Centre for Internet and Society

In a first, Indian Singers Rights' Association distributes royalty

praskrishna — 2018-04-17T14:21:27Z

While singers say this benefits out of job artistes, the transparency in distribution remains questionable.

This info was published by the News Minute on April 14, 2018.

In a first, the Indian Singers Rights’ Association (ISRA) distributed Rs 51 lakh in royalties to singers on Friday. The beneficiaries included popular playback singers KS Chitra, P Susheela, KJ Yesudas, SP Balasubrahmanyam and Srinivas.

Speaking to The Hindu, ISRA CEO Sanjay Tandon said, “This ₹51 lakh royalty money will grow 10 fold if and when radio channels, television channels and mobile companies start paying us. Right now, only IPL teams, amusement parks and few other establishments have paid the royalty money.”

Speaking to media persons at the event, singer SP Balasubrahmanyam said, "The government has given a rule saying that royalty should reach the singers as well. This programme is organised to give a part of the shares to singers in South India. This is a good thing to be welcomed.”

In March last year, SPB and others were slapped with legal notices by renowned music director Ilaiyaraaja over performing his compositions without his explicit permission and a payment of royalty to him. While this took the singers by surprise, experts had clarified that Ilaiyaraaja was right in asking for royalty as long as he owned the copyright to the music.

Speaking to Puthiya Thalaimurai channel, singer Chitra said, "Everyone knows a singer doesn't have pension or anything. After they sing, if the song is a hit, they will get a few shows here and there. We know a lot of people who are struggling to live. This will definitely help them, especially when they are aged and cannot go to work. This royalty will really be useful. We welcome this."

Singer Srinivas added, "This is not the case where you give money to someone who already has money. This is for a singer who has disappeared after singing 4- 5 songs. He's probably struggling in a village. When the money reaches him, it is a big thing. If we meet that social responsibility, it would be a success."

However, if royalty would go to singers of all ranks remains unclear.

In a transparency review conducted by the Centre for Internet and Society, Bengaluru, that compares the publicly available information on the websites of music collective management organisations(CMOs), ISRA did not detail the “distribution of percentages, nor the administrative cut it seeks to take” as per the Copyright Amendment Act 2012.

For more details visit https://cis-india.org/a2k/news/the-news-minute-april-14-2018-first-indian-singers-rights-association-distributes-royalty

34th SCCR: CIS Statement on the Discussion on Limitations and Exceptions for Libraries and Archives

sinha — 2017-05-15T10:35:36Z

Anubha Sinha, attending the 34th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 1 May, 2017 to 5 May, 2017, made this statement during the discussion on limitations and exceptions for libraries and archives.

Thank you, Mr. Chair.

CIS works on issues of access to knowledge and other digital rights in India.

I would like to share with you my experience which highlights the difficulty of building digital archives in India. Mr. Chair, earlier last year the government of India embarked upon the important project of digitizing the cultural audiovisual material stored in government and private collections to store material for preservation purposes, and set up a virtual network of these repositories to offer online access. My organization has been assisting them in this crucial public service mission. These works are oral traditions, dance, music, theatrical practices, cultural practices – all of which lie largely inaccessible and languishing in several small and large collections in India. Since, the Indian copyright Act does not contain an exception for the purposes of preservation by an archive; the entire project has suffered high costs in terms of money and time. Money, because the project had to get expensive legal assistance to set up processes to obtain rights clearance from all the performers who were a part of the works and copyright holders- some of which are orphan works, thereby compounding the problem. Further, partnering organizations also expressed legitimate fears of supplying their works, in case of a potential copyright and related rights violation that could implicate them with civil/criminal liability.

In such a scenario, for the benefit of other states to update their standards corresponding to this international legal instrument as well, it would indeed be useful to adopt the proposals mentioned in the document SCCR/26/3 that address these issues, and others.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/34th-sccr-cis-statement-on-the-discussion-on-limitations-and-exceptions-for-libraries-and-archives

Fixing Copyright for Education (SCCR34 Side Event)

praskrishna — 2017-06-07T00:48:42Z

This event, hosted by Communia, EIFL, Creative Commons, and PIJIP, provided an overview of legal trends and developments concerning education, and presented the reality of education today. Anubha Sinha was a speaker.

The speakers described legal challenges faced by educators using new technologies, and discussed how copyright limitations and exceptions can be adapted to be fit for education in the digital age. It was held in Geneva as a side event at WIPO’s 34th Standing Committee on Copyright and Related Rights

Speakers:

Sean Flynn, Program on Information Justice and Intellectual Property, American University Washington College of Law. “Opening User Rights for Educational Uses.” Presentation | Data
Chichi Umesi, First Secretary, Mission Of Nigeria to the United Nations in Geneva. “The Importance of Education for Developing Countries.”
Teresa Nobre, Legal Expert on Copyright, Communia. “Mapping Obstacles to Educational Uses in Europe.” Final report | Infographic | Presentation
Delia Browne, Education Lead, Creative Commons Australia / Director, National Copyright Unit (Schools and TAFEs) Australia. “Tales from Australian Copyright Law Reform Debate.” Presentation | Background documents: Myth: Fair use would harm Australian authors | Myth: Fair use decimated educational publishing in Canada
Anubha Sinha, Centre for Internet and Society – India. “Access to Education Wins in Oxbridge Clash with Indian Photocopier.” Background document (by Lawrence Laing)

For more details visit https://cis-india.org/a2k/news/fixing-copyright-for-education-sccr34-side-event

Will the Copyright Law Help the Starving Artist?

praskrishna — 2012-05-29T03:46:23Z

By law, producers are no longer allowed to keep all the royalties to songs, lyrics or other works of arts. Now, these rights will have to be shared with the artist who created them.

This article by Margherita Stancati was published in the Wall Street Journal on May 28, 2012. Pranesh Prakash is quoted in this.

"I remember when Ustad Bismillah Khan" – a legendary Indian classical musician – "came to me and said that he did not have money to pay his rent," Indian Human Resources Minister Kapil Sibal recently told Parliament.

At the time, Mr. Sibal said he solved the problem by writing him a check.

The government hopes that changes introduced to India’s 1957 Copyright Act will allow composers and other artists to do away with such acts of charity. Parliament passed the bill amending the copyright act last week.

By law, producers are no longer allowed to keep all the royalties to songs, lyrics or other works of arts. Now, these rights will have to be shared with the artist who created them.

Earlier, "artists would typically give all the rights to the producer. It was called a work for hire," says Anish Dayal, a Supreme Court lawyer who specializes in media and entertainment legislation.

The amendments to the act means that "even if they want to give rights to producers, they can’t," adds Mr. Dayal.

The way the law phrases this is a little confusing. An amendment to section 18 of the act says that authors of literary or musical works featured in movies shall "receive royalties to be shared on an equal basis" with others who have copyright over the work (such as producers.) It’s not clear whether "equal basis" means 50% or whether it depends on the number of people with whom the royalties are shared.

The amended law also makes it compulsory for radio and broadcasters to pay royalties every time they air a recording.

The biggest impact of these changes will be on India’s film industry, especially on the lyricists and composers of Bollywood music, who have long lobbied for rights over their work.

Before the amendments were given a green light, Bollywood lyricist Javed Akhtar described the condition artists worked in as "bonded labor." Recently addressing lawmakers in the upper house of Parliament, where he holds an honorary seat, Mr. Akhtar shared a long list of cases of famed Indian musicians and composers who lived and died in penury. He named Shailendra, a popular 1950s Hindi lyricist, and Omkar Prasad Nayyar, a composer of movie scores.

For Paromita Vohra, a Mumbai-based documentary filmmaker, said changes to the law mark a first step towards making art production “more equal” by giving artists more rights over their work. "It’s about time," says Ms. Vohra, who last year made a film on copyright in the world of art.

"Those who have the money are more powerful than those who make the arts. The act recognizes this, it addresses a power balance," she adds, describing this as a "philosophical change" in the law.

But she says this alone is not enough. "Lawyers are good at circumventing the law," she claims. Still, artists willing to fight for their rights "now have the law to fall back on," she adds.

Stronger labor unions, Ms. Vohra says, would make it easier for artists to make the most of the new legislation. "When that happens, I think the law will be very helpful."

Not all were pleased with the changes on royalties. Adarsh Gupta of Saregama, a music production company, said the law is "extremely unfair to the film and music industry" and that it paves the way to litigation.

Other changes introduced in the act include tighter regulations on cover versions, including a clause that raises the time period after which covers are legally allowed from two to five years.

Critics say these restrictions are excessive and at odds with art produced in the digital era.

"This ignores present-day realities," Pranesh Prakash of the Centre for Internet & Society wrote in his analysis of the amended copyright bill. He used the example of the hit tune Kolaveri Di, which was covered countless times. "The singers and producers of those unlicensed versions could be jailed under the current India Copyright Act, which allows even non-commercial copyright infringers to be put behind bars," he adds.

The act also removes copyright requirements for Braille or for other works of art adapted for people with disabilities.

What the amended law does not include is a clause that many in the Indian publishing industry feared may have made them redundant. The proposed amendment would have allowed non-Indian publishing houses distribute their books in India, removing the territorial exclusivity of local publishers. This clause did not make it in the final version of the law.

For more details visit https://cis-india.org/news/will-copyright-help-starving-artist

Right to Knowledge for Persons with Print Impairment: A Proposal to Amend the Indian Copyright Regime

praskrishna — 2009-12-04T10:18:45Z

This research paper details the need for an amendment of the present provisions of Copyright laws and help enable the print impaired gain access to published works. The paper was submitted to the Ministry of Human Resource and Development in November to appraise it of the needs of the print disabled community. The paper is up for public comments and we welcome your feedback for this ongoing campaign.

For more details visit https://cis-india.org/accessibility/publications/uploads/Case%20for%20Amendment%20of%20Copyright%20Regime%20in%20India%20November%2022-%202009.pdf

Gandhi, Freedom, and the Dilemmas of Copyright

praskrishna — 2012-04-28T04:11:01Z

To commemorate Mahatma Gandhi's death anniversary, the Centre for Internet and Society cordially invites you to a talk by Prof. Shyamkrishna Balganesh of the University of Pennsylvania on Gandhi, Freedom, and the Dilemmas of Copyright on 30 January 2012 at 6.00 p.m.

When the copyright on Rabindranath Tagore's writings were to expire, his estate sought (and got) an extension in copyright term. But when the copyright on Mahatma Gandhi's writings were to expire, the trustees did not seek such an extension, in deference to Gandhi's views on copyright. On the cover of the first English edition of the Hind Swaraj, it states: "No Rights Reserved". Was Gandhi a Wikipedian at heart, and a prophet who foresaw the 'copyright wars' and had his own visions of how far free culture and free knowledge activism could and could not go?

Description

Central to modern discussions of copyright law is the conflict between copyright’s role as a market-based mechanism of cultural production and its detrimental effects on access to knowledge, free speech, and cultural creativity. So divisive is this debate in the world of copyright law today that some have characterized it as the ongoing “copyright wars”. In January 2009, when copyright in all of Gandhi’s works expired, to the absolute surprise of many, the Navjivan Trust,to whom Gandhi had transferred the copyright in his works, chose not to seek a statutory extension of copyright.

The Trust’s firm decision rested in large part on Gandhi’s unease with copyright law, and his reluctant acceptance of its benefits. Gandhi’s opinions on copyright law reveal a rather concerted attempt to grapple with the innumerable public and private trade-offs that are central to the institution, which are today seen as the very basis of the copyright wars. Much like Gandhi’s views on other issues, they reveal a pragmatism, nuance, and creative engagement, which likely emanate from Gandhi’s training as a lawyer. Instead of simplistically rejecting the institution in its entirety, Gandhi saw copyright law for what it is—an important social compromise—and sought to engage with it in a way that tracked his beliefs on other issues.

This talk will argue that the nuances of Gandhi’s engagement with copyright law hold important lessons for thinking about copyright law in society, and for managing its complex trade-offs. Gandhi’s thinking on the topic anticipated many of the modern dilemmas about the structure and function of copyright law--such as the role of exclusivity, the importance of control and integrity, and the costs and benefits of licensing revenues. And while Gandhi may not have had a clear (or unambiguously correct) solution to any of them, he almost certainly asked the right questions.

About the Speaker

Shyam Balganesh’s scholarship focuses on understanding how intellectual property and innovation policy can benefit from the use of ideas, concepts and structures from different areas of the common law. His most recent work tries to understand copyright law’s pre-requisite of “copying” for liability, as a mechanism of pluralistic decision-making that allows it to incorporate both utilitarian and rightsbased considerations into its functioning.

Balganesh received his J.D. from the Yale Law School, where he was an Articles and Essays Editor of the Yale Law Journal and a Student Fellow at the Information Society Project (ISP). Prior to that he spent two years as a Rhodes Scholar at Balliol College, Oxford, and received a B.C.L. and an M.Phil in Law from Oxford University.

His recent publications include: ‘“Hot News’: The Enduring Myth of Property in News,” 111 Columbia Law Review 419 (2011); “The Pragmatic Incrementalism of Common Law Intellectual Property,” 63 Vanderbilt Law Review 1543 (2010); and “Foreseeability and Copyright Incentives,” 122 Harvard Law Review 1569 (2009), among others. He is also currently editing a collection of scholarly essays on the topic of intellectual property and the common law, scheduled to be published by the Cambridge University Press in 2012.

VIDEO

For more details visit https://cis-india.org/a2k/gandhi-freedom-and-copyright

35th SCCR: CIS Statement on GRULAC Proposal for Analysis of Copyright in the Digital Environment

sinha — 2017-11-17T10:03:21Z

Anubha Sinha, attending the 35th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 13 November, 2017 to 18 November, 2017, made this statement on the agenda 'Other Matters' on behalf of CIS on Day 5, 17 November, 2017.

We would like to reiterate the importance of GRULAC Proposal for Analysis of Copyright in the Digital Environment.

The Centre for Internet and Society is a non-profit organisation in India that undertakes research on internet and digital technologies from an academic and policy perspective.

In an environment of monopolies controlling the distribution of digital goods and services, which connect users and creators, such a comprehensive study assumes significant importance, especially for creators in the global south.

We are especially concerned with the methods by which platform intermediaries are enforcing their private IP rules on creators worldwide, and if there are fair systems in place to address takedown, and the subsequent restoration of works unfairly taken down from their platforms. It must be noted that there is a serious lack of transparency as far as the conduct of such intermediaries go, and often actions are taken without appropriate justification/explanation.

It is equally important that we continue to build on limitations and exceptions for libraries, museums, archives, educational institutions, researchers, and users’ in the digital environment.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/35th-sccr-cis-statement-on-grulac-proposal-for-analysis-of-copyright-in-the-digital-environment

Seminar on Rethinking Copyright and Licensing for Digital Publishing Today (Delhi, January 23)

sinha — 2017-01-21T14:51:56Z

Against the backdrop of a growing global and domestic digital publishing industry on one hand and the recent judgment by the Delhi High Court that upheld the education exception to reproduction of academic and literary works, Pro Helvetia - Swiss Arts Council, Goethe-Institut Max Mueller Bhavan New Delhi, and the Centre for Internet and Society (CIS) are organising a seminar to discuss and reflect on the relevance and functions of copyright and licensing within the transforming market practices and legal structures of the publishing industry today.

Poster: Download (PNG)

The two speakers at the seminar will be Dr. Philipp Theisohn, Professor of Modern German Literary Studies, Zurich University, and Ms. Kerstin Schuster, Droemer Knaur publishing group. The session will be chaired by Mr. Zakir Thomas, Additional Director General (Risk Assessment), Directorate of Income Tax, Government of India.

Dr. Theisohn will address the question of whether the digital age requires a new approach to copyright thinking, and Ms. Schuster will discuss the dynamics of the international market for licenses in the contemporary publishing world.

Please join us at the CIS Delhi office on Monday, January 23, at 11:00 for the seminar. The seminar will include the presentations by the speakers followed by an open moderated discussion.

Further, it is our great pleasure to inform you that in a recent judgement on the Super Cassettes v. MySpace case, the Delhi High has strengthened the safe harbor immunity enjoyed by internet intermediaries in India. As CIS was one of the intervenors in the case, and has been duly acknowledged in the judgment, we would like to invite you for an informal discussion about the case over lunch. This will take place after the seminar.

A brief analysis of the judgement can be found here.

Please RSVP by sending an email to Nisha Kumar at nisha@cis-india.org.

Address: The Centre for Internet and Society, first floor, B 1/8, Hauz Khas, near G block market, after Crunch, New Delhi, 110016.

Location on Google Map: http://j.mp/cis-delhi.

Philipp Theisohn

Philipp Theisohn, who was born in 1974, studied Modern German Literature, Medieval Studies and Philosophy in Tübingen and Zürich. He gained his doctorate in Jerusalem and Tübingen and, since 2013, has been Professor of Modern German Literary Studies at Zurich University. He has produced numerous publications on German and European literary history from the 13th to the 21st century, in particular on “literary future knowledge“, the perception of literary property, and Jewish Cultural Poetics.

The focal points of his work and research are the literature of Switzerland, literary property/plagiarism as a literary historical phenomenon, science fiction and futurology, realism, Franz Kafka and Early Modern Poetics of Knowledge.

Theisohn is intensely involved in the transmission of literature far beyond the academic environment. He is a member of the jury for the “Swiss Book Prize“ of the Publishers‘ Association, an expert for inter-disciplinary and literary projects for the Swiss Arts Council Pro Helvetia; he curates literary exhibitions, is active in a broad range of journalistic work, among other things for the Neue Zürcher Zeitung, and is in charge of the blog and website of the “Schweizer Buchjahr” which contributes significantly to contemporary literary discourse.

Among his most important book publications are: "Die Zukunft der Dichtung. Geschichte des literarischen Orakels 1450-2050" (“The Future of Poetry. The History of the Literary Oracle 1450-2050”); “Plagiat. Eine unoriginelle Literaturgeschichte”( “Plagiarism. An Unoriginal Literary History”) and “Literarisches Eigentum. Zur Ethik geistiger Arbeit im digitalen Zeitalter” (“Literary Property. On the Ethics of Intellectual Work in the Digital Age”).

Kerstin Schuster

Having obtained a university degree in Romance Studies and Political Science, Kerstin Schuster worked in the bookselling trade. Since 1993 she is trading licenses for the international market. She has worked till 2001 for the literary agency Dr. Ray-Güde Martin, from 2001 until 2013 for the publishing house S. Fischer Verlag in Frankfurt, and since 2014 for the Droemer Knaur publishing group.

For many years now, Kerstin Schuster is also facilitating seminars on how to successfully offer and sell licenses in the international market.

Zakir Thomas

Mr. Thomas is an expert in the field of intellectual property. He has served as a former Registrar of Copyright for the Government of India, and as a project director of the Open Source Drug Discovery Initiative under the Council of Scientific & Industrial Research (a premier R&D org). His expertise spans across copyright, open source innovation, neglected diseases and innovation ecosystem in science and technology in India.

For more details visit https://cis-india.org/a2k/events/seminar-on-rethinking-copyright-and-licensing-for-digital-publishing-today-delhi-jan-23-2017

Indian Copyright Act, 1957 (as amended by Copyright (Amendment) Bill, 2010)

admin — 2011-08-24T06:58:10Z

For more details visit https://cis-india.org/a2k/publications/amended-copyright-act.html

Indian Copyright Act, 1957 (as amended by the Copyright (Amendment) Bill, 2010)

pranesh — 2011-08-22T13:28:42Z

This is a version of the Indian Copyright Act, 1957, as it would appear if the Copyright (Amendment) Bill, 2010, were adopted in toto. This has been produced to aid commentators, and is not meant to serve any other purpose. Errors may remain in it, despite my best efforts. If you find any, please e-mail . (Version 0.96 / Last updated: Friday, May 28, 2010)

For more details visit https://cis-india.org/a2k/publications/amended-copyright-act

CIS RTI REQUEST TO DIPP - NUMBER 1 - FEBRUARY, 2015

nehaa — 2015-04-14T17:17:53Z

For more details visit https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015

Super Cassettes v. MySpace (Redux)

sinha — 2017-01-18T14:31:25Z

The latest judgment in the matter of Super Cassettes v. MySpace is a landmark and progressive ruling, which strengthens the safe harbor immunity enjoyed by Internet intermediaries in India. It interprets the provisions of the IT Act, 2000 and the Copyright Act, 1957 to restore safe harbor immunity to intermediaries even in the case of copyright claims. It also relieves MySpace from pre-screening user-uploaded content, endeavouring to strike a balance between free speech and censorship. CIS was one of the intervenors in the case, and has been duly acknowledged in the judgment.

On 23rd December 2016, Justice Ravindra Bhat and Justice Deepa Sharma of the Delhi High Court delivered a decision overturning the 2012 order in the matter of Super Cassettes Industries Limited v. MySpace. The 2012 order was heavily criticized, for it was agnostic to the technological complexities of regulating speech on the Internet and cast unfathomable burdens on MySpace. In the following post I summarise the decision of the Division Bench. Click here to read the judgment.

Brief Facts

In 2007, Super Cassettes Industries Limited (SCIL) filed a suit against MySpace, a social networking platform, alleging copyright infringement against MySpace. The platform allowed users to upload and share media files, inter alia, and it was discovered that users were sharing SCIL’s copyrighted works sans authorisation. SCIL promptly proceeded to file a civil suit against MySpace for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51(a)(ii).

The 2012 order was extremely worrisome as it had turned the clock several decades back on concepts of internet intermediary liability. The court had held MySpace liable for copyright infringement despite it having shown no knowledge about specific instances of infringement; that it removed infringing content upon complaints; and that Super Cassettes had failed to submit songs to MySpace's song ID database. The most impractical burden of duty that the court pronounced was that MySpace was required to pre-screen content, rather than relying on post-infringement measures to remove infringing content. This was a result of interpreting due diligence to include pre-screening.

The court injuncted MySpace from permitting any uploads of SCIL's copyrighted content, and directed to expeditiously execute content removal requests. To read CIS' analysis of the Single Judge's interim order, click here.

In the instant judgment, the bench limited their examination to MySpace’s liability for secondary infringement, and left the direct infringement determination to the Single Judge at the subsequent trial stage. In doing so, the court answered the following three questions:

1) Whether MySpace could be said to have knowledge of infringement so as to attract liability for secondary infringement under Section 51(a)(ii)?

No. According to the Court, in the case of internet intermediaries, section 51(a)(ii) contemplates actual knowledge and not general awareness.

Elaborating re the circumstances of the case, the Court held that to attract liability for secondary infringement, MySpace should have had actual knowledge and not mere awareness of the infringement. Appreciating the difference between virtual and physical worlds, the judgment stated “the nature of internet media is such that the interpretation of knowledge cannot be the same as that is used for a physical premise.”

As per the court, the following facts only amounted to a general awareness, which was not sufficient to establish secondary liability:

Existence of user agreement terms which prohibited users from unauthorised uploading of content;
Operation of post-infringement mechanisms instituted by MySpace to identify and remove content;
SCIL sharing a voluminous catalogue of 100,000 copyrighted songs with MySpace, expecting the latter to monitor and quell any infringement;
Modifying videos to insert ads in them: SCIL contended that MySpace invited users to share and upload content which it would use to insert ads and make revenues – and this amounted to knowledge. The Court found that video modification for ad insertion only changed the format of the video and not the content; further, it was a pure automated process and there was no human intervention.

Additionally, no constructive knowledge could be attributed to MySpace to demonstrate reasonable ground for believing that infringement had occurred. A reasonable belief could emerge only after MySpace had perused all the content uploaded and shared on its platform – a task that was impossible to perform due to the voluminous catalogue handed to it and existing technological limitations.

The Court imposed a duty on SCIL to specify the works in which it owned copyright and being shared without authorisation on MySpace. It held that merely giving names of all content it owned without expressly pointing out the infringing works was contrary to the established principles of copyright law. Further, MySpace contended and the judge agreed, that in many instances the works were legally shared by distributors and performers – and often users created remixed works which only bore semblance to the title of the copyright work.

In such cases it becomes even more important for a plaintiff such as MySpace to provide specific titles, because while an intermediary may remove the content fearing liability and damages, an authorized individual’s license and right to fair use will suffer or stand negated. (Para 38 in decision)

Thus, where as MySpace undoubtedly permitted a place of profit for communication of infringing works uploaded by users, it did not have specific knowledge, nor reasonable belief of the infringement.

2) Does proviso to Section 81 override the "safe harbor" granted to intermediaries under Section 79 of the IT Act, 2000?

and

3) Whether it was possible to harmoniously read and interpret Sections 79 and 81 of the IT Act, and Section 51 of the Copyright Act?

No, the proviso does not override the safe harbor, i.e. the safe harbor defence cannot be denied to the intermediary in the case of copyright actions.The three sections have to be read harmoniously, indeed.

The judgment referred to the Parliamentary Standing Committee report as a relevant tool in interpreting the two provisions, declaring that the rights conferred under the IT Act, 2000 are supplementary and not in derogation of the Patents Act or the Copyright Act. The proviso was inserted only to permit copyright owners to demand action against intermediaries who may themselves post infringing content – the safe harbor only existed for circumstances when content was third party/user generated.

Given the supplementary nature of the provisions- one where infringement is defined and traditional copyrights are guaranteed and the other where digital economy and newer technologies have been kept in mind, the only logical and harmonious manner to interpret the law would be to read them together. Not doing so would lead to an undesirable situation where intermediaries would be held liable irrespective of their due diligence. (Para 49 in decision)

Regarding section 79, the court reiterated that the section only granted a limited immunity to intermediaries by granting a measured privilege to an intermediary, which was in the nature of an affirmative defence and not a blanket immunity to avoid liability. The very purpose of section 79 was to regulate and limit this liability; where as the Copyright Act granted and controlled rights of a copyright owner.

The Court found Judge Whyte’s decision in Religious Technology Centre v. Netcom Online Communication Services (1995), to be particularly relevant to the instant case, and agreed with its observations. To recall, Netcom was the landmark US ruling which established that when a subscriber was responsible for direct infringement, and the service providers did nothing more than setting up and operating tech systems which were necessary for the functioning of the Internet, it was illogical to impute liability on the service provider.

On MySpace Complying with Safe Harbor Requirements under Section 79 of the IT Act, 2000 (and Intermediary Rules, 2011)

The court held that MySpace's operations were in compliance with section 79(2)(b). The content transmission was initiated at the behest of the users, the recipients were not chosen by MySpace, neither was there modification of content. On the issue of modification, the court reasoned that since modification was an automated process (MySpace was inserting ads) which changed the format only, without MySpace's tacit or expressed control or knowledge, it was in compliance of the legislative requirement.

Despite several safeguard tools and notice and take down regimes, infringed videos find their way. The remedy here is not to target intermediaries but to ensure that infringing material is removed in an orderly and reasonable manner. A further balancing act is required which is that of freedom of speech and privatized censorship. If an intermediary is tasked with the responsibility of identifying infringing content from non-infringing one, it could have a chilling effect on free speech; an unspecified or incomplete list may do that. (Para 62 in decision)

On the second aspect of due-diligence, the court held that Mypace complied with the due diligence procedure specified in the Rules - it published rules, regulations, privacy policy and user agreement for access of usage. Reading Rule 3(4) with section 79(2)(c), the court held that it due diligence required MySpace to remove content within 36 hours of gaining actual knowledge or receiving knowledge by another person of the infringing content. If MySpace failed to take infringing content down accordingly, then only will safe harbour be denied to MySpace.

This liberal interpretation of due diligence is a big win for internet intermediaries in India.

Additional Issues Considered by the Court

MySpace also tried to defend its activities by claiming the shield of the fair dealing section of the Indian Copyright Act. However, the Court refused, stating that the fair dealing defence was inapplicable to the case as the provisions protected transient and incidental storage. Whereas, in the instant circumstances, the content in question was stored/hosted permanently.

MySpace also contended that the Single Judge's injunction order was vague and general and had foisted unimplementable duties on MySpace, disregarding the way the Internet functioned. If MySpace had to strictly comply with the order, it would have to shut its business in India. The Court said that the Single Judge's order, if enforced, would create a system of unwarranted private censorship, running contrary to the principles of a free speech regime, devoid of considerations of peculiarities of the internet intermediary industry. Private censorship would also invite upon the ISP the legal risk of wrongfully terminating a user account.

Finally, the Court urged MySpace to explore and innovate techniques to protect the interests of traditional copyright holders in a more efficient manner.

Relief Granted

Setting aside the Single Judge's order aside, the Court directed SCIL to provide a specific catalogue of infringing works which also pointed to the URL of the files. Upon receiving such specific knowledge, MySpace has been directed to remove the content within 36 hours of the issued notice. MySpace will also keep an account of the removals, and the revenues earned from ads placed for calculating damages at the trial stage.

For more details visit https://cis-india.org/a2k/blogs/super-cassettes-v-myspace

Feedback to Draft Copyright Rules, 2012

pranesh — 2012-10-04T04:53:47Z

The Centre for Internet & Society submitted its written comments on the Draft Copyright Rules, 2012 to Mr. G.R. Raghavender, Registrar of Copyrights & Director (BP&CR), Ministry of Human Resource Development.

G.R. Raghavender
Registrar of Copyrights & Director (BP&CR)
Copyright Office
Department of Higher Education
Ministry of Human Resource Development
4th floor, Jeevan Deep Building,
Parliament Street
New Delhi — 110001

Dear Sir,

This submission contains comments from the Centre for Internet and Society on the Draft Copyright Rules, 2012. I apologize for the slight delay in submitting these.

Yours sincerely,
Pranesh Prakash
Policy Director
Centre for Internet and Society

Relinquishment of Copyright

Analysis

The law in India allows anonymously and pseudonymously created works to be copyrighted as well, as is clear from section 23 of the Copyright Act. However, rule 8 as it currently is does not allow such authors to relinquish copyright. Relinquishment of copyright is a very different kind of act from registration of copyright, and hence it is not necessary to seek the same categories of information from both. Certain categories of information sought during registration of copyright ("class of work", "language of the work", "nationality of author") are required not because they help identify a work, but because they help in indexing the work ("class of work", "language of work") or in ensuring that the work is copyrightable in India ("nationality of author"). Such considerations do not matter when it comes to relinquishment of copyright, i.e., when a work is allowed to pass into the public domain. Further, technological progress has made it difficult to determine the answer to a question like "country of first publication", "nationality of the publisher", etc. If a work has been uploaded by an author on to his blog, is the publisher the author or the person hosting the blog? If an Indian author residing in India first publishes a work on the server located in Argentina, is the country of first publication India or Argentina? The answer to these questions does not make a difference to the issue of relinquishment of copyright. The only information that is required for relinquishment of rights is a) what work is being put in the public domain, b) by whom, c) from when.

Furthermore, the current requirements of rule 8 cannot easily be satisfied by using most of the popular means of relinquishing copyright (such as the CC0 — Creative Commons Zero — licence).

Recommendations

Rule 8 be modified to read: A public notice issued by an author relinquishing his or her rights as per subsection (1) of section 21 of the Copyright Act, shall include the following details: (a) Title of the work (b) Full name, or pseudonym, in case the work has not been created anonymously (c) Date of issuance of the notice (d) If copyright in the work is registered under section 45, the registration number.

Rule 9 be modified to read: Any one of the following shall constitute public notice of relinquishment of copyright: i. Mentioning of the notice on the work, or cover of the work, or in the metadata of the work if the work is electronic; or ii. Publication in a newspaper; or iii. Publication by the author on a publicly-accessible website

Rule 10 be modified to add the following sentence: The author shall forward a copy of the public notice to the Registrar of Copyright if copyright in the work has been registered under section 45 and on receiving such notice, the Registrar of Copyright shall post the same on the website of the Copyright Office.

Statutory Licence for Cover Versions

Analysis

Rule 34(2) is redundant and does not contain any detail not already present in the existing proviso to section 31C(1) of the Copyright Act. Additionally, Rule 35 also does not contain any detail not already present in the existing parent provision, section 31C of the Copyright Act.

Recommendations

Rules 34(2) and 35 be deleted.
Rule 37 should be modified to add a sub-rule requiring maintenance of records online.

Indexes

Analysis

In rule 71(3), it requires that the indexes be maintained in the form of cards. These are presumably physical cards. It is unclear why the rule should not require the maintenance of these indexes online to facilitate search by the public. Further entries 13 and 14 of Schedule II are from a time when the transaction costs incurred by the Registrar of Copyright for providing extracts from an Index were non-negligible, and hence it would have been necessary to charge a person for such services. With the capabilities of electronic systems, such retrievals are almost costless, and can be done without the intervention of the Registrar of Copyright. Hence entries 13 and 14 should not be made applicable to online retrievals. If copyright societies can be required to provide information free of costs on their websites (as per rule 65), the Registrar of Copyright should be required to do so too.

Recommendation

Modify sub-rule (3) of rule 71 to read: "Every Index shall be available online as a downloadable database, with an online search facility."

Modify the second sentence in rule 72 to read: "The online search or inspection of the Register of Copyrights and Indexes can be utilised free of cost."

Storage of Transient or Incidental Copies of a Work

Analysis

It is not clear enough from the language of rule 74 that it applies only to s.52(1)(c) and not to s.52(1)(b). Since only s.52(1)(c) has a complaints mechanism, this should be made clear.

Importantly, to protect the interest of the public, the intermediaries should be asked to give public notice regarding the alleged infringing copy to ensure that the take-down mechanism is not abused, and secondly to ensure that the public can independently verify that intermediaries are following the requirement in rule 74(4) of restoring storage of the work if no court order is forthcoming within 21 days.

Lastly, there is no clear precedent in India to treat a uniform resource identifier (URI) as 'place' for purposes of section 51(a)(ii) of the Copyright Act, 1957. Therefore it is necessary to further clarify the meaning of the term 'place' as used in current Rule 74(2)(d). This would be best served by using the correct technological term ("URI") instead of the word "place".

Recommendation

Modify sub-rule (1) of rule 74 to: "Any owner of copyright may give a written complaint as per clause (c) of subsection (1) of section 52 of the Copyright Act to a person who has facilitated..."

Add sub-rule (6) to rule 74: "The person responsible for storage shall put up a public notice thereby notifying all persons requesting access to the alleged infringing copy by stating reasons for restraining such access whether during the period of 21 days from the complaint from the copyright owner, or pursuant to an order from a competent court."

Modify rule 74(2) to read: "Details of the specific uniform resource identifier (URI) where transient or incidental storage of the work may be taking place."

Making or Adapting the Work by Organizations Working for the Benefit of Persons with Disabilities

Analysis

Rule 75 requires organizations making use of the exception granted under s.52(1)(zb) to maintain records. This could not have been the intention of the legislature in passing s.52(1)(zb), since that provision does not require any maintenance of records. Indeed, none of the exceptions ennume-rated in s.52(1) require the maintenance of records. This is in contrast with s.31B, which is also applicable to organizations working for the benefit of persons with disabilities, but only those that are doing so as a for-profit venture. Rule 29(6) already requires the Registrar of Copyright to notify the grant of a licence under s.31B in the Official Gazette. That provision may be modified to add that the Registrar of Copyright maintains these records in a centralized database that can be queried online.

Recommendations

Delete rule 75, and modify rule 29(6) to include a centralized database.

Technological Protection Measures

Analysis

Most experts seem to hold that s.65A of the Indian Copyright Act does not affect circumvention tools, as it only deals with the act of unauthorized circumvention and not with the tools, in sharp contrast with s.1201(a)(2) of the Digital Millennium Copyright Act in the US, which criminalises the "manufacture, import, offer to the public, provision, or otherwise trafficking in any [circumvention] technology, product, service, device, component, or part thereof". The Indian law has conciously chosen not to emulate the DMCA in this respect, as the WIPO Copyright Treaty does not require it.

The broad understanding of "facilitation" contained the Copyright Rules unfortunately seem to undermine this clear distinction. If facilitation is understood to include offer to the public, provision, or distribution, as seems to be the case in Rule 79(3) and 79(4), then law becomes unworkable with each and every website that allows for the downloading of any software that can be used to play DVDs, etc., must specifically keep a register of downloaders from India. This is unnecessary, and goes beyond the intent of s.65A, which is to cover those who actively facilitate circumvention and not those who make available the tools to circumvent. This distinction should not be blurred.

Recommendation

Delete sub-rules (3) and (4) of rule 79.

For more details visit https://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012

Meeting of the Global Network on Flexible Limitations and Exceptions

praskrishna — 2012-10-04T05:59:56Z

American University Washington College of Law organized a meeting of the Global Network in Washington D.C., on September 12 to 15, 2012. Pranesh Prakash was one of the 25 participants.

Agenda

September 12

4:00-6:00

Recent Developments in Fair Dealing In Canada Room 603 | (Webcast) Peter Jaszi, Ariel Katz, Howard Knopf, Martin Senftleben, Michael Carroll

September 13

5:00-6:00	PIJIP Welcoming Reception, Room 600. The reception will be a joint welcome for the L&E Network and a concluding reception for an Orphan Works meeting with librarians hosted by Pam Samuelson and the Berkeley clinic.
5:30-9:00	Public Knowledge hosts the 9th Annual IP3 Awards. Ronald Reagan Building, 1300 Pennsylvania Avenue, NW

September 14

9:00	Welcome Introduction
9:30	Discussion of the model open text
12:30	Lunch
1:15	Review of draft 3-Step paper (to be circulated)
2:15	Roundtable on current developments in local contexts
3:30	Review of the current state of the TPP negotiations and U.S. proposed text on Limitations and Exceptions
5:00	Transport to Leesburg – site of TPP meeting
7:00	Dinner reception with TPP IP negotiators

September 15

9:30	Discussion of the model arguments and counterarguments document
11:30	Discussion of a possible report of findings to accompany the models
12:30	Lunch
1:15	Roundtable on the way forward What work should we prioritize between this meeting and the December Global Congress? What research is the group currently engaged in that may bear on limitations and exceptions? How could this group define future uses of the network after the Global Congress? One example might be a book or other collection of case studies reporting on how laws actually work in given countries.
3:15	Roundtable on local forums continued: where are L&E interventions needed most?
4:00	End of meeting

The following individuals participated:

Martin Senftleben
Pedro Paranagua
Pedro Mizukami
Dick Kawooya
Hong Xue
Jennifer Urban
Pam Samuelson
Ahmed Abdel Latif
Peter Yu
Andrew Rens
Carlos Affonso Pereira de Souza
Oliver Metzger
Gwen Hinze
Peter Jaszi
Michael Carroll
Sean Flynn
Meredith Jacob
Matt Sag
Jonathan Band
Ariel Katz
Howard Knopf
Alberto Cerda Silva
Pranesh Prakash
Allan Rocha de Souza
Sylvie Nerisson
Lila Bailey

Read the original published in infojustice.org here

For more details visit https://cis-india.org/news/info-justice-public-events-flexibility-network

Comments on the Cinematograph (Amendment) Bill, 2021

Tanvi Apte, Anubha Sinha and Torsha Sarkar — 2021-07-05T05:59:52Z

In this submission, we examine the constitutionality and legality of the Cinematograph (Amendment) Bill, 2021, which was released by the Ministry of Information and Broadcasting.

This submission presents comments by CIS on the Cinematograph (Amendement) Bill, 2021 (“the Bill”) which were released on 18 June 2021 for public comments. These comments examine whether the proposed amendments are compatible with established constitutional principles, precedents, previous policy positions and existing law. While we appreciate the opportunity to submit comments, we note that the time allotted for doing so was less than a month (the deadline for submission was 2 July 2021). Given the immense public import in the proposed changes, and the number of stakeholders involved, we highlight that the Ministry of Information and Broadcasting (MIB) should have provided more time in the final submission of comments.

Read our full submission here.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-cinematograph-amendment-bill-2021