INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
Income-tax Act, 1961 (43 of 1961) and working for the benefit of persons with disability or reor - ganised 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; (zc) the importation of copies of any literary or artistic work, such as labels, company logos or promotional or explanatory mate - rial, 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 literary, dramatic or musical work or the adaptation of a literary, dramat - ic, musical or artistic work as they apply in relation to the work itself.” 9.3 Exhaustion In India, parallel importation is governed by the principle 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 international market. Doctrine of First Sale in India India follows a variation of the copyright exhaus - tion doctrine known as the doctrine of first sale. This principle is enshrined in the Copyright Act 1957, with specific provisions and exceptions. Application to physical copies • Control over subsequent sales: Once a copyrighted work is lawfully sold or trans - ferred, 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 redis - tribution. • Authorised sale exhausts rights: If a copy of a copyrighted work is sold with authorisation, the copyright owner’s right to control distribu - tion 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 prac - tices. • Traditional application: The doctrine of first sale typically applies to tangible goods, such as physical 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. Digital licensing models • Licensing over ownership: Digital content, such as e-books, software, movies and music, is often provided under licensing agreements rather than outright sale. End- user licence agreements (EULAs) and terms of service commonly restrict resale, sharing or distribution of licensed digital content. For example, when purchasing an e-book or digital music, the buyer typically acquires a licence to use the content rather than owner - ship of the copyrighted material. • No exhaustion of rights: Licensing agree - ments prevent the application of the first-sale
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