Technology-enabled restrictions are undermining fair-use rights and public access
For decades, laws on intellectual property (hereinafter to be referred as IP) have focused on
piracy by individuals—people downloading movies, sharing PDFs, or copying software.
However, in the present open-source digital age, more powerful form of piracy has emerged. It
is not carried out in personal capacity but by sophisticated technological systems, automated
copyright filters, restrictive licensing practices, and large corporations. This form of modern
digital piracy, do stealing not from copyright holders, but from the public itself. It quietly
captures and encloses material that should be freely available including public-domain works,
traditional knowledge, and content that is lawfully usable under fair dealing. This catastrophe
may be described as the “piracy of the public domain.”
Public-domain content is open source. Fair-use rights under Indian Legal system allow the
public to make educational, transformative or research-based use of copyrighted material. In
contrary, technology platforms frequently prevent such lawful use through automated blocks,
digital locks, and proprietary databases that override statutory rights. As technology and its use
advanced, these restrictions grow stronger, while legal mechanisms lag behind to keep pace
with the rising misuse. Consequently, this brings gap between what the law allows and what
digital platforms permit.
The Legal Balance: Fair Use, Public Domain & the Purpose of IP Law
IP law has never been designed as an instrument of indefinite private control and rather raise
enthusiasm for inventory works/creations. It is intended as a temporary monopoly given to
creators so that, eventually, knowledge returns to the community. Fair dealing provisions in
India, and fair use provisions in other jurisdictions, ensure that criticism, review, research,
teaching, and transformative use remain lawful even when copyright exists. Public-domain
works—including expired copyrights, government works, and traditional knowledge—carry
no exclusive rights at all. In theory, nothing should obstruct the public’s enjoyment of such
works.
Yet, in the digital environment, platform rules often overpower statutory rights. Automated
systems implement sweeping blocks, and content that legally belongs to everyone is suddenly
placed behind paywalls, Digital Rights Management (hereinafter to be referred as DRM) locks,
or algorithmic restrictions.
Digital Restrictions and the Silent Privatization of Public Knowledge
The most prominent way technology pirates the public domain is through DRM—a misnamed
concept because it usually manages restrictions, not rights. Modern e-books, films on OTT
platforms, and even academic resources come wrapped in digital locks that prevent lawful
copying, sharing or quotation. Even a public-domain novel like Pride and Prejudice, available
freely on the internet, becomes non-copyable or unprintable if purchased on a DRM-protected
platform such as Kindle. The law grants the reader complete freedom over a public-domain
work; the technology revokes it.
Another growing issue is the misuse of copyright bots. On YouTube, genuine public-domain
music from Mozart, Beethoven, and even ancient Indian classical compositions regularly gets
taken down because automated bots “match” them with other copyrighted recordings. Recently,
creators uploading 1930s archival speeches of Mahatma Gandhi and British-era footage have
reported takedowns on the ground that a modern media company claims ownership of a
remastered version. The claim is often false, but the takedown is immediate, while the appeal
takes weeks and sometimes months. Thus, the platform, not the law, controls access to public
knowledge.
Streaming platforms also contribute to this issue. Many black-and-white films, early
documentaries, and radio recordings whose copyright has expired are available only behind
subscription paywalls on modern OTT services. For instance, several 1960s Indian films—
which are legally in the public domain—appear only on platforms like Amazon Prime or
YouTube Movies under paid versions. The public must pay not for the creation, but for the
enclosure. This is, in effect, a form of digital privatization of public heritage.
Artificial Intelligence adds a new dimension to the problem. Large AI models are trained on
millions of public-domain texts, knowledge, artworks, and images. Yet the companies then
impose restrictive terms of use over the outputs and over access to the trained models. A publicdomain painting by Raja Ravi Varma used for AI training may reappear in AI output, but the
output is then licensed under proprietary terms. Thus, public materials are transformed into
private datasets without any reciprocal public access.
Digitization agreements between content libraries and private giants raise another layer of
concern. Several university libraries in India and abroad have digitized ancient manuscripts,
public-domain books, and archival texts with corporate support. Yet, the resulting digitized
copies are sometimes accessible only through paid portals or require institutional login
credentials, making public-domain content effectively inaccessible to ordinary citizens. A reallife example of the limitation of public access to knowledge is the full text of judgments and
orders of the Higher Judiciary. Although these documents are of public importance, their
complete access is monopolized by a few legal platforms, which only provide them to users
who pay for a subscription, restricting free and equitable access to legal knowledge.
Traditional Knowledge: The Oldest Public Domain Under Threat
Traditional Knowledge (hereinafter to be referred as TK) represents the oldest and perhaps
most culturally significant part of the public domain. Herbal remedies, indigenous agricultural
techniques, classical medicinal formulations, folk art, cultural symbols, and tribal practices
form a collective body of knowledge developed over generations, not by any single author.
However, modern companies often attempt to patent or commercially exploit this knowledge
and try their hard to make the belief that it were their own intellectual property. India has
vigorously fought such attempts. The famous turmeric case in the United States, where a patent
was granted for the healing properties of turmeric (haldi), is a classic illustration. The basmati
rice dispute further show how TK is vulnerable to misappropriation. Although the Traditional
Knowledge Digital Library (TKDL) was established to fight such claims, the underlying
problem is limited knowhow of TK and as such technology enables the privatization of
knowledge that belongs to entire communities.
Today, Gen AI models use content through classical Ayurvedic texts and ancient botanical
knowledge without acknowledging their communal ownership or the public-domain status of
these heritages. Companies then claim proprietary rights over AI-generated outputs derived
from whatever is part of traditional knowledge. This make a new form of biopiracy—use of
technological systems into digital misappropriation.
Traditional knowledge cannot be copyrighted because it does not belong to a single author and
has existed far before modern IP laws. But technology-enabled claims create de facto
exclusivity, making the community knowledge inaccessible to the public.
Why Digital Restrictions Violate Law, Equity, and Constitutional Principles
The central legal problem with these technological restrictions is that they override rights those
which public already possesses. Fair dealing under the Copyright Act allows limited use of
protected works for education, research, criticism, and news reporting. Public-domain works
involve no restrictions at all. But DRM systems, copyright bots, AI restrictions, and
subscription barriers prevent these lawful uses.
This kind of technological overreach raises issues over exercise of constitutional rights.
Restriction on access to public-domain content violate the freedom of expression enumerated
under Article 19(1)(a) of the Indian Constitution. Limited access of subject of law violate
Article 14 by allowing private corporations to dictate access without procedural fairness. The
right to knowledge, culture, and education, implicit under Article 21, now becomes subject to
platform controls.
The problem is not merely technological; it is structural. Platforms have incentives to retain
exclusive control because it increases subscriptions, advertising, and market dominance. Thus,
even when the law has released a work into the public domain, technology finds a way to reenclose it.
Solutions ahead: Legal Remedies and Structural Reforms
This requires a combination of statutory reform, judicial intervention, and public awareness.
At the legislative level, India must recognize “digital fair dealing” and explicitly prevent DRM
and platform restrictions from overriding lawful rights. The Copyright Act needs to be amended
to the level of prohibition on placing DRM on public-domain content and to facilitate free
access to digitized public materials. There should also be penalties for false copyright claims
and wrongful removals, especially when dealing with public-domain works.
Courts can play a vital role. Hon’ble High Courts under Article 226 of Indian Constitution may
compel platforms or public authorities to restore access where technological restrictions violate
constitutional and statutory rights. Additionally, civil suits may be filed against wrongful
takedown claims, and damages may be sought when creators suffer economic loss. TK
protection must be strengthened by imposing strict obligations on companies and AI developers
using ancient public-domain texts.
Most importantly, public-domain works digitized using public money or public infrastructure
should remain free. The principle of “open by default” must be at the heart of public knowledge
policies.
Technology should expand accessibility rather shrinking it. Public-domain works are the shared
inheritance of humanity. Fair dealing is a carefully balanced legal tool that ensures knowledge
continues to grow through criticism, research, and education. When technological restrictions
override these legal rights, society must treat it not as a technical glitch but as a fundamental
and intentional threat. Protecting the public domain is not merely a question of IP law—it is
essential for the preservation of societal culture, intellect creativity, and democratic rights.
