Ever since the Statute of Anne in 1710, there has been a bargain - the creator gets monopoly rights for a limited time and society gets permanent access to the accumulated heritage. For centuries, this promise held and the works entered the public domain on a predictable schedule.

But today, this balance has broken, not from copyright law itself, but from technology-backed anti-circumvention law that prevents exercising copyright's own exceptions.

This paradox can be termed as the piracy of the public domain. Under Indian copyright law, this can be explained by three examples. First, it can be interpreted from Section 52(1)(a) that researchers have statutory rights to extract data from copyrighted works for text-mining. But the database is locked under Section 65A and circumventing it risks criminal prosecution. Second, if a librarian wants to digitise fragile documents for preservation, Section 52(1)(n) allows it, but this action is blocked by digital rights management (DRM) and Section 65A. Thirdly, a person with a disability has a right under Section 52(1)(zb) to access adaptations in accessible formats and the Rights of Persons with Disabilities Act mandates digital accessibility. Yet, circumventing DRM for screen-reader access risks prosecution.

A. India's structural advantage over DMCA

Even though we may not realise it, India has a statutory advantage over the US. Section 65A (1) requires "intention to infringe" and Section 65A(2)(a) goes further to permit acts "for purposes not expressly prohibited." This means if the purpose is lawful, you have protection. Compare this to the US Digital Millennium Copyright Act (DMCA). § 1201(a)(1) prohibits circumvention "whether or not infringement occurs"; it doesn’t matter if there is underlying fair use. Sections 1201(a)(2) and 1201(b) of the DMCA separately prohibit trafficking in circumvention tools. As was held in Universal City Studios v. Corley, circumvention of DRM is illegal even when the intention would have been fair use.

But the problem is that the courts have not definitively ruled on the S. 65A/S. 52 collision.

B. Section 52 as constitutional infrastructure

Section 52 gives us ample rights for research, education and library reproduction. Even adaptations and providing accessible formats for persons with disabilities is granted under Section 52(1) (zb). These aren’t just statutory but constitutional rights. Article 21A establishes education as a right and Article 19(1)(a) protects free expression, including access to knowledge.

The courts have protected this. The Delhi High Court has held that teachers have a right to photocopy educational materials for students "in the course of instruction," because "a copyright holder cannot suppress the legitimate right of a student to access material for educational purposes." However, there is no clarity with respect to digital copies.

In Eastern Book Company v. DB Modak, the Supreme Court established that copyright requires a "modicum of creativity" and does not protect bare facts or government documents.

C. The structural problem

Technology has fundamentally changed the alignment between law and practice. DRM serves business models, not copyright law. It enforces whatever restrictions a platform chooses, regardless of what copyright permits. For example, let us take Jane Austen's novel Pride and Prejudice. It has been in the public domain since 1881. Anyone can print it, adapt it, teach it. But buy it as a Kindle e-book and DRM locks it. You cannot read aloud since accessibility is blocked, you cannot shift formats to PDF since interoperability is blocked and you cannot extract text to analyse research. None of these restrictions are required by copyright law; they are profitable just for Amazon. Copyright law doesn’t demand lock-in like businesses do.

Government-funded research exemplifies the collision. The Council of Scientific and Industrial Research (CSIR) and Indian Council of Medical Research (ICMR) invest in research with public funds. But publishers paywall results behind DRM and licenses. Citizens funded the research, but can't access it. This violates the constitutional promise of transparency and access to knowledge. 

We face the same ambiguity when it comes to enforcing the Rights of Person with Disabilities Act read with Section 52(1)(zb) of the Copyright Act because creating a screen reader version will lead to circumvention of DRM and violation of Section 65 of the Copyright Act. Regional literature and early Indian cinema deteriorate undigitised because of this legal ambiguity.

A. Proposed Amendment to Section 65A

Add to Section 65A (2):

(c) Circumvention of an effective technological measure shall not be an offence when undertaken solely to enable the lawful exercise of any right granted under Section 52, including research, education, library reproduction, and disability access, provided: (i) no alternative means exists; (ii) good-faith efforts were made to obtain permission; and (iii) the act does not facilitate further copyright infringement.

(d) No effective technological measure shall be applied to works in the public domain or works created by the Government using public funds, except where certified necessary for security. Circumvention of such measures shall not be an offense.

Why does this work? Firstly, "solely to enable lawful exercise" aligns with Section 65A(1)'s existing intent requirement. The law already requires “intention to infringe.” This just clarifies that using technology to exercise a lawful right isn't infringing intent. Secondly, “no alternative means” brings fairness into play. That is, if you can get permission, you must try and if you can't, you're protected. Courts already use this test in fair dealing cases.

What this accomplishes is that it restores alignment. Law and technology stop speaking different languages. Instead of using DRM to prevent all access, rights holders focus on preventing unauthorised commercial use, which is what copyright actually protects.

B. International precedent: Portugal 2017

Portugal’s 2017 model of copyright works. Articles 217 et seq. of Portugal’s Code of Copyright and Related Rights (Law 36/2017) explicitly permit circumvention to exercise statutory exceptions including research, education, disability access and preservation. Under Article 221 they even prohibit technological measures on public domain and government-financed works. In Portugal, a blind student can legally circumvent DRM to access an accessible format. A researcher can legally text-mine databases.

However, Portugal is a WIPO Copyright Treaty signatory and WCT Article 11 requires "legal protection" for technological measures. Portugal's interpretation is that the treaty doesn't require criminal liability for non-commercial circumvention. It requires protection of the technology itself, not criminalisation of users who circumvent for lawful purposes. The agreed statement under the WCT backs this up.

A. Creative Commons

Voluntary licensing such as Creative Commons (CC) cannot solve this problem. CC licenses are valuable for new works, but cannot retroactively open existing copyrighted works already locked by DRM in proprietary databases. A researcher with a fair dealing right to text-mine a CC-BY article locked in a journal database still cannot do so because technology prevents what the license permits. Statutory reform not licensing addresses the technology barrier.

B. Non-derogation clause

Platform end-user licence agreements (EULAs) and database licenses routinely waive Section 52 rights. Amazon Kindle DRM prevents reading aloud, format-shifting and text extraction none required by copyright law. Academic databases prohibit text-mining despite fair dealing rights.

India should codify: No license agreement shall override, limit or waive rights under Section 52 or the status of the public domain. Terms purporting to do so should be void as contrary to public policy.

C. Text-and-data (TDM) mining exception

TDM is not yet codified in India, but could fall within Section 65A(2)(a)'s "purpose not expressly prohibited" framework. TDM output (statistical parameters) is non-expressive and does not substitute for normal exploitation. Research organisations should be permitted to mine lawfully-accessed works with publisher opt-out, consistent with EU TDM exceptions.

D. Competition law integration

Courts can treat DRM preventing lawful exceptions or forcing tied services as abuse of dominance under the Competition Act, 2002. Examples include John Deere tractors with DRM preventing independent repair and Amazon Kindle preventing format-shifting. The Competition Commission of India should coordinate with copyright enforcement to address lock-in effects.

Articles 21A and 19(1)(a) of the Constitution of India are hollow if knowledge is locked behind DRM and legal ambiguity. For a developing country building a knowledge economy, access to prior research is foundational. Public-funded research should be accessible to citizens who funded it. The RPWD Act and Marrakesh Treaty commit India to digital accessibility.

Through DRM systems backed by ambiguous anti-circumvention law, what should be accessible becomes accessible only at platforms' discretion.

India has an advantage over the US under Section 65A, which requires "intention to infringe" and permits "purposes not expressly prohibited." Yet, ambiguity paralyses institutions. One statutory amendment can clarify what the law already implies. Portugal proved that this works without legal chaos. India has the constitutional foundation, international precedent and regulatory flexibility to move differently from the United States. The task is not to weaken copyright; it is to ensure technology cannot silently rewrite the balance parliament and the Constitution already struck.

One amendment, one legislative session and the clarity can be restored.

Prakhar Suryawanshi is a Manager at Dilip Buildcon Limited, Bhopal.