I. Introduction
The global shift towards knowledge-based economies and the expansion of international trade pose significant legal and political challenges in regulating access to information and knowledge. Societal well-being is particularly impacted when quality education and research are curtailed due to restrictive access within information and knowledge networks. Copyright, as one of the branches of intellectual property rights, plays a crucial role in regulating educational and research materials that are subject to its protection.
Copyright refers to a bundle of exclusive rights conferred on creators of original works. One of the justifications for granting such exclusive rights is to encourage and promote research and teaching for the benefit of society at large. However, copyright and education have had a troubled history.[1] The use of copyrighted materials is inevitable in educational institutions. While these works promote learning and knowledge, and copyright law benefits authors by granting a temporary monopoly, it also ensures public access by limiting the duration of protection. Yet, access to works is required even during the term of copyright protection,[2] as the goal of learning cannot be postponed until the expiry of copyright.
Moreover, the creation of new works often depends on existing copyrighted materials, as new authors rely on them to develop their own expressions.[3] Other intellectual activities such as research, criticism, and commentary also require reference to prior works. In this context, the ultimate task of copyright law is to strike a fair balance between the author’s right to control dissemination and the public interest in widespread access to creative works.[4]
However, the dualistic nature of copyright presents a real danger, where the exclusivity function may override the public access function, leading to a curtailment of research and development.[5] This issue is especially critical for developing countries, which may face serious restrictions in accessing music, books, and software necessary for basic education and research. Such access has long been recognised as essential for sustainable development. Jessica Litman classifies countries into copyright ‘haves’, typically developed countries with copyrights controlled by large publishing, software, and entertainment conglomerates and copyright ‘have-nots’, usually developing countries heavily reliant on foreign publications.[6] An example of this disparity is evident in African universities, where inadequate national internet infrastructure further hinders access to copyrighted materials. Many universities and institutions still lack sufficient internet connectivity, exacerbating the inequality in access to information.[7]
The national copyright laws, while granting protection at different levels, must be harmonised to support the effective functioning of regional and global markets.[8] Copyright laws have never been entirely exclusive, as they are subject to limitations and exceptions designed to balance the interests of rights holders and the public. These exceptions, often known as fair use, fair dealing, permitted acts, or similar terms depending on national legislation, are essential for maintaining that balance and enabling access for specific purposes without the creator’s permission.[9] However, this balance is increasingly disturbed by legislative, technical, and commercial developments. For instance, technology-based protective measures and electronic licensing systems pose serious challenges to access and its potential benefits. Copyrighting foreign, rather than domestic, materials and lacking adequate infrastructure have had particularly negative effects on copyright-importing countries.[10]
Given that copyright is universally recognised, national laws must be reviewed in light of international treaties, particularly with respect to their impact on research and development in developing countries. To ensure that education and research are not disadvantaged by a copyright regime tipped in favour of owners, especially conglomerates, lawmakers must establish legal structures that guarantee public access to research and educational materials.[11]
II. Justifications for Limitations and Exceptions
The copyright limitations and exceptions, such as the ‘fair use’ or ‘fair dealing’ doctrines, are important components of copyright law. As Miller and Davis concisely write: “If the copyright law is the ‘metaphysics’ of law, fair use is its semiotics.”[12] In the US, fair use as a legal principle not only exists in statutory law but also in some judicial activities.[13] Therefore, “fair use” serves as a clear illustration of why and how copyright should be regulated. Fair usage is supported by significant arguments.
First, from the standpoint of distributive justice, the distribution of scarce resources should meet each individual’s minimum need. The theory’s basic principles aim to maximize liberty and equity of opportunity, alongside a second principle of justice.[14] This second principle holds that social and economic inequalities are only justified when they provide the greatest benefit to the least advantaged members of society.[15] Unlike utilitarianism, which is criticised for allowing minority suffering in pursuit of maximum utility,[16] the justice theory focuses primarily on social equity. It considers liberty a political right, placing political liberties above property growth, as these liberties cannot be exchanged for economic gain in principle.[17]. According to distributive justice theory, Drahos views the right to receive information as a political liberty.[18] The knowledge and skills obtainable from books and other copyrighted materials are essential for developing human capital in any society.
However, Intellectual property broadly, and copyright specifically, creates arbitrary pricing for knowledge by controlling who can publish books and journals and what they can charge for protected materials.[19] These arbitrary prices restrict poorer people’s ability to invest in educational resources. Fair use and compulsory licensing schemes therefore serve as compensation for disadvantaged groups and help restore balance to society.[20] Beyond viewing fair use as merely compensatory, some scholars argue it should be reconceptualized as a collective user right rather than just an affirmative defense.[21]
From an economic perspective, market failure occurs when transaction costs exceed a good’s intrinsic value,[22] requiring removal or avoidance of extra costs for market efficiency.[23] The private use of copyrighted work qualifies as fair use[24] because monitoring it is expensive, time-consuming, often technically impossible, and generally doesn’t reduce commercial profits.[25] Therefore, private use is permitted as fair use to promote efficient markets. Wendy Gordon proposed a three-part test for granting fair use: market failure exists, transferring use to the defendant is socially desirable, and fair use wouldn’t substantially harm the rights holder.[26]
Fair use also serves to balance interests between intellectual property rights and freedom of expression, which is protected under Article 19 of the Indian Constitution.[27]
III. Limitations and Exceptions for Education in International Frameworks
The limitations on copyright define the boundary between the copyright and the public domain.[28] The Copyright exceptions define protected materials not subject to the copyright holder’s control.[29] In general, these exceptions grant users privileges for actions that would otherwise constitute copyright infringement.[30] The term ‘exception’ differs across jurisdictions and the two terms, ‘limitation’ and ‘exception’, are often used interchangeably. The international conventions recognize copyright exceptions under specific limited circumstances. The ‘Berne Convention for the Protection of Literary and Artistic Works, 1886’ was the first international copyright convention which addressed limitations and exceptions, and remains highly significant.[31] The Convention was designed with flexibility to accommodate countries with different legal systems, enabling it to function effectively as a global copyright agreement. The general exception was inserted in 1967 under Article 9 (2)[32] which provides, thus:
“It shall be a matter for legislation in the countries of the union to permit the reproduction of such works in special cases, provided that such reproduction doesn’t conflict with normal exploitation of the work and doesn’t unreasonably prejudice the legitimate interest of the author.”
The provision is also called the three-step test, a crucial provision that subsequently was included in many national and international copyright laws.[33] According to three-step test:
- any exception or limitation ‘shall cover only certain special cases’ such as for one’s private appreciation, as well as for education and research.
- any exception or limitation ‘shall not conflict with a normal exploitation of the work’. A general understanding of ‘normal exploitation’ is an author’s expectation of receiving revenue from a marketed work.
- any exception or limitation ‘ shall not unreasonably prejudice the legitimate interests of the author’. When analysing “legitimate interest”, the point to be noted is that these interests refer to authors themselves, not derivative copyright holders like publishers.[34] The term “unreasonable prejudice” suggests that using a work should be quantitatively proportionate to the entire work. For example, an author has the right to be cited, so extensively quoting from their work without acknowledgment unreasonably prejudices their moral right to be recognised for their thoughts and ideas.[35]
When analysing “legitimate interest”, two points have to be noted. First, these interests refer to authors themselves, not derivative copyright holders like publishers. Second, “unreasonable prejudice” implies that using a work should be quantitatively proportionate to the entire work. For instance, authors have attribution rights, so extensively quoting from their work without acknowledgment unreasonably prejudices their moral right to be recognized for their thoughts and ideas.
According to the three-step test, Article 10(2) provides an exception for using literary or artistic works for teaching. It provides thus:[36]
“It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilisation, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.”
Further, Article 13 of TRIPS[37] also provides:
“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”
IV. Copyright Exceptions for Educational and Research Use in India
The origin of copyright law in India can be dated back to ancient times, when manuscripts were copied and stored writings on palm leaves.[38] India’s copyright legislation stretches back to the British colonial era. However, even before the British brought copyright law in India, the Bombay High Court declared the Copyright Act of the United Kingdom effective in India in the McMillan v. Khan Bahadur Shamsul Ulama Zaka.[39] The Copyright Act of 1847[40] was India’s first copyright law, and it was largely modeled after the U.K. Copyright Act of 1842.[41]
India’s copyright legislation evolved significantly in the post-independence era. After independence, the Government of India adopted the Copyright Act, 1957,[42] which remains the fundamental statute governing copyright in India. The provisions of the ‘Copyright Act, 1957’, are totally consistent with all international copyright conventions and treaties to which India is a member.[43] Though, India is not a member of the ‘International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organisations (Rome Convention), 1961 of WIPO’, or ‘the Beijing Audiovisual Performances Treaty, 2012’. However, the 1957 Act’s provisions are entirely consistent with the treaties’ minimal standards.[44] The ‘Copyright Act of 1957’ has undergone various modifications to reflect the changing landscape of intellectual property and technological developments. The ‘Copyright Act of 1957’ has been changed five times since then; in 1983, 1984, 1992, 1994, 1999, and 2012.[45]
Copyright Exceptions under the India’s Copyright Act, 1957
The copyright law allows certain acts to be performed without the permission of the copyright owner and without payment to the owner of the copyrighted works. Section 52[46] addresses exceptions or restrictions, i.e., acts for which the author or owner of the work’s formal consent is not necessary. Section 39[47] lists particular acts that do not violate broadcast reproduction rights or performer rights. These include recordings for private use, recordings for teaching or research, and fair use of broadcast portions for reporting current events or legitimate review, teaching, or research. It also includes additional acts that, with adjustments, don’t constitute copyright infringement under Section 52. These both provisions try to strike a balance between the copyright owner’s exclusive rights and the public interest in the free distribution of all works.[48] The Delhi High Court clarified the principle behind the copyright exceptions in the case of Chancellor Masters & Scholars of the University of Oxford v. Narendra Publishing House.[49] The court observed thus:[50]
“The doctrine of fair use…legitimizes the reproduction of a copyrightable work. Coupled with a limited copyright term, it guarantees not only a public pool of ideas and information, but also a vibrant public domain in expression, from which an individual can draw as well as replenish. Fair use provisions, then must be interpreted so as to strike a balance between exclusive rights granted to the copyright holder, and the often-competing interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativity It, therefore, must receive a liberal construction in harmony with the objectives of copyright law. Section 52 of the Act only details the broad heads, use under which would amount to infringement. Resort, must, therefore be made to the principles enunciated by the courts to identify fair use..”
Fair Dealing Of Works For Personal Use Or Research
Section 52(1)(a)(i)[51] provides that “a fair dealing with any work (excluding computer programme) shall not constitute infringement for the purpose of private or personal use, including research.” Section 39(a) states that “the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research will not be an infringement of broadcast reproduction right or performer’s right.” It is apparent that under this rule, only the production of recordings is permitted, not their use. Individuals must utilise such recordings in accordance with section 39(b), and such use must pass the fair dealing test.[52] Section 39(b) states that “the use, consistent with fair dealing of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research, is also not an infringement.” Sections 52(1)(a) and 39(b) employ the term ‘fair dealing’. However, the word ‘fair dealing’ is not defined in the ‘Copyright Act, 1957’. Indian courts have relied on judgments from the ‘United Kingdom’ and the ‘United States’.[53] Lord Denning observations in Hubbard v. Vosper,[54] were relied upon by the courts in India to decide the cases of fair dealing.[55] Lord Denning in this observed thus:[56]
“It is impossible to define what is “fair dealing.” It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide. In the present case, there is material on which the tribunal of fact could find this to be fair dealing.”
The courts have also relied upon the Ashdown v. Telegraph Group Ltd.[57] wherein the Court of Appeal observed thus:
“the defense of fair dealing depends on three factors, whether it is in commercial competition with the work used; whether the work has been published or is otherwise available to them and the amount and importance of the work taken.[58]
The Indian courts have also relied upon Section 107 of ‘U.S. Copyright Act’[59] which provides that “when the use of the copyrighted work is “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research it is not copyright infringement”. Further, for determining whether the use is fair, Section 107 lays down that a court must take into consideration the following four factors:[60]
1. “the purpose and character of the use, including whether such use is commercial or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used concerning the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted ”
The ‘fair use’ provisions in America are simply illustrative and do not constitute a close-ended list. In contrast, the legislation on ‘fair dealing’ in India is strict since it provides an exhaustive list; any act that does not fall under that list is considered a violation of copyright. Despite this statutory rigidity, Indian courts have recognised that the finding of fair dealing is based on the facts and circumstances of each case.
Copyright Exceptions In The Course Of Activities Of Educational Institution
Sections 52(1)(i) and 52(1)(j) allows certain activities for the purpose of education. Section 52(1)(i)(i) provides that “the reproduction of any work shall not constitute an infringement of the copyrighted works if it is reproduced by a teacher or pupil in the course of instruction.” This provision is the key exception as it allows a teacher or a student to reproduce any work created during instruction. In Longman Group Ltd. v. Carrington Technical Institute Board of Governor,[61] the High Court of Auckland observed that:
“…course of instruction would include anything in the process of instruction with the process commencing at a time earlier than the time of instruction, at least for a teacher, and ending at a time later, at least for a student and that so long as the copying forms part of and arises out of the course of instruction; it encompasses preparation of material to be used in the course of instruction.”[62]
In The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services,[63] matter related to interpretation of Section 52(1)(i) was raised for the first time. The plaintiffs filed the suit for a permanent injunction. The plaintiffs asked for that the defendants[64] be prohibited from infringing the plaintiffs’ copyright in their publications through photocopying and the sale of unauthorized compilations of substantial extracts from the plaintiffs’ publications. The court rejected the contention and held that the defendants’ actions did not constitute infringement. In the context of Section 52(1)(i), the court observed thus:[65]
“The scope and ambit of section 52(1)(i) cannot be restricted. Education in the country though at one time pursued in Guru-Shishya parampara (Teacher-disciple tradition) has for long now been institutionalized, both at school and post-school level, with imparting of education by a teacher individually having no recognition. There is no reason to interpret it as providing for an individual teacher and an individual pupil and which, neither at the time of inclusion thereof in the statute nor now exists in the society….. Thus, merely, because imparting of education by teacher today is as part of an institution…and it is…university which on behalf of its teachers is reproducing any copyrighted work by making photocopy would not mean that section 52(1)(i) would not be applicable.”
The court interpreted the word ‘instruction’. The court stated that the word ‘instruction’ in relation to a teacher would mean “something which a teacher tells the student to do in the course of teaching or detailed information which a teacher gives to a student or pupil to acquire knowledge of what the student or pupil has approached the teacher to learn.”[66]
Furthermore, the court noted that the course of instruction continues throughout the entire academic session, thus concluded that “reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil as prescribed in the syllabus during the academic year would be within the meaning of 52(1)(i).”[67]
An appeal was filed against the decision of the single judge. The division bench[68] in appeal set aside the judgment of the single judge and in para 33, observed thus:
“In the context of teaching and use of copyrighted material, the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’. In other words, the utilisation of the copyrighted work would be a fair use to the extent justified for the purpose of education. It would have no concern with the extent of the material used, both qualitative or quantitative. The reason being, ‘to utilize’ means to make or render useful. To put it differently, so much of the copyrighted work can be fairly used which is necessary to effectuate the purpose of the use i.e., make the learner understand what is intended to be understood.”
‘Sub-clauses (ii) and (iii) of Section 52(1) (i)’[69] permit “the reproduction of the copyrighted works as part of the questions to be answered in an examination or in answer to such questions.” As a result, section 52(1)(i)(ii) allows the examiner to quote a few paragraphs from the copyrighted work in a question paper and ask the student to analyse them. Section 52(1)(i)(iii) allows students to quote from copyrighted works while answering questions.
Section 52(1)(j)[70] allows “the performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recording if the audience is limited to such staff and students, the parents and guardians of the students and persons connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording.” This exception is wider in scope as the parents and guardians of the students can also constitute part of the audience.[71]
Copyright Exceptions for Libraries
Sections 52(1)(n), 52(1)(o) and 52(1)(p) allow libraries to conduct certain activities.[72] Libraries play an important role in developing nations in democratizing access to knowledge and acting as agents to solve the issue of the digital divide.[73]
Section 52(1)(n) authorises “the storing of a work in any medium by Electronic means by a non-commercial public library, for preservation if the library already possesses a non-digital copy of the work.”[74] Under this clause, the library may store the work for preservation but not reproduce or distribute the conserved work to users. It is unclear what is considered as a ‘non-commercial public library’ because the term is not defined in the legislation and may be subject to varying interpretations. Explanation to section 2(fa) provides that “a non-profit library means a library that receives grants from the government or is exempted from payment of tax under the Income Tax Act, 1961.” According to different definitions in state legislations regarding public libraries, it may refer to a library established by the government or receiving government funds and open to the public for reference with or without charging a fee or subscription.[75] However, it would be preferable if this provision were extended to all public libraries and research libraries.
Section 52(1)(o) allows “the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a non-commercial public library for the use of the library if such book is not available for sale in India.” The statute provides no definition of the term ‘book’. It is suitable to replace the phrase ‘books’ with ‘works’ so that this provision can be widely used by libraries.[76] Furthermore, there is no clarity as to what “not available for sale in India” entails.[77]
Section 52(1)(p) allows “the reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.” However, if the identity of the author of the work or any of the authors in the case of joint authorship is known to the relevant institution, the reproduction of such work under this provision is permitted only if it is made more than sixty years after the author’s death.[78]
Exceptions For Visually/Physically Disabled Persons In Education And Research Purposes
India offers some of the most progressive exceptions for ‘Persons with Disabilities’ and became the Ist country to ratify the Marrakesh Treaty.[79] Even before this Treaty, under Section 52(1)(zb) an exception was added[80] to allow those with physical or visual disabilities to access copyrighted material in ‘specifically accessible formats’ for educational and research purposes.[81] Section 31B also includes a particular provision for a compulsory licensing to benefit ‘Persons with Disabilities’. These amendments are entirely in accordance with the ‘Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, 2013’.[82]
Section 52(1)(zb) permits “the adaption, reproduction, issue of copies or communication to the public of any work in any accessible format, by—
1. any person to facilitate persons with disability to access to works including sharing with any person with disability of such accessible format for private or personal use, educational purpose or research; or
2. any organisation working for the benefit of the persons with disabilities in case the normal format prevents the enjoyment of such works by such persons.”
However, “the copies of the works in such accessible format are made available to the persons with disabilities on a non-profit basis but to recover only the cost of production”[83] and “the organisation shall ensure that the copies of works in such accessible format as used only by persons with disabilities and take reasonable steps to prevent its entry into ordinary channels of business.”[84]
Furthermore, the explanation to the section clarifies the meaning of organisation. It includes “organisation registered under section 12A of the Income-tax Act, 1961 (43 of 1961) and working for the benefit of persons with disability or reorganise under Chapter X of the Persons with Disabilities (Equal Opportunities, Protection or Rights and full Participation) Act, 1995 (1 of 1996) or receiving grants from the government for facilitating access to persons with disabilities or an educational institution or library or archives recognised by the Government.”[85]
V. Copyright Exceptions for Educational and Research Use in China
China lacked a copyright law tradition for two main reasons,[86] first, the state did not intend to create a system protecting private rights including copyright,[87] and second, traditionally in China, the arts were considered non-profit leisure activities for nobility and gentry who were ashamed to profit from writing, painting and publishing.[88] China’s copyright law is a “transplanted law,” with the first copyright legislation only appearing in 1990, granting authors limited exclusive protection.[89] China reformed its copyright law in 1990s during its transition to a market economy. It joined the Berne Convention in 1992 and the WTO in 2001. China passed the Copyright Law Amendments in 2001 with implementing regulations to meet TRIPS Agreement requirements.[90] China also joined the WIPO Internet Treaties and enacted ‘Regulations on Protection of the Right of Communication Through Information Network,[91] which came into effect in 2006 to implement the Treaties.[92] The Copyright Law was amended again in 2010 and recently in 2020. Currently, the 1990 Copyright Law is undergoing major reform, likely to be structurally expanded with more comprehensive copyright protection.[93]
When a country transitions from underdeveloped to developed, it often goes through a piracy period, followed by an understanding of the significance of copyright protection and, finally, respect for IPRs.[94] China follows this pattern and needs a sound legal system to protect domestic and foreign copyright holders, promote copyright industries, and reduce copyright transaction costs within international treaty frameworks.
Copyright Exceptions under the Copyright Act, 1990
The Article 19 of the Chinese Constitution provides that “the state shall develop socialist education to raise the scientific and cultural level of the whole nation.”[95] It also guarantees citizens the right to receive an education.[96] Article 47 guarantees “citizens freedom to engage in scientific research, literary and artistic creation, and other cultural pursuits.”[97] However, it does not specifically guarantee access to the materials required for education and scientific research. Since getting basic educational materials at an affordable price remains a challenge in underdeveloped countries, a constitutional guarantee of access to fundamental educational resources would strengthen the enforceability of the right to education.[98]
The IInd chapter of the ‘Copyright Law of 1990’ lists a number of limitations and exceptions for copyright.[99] The list adopts a closed method that enumerates permitted acts very definitely and very exclusively with copyrighted works. Article 24 allows users to utilise a copyrighted work without permission from or payment to a right holder in 13 different scenarios.[100] The permitted uses related to education and research are:
1. “to utilise a published work for private study, research and self-entertainment;[101]
2. to translate or reproduce a small quantity of a published work for classroom teaching or scientific research, provided that the translation or reproduction is neither published nor distributed;[102] and
3. to reproduce a work for archival or display ”[103]
Article 25 provides for a statutory license for writers to pay to utilise a limited amount of established copyrighted works to develop textbooks.[104] Articles 24 and 25 apply to publishers, performers, audio and video recording producers, and radio and television broadcasters. Articles 24 and 25 both require a user to submit the author’s name and title of a work when it is used. At the same time, a user should not jeopardise a right owner’s other rights under the Copyright Law.[105] These two conditions correspond to the first and third parts of the TRIPS Agreement’s three-step test.
Nevertheless, the ‘no prejudice to copyright owners’ other legitimate rights’ condition is more limited in scope than the third step of the three-step test that prevents copyright owners’ legitimate interests from being prejudiced. This is because interests encompass legally granted rights and benefits that should be preserved but are not explicitly stated in law.[106] The Regulations[107] that implement the Copyright Law of 1990 which became effective in 2002, include a three-step test that is nearly identical to the one included in the TRIPS Agreement:
“The utilization of a published work which may be exploited without permission from the copyright owner in accordance with the relevant provisions of the Copyright Law shall not impair the normal exploitation of the work concerned, nor unreasonably prejudice the legitimate interests of the copyright owner.”[108]
Exceptions and Limitations for Private Use
Article 24 of the Copyright Law exempts the use of copyrighted works for private study, research, or self-entertainment, although it does not specify what constitutes ‘utilization’. In fact, a user needs to reproduce a work or only part of it in order to use it. According to the Copyright Law, reproduction can be undertaken through printing, photocopying, lithographing, creating a sound or video recording, duplicating a recording or photographic work, or by any other means.[109] It is uncertain whether Article 24 exempts users from copying a work for specific reasons, notably using electronic or digital technology.[110] It is inferred that if replication is a necessary step in the use of a work, it comes under the private use exception.
Exceptions and Limitations for Education and Research
Article 24(6) of the Copyright Law of 1990 permits teachers and researchers with an exemption “to translate, adopt, compile, broadcast or reproduce a small quantity of a published work for classroom teaching or scientific research”. However, they are not allowed to publish or distribute the work being translated, adopted, compiled, broadcasted or reproduced. There is no measurable standard for determining what constitutes ‘a small quantity’. A review of the legislative history can help one understand how much users are permitted to use a work under the ‘small quantity’ condition, since there was no formal copyright legislation until 1990, judges had limited legislative guidance when determining whether a use was fair or not. In this regard ‘Zhejiang Intermediate Court’ ruled thus:[111]
“The reproduction and distribution of the sound recordings were fair dealing on the ground that the recordings were made solely for distance education, which was in the public interest. Moreover, the UBTV did not profit from the reproduction and distribution. Therefore, the UBTV was not held liable for copyright infringement.”[112]
The legislative history demonstrates that legislators have considered copyright holders’ interests and protected copyrights by limiting the amount of material users can deal with and prohibiting them from disseminating it.[113] Legislators avoided being unduly strict by specifying the maximum quantity of content a user might work with.[114] Judges could apply the ‘small quantity’ criteria and exercise discretion to assess whether a usage was exempt.
Exceptions and Limitations for Libraries
Article 24(8)[115] allows libraries to reproduce copyrighted materials in their collections for the purpose of display or preservation, without obtaining permission. The Information Network Regulations, which implement the Copyright Law, include two exceptions for libraries:[116]
1. One exception is for libraries to offer a digital version of a published work to readers using an Internet-enabled reading system on their premises.[117] Here, the libraries are required to use technological safeguards to prevent readers from copying digital materials from a reading system.[118]
2. Another exception is that the libraries may digitise a copyrighted work for display and preservation if the original is lost, damaged or kept in an obsolete format and is unavailable in the market at a reasonable price. Library exemptions do not apply if a library profits from digitising and distributing a work.[119]
Furthermore, neither exemption applies if a copyright holder explicitly states that further distribution of a work is not permitted.[120] In China, conventional libraries also have a right to lend the printed material in their collections to readers.The libraries also can make print copies of a work at a user’s request and provide them to the user without violating the copyright.[121]
Exceptions For Visually/Physically Disabled Persons
China joined the Marrakesh Treaty on May 5, 2022, marking significant progress toward increasing access to educational and informational materials for its 17 million visually impaired citizens.[122] Before joining the treaty, China’s copyright laws only permitted the creation of braille books without copyright owner permission, while other accessible formats like audiobooks required authorization, restricting access to education and cultural content for visually impaired individuals.[123] Following treaty adoption, China amended its Copyright Law to permit additional accessible formats such as audio and large print versions. The revised law expanded coverage to include all people with print disabilities, not just those with visual impairments. Non-profit organisations were authorized to produce and distribute accessible copies without profit and when books weren’t already available in accessible formats. China also established provisions for international sharing of accessible books between countries with shared languages.[124] These changes have expanded access to materials for education, research, and personal learning.
Challenges remain, as most accessible materials continue to be produced by public libraries or charitable organisations rather than private companies or educational institutions. Some regulations lack clarity regarding who may create these versions. There’s concern that viewing accessibility as charity rather than a right could impede future progress.[125] While China has made important advancements, further improvements are needed to fully support equal access to knowledge for people with disabilities.
VI. Conclusion
Copyright law seeks to balance authors’ rights with societal needs for educational access. Both India and China incorporate limitations and exceptions to support education and research while respecting authors’ interests. In India, ‘Copyright Act of 1957’ allows ‘fair dealing’ for personal use, study, and research. It permits reproduction for teaching, educational institutional use in exams and classrooms, library preservation copies, and accessible formats for persons with disabilities. Indian courts generally interpret these provisions broadly to support education.
In China, the ‘Copyright Law of 1990’ allows private study, research, and classroom use of limited portions of published works without permission. Teachers and researchers can translate or reproduce small sections for educational purposes without distribution rights. Libraries have preservation exceptions similar to India’s. China employs a closed-list approach to exceptions but grants courts flexibility in interpreting standards like “small quantity”.
Both nations adhere to international frameworks like the Berne Convention and TRIPS Agreement, including the “three-step test” ensuring exceptions apply only in special cases without harming market value or unreasonably affecting authors’ rights. India’s approach is more flexible and court-driven, while China’s is more legislatively defined. These countries recognise education’s importance for national development, though both systems could improve. India needs better definitions and digital resource access, while China requires clarity on “small quantity” and digital usage guidelines. Both countries need stronger infrastructure and public awareness. Copyright laws in India and China continue evolving to balance private rights with public needs, promoting learning and knowledge-sharing while respecting intellectual effort, especially as digital access expands.
Bibliography
List of Statutes
• The Constitution of India,
• The Copyright Act,
• The Constitution of the People’s Republic of China,
• The Copyright Law of the People’s Republic of China,
• The Regulations of the Copyright Law of
List of Cases
• The Chancellor, Masters and Scholars of the University of Oxford Rameshwari Photocopy Services, 2016 SCC OnLine Del 5128.
• The Chancellor, Masters and Scholars of University of Oxford Rameshwari Photocopy Services, 2016 SCC OnLine Del 6229.
• Ashdown Telegraph Group Ltd., [2001] 3 WLR 1368.
• Longman Group Ltd. Carrington Technical Institute Board of Governor, (1991) 2 NZLR 574.
List of Journals and books
• Pamela Samuelson, “Justifications for Copyright Limitations and Exceptions” in Ruth L. Okediji (eds.), Copyright Law in an Age of Limitations and Exceptions (Cambridge University Press 2017).
• Haochen Sun, “Copyright Law Under Siege: An Inquiry Into The Legitimacy Of Copyright Protection In The Context Of The Global Digital Divide” 36(2) International Review Intellectual Property and Competition Law 192 (January, 2005).
• Jia Wang, Conceptualizing Copyright Exceptions in China and South Africa (Springer International Publishing AG, 2018).
• Dan Thu Thi Phan, “Will Fair Use Function on the Internet?” 98(1) Columbia Law Review (1998).
• Isha Wadhwa, “Copyright exceptions for educational institutions under the Indian copyright Act, 1957” 6(6) International Journal of Law (2020).
• Jessica Litman, “Revising copyright law for the information age” 75 Oregon Law Review (1996).
• Westkamp, “Convergence Of Intellectual Property Rights And The Establishment Of “Hybrid” Protection Under Trips Copyright” in Fiona Mcmillan (ed.), I New Directions In Copyright Law (Edward Elgar, Cheltenham, 2005).
• Miller and M.H. Davis Intellectual Property: Patents, Trademarks, And Copyright In A Nutshell (West Academic Publishing, St. Paul, 2nd edn. 1990).
• John Rawls, A theory of Justice (Harvard University Press, Cambridge, 1971).
• Fleischacker, A Short History Of Distributive Justice (Harvard University Press, Cambridge, 2004).
• Drahos, A Philosophy of Intellectual Property ( Dartmouth Publishing Company, Dartmouth, 1996).
• Hoachen Sun, “Fair use as a collective user right” 90(125) North Carolina Law Review 125 (2011).
• M. Landes and R.A. Posner, The Economic Structure Of Intellectual Property Law (Harvard University Press, Cambridge, 2003).
• H. Coase, “The Problem Of Social Cost” 3 Journal of Law and Economics (1960).
• C. Ginsburg And Y. Gaubiac, “Private Copying In The Digital Environment” In Jjc. Kabel Jjc And Gjhm. Mom (Eds.) Intellectual Property And Information Law (Kluwer Law International, The Hague, 1998).
• J. Gordon, “Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors” 82(8) Columbia Law Review 1600 (1982).
• Lee Wilson, Fair Use, Free Use And Use By Permission (Allworth Press, 2005). D.J. Gervais, “The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New” 12(4) Fordham Intellectual Property Media Entertain Law Journal 929 (2002).
• Senftleben, Copyright, Limitations And The Three-Step Test: An Analysis Of The Three-Step Test In International And EC Copyright Law (2004) (Published Phd. Thesis, Kluwer Law International, The Hague).
• G.R.Raghavender, “A Brief History of Evolution and Development of the Copyright Law of India” (June 4, 2023).
• Ujwala Uppaluri, “The Libraries Exception: What the Amended Copyright Act Does (and should do) For Preserving and Sharing Knowledge in the Digital Era” 5 NUJS Law Review 664 (2012).
• D. Wu, The Fair Use System In Copyright Law (China University of Political Science Press, Beijing, 1996).
• Alford, To Steal A Book Is An Elegant Offense: Intellectual Property Law In Chinese Civilization (Stanford University Press, Stanford, 1995).
• Jaio Hongbin and King & Wood Mallesons, “Key Disputable Issues regarding the Draft Amendments to China Copyright Law” China Law Insight (June 14, 2012).
• K. Yu, “Intellectual Property, Economic Development, and the China Puzzle” in D.J. Gervais (ed.) Intellectual Property, Trade And Development: Strategies To Optimize Economic Development In A Trips Plus Era (Oxford University Press, Oxford, 2007).
• S. Zheng and M.D. Pendleton, Copyright law in China (CCH International, North Ryde, Australia, 1991).
*Advocate, High Court of Delhi. Can be contacted at gauravvmaan@gmail.com
[1] Jia Wang, Conceptualizing Copyright Exceptions in China and South Africa (Springer International Publishing AG, 2018).
[2] Dan Thu Thi Phan, “Will Fair Use Function on the Internet?” 98(1) Columbia Law Review (1998).
[3] Isha Wadhwa, “Copyright exceptions for educational institutions under the Indian copyright Act, 1957” 6(6) International Journal of Law (2020).
[4] Pamela Samuelson, “Justifications for Copyright Limitations and Exceptions” in Ruth L. Okediji (eds.), Copyright Law in an Age of Limitations and Exceptions (Cambridge University Press 2017).
[5] Supra note 1.
[6] Jessica Litman, “Revising copyright law for the information age” 75 Oregon Law Review (1996).
[7] Haochen Sun, “Copyright law under siege: an inquiry into the legitimacy of copyright protection in the context of the global digital divide” 36(2) International Review Intellectual Property and Competition Law 192 (January, 2005).
[8] G. Westkamp, “Convergence Of Intellectual Property Rights And The Establishment Of “Hybrid” Protection Under Trips Copyright” in Fiona Mcmillan (ed.), I New Directions In Copyright Law (Edward Elgar, Cheltenham, 2005).
[9] It is known as fair use in the U.S., fair dealing in India and permitted acts in the U.K.
[10] Supra note 1.
[11] Ibid.
[12] R. Miller and M.H. Davis Intellectual Property: Patents, Trademarks, And Copyright In A Nutshell (West Academic Publishing, St. Paul, 2nd edn. 1990).
[13] Supra note 3.
[14] John Rawls, A Theory of Justice (Harvard University Press, Cambridge, 1971).
[15] S. Fleischacker, A Short History Of Distributive Justice (Harvard University Press, Cambridge, 2004).
[16] H.A. Bedau, “Justice and Classical Utilitarianism” in C.J. Friedrich, J.W. Chapman (eds.) VI Nomos (Atherton Press, New York, 1963).
[17] Supra note 14 at 303.
[18] P. Drahos, A Philosophy of Intellectual Property ( Dartmouth Publishing Company, Dartmouth, 1996).
[19] Ibid.
[20] Id. at 180.
[21] Hoachen Sun, “Fair Use As A Collective User Right” 90(125) North Carolina Law Review 125 (2011).
[22] W.M. Landes and R.A. Posner, The Economic Structure Of Intellectual Property Law (Harvard University Press, Cambridge, 2003).
[23] R.H.Coase, “The Problem Of Social Cost” 3 Journal of Law and Economics (1960).
[24] J.C. Ginsburg And Y. Gaubiac, “Private Copying In The Digital Environment” In JJC. Kabel and GJHM. Mom (eds.), Intellectual Property And Information Law (Kluwer Law International, The Hague, 1998).
[25] Ibid.
[26] W.J. Gordon, “Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors” 82(8) Columbia Law Review 1600 (1982).
[27] The Constitution of India, 1950.
[28] Lee Wilson, Fair Use, Free Use And Use By Permission (Allworth Press, 2005).
[29] D.J. Gervais, “The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New” 12(4) Fordham Intellectual Property Media Entertain Law Journal 929 (2002).
[30] Neil W. Netanel, “Asserting Copyright’s Democratic Principles in the Global Arena” 51 Vanderbilt Law Review 217 (1998).
[31] Supra note 1.
[32] World Intellectual Property Organization, The Berne Convention for the Protection of Literary and Artistic Works, 1886 (9 September, 1886).
[33] TRIPS Agreement, the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty and the EU Copyright Directive.
[34] World Intellectual Property Organization, I Records of the Intellectual Property Conference of Stockholm- June 11 to July 14, 1967 (Geneva, 1971).
[35] M. Senftleben, Copyright, Limitations And The Three-Step Test: An Analysis Of The Three-Step Test In International And EC Copyright Law (2004) (Published Phd. Thesis, Kluwer Law International, The Hague).
[36] The essential ingredients of this provision are: first, the exception is for the purpose of teaching; second, users can utilise literary and artistic works to teach; third, the exception requires that it should be compatible with fair practice.
[37] Agreement on Trade Related Aspects of Intellectual Property Rights, 1994, art. 13.
[38] Dr. G.R.Raghavender, “A brief History of Evolution and Development of the Copyright Law of India” (June 4, 2023), available at: https://www.linkedin.com/pulse/brief-history-evolution-development-copyright-law-india-gr (last visited on April 10, 2025).
[39] 1895 ILR Bom 557.
[40] The Indian Copyright Act 1847 (Act xx of 1847).
[41] The Copyright Act, London (1842), in L. Bently and M. Kretschmer (eds.) Primary Sources on Copyright (1450-1900), available at: www.copyrighthistory.org (last visited on April 10, 2025).
[42] The Copyright Act, 1957 (Act 14 of 1957).
[43] These are the Berne Convention for Literary and Artistic Works (1886) (revised at Paris in 1971); the Universal Copyright Convention, 1952 of UNESCO; the Geneva Phonogram Convention, 1971; the Trade Related Intellectual Property Rights (TRIPS) Agreement, 1995 of the WTO; the WIPO Copyright Treaty (WCT), 1996; the WIPO Performances and Phonograms Treaty (WPPT), 1996; and the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, 2013.
[44] Supra note 38.
[45] The Copyright Office, available at: https://copyright.gov.in/ (last visited on April 15, 2025).
[46] Supra note 42, s. 52- Certain Acts Not To Be Infringement Of Copyright.
[47] Id., art. 39.
[48] Supra note 3.
[49] 2008 (105) DRJ 482.
[50] Id., para 33.
[51] Supra note 42.
[52] Supra note 3.
[53] Ibid.
[54] (1972) 2 Q.B. 84.
[55] Supra note 3.
[56] Supra note 54, pg. no. 95.
[57] [2001] 3 WLR 1368.
[58] Ashdown v. Telegraph Group Ltd., 118(18) Reports Of Patent, Design And Trade Mark Cases (2001).
[59] The Copyright Code 1976.
[60] Ibid.
[61] (1991) 2 NZLR 574.
[62] The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services, 2016 SCC OnLine Del 5128, para 50.
[63] Ibid.
[64] Rameshwari Photocopy Service and the University of Delhi.
[65] Supra note 62, para 55.
[66] Ibid., para 60.
[67] Ibid., para 72.
[68] The Chancellor, Masters and Scholars of University of Oxford v. Rameshwari Photocopy Services, 2016 SCC OnLine Del 6229.
[69] Supra note 42.
[70] Ibid.
[71] Supra note 3.
[72] Ibid.
[73] Ujwala Uppaluri, “The Libraries Exception: What The Amended Copyright Act Does (And Should Do) For Preserving And Sharing Knowledge In The Digital Era” 5 NUJS Law Review 664 (2012).
[74] This provision was added by the 2012 amendment.
[75] The Haryana Public Libraries Act, 1989 (Haryana Act 20 of 1989), s. 2(e).
[76] Supra note 3.
[77] Ibid.
[78] Supra note 42, s. 52(1)(p) proviso.
[79] India ratified the Marrakesh Treaty on June 24, 2014.
[80] The Copyright (Amendment) Act, 2012.
[81] There is no definition of the term ‘accessible format’ under this provision, however, the explanation appended to the Rule 77 of the Copyright Rules, 2013 provides that the term ‘accessible format’ shall include Braille, Daisy, large print, talking books, digital formats and all other formats that can be used by persons with disabilities.
[82] Supra note 38.
[83] Supra note 38, s. 52(1)(zb) proviso 1.
[84] Ibid., proviso 2.
[85] Ibid., explanation.
[86] W. Alford, To Steal A Book Is An Elegant Offense: Intellectual Property Law In Chinese Civilization (Stanford University Press, Stanford, 1995).
[87] H.D. Wu, The Fair Use System In Copyright Law (China University of Political Science Press, Beijing, 1996).
[88] Supra note 1.
[89] Authors have a right to publish, a right to be named, a right to adapt a work, a right to maintain the integrity of a work, and a right to be paid. See The Copyright Law of 1990, art. 10.
[90] The Copyright Law Amendments of 2001, available at: http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383888.htm (last visited April 15, 2025).
[91] Promulgated by Decree no. 468 of the State Council on 18 May 2006.
[92] Supra note 1.
[93] Jaio Hongbin and King & Wood Mallesons, “Key Disputable Issues regarding the Draft Amendments to China Copyright Law” China Law Insight (June 14, 2012).
[94] P.K. Yu, “Intellectual Property, Economic Development, and the China Puzzle” in D.J. Gervais (ed.) Intellectual Property, Trade And Development: Strategies To Optimize Economic Development In A Trips Plus Era (Oxford University Press, Oxford, 2007).
[95] The Constitution of the People’s Republic of China, 1982, art. 19, available at: http://www.npc.gov.cn/englishnpc/Constitution/node_2824.htm (last visited April 17, 2025).
[96] Ibid., art. 46.
[97] Ibid., art. 47.
[98] Supra note 1.
[99] The Copyright Law of 1990, ch. 2, s. 4.
[100] Peter K. Yu, “Third Amendment to the Chinese Copyright Law” Legal Studies Research Paper Series (Texas A&M University, 2022), available at: https://scholarship.law.tamu.edu/facscholar/1794 (last visited April 17, 2025).
[101] Supra note 99, art. 22(1).
[102] Ibid., art. 22(6).
[103] Ibid., art. 22(8).
[104] Supra note 1.
[105] Ibid.
[106] Ibid.
[107] The Regulations of the Copyright Law of 2002.
[108] Ibid., art. 21.
[109] Supra note 99, art. 10(5).
[110] Supra note 1.
[111] Gao Cheng De v. UBTV; C.S. Zheng and M.D. Pendleton, Copyright law in China (CCH International, North Ryde, Australia, 1991).
[112] Supra note 1.
[113] Ibid.
[114] Ibid.
[115] Supra note 99.
[116] The Regulations For The Protection Of The Right Of Communication Through Information Network.
[117] Ibid., art 7.
[118] Ibid., art. 10(4).
[119] Supra note 117.
[120] Supra note 1.
[121] Ibid.
[122] WIPO, Marrakesh Notification No. 87 (February 5, 2022), available at: https://www.wipo.int/wipolex/en/treaties/notifications/details/treaty_marrakesh_87 (last visited on April 20, 2025).
[123] Fei Yang, Fanshu Tang and Yu Yao, “Creating Intangible Accessible Environments: The Implementation Of The Marrakesh Treaty On Visually Impaired People In China” 38(9) Disability and Society 1734 (2023).
[124] Ibid.
[125] Ibid.