Access and Use of Archival Records: Copyright
This chapter covers the application of the Copyright Act to archives, fair dealing and exemptions, the public domain, reproductions, defamation, liability, preservation, digitisation and public displays.
Scenario: An archive has a number of records of historical importance – published and unpublished manuscripts, artefacts, letters and photographs among them. The archive intends to collect and organise these records, provide access to researchers to study and copy them, make digital and physical preservation copies of the records, and occasionally display them to a wider audience.
When the archive provides access to records or reference services, or makes use of records for the purpose of preservation, digitisation or display, there are various legal considerations it must keep in mind. What is the copyright status of the records, and how does this affect their use or access? What kinds of exemptions might the archive avail itself of in order to promote wider access to important scientific history?
Collecting, maintaining, and providing access to records under the custody of an archive is one of the primary responsibilities of an archivist. Undertaking this responsibility requires archivists and archival institutions to navigate a range of legal issues pertaining to the manner in which archival records may be used. This section explores how certain laws like copyright law, defamation law or media regulations can impact the work of archives, and how these may be navigated. It will also explore the implications of law in the access and use of records by archives.
Copyright in Archival Records
Perhaps the foremost legal consideration in archival access and use is the issue of intellectual property rights within archival records under the custody of the archive. This applies particularly to copyright, which is a set of rights that restricts the use, particularly the copying, of various kinds of media, including many of the records and material that archives might deal with, including in the form of documents, digital files, tape, and microfilm, among others (these will be termed as copyrighted ‘works’ in copyright law).
Copyright laws fundamentally shape access to information and knowledge, and are essential to archiving as a practice, and archives as institutions preserving historical knowledge. Apart from navigating the practicalities of copyright law, understanding copyright law is also necessary to examine how concepts like public domain, copyright terms and fair use shape ideas of the role and function of archives in society more broadly.
Archives may need to exploit various copyrights in the course of their work.
One common activity in which archives use copyright is in making copies of records in order to facilitate access to records by researchers, or facilitating the making of copies by researchers. Further, the preservation of particular records may require an archive to make a copy (either physical or a digital copy) of the record, including by transmitting it into a different medium, particularly through digitisation. Similarly, replacing a damaged manuscript could also require copying. Often, incidental activities of archives might also implicate copyright, such as allowing particular records for public viewing and display.
In India, copyright law is largely codified and captured under the Copyright Act, 1957. This Act defines the scope of copyright, including when works are considered copyrighted, the rights conferred by copyright, as well as important exceptions to these rights. The Copyright Act must be read in conjunction with judicial pronouncements which clarify or declare the meaning of these provisions.
What is the Scope of Copyright Law?
According to Section 13 of the Copyright Act, the following works are capable of being copyrighted:
- original literary, dramatic, musical and artistic works;
- cinematograph films;
- and sound recordings.
Each of these works should be interpreted as per the explicit definitions provided under the Copyright Act, as well as by their plain meaning. For example, ‘literary works’ include all manner of manuscripts or letters (plain definition) as well as computer programs and databases (as per the definition under Section 2). Similarly, ‘artistic works’ include paintings, sculptures, drawings or photographs, or any other work of ‘artistic craftsmanship’ (Section 2(c)).
The ‘originality’ of a work has to be determined on a case-to-case basis. In order to claim originality, the work must display a ‘minimum degree of creativity’, and the work must not merely be rote or mechanical. For example, the mere compilation of records or documents or the mere selection and arrangement of text from other sources has not been considered copyrightable.
It is important to keep in mind that copyright protects the unique, fixed expression of a particular idea. The law does not allow for copyright in an idea per se. Copyright law makes a distinction between ‘ideas’ and expressions of an idea, and protects only particular material expressions of an idea. For this reason, copyright law does not protect facts or ‘data’. This includes scientific principles or mathematical formulae, for instance, which cannot be expressed in any other material form.1 However, compilations of data or facts arranged in particular works may be deemed to be ‘original’ enough to warrant copyright protection, in particular circumstances. In practice, it should be assumed that any original creations that display some amount of skill, labour and creativity from the author are subject to copyright.
Special Categories of Work (Broadcast and Performance)
In addition to the copyrights under Section 14, the Copyright Act also creates certain special rights for particular categories of works. Section 37 of the Copyright Act creates a special category for ‘broadcast reproduction rights’, which lasts for 25 years from the date of the broadcast, and protects against unlicensed re-broadcasting.
Similarly, Section 38 of the Copyright Act protects the ‘performer’s right’. Performance here refers to “any visual or acoustic presentation made live by one or more performers.”2 The performer’s right protects the right of a performer to license any sound or visual recording of their performance, or to broadcast or communicate such performance to the public.
The Copyright Act also provides exemptions to broadcast reproduction rights and performer's rights, as applicable under Section 52, as well as for the purposes of private use, teaching, review or research.3
Scenario: An institution working with indigenous communities intends to produce and archive oral histories. A number of considerations relating to ownership and copyright should be kept in mind. Copyright in the spoken words of the participant or interviewee would normally vest with the participant as an original literary work, once it has been ‘fixed’ in some material form like a transcription or a tape. Similarly, the authorship of the interviewer’s words will vest with the interviewer themselves (and ownership may vest with the interviewer or their employer, according to the context).
In the case where an oral history interview has an audio recording, there will also be a separate copyright in the sound recording of the particular spoken words of the participant. The ownership of copyright in the sound recording will vest with the producer or the person who makes the sound recording – normally the interviewer themselves (or their employer).
In considering issues of ownership, access and use of copyrighted material in the recorded oral histories, the archive must clarify in the consent release form how these various copyrights are to be utilised, and whether they are being licensed or assigned to the archive or the interviewer. Keeping in mind the ethical considerations outlined in Chapter 6, the archive may wish to allow the participant to keep ownership of the copyright, but still allow its broader dissemination and use in non-commercial contexts, for example, through the use of a Creative Commons license.
Term of Copyright (Temporal Scope) and the Public Domain
Copyright subsists in works from the moment of their creation – regardless of whether the works are registered and without the requirement of any particular procedure for claiming ownership. However, copyright provides ownership rights that are limited in time. The temporal scope of different kinds of copyrighted works are provided in the Copyright Act, 1957.
For literary, dramatic and musical works, copyright subsists for 60 years from the death of the author of the work. Where there are multiple authors, 60 years is calculated from the death of the last surviving author.4
Where the author of a particular literary, dramatic or musical work has died prior to the work being ‘published’, such works are termed as posthumous works, and the term of the copyright for these begins from the first day of the year after the work is first published, and extends to 60 years from that date. Similarly, if a work is published anonymously or pseudonymously (where the author’s identity is not disclosed), the copyright term will be for 60 years from the first day of the year after the work is published. (For example, if a photograph is anonymously published in a magazine on January 10, 2020, the copyright term for that photograph will be 60 years from January 1, 2021).
For cinematograph films and sound recordings, as well as where the owner of the copyright is the government or public undertaking, the term of copyright is 60 years from the end of the year in which the work is published.
All works beyond the temporal scope of the Copyright Act are considered to be in the ‘public domain’ and are free to use for the purposes of copyright. Therefore, if the author of a literary work died in 1957, the term of copyright would be 1957 + 60 years, and therefore would have expired in 2017.
(Note that prior to the enactment of the Copyright Act, 1957, the Copyright Act, 1914, was in force, which applied the UK Copyright Act of 1911, subject to some modifications. According to that law, the term of copyright protection was 50 years from the death of the author.5)
Finally, the Indian Copyright Act applies not only to works produced in India, but to works that were first made or published outside India, provided that these works were made in countries that are signatories to the The Berne Convention for the Protection of Literary and Artistic Works.6
Published and Unpublished Works
Many archives might deal with works that have been published – for example, film or audio-visual archives, or those which work with records of particular governmental institutions. Usually, however, archives have to work with unpublished material, which has not previously been made public. For archivists, it is important to understand the distinction between published and unpublished works when assessing whether something may be ‘freely’ published as belonging in the public domain, or when reasonable steps should be taken to secure permissions to exploit copyrights. It is therefore essential to understand how these different forms are to be treated for the purpose of copyright.
The concept of publication under copyright law refers to a specific factual scenario that triggers various legal consequences. For example, copyright is normally granted for 60 years from the ‘publication’ of a work. Section 12 of the Copyright Act defines the act of publication as "making a work available to the public", either by "issuing copies" or by "communicating the work to the public". Issuing copies implies distribution of the material, while communication to the public implies displaying the material in a manner where it is accessible to the public. Such distribution must be intended to be for a general or targeted ‘public’, and the private circulation of a particular archival record would not generally constitute publication.7 In making this distinction, archivists should consider both whether the record was intended to be a ‘public’ document, for example, if it was put up for sale to the general public, as well as whether copies were supplied, or whether it was only intended to be for private use.
As per the terms of the Copyright Act, unpublished works are also subject to copyright.8 However, the Copyright Act does not explicitly mention the term for which copyright in unpublished works subsists. The recognition of copyright in unpublished works, coupled with the silence on the term of copyright for unpublished works creates the anomalous situation that copyright in unpublished works may subsist for eternity, and that they may never enter the public domain. While there is no clear answer to this anomaly, there are important exemptions to copyright law for previously unpublished material used by public-facing archives, which allows archives to publish them or to provide some kinds of access to these records.9
When is Copyright Infringed?
What kinds of rights does copyright bestow on the owner? Section 14 of the Copyright Act determines which rights are associated with copyright in different kinds of works. For example, the right of reproduction is the most elemental right conferred by copyright. Making a copy (including a digital copy) of a copyrighted work is prohibited unless permitted by the owner or by exceptions to the Act. This right of reproduction includes the right to ‘format shift’ or digitise records, which has implications for archival practice.
Similarly, literary, dramatic and musical works cannot be ‘communicated to the public’, namely, published or displayed publicly, without copyright clearance. In addition to these, Section 57 of the Copyright Act also recognises certain ‘special rights’, known as moral rights. These rights include the right of the author of a work to claim authorship of a work, as well as to prevent destruction of their creation that may be prejudicial to their honour or reputation. These rights apply even when the copyright itself has been assigned or its term has ended.
Exceptions to Copyright Infringement
Scenario: An archive wishes to copy its records for a number of reasons. It must digitise an old manuscript to ensure its contents can still be made accessible. It wishes to make multiple copies of a workbook in order to lend these to external researchers at a different institution. Or it wishes to digitise some copies and make them available to the wider public through its website. However, it is unable to obtain clearance to use copyright for these actions, either due to the prohibitive costs, or due to the difficulties in locating and getting permission for the use of copyrighted works. In these cases, the archive may avail of specific exemptions under the law, where it does not need the permission of the rights owners for making copies or using the copyrighted work under particular conditions.
Copyright can be a substantial and structural hurdle to promoting the use and access to archival records, particularly given the lack of clarity about copyright ownership in archival records and systematic difficulties in obtaining clearances to copyright (through licensing, acquisition, or otherwise).
The Copyright Act recognises that copyrights can often limit important public values and public functions performed by archives and archivists, and therefore provides for important exceptions to the use of copyrighted works without obtaining clearances of permissions from the owner of such works (or through other means of acquisition as detailed in Chapter 1).
Section 52 of the Copyright Act provides for crucial exceptions from copyright, for activities that would otherwise constitute copyright infringement. These exemptions are considered as ‘user rights’ that are important aspects of the public policy sought to be furthered by the Copyright Act.10
Some of these exceptions are particularly important for archival institutions:
Section 52(1)(a) provides that the ‘fair dealing’ with any work for the purpose of private use, including research, or for criticism or review, or to report a current event, is not considered copyright infringement.
This is one of the broader exemptions or rights available to users, which archives should facilitate. Users of archives may rely upon this to make copies of works for private study, including for their own research, as long as it is not publicly disseminated. They may also copy works where they are incorporated in subsequent works where there is a criticism or review of the work, or to report on any current event. Each of these uses is subject to the condition that the copying or the use of the work is ‘fair dealing’.
What constitutes ‘fair dealing’ is highly contextual and fact-specific. As interpreted by courts, a fair dealing analysis takes into account (i) the quantum and value of matter taken in relation to the criticism, (ii) the purpose for which it was taken and, (iii) the likelihood of competition between the two works.11
Archives may rely on this exception to provide copies and access to records for researchers, where they have a good faith belief that the copying is for such reasonable purposes including private research or criticism. To the extent possible, archives should obtain indemnities and undertakings from users or researchers regarding the nature of their use of archival records, including for further copying and/or display.
Digitisation by Non-commercial Public Library
Section 52(1)(n) permits the digitisation of a work by a ‘non-commercial public library’, provided the library is already in the possession of a non-digital copy of the work. This exception is particularly important for digital preservation of non-digitally born works, although it does not explicitly permit the further copying or distribution of such a work once it is digitally reproduced.
The Copyright Act does not define what constitutes a ‘non-commercial’ library. It defines a non-profit library as a library or educational institute that receives grants from the government or is exempt from the payment of Income Tax. The dictionary meaning of ‘library’ overlaps to an extent with the function of many archives, as institutions for preservation and access to published or unpublished material. If the archive falls within these categories, it may assume itself to be a ‘non-commercial public library’ and can avail of this exemption. While there is no clear definition of a ‘non-commercial’ library, archives that perform the function of allowing their collections to be accessed by the general public, and do so without a commercial motive, will fit within this definition. The guidebook on copyright law published by the National Digital Library of India interprets a ‘non-commercial public library’ to mean an institution “(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.” 12 An archive which operates with a non-commercial incentive within a for-profit institution may also be considered a non-commercial library if it provides access to the public without a commercial incentive. Taking the example in the scenario above, if the archive is not a commercial, profit-making venture, and it is allowing access to the general public (under specified conditions), it may make as many copies of a work as required for the explicit purpose of preserving this work, for example, by digitising microfilm or a manuscript that is deteriorating, without acquiring copyright. However, this does not allow it to distribute the digitised work to any members of the public.
Copies of Books Not Available for Sale in India
Section 52(1)(o) allows for the making of not more than three copies of a ‘book’ by a person in charge of a non-commercial public library, for the use of the library, if the book is not available for sale in India. ‘Books’ are widely defined to include maps or pamphlets. An archive which falls within the definition of a ‘non-commercial public library’ may avail of this exemption to make copies for its own use, for example, for reference and preservation purposes. These copies may be physical or digitised. If digitised, the archive would have to document and apply access controls to ensure that only three copies of the work are made and distributed, and if it is a library, that this distribution is for a limited period. Various archives make use of access-controlled distribution of copyrighted work. For example, the Internet Archive has a system of access control to certain parts of its collection that are copyright protected, in order to make use of exemptions available to it under copyright law.13
Reproduction of Previously Unpublished Work
Section 52(1)(p) of the Copyright Act allows the reproduction of previously unpublished literary, dramatic or musical works, for the purposes of either research, or for private study, or for publishing the unpublished work, provided that the unpublished work is kept in an institution to which the public has access, such as a library or a museum. This exemption may be availed for orphan works at any time. However, if the author of the unpublished work is already known, then the exemption only applies from sixty years from the death of the last surviving author of the work.
Provided archives fall within this exemption, the archive has the right under this exemption to not only reproduce the work for its users, for the purpose of research or private study, but to actively ‘publish’ the work and provide copies of the work to the public or otherwise communicate the work to the public. This is particularly important for orphan works, whose authors cannot be identified, but it also unambiguously allows the publication of some works that may be unpublished and whose copyright status may be uncertain, even when the author is known (see above for the ambiguity in the copyright in unpublished material). On a plain reading of this exemption, it appears to be more limited than the conditions to secure a compulsory license for orphan works that may be obtained under Section 31A (see the discussion of Section 31A in Chapter 1 – Acquisition of Orphan Works). While a license under Section 31A can be availed if the author’s identity is unknown or if they cannot be located or are dead, this exemption only applies if the author’s identity is not known. To avail of this exemption, the archive must be part of an institution to which ‘the public has access’. As such, private archives that place substantial restrictions for the general public to access their records may not avail of this exemption. This underlines the importance of private archives that seek to enable wider public access to mention the conditions for access unambiguously in their access policies, and indicate that they provide access to the general public. As noted above, archives must assess the copyright status of a work prior to making a determination on using this exemption.
Scenario: An institutional archive has access to an undated and unpublished manuscript whose author is not known despite a diligent search. It also has access to an unpublished manuscript co-authored by two former members of the institution. It may utilise the exemption in this section at any time to reproduce or publish the former manuscript of unknown origin. It may utilise this exemption to reproduce or publish the co-authored manuscript only sixty years after the death of the last surviving author. The archive’s access policy should indicate that it is an archive that provides access to the public, and that it is providing access for the purpose of ‘research, or private study, or with a view to publication’.
Copies of Broadcasts of ‘Exceptional Documentary Character’
Section 52(1)(z) allows perhaps the most unambiguous exemption specific to the archival function to preserve works of historical value. It permits broadcasting organisations (undefined under the Act but used to refer to institutions that engage in radio or television broadcasting, which may include online broadcasts) to copy and retain the copy of a work that is broadcast, on the grounds that it has ‘exceptional documentary character’. Therefore, the archives of a broadcasting organisation, such as a TV news channel or an FM radio channel, may copy and preserve some of the work they broadcast that has been appraised to be of archival value. This also underlines the importance of documenting a clear appraisal policy and process for such archives.
Reproduction for Facilitating Access
Section 52(1)(zb) allows the reproduction or communication of a work in an accessible format, where such copying or communication is intended to facilitate the access of such work by persons with disabilities.
This exemption can be relied upon by archives that are considering reproducing particular records in order to make them more accessible, through, for example, the conversion of manuscripts from text to speech, or the digital reproduction of particular works that may not otherwise be accessible to persons with disabilities. The exemption also requires that the archive should take `reasonable steps to prevent the entry of such format-shifted works into ordinary channels of business’, namely, it must include some form of access controls as reasonably available to the archive, to ensure that it is only used by persons with disabilities. This may, for example, require self-certification by users of works that are format-shifted digitally. Multiple exemptions may be availed of in the course of an archive’s functioning. For example, the archive may want to avail of Section 52(1)(n) – see the section above on digitisation by a non-commercial public library – while undertaking preservation of manuscripts or allowing digitisation for the purpose of preservation. The archive may wish to format-shift a particular record for making it more accessible to users with disabilities, for example, by converting from text to speech.
The table below summarises some of these key exemptions for archivists.
|Section||Type of Use||Works||Purpose||Institution||Condition|
|52(1)(a)||Any||Literary, dramatic or musical||Private use, research, criticism or review or reportage||Any||Fair dealing|
|52(1)(n)||Digitisation||Any||Preservation||Non-commercial public library||Must possess a non-digital copy|
|52(1)(o)||Reproduction||Books||For the use of the institution||Non-commercial public library||Not more than three copies|
|52(1)(p)||Reproduction or Publication||Previously unpublished literary, dramatic or musical||For publication or private use including research||Library, or museum or other institution to which the public has access|
|52(1)(z)||Reproduction||Broadcast work||Archival purpose||Broadcasting organisation||The work must have ‘exceptional documentary character’|
|52(1)(zb)||Reproduction or Communication||Any||Providing access to persons with disabilities||Any|
Copyright Licensing and Improving Access to Archives
As discussed above, copyright is an important consideration for archives seeking to use or make available access to records of various kinds. For many archives, making their collections accessible and available broadly is an important goal. However, the default status of copyright law can often hinder these goals. Archives should actively consider the applicability of the exemptions and rights to copyright granted to them under the Copyright Act, above, in case they do not have copyright or are unable to clear copyright. If archives seek to avail of specific exemptions, this should be clearly documented in internal documents or policies, with specific justifications as to how particular archival functions are related to the exemptions. If archives acquire ownership of copyright in any work, for example, through gift agreements, they may consider actively adopting policies for enabling more equitable and open access to their records, for example, by allowing digitised records to be used under a Creative Commons license. Creative Commons (CC) are a set of licenses that can be applied to specific works by owners of the copyright in those works. These licenses allow copyright owners to enable wider access to copyrighted works, applying specific restrictions, without necessarily losing ownership of the works themselves. For example, a “CC by NC” license allows copyright owners to license their work freely for non-commercial reasons, provided the work is attributed to the original authors or owners.14 This guidebook, for instance, is available with a “CC BY-NC-SA 4.0” license, which allows free non-commercial use of this work, provided it is attributed to authors and shared alike. Archives may also consider encouraging donors who wish to hold on to ownership of copyright in certain works, to license their works under a Creative Commons license. However, such considerations of openness should also be balanced against other considerations of privacy, ethics and equity, as outlined in Chapter 4 and Chapter 6.
Liability of Archives
Primary Liability for Unauthorised Use of a Copyrighted Work
The above section considered the responsibilities of archives in making reproductions or publishing any material which may be copyrighted. In the case of an infringement of a copyrighted work, the Copyright Act allows owners to pursue specific remedies against the infringer. The most common remedy is an injunction, namely, an order that the infringing party stop the infringing use of the work. In some instances, the owner may claim damages for the infringing use of the work, the extent of which will be determined, among other things, based on the potential losses incurred to the owner due to the infringing action. This is the primary liability of an archive in the event of an infringement of copyright by the archive itself.15
Secondary or Contributory Liability for Unauthorised Use of a Copyrighted Work
Liability for infringement may also arise as ‘secondary’ or ‘contributory’ liability. Such liability arises when the archive knowingly and intentionally facilitates the infringement of copyright by a third-party. Contributory liability may arise in a situation where an archive has knowledge that a third party to whom it is providing, or for whom it is facilitating access to a copyrighted record, is infringing that work. In such a case, if the archive is ‘materially’ contributing to the infringement, it may be found liable to contributory infringement. A ‘material contribution’ would be a factual determination to determine whether the infringement would have taken place but for the actions of the party. The Copyright Act itself only mentions one condition for secondary liability, that is, when a person permits the communication of a work by another person to the public for profit at a place, and such communication is an infringement of copyright. In such cases, copyright is considered to be infringed by the person, unless the person was not aware or had no reason to believe that copyright was being infringed. This situation might arise, for example, if an archive permits a for-profit exhibition of copyrighted works to occur on its premises. While such instances are rare, archives should include appropriate indemnities when providing access to records for researchers to insure themselves against potential claims due to the actions of a third-party. Indemnification is a contractual agreement that specifies that the liability for any potential future infringement will be borne by the indemnifying party (the user who might further copy the work), and that if any liability arises to the archive due to the user’s actions (for example, by copying the work or communicating it publicly), then the archive can claim any damages from the user. Such indemnities may be included, for example, in the Material Use forms provided to researchers by archives. An example of such a form is provided in the Appendix – Further Reading and Resources. It should be noted, however, that indemnity clauses may not always offer protection to archives, for example, where the researcher indemnifying the archive themselves is indigent or unable to pay adequate damages. Further, in cases where the archives has contributed to the infringement, for example, by not following its legal responsibilities relating to publication of copyrighted content, it will not be able to rely on indemnity clauses.
Defences Against Liability
Besides the exemptions from the use of copyright listed above, the Copyright Act also protects innocent third party users of copyright from certain kinds of civil actions, in case of innocent infringements. First, the Section 55 inCopyright Act states that if the defendant in a civil action for infringement proves that they were not aware and had no reasonable ground for believing that copyright subsisted in the work, then the only remedy available to the owner would be an injunction, as well as any profits made from the sale of infringing works. Second, the law of contract generally extends certain protections to ‘good faith’ purchasers of property, such that if a purchaser of a work had no notice or reason to believe that the seller did not have the title in the property, their interest in the work acquired or licensed is protected. While the position of law in India specific to contracts for copyright is unclear, archives who did not have notice of any illegality in the purchase of copyrighted material may be able to argue this ‘good faith’ protection against any subsequent civil suit against them.
Liability for Defamation and Related Media Restrictions
Scenario: An archive obtains a record of a letter published by a leading academic, which is deeply critical of a large corporation. The archive wishes to provide access to the letter to the general public, but is afraid that the letter might be considered ‘defamatory’ towards the corporation. What is the archives’ legal responsibility for publishing such a letter, and how might it go about it?
The law of defamation protects the reputation of a person from being damaged through statements made to the public, which may be written or spoken, or documented in other forms. Primary liability for defamation is of the person who has made the defamatory statement. However, archives may also face secondary liability when they publish or republish particular records that contain defamatory material. At the outset, defamation requires the publication of any statements that damage the reputation of a person in the eyes of the public. Therefore, merely holding a record that contains a defamatory statement for preservation, without making it accessible to the public, may not constitute defamation under law. Liability for defamation requires that the publisher of the material, having taken reasonable care at the time of publication, was not aware or had no reason to believe that the material was defamatory. In general, the ‘innocent dissemination’ of any material that might be defamatory is considered to be a defence against civil and criminal action for defamation by the publisher or distributor of defamatory material. The conditions of ‘reasonability’ will depend from case to case – courts have held, for example, that mere distributors of a magazine that contains defamatory material, who had no knowledge of the material, cannot be held liable for the same.16
The archive in the scenario mentioned above may freely use the record for private research, or make copies for reproduction or similar uses that do not amount to publication to the general public. However, if the archive has reason to believe that the letter is defamatory (and causes reputational injury to a person or legal entity), and seeks to make the record available to the general public, it should be aware of its potential liability as a publisher of defamatory content.
- Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House and Ors  47 PTC 244 (Del.) (DB). Retrieved December 20, 2022, from https://indiankanoon.org/doc/138192511↩
- Section 2(q), Copyright Act 1957↩
- Section 39, Copyright Act 1957↩
- Section 22, Copyright Act 1957↩
- For the purpose of translations, an exception to this term was carved out, where the right to control translation of the work would only last for 10 years, unless the author has authorised an official translation within that period. Indian Copyright Act 1914. Retrieved from https://www.wipo.int/edocs/lexdocs/laws/en/in/in121en.pdf↩
- Section 40, Copyright Act 1957; International Copyright Order 1999. Retrieved from https://copyright.gov.in/documents/international%20copyright%20order.htm↩
- However, there is no clarity on the precise scope of the ‘public’ and determining the status or the date of publication of a work is a legal and factual determination on a case-to-case basis.↩
- George Jacob and Others v. Nandakumar Moodadi and Another  CriLJ 3421. Retrieved December 20, 2022, from https://indiankanoon.org/doc/52827534↩
- See the discussion on Section 52(1)(p) of the Copyright Act in the section below: Exceptions to Copyright Infringement - Reproduction of Previously Unpublished Work.↩
- This is important because, while there is no precise determination on the question, it can be argued that these exemptions may not be capable of being waived by contract, due to their importance as user rights. Therefore, regardless of contractual stipulations to the contrary, for example, license terms absolutely restricting copying including for the ‘fair dealing’ of any work, such exemptions may be relied upon to justify such copying.↩
- In Civic Chandran v Ammini Amma , the judgment states “One of the surest and safest test to determine whether or not there has been violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the work is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original….there can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.” Retrieved from https://www.casemine.com/judgement/in/56e66b08607dba6b534374a3↩
- National Digital Library of India. (2021). NDLI presents: Copyright guide for Indian libraries. Retrieved from https://ndl.iitkgp.ac.in/document/cXFBM1dKUElqSUdaMlVuOEo2azdGVU5oNGVYUDZEdWh1WTlWTENFOUhOWT0↩
- Internet Archive. Borrowing from the lending library. Retrieved from https://help.archive.org/help/borrowing-from-the-lending-library; note that there is disagreement about the scope of the exemptions claimed by the Internet Archive, and the position is under litigation as of the time of writing this guidebook.↩
- Creative Commons. (n.d.) About the licenses. Retrieved from https://creativecommons.org/licenses/by-nc/4.0↩
- According to Section 51 of the Copyright Act, copyright in a work is deemed to be infringed “[W]hen any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act [...] does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright…”↩
- SM Govindasami v. KP Arumugam, Madras High Court . Retrieved from https://indiankanoon.org/docfragment/55159569↩