INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
(i) 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 (ii) any organisation working for the benefit of the per - sons with disabilities in case the normal format pre - vents the enjoyment of such works by such persons: Provided that the copies of the works in such acces - sible format are made available to the persons with disabilities on a non-profit basis but to recover only the cost of production: Provided further that the organisation shall ensure that the copies of works in such accessible format as used only by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business; Explanation – For the purposes of this sub-clause, “any organisation” includes and organisation regis - tered under section 12A of the Income-tax Act, 1961 (43 of 1961) and working for the benefit of persons with disability or reorganised under Chapter X of the Persons with Disabilities (Equal Opportunities, Pro - tection 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 recog - nised by the Government; (zc) the importation of copies of any literary or artistic work, such as labels, company logos or promotional or explanatory material, that is purely incidental to other goods or products being imported lawfully. (2) The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of a lit - erary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself.” 9.3 Exhaustion In India, parallel importation is governed by the princi - ple of exhaustion of rights under Section 30 (3) of the Trade Marks Act 1999.
Also, India follows the principle of international exhaustion, and the term “market” refers to the inter - national market. However, the above principle/doctrine does not apply in case the condition of the goods has been changed or impaired after having been put in the market. The above doctrine also does not apply if product/pack - aging meant for a particular market only is being exported outside to other countries contrary to their compliances. In such a case, a trade mark owner can file a suit – including for passing off, falsification and infringement. Doctrine of First Sale in India India follows a variation of the copyright exhaustion doctrine known as the doctrine of first sale. This prin - ciple is enshrined in the Copyright Act 1957, with spe - • Control over subsequent sales: Once a copyrighted work is lawfully sold or transferred, the copyright owner cannot prevent its resale, rental or further transfer. For example, if a book or music CD is sold by or with the authorisation of the copyright owner, the owner cannot later restrict its resale or redistri - bution. • Authorised sale exhausts rights: If a copy of a copyrighted work is sold with authorisation, the copyright owner’s right to control distribution of that specific copy is exhausted. Treatment of digital content under the doctrine of first sale The application of the doctrine of first sale to digital content presents unique challenges due to the nature of digital goods and licensing practices. cific provisions and exceptions. Application to physical copies • Traditional application: The doctrine of first sale typically applies to tangible goods, such as physi - cal books, DVDs or records. • Digital content limitations: The Copyright Act 1957 does not extend the first-sale doctrine to digital content in the same way as physical copies. This means that even after a digital copy is sold or licensed, the copyright owner retains the right to control its distribution or resale.
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