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Limitations and Exceptions for Libraries and Archives under the copyright law



The Copyright law’s principal goal is to strike a balance between the interests of authors and other right holders on the one hand, and the interests of society on the other. The author’s stake is in his exclusive right to his work, which he monetarily exploits, but such an exclusive right is granted to him so that society benefits from the information and knowledge he receives.

Then there arises the matter,whether copyrighted work is subject to any restrictions or exceptions. Of course, we’d have to examine the international regime and treaties to get an answer on this subject, such as the Berne Convention, Rome Convention, TRIPS, and so on.The concept of “fair use” has been recognized as an exception to copyright protection in various international conventions. The grant of a bundle of exclusive rights to the copyright holder for a limited time is known as copyright. Fair use, on the other hand, is a restriction on the copyright owner’s exclusive rights.

The concept of limitations and exceptions of copyrighted work

It cannot be denied that, as the author of his concept, the copyright owner or creator has the right to commercially exploit his work. This economic exploitation right serves as a motivator for people to come up with fresh ideas. Without this incentive, few people would work hard to come up with new ideas or expressions. Nonetheless, it was the public interest, not the individual interest, that drove the decision to protect the creative material. The state provides this protection in the hopes that more and more creative work will be brought into society, resulting in development.New researchers should have access to the same materials that creators have access to in order to ensure development and continuity in the pursuit of new knowledge and the growth of science.If all copyrighted works were unavailable or only available through the acquisition of usage rights, it would be devastating to scholarly research and communication. Because of a shortage of cash, the situation would be more acute, especially in developing countries.

The limitation was granted to public funded and non-profitable libraries rather than commercial libraries since the goal of the limitation is to share knowledge to further a greater public interest goal.  However, it may also result in a contentious problem.

The worldwide Copyright regime allows countries with considerable flexibility and creates exceptions and limitations to their national copyright rules for libraries and archives for the reasons stated above. However, in response to pressure from developed-country lobbies, several nations have enacted legislation that strengthens and extends owners’ rights while weakening copyright limitations and exception clauses for libraries and archives.

Some International laws regarding the library

The first international agreement to include a library exception is the Berne Convention is. Libraries and archives, on the other hand, are not explicitly mentioned among the allowed exclusions in this agreement.The Berne Convention authorizes member countries to use the three-step approach to qualify the limitation and exception for copyright work when enacting national laws:

(i) in certain exceptional circumstances;

(ii) if the reproduced work does not contradict with the work’s usual exploitation; and

(iii) If the reproduction does not unnecessarily jeopardize the author’s legitimate interests.

In 1976, WIPO and the UNESCO Secretariat collaborated to produce the “Tunisian model,” a copyright model law for developing nations.   The model comprises three main tests laid out in the Berne Convention for the sake of a library.It permits public libraries, non-profit documentation centers, scientific institutes, and educational institutions to reproduce works of art, literature, and science that are legitimately available to the public. However, such replication should not clash with the work’s usual exploitation and should not unnecessarily jeopardize the author’s legitimate interests.

Article 13 of TRIPS was included to provide further clarity to the law. The TRIPS agreement is significant in that if a government enacts legislation that is incompatible with the TRIPS requirements, a WTO panel could impose sanctions on that country.Article 13 of the TRIPS version is nearly identical to Article 13 of the Berne Convention. One major distinction between the two is that Berne only covers exemptions to the reproduction right, whereas TRIPS Art. 13 allows exceptions to several of the owner’s rights. Furthermore, the three-step test is a proviso to the exemption in Berne, whereas TRIPS deems the test to be required.

Position under Indian Law

It’s worth noting that the Indian Copyright Act doesn’t define “library” or its scope for copying purposes. On the contrary, the concept is used by the majority of countries around the world to define the term library and its scope.

Libraries are granted exceptions to copyrighted works under Indian law, including the legal fair dealing provisions of the Copyright Act (S.52) and the judicially devised fair use exception. The law allows libraries to use copyrighted works for the following purposes: Guidance, teaching, and training; private study; research and education; and so on.

Is Section 52 (1) (o) of the Indian Copyright Act sufficient to affirm the International Treaty duty and “three step tests”?

When we apply the three-step tests defined in section 9 (2) of Berne Convention to Section 52(1) (o), we discover that:

i)  Clause (o) is limited to a single instance, namely Book (including a pamphlet, sheet of music, map, chart or plan).

ii) It is only available in public libraries.

iii) This clause contains no further restrictions or exceptions that might clash with the author’s legitimate interests.

As a result of these provisions, it is obvious that the exclusion in the Indian Copyright Act, 1957 for copyrighted works for libraries complies with the international treaty commitment.


Furthermore, for copyright holders make sense, copyright law exclusions must encourage both traditional and nontraditional educational activities. Because those who benefitted from educational programs, particularly literacy programs, were never potential buyers, copyright exceptions for educational reasons do not reduce the business for copyrighted works.Improved education, on the other hand, expands the market for copyrighted materials in the long run by producing more individuals with superior literacy skills and earning potential.

The world has changed as a result of modern digital technology, which has an impact on all parts of life. People have been denied any gain or assistance because to outdated outmoded precedents.The internet’s and social media’s new updates and advancements in search and resource have permitted all cross-border information transfer, creating a demand for access to resources in libraries and archives all over the world. Because the internet has no bounds, it is giving copyright holders an unfair edge and causing a split.Indian copyright laws are strict, although they are flexible enough to accommodate Indian culture and society. As a result, it isn’t always about the law being correct. The law that can be implemented to benefit people from all socioeconomic strata. When social welfare laws is passed, the society’s misdeeds are put to a stop.

Contributed by:– Nidhi Jha, Legal intern at LLL

 High CourtIntellectual PropertyLegal NewstrademarkTrademark Infringement

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