From Fair Use to Foul Play: Where to Draw the Line?
Introduction:
The Copyright Act of 1976 intended to promote the progress of Science and Useful Arts.1 The Courts strived to strike a balance between encouraging the creation of artistic works and allowing the public enjoyment of these works, and in doing so, Justice Story laid out the Fair Use Doctrine in the landmark case of Folsom v Marsh.2 The doctrine now has its roots in Section 107 of the Act and defines the very limits of copyright.3
The Doctrine attempts to find a middle ground between the interests of the creator and the more extensive interests of society. It acts as an “affirmative defense” against copyright infringement,4 and fosters innovations through a flexible application of copyright laws.5 However, several controversies surround the doctrine due to its lack of a well-defined structure, which has only increased in the digital age. Its application has uncertainties, and scholars have long observed that the vague standards of this doctrine can cause overdeterrence.6
In the digital age, with information freely available over the Internet, defining the limits of the Fair Use Doctrine becomes increasingly essential. In light of the Internet Archive Decision, this article attempts to redraw the boundaries of legal protection over copyrighted works for use by students and academicians.
The article first explores the arguments of the Internet Archive Case and then discusses the factors to be considered under the Fair Use Doctrine. Finally, the paper concludes with a comparison of the doctrine with Indian Jurisprudence and speculates on the implications of the exception for recent developments in online libraries and digital communities used in education and research.
The Internet Archive Case
The Hachete v Internet Archive Decision is often compared to the burning of the Library of Alexandria.7 It will go down in history as one of the most significant losses of access to valuable knowledge. Yet, in light of the necessity to balance access to information with the rights of creators, it may be undeniable that the Court’s reasoning has some merit.
1 Constitution of the United States, art. I, s.8, cl. 8; Alina Ng, "Copyright Law and the Progress of Science and the Useful Arts" 39
Science and Public Policy 692-693 (2012).
2 Folsom v. Marsh, 9. F.Cas. 342 (C.C.D. Mass. 1841).
3 Title 17 of the United States Code, Copyright Act, 1976 (Pub. L. No. 94-553, 90 Stat. 2541), s. 107.
4 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
5 Harvard University Office of the General Counsel, "Copyright and Fair Use: A Guide for the Harvard Community" available at: https://ogc.harvard.edu/sites/hwpi.harvard.edu/files/ogc/files/ogc_copyright_and_fair_use_guide_bea_jan_2024.pdf?m=1704922795 (last visited on Nov. 14, 2024).
6 Victoria Gomez Morgan, "Fair Use in the Digital Age: Reflections on the Fair Use Doctrine in Copyright Law" IPwatchdog, Nov. 25, 2015, available at: https://ipwatchdog.com/2015/11/25/fair-use-digital-age/id=63442/ (last visited on Nov. 14, 2024).
7 David Moscrop, "Copyright Keepers Just Destroyed a Huge Digital Library" Jacobin, Sept. 20, 2024, available at: https://jacobin.com/2024/09/copyright-internet-archive-library-lawsuit (last visited on Nov. 14, 2024).
The Internet Archive (“IA”) is a non-profit digital library established in 1996. It provides access to multimedia content such as books, movies, music, websites, etc. During the early days of the COVID-19 pandemic, while most libraries were closed, the IA set up a National Emergency Library that allowed simultaneous access to the entire collection of books.8 This program was soon withdrawn, and the IA returned to its policy of controlled digital lending, which implies a one-on-one ratio between the copies lent and the physical copies IA owned.9
In June 2020, a group of book publishers, including Penguin Random House, HarperCollins, John Wiley & Sons, and Hachette Book Group, filed a lawsuit against the IA for infringing their copyright over such books.10
The primary issue was whether it was ‘fair use’ for a nonprofit organization to scan and distribute digital copies of copyrighted print books in their entirety for free without authorization by the copyright owner. In March 2023, the District Court found that even such controlled digital lending where books were subject to a one-to-one owned-to-loaned ratio failed all four prongs of the Fair Use test. The court found that the usage was non- transformative and commercial as it solicited donations and earned from affiliate marketing; the nature of the works included original fiction and non-fiction books, which were at the core of copyright protection; the books were copied wholesale and amounted to a competing substitute for the original publisher’s works in the marketplace.11
Therefore, Judge Koetl of the District Court issued a permanent injunction declaring the controlled digital lending to be copyright infringement and stopping IA from issuing digital copies of those copyrighted books of the Plaintiffs available in electronic form.12
On appeal to the US Court of Appeals for the Second Circuit, the panel unanimously affirmed Judge Koetl’s decision.13 The Court attempted to balance public interest and access to literature without burdensome licensing fees, as against the rights of creators and authors to be compensated for distributing or imitating their original works. It applied the four-factor test codified in Section 107 and determined that IA’s controlled lending policy would not be protected under the Fair Use exception.
On the first prong regarding the purpose and character of the use, the Court differed from the district judge’s opinion by finding that the use was not commercial, as non-profits are allowed to solicit donations. However, the Court noted that this distribution was not transformative, relying on Campbell v Acuff-Rose Music, therefore
8 Matthew Rimmer, "The Internet Archive and the National Emergency Library: Copyright Law and COVID-19" 11 Laws 79 (2022).
9 Andrew Albanese, ““Internet Archive to Publishers: Drop ‘Needless’ Copyright Lawsuit and Work with Us” Publishers Weekly, July 23, 2020, available at https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/83929-internet-archive-to- publishers-drop-needless-copyright-lawsuit-and-work-with-us.html (last visited on Nov. 14, 2024).
10 Sahana Venugopal, “What does Internet Archive’s failed appeal mean to free access to digital materials?”, The Hindu, Sept. 9, 2024.
11 Hachette Book Group, Inc. et al v. Internet Archive et al, No. 1:2020cv04160 – Document 188 (S.D.N.Y. 2023).
12 Andrew Albanese, “In a Swift Decision, Judge Eviscerates Internet Archive’s Scanning and Lending Program” Publishers Weekly, Mar 25, 2023, available at https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/91862-in-a-swift-decision- judge-eviscerates-internet-archive-s-scanning-and-lending-program.html (last visited on Nov. 14, 2024).
13 Hachette Book Group, Inc. v. Internet Archive, 115 F.4th 163, 176 (2d Cir. 2024).
failing the first prong. The lending program did not add commentary, criticism, or information to the original books. It also did not add on any efficiencies such as search functions or snippet views, as was considered sufficiently transformative in other cases. Instead, the digitally scanned copies of the books were a substitution of the original books. The digital copies IA lent out were similar to the original e-books sold by the publishers themselves.14
On the second prong of the nature of the works, IA argued for a broader interpretation of fair use, as the works in question involved non-fictional books instead of creative works. However, the Court pointed out that while the works in question also involved fictional books and creative works, even the non-fictional works were original and individual expressions of authors that were given copyright protection. IA was not simply using the concepts and ideas of such authors but these identical and original expressions. Therefore, even the second prong favored the Publishers over IA. 15
On the third prong of the amount and substantiality of the use, it was undisputed that identical copies of the books were being made and distributed to the public in full. The third prong also favored the Publishers as there was no transformative use of such copies.16
On the fourth prong, concerning the effect on the market for the original works, IA argued that it had provided data showing that there was no harm to the volume of sales of the books. However, this data did not consider the sale of ebooks from the licensed owners; it only considered print sales. On the contrary, the Court found that by providing books without appropriate licensing from the publishers free of cost to readers, IA was usurping the market for the original works, which was detrimental to the creators.17
The Court also held that, as Fair Use is an affirmative defense, the ultimate burden of proof is on the party asserting the defense, i.e., IA. There was also no significant public benefit that balanced such an impact on the market because it is more in the public’s interest to provide rewards for authorship.18
Accordingly, the Court affirmed the District Court's decision. It dismissed the appeal, finding that IA’s controlled digital lending practices for books for which e-book licenses were available amounted to copyright infringement.
Limits Proposed on the Fair Use Doctrine
Factor 1: The Purpose and Character of Use
14 Id. at 184.
15 Id. at 189.
16 Ibid.
17 Id. at 195.
18 Id. at 196.
The first factor primarily rests on two prongs: whether the use is intended for education or commercial purposes,19
and whether the use is transformative.
Students and researchers generally use copyrighted works for educational purposes, which includes the preservation of information, dissemination of knowledge, and access to materials.20 However, even so, the Classroom Exception applies: The materials must only be used for a non-commercial teaching purpose,21 within the permissible boundaries.22
Therefore, whether a Profit Motive exists by the facilitator of the copying is one relevant consideration.23 Additionally, the user must correctly attribute the content to the copyright owner, and at least attempt to gain permission from the copyright holder.
Regarding the transformative use concept, existing work should not be replicated but should be given new meaning or new purpose.24 The underlying goal is to support new and innovative uses of the works.25 However, there is no clear standard for what constitutes transformative use. Courts have held that creating a copy to facilitate search in the original works is considered transformative when it does not compete with the original works.26
In the context of usage by students or academicians, using a copyrighted article to explain a concept or to further a research point should be considered a transformative use. Substantially copying an article without adding new meaning would amount to non-transformative use. The transformative use must also be substantial enough to outweigh the amount of copying.27
Factor 2: Nature of Copyrighted Work
The nature of the copyrighted work refers to the purpose for which it was created. One can categorize works into strict categories to determine whether the non-commercial and transformative use of such work amounts to Fair Use.
The Fair Use Doctrine is typically more suited for:
More Suited for
Less Suited for
19 Cariou v Prince, 714 F.3d 694 (2d Cir. 2013); Blanch v Koons, 467 F.3d 244 (2d Cir. 2006).
20 Authors Guild, Inc. v. HathiTrust 755 F.3d 87 (2d Cir. 2014).
21 Bridge Publications v. Vein, 827 F. Supp. 629, 635 (S.D. Cal. 1993).
22 Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983).
23 Williams Wilkins Company v. United States, 487 F.2d 1345 (Ct. Cl. 1973).
24 Authors Guild v. Google 804 F.3d 202 (2nd Cir. 2015).
25 David E. Shipley, “A Transformative Use Taxonomy: Making Sense of the Transformative Use Standard,” 63 Wayne L. Review, (2018).
26 Supra note 24; Supra note 20.
27 Warner Bros Entertainment, Inc. v RDR Books, 575 F. Supp. 2d 513 (SDNY 2008).
Factual Works
Fictional Works
Published Works
Unpublished works
Non-Consumable Works
Consumable Works
Public Interest Works
Creative Works
Let us analyze each category separately, particularly in the context of students' and academicians' usage.
Firstly, the Fair Use Doctrine is readily applicable to factual works such as reports, textbooks, or scholarly articles because their purpose is to provide educational knowledge. Factual works are often used in teaching, research, or accompanying presentations. This use qualifies as “transformative” and leads to public benefit.28
On the other hand, fictional and creative works such as novels, plays, and films are given more copyright protection and, therefore, are less likely to be covered under Fair Use. As a result of ‘creative investment,’ owners must be given more control over such work. While students and academicians can still use such works, the work should not be reproduced or quoted substantially but only analyzed or critiqued.
Secondly, publicly available works have already been monetized and exploited by their creators, and hence, Fair Use Claims are more easily allowed against them.29 Academic research depends on easily accessible published works, although the copyright holder’s rights must be respected to the extent possible.
On the other hand, the Fair Use Doctrine should be applied more strictly when it comes to unpublished works, such as drafts or original theses. Most courts recognize the author's right first to make their work available. Usage of such works directly undermines the author’s ability to publish or present the work. Usage of such works needs permission or authorization from the creators and must only be used minimally.
Thirdly, encyclopedias, novels, articles, and databases are non-consumable works in academia. These can be used extensively; any usage does not deplete the original work. In the context of education, the Fair Use Doctrine is more likely to apply to such non-consumable works.30
In contrast, works that can be depleted, such as workbooks, tests, questionnaires, etc., are consumable. When used and copied in significant amounts, such usage can negatively impact the market for the work. Therefore, content from such works is less likely to be covered under the Fair Use Exemption.
28 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
29 Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987).
30 Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions, Guideline III(B).
Finally, government publications or educational resources that serve public interest purposes are more likely to be treated favorably under the Fair Use Doctrine as they are created to be used freely. In contrast, creative works must be minimal and transformative and should not be reproduced.
Understanding these categories can guide students and academics in using copyrighted materials responsibly within the bounds of the Fair Use Doctrine. However, there will likely be overlaps between the categories. It is difficult to pigeonhole a piece of work into a single category. For example, a novel can be termed a fictional work (which makes it harder to get protection under Fair Use) and a non-consumable work (more likely to be protected under Fair Use than consumable works). The same book can, therefore, be in two categories, with different implications for the Fair Use exemption.
Therefore, these categories should not be viewed as a part of a spectrum in isolation. The level of protection will vary depending on the interplay of all the prongs of the Fair Use test. The tests of transformativeness, in particular, to see whether there are any new insights, would go a long way in favorable treatment under the doctrine.
Factor 3: Amount and Substantiality of Use
Under the third prong of the Fair Use Doctrine, the more content copied from the copyrighted work, the less likely such usage would be excused as fair use. The law does not set exact thresholds or quantity limits for such reproductions, and even whole works can be copied in some instances.31
This “amount” must be considered about the length of the original work. When considering Fair Use, the length of the work used or copied should be calculated to include all content from a single source as a total sum and not individual excerpts from the same source separately, as used by one patron.32 Another factor to consider is the required amount to serve the objective.
A limit that should be used in this regard is an accurate threshold quantity beyond which Fair Use should only be applicable with compelling justifications.
Decidedly small portions, such as falling below 10% of the total sum of work, could be regarded as allowed under the Fair Use Doctrine. This threshold of 10% has been discussed several times, particularly in the saga of the Cambridge University Press cases. However, this factor cannot be considered in isolation but in conjunction with the other factors.
31 Supra note 28.
32 Supra note 23.
As per several decisions, even when small amounts are used, they may still be excessive if they are excerpts of the “heart” of the work.33 While a short clip of a long film can be covered under the Fair Use Doctrine, if the short clip is of the most extraordinary element of the film covering its core, the doctrine will be interpreted more strictly. Regarding an academician, quoting a small portion of an article may be acceptable, but one cannot quote the primary core research without transformative use. This may still be allowed in some contexts, such as in parody cases or for critical commentary, when copying the entire work is necessary to achieve the purpose.
Another factor to be considered is the type of work. Textual materials, films, and songs are more straightforward to divide into parts or threshold limits. On the other hand, there are additional complexities concerning visual content, such as photographs, artworks, or images. The entirety of an image would be required to fulfill any purpose of reproduction. Courts have, however, ruled that small low-resolution thumbnails of images can qualify as Fair Use while stricter limits are applied to full-sized images.
A second limitation that must apply under the substantiality of work used is access and target audience. Providing open access, such as on Social Media or YouTube, is more likely to be copyright infringement, given the broad audience on these platforms that is not limited to the educational context intended by the user. Fair Use is more likely to be justified when access to such copyrighted materials is restricted to specific and smaller knit groups, such as a classroom of students enrolled in a course.34
A third limitation that could be added is the term of access provided. Fair Use will be more likely justified if access is granted only for a course or until the course of examinations. Indefinite access to copyrighted material will be challenging to qualify as fair Use. This mitigates potential market harm to the original copyright holder and upholds educational purposes. Therefore, access must be only temporary and closely tied to the educational objectives to qualify under Fair Use.
Factor 4: Effect on Market
As per the Berne Convention, fair use must not conflict with the normal exploitation of the work.35 In evaluating this factor, the courts consider two prongs: the extent of actual market harm caused by the alleged infringement and whether such unrestricted use would adversely impact the potential market for the original creation. Courts can look at primary and secondary markets to assess the harm.36 Both negative and positive effects on the market should be considered.37 Intention is irrelevant in this factor.38
33 Harper and Row, Publishers Inc v Nation Enterprises, 471 US 539, 565-66 (1985).
34 Guide to the Berne Convention for the Protection of Literary and Artistic Works, (Paris Act 1971), at 1145-46 (1978).
35 Berne Convention for the Protection of Literary and Artistic Works, 1886, art. 9(2).
36 Supra note 4.
37 Jeanne C. Fromer, “Market Effects Bearing on Fair Use,” 90 Washington Law Review, 615 (2015).
38 Roger v Koons, 960 F.2d 301 (2d Cir. 1992)
For educational purposes, courts have consistently held that nonprofit uses are less likely to cause market harm under a fair use analysis because they are not aimed at supplanting the original market. Market harm is unlikely when the use is limited, and the copies are not disseminated further. The educational use also does not act as a market substitute but rather benefits the copyright holder by exposing their work to potential buyers.
However, if the copied material directly competes with the original market or has the potential to affect such market, then it is usually considered unfair use.39
Checklist of Factors:
The use should be non-commercial and for non-profit motives.
Attempts should be made to seek permission of the Copyright Holder.
The work should be attributed to the Copyright Holder.
The usage should be for a new purpose or add new meaning, i.e., it should be transformative.
The nature of the copyrighted work should be factual, non-consumable or created in public interest.
The work should be already published.
The amount copied should be necessary for achieving the objective.
The copied portion is not the heart of the copyrighted work.
The copied work is available to a limited group of people.
The copied work is available for a limited period of time.
The copied work does not compete with the original work in actual or potential markets.
Indian Jurisprudence: Comparative Analysis
In India, the laws related to Fair Dealing focus primarily on one of the four key factors usually considered: the purpose and character of the use. Specifically, Section 52 of the Copyright Act provides exceptions for specific uses that won’t be seen as copyright infringement, mainly when the usage is for research, education, or news reporting. However, courts have added more details to these rules through various cases, like Civic Chandran v. Ammini Amma.40 The Delhi High Court laid out a four-factor test used in the U.S. to better understand fair dealing in India TV Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd.41
The Government of India has set up digital libraries, such as the National Digital Library of India, the Parliament Digital Library, and eGyanKosh, to make knowledge more accessible to students and researchers. Such libraries must be run following the Copyright Guide issued by the National Digital Library. This includes non- reproduction of works that violate India’s “fair dealing” standard under Section 52. Books in physical form within
39 Weissmann v. Freeman, 684 F. Supp. 1248 (S.D.N.Y. 1988).
40 1996 (16) PTC 670.
41 2012 SCC OnLine Del 4298.
non-commercial libraries can be stored electronically and will not be considered copyright infringement under Section 52(1)(n) of the Copyright Act.
Further, the Delhi High Court’s interpretation of Section 52(1)(a) in the Delhi University Photocopy case has had far-reaching implications for access to knowledge in India in the context of students and academics.42 Regarding research and education, there is a more liberal reading of the fair dealing provisions so as to not stifle scientific progress. As opined by Justice Nandrajog,43 the four factor Fair Use Analysis becomes pertinent to provide a comprehensive understanding as to whether an infringement is defended under the Indian Fair Dealing exception.
Application of the Revised Test: THE SCI-Hub Lawsuit
Multiple lawsuits have been filed recently against prominent repository websites like Sci-Hub and Lib-Gen. These decisions will add more context to the debate about the right to access information. A similar suit filed in the US resulted in a default ruling against Sci-Hub, due to its failure to respond. In India, Sci-Hub is actively defending its position and it will be interesting to see whether Sci-Hub falls within the fair dealing and fair use exceptions.
Sci-Hub was founded by Alexandra Elbakyan to allow access to academic papers that are “artificially restricted by copyright.”44 In 2020, publishing giants filed a lawsuit before the Delhi High Court against the platform for copyright infringement, alleging online piracy. On the other hand, scholars have claimed fair dealing for research purposes under section 52(1)(a)(i) of the Indian Copyright Act. The argument is that blocking Sci-Hub will have a severe detrimental effect on the research works of academicians around the country.
The Sci-Hub case and the DU case have multiple similarities, they both align with the access to knowledge to further higher education and academic research, and thus, a purposive interpretation may be awarded in Sci-Hub case as it was in the DU case.
Under section 52(1)(a) of the Copyright Act, for the application of fair dealing doctrine, the courts look at two- pronged test: 1. Is the use falling under one of the listed purposes, 2. If yes, then is the use fair this is to be determined considering the fairness factors.
On the first prong, adopting the liberal interpretation of Section 52 as done by the Apex Court, the words “for the purpose of” must be read broadly to include all activities associated with research. Sci-Hub is known for making
42 University of Oxford v Rameshwari Photocopy Services, 2016 SCC OnLine Del 6229.
43 New Delhi Television Limited v ICC Development, 2012.
44 Kashish Khandelwal, The Sci-hub Case & the Unique Remedy of a Dynamic Injunction, LSPR, 2021.
available scientific and research papers while bypassing the paywall. It is used by academicians and researchers and therefore should fulfill the first prong. This interpretation is in line with the primary purpose of copyright laws: which is to foster creativity and promote progress in science and arts.
Moving on to the Fairness test, one can apply the Fair Use Checklist laid out and advocated for by this paper.
Checklist of Factors:
The use should be non-commercial and for non-profit motives.
Attempts should be made to seek permission of the Copyright Holder.
The work should be attributed to the Copyright Holder.
The usage should be for a new purpose or add new meaning, i.e., it should be transformative.
The nature of the copyrighted work should be factual, non-consumable or created in public interest.
The work should be already published.
The amount copied should be necessary for achieving the objective.
The copied portion is not the heart of the copyrighted work.
The copied work is available to a limited group of people.
The copied work is available for a limited period of time.
The copied work does not compete with the original work in actual or potential markets.
Sci-Hub is a gateway to free science, by removing paywalls and providing free access to literature. It works only on donations and does not make any profits from granting access to the users. Therefore, the first point is in favour of Sci-Hub as a non-commercial use with non-profit motives.
Sci-Hub does not seek permission of the Copyright Holders or the authors before making copies available and therefore fails the second prong. However, it correctly attributes the work to the author or copyright holder, fulfilling the third prong.
It is difficult to argue transformative use by Sci-Hub in light of the IA Decision. Sci-Hub makes science more accessible but does not add any new features to the papers. Therefore, it likely fails the fourth prong.
The nature of work available on Sci-Hub includes factual, non-consumable, public interest works and is rarely ever creative or fictional works. Therefore, Sci-Hub fulfills the fifth prong. All works available on Sci-Hub are already published and the authors have had the opportunity to exploit or first make it available, therefore fulfilling the sixth prong.
Sci-Hub makes the entire copyrighted work available and not any specific sections. This includes the core or heart of the work as a copy in whole. The work is also available to the entire population and not any specific sections of people. Once downloaded, the work becomes available for eternity and not for any limited duration of time. Therefore, Sci-Hub fails the seventh, eighth, ninth and tenth prongs.
On the last prong, with respect to the economic argument, Sci-Hub’s publication of material has a negative impact on the market of publishers owning the works, as it directly competes with the publisher’s websites and online access portals. However, as in the Delhi University Photocopy case, market delineation in India must be made reasonably, taking into consideration the potential customers. The substantial benefit to the market may outweigh the harm caused by Sci-Hub. An argument made in Court was also that the publishers did not compensate the authors monetarily even though the copyright owners in the end were the publishers. Accordingly, while the Court has prima facie rejected this contention, the harm caused on the market is still a contentious ground.
Furthermore, it is also important to note that for most of the scholars who come from less-privileged backgrounds and also for people with disabilities, such shadow libraries facilitate research and education. The point here is that there is a stark difference between the developed countries and the developing countries, so interpretations of laws would be strikingly different as well, in the US the detour that the Sci-Hub case took might not resonate in the Indian context.45 Particularly given even the parties to the dispute, the US Case involved the government against Sci-Hub, whereas in India, the Ministry of Electronics and Information Technology has in itself been named a defendant.
Conclusion:
Since the advent of technological advancements, the boundaries of traditional copyright laws are being stretched, and there are numerous legal battles where these two areas coincide. While, Copyright law evolved with the goal of promoting progress in Science and Useful Arts, the Fair Use Doctrine sought to strike a balance between the rights of the creators and public enjoyment of the works, it has been called “An equitable rule of reason” by the Congress.
In this digital age, the Fair Use Doctrine is stranded at critical crossroads, as the paper has demonstrated through the Internet Archive Case and the critical analysis of the ongoing Sci-Hub litigation. While attempts have always been made to balance two competing interests, the digital revolution has fundamentally altered this equation. As shown in the paper, the four-factor test still stands relevant, however, it requires reinterpretations keeping in mind the digital context which has stretched the traditional boundaries of copyright infringement. There are bound to
45 Rahul Bajaj & Anchal Banerjee, “Bringing Shadow Libraries out of the Legal Shadows,” 18 Indian Journal of Law & Technology
2(4) (2022).
be new meanings to transformative use, market impact and substantiality of copying, when it is applied to mass digitization, cross-border access etc.
As demonstrated in the paper, a nuanced approach to application of Fair Use Doctrine is needed to accommodate the access to resources whilst balancing it with the rights of the creators.