The Law Blog

Mahak Bhardwaj is a fourth-year student of BBA LLB (Hons) at the SVKM’s NMIMS Kirit P. Mehta School of Law, Mumbai. Mohit Jain is a fourth-year student of BSc LLB (Hons) at the National Law Institute University (NLIU), Bhopal.

Introduction

At its core, copyright law is a system of balance, rather than a mechanism of total restriction. Writers receive exclusive rights for a specific period, after which their creations are intended to enter the public domain: accessible for education, critique, artistic expression, and cultural sharing. This change is not a workaround but the core essence of the copyright system. However, in the digital era, this equilibrium is subtly being disrupted.

Think about enjoying Kabuliwala by Rabindranath Tagore on a Kindle. The book is certainly in the public domain, but as soon as you attempt to reproduce a section for research, citation, or critique, you’re halted, not by legal restrictions, but by software. Screenshots are prohibited, text selection is turned off, and warnings about “protected content” show up. This common digital interaction presents a concerning issue: can private tech regulations and platform agreements legally limit access to creations that copyright law has deemed free?

This blog explores how tech enforcement tools like Digital Rights Management (“DRM”), algorithmic copyright surveillance, and excessive Terms of Service (“ToS”), are transforming copyright into a framework of endless control. Even with judicial acknowledgment of public-domain rights and statutory fair dealing as per Section 52 of the Copyright Act, 1957 (“Act”), these private systems progressively re-monopolize cultural creations, turning legally assured user rights into mere formalities

The Legal Framework Of The Public Domain And Fair Use In India

Public Domain

The Act of 1957 does not specifically define public domain. Whether or not the author’s work is protected by copyright determines whether or not it is in the public domain; this determination is independent of whether or not the work is accessible to the general public. “Life of the author plus 60 years” is the standard for literary, theatrical, musical, and artistic works. This indicates that copyright is valid for the duration of the author’s life as well as for 60 years after the start of the year that follows the author’s passing.

Fair Use

The Act’s Section 52(1)(a) addresses fair dealing. It permits the use of some copyrighted content for specific purposes, such as study, teaching, and news reporting, without the owner’s consent. Fair use (USA) and fair dealing (India) differ slightly in that fair use is a broader notion while fair dealing only covers infringements that are specifically listed in the jurisdiction’s copyright laws. While fair dealing, which is practiced in India and the United Kingdom, is more restrictive and only permits use for specific purposes specified in the statute, such as research, criticism, or review, fair use is a broad, flexible doctrine (mainly in the USA) that permits limited use of copyrighted works based on factors like purpose and impact. Fair dealing is not any sort of right granted by any corporate benevolence rather it is a statutory right recognized by the law.

Technological Enforcement as a Parallel Copyright Regime

DRM and Section 65A: Criminalising Access Without Infringement

The term DRM includes technological controls that limit the ability of user to copy, share, or alter digital information. It does not matter whether a work is in the public domain or protected by copyright, these technological mechanisms are implemented consistently. Section 65A of the Act, which makes it illegal to circumvent “effective technological measures” which are used to protect copyright and it imposes a criminal liability. DRMs are protected under this section. It creates a legal dilemma and raises an important question, whether there can be an intent to infringe when there is no copyright or when Section 52 specifically permits the planned use? And importantly, the intent to violate copyright is a prerequisite for Section 65A. When DRMs prohibit fair dealing or restricts access to a public domain work, circumvention just reinstates legal access rather than permitting infringement. However, there is still a risk of criminal liability. Therefore, DRM runs the possibility of extending copyright protection beyond its statutory term, enabling code to supersede the legal time constraints.

Algorithmic Over-Enforcement and the Collapse of Context

In addition to DRM, platforms are depending more and more on automated copyright enforcement tools, such as takedown bots and content-matching algorithms, to identify infringement on a large scale. These algorithms do not take into account context, purpose, proportionality, and legislative exclusions due to their structural limitations. They use a deny-by default architecture, in which restriction is triggered just by resemblance. Consequently, fair dealing becomes an ex post procedural privilege that may only be used after content has been prohibited or withdrawn, rather than a pre-existing legal right. There are provisions to challenge these takedowns but it takes a long time and are subject to the discretion.

Contractual Override Through Terms of Service

Digital platforms govern access through ToS which frequently prohibit acts that copyright law permits, such as copying short excerpts for research or criticism. This raises a fundamental legal question: can private contracts negate statutory copyright exceptions?

Under Section 23 of the Indian Contract Act, 1872 (“ICA”), agreements opposed to statutory policy are void. Section 52 reflects a legislative choice to preserve certain uses in the public interest. Allowing platforms to contractually override these rights enables private expansion of copyright beyond statutory limits. In effect, ToS operate as de facto copyright legislation, without parliamentary scrutiny or constitutional safeguards.

Copyright Claims Over Digitised Public-Domain Works

Digitized copies of works that are already in the public domain can be found in museums all over the world, but they frequently assert copyright over these copies. Museum across the world have digitized copy of the works which are already part of the public domain, though more than often museums claim copyright over this digitized copy of the art work.

How Technological Measures Undermine Fair Dealing under Section 52

The cumulative effect of these technical systems is most noticeable in their impact on fair dealing. In order to preserve freedom of speech under Article 19(1)(a), Section 52(1)(a) allows fair dealing for purposes including study, criticism, and evaluation. Context-sensitive evaluations of necessity, proportionality, and purpose that call on human judgment are essential to fair dealing. However, these factors cannot be assessed by automated enforcement systems. By using copyright strikes and takedowns to stifle free speech, they classify all unapproved uses as presumptively infringing. Consequently, fair dealing becomes a post-removal claim rather than a basic entitlement. These restrictions which have been imposed by these private players operated outside the scope of Article19(2). The view to look at the user has been changed since now the user is being treated as a potential violator of copyright work rather than a citizen who holds rights. This raises a serious concern on the effectiveness of right to fair dealing. The access is being governed by automated tools and the fair dealing right is reduced to exist only on paper.

John Doe Requests and Censorship of Legal Content

Orders are issued to restrain unidentified infringers, especially in cases involving online piracy, for John Doe (or Ashok Kumar). Although designed to halt widespread violations, these orders are often excessively broad.

An instance of this might be that the Hon’ble Madras High Court issued an order against Internet Archive for John Doe (Ashok Kumar); it was part of a list of thousands of sites accused of hosting pirated movie copies. As a result, millions were unable to access government records and freely available information due to the excessively broad enforcement of the order, resulting in users’ rights under Section 52(1)(a) becoming nearly ineffective, as lawful content is not technologically inaccessible. The constitutional issue stems from the consequences of these orders. When court-ordered blocking makes legal content unreachable, fair dealing as per Section 52 becomes virtually insignificant. Restrictions applied without proportionality or examination weaken both legal and constitutional protections.

Business Incentives And The Privatization Of Common Resources

The limitation of public-domain works and fair use typically benefits obvious commercial interests. By exercising authority over content that rightfully belongs to the public, platforms profit from access without bearing creative expenses. Exclusive formats, subscriptions, and licensing deals re-establish monopolies on content that the law intentionally rendered free.

The privatization of the commons is not accidental; it is economically sensible. Nonetheless, this incurs a price in terms of educational access, cultural involvement, and democratic participation, especially within a burgeoning digital economy such as India.

Conclusion

The table has been flipped. The piracy is not being carried out by the individuals but by those technological mechanisms that aims to protect the copyright work. The technological enforcement has re-transformed the copyright law into a system of perpetual control, independent of the mandate of the copyright law, what it means is the supremacy of the code over the legislative mandate, the supremacy of the law over the code has to be reaffirmed to continue the existence of public domain not only in the letters but in the spirit as well. In order to exclude legitimate circumvention for fair dealing and public-domain access, Section 65A must be interpreted narrowly. Contracts on platforms that violate statutory rights must be declared null and void. Automated enforcement systems must be made open and responsible, and courts must apply proportionality safeguards on blocking orders. The public domain must continue to be accessible in both lived digital reality and legislative text. Anything less turns information from a public benefit into a commercial commodity and reduces statutory rights to abstractions.