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Copyright Law Conundrum: Exclusive Economic Rights v. the Public Interest

Name - Lovika Jaiswal

Designation - Student

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Copyright Law Conundrum: Exclusive Economic Rights v. the Public Interest

This article is written in the light of the case of Libgen and Ors. v. Elsevier Ltd. and Ors., where the High court of Delhi refused to provide any ad-interim relief to the plaintiffs in the case of copyright infringement by LibGen and SciHub, where the publishers Elsevier Ltd, Wiley India Pvt. Ltd, and a collective of Intellectual property, American Chemical Society has filed a petition that it violates their exclusive rights to the manuscripts of the authors. The Libgen and SciHub provide free access of Paywalled researchers and authors to all students, researchers, etc. The Scientific community through Breakthrough Science Society (BSS) has pleaded before the bench to allow them the free-access to the paywalled material in the interest of the development of science or in other words, Public Interest.

To understand the issue involved, we should examine the statutory provisions of the Copyrights Act, 1957:

Copyright confers a bundle of exclusive rights that are provided in Section 14 of the Act. These are Economic Rights related to copyright protection in the act. Section 14(a) provides for exclusive rights to literary works along with Artistic (Section 14(c)), Cinematograph works (Section 14(d)), and sound recording works (Section 14(e)). Section 2 (J) provides the definition of “Exclusive license” which confers the specific rights with regards to copyright in a work to the licensee and the person authorized in the exclusion of others. Subclause (i) to clause (a) of section 14 provides for the right “to reproduce the work in any material form including the storing of it in any medium by electronic means”. Thus, reading Section 14(a)(i) along with Section 2(j) puts limits on the websites like Libgen and SciHub.

In addition to this, section 31 of the Act provides for “compulsory license” with respect to already published works in public. It contemplates that in case of republishing if there has been an unreasonable refusal to publish the work (resulting in the work being withheld from the public) then a compulsory license will be issued. Alternatively, the Delhi High Court can order SciHub and Libgen to obtain compulsory license to avoid infringement of copyright in the lines of section 32A which contemplates the granting of compulsory license to reproduce and publish literary, scientific, or artistic work.

Berne Convention also provides for the Moral rights of the authors and Article 9(2) states the limits on the exclusive rights and also lays down the provisions for “free use” that would otherwise be an infringement of copyright. Article 3 of the WIPO Copyright Treaty (WCT) protects compilations of data or other matters like databases, in any form, which by reason of selection or arrangement of their contents constitutes intellectual creation.

The Copyright Law in the United States also has provisions for “Contributory Infringement”, wherein if the defendant has the knowledge and still infringes the copyright, the plaintiff can claim damages. The onus is on the plaintiff to prove:

i) That the defendant had the knowledge or should have known about the violation of copyright.

ii) That the defendant caused, contributed (materially), or induced to another person’s infringing activity.

Although Copyright law in India doesn’t provide for Contributory infringement, Section 13(a) read with Section 2(o) confers copyright in computer programmes its infringement will attract stringent penal and civil sanctions. The computer programs are protected as literary works under Article 2 of the Berne Convention.

Public interest versus Moral Rights

However, Section 14 is not absolute in nature. Section 52 provides limitations and is an exception to Section 14. Section 52 lays down the provision of “Fair dealing” which emanates from the doctrine of equity. Section 52 was extensively discussed in the case of the Rameshwari Photocopy case. The Supreme Court of India enunciated that the “educational purpose” comes under the purview of fair dealing under section 52(1)(i). Thus, held that photocopy or reprography being provided to students of Delhi School of Economics comes under the scope of fair dealing as it is part of the course of instructions and hence there is no infringement of copyright. The court also took note of the fact that Rameshwari is not a competitor of the plaintiff. This doctrine has evolved to foster creativity and progress and prevent stagnation. If applied to the present case the court will have to widen the meaning of “course of instructions” that would cover the entire community of students and researchers to decide in the favour of LibGen and SciHub.

Although the Public Interest was upheld in the case of Bayer Corporation v Natco Pharma Limited in the case of drugs and with regards to patents. But the court observed that the protection provided to intellectual property can be yielded in the larger interest of the Public. Similarly, to advance education and science the hon'ble court can refer to the decision and come out with a judgement on similar lines.

Even if the copyrights have been assigned by the author, the moral rights still vest with him provided under section 57 of the act. The right of paternity provides the right to the author to claim authorship of his work and to prevent others from claiming the authorship on his work. Right of Integrity empowers the author to prevent mutilation, distortion, or other alterations of his work that would be prejudicial to his honour or reputation. However, reading of paywalled work by a large community for free should not violate the moral rights of the author in the backdrop of this case. Although the copyright law in India is not that rigid the development of the law through judicial interpretation should be such that it doesn’t render the intellectual property rights meaningless.







  6. The chancellor, Master & Scholars of the University of Oxford & Ors, v. Rameshwari Photocopy Services & Anr. CS(OS) NO. 2349/2012

  7. OA/35/2012/PT/MUM(IPAB)









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