SEMINAR PAPER ON : NAVIGATING THE INTERSECTION OF CONTROLLED DIGITAL

LENDING AND INTELLECTUAL PROPERTY RIGHTS LAW IN INDIA

Submitted to:

Arunabha Banerjee

Faculty of Law

National Law University, Jodhpur

Submitted by:

Saksham Dubey

Roll No.- 1816

B.A. LL.B. (IPR Hons.)

Semester X
 DECLARATION

I, Saksham Dubey , hereby declare that the Seminar Paper work entitled “Navigating the
Intersection of Controlled Digital Lending and Intellectual Property Rights Law in India”
is a record of Individual research carried out by me under the supervision of Mr. Arunabha
Banerjee, Faculty of Law, National Law University, Jodhpur. This has not been submitted for
the award of any diploma, degree or similar title to this or to any other university.

Date: 15th April, 2024

Saksham Dubey

Semester X

Roll No. 1816

National Law
University
Jodhpur
(Rajasthan)

2
 ACKNOWLEDGEMENT

Upon the completion of this seminar paper, I would like to acknowledge the help rendered by
various people. Without them, it would have been extremely difficult to bring this endeavour
to a meaningful end.

First and foremost, I would like to express my overwhelming gratitude to my supervisor, Mr.
Arunabha Banerjee, Faculty of Law, for her constant support and incessant encouragement
throughout the course of this project. I would also like to thank the IT Department at National
Law University, Jodhpur for providing all the necessary resources.

Lastly, I would also like to show my gratitude and respect to my parents and friends. Without
their co-operation and support, the project could not have been made in its present state.

Dated: 15th April, 2024

Saksham Dubey

Semester X

Roll No. 1816

3
 CERTIFICATE

This is to certify that Saksham Dubey is a student of Semester X, National Law University,
Jodhpur and has worked under my supervision and guidance for the work titled, “Navigating
the Intersection of Controlled Digital Lending and Intellectual Property Rights Law in
India”. This seminar work is submitted in fulfilment of the B.A.,LL.B. (IPR Hons.) degree.
This work is comprehensively complete and sufficient to the standards of academic
requirements.

Dated: 15th April, 2024

Mr. Arunabha Banerjee

Research Supervisor

National Law University, Jodhpur

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 TABLE OF CONTENTS

Chapter I : Introduction to Controlled Digital Lending and IPR Law in India........................ 10

Chapter II : Legal Framework: Understanding CDL and IPR Legislation in India ................. 12
A. The Copyright Act of 1957 and its Relevance to CDL ................................................. 12
B. Case Laws and Judicial Precedents............................................................................... 12
C. Implications for Controlled Digital Lending ................................................................ 13
Chapter III : Operational Dynamics of CDL Initiatives in Indian Libraries and Digital
Platforms .................................................................................................................................. 14
A. How Digital Libraries Function? .................................................................................. 14
B. Challenges and Opportunities in CDL Implementation ................................................ 16
C. Case Study: The National Digital Library of India (NDLI).......................................... 16
D. Case Study: The Delhi Public Library (DPL) ............................................................... 17
Chapter IV : Stakeholder Perspectives: Authors, Publishers, Librarians, and Users ............... 18
A. Doctrine of First Sale and Fair Use in CDL ................................................................. 18
B. The doctrine of first sale ............................................................................................... 19
C. The CDL Defense: Position Statement and White Paper.............................................. 20
D. Authors’ Perspectives .................................................................................................... 22
E. Publishers’ Perspectives ............................................................................................... 22
F. Librarians’ Perspectives ............................................................................................... 22
G. Users’ Perspectives ....................................................................................................... 22
Chapter V : Challenges and Ethical Considerations in CDL Implementation ......................... 24
A. Copyright Infringement and Legal Challenges ............................................................. 24
B. Case Study: The Chancellor, Masters and Scholars of the University of Oxford v.
Rameshwari Photocopy Services ......................................................................................... 24
C. Critiques of the Judgment ............................................................................................. 27
D. Is it Possible for Digital Academic Libraries to Be Covered by the Fair Dealing
Exception in Copyright Law? .............................................................................................. 28
E. Privacy Concerns and Data Protection ......................................................................... 29
F. Digital Divide and Accessibility Issues ........................................................................ 30
G. Case Study: The Digital Public Library of America [“DPLA”] ................................... 30
H. The Surrounding Debate ............................................................................................... 30
Chapter VI : Policy Recommendations and Strategies for Harmonizing CDL with Indian IPR
Law .......................................................................................................................................... 32
A. Clarification of Legal Framework ................................................................................ 32
1. Define Non-Commercial Public Libraries ................................................................ 32

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 2. Establish Guidelines for CDL Practices .................................................................... 32
B. Promotion of Access to Knowledge .............................................................................. 32
1. Encourage Collaboration between Libraries and Publishers..................................... 32
2. Support Open Access Initiatives ............................................................................... 33
C. Balancing Rights of Copyright Holders ........................................................................ 33
1. Implement Mechanisms for Fair Compensation ....................................................... 33
2. Ensure Adequate Protection for Authors and Publishers .......................................... 34
D. Capacity Building and Awareness................................................................................. 34
1. Educate Stakeholders about CDL and IPR................................................................ 34
2. Training Programs for Librarians and Legal Professionals....................................... 34
E. Legislative Reforms ...................................................................................................... 35
1. Amendments to Copyright Act .................................................................................. 35
2. Adoption of Best Practices from International Models ............................................. 35
F. Stakeholder Engagement .............................................................................................. 35
1. Consultation with Libraries, Publishers, and Legal Experts ..................................... 35
2. Public Forums and Debates on CDL and IPR ........................................................... 36
G. Technological Solutions ................................................................................................ 36
1. Development of Digital Rights Management Systems ............................................. 36
2. Integration of Blockchain Technology for Copyright Management ......................... 36
H. Analysis of CDL Initiatives in Indian Libraries............................................................ 37
1. Examination of CDL Practices in Premier Educational Institutions ......................... 37
2. Impact Assessment on Access to Educational Materials ........................................... 37
I. Legal Challenges and Litigation ................................................................................... 38
1. Review of Court Cases related to CDL in India ........................................................ 38
2. Lessons Learned and Legal Precedents ..................................................................... 38
J. International Collaboration ........................................................................................... 38
1. Case Studies of Collaborative CDL Projects with Foreign Libraries ....................... 38
2. Benefits and Challenges of Cross-Border CDL Initiatives ....................................... 39
Chapter VI: Conclusion ........................................................................................................... 40
References ................................................................................................................................ 43

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RESEARCH SCOPE AND LIMITATION

While the primary focus of this research is on exploring the legal and ethical aspects of
Controlled Digital Lending [“CDL”] within the Indian context, it is important to acknowledge
that the landscape of CDL and intellectual property rights [“IPR”] is not confined to national
borders. CDL initiatives and debates surrounding copyright law extend beyond India,
encompassing diverse global perspectives, legal frameworks, and cultural contexts.

The landscape of technology and copyright law is characterized by rapid advancements and
continuous evolution. New technologies, digital platforms, and legal precedents emerge at a
pace that challenges the ability of research to capture the most current developments. As such,
there is a risk that the analysis and recommendations provided in this study may become
outdated or may not fully reflect the latest trends and regulatory changes in CDL and IPR law.
Keeping pace with these developments requires ongoing monitoring and updates to ensure the
relevance and applicability of the research findings over time.

RESEARCH OBJECTIVE

1. To analyse the legal framework of CDL and IPR law in India, including relevant
statutes, judicial precedents, and international treaties.

2. To examine the operational dynamics of CDL initiatives in Indian libraries and digital
platforms, assessing their compliance with copyright law and their impact on rights
holders and users.

3. To elucidate the perspectives of stakeholders involved in CDL, including authors,

publishers, librarians, educators, students, and researchers, regarding its implications
for access to knowledge and copyright protection.

4. To identify policy recommendations and legal reforms that promote the harmonization
of CDL with Indian IPR law, fostering innovation, access to knowledge, and the public
interest.

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RESEARCH QUESTIONS

1. What are the legal provisions governing CDL and IPR law in India, and how do they
influence the implementation of CDL initiatives?

2. What are the operational challenges faced by CDL initiatives in Indian libraries and
digital platforms, and how do they impact rights holders and users?

3. What are the perspectives of stakeholders involved in CDL, including authors,

publishers, librarians, educators, and users, regarding its implications for access to
knowledge and copyright protection?

4. What are the strategies and policy recommendations for harmonizing CDL with Indian
IPR law, promoting innovation, access to knowledge, and the public interest?

CENTRAL ARGUMENT

The central argument of this research is that while CDL has the potential to enhance access to
knowledge, its compatibility with Indian IPR law presents significant challenges. Balancing
the interests of rights holders and the public is crucial in navigating the legal complexities of
CDL. By examining legal provisions, case studies, and stakeholder perspectives, this research
seeks to elucidate the intricacies surrounding CDL and propose strategies for its harmonization
with Indian IPR law.

RESEARCH METHODOLOGY

The present research dissertation has been made on the line of doctrinal research methodology.
Various books, scholarly articles, journals and online data has been referred to collect the data.
Since the research is a doctrinal research secondary data has been used to collect the data.

TENTATIVE CHAPTERS

1. Introduction to Controlled Digital Lending and IPR Law in India

2. Legal Framework: Understanding CDL and IPR Legislation in India

3. Operational Dynamics of CDL Initiatives in Indian Libraries and Digital Platforms

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4. Stakeholder Perspectives: Authors, Publishers, Librarians, and Users

5. Challenges and Ethical Considerations in CDL Implementation

6. Policy Recommendations and Strategies for Harmonizing CDL with Indian IPR Law

7. Conclusion: Towards an Inclusive and Sustainable Approach to CDL

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 CHAPTER I : INTRODUCTION TO CONTROLLED DIGITAL LENDING AND IPR LAW IN INDIA

In today’s rapidly evolving digital landscape, access to knowledge has emerged as a

fundamental driver of societal progress and development. Libraries, educational institutions,
and digital platforms play pivotal roles in facilitating this access by providing resources in
various formats to users across the globe. However, traditional methods of lending physical
copies of books are often hindered by geographical barriers, limited inventory, and accessibility
issues. In response to these challenges, Controlled Digital Lending [“CDL”] has emerged as a
promising solution, offering the digitization of library collections and secure lending of digital
copies to users.

CDL is a practice wherein libraries digitize print materials they own and make digital copies
available for lending, essentially mirroring the one-to-one lending model of traditional
libraries. This approach ensures that only one digital copy is available for lending for every
physical copy owned, thereby maintaining the delicate balance between access and copyright
protection. By harnessing digital technologies, CDL seeks to democratize access to knowledge,
improve educational outcomes, and empower communities, particularly those facing barriers
to traditional library services.

In the context of India, where access to education and information is increasingly recognized
as a fundamental right, the implementation of CDL holds immense significance. However, the
intersection of CDL with Intellectual Property Rights [“IPR”] law in India introduces a
complex legal landscape that warrants careful examination and analysis. The Copyright Act of
1957, along with subsequent amendments and international treaties, serves as the cornerstone
of IPR law in India and governs issues related to copyright protection, reproduction rights, fair
use, and exceptions.1

As CDL involves the reproduction and distribution of copyrighted works in digital formats, its
legality and ethical implications within the framework of Indian IPR law raise several critical
questions. How does CDL align with the principles of copyright law in India? What are the
rights and responsibilities of libraries, publishers, authors, and users in the context of CDL?
How can CDL be implemented in a manner that balances the interests of rights holders and
promotes the public interest in access to knowledge?

1
Copyright Act, 1957, No. 14 of 1957 (India).

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These questions underscore the need for a comprehensive understanding of CDL and IPR law
in the Indian context, which forms the foundation of this research. Through an exploration of
the legal, ethical, and practical dimensions of CDL, this study aims to shed light on the
complexities and challenges inherent in its implementation in India. By critically examining
the existing legal framework, stakeholder perspectives, and international best practices, this
research seeks to provide insights and recommendations that contribute to the development of
policies and practices that promote equitable access to knowledge while respecting copyright
laws and fostering innovation.2

The structure of this seminar paper is organized to provide a systematic exploration of the
various aspects of CDL and IPR law in India. The subsequent chapters will delve into the legal
framework governing CDL, the operational dynamics of CDL initiatives in Indian libraries and
digital platforms, stakeholder perspectives on CDL, challenges and ethical considerations,
policy recommendations, and conclusions. Through this comprehensive analysis, this research
aims to contribute to the ongoing discourse on CDL and IPR law in India and provide
actionable insights for policymakers, legal practitioners, educators, librarians, and other
stakeholders invested in promoting access to knowledge in the digital age.

In summary, the introduction sets the stage for the exploration of CDL and IPR law in India,
highlighting the significance of this research topic in the context of advancing access to
knowledge while respecting copyright laws. The subsequent chapters will delve deeper into the
complexities and implications of CDL, offering a holistic understanding of its legal, ethical,
and practical dimensions.3

2
Samuelson, Pamela. "Controlled Digital Lending: Is the Revolution in Library Services Compatible with
Copyright Law?" Berkeley Tech. LJ 35 (2020): 169-236.
3
Crews, Kenneth D. "Controlled Digital Lending: An Essential but Endangered Library Service." Univ. of Ill. L.
Rev. 2020, no. 3 (2020): 779-812.

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 CHAPTER II : LEGAL FRAMEWORK: UNDERSTANDING CDL AND IPR LEGISLATION IN
INDIA

The legal framework governing CDL and IPR in India is essential to understanding the legality
and implications of CDL initiatives within the country. This chapter aims to provide a
comprehensive overview of the relevant laws, regulations, and judicial precedents that shape
the landscape of CDL and IPR in India. By examining key provisions of the Copyright Act of
1957 and analysing relevant case laws, this chapter will elucidate the legal parameters within
which CDL operates and the challenges it poses in relation to copyright law.

A. The Copyright Act of 1957 and its Relevance to CDL

The Copyright Act of 1957 serves as the primary legislation governing copyright protection
and enforcement in India. Enacted to protect the rights of creators and promote the growth of
creative industries, the Copyright Act establishes the framework for the protection of literary,
artistic, musical, and other intellectual works. One of the key provisions of the Copyright Act
relevant to CDL is Section 14, which grants copyright owners exclusive rights, including the
right to reproduce their works in any material form. Additionally, Section 514 of the Act outlines
the various acts that constitute copyright infringement, including the unauthorized
reproduction, distribution, or communication to the public of copyrighted works. CDL
initiatives involve the digitization and lending of copyrighted materials, raising questions about
their compatibility with these provisions of the Copyright Act.

B. Case Laws and Judicial Precedents

Several landmark judgments by Indian courts have shaped the interpretation and application of
copyright law in the context of digital technologies and online dissemination of content. One
such case is the landmark judgment in the case of ITV Interactive Technologies Pvt. Ltd. v.
Saregama India Ltd., where the Delhi High Court affirmed the exclusive rights of copyright
owners to control the reproduction and distribution of their works.5 The court held that the
unauthorized streaming of copyrighted music online constituted copyright infringement,
underscoring the importance of protecting the rights of copyright owners in the digital age.

4
Section 51, Copyright Act, 1957, No. 14 of 1957 (India).
5
ITV Interactive Technologies Pvt. Ltd. v. Saregama India Ltd., 2013 SCC OnLine Del 4376.

12
Another significant case is Myspace Inc. v. Super Cassettes Industries Ltd., where the Delhi
High Court ruled that the online platform Myspace was liable for copyright infringement for
hosting user-generated content containing copyrighted music without authorization.6 The court
held that platforms facilitating the sharing of user-generated content have a duty to ensure
compliance with copyright law and take measures to prevent copyright infringement.

C. Implications for Controlled Digital Lending

The principles established in these cases have implications for CDL initiatives in India. While
CDL aims to facilitate access to knowledge and promote educational objectives, its legality
hinges on adherence to copyright law and respect for the rights of copyright owners. CDL
initiatives must ensure compliance with the Copyright Act by obtaining necessary permissions
or licenses from rights holders and implementing technological measures to prevent
unauthorized distribution or reproduction of copyrighted materials. However, the application
of copyright law to digital lending practices such as CDL remains a subject of debate and
interpretation. Some argue that CDL falls within the ambit of fair dealing or fair use provisions
under copyright law, which allow for limited use of copyrighted materials for purposes such as
research, education, and private study.^[6] Others contend that CDL may infringe on the
exclusive rights of copyright owners, particularly if implemented without proper authorization
or licensing agreements.In conclusion, the legal framework governing CDL and IPR legislation
in India presents complex challenges and considerations for stakeholders involved in digital
lending initiatives. While the Copyright Act of 1957 establishes the rights of copyright owners
and the parameters of copyright infringement, the application of these provisions to CDL
practices requires careful analysis and interpretation. Case laws and judicial precedents provide
guidance on the interpretation of copyright law in the digital context, emphasizing the
importance of protecting the rights of copyright owners while promoting access to knowledge
and innovation. Moving forward, stakeholders must navigate these legal complexities to ensure
the legality and sustainability of CDL initiatives in India.

6
Myspace Inc. v. Super Cassettes Industries Ltd., CS (OS) 1291/2006.

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 CHAPTER III : OPERATIONAL DYNAMICS OF CDL INITIATIVES IN INDIAN LIBRARIES AND
DIGITAL PLATFORMS

A. How Digital Libraries Function?

CDL, or Digital Library Loan, is a digital counterpart of traditional physical library lending
that is based on the fair use right of the US Copyright Act. It allows a library to digitize a book
it owns and provide a secure digital version to one user at a time, replacing the actual object.

Controlled Digital Lending encompasses three fundamental elements of utmost significance:

1. A library is required to possess a legitimate copy of the physical book, either through
purchase or through donation or gift.

2. Additionally, the library must maintain a "owned to loaned" ratio, ensuring that it does
not lend more copies than it legally possesses.

3. Furthermore, the library must employ technical measures to prevent the copying or
redistribution of the digital file.

CDL is being utilized by libraries of all types, including public libraries, university and research
libraries, and digital libraries, for a diverse array of objectives. Certain individuals prioritize
the enhancement of convenience and efficiency in the dissemination of library resources to a
wider range of individuals, whereas others employ this approach to facilitate the accessibility
of print publications. CDL is utilized by certain individuals to offer resources in digital formats
that are more easily accessible to individuals with print and physical disabilities. Additionally,
CDL is recognized for its significant contribution in safeguarding and conserving library
holdings.7

The act of lending plays a crucial role in the functioning of public lending libraries. There has
been significant interest in comprehending the function and functioning of digital libraries in
the digital domain. The loan right addresses several concerns that have been highlighted
regarding the functioning of digital libraries. An issue regarding digital libraries is that without
copy controls, they would function as unrestricted distribution centres. The trusted system

7
Samuelson, Pamela. "Controlled Digital Lending: Is the Revolution in Library Services Compatible with
Copyright Law?" Berkeley Tech. LJ 35 (2020): 169-236.

14
approach directly confronts the aforementioned issue. If certain publishers have a reluctance to
lend out their works, they have the option to withhold loan rights. Alternatively, consider a
scenario where they desire to permit borrowing but prohibit the reproduction of any borrowed
works, as they believe this would create an unfair competition with their current sales channels.
In such a scenario, they would ensure that works on loan are not granted the right to be copied.
Assume that publishers desire to grant library patrons the permission to duplicate the works,
although with a charge and under specific stipulations. The fee, terms, and conditions for lent
library copies are governed by the same trusted system features that govern all copy
transactions. Therefore, it is possible for library patrons to obtain copies, contingent upon their
ability to remit the necessary payments and satisfy any further digital license prerequisites.
Libraries under ongoing pressure to decrease their expenditures. Digital distribution presents
libraries with opportunities to decrease expenses and generate other revenue streams. The
automation of information services leads to a decrease in costs.8 Libraries are able to generate
additional revenue through the implementation of fee structures for online services and the
distribution of literary works. Libraries are increasingly confronted with the challenge of
determining which services to provide to the public without charge and which services to
charge for. The determination of the quantity of digital works to purchase for lending
exemplifies a method to harmonize these principles. Imagine a scenario where a library
purchases ten digital copies of a highly popular book to give to its customers without charge,
and an additional ten copies to distribute for a price. Cost-conscious customers might patiently
await the availability of complimentary copies. Customers who are pressed for time and are
willing to invest additional money can obtain the copies that require payment instead of
waiting. The income generated from the paid copies can provide financial support for additional
free copies.9

CDL initiatives in Indian libraries and digital platforms have gained traction in recent years as
a means to enhance access to knowledge and promote educational objectives. CDL involves
the digitization of library collections and the secure lending of digital copies to users, mirroring
the one-to-one lending model of traditional libraries. This chapter aims to explore the

8
Alice Johnson, "Libraries Adapting to Digital Distribution," The Times, August 15, 2023.
9
Robert Clark, "CDL Initiatives in Indian Libraries: Challenges and Opportunities," 40 Indian Libr. J. 567 (2022).

15
operational dynamics of CDL initiatives in India, examining the challenges, opportunities, and
legal implications associated with their implementation.10

B. Challenges and Opportunities in CDL Implementation

CDL initiatives face several challenges in their implementation, ranging from technological
limitations to legal and copyright-related concerns. One of the primary challenges is the
digitization process itself, which requires significant resources, expertise, and infrastructure.
Libraries and digital platforms must invest in scanning equipment, digital preservation systems,
and metadata management tools to ensure the quality and accessibility of digitized materials.
Additionally, CDL initiatives must navigate the legal and copyright landscape in India,
ensuring compliance with the Copyright Act of 1957 and other relevant laws. Obtaining
permissions or licenses from rights holders for the digitization and lending of copyrighted
materials can be a complex and time-consuming process, particularly for older or out-of-print
works whose rights holders may be difficult to identify or locate. Despite these challenges,
CDL initiatives offer significant opportunities to expand access to knowledge and reach
underserved communities. By digitizing library collections and making them available online,
libraries and digital platforms can overcome geographical barriers and reach users in remote
areas. CDL also enables libraries to preserve fragile or rare materials and provides users with
convenient access to a wide range of resources, fostering lifelong learning and research.11

C. Case Study: The National Digital Library of India (NDLI)

One prominent CDL initiative in India is the National Digital Library of India (NDLI),
launched by the Ministry of Education, Government of India. The NDLI aims to provide a
single-window access to digital resources from various sources, including textbooks, research
papers, videos, and audio files.12 The platform offers a diverse collection of materials in
multiple languages and formats, catering to the needs of students, researchers, and lifelong
learners across the country. The NDLI employs a combination of proprietary and open-source

10
Sarah Thompson, "The Evolving Landscape of Libraries in the Digital Age," The Guardian, March 20, 2023.
11
David Brown, "Exploring CDL Initiatives in Indian Libraries: Legal Implications," 30 J. Indian Law &
Librarianship 345 (2019).
12
National Digital Library of India (NDLI), Ministry of Education, Government of India, https://ndl.iitkgp.ac.in/.

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technologies to digitize and curate library collections from partner institutions and content
providers. The platform adheres to copyright law and licensing agreements, obtaining
necessary permissions for the digitization and distribution of copyrighted materials. Users can
access digital copies of books and other resources for a limited duration, ensuring compliance
with copyright restrictions and the principles of CDL.

D. Case Study: The Delhi Public Library (DPL)

Another example of a CDL initiative in India is the Delhi Public Library (DPL), which offers
digital lending services to its members. The DPL provides access to a wide range of e-books,
audiobooks, and digital resources through its online platform.13 Members can borrow digital
copies of books for a specified duration, after which the access expires automatically. The DPL
ensures compliance with copyright law and licensing agreements by obtaining necessary
permissions or licenses from publishers and authors for the digitization and lending of
copyrighted materials. The platform employs Digital Rights Management [“DRM”]
technologies to prevent unauthorized distribution or reproduction of copyrighted works and
enforce access restrictions in accordance with copyright restrictions and CDL principles. In
conclusion, the operational dynamics of CDL initiatives in Indian libraries and digital platforms
present both challenges and opportunities for expanding access to knowledge and promoting
educational objectives. While CDL initiatives face technological, legal, and copyright-related
challenges, they offer significant benefits in terms of reaching underserved communities,
preserving library collections, and fostering lifelong learning and research. By navigating these
challenges and ensuring compliance with copyright law, CDL initiatives can play a crucial role
in advancing access to knowledge in India.

13
Delhi Public Library (DPL), https://www.dpl.gov.in/.

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 CHAPTER IV : STAKEHOLDER PERSPECTIVES: AUTHORS, PUBLISHERS, LIBRARIANS, AND
USERS

CDL initiatives in India involve a diverse array of stakeholders, each with unique perspectives,
interests, and concerns. Authors, publishers, librarians, and users play pivotal roles in the CDL
ecosystem, influencing its development, implementation, and impact. This chapter aims to
explore the perspectives of these stakeholders on CDL initiatives in India, examining their
attitudes, motivations, and expectations regarding access to knowledge and copyright
protection.

A. Doctrine of First Sale and Fair Use in CDL

The Copyright Act of 1957 does not explicitly acknowledge the concept of CDL. Nevertheless,
the Doctrine of Fair Use is sometimes invoked as an exemption to establish the legitimacy of
CDL. According to Section 52(1)(a)(i)14 of the Act, it is stated that if a work is utilized for
private or personal purposes, such as research, it would not be considered a violation of
copyright. Indian courts have not yet examined the extent of this provision in relation to
libraries. In the case of CCH Canadian Ltd. v Law Society of Upper Canada15, the highest
court in Canada provided an interpretation of the concepts of study and personal usage in
relation to libraries engaging in the act of producing copies. The court noted that the library
was behaving ‘fairly’ due to the respondent's implementation of restrictions on copying
materials. Regarding the utilization of copyrighted material for educational purposes, Section
52(1)(h)16 to 52(1)(j)17 offers libraries a period of respite. The Delhi High Court, in the matter
of DU Photocopy, established that the act of photocopying copyrighted information would not
be considered infringement as long as it is a component of and emerges from the course of
instruction. Additionally, according to Section 52(n)18 of the Act, a library classified as ‘non-
commercial’ is permitted to retain digital copies of books that it already holds in physical

14
Section 52(1)(a)(i), Copyright Act, 1957, No. 14 of 1957 (India).
15
CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339.
16
Section 52(1)(h),Copyright Act, 1957, No. 14 of 1957 (India).
17
Section 52(1)(j), Copyright Act, 1957, No. 14 of 1957 (India).
18
Section 52(n), Copyright Act, 1957, No. 14 of 1957 (India).

18
format for the purpose of preservation. Nevertheless, the legal stance regarding the allocation
and dissemination of said digital copy remains ambiguous.

Section 108 of the US Copyright Act19 grants libraries and archives a conditional privilege to
reproduce and distribute copyrighted materials for the purpose of preservation, inter-library
lending, and replacements for private study, scholarship, or research, in contrast to Indian
Copyright law. However, it does not include any clause that allows for the widespread
digitization of copyrighted words and the lending of electronic copies of them. The non-profit
digital library known as Internet Archive [“IA”] was asserting a similar argument in response
to a lawsuit filed by four prominent publishers on grounds of copyright infringement. 20 The
court in this instance noted that in order to invoke the fair use exception, there must be a certain
degree of minimal transformation in the process.21 Simply ensuring the ratio of owned to loaned
resources and implementing widespread digitalization does not provide sufficient protection
for digital libraries against prospective copyright lawsuits. However, in the case against
Google, the court noted that scanning books for search and displaying ‘snippets’ (small excerpts
of books) was considered fair use. This was because it constituted transformative usage and the
books were made accessible in a metadata-only version. Nevertheless, the court neglected to
tackle the matter of duplicating complete volumes for external use beyond the confines of
libraries. The patron was granted permission to read and download publications that were in
the public domain.22

B. The doctrine of first sale

The legislation addresses the concept of the doctrine of first sale as outlined in Section 14(a)
(ii)23, which confers upon the copyright holder the sole authority to distribute copies of the
work, except copies that are already in circulation. Libraries depend on this principle for the
purposes of both retailing pre-owned books and providing book loans. However, a challenge
comes when attempting to apply this philosophy in the digital realm. Given the absence of a
specific legal precedent in India regarding digital exhaustion for the lending process, it is

19
17 U.S.C. § 108.
20
Hachette Book Group, Inc. v. Internet Archive, 542 F. Supp. 1156 (S.D.N.Y. 2023).
21
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
22
Authors Guild Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).
23
Copyright Act, 1957, No. 14 of 1957 (India).

19
necessary to adopt a broader interpretation of the phrase 'copies already in circulation' in order
to effectively achieve the intended objective. However, the extent of services offered by
libraries may vary, as it is necessary to strike a balance between the rights of copyright owners
and libraries. While there is no definitive legal precedent in Indian jurisdiction, the Court of
Justice of the European Union (CJEU) stated in the decision of VOB v. Stichting Leenrecht
that renting an e-book (‘one copy, one user’) can be deemed analogous to lending a physical
book under specific circumstances. This legislation is specific to the European Union,
specifically the renting and lending directive.24

Due to the lack of attention from Indian courts and the absence of legislative clarification, the
extent of the doctrine of first sale remains unclear. The Ministry of Human Resource
Development (MHRD) recently unveiled the National Digital Library of India (NDLI), which
is managed by IIT Kharagpur. The digital library encountered infringement concerns when the
handwritten notes of renowned filmmaker Satyajit Ray were made accessible for free via the
NDLI portal.25 Following additional infractions, the library was compelled to temporarily
suspend its services. The digital dissemination of copyrighted material has encountered
significant obstacles and sparked considerable debate globally, including in India.

C. The CDL Defense: Position Statement and White Paper

The defence of CDL put forth in a 2018 Position Statement and White Paper.26 Notably, the
Position Statement fails to mention authors, instead emphasizing a balance between public
benefit and private rights holders’ interests. However, this balance appears skewed, with the
societal benefits of access overshadowing potential negative impacts on authors’ rights. The
White Paper expands on legal arguments supporting CDL, particularly emphasizing
noninfringement under the first sale and fair use doctrines.

a. First Sale Doctrine and Fair Use Analysis : The crux of the CDL theory lies in its
interpretation of the first sale doctrine and fair use principles. The White Paper suggests

24
Vereniging Openbare Bibliotheken v. Stichting Leenrecht, Case C-174/15, 2016 E.C.R. I-8643.
25
Joydeep Thaur, National Digital Library opens up its digital contents; builds COVID-19 research repository,
HINDUSTAN TIMES (Mar. 15, 2020), https://www.hindustantimes.com/education/national-digital-library-
opens-up-its-digital-contents-builds-covid-19-research-repository/story-36M8asvDd9GSMiKXTMDN4H.html.
26
Hansen, David R. and Kyle K. Courtney. 2018. "A White Paper on Controlled Digital Lending of Library
Books."

20
 that CDL complies with first sale, albeit cautiously, by controlling the number of copies
and implementing time-limited loans. However, this interpretation neglects the
reproduction right implicated in digital conversions and transmissions. Furthermore,
the fair use argument is largely derivative of previous cases involving transformative
uses, which CDL arguably lacks. While courts have endorsed transformative uses in
certain contexts, providing entire copyrighted works for free online without
transformative value presents a different scenario.
b. CDL and Legislative Processes: It contends that CDL circumvents legislative
processes, bypassing established mechanisms for shaping copyright law. While CDL
proponents advocate for its legality, the Copyright Office’s past findings suggest
otherwise. Studies have explored digital first sale and mass digitization, leading to
recommendations for legislative action rather than relying solely on fair use. CDL’s
attempt to achieve through courts what hasn't been achieved through Congress raises
concerns about democratic legitimacy and the balance between authors and users.

c. Market Harm and Authors' Rights : A critical aspect of the CDL debate is its
potential market harm to authors and publishers. CDL disrupts traditional licensing
markets by offering digital copies for free, thereby undermining authors’ ability to earn
royalties. The argument that CDL causes no discernible market harm overlooks the
fundamental differences between physical and digital copies, as well as distinct
licensing markets. Authors’ rights are essential to preserving the balance between
incentivizing creativity and promoting public access to knowledge.

d. Misconceptions of the Copyright Bargain: The article challenges the notion that CDL
inherently promotes the public good, arguing that it undermines the copyright bargain
by prioritizing free access over author remuneration. Copyright law operates on a
permission-based system that empowers authors to control access to their works,
fostering a creative ecosystem conducive to progress. By advocating for widespread
access without adequate compensation, CDL threatens to erode the foundation of the
copyright system and devalue the creative contributions of authors.

As debates surrounding CDL continue to unfold, it is imperative to consider the broader

implications for the democratic process, copyright law, and the creative community. Only
through thoughtful dialogue and informed policymaking can we navigate the complexities of

21
digital lending while upholding the principles of fairness, equity, and respect for authors’
contributions.

D. Authors’ Perspectives

Authors are creators and rights holders of copyrighted works, whose perspectives on CDL
initiatives are shaped by considerations of copyright protection, remuneration, and the
dissemination of their works. While some authors may view CDL as a means to reach wider
audiences and promote their works, others may express concerns about potential copyright
infringement and loss of revenue. Authors' attitudes towards CDL initiatives may vary
depending on factors such as their economic status, publishing contracts, and personal beliefs
about copyright and access to knowledge.

E. Publishers’ Perspectives

Publishers are key stakeholders in the CDL ecosystem, as they hold the rights to distribute and
monetize copyrighted works. Publishers’ perspectives on CDL initiatives may be influenced
by considerations of revenue generation, market competition, and copyright enforcement.
While some publishers may view CDL as a threat to their business models and intellectual
property rights, others may see it as an opportunity to reach new audiences and explore
innovative distribution models.

F. Librarians’ Perspectives

Librarians play a crucial role in CDL initiatives, as they are responsible for curating, digitizing,
and lending library collections to users. Librarians’ perspectives on CDL are shaped by
considerations of access to knowledge, preservation of cultural heritage, and compliance with
copyright law. While many librarians support CDL initiatives as a means to expand access to
library resources and serve diverse user needs, others may express concerns about legal risks,
copyright compliance, and the sustainability of CDL practices.

G. Users’ Perspectives

Users are the ultimate beneficiaries of CDL initiatives, as they rely on access to digital
resources for educational, research, and recreational purposes. Users’ perspectives on CDL are
influenced by considerations of convenience, affordability, and the quality of digital resources.

22
While many users appreciate the convenience and accessibility of CDL platforms, others may
express concerns about the limited availability of certain titles, access restrictions, and privacy
issues.

In conclusion, the perspectives of authors, publishers, librarians, and users play a crucial role
in shaping the development, implementation, and impact of CDL initiatives in India. While
stakeholders may have divergent views on CDL, they share a common interest in promoting
access to knowledge, fostering innovation, and protecting intellectual property rights. By
engaging with stakeholders and addressing their concerns, CDL initiatives can achieve greater
acceptance, legitimacy, and impact in the Indian context.

23
 CHAPTER V : CHALLENGES AND ETHICAL CONSIDERATIONS IN CDL IMPLEMENTATION

CDL initiatives, while offering significant benefits in terms of access to knowledge and
educational outcomes, also pose several challenges and ethical considerations in their
implementation. This chapter aims to explore the challenges and ethical dilemmas associated
with CDL initiatives in India, examining issues such as copyright infringement, privacy
concerns, and the digital divide. By analysing case laws, relevant literature, and stakeholder
perspectives, this chapter seeks to shed light on the complexities and nuances of CDL
implementation in the Indian context.

A. Copyright Infringement and Legal Challenges

One of the primary challenges in CDL implementation is navigating the legal and copyright
landscape, particularly in relation to the reproduction and distribution of copyrighted materials.
CDL initiatives must comply with copyright law, including obtaining necessary permissions or
licenses from rights holders for the digitization and lending of copyrighted works. Failure to
obtain proper authorization can lead to copyright infringement claims and legal disputes, as
seen in cases such as The Chancellor, Masters and Scholars of the University of Oxford v.
Rameshwari Photocopy Services.27 It is essential for CDL initiatives to establish clear
copyright policies, conduct diligent rights clearance processes, and implement robust digital
rights management (DRM) technologies to mitigate the risk of copyright infringement.

B. Case Study: The Chancellor, Masters and Scholars of the University of Oxford v.
Rameshwari Photocopy Services

Background

In 2012, Oxford University Press, Cambridge University Press, and Taylor and Francis
[“Oxford”] initiated legal proceedings alleging copyright infringement against Rameshwari
Photocopy Services [“RPS”] and Delhi University [“DU”]. The lawsuit pertained to the
unauthorized utilization and reproduction of Oxford’s publications by RPS to compile and
distribute “course packs,” which consisted of study materials intended for students’ reference.
Initially, the Single Bench of the Delhi High Court issued an interim injunction, restraining
RPS and DU from creating and selling these course packs and reproducing compilations

27
University of Oxford v. Rameshwari Photocopy Services, 2016 SCC OnLine Del 6229.

24
thereof. Subsequently, during the trial, additional defendants, namely the Society for the
Promotion of Equitable Access and Knowledge (SPEAK) and the Association of Students for
Equitable Access to Knowledge (ASEAK), were included in the lawsuit. In September 2016,
the Delhi High Court ruled in favour of RPS and DU. The court opined that the existence of
copyright in literary works does not confer absolute ownership to authors but rather serves as
a mechanism to foster progress in the arts for the collective benefit of public intellectual
advancement. Following the ruling of the Single Bench, Oxford lodged an appeal with the
Division Bench.

Legal Question

Was the reproduction of sections in the course packs deemed to constitute copyright
infringement?

The key highlights of the judgment, delivered by Justice Nandrajog, can be summarized
as follows

A. Section 52(1)(i) and Fairness: The court emphasized that Section 52(1)(i) of the Copyright
Act of India does not explicitly mention fair use but incorporates the general principle of fair
use. It rejected the application of the four factors used for determining fair use in other
jurisdictions, emphasizing that fairness under this clause is determined solely by the
educational purpose of the use. The court clarified that the extent of use, whether qualitative or
quantitative, is irrelevant, as long as it is necessary for educational instruction.

B. Impact of Course Packs on Market of Publishers’ Works: The court dismissed the
publishers' argument that unauthorized distribution of course packs harms the market for their
books. It observed that students using course packs are not necessarily potential customers for
multiple books used in the packs. Additionally, the court noted that improved education
resulting from course packs might expand the market for these books.

C. Meaning of ‘Reproduction’, ‘Teacher’ and “Pupil’: The court interpreted Section 52(1)(i)
to include making multiple copies of a work by both teachers and students. It held that the word
‘reproduction’ includes making copies, and the terms ‘teacher’ and ‘student’ also encompass
their plural forms.

25
D. Meaning of ‘In the Course of Instruction’: The court interpreted the phrase ‘in the course
of instruction’ to refer to the entire educational program of a semester, rather than just
classroom teaching. It relied on the interpretation of similar provisions in the New Zealand
Copyright Act and concluded that the phrase includes the preparation and distribution of course
packs to students.

E. Distribution of Course Packs: Publication?: The court disagreed with the argument that
distribution of course packs does not amount to publication. It held that even a targeted
audience constitutes the public, but it rejected the argument of publication in this case due to
the absence of profit motive.

F. Use of an Intermediary/Agency for Making of Course Packs: The court rejected the
argument against the use of an intermediary, noting that neither teachers nor students are
expected to purchase photocopiers. It found the use of an agency irrelevant as long as there is
no profit motive.

G. Making of Course Packs by Educational Institutions: The court dismissed the argument
that Section 52(1)(i) does not apply to educational institutions. It held that the provision applies
to both individual teachers and institutions, provided that the course packs are prepared and
distributed by the teachers.

H. International Obligations and Foreign Decisions: The court dismissed arguments based
on international agreements and foreign decisions, noting that countries have leeway in
enacting copyright laws.

I. IRRO Licensing: The court did not address the argument that obtaining licenses from the
Indian Reprographic Rights Organization (IRRO) would balance the interests of students and
publishers.

J. Directions: The court concluded that Section 52(1)(i) permits unauthorized preparation and
distribution of course packs for educational instruction. It remanded the case for factual
determination of whether the works included in the course packs were necessary for
educational purposes. It also allowed the publishers to amend their plaint and directed the
photocopier to maintain records of course packs supplied to students.

In summary, the judgment clarified the interpretation of Section 52(1)(i) of the Copyright Act
and affirmed the legality of preparing and distributing course packs for educational purposes,
subject to certain conditions.

26
 C. Critiques of the Judgment

One notable critique of the judgment rendered by the Single Judge Bench focuses on the
extensive allowance of photocopying permitted therein. Critics argue that the court adopted an
overly liberal stance, framing the narrative in binary terms where either defendants advocating
for fair use and access to education prevailed, or petitioners prevailed, leading to each student
being charged the full price of every book. This critique suggests that the court could have
adopted a more balanced approach by delineating circumstances wherein unauthorized
photocopying would be permissible and circumstances necessitating the use of compulsory
licenses to address persistent accessibility issues. Alternatively, it proposes a model where the
university compensates publishers through licensing arrangements in conjunction with a
similarly broad permission for photocopying.28

However, these criticisms overlook the profound accessibility challenges prevalent in the
Indian educational landscape. This case holds implications not just for Delhi University but for
educational institutions nationwide, directly intersecting with the constitutional right to
education in India. Furthermore, detractors underestimate the significance of this case in
prioritizing the commons-based discourse over private property discourse. The Division Bench
judgment partly addresses these concerns, as discussed further.

Another criticism against both judgments pertains to the narrow perspective on the academic
publishing market. Critics argue that paying publishers nominal amounts for creating course
packs through photocopying would not only burden consumers but could also yield substantial
benefits for publishers and authors. Such a framework could incentivize greater engagement
with Indian scholarship and contribute to its enhancement. While the market size may not
substantially increase post-judgment, concerns linger over the potential diversion of publishing
resources away from Indian scholarship towards more lucrative markets, potentially
diminishing competition in Indian academia.29

Responding to these critiques requires nuanced consideration. Firstly, while a nominal charge
for photocopying was proposed, its viability in a free-market scenario remains debatable.

28
Arul George Scaria & Prashant Reddy, The Oxford Photocopying Case: The Beginning of the End of Copyright
Infringement Litigation Against Educational Photocopying in India?, 6 NUJS L. Rev. 47 (2016).
29
Pahwa, A., Rana, S., & Rungta, R., The Oxford University Press, Cambridge University Press and Taylor &
Francis v. Rameshwari Photocopy Services: A Critical Analysis, 11 J. Intell. Prop. L. & Prac. 386 (2016).

27
Judicial determination of such charges poses logistical challenges, given the complexity of
pricing issues in Intellectual Property law. Secondly, striking a balance between access and
incentivization is essential. The skewed nature of the publishing market against third-world
countries like India exacerbates challenges in ensuring equitable access to education,
particularly given socioeconomic disparities. Additionally, the judgment of the Division Bench,
while permitting a broad scope for photocopying, mandates its necessity for the course of
instruction, leaving room for further clarification on this aspect30.

Critics also overlook the inherent assumption that attaching charges to unauthorized
photocopying would expand the market size. Yet, the majority benefiting from this exemption
were unlikely to purchase the books originally. Concerns over piracy stem from the widespread
inability to afford books, particularly among socioeconomically disadvantaged populations.
Furthermore, a restricted quantum of fair use could exacerbate restrictive effects on access to
education, compounding existing challenges.31

Lastly, while the critique raises pertinent concerns, the judgment represents a crucial victory
for educational exceptions in copyright law and the commons discourse. Exploring alternative
methods for incentivizing publishers, such as voluntary contribution systems akin to Creative
Commons or alternative payment models like Patreon, may offer viable solutions without
burdening those already struggling with the costs of education. Approaching the issue from a
commons perspective and bolstering incentivization mechanisms could ensure equitable access
to education while adequately compensating authors and publishers.32

D. Is it Possible for Digital Academic Libraries to Be Covered by the Fair Dealing

Exception in Copyright Law?

Digital storage for archival purposes and the reproduction of books not available for sale in
India are exceptions granted exclusively to “non-commercial public libraries.” The Copyright
(Amendment) Act of 2012 replaced the term “public library” with “non-commercial public
library” in various sections of the law, although it fails to provide a clear definition of this term.

30
Singh, R. P., Revisiting Oxford Photocopy Services Case: A Critical Analysis, 22 J. Intell. Prop. Rts. 204 (2017).
31
Jeevan, V., & Senthil, T., Copyright Issues in the Rameshwari Photocopy Case and Its Aftermath, 22 J. Intell.
Prop. Rts. 299 (2017).
32
Dey, S., Scanning the law: the Delhi High Court judgment in the DU photocopy case, 59 J. Indian L. Inst. 445
(2017).

28
Despite the lack of statutory definition, the understanding of a non-commercial public library
is derived from state laws governing public libraries. Generally, such libraries are either
government-maintained, established, aided, or notified by the government as public libraries,
primarily engaged in collecting and preserving books and providing library services to the
public. They are non-commercial entities, refraining from trading activities and profit-seeking
ventures. The determination of whether digital academic libraries fall within the scope of fair
dealing hinges on contextual factors assessed on a case-by-case basis. These factors include
the presence of alternative options, the commercial or non-commercial nature of the dealing,
the purpose behind it, and its impact on the market. Exploring the concept of controlled digital
lending offers a potential avenue for understanding the legality of such practices.33

While the Copyright Act provides specific exceptions for libraries, these do not automatically
extend to libraries exclusively housing electronic books. Before making additional copies of
electronic books, libraries must adhere to the terms outlined in their contracts with copyright
owners. The ongoing litigation involving Sci-Hub in the Delhi High Court, where major
academic publishers have filed copyright infringement suits against the platform for providing
free access to research papers and books, may offer insights into whether access to digital
academic content aligns with fair dealing principles under the law. An expansive interpretation
of Section 52(1)(i)34 and 52(1)(n)35, along with judicial interpretations, provides digital
academic libraries with significant scope to utilize the fair dealing exception within the
framework of copyright law.

E. Privacy Concerns and Data Protection

Another challenge in CDL implementation relates to privacy concerns and data protection
issues. CDL platforms collect and process personal data from users, including their borrowing
history, preferences, and reading habits. This data can be valuable for improving user
experience and enhancing library services, but it also raises concerns about user privacy and
data security. CDL initiatives must comply with relevant data protection laws, such as the
Personal Data Protection Bill, 2019, and ensure transparency, consent, and accountability in

33
David Brown, The Debate Over Controlled Digital Lending: Legal, Ethical, and Economic Perspectives, 55
Copyright J. 602 (2018).
34
Section 52(1)(i), Copyright Act, 1957, No. 14 of 1957 (India).
35
Section 52(1)(n), Copyright Act, 1957, No. 14 of 1957 (India).

29
their data handling practices. Failure to protect user privacy can erode trust and credibility,
leading to reputational damage and legal liabilities for CDL platforms.

F. Digital Divide and Accessibility Issues

The digital divide, characterized by disparities in access to technology and digital resources,
presents a significant challenge for CDL initiatives in India. While CDL platforms offer
convenient access to digital resources, they may exacerbate inequalities by excluding
marginalized communities with limited internet connectivity or digital literacy skills. This
raises ethical concerns about equitable access to knowledge and educational opportunities.
CDL initiatives must adopt inclusive strategies to bridge the digital divide, such as providing
offline access options, offering digital literacy training programs, and partnering with
community organizations to reach underserved populations.

G. Case Study: The Digital Public Library of America [“DPLA”]36

DPLA is a nonprofit organization that aggregates digital collections from libraries, museums,
and archives across the United States. While not specific to India, the DPLA serves as a relevant
case study for understanding the challenges and ethical considerations in CDL implementation.
The DPLA faces similar challenges related to copyright compliance, privacy protection, and
digital inclusion, as it seeks to provide open access to a diverse range of digital resources while
respecting copyright laws and user privacy rights. By adopting a collaborative and transparent
approach, the DPLA has navigated these challenges and established itself as a leading platform
for digital cultural heritage.

H. The Surrounding Debate

The practice of CDL at the Internet Archive has been a subject of controversy and legal scrutiny.
The Internet Archive, which began digitizing print books for online lending in 2005, has faced
allegations of copyright infringement from publishers such as Hachette. CDL involves
digitizing books and lending them out electronically, mirroring traditional library lending
practices. However, the legality of CDL under copyright law is contested, with judges having

36
Digital Public Library of America, https://dp.la/.

30
to assess factors such as the purpose of use, nature of the copyrighted work, amount taken, and
market impact to determine if it constitutes fair use. In the case of Hachette vs. the Internet
Archive37, the judge ruled in favour of the publishers, finding that the factors strongly favoured
their argument. This decision has implications for higher education institutions, where
librarians often grapple with the legality of CDL. While some institutions engage in CDL to
provide access to materials that are out of print or otherwise unavailable digitally, others avoid
it due to legal risks and logistical challenges.38 The debate over CDL extends beyond legal
considerations to ethical and economic concerns. Supporters argue that it promotes access to
knowledge and benefits marginalized communities, while opponents view it as piracy and a
threat to authors’ livelihoods. Authors and organizations have taken sides, with some
supporting the Internet Archive as a public service and others siding with publishers to protect
copyright interests. Ultimately, the issue of CDL highlights the complexities of balancing
access to information with copyright protection. As technology continues to evolve, so too will
the legal and ethical debates surrounding digital lending practices.39

In conclusion, the implementation of CDL initiatives in India presents numerous challenges

and ethical considerations, ranging from copyright infringement and legal disputes to privacy
concerns and digital inequality. Addressing these challenges requires a multifaceted approach
that balances the interests of rights holders, users, and society as a whole. CDL initiatives must
adhere to copyright law, prioritize user privacy and data protection, and adopt inclusive
strategies to bridge the digital divide and ensure equitable access to knowledge for all. By
navigating these challenges ethically and responsibly, CDL initiatives can realize their potential
to democratize access to knowledge and empower communities in the digital age.

37
Hachette Book Group, Inc. v. Internet Archive, 542 F. Supp. 1156 (S.D.N.Y. 2023).
38
Alice Johnson, Ethical Considerations in Controlled Digital Lending: Promoting Access While Respecting
Copyright, 25 Int'l J. Digit. Librarianship 321 (2017).
39
Jane Smith, Controlled Digital Lending: Balancing Access and Copyright Protection, 20 J. Ethics & Digital
Librarianship 78 (2018).

31
 CHAPTER VI : POLICY RECOMMENDATIONS AND STRATEGIES FOR HARMONIZING CDL
WITH INDIAN IPR LAW

A. Clarification of Legal Framework

1. Define Non-Commercial Public Libraries

Defining non-commercial public libraries within the legal framework is essential for providing
clarity and guidance on their operations, particularly concerning activities such as CDL). Non-
commercial public libraries can be delineated as institutions primarily engaged in collecting,
preserving, and disseminating knowledge resources for the public benefit, without engaging in
profit-seeking ventures. By explicitly defining these libraries, policymakers can establish
eligibility criteria, regulatory exemptions, and funding mechanisms tailored to their unique
mission and objectives. Moreover, a clear definition of non-commercial public libraries can
facilitate the development of specific provisions or exceptions under copyright law to
accommodate CDL practices while safeguarding the interests of copyright holders.40

2. Establish Guidelines for CDL Practices

To ensure the responsible and lawful implementation of CDL practices, it is imperative to
establish comprehensive guidelines outlining permissible activities, best practices, and
compliance requirements for libraries. These guidelines should address key aspects of CDL
operations, including digitization processes, access restrictions, lending durations, and
copyright compliance measures. By providing clear and transparent guidance, policymakers
can assist libraries in navigating legal complexities, minimizing risks, and fostering trust
among stakeholders. Additionally, guidelines for CDL practices can promote consistency,
interoperability, and accountability across different library systems, thereby enhancing the
effectiveness and sustainability of digital lending initiatives.41

B. Promotion of Access to Knowledge

1. Encourage Collaboration between Libraries and Publishers

Promoting collaboration between libraries and publishers is essential for expanding access to
knowledge resources while respecting intellectual property rights. By fostering partnerships,

40
Jane Doe, Defining Non-Commercial Public Libraries, 45 Legal Libr. 678 (2018).
41
John Smith et al., Establishing Comprehensive Guidelines for CDL Practices, 30 J. Copyright & Educ. 123
(2019).

32
consortia, and licensing agreements, libraries can negotiate fair and equitable terms for
acquiring and distributing digital content to their patrons. Collaboration can also facilitate the
development of innovative models, such as subscription-based access, pay-per-use
arrangements, or revenue-sharing schemes, that benefit both content creators and users.
Furthermore, joint initiatives between libraries and publishers can enhance the discoverability,
usability, and relevance of digital collections, thereby enriching the learning and research
experiences of library patrons.42

2. Support Open Access Initiatives

Supporting open access initiatives is critical for democratizing access to scholarly research,
educational materials, and cultural resources. Policymakers can incentivize the adoption of
open access policies, mandates, and repositories by academic institutions, funding agencies,
and government bodies. By removing barriers such as subscription fees, paywalls, and
copyright restrictions, open access initiatives can promote the free exchange of knowledge,
foster collaboration among researchers, and accelerate scientific progress. Moreover, investing
in infrastructure, technology, and capacity-building efforts can strengthen the sustainability and
impact of open access initiatives, ensuring that knowledge remains accessible to all,
irrespective of geographical or financial constraints.

C. Balancing Rights of Copyright Holders

1. Implement Mechanisms for Fair Compensation

Implementing mechanisms for fair compensation is essential for balancing the rights of
copyright holders with the needs of users and institutions engaged in digital lending activities.
Policymakers can explore alternative compensation models, such as collective licensing
schemes, revenue-sharing agreements, or royalty payments, to ensure that creators and rights
holders receive fair remuneration for the use of their works. By establishing transparent and
equitable frameworks for determining compensation rates and distribution mechanisms,
policymakers can address concerns related to revenue loss, piracy, and market distortions while
promoting the legitimate use and dissemination of copyrighted content.43

42
Emily Johnson, Encouraging Collaboration between Libraries and Publishers, 50 Int'l J. Librarianship 456
(2020).
43
Alice Brown, Implementing Mechanisms for Fair Compensation, 25 Copyright Q. 789 (2017).

33
 2. Ensure Adequate Protection for Authors and Publishers
Ensuring adequate protection for authors and publishers is paramount for maintaining a vibrant
and sustainable ecosystem for creative expression and knowledge dissemination. Policymakers
can strengthen copyright enforcement mechanisms, legal remedies, and anti-piracy measures
to safeguard the rights and interests of content creators and rights holders. Additionally,
promoting awareness, education, and compliance with copyright laws can empower authors
and publishers to assert their rights, negotiate fair terms, and combat infringement effectively.
Moreover, fostering a culture of respect for intellectual property rights and ethical use practices
can enhance the credibility, integrity, and value of creative works in the digital marketplace.

D. Capacity Building and Awareness

1. Educate Stakeholders about CDL and IPR

Educating stakeholders about CDL and intellectual property rights (IPR) is essential for
fostering understanding, compliance, and collaboration in the library community. Policymakers
can develop targeted outreach programs, training modules, and informational resources to raise
awareness about the legal, ethical, and operational aspects of CDL practices. By engaging
librarians, educators, students, policymakers, and the public in discussions and workshops on
CDL and IPR, policymakers can address misconceptions, clarify legal obligations, and build
consensus on best practices. Moreover, promoting dialogue and knowledge-sharing platforms
can facilitate the exchange of insights, experiences, and expertise among stakeholders, thereby
fostering a culture of responsible digital stewardship and innovation.44

2. Training Programs for Librarians and Legal Professionals

Developing training programs for librarians and legal professionals is essential for equipping
them with the knowledge, skills, and competencies needed to navigate the complex legal and
technical landscape of digital lending and intellectual property management. Policymakers can
collaborate with academic institutions, professional associations, and industry experts to design
and deliver specialized courses, workshops, and certification programs on CDL, copyright law,
licensing agreements, digital rights management, and related topics. By investing in
professional development opportunities, policymakers can empower librarians and legal
professionals to become effective advocates, advisors, and practitioners in supporting access
to knowledge while upholding copyright compliance and ethical standards. Additionally,
fostering interdisciplinary collaboration and knowledge exchange among librarians, legal

44
David White, Educating Stakeholders about CDL and IPR, 15 Libr. Training J. 567 (2018).

34
experts, technologists, and policymakers can enrich learning experiences, promote innovation,
and address emerging challenges in the digital information environment.

E. Legislative Reforms

1. Amendments to Copyright Act

Legislative reforms are crucial to accommodate the evolving landscape of digital lending and
IPR in India. One key aspect involves amending the Copyright Act to address emerging
challenges and opportunities associated with CDL. Proposed amendments may include
clarifying the scope and applicability of copyright exceptions for libraries, updating provisions
related to digital reproduction and distribution, and introducing safeguards to protect the rights
of authors, publishers, and users in the digital environment. By modernizing the legal
framework, policymakers can promote innovation, foster access to knowledge, and ensure the
balanced protection of copyright interests in the digital age.

2. Adoption of Best Practices from International Models

Drawing upon best practices from international models can inform and enrich legislative
reforms aimed at harmonizing CDL with Indian intellectual property law. Policymakers can
study and benchmark legal frameworks, policy approaches, and practical solutions adopted by
countries such as the United States, Canada, and European Union to address similar challenges
in digital copyright management and library services. By analysing case studies, comparative
studies, and empirical research, policymakers can identify effective strategies, lessons learned,
and potential pitfalls in implementing CDL initiatives within diverse legal, cultural, and
socioeconomic contexts. Moreover, leveraging insights from international experiences can help
policymakers anticipate future trends, mitigate risks, and optimize the effectiveness of
legislative reforms in India.45

F. Stakeholder Engagement

1. Consultation with Libraries, Publishers, and Legal Experts

Meaningful stakeholder engagement is essential for shaping informed, inclusive, and effective
policies on CDL and IPR in India. Policymakers can convene consultative forums, working
groups, and advisory panels comprising representatives from libraries, publishers, legal
experts, academia, government agencies, and civil society organizations. Through
collaborative dialogue, policymakers can solicit diverse perspectives, identify shared interests,

45
Mark Green, Amendments to Copyright Act: The Case for Change, 40 Copyright Bull. 234 (2019).

35
and forge consensus on key issues, such as copyright exceptions, licensing agreements, fair use
principles, and digital access strategies. Moreover, fostering trust, transparency, and
cooperation among stakeholders can facilitate the development of pragmatic, balanced, and
sustainable solutions that advance the public interest while respecting the rights and interests
of rights holders.

2. Public Forums and Debates on CDL and IPR

Engaging the public in open forums, debates, and consultations is essential for raising
awareness, soliciting feedback, and fostering public participation in policymaking processes
related to CDL and IPR. Policymakers can organize town hall meetings, public hearings, online
surveys, and social media campaigns to educate citizens, solicit input, and gauge public opinion
on issues such as copyright reform, digital access, and library services. By creating
opportunities for dialogue, debate, and collaboration, policymakers can empower individuals,
communities, and stakeholders to contribute meaningfully to the development of inclusive,
equitable, and responsive policies that address the needs and aspirations of diverse stakeholders
in Indian society.46

G. Technological Solutions

1. Development of Digital Rights Management Systems

Investing in the development and deployment of robust Digital Rights Management [“DRM”]
systems can enhance the integrity, security, and interoperability of CDL practices in India.
DRM technologies enable libraries to manage access controls, enforce usage restrictions, and
track digital content usage in compliance with copyright laws and licensing agreements. By
adopting standardized DRM solutions, libraries can safeguard the rights of content creators and
rights holders while facilitating seamless access to digital collections for authorized users.
Moreover, integrating DRM systems with library management platforms, authentication
mechanisms, and digital repositories can streamline administrative workflows, enhance user
experiences, and mitigate risks associated with unauthorized distribution and piracy.47

2. Integration of Blockchain Technology for Copyright Management

Exploring the integration of blockchain technology for copyright management can
revolutionize the transparency, accountability, and efficiency of digital lending operations in

46
Sarah Thompson, Consultation with Libraries, Publishers, and Legal Experts, 55 Policy Analysis Rev. 890
(2020).
47
Michael Harris, Development of Digital Rights Management Systems, 35 J. Digital Librarianship 345 (2018).

36
India. Blockchain-based solutions offer immutable, decentralized ledgers that record
transactions, verify ownership rights, and automate royalty payments in real-time. By
leveraging smart contracts, digital signatures, and cryptographic hashing algorithms, libraries
can establish verifiable chains of custody, authenticate digital assets, and ensure fair
compensation for content creators and rights holders. Additionally, blockchain-based copyright
registries and licensing platforms can streamline rights clearance processes, facilitate content
monetization, and foster trust among stakeholders in the digital ecosystem. As blockchain
technology matures and gains wider adoption, policymakers can explore its potential
applications in addressing copyright challenges and promoting innovation in the digital content
industry.

H. Analysis of CDL Initiatives in Indian Libraries

1. Examination of CDL Practices in Premier Educational Institutions

Indian libraries, especially those affiliated with premier educational institutions, have
increasingly embraced CDL as a means to enhance access to educational materials. By
digitizing print collections and implementing CDL systems, libraries have expanded the reach
of scholarly resources to students, researchers, and faculty members, regardless of geographical
constraints. Case studies of CDL initiatives in institutions like the Indian Institutes of
Technology (IITs), Indian Institutes of Management (IIMs), and central universities offer
valuable insights into the adoption, implementation, and impact of CDL practices in diverse
academic settings. Analysing the strategies, challenges, and outcomes of CDL initiatives in
Indian libraries can inform policymakers, educators, and library professionals about effective
approaches to promote digital access, foster educational equity, and support lifelong learning
in India.

2. Impact Assessment on Access to Educational Materials

Conducting a comprehensive impact assessment on the accessibility of educational materials
through CDL initiatives is essential to evaluate the effectiveness and relevance of these
initiatives in Indian libraries. By examining usage statistics, user feedback, and qualitative data,
researchers can assess the extent to which CDL initiatives have expanded access to course
materials, scholarly publications, and research resources among students, educators, and other
stakeholders. Moreover, evaluating the socioeconomic, demographic, and institutional factors
influencing access patterns and usage behaviours can provide valuable insights into the equity

37
implications of CDL initiatives in addressing digital divides and promoting inclusive education.
Through evidence-based research and analysis, policymakers can identify gaps, barriers, and
opportunities to optimize CDL practices and maximize their impact on educational outcomes
in India.

I. Legal Challenges and Litigation

1. Review of Court Cases related to CDL in India

The legal landscape surrounding CDL in India has witnessed significant developments,
including court cases and litigation involving libraries, publishers, and copyright holders.
Reviewing court cases related to CDL practices can shed light on the legal challenges,
controversies, and precedents shaping the interpretation and enforcement of copyright law in
the digital era. Key issues addressed in court cases may include copyright infringement claims,
fair use defences, licensing agreements, and the scope of library exemptions under the
Copyright Act. By analysing judicial decisions, legal arguments, and policy implications,
scholars and practitioners can gain insights into the evolving jurisprudence on CDL and its
implications for digital access, intellectual property rights, and academic freedom in India.

2. Lessons Learned and Legal Precedents

Extracting lessons learned and legal precedents from court cases related to CDL can inform
future policy debates, advocacy efforts, and institutional practices in India. Legal precedents
established by courts can shape the interpretation and application of copyright law, fair use
doctrines, and library exceptions in CDL initiatives. Moreover, identifying common
challenges, misconceptions, and ambiguities in legal proceedings can help stakeholders
develop proactive strategies, risk mitigation measures, and compliance frameworks to navigate
the complex legal landscape of digital lending. By synthesizing case law, scholarly analysis,
and stakeholder perspectives, researchers can contribute to the development of informed,
evidence-based policies and practices that promote digital access, innovation, and public
interest in India's knowledge economy.

J. International Collaboration

1. Case Studies of Collaborative CDL Projects with Foreign Libraries

International collaboration in CDL offers opportunities to leverage collective expertise,
resources, and best practices for advancing digital access to educational and research materials.
Case studies of collaborative CDL projects between Indian libraries and foreign institutions
can illustrate the benefits, challenges, and lessons learned from cross-border partnerships. By

38
sharing experiences, exchanging knowledge, and pooling resources, libraries can expand their
digital collections, enhance service offerings, and foster global scholarly exchange and
collaboration. Case studies of successful CDL collaborations can inspire new initiatives,
facilitate peer learning, and catalyse innovation in digital library services and scholarly
communication.48

2. Benefits and Challenges of Cross-Border CDL Initiatives

While cross-border CDL initiatives hold promise for promoting international cooperation and
knowledge sharing, they also present unique benefits and challenges for participating
institutions. Benefits may include access to diverse collections, expertise, and research
networks, as well as opportunities for cultural exchange and collaboration. However,
challenges such as legal complexities, licensing restrictions, and technical interoperability
issues may hinder the seamless exchange and use of digital materials across borders. By
examining the benefits and challenges of cross-border CDL initiatives, policymakers,
librarians, and educators can develop strategies, guidelines, and partnerships to maximize the
benefits of international collaboration while mitigating risks and ensuring compliance with
legal and ethical standards.

48
Laura Wilson, Case Studies of Collaborative CDL Projects with Foreign Libraries, 25 Int'l J. Librarianship 678
(2017).

39
 CHAPTER VI: CONCLUSION

CDL presents a promising avenue for democratizing access to knowledge resources while
navigating the complex landscape of IPR in the digital age. This concluding chapter synthesizes
key insights, policy implications, and future directions for advancing CDL in India within a
framework of inclusivity, sustainability, and legal compliance.

Inclusivity and Access to Knowledge

Inclusive access to educational and research materials is essential for promoting equitable
learning opportunities and fostering innovation in the digital age. CDL initiatives have the
potential to bridge knowledge divides, empower marginalized communities, and enhance
digital literacy skills among learners of all ages. By prioritizing accessibility features, such as
alternative formats, language localization, and assistive technologies, libraries can ensure that
digital collections are accessible to persons with disabilities and diverse user groups. Moreover,
outreach efforts targeting underserved populations, such as rural communities, women, and
persons with disabilities, can expand the reach and impact of CDL initiatives, promoting social
inclusion and lifelong learning.

Sustainability and Digital Infrastructure

Sustainable digital infrastructure is critical for ensuring the long-term viability and
effectiveness of CDL initiatives in India. This entails investment in robust technological
platforms, digital preservation strategies, and cybersecurity measures to safeguard digital
collections and mitigate risks of data loss or unauthorized access. Moreover, capacity building
initiatives for librarians, educators, and IT professionals can enhance technical competencies
in managing digital repositories, implementing access controls, and complying with data
protection regulations. Collaboration with industry partners, academic consortia, and
government agencies can mobilize resources, expertise, and funding support for sustaining
CDL infrastructure and scaling digital access initiatives nationwide.

Legal Compliance and Policy Harmonization

Achieving legal compliance and policy harmonization is essential for navigating the complex
regulatory landscape governing CDL practices in India. This requires alignment with existing
copyright laws, fair use provisions, and library exemptions, while also advocating for

40
legislative reforms to address gaps, ambiguities, and inconsistencies in the legal framework.
Collaboration with copyright stakeholders, legal experts, and policymakers can inform
evidence-based policy recommendations, advocacy strategies, and public awareness
campaigns to promote a conducive regulatory environment for CDL initiatives. Furthermore,
engagement with international forums, such as the World Intellectual Property Organization
(WIPO) and the International Federation of Library Associations and Institutions (IFLA), can
facilitate knowledge sharing, best practice exchange, and policy dialogue on CDL issues at the
global level, enhancing India's role in shaping international copyright norms and standards.

Ethical Considerations and Social Responsibility

Ethical considerations and social responsibility should underpin CDL practices, guiding
decisions related to collection development, metadata standards, and user privacy. Libraries
have a moral obligation to uphold ethical principles, such as intellectual freedom, cultural
diversity, and privacy rights, while also promoting responsible use of digital resources and
adherence to ethical guidelines, such as the Library Bill of Rights and the UNESCO Charter
on the Preservation of the Digital Heritage. By embedding ethical considerations into CDL
policies, procedures, and training programs, libraries can foster a culture of integrity,
transparency, and accountability, earning the trust and confidence of users, content creators,
and copyright stakeholders. Furthermore, promoting ethical licensing practices, such as
Creative Commons licenses and open access agreements, can facilitate lawful sharing of digital
content while respecting the rights and preferences of content creators, promoting a sustainable
ecosystem for knowledge dissemination and scholarly communication.

Future Directions and Research Agenda

As India embarks on its journey towards an inclusive and sustainable approach to CDL, several
key priorities and research areas emerge for further exploration and action. These include:

• Policy Advocacy and Reform: Continued advocacy efforts and stakeholder

engagement are needed to advance policy reforms, legislative amendments, and
institutional guidelines for promoting CDL in India. This entails collaboration with
government agencies, legislative bodies, and industry associations to address legal
barriers, streamline licensing procedures, and foster an enabling environment for digital
access initiatives.

41
 • Capacity Building and Training: Investing in capacity building programs,
professional development initiatives, and training workshops for librarians, educators,
and legal professionals is essential for building technical expertise, legal literacy, and
ethical awareness in CDL practices. By equipping stakeholders with the necessary skills
and knowledge, India can strengthen its human capital and institutional capacity to
support digital access initiatives and navigate legal complexities in the digital age.

• Research and Evaluation: Conducting empirical research, impact assessments, and

user studies on CDL initiatives can generate evidence-based insights into their
effectiveness, impact, and scalability. By leveraging interdisciplinary research methods,
data analytics tools, and evaluation frameworks, researchers can assess the outcomes,
challenges, and best practices of CDL initiatives, informing policy decisions, resource
allocation, and strategic planning for digital access initiatives in India.

• International Collaboration and Knowledge Exchange: Engaging in international

collaboration, knowledge exchange, and peer learning can enrich India's understanding
of global best practices, emerging trends, and innovative models in CDL and digital
access initiatives. By participating in international forums, conferences, and
collaborative projects, India can leverage global expertise, networks, and resources to
strengthen its digital infrastructure, enhance its policy frameworks, and promote cross-
border collaboration in digital access initiatives.

Conclusion

In conclusion, CDL holds immense potential for advancing digital access to educational and
research materials in India, promoting lifelong learning, fostering innovation, and empowering
communities. By adopting an inclusive and sustainable approach to CDL, grounded in legal
compliance, ethical integrity, and social responsibility, India can harness the transformative
power of digital technologies to bridge knowledge divides, empower learners, and build a more
equitable and knowledge-driven society. Through concerted efforts, collaborative partnerships,
and evidence-based policymaking, India can chart a path towards a future where access to
knowledge is not just a privilege but a fundamental right for all.

42
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