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Copyright: Keeping a balance between public and private interest

By Achal Prabhala

The copyright system is meant to promote access to knowledge in the public domain, not to restrict it. The proposed amendments to the Indian Copyright Act 1957, however, may land us with an ever-growing list of restrictions

Who exactly is affected by copyright law? The answer, in short, is --  everyone. The Indian Copyright Act, 1957 is to be shortly amended, mainly to keep in line with changes wrought in recent years – an opening up of the domestic economy, the undeniably enormous significance of the Internet, and global economic processes that have significance here. As yet, there has been scant attention to the implications of current and future provisions in copyright law, other than from rights-holders (ie companies in publishing, entertainment and software industries, among others) and some concerned users and producers.

Copyright law has always had some significance for knowledge and culture, even in an Indian scenario where the twin realities of weak legal enforcement and piracy have considerably altered its effect. It decides, for instance, whether teachers in under-funded schools can make sufficient copies of educational material for their students; whether public libraries can consistently provide new material to their users and whether researchers can adequately make use of computer software to expand their knowledge sphere. More recently, with cheaper technology (like VCDs and DVDs) and access to the Internet (though limited by geography and class), the ease by which media might be produced, distributed and reproduced has accelerated. While this is a cause of much anxiety for big media corporations, in fact, it is welcome: reminding us that the media that people hear, see or read essentially spurs the media that they, in turn, produce.

While piracy often bridges the access gap, whether for entertainment or education, another feature of the new Indian economy is a crackdown on the informal economy, accompanied by a renewed scrutiny on enforcement of copyright rules. It is in these circumstances that the current Copyright Act and its proposed amendments become crucial to the future of knowledge and information.

The broad overview

Copyright law is managed by the office of the Registrar of Copyright, a position within the Ministry of Human Resource Development (at the Department of Higher and Secondary Education). The process of amending the law has been very transparent, with both proposed amendments circulated well, and comments and suggestions sought. The copyright office also has a very useful website where the proposed amendments are displayed: www.copyright.gov.in
 
Broadly, it is important to acknowledge that access to knowledge and cultural goods is critical to ensure full participation of the public in political and cultural life and to ensure benefit to them from any scientific and technological advancement. The copyright system is meant to promote the efficient dissemination of knowledge in the public domain by maintaining a balance between enabling rewards to producers of knowledge on the one hand, and access to these copyright goods for the public, on the other. It is therefore critical that laws pertaining to copyright in any country be drafted in a manner that best ensures an ideal balance between public and private interest.
 
The copyright law of a sovereign nation is influenced by the status of that nation’s accession to the major international conventions, treaties and trade rules, which in the case of India, are:
 
(i) The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)
(ii) The agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) which also incorporates the Berne Convention.
 
Additionally, there are a number of other copyright-related treaties like the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which bind signatory nations to additional changes to their copyright law. It is to be noted that India is only bound to the terms of the Berne Convention and the TRIPs agreement, and not to either the WCT or the WPPT. We are therefore not legally obliged to any commitments beyond those obligated under TRIPs and Berne. Current indications are that India is not going to sign either treaty any time soon.

Significant problems

However, some of the proposed amendments to the Act seek to introduce provisions related to the WCT and WPPT, and we need to be extremely cautious about this – since evidence suggests that they may be detrimental to public interest. For instance, the current proposals seek to introduce Digital Rights Management (DRM) into the Act, and this is not in our interests – since DRM creates unnecessary hurdles to accessing (and using) material placed in the electronic domain. At best, India does not need to deal with the issue of DRM at all – as it is under no obligation to do so. Failing that, it is at least advisable to clarify that DRM cannot overwrite currently existing exceptions in the law – for instance, that allow making copies for personal research – the point being that the electronic domain must be governed by the same copyright law that governs other media. Unfortunately, the introduction of DRMs follows a general trend in the direction of copyright law worldwide – which is towards enforcement of an ever-growing list of restrictions.

But it is important for us (and the Indian government) to recognise and rely on the flexibilities of the Berne Convention and the TRIPs agreement which enable access to knowledge and information, by ensuring easy access to copyrighted materials in respect of educational, private or general use, and via any media or form. For instance, the present amendment seeks to promote greater access to knowledge and information for persons with any sensory disabilities. This is a welcome move, especially if enacted with a thorough review of the details of the need, and the enabling provision thereof. In its current proposed form, however, the amendment falls short of addressing the need.

Currently the Act has no provision for providing sensory disabled people with the rights they need to adapt copyrighted material into formats suitable for access (like audio or Braille).  The proposed amendment says that disabled people may produce versions of existing material without asking for permission – but only so long as the version is Braille.  The problem is, Braille is an outdated, unused format – printing it costs a lot, the equipment is only affordable to institutions and the format itself is often unfeasible. In the present day, the easier option is audio. But there has been so far, a reluctance to allow disabled people to be able to adapt material into audio – which is surprising, considering that richer countries like the UK have precisely such a clause in their copyright law, thus facilitating real access to copyrighted material for sensory disabled people.

Another problem is with version-recordings for music – in fact, an instance where a functional, helpful, existing procedure in the law will be changed to the detriment of consumers. So far, India has had a flourishing small-scale music industry which caters to several regional (niche) markets and provides employment in the thousands. The clause that allows such industries to exist is 52(1)(j) of the Act which essentially allows music companies to make their own ‘versions’ of an existing song in exchange for a small fee. This clause has been responsible for the emergence of, most famously, T-Series, and other homegrown music companies. But this is set to change. The amendment suggested by government (doubtless on the strong recommendation of the Indian Music Industry, which represents big companies) is that smaller music companies can no longer automatically get such permission. Instead they will have to apply for it and be prepared to pay a minimum royalty for 50,000 copies of the versioned song regardless of how much they eventually sell. This can have disastrous implications for the future of regional music and the employment it generates.

More curious changes proposed relate to the free functioning of the media, and freedom of expression in general. Currently the Act allows for a media outlet to review or criticise the work of another one. The proposed amendment seeks to remove this clause – a simply unexplainable move. Also, the Act currently allows for public speeches to be reported in full in the media, without any restrictions. The proposed amendments seek to remove this clause, which is very problematic since the ensuing situation will be one in which the scope of media coverage of such events is severely curtailed.

Other problems

There are several other problems with the Act – some to do with proposed amendments, but others to do with existing sections of the Act that have not been sufficiently scrutinised for update and change.

For instance, in the present time, retailers in India cannot import copyrighted goods from any country they choose to do so from. In trade law, this principle is called “parallel importation” – ie the right of a sovereign nation to choose the cheapest and best options from among a range of similar goods produced worldwide. Currently, with the prices of copyrighted commodities in India generally the lowest anywhere in the world, parallel importation is not a crying need – but in the future, it could well be, and the law needs to reflect appropriate foresight.

And there is more: the term of copyright for all works exceeds the minimum guidelines laid down in the Berne Convention and TRIPs, for which there is neither any need, nor logic. There is an unnecessary distinction between “Indian works” and “Foreign works” – perhaps legitimate in times past, but hardly relevant in the present time, with a proliferation of global media. The “fair dealing” exceptions which allow teachers and students to learn unhindered need to be broadened if they are to be workable and useful to both. The Act lays out specific types of government works that must be made accessible to a general public: this list should include any government-funded book, publication or the like, rather than merely reports – given that the funding for any government publication comes from taxpayers.

Conclusion

While the current Copyright Act and its proposed amendments have not gone unnoticed, it would be fair to say that there is little awareness of the benefits, pitfalls and consequences of a system of monopoly control that few understand; a system that affects everyone. In this, we are all complicit: for not providing a better understanding of a technocratic dialogue, and for not organising a system of collective participation and input to the legal process.

As one step in this direction, in July 2006, the Alternative Law Forum, with the support of several organisations (the Citizen Consumer and Civic Action Group, the Independent Documentary Producers Association, National Association for the Blind, Centre for the Study of Developing Societies, Voice, Consumer Online Foundation, Drishtiviklang Sangh, M S Swaminathan Research Foundation, Mahiti - International Open Source Network India and the Tata Institute of Social Sciences) drafted a comprehensive response to the proposed amendments. The response kept in mind a fundamental aspect of copyright: that intellectual property protection entails the responsibility of facilitating access, not restricting it.

For more information see: http://www.altlawforum.org/copyright_amdt

InfoChange News & Features, November 2006