Rajiv Gandhi School of Intellectual Property Law

The recent mass digitization initiative narrowed down the space between “information-privileged” and “information-underprivileged”. People, cutting across the geographical frontiers and income disparities, are empowered to access digitized contents available in most resourceful libraries across the world. The users of these services, besides accessing full-text of the books that have fallen in public domain, can also get restrictive read-only view of the copyrighted works. The emergence of these internet-based access tools like other digital blessings put forward serious doctrinaire challenges for copyright law. Recently, a U.S. court found Google’s and Hathi’s initiatives to be fair use, But the debate is far from getting settled as certain foundational issues remain open-ended. Undoubtedly, the mass access to digitized content initiatives to a great extent reduced the social cost of copyright. At the same time these projects unsettled the delicate incentive balance of copyright system as content owners are witnessing an unprecedented freeriding of their works. In India giving the public access to digitized contents through digital libraries is indispensable for improving the quality of life and development. Can any such projects pass the litmus of fair use legality? The reasoning in Google and Hathi may not work here as India follows a rule-based fair dealing paradigm. Technically, any digital library can legally provide services after obtaining licence from all the individual copyright content owners. But transaction cost for tracing the owner, seeking, negotiating and obtaining licenses from every such owner would be prohibitively high. Moreover, the owners of orphan works are untraceable for granting a licence. My current research addresses the question what changes the Indian copyright law needs to support digital library initiatives. Can an ex post licencing regime achieve that goal? Can we create a public depository to compensate authors?