Digital Technology and Libraries: a Copyright Law Approach
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Annals of Library and Information Studies 52, 1; 2005; 1-7 ~.!q)t~ . ..& . ., ., . ..(. DIGITAL TECHNOLOGY AND LIBRARIES: A COPYRIGHT LAW APPROACH . ,.' ..A..-. ,,_, T. C. James .. J. - ' Deputy Secretary ... - Department of Industrial Policy and Promotion - - Udyog Bhavan New Delhi - 110 011 Email: tcj 8 ub.nic.in Digital technology gives libraries an excellent opportunity to collections are digitised and the members/users are improve their services. It also provides new ways of connected through an lntranet or Internet. preservation and dissemination of library collections. But the different stages of digitisation of the materials in a library involve many copyright issues. There are legal problems and purely This transformation of a library from a building to practical ones such as locating the owner of copyright. an electronic portal is attended with many copyright Librarians need to take note of these problems and explore issues. This paper is an attempt to look at some of possible solutions. This paper attempts to focus attention on the major copyright law issues connected with the major copyright problems involved in digitisation of library automation of library services and digitisation of its collections. collection INTRODUCTION - 9' The metamorphosis of a traditional library into an The advent of digital technology has altered the electronic one starts with automation of its concepts and methods of storage and dissemination cataloguing services. The index card boxes are of data. This has naturally affected library services. replaced with computers c~ntainingelectronic Libraries, being storehouses of data and information catalogue, making the search easier and faster. In expressed in a fixed form such as books, have the second phase the collections are digitised and always availed of the advantages provided by made available at the premises. In the third phase technological innovations in storing and the digitised works are uploaded and made available disseminationof knowledge. The digital technology, through the Net. Copyright issues emerge in the unlike the past ones, directly affects the working of second and .third phases. a library. COPYRIGHT LAW OF INDIA Over the centuries, library was a place where books In order to make the issues comprehensible, it is and other records were preserved and made necessary to give a brief introduction to the copyright available to patrons at the premises itself. With the law of India. advent of printing technology which made possible prodaction of multiple copies of a book with the Copyright is one of the important intellectual possibility of easy replacement of a lost copy, property rights and Lik~therintellectual property lending of books to patrons so that they can take rights, protects camtents and not containers. The them out of the premises came into existence. The properties protmtedby copyright amreferred to as digital technology has now made it possible for a works. These include literary, dramatic, musical and library to break the shackles of space and time. It artistic works, cinematograph films and .sound can reach out to the user at his home. It can now recordings. The definitions of the works are such issue any number of copies of a work to any number that most of original expressions in the above.fields, of users spread over the globe simultaneously irrespective of their literary, artistic or aesthetic provided the library is fully automated and its quaiities, are covered by copyright provided they 2 Vot 52 No 1 March 2005 James T C are original. Although originality of expression is a certain special rights m,generally referred to as criterion for copyright protection, the degree of moral rights. These are the rights over authorship originality demanded is not very high. Ordinarily it and integrity. Acts prejudicial or detrimental to the means that the work should not have been a copied personality of the author are considered an one and should be the result of the labour and skill infringement of his special rights. These special of the person who claims to be the author. Thus a rights are inalienable. ,~oliticaltract or a memorandum issued by a local lxithority can claim copyright even 'if 'they do not Like other intellectual property rights, copyrights are have any literary merit. Computer programmes are also for a limited period. In the cases of literary, considered as literary works. dramatic, musical and artistic works published during the life time of the author, the rights last until The person who creates the work is considered the expiry of sixty years following the death of the author, author and the copyright ownership generally rests the count down starting from the calendar year with the creator, i.e., author of the literary work, following the death of the author [8].In other cases composer of the musical work, dramatist of the it is sixty years from the year of publication [9]. After dramatic work and artist of the artistic work [I]. In expiry of the copyright, the works can be freely used. the case of a cinematograph film and a sound Even when copyright exists in a work there are recording, the owner is the producer [2].There are certain uses which are permitted. These, inter alia, exceptions to this like when the person created the include a fair dealing with a literary, dramatic, work as part of his employment, in which case the musical or artistic work for the purpose of private ownership passes on to the employer [3].In the use, including research, criticism, or review, case of a government work, the first owner is the reporting current events, certain uses by legislature government, and that of the work of a public and judiciary and so on. The Copyright Act permits undertaking or an international organisation it is that reproduction of the following works [I 01: undertaking or the organisation as the case may be €41. In.the case of a painting done or a (i) Matters publjshed in any Official Gazette cinematograph film made or a photograph taken except an Act of a Legislature; for valuable consideration the ownership goes to (ii) Any Act of a Legislature subject to the the person who has paid for the valuable condition that such Act is reproduced or consideration. publishedtogether with any commentary thereon or any other original matter; Copyright is not a single right but a bundle of rights. (iii) Report of any committee, commission, It, inter alia, includes the rights of reproduction, council, board or other like body issuing of copies, communication to the public, appointed by the government if such adaptation, and translation. These are transferable report has been laid on the Table of the rights. The owner can transfer the rights through Legislature, unless the reproduction or assignments or testamentary dispositions or publication of such report is prohibited through inheritance [5]. The assignments can be by the government; in respect of one right or more than one right or (iv) Any judgement or order of a court, even all the rights. The owner can also licence a Tribunal or other judicial authority, unless person to do any specific act which is his exclusive the reproduction or publication of such right without transferring the right. The Indian judgement or order is prohibited by the Copyright Act also enables an author to relinquish court, the Tribunal or other judicial his copyright [6]. Therefore, if an author has authority, as the case may be. relinquished his copyright in a work, that work would be o t of copyright regime. Libraries are given certain specific rights in this Y regard. These include the following: Apart from the above-mentioned rights, which are (a) The making of not more than three copies of referred to as economic rights, the author has a book (including a pamphlet, sheet of music, Ann Lib Inf Stu DIGITAL TECHNOLOGY & LIBRARIES: A COPYRIGHT LAW APPROACH map, chart or plan) by or under the direction which are the exclusive right of the owner. Otherwise of the person in charge of a public library for it would be an infringement with attendant penalties the use of the library if such book is not [15], which range from imprisonment for periods available for sale in lndia [II]. between six months and three years with or without fine. The ownership of copyright being a (b) The reproduction, for the purpose of research transferable one it& necessary to ascertain who is or private study or with a view to publication, the current owner of copyright before taking of an unpublished literary, dramatic or measures to obtain permission. musical work kept in a library, museum or other institution to which the public has DIGITISATION AND COPYRIGHT access The rights that come into play in the ordinary course Provided that where the identity of the in the digitisation of a work by a library are the rights author of any such work or, in the case of of reproduction and adaptation. Reproduction a work of joint authorship, of any of the includes the storing of a work in any medium by authors is known to the library, museum electronic means [I61. Adaptation includes or other institution, as the case may be, rearrangement or alteration in a work [17]. During the provisions of this clause shall apply digitisation, sometimes rearrangements may have only if such reproduction is made at a time to be made in a work which would attract the right more than sixty years from the date of of adaptation. the death of the author or, in the case of a work of joint authorship, from the death Digitisation is the process of converting a work into of the author whose identity is known or, a binary language that can be read by a computer.