Copyright and Digital Preservation of Indian Cultural Heritage: Ownership, Consent, and the Limits of Reproduction
Introduction : Enter any large Indian archive nowadays and you will find that conservation is turning into something much more like information technology : manuscripts scanned using high resolution techniques under raking light, oral epics captured to digital tapes, crafts documented frame-by-frame before the last generation of dying craftsmen passes the know-how on, or fails to. The National Mission for Manuscripts, a project of the Ministry of Culture currently reorganized as Gyan Bharatam Mission, has catalogued more than fifty lakhs of manuscripts and digitized several lakhs titles from the total of around ten million items so far.
Most of these digitization efforts are made possible through public-private partnership vehicles such as the National Culture Fund, channeling sponsor and donor money into restoration and digitization initiatives.
But while it is relatively easy to finance the scanning process, the real question of concern here and this is the issue that will be dealt with in this article, is what legal rights exist in relation to the result of all that. Does the fact of photographing, filming, and recording the heritage create some copyright and, if so, whose? Or is it simply reproducing someone else's property? The answer to this question seems a great deal on what kind of heritage is being digitised, and it has direct consequences for who gets to control, and profit from, commercial access to the result.
Legal Provisions
Section 13 of the Copyright Act, 1957 confines copyright to "original" literary, dramatic, musical and artistic works, and separately to sound recordings and cinematograph films. The word "original" is doing quiet but heavy lifting here: a copy, however faithful, of something that already exists is not on its own an original work.
Section 17 governs first ownership, and matters more than it might seem for institutional digitisation: a work created by an employee in the course of employment ordinarily vests in the employer, absent a contrary agreement. Who legally "owns" a digitised file therefore depends on who did the digitising and under what contract, not on who created the underlying heritage material.
Sections 38 and 38A create a distinct Performer's Right, vesting in whoever performs a live performance, a dance, a recitation, a song, regardless of whether the material performed is itself protected by copyright. This right runs for fifty years and is triggered by the act of performing, not by any originality in the underlying material.
Section 38B, inserted by the Copyright (Amendment) Act, 2012, gives performers moral rights parallel to those of authors, the right to be identified, and the right to object to distortion prejudicial to their reputation, which matters directly for tradition-bearers recorded during a digitisation project.
Section 57 gives authors a comparable set of special rights: the right of paternity and the right of integrity, both of which survive assignment of copyright and, as the case law below shows, have been read to protect the cultural value of a work and not merely an author's personal sentiment.
For material with no traceable author, Section 31A provides a compulsory-licence route: where a work is unpublished or withheld from the public and the author is dead, unknown or untraceable, any person may apply for a licence to publish it, with royalties held for a rights holder who might later surface.
Section 52's fair dealing and library exceptions separately permit reproduction for preservation, research and certain educational purposes.
It is worth noting, too, what copyright does not cover well. Craft traditions, a Kanjeevaram weave, a Pochampalli ikat pattern, are usually communal production methods rather than individually authored expressions, and are generally better served by the Geographical Indications of Goods (Registration and Protection) Act, 1999, which protects a place-linked reputation rather than an individual's creative choices.
The places where digitisation involves recording living tradition-bearers, oral history interviews, for instance, the Digital Personal Data Protection Act, 2023 governs consent for any personal data captured in the process, quite apart from whatever copyright questions arise.
Internationally, Article 2(2) of the Berne Convention lets member states condition protection of certain categories of work on fixation in material form, and Article 6bis is the treaty basis for moral rights generally. Both provisions matter here because much of what a digitisation project captures, an oral narration, an unrecorded song, a ritual performed from memory, was, until the recording was made, never fixed in any form the law would recognise at all.
Legal Analysis: Reproduction, or a New Right?
"Digitisation" covers two quite different acts, and the law treats them very differently. Scanning a manuscript or photographing a sculpture reproduces something that already existed in fixed, tangible form. Recording an oral epic or an unscripted ritual dance fixes something for the first time. The first is a copying exercise. The second is arguably an act of authorship in its own right.
Start with the copying case. Under the "skill and judgment" standard the Supreme Court set out in Eastern Book Company v. D.B. Modak, a reproduction that adds nothing beyond routine technical effort does not attract fresh copyright, however much labour and cost went into producing it.
A comparative data point confirms the same intuition from a different direction: in Bridgeman Art Library v. Corel Corp., a US court held that photographs reproducing public-domain paintings, however carefully lit and colour-corrected, were not themselves original works. Applying that logic here, a raw digital surrogate of a manuscript does not generate new copyright merely because scanning it was slow or expensive; if the underlying manuscript's own copyright term has expired, the digitised copy is, legally, still public domain.
Institutions rarely stop at raw copying, however. Curatorial choices, which folios to prioritise, how to sequence a damaged manuscript, what metadata and cataloguing description to attach, what restoration judgment calls to make on a faded textile image, can, where they cross Modak's more-than-trivial threshold, generate a thin derivative copyright in that curatorial layer alone, owned by the digitising institution under Section 17, but never in the underlying heritage material itself.
Now the harder case: recording something never fixed before. Fixation is doing real legal work here, the recording can, in principle, be the very act that brings a work into copyright's ambit for the first time. Two questions follow immediately. First, who is the "author" of what is newly fixed, the archivist who pressed record, or the performer whose lifetime of training produced what was recorded? Section 38A answers part of this by giving the performer a distinct right regardless of who, if anyone, owns copyright in the underlying song or story.
Second, and more troublingly: does a performer's rendition count as "original" if it faithfully reproduces a form handed down largely unchanged for generations, or is the performer, like Dr Karanth in the Malini Mallya case discussed below, better understood as someone whose own identifiable creative additions to a traditional form are what actually attracts protection, leaving the traditional form itself, however skilfully rendered, in the public domain?
This is precisely the gap traditional cultural expressions fall into. They are typically communal and incrementally created across generations, with no single identifiable author and often no moment of fixation from which copyright's duration clock could sensibly start running, and where a fixation-linked term did once start, on an old manuscript, it has usually already expired. Copyright's authorship and duration architecture was simply not built for material like this, which is why WIPO's Intergovernmental Committee has spent two decades trying, so far without success, to draft a dedicated international instrument for traditional cultural expressions rather than force-fitting them into ordinary copyright.
The honest answer to whether digitisation creates new rights is therefore layered, not singular: pure reproduction of already-fixed material creates nothing new; curatorial and editorial effort can create a thin institutional copyright; first fixation of previously oral or performed material can create a performer's right in the individual performer; and the underlying tradition itself, being communal and usually out of term even where it was once protectable, generally remains free for anyone to use, which is exactly why consent and benefit-sharing have to be built in by contract, since copyright law alone will not supply them.
Case Laws
Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1
The Supreme Court's "skill and judgment" test for originality, discussed above, is the central authority for deciding whether a digitisation project's editorial layer - headnotes, cataloguing, restoration choices - is itself protectable, as distinct from the material being reproduced.
Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 (Del)
The Delhi High Court held that moral rights under Section 57 protect not just an author's personal reputation but the integrity of a work recognised as part of the nation's cultural heritage, ordering the government to return a damaged mural to the sculptor who made it. The case is directly relevant to how institutions handle acquired or state-owned heritage works during digitisation - cropping, recolouring, or recontextualising an image can itself raise Section 57 concerns, and the judgment establishes that an institution's custodianship of a work does not extinguish the original creator's integrity interest in it.
Academy of General Education, Manipal v. B. Malini Mallya, (2009) 4 SCC 256
The Supreme Court upheld copyright in a set of Yakshagana ballets on the basis that their creator, Dr Kota Shivarama Karanth, had made distinctive, identifiable additions to the traditional dance-drama form, new ragas, talas, costuming and staging, even though Yakshagana itself is a centuries-old traditional art form belonging to no single author. The case draws exactly the line this article has been describing: the traditional form remains communal and unprotected, while an individual's original elaboration of it can attract copyright in its own right.
Civic Chandran v. C. Ammini Amma, (1996) 16 PTC 329 (Ker)
The Kerala High Court held that even substantial copying can fall within fair dealing where it is genuinely undertaken for criticism, review or public-interest commentary. The case offers useful cover for institutions using digitised heritage material in exhibitions, scholarship and educational commentary without needing to negotiate a full licence for every such use.
Practical Implications: A Licensing Model for Responsible Commercial Access
The statutory scheme and case law above point toward a tiered licensing structure rather than a single blanket licence covering everything an institution digitises. Three tiers, corresponding to the three layers of right identified in the legal analysis, work reasonably well in practice:
An open tier for raw digital surrogates of material whose copyright term has expired, or that was never within copyright's ambit at all, released for research, educational and personal use with minimal restriction, since Modak confirms that raw reproduction attracts no fresh copyright regardless of the effort spent scanning it.
An institutional-curation tier covering the thin copyright generated by cataloguing, restoration and editorial arrangement, licensed for genuinely commercial reuse such as publishing or stock imagery on ordinary commercial terms, since this layer is validly owned by the digitising institution under Section 17.
A community-benefit tier for material documenting an identifiable living tradition, performer or community, where commercial licensing should be conditioned on prior informed consent obtained at the point of recording, a royalty or revenue share returned to the community or a custodian trust modelled on the National Culture Fund, attribution naming the originating community and region, and a moral-rights-style veto letting the community or performer object to derogatory or decontextualised commercial use, tracking the integrity principle from Amar Nath Sehgal.
For orphaned archival material with no traceable author or community custodian, Section 31A's compulsory-licence route offers a lawful path to commercial publication, with royalties held in escrow for any rights holder who later comes forward.
Institutions can also draw on the logic behind the Traditional Knowledge Digital Library: a searchable, provenance-tagged digital record of a tradition is itself a defence against misappropriation, since it creates prior art that can be used to resist a third party who later tries to patent or trademark the same material elsewhere.
Finally, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, which India ratified in 2005, commits state parties to involve communities in identifying and safeguarding their own heritage. That commitment is best honoured by treating community consent and revenue-sharing as contractual defaults built into the licensing agreement itself, rather than as goodwill gestures left to an institution's discretion.
Conclusion
Digitisation is not one legal event but several, and the question of whether it creates new rights only has a useful answer once the type of material is specified. Reproducing an already-fixed public-domain work creates nothing new. An institution's curatorial and editorial choices can create a thin copyright of their own. Recording a previously unfixed oral tradition or performance can, for the first time, bring performer's rights into existence, even where the tradition performed remains communal and unowned. What copyright law does not do, in any of these scenarios, is guarantee the originating community a seat at the table when the result is commercially licensed — that has to be built in deliberately, through consent obtained at the point of recording, attribution, benefit-sharing modelled on institutions like the National Culture Fund, and a contractual analogue to the integrity right the Delhi High Court recognised in Amar Nath Sehgal. Until a dedicated instrument for traditional cultural expressions exists, a tiered, consent-anchored licensing model remains the most responsible way to reconcile public access to India's digitised heritage with the interests of the communities that made it.
Author: Samvidha Rastogi in case of any queries please contact/write back to us via email to content@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney
References
National Mission for Manuscripts (Gyan Bharatam Mission), Ministry of Culture, Government of India (established Feb. 2003).
National Culture Fund Trust established 1996 under the Charitable Endowment Act, 1890 (India).
The Copyright Act, 1957, § 13 (India).
The Copyright Act, 1957, § 17 (India).
The Copyright Act, 1957, §§ 38, 38A (Performer's Right) (India).
The Copyright Act, 1957, § 38B, inserted by the Copyright (Amendment) Act, 2012 (India).
The Copyright Act, 1957, § 57 (India).
The Copyright Act, 1957, § 31A (India).
The Copyright Act, 1957, § 52 (India).
The Geographical Indications of Goods (Registration and Protection) Act, 1999 (India).
The Digital Personal Data Protection Act, 2023 (Act No. 22 of 2023) (India).
Berne Convention for the Protection of Literary and Artistic Works, Arts. 2(2), 6bis (1886, as revised).
Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.
Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) (U.S.).
Academy of General Education, Manipal v. B. Malini Mallya, (2009) 4 SCC 256.
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), Draft Articles on the Protection of Traditional Cultural Expressions.
Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 (Del).
Civic Chandran v. C. Ammini Amma, (1996) 16 PTC 329 (Ker).
Traditional Knowledge Digital Library, Council of Scientific and Industrial Research & Ministry of AYUSH (established 2001).
UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) (ratified by India, 2005).
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