) July-Dec 2012

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The infringement of copyright is punishable with imprisonment for 6 months to 3 years with a fine of rupees fifty thousand to two lakhs if it is committed first time and in case of second time and more if the infringement is committed, the person shall be punishable with imprisonment for a term not less than 1 year up to 3 years and fine of rupees one lakh to two lakhs. The law permits any police officer with the rank of sub-inspector or above to arrest responsible person without any warrant and produce him before the court of a Metropolitan Magistrate or a first class Judicial Magistrate provided he/she is satisfied that offence has been or is being or is likely to be or committed. In addition, the Government of India has taken various steps to bring about changes in the administration of copyright law in the light of the provisions made in the Agreement on Trade-related Aspects of Intellectual Property Rights. India has participated in many bilateral arrangements or multilateral international treaties and conventions concerning intellectual property rights, which have a bearing upon the nature of amendments in her national laws. In order to get implemented the copyright law and the IPR regulations, India has the membership of number of international bodies. Government of India has also established several organizations in order to create awareness about the Intellectual Property Rights among the research scholars, scientists, industrial communities and policy makers. For example, a Patent Facilitating Cell, now called as Patent Facilitating Centre (PFC) was set up by the Department of Science and Technology under the Technology Information Forecasting and Assessment Council (TIF AC) in 1995 which publishes a monthly bulletin to provide information on IPR and the same bulletin is circulated free of cost to more than ten thousand persons in the country. Similarly, the CSIR enunciated a formal policy on IPR on 5 October 1995. The CSIR publishes a journal, Journal of Intellectual Property Rights to create awareness about the IPR and its need in the changing scenario. The Department of Biotechnology (DBT) created a single window Biotechnology Patent Facilitation Cell in July 1999 for scientists handling R&D projects relating to biotechnology. Similar efforts have also been initiated by CSIR and the Department of Atomic Energy and Indian Council of Agricultural Research. IPR issues in the IT sector assumed significance due to emergence of digital economy. In order to build up greater awareness on such issues, the Ministry of Information Technology has set up an IPR Cell. The Cell has launched awareness programs in public sector undertakings in the industry, and scientific societies under the Ministry. Likewise, country’s institutions of higher learning especially in the field of Science and Technology have also set up a policy for the protection of the Intellectual Property Rights. For example, Indian Institute of Technology, Delhi declared its policy on TRIM 8(2) July-Dec 2012

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Intellectual Property Right and the document is published by the Institute in 1994, and the Indian Institute of Chemical Technology, Hyderabad too, has such a policy for the protection of Intellectual Property of their scholars and scientists. Not only Government of India, but also many private organizations and corporate bodies do have industrial property cells. For example, the Institute of Intellectual Property Development (IIPD) is an industry initiative and promoted by the Federation of Indian Chambers of Commerce and Industry. This institute aims at promoting the patenting culture amongst the scientific and technical community and use IPR as a strategic tool in forwarding business interests. Likewise, Society for Research and Initiatives for Sustainable Technologies and Institutions (SRISTI) help protect IPR of grassroots innovators. SRISTI has got support from several patent attorneys within the country and abroad to get patent on farmers’ innovations. Libraries and Copyright Networks of libraries and information services are important channels of communication in society. They are gateways to the creation of knowledge accumulated over centuries and documented until recently mainly on print media. Libraries have been instrumental in all aspects of development in society by providing continual information back-up services to sustain economic growth of nations, liberation of the masses and their education. Without the provision of library services and materials to support education, research and the supply of information for the improvement of trade, social and economic progress would not have been on such level (Gasaway, 1996). As a transmission agency for communication of knowledge, ideas and information from creators to end-users, libraries are definitely concerned with copyright legislations. They have been for years collecting and processing works of authors and making these available to the library patrons. Even in the modern electronic era, libraries are continuing to provide access to the mass of electronic materials published world-wide. However, rigid copyright legislations aiming exclusively to bring commercial benefits to copyright holders without considerations to other social issues are counterproductive. It is an undisputed fact that authors have to be rewarded for their works which are their intellectual properties. Others should not be permitted to derive commercial benefits illegally from their works. However, the same works need to be brought to the notice of users and made accessible to everyone - students, researchers and the public without infringing on the rights of the creators of the works. The copyright legislations protect the rights of the creators while access to the materials is provided by libraries under certain conditions. The two TRIM 8(2) July-Dec 2012

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imperative needs of safeguarding the rights of the creators and providing access to the work by the public are satisfied when copyright legislations ensure sufficiently the protection of owners’ rights and at the same time provide exception clauses for users and more particularly to libraries and archives. The policy of “fair use” in USA which allows copying of copyrighted materials for educational and non-profit purposes is aligned on this progressive approach to copyright. It is important for society to allow users access to the ideas, knowledge and information contained in copyrighted materials. Just like the creators have access to other materials in creating their work, new researchers should equally have access to ensure progress and continuity in the pursuit of new knowledge and for the advancement of science. Scholarly research and communication are impaired if all copyrighted materials are inaccessible or are exclusively available through purchase of the rights for use. For developing countries, the case may be even more disastrous as lack of funds dramatically limits their acquisition programs (Nisbet, 2003). For these reasons that the International copyright regime provides countries with some flexibility in creating exceptions and limitations to their National copyright laws for libraries and archives. However, under pressures from powerful groups, many countries have introduced regulations which have strengthened and extended owners’ rights while shrinking the limitation and exception clauses to copyright for libraries and archives. This has resulted in a dangerous imbalance which may hinder future research and scholarly activities. Libraries dependent on these exception and limitation clauses of copyright acts to develop library services expand accessibility and support the research needs of users. Copyright and Digital Library Readers will have extensive set of choices for obtaining digital information and entertainment (James, 2005) as they now have for printed and analog sources. The library will be only one of innumerable choices. What will distinguish the digital library from all other providers of digital information and entertainment will be the way in which it assists readers in exercising their fair use rights-and in advancing the Constitutional purpose of the copyright law. For example, libraries might institute electronic document delivery services for journal articles that build on the cost advantage copyright law intentionally gives to readers and their libraries. The commercial service is obligated under the law to collect and pass on some kind of royalty fee, but libraries under the law are permitted to make fair use of material without collecting or paying a royalty fee. This is not meant to discourage patrons from using a commercial service. But in fact libraries have an advantage over commercial services (Grosso, 2002). The key copyright strategies for such TRIM 8(2) July-Dec 2012

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a service will be to use materials the library has purchased, to respond efficiently to uncoordinated individual requests for copies, and to transfer the copies made completely to the reader, retaining nothing at the library and making no profit on the transaction. The Future of Preservation The restriction and conditions in the protection, copyright laws (Radcliffe, 1999; Oppenheim, 2000) have proven to be seriously problematic in an era of digital libraries and the need to capture large volumes of content that is at risk of loss. Various official agencies have given the issue fresh examination and issued some proposals for possible revision of the copyright law, or at least the development of acceptable practices. Some of the most significant developments have occurred in Europe and in the United States. Future changes in library exceptions occur through legal change or other means, these official examinations of current copyright law underscore the general problem of enacting specific laws at a time of rapid change in technology, library practices, and access to diverse copyrighted works. These initiatives from the E.U. and the U.S. also reflect significantly different approaches to problems with existing law. In both cases, the groups that studied the problems and offered proposals comprised experts in the field and representatives of diverse stakeholders. The European proposal is based on the premise that the stakeholders can reach a solution that libraries, publishers, and others could accept as a matter of cooperation. The U.S. proposal is built on the assumption that any solution must come from Congress. The appropriate solution may depend on multitudes of factors and will likely vary greatly among different countries. Regardless, the continuing high-level attention given to the problem of copyright and preservation tells much about the importance and the complexity of the issue, and the likely need for change if the copyright laws are to be reasonably effective in a time of secure change. Conclusion The copyright laws play a vital role in providing information to the end users in a digital environment. Rapid emergence of electronic information media and vastly lower costs for copying, the monopolistic power of the copyright holder is increasingly the primary obstacle to unfettered use of publications. It follows that explicit statutory limitations on copyright monopolies become much more important (critically important) to the future of libraries. The future identity and effectiveness of libraries, most particularly research libraries, will rest largely on the ways in which they


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exercise statutory limits on copyright monopolies to serve readers' needs, advance education, and promote science and the usefulness. References Bettig, R. V. (1996). Copyrighting culture: The political economy of intellectual property. Boulder, Colo: Westview Press. Bhatt, R. K. (2006). Copyright Law and Libraries: Current Scenario. Journal of Library and Information Science Delhi, 31 (2), 141-151. Deazley, R. (2006). Rethinking copyright: History, theory, language. Cheltenham, UK: Edward Elgar. Ferullo, D. (2003). Major Copyright Issues in Academic Libraries: Legal Implications of a Digital Environment. Journal of Library Administration, 40 (1/2), 23-40. Gasaway, L. (1996). Libraries, educational institutions, and copyright proprietors: The first collision on the information highway. The Journal of Academic Librarianship, 22 (5), 337-344. Grosso, A. (2002). Why the Digital Millennium Copyright Act is a Failure of Reason. Communications of the ACM, 45(2), 19-24. Indian Copyright Act. (1957). Retrieved from http://copyright.gov.in James, T. C. (2005). Digital Technology and Libraries: A Copyright Law Approach. Annals of Library and Information Studies. 52(1), 1-7. Kumar, N. (2009). Library Vendor /Publisher Interface. International Conference on Academic Libraries-2009 (ICAL-2009), Delhi, 5- 8 Oct 2009 (pp.427-431). University of Delhi (North Campus), Delhi. MacQueen, H. L., Waelde, C., & Laurie, G. T. (2007). Contemporary intellectual property: Law and policy. Oxford: Oxford University Press. Myers, S. (2005).The Role of Copyright Law in Libraries: Encouraging Compliance by Librarians and Patron. The Journal of Academic Librarianship. 31 (3), 182-97. Nisbet, M. (2003). Copyright issues remain hot in 2003. The Journal of Academic Librarianship, 29 (3), 137-139. Oppenheim, C. (2000). Legal issues for information professionals VI: Copyright issues in digitisation and the hybrid library. Information Services and Use, 20 (4), 203-209. Oppenheim, C. (2000). Does copyright have any future on the internet?. Journal of Documentation, 56 (3), 279 – 298. Radcliffe, M. (1999). Digital Millennium Copyright Act: Forging the Copyright Framework for the Internet: First Steps. Journal of Internet Law, 2(9).


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Rikowski, R. (2003). TRIPS into the unknown: Libraries and the WTO agreement on trade-related aspects of intellectual property rights. IFLA Journal, 29 (2), 141-151. Sheat, K. (2004). Libraries, copyright and the global digital environment. The Electronic Library, 22 (6), 487-491. Doi: 10.1108/02640470410570785 Smith, K. L., & Hansen, D. R. (2010). Copyright and Authors' Rights: A Briefing Paper. Research on Institutional Repositories: Articles and Presentations.Paper53. Retrieved from http://digitalcommons.bepress.com/repository-research/53 Urs, S. R. (2004). Copyright, academic research and libraries: Balancing the rights of stakeholders in the digital age. Program: Electronic Library & Information Systems, 38 (3), 201-207. Wagner, K. I. (1998). Intellectual Property: Copyright Implications for Higher Education. Journal of Academic Librarianship, 24, (1), 1119. WIPO (2012). World Intellectual Property Organization. Retrieved from http://www.wipo.int/portal/index.html.en Corresponding Author Lalitha Aswath can be contacted at: [email protected]


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