Centre for Internet and Society

Why Parallel Importation of Books Should Be Allowed

pranesh — 2019-02-01T17:41:26Z

There has been much controversy lately with some publishers trying to stop the government from amending s.2(m) of the Indian Copyright Act, clarifying that a parallel import will not be seen as an "infringing copy". This blog post argues that the government should, keeping in mind the larger picture, still go ahead and legalise parallel imports.

[Updated Wednesday, February 2, 2011, to respond to Thomas Abraham's extensive and thoughtful rebuttal of the earlier version this post.]

First off, here is the controversial clause, with the proposed amendment (the insertion of a "proviso", in legalese) being emphasised in bold font-face:

The amendment

2(m) "infringing copy" means,—

    (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;

    (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;

    (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;

    (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;

Provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country shall not be deemed to be an infringing copy.

Some claim that this amendment to s.2(m) ("provided that... copy") has the potential to destroy the publishing industry. The most lucid explanation of this was in a recent op-ed by Thomas Abraham in the Hindustan Times, very ominously titled The Death of Books. However it seems to us that the publishing industry—especially foreign publishers with distributorships in India—don't want to open themselves up to competition in the distribution market, and are opposing this most commendable move.

What is parallel importation?

Before getting into explanations of why allowing for parallel importation is good, and how the arguments otherwise fall short, we should examine what parallel importation is.

"Parallel import, insofar as copyright is concerned, involves an “original” copyright product (i.e. produced by or with the permission of the copyright owner in the manufacturing country) placed on the market of one country, which is subsequently imported into a second country without the permission of the copyright owner in the second country. For instance, the copyright owner of a book produced in India places the book on the market in India. A trader buys 100 copies of the book from India and imports them to China without the permission of the copyright owner of the book in China. This act of the trader bringing the books into China is called parallel import, the legality of which depends on the copyright law of the importing country (namely China in this example)." (Consumers International, Copyright and Access to Knowledge: Policy Recommendations on Flexibilities in Copyright Laws 23 (2006).)

Some fear-mongers try to equate parallel importation with 'anarchy' in markets, and some confusedly claim that this amendment would allow infringing copies of books would be permitted. That is simply not true. For parallel importation to be said to happen, the sale must itself be legal. If it is an an illegally sold copy (a pirated copy of a book, for instance) that is imported, then it will count as a black market import—not as a parallel import. Allowing for parallel imports will only dismantle monopoly rights over importation, and the amendment makes that amply clear.

Harms on existing books of not allowing parallel importation

Libraries/second-hand bookshops/consumers have no way of knowing if a book was originally imported legally or not, since there is no easy way of telling a parallel-ly imported copy apart from a exclusively imported copy. If one of them, even unknowingly buys/sells a foreign edition about which they am not sure and it turns out it was not legally imported (and there are literally thousands of such books, and I personally own at least a couple dozen foreign editions bought from various second-hand bookshops) then they are committing copyright infringement.

This precisely was argued by the library associations and others in amici briefs to the US Supreme Court in the Costco v. Omega case. For instance, the brief for the the American Library Association, the Association of College and Research Libaries, and the Association of Research Libraries in Support of Petitioner argues that:

By restricting the application of [the first sale doctrine] to copies manufactured in the United States, the Ninth Circuit’s decision threatens the ability of libraries to continue to lend materials in their collections. Over 200 million books in U.S. libraries have foreign publishers. Moreover, many books published by U.S. publishers were actually manufactured by printers in other countries. Although some books indicate on their copyright page where they were printed, many do not. Libraries, therefore, have no way of knowing whether these books comply with the Ninth Circuit’s rule. Without the certainty of the protection of the first sale doctrine, librarians will have to confront the difficult policy decision of whether to continue to circulate these materials in their collections in the face of potential copyright infringement liability. For future acquisitions, libraries would be able to adjust to the Ninth Circuit’s narrowing of [the first sale doctrine] only by bearing the significant cost of obtaining a “lending license” whenever they acquired a copy that was not clearly manufactured in the United States.

and, the brief for the Public Knowledge, American Association of Law Libraries, American Free Trade Association, the Electronic Frontier Foundation, Medical Library Association, and the Special Libraries Association in Support of Petitioner states:

The uncertainty created by the Ninth Circuit’s holding [against parallel importation] will harm used bookstores, libraries, yard sales, out-of-print book markets, movie and video game rental markets, and innumerable other secondary markets. Owners of copyright works or goods containing copyrighted elements manufactured abroad will be unable to dispose of these products without authorization at the risk of liability under copyright law’s extensive damages provisions. Furthermore, the chilling effects of the Ninth Circuit’s holding will extend beyond works manufactured abroad. Owners of copies of works will be unable to determine whether they are protected by [the first sale doctrine], as they will not always know where their goods were manufactured. Copyright holders will have little incentive to make clear the location of manufacturing of their copyrighted works,3 as greater uncertainty means a greater ability to sell the right to distribute the goods within the United States. Secondary market sellers who cannot afford to purchase this right will be unable to do business unless they are prepared to engage in lengthy and expensive litigation with an uncertain result. A wide variety of important secondary markets in copyrighted works and goods with copyrighted elements will suffer without the protection of the first sale doctrine.

Benefits of parallel importation

Dismantling distribution monopoly rights

The benefits that will accrue from allowing for parallel importations are huge. Currently a large percentage of educational books in India are imported, but with different companies having monopoly rights in importation of different books. If this was opened up to competition, the prices of books would drop, since one would not need to get an authorization to import books—the licence raj that currently exists would be dismantled—and Indian students will benefit. This is especially important for students and for libraries because even when low-priced editions are available, they are often of older editions.

Allowing people to import goods without permissions (with appropriate duties) is taken for granted in all other areas, so why not copyrighted works? After all, it is not the act of publication that gets affected, but the right of exclusive distribution. And if that goes away after first sale internationally, that's not a bad thing at all.

Generally, there are two main benefits of allowing for parallel importation: faster introduction of the latest international releases into the domestic country, and lowered prices by decreasing the costs imposed by a monopoly right over distribution.

All the foreign books that an online bookseller like Flipkart delivers in India are procured from international sources. Without parallel importation, Flipkart will have to ask for permission from the book publishers for each foreign book each time it makes a sale. This would cripple Flipkart's business model.

Helping book publishers

Book publishers will be benefited by parallel importation, just as they are benefited by the existence of libraries and second-hand book stores. Libraries and second-hand book stores help with market segmentation, providing access to people who can't afford expensive books at much lower rates, often free. However, the existence of second-hand book stores in almost every city in India—I have personally bought second-hand books everywhere from Jhansi (Leo Tolstoy's War and Peace) to Delhi's Darya Ganj market (Edmund Wilson's Letters on Literature and Politics)—does not prevent me from buying books first hand. Indeed, Wilson's Letters is out of print, and cannot be bought in a store like Crosswords or Gangaram's.

Why do I emphasise second-hand books and libraries? They are artefacts of something variously known as the "first sale doctrine" or the "doctrine of exhaustion" in copyright law: After the first sale of a book, subsequent sales, rentals, etc., cannot be controlled by the copyright owner. Parallel importation is simply a matter of applying this doctrine to the first sale of the book internationally rather than its first sale in India.

Thus we see that the existence of second-hand books, libraries, and parallel imports, are all dependent on the same rule of copyright law: the first sale doctrine. This doctrine is enshrined in s.14(b)(iv) of the Indian Copyright Act, and has been interpreted by the Delhi High Court to mean first sale in India. The present amendment changes that to mean first sale internationally.

The introduction of the modern "public library" in the mid-19th century led to a surge in literacy, readership, and book sales, and not a decline. Similarly, there is no reason to suppose that allowing parallel importations will lead to a decline in book sales.

Helping libraries and the print-disabled

Even currently, many people buy books directly from abroad and have them shipped to India. This is especially necessary for libraries whose patrons—scholars and students—very often need access to the latest books. Currently, libraries often buy books from abroad from Amazon, Flipkart, Alibris, etc. Such acts, within a strict reading of the law, are not legal, since they fall afoul of s.51(b)(iv), since the import is not for the "private and domestic use" of the libraries. This is also of especial concern for organizations working with print-disabled individuals, since the number of books legally available domestically in formats accessible by the print-disabled is very small, and often need to be imported.

Helping all consumers

An excellent report was prepared in 2006 by Consumers International, in which they studied the costs of textbooks in eleven countries, including India, by average purchasing power of each country's citizens, instead of absolute cost. Based on that study, and a detailed investigation of international treaties on copyright and the flexibilities allowed in them, Consumers International recommended that India should amend our law to make it clear that parallel importation of copyrighted works is legal (on page 51 of the report).

Rebutting objections

I will address a few specific objections raised by Mr. Abraham, Nandita Saikia, and others.

1. Authors' won't lose out on royalties

Authors do not lose out on royalties because of parallel importation, just as they do not lose out on royalties because of libraries, nor because of second-hand book stores. For parallel importation to take place, the books have to be purchased legally, and that first sale itself ensures that authors are paid royalties.

Of course, publishing contracts often have a clause that remaindered books will not garner royalties. But in that case, the problem is not parallel importation, but the overstocking and subsequent remaindering of books. The authors wouldn't be paid (or would be paid very little) for remaindered books even if the books weren't imported into India. Parallel importation does not in any way change that.

Indian authors

There is a worry that an Indian author would be hit if remaindered copies of his/her books started entering the Indian market. That would mean that foreign publishers had overstocked that Indian author's book, i.e., that the expectation from the book was much higher than the actual demand. If this happens infrequently, then the author hasn't much to worry about (since remainders aren't a big problem). If it happens frequently, then firstly the publisher should re-adjust to the market and realize that demand is low. Secondly, the author needs to worry more about quality of the book (and whether it caters to foreign audiences) than the possible effects that the availability of cheaper copies of that book would have.

2. Remaindered books are in publishers' control

India has amongst the cheapest book prices in the world. Then why would book publishers be wary of even cheaper books overrunning the Indian market? The reason, Mr. Abraham tells us, is remaindered books. He believes that remaindered books have the potential to destroy the Indian book market. Remaindering of books has been happening for decades. If remaindered books haven't already destroyed all book markets worldwide, then it is unlikely that they will do so suddenly just because parallel importation of books is permitted in India.

Remainders happen because of a miscalculation by the publisher: expecting more demand than was actually present. What happens with that excess stock is controlled by the publishers. They can choose to pulp them, burn them, or even push them into other channels of commerce that Mr. Abraham points out exist in the mature, frontline markets where remaindering happens:

And the reason why they have not destroyed book markets worldwide is because the mature markets exist with multiple strands (chains and high street stores, independents, direct sellers, online sellers, and supermarkets)—so a direct seller will sell the same book a high street store is selling at a much reduced price without it affecting the business of each strand. Each strand is discrete and price sensitivity does not matter the same way.

Since those multiple strands of commerce exist, each of which would enable the seller to get a better profit (being in a developed country) than in India, there is no reason to fear overrunning of the market with remainders.

3. Dumping of books should be tackled separately

An extension of the remaindered books concern is that of India becoming a land where all books will be dumped. This hasn't happened in case of countries like New Zealand, Mexico, Chile, Egypt, Cameroon, Pakistan, Argentina, Israel, Vietnam, South Korea, Japan, and a host of other countries, all of which allow for parallel importation of books. In a 1998 judgment, the United States Supreme Court, some parallel imports of copyrighted goods were legal. That ruling did not cause the downfall of the US book market, despite cheaper books being available outside the US. Australia has allowed for parallel importation of books in one form or another since 1991 (when the law was changed to allow for all parallel of all books that weren't introduced in the Australian market within 30 days of it being released elsewhere in the world). New Zealand did a study after removing the ban on parallel importation, and declared that cheaper books were available on a more timely basis than previously. None of these countries have been overrun by grey market books.

Customs laws are better suited

Even assuming that this fear is well-founded, copyright law is not the best way to deal with the problem. Dumping of books should be regulated by customs laws (anti-dumping and countervailing duties). Using copyright law to regulate apprehended book dumping practices (which might not even happen) is like using a trawler hoping to catch only shrimp: it is naive to think that there won't be unintended bycatch, and the consequences can be disastrous for the knowledge environment in case of books.

Customs laws are more flexible because they are imposed by the executive, and unlike copyright law, can be more easily changed as per requirements. So even if copyright law allows for parallel importation of copyrighted works, a special case can be made out by publishers in case of trade publishing, for instance, and that can be targetted specifically by imposing duties. However, the inverse cannot happen, since we are not aware of any mechanism whereby libraries, consumers and others can get to 'override' the provision in the Copyright Act.

Additionally, these duties can be made to operate only if the book is already being sold in India; these duties can be made to operate only on new books. A ban on parallel importation, on the other hand will apply equally to books that are out of print, to books that the original copyright owner has not even granted an exclusive Indian distributorship and are not even being sold in India. It goes right to the heart of freedom of speech, which the Supreme Court has held includes the right to receive information.

4. Non-printing of low-priced editions for India because of "unsecure" market won't happen

Parallel importation, which is what the amendment to s.2(m) allows for, affects only importation. It does not in any way affect publication in India or exports. Exporting low-priced Indian editions to countries which allow for parallel importation of books, is currently of doubtful legality. [Update: Earlier an incorrect claim was made in this post that such export was legal. The legal status is not that clear. While there is a Delhi High Court case that makes exports of low-priced editions illegal in the context of sale to the United States, it specifically states that the decision does not depend on whether India allows for parallel importation or not.] The amendment does not change that position, for reasons explained at greater length in a separate post. The incentives to print low-priced editions hence does not decrease. If anything it will increase because currently books that are not available as low-priced editions cannot be imported without exclusive licensing, and with a change in this position, the incentive to compete in the form of low-priced editions will increase.

Indeed, even before that 2009 Delhi High Court judgment prohibiting exports to the United States, many low-priced editions were being printed in India. And even before the 2005 Bombay High Court judgment prohibiting parallel imports, many low-priced editions were being printed in India. This won't change, regardless of the law, because India is an increasingly profitable and expanding market, and low-priced editions are a necessity in this market due to lower average income.

5. Rhetoric flourish and the law: Open and closed markets

Mr. Abraham asks how many authors one can name from open markets like Malaysia, Singapore, and Hong Kong, as a sign of the 'history of creativity' in each of these countries and territories. It might be just as well to ask how many authors he can name from closed markets like Bhutan, Kazakhstan, Cambodia, Papua New Guinea, Indonesia, Jordan, and Ukraine. One's ability to name authors from a country has less to do with the open/closed nature of its market and more to do with one's general knowledge.

Additionally, the 'mature' markets which he wishes India to emulate—United States, the United Kingdom, and Australia—are more ambiguous on parallel importation than he would have us believe. In the United States, the legality of a segment of parallel importation of copyrighted goods reached the United States Supreme Court in Quality King v. L'anza in 1998, in which the court held in favour of the importer.

The question reached the US Supreme Court again last year in Costco v. Omega, but the court split on it 4-4, and did not deliver a binding precedent on parallel importation. Thus, for all intents and purposes, under copyright law, the United States is an open market.

In the United Kingdom, as per European Union law, parallel importation is permitted from anywhere within the EU. And in Australia, parallel importation of parallel goods is largely allowed, with some conditions to encourage faster publishing in Australia of foreign books.

Most importantly, none of the markets held up as role models are developing countries. India is. This makes all the difference, as the Consumers International report underscores.

Standing Committee consultations

Lack of wide consultation

On one point we are in complete agreement with Mr. Abraham, which is his point regarding lack of adequate consultation. While there was a good amount of consultation during the drafting stage, when a wide-ranging public consultation was held in 2006, this was not repeated in 2010 by the Standing Committee. Further, the Standing Committee only gave fifteen days for responses to its call for comments.

Publishers were represented

While Mr. Abraham states that only the Authors Guild was represented before the Standing Committee, by going through the report prepared by it, we see that the Federation of Indian Publishers and the Association of Publishers in India were also called to testify before the Standing Committee.

Libraries, students, consumers were not represented

However, while the authors supported it, and the publishers opposed it, no one got to hear the voice of the readers, the students, the libraries, the book buyers. For instance, not a single consumer rights organization or library association was called before the Standing Committee. Internationally, organizations like Consumers International, the International Federation of Library Associations, and EIFL (an international library organization) are invited to meetings of the World Intellectual Property Organization and their views are taken with seriousness as they are a very important part of the copyright environment.

Department's and Standing Committee's reasoning

We reproduce below four paragraphs from the Standing Committee's report, which elucidate many of the reasons for going in for this particular amendment.

7.10
All the reservations/objections raised by the various stakeholders [including the Federation of Indian Publishers and the Association of Publishers in India, whose objections are quoted in an earlier paragraph of the report -ed.] were taken up by the Committee with the Department with the intent of having full understanding of the background necessitating the proposed amendment and its exact impact on the various stakeholders. As clarified by the Department, the main purpose of this amendment was to allow for imports of copyright materials (e.g. books) from other countries. It was in accordance with Article 6 of the TRIPS Agreement relating to exhaustion of rights whereunder developing countries could facilitate access to copyright works at affordable cost. Exhaustion of rights (popularly called as parallel import) was a legal mechanism used to regulate prices of IPR protected materials. This was viable only if the price of the same works in the Indian market was very high when compared to the price in other countries from where it was imported to India.

7.11
Committee's attention was drawn to the fact that majority of educational books used in India were imported from other countries particularly from US and EU. There was an increasing tendency by publishers to give territorial licence to publish the books at very high rates. The low price editions were invariably the old editions than the latest ones. This provision would compel the Indian publishers to price the works reasonably so that it would not be viable for a distributor to import same works to India from other countries. This would also save India foreign exchange on the payment of royalties (licence fee) by the Indian publishers to foreigners.

7.12
Committee was also given to understand by the representatives of the publishing industry that Scheme of the Copyright Law was entirely different from the Trade Marks Act, 1999 and the Patent Act, 1970. The application of the standards and principles of these two laws through the proposed amendment of section 2(m) would completely dismantle the business model currently employed, rendering several industries unviable. On a specific query in this regard the Department informed that the concept of international exhaustion provided in section 107 A of the Patent Act, 1971 and in section 30 (3) of the Trademarks Act, 1999 and in section 2 (m) of the copyright law were similar. This provision was in tune with the national policy on exhaustion of rights.

7.13
After analysing the viewpoints of all the stakeholders along with the clarifications given thereupon by the Department, the Committee is of the view that proposed inclusion of the proviso in the definition of the term 'infringing copy' seems to be a step in the right direction, specially in the prevailing situation at the ground level. The present practice of publishers publishing books under a territorial license, resulting in sale of books at very high rates cannot be considered a healthy practice. [Emphasis added.] The Committee also notes that availability of low priced books under the present regime is invariably confined to old editions. It has been clearly specified that only those works published outside India with the permission of the author and imported into India will not be considered an infringed copy. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. Thus, apprehensions about the flooding of the primary market with low priced editions, may be mis-founded as such a situation would be tackled by that country's law. [emphasis added.] The Committee would, however, like to put a note of caution to Government to ensure that the purpose for which the amendment is proposed, i.e., to protect the interest of the students is not lost sight of.

Conclusion

It is clear that allowing for parallel imports is not likely to hurt publishers, but will result in an expansion of the reading market. It is mainly foreign publishers' monopoly rights over distribution which will be harmed by this amendment, while Indian publishers, Indian authors, and Indian readers, especially students, will stand to gain. Furthermore, in the long run, even foreign publishers will stand to gain due to market expansion. Any legitimate worries that publishers may have are better dealt with under other laws (such as the Customs Act) and not the Copyright Act.

For more details visit https://cis-india.org/a2k/blogs/parallel-importation-of-books

Exhaustion: Imports, Exports and the Doctrine of First Sale in Indian Copyright Law

pranesh — 2014-05-29T06:18:31Z

This article by Pranesh Prakash was published in the Manupatra Intellectual Property Reports, February 2011, Volume 1, Part 2, pp. 149-160. In this short note, the author argues that Indian courts have fundamentally misunderstood the doctrine of first sale, and consequently have wrongly held that parallel importation is disallowed by Indian law. He further looks at the ingenuity displayed by a court in prohibiting export of low-priced editions from India, and comes to the conclusion that this is also wrong in law. He believes there is a way out of this quagmire that we find ourselves in due to judicial inventions: that of accepting a proposed amendment to the Copyright Act.

Can foreign works be copyrighted works?

Section 13(2) of the Indian Copyright Act states that insofar as published works go, copyright only subsists if the work is first published in India or if the work is by an Indian citizen. It does except the application of this section to all those works to which sections 40 and 41 of the Act apply. Section 40 allows for the provisions of the Act to be extended to foreign works and foreign authors by special order of the government. The government is required to do so, being a member of the Berne Convention, the Universal Copyright Convention as well as the TRIPS Agreement, and has fulfilled its requirement via International Copyright Order, the latest such order having been issued in 1999.

Thus, for purposes of our law, we protect not only Indian works, but foreign works as well. It expressly places foreign authors and works published in a foreign country in the same shoes as Indian authors and works published in India, respectively.

Import of copyrighted works

Thus having established that foreign books enjoy protection under Indian law, we now turn to the question of whether import of foreign works into India is permissible under Indian law. There is no provision of the Copyright Act by which the owner or licensee of copyright given the exclusive right to import a copyrighted work into India. Section 51(b)(iv) does, however, makes it illegal to import infringing copies of a work.[1];It is clear that illegally published copies are infringing copies, and thus cannot be imported. But are legally published copies that are legally purchased outside of India also ‘infringing copies’ and is their import also prohibited by the section 51?

This question is laid out as:

We now arrive at one of the most difficult topics in copyright law. It is our ambition to expound this subject as clearly as possible but inevitably this involves exposing some troublesome problems which lurk not far beneath the surface. The basic idea is simple. It has long been the policy of copyright law in the UK and other countries which follow our system that as a rule, mere selling or other secondary dealings with articles manufactured in the home market shall not be treated as copyright infringement unless their marking was piratical in the first place. Further, it is policy that traders should be free to buy and sell goods without getting involved in copyright proceedings, so long as they do so in good faith. Do not deal in pirate copies where you can tell they are probably such” is a law anyone can understand. Dealing in pirate copies where you know or have reason to believe that they are such is called secondary infringement in contrast to primary infringement (e.g. manufacturing) where liability is strict.

This idea works fine as long as one does not need to examine too closely, what one means by pirate copies; it is usually pretty obvious. However, when it comes to parallel imports it is not so obvious, and one has to know precisely what is meant. It is plain that the test cannot be whether the copy was made piratically in its country of origin because the copyright laws of foreign states are irrelevant so far as rights in the UK are concerned, and in some cases these laws may not even exist. Since foreign copyrights are separate and distinct rights, and since it is commonplace for these to be assigned so as to be exploited by different hands, it cannot matter whether a copy imported from Britannia was lawfully made in its country of origin; this principle has been recognized from an early date.

According to section 2(m) of the Act, a reproduction of a literary, dramatic, musical or artistic work, a copy of a film or sound recording is an "infringing copy" if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act. So section 2(m) does not clarify matters either, because it applies only to that importation that is “in contravention of the provisions of” the Copyright Act. So we look to section 14 which lays down the meaning of copyright and is read with section 51 when determining what does and does not constitute infringement. Nowhere, in section 14 of the Act is a right to import granted to the copyright owner. However, section 14 does clearly lays down that insofar as literary, dramatic or musical works go; it is the copyright owner’s exclusive right to issue copies of the work to the public not being copies already in circulation”. The explanation to this section goes to clarify that for the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.”What this means and how this has been construed by various courts shall be seen in the following sections.

Judicial history on importation

The Penguin case [2]

The issue of parallel importation first reached the higher judiciary in 1984 when the Delhi High Court was called upon to pronounce judgment on whether import by a third party without the express authorisation of the copyright owner constitute infringement. The court, bizarrely, ruled that it constituted infringement because it constituted a violation of the owner’s right to publish:

While publication generally refers to issue to public, importation for the specified purpose may be a necessary step in the process of issuing to the public, and therefore of publishing. It appears to me that the exclusive right of the copyright owner to print, publish and sell these titles in India would extend to the exclusive right to import copies into India for the purpose of selling or by way of trade offering or exposing for sale the hooks in question. This is the true meaning of the word “publish” as used in section 14(1)(a)(4).

It is also an infringement of copyright knowingly to import into India for sale or hire infringing copies of a work without the consent of the owner of the copyright, though they may have been made by or with the consent of the owner of the copyright in the place where they were made.

It should be noted that prior to the 1994 amendment of the Copyright Act, the first two clauses of section 14 read: “(i) to reproduce the work in any material form; (ii) to publish the work”. Thus, this judgment extends the right to “publish the work” (or in the words of the judge, “print, publish and sell”) to include a right of importation out of thin air, simply by stating that it appears so. While the judge notes that “publication” under the Act (in 1984) was defined as meaning the issue of copies of the work, either in whole or in part, to the public in a manner sufficient to satisfy the reasonable requirements of the public having regard to the nature of the work”, he does not explain how importation is subsumed under that definition contrary to a plain reading of the law. Finally, the judge does note that, “It is true that India Distributors are not printing these books and are not guilty of what is called primary infringement”, but goes on to state however, that “when they issue copies of these titles for public distribution they are guilty of secondary infringement”. These categories are created, but neither explained nor explored in the judgment. One other legal nuance that was examined was the allowance granted to the Registrar of Copyright under section 53 to “order that copies made out of India of the work which if made in India would infringe copyright shall not be imported. The judge noted that the words infringing copy as contained in section 53 could not be different in meaning from the same words contained in section 51(b). The implication of this shall be demonstrated shortly.

Importantly, the judgment does not look into section 16 of the Act which states that there shall be no copyright except as provided by the Act, and how this should prevent a judge from expanding the rights provided in the law to include a new judicially created right to prevent imports.

Privity of contract

Nowhere in the judgment does the judge explain how an exclusive distribution contract between two parties can affect a third party in violation of the well-held principle of privity of contract. This is an important issue because in effect, the judgment makes a third party bound by the contract entered into by two private parties. The parties agree inter se (for example) to ensure that the India distributor does not sell the book outside of India and that the owner of rights will not give the right to sell in India to any other person. How could this contract between those two parties come in way of a third person buying from a foreign market and importing into India? If it was the case of an exclusive UK licensee selling in India, then both the exclusive Indian licensee as well as the owner of the copyright would have cause of action in India on the basis of both violation of contract as well as violation of copyright (for exceeding his territorial licence). However, a third party who buys from a stream of commerce cannot be bound by these contracts because he becomes the owner of the book and not a licensee. Thus, the judgment makes a contract between two private parties, which merely creates a right in personam, applicable to the entire world. By doing this it allows a contract to create a right in rem without any express provision of the law doing do. Indeed, this issue was examined by the United State Supreme Court in 1908 in the case of Bobbs-Merrill Co. v. Straus,[3] in which the doctrine of first sale was judicially evolved.

Doctrine of first sale/exhaustion

Importantly, nowhere in the judgment does the judge bother to go into the details of the interaction between the sale of a copy of a book (upon the occurrence of which no further conditions can be laid) and the Copyright Act. If I sell you a bicycle laying down a condition that you cannot re-sell it, such a condition cannot be upheld in a court of law because by sale I divest all saleable interest I have in the bicycle. This principle is what is embodied in sections 10 and 11 of the Transfer of Property Act. Section 10 states–“Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him. In the same vein, section 11 states–“Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.” Thus, by selling of a copy of a book (as opposed to a licensing the book), I divest myself of all saleable interests in that particular copy of the book (though not copyright). I cannot prevent you from re-selling that book. However, copyright law would require that you can only re-sell a copy of a book without the owner’s permission, and cannot sell it without the owner’s permission. This is known as the doctrine of first sale, which evolved as a via media between copyright law, which gave the owner of copyright rights in a book, and property law, which gave the buyer of a book rights in her particular copy of the book.

The best appreciation of this doctrine of first sale (also known as “exhaustion of rights”) has come in a judgment by Justice Ravindra Bhat, who states the meaning of the doctrine very clearly:

The doctrine of exhaustion of copyright enables free trade in material objects on which copies of protected works have been fixed and put into circulation with the right holder’s consent. The exhaustion principle in a sense arbitrates the conflict between the right to own a copy of a work and the author’s right to control the distribution of copies. Exhaustion is decisive with respect to the priority of ownership and the freedom to trade in material carriers on the condition that a copy has been legally brought into trading. Transfer of ownership of a carrier with a copy of a work fixed on it makes it impossible for the owner to derive further benefits from the exploitation of a copy that was traded with his consent. The exhaustion principle is thus termed legitimate by reason of the profits earned for the ownership transfer, which should be satisfactory to the author if the work is not being exploited in a different exploitation field.

Exhaustion of rights is linked to the distribution right. The right to distribute objects (making them available to the public) means that such objects (or the medium on which a work is fixed) are released by or with the consent of the owner as a result of the transfer of ownership. In this way, the owner is in control of the distribution of copies since he decides the time and the form in which copies are released to the public. Content wise the distribution rights are to be understood as an opportunity to provide the public with copies of a work and put them into circulation, as well as to control the way the copies are used. The exhaustion of rights principle thus limits the distribution right, by excluding control over the use of copies after they have been put into circulation for the first time.

1994 Amendment to the Act

Interestingly, the Penguin judgment was sought to be overturned by an amendment to section 14 in 1994. That amendment removed the right to “publish”, and instead made it a right to “to issue copies of the work to the public not being copies already in circulation”. It stands to reason that this not only ensures the centrality of the doctrine of first sale in India, but also allows for international exhaustion, thus allowing for parallel import. This is clear from the fact that we, in Indian law (as per section 40), makes it clear that “all or any provisions of this Act shall apply to work first published in any class territory outside India to which the order (under section 40) relates in like manner as if they were first published within India.

Thus, even books published internationally are, under the legal fiction under section 40, akin to books published in India. Since we are granting foreign works all the protection under the Act as though they had been published in India by Indian authors, it is but natural that they should be subject to all the same limitations as well (such as the doctrine of first sale).

As one commentator puts it, “with amendments, the decision of the Penguin case is no more the law. Like most other nations, we have also accepted the principle of international exhaustion. This seems to be after taking into view the public interest angle.”[4]

Unfortunately, legal commentators seemed to have paid greater attention to legislative changes than did the courts.

Eurokids case[5]

In 2005, the same issue of parallel importation in literary works arose before the Bombay High Court. Highly unfortunately, the decision by the Bombay High Court was even more ill-reasoned than that of the Delhi High Court in the Penguin case. Nowhere in the judgment is the issue of the first sale doctrine, on which the issue of parallel importation rests, even cursorily examined. Nowhere is the amendment to section 14 of the Copyright Act even noted. Indeed, the only time that section 14 is even mentioned is when the section is quoted to establish it as providing the meaning of “copyright” in Indian law. The implications of section 14 in terms of exhaustion of rights are simply not examined. Section 2(m) of the Act, which it is necessary to examine (as shown above) to understand what to make of the phrase “infringing copy” in section 51, is not even mentioned once. As per the logic of the judgment, any copy that is sold in India by a third party in contravention of an exclusive licence contract is automatically assumed to be infringing. Thus, once again, copyright law magically overrides the concept of privity of contract without so much as an explanation.

Most importantly, because the case relies on the Penguin decision without having noticed and accounting for the subsequent change in the text of the law because of the 1994 amendment, it should be held to be per incuriam, and should not act as a precedent.

Warner Bros. case [6]

In 2009, the Delhi High Court pronounced yet another verdict on parallel importation in the case of Warner Bros. v. Santosh V.G. However, this was a case on DVDs, and not on books. While the Court correctly understands the meaning of the first sale doctrine in terms of literary works (and thus becoming the first judgment to explicitly talk about this doctrine), it is open to debate whether it was correct in its ruling on the inapplicability of the doctrine when it came to cinematograph films. The reasoning of the court (in paragraphs 77 and 78) as to why parallel importation is not allowed under Indian law is faulty, and is worth quoting in extenso:

In this case, the copies that are being let out for rent/hire by the defendant are not made in India. Rather, they have been made in the US and imported into India. As noticed earlier, copyright in a work published abroad, in a Berne Convention country, like the United States, entitles its owner to assert copyright in India; such rights are “as if” the works were published in India (section 40 and provisions of the order). An infringing copy is one “made or imported in contravention of the provisions of this Act”. In this context, the proviso to section 51(b)(iv), in the court’s view, provides the key to Parliamentary intention. It carves only one exception, permitting “import of one copy of any work for the private and domestic use of the importer”. The plaintiffs’ argument is that there would have been no need to enact this exception, if there were no restriction on import of cinematograph films, genuinely made outside India. The effect of the proviso to section 51(b)(iv) is plainly, not to relax the importation of genuinely made cinematographic films but to allow for the importation of one copy of any work “for the private and domestic use of the importer.” This would mean that the proviso allows for the importation of an infringing work, for private and domestic use of the importer, and not commercial use.

Quite obviously, there are some glaring problems in the court’s reasoning. The proviso to section 51(b)(iv) does indeed carve out an exception, but that exception is for infringing copies of a work, and not for non-infringing or “genuine” copies. The plaintiffs’ argument, according to the judge, is: If all genuine copies of the cinematograph film could be legally imported, there would be no need to enact this exception. However, there could well be a need to enact this exception to cover a single non-genuine copy of a cinematograph film. It is precisely because of this that the exception is so very narrow, being for not only private use, as in section 52(1)(a), but of a single copy of a work and that too only for “private and domestic use”. This possibility of allowing import of a non-genuine copy is completely overlooked by the judge. The judgment continues:

The defendant’s argument that the plaintiffs lost the power to deal with the copy, once placed in the market place, in the United States, is also unsupportable as too broad a proposition. In the context of the Act, the argument is more hopeful, than convincing. Even in the United States, it has been held (United States v. Wise, 550 F.2d 1180, 1187 (9th Cir. 1977)) that though, after “first sale", a vendee “is not restricted by statute from further transfers of that copy”, yet a first sale does not, however, exhaust other rights, such as the copyright holder’s right to prohibit copying of the copy he sells. The Federal Appellate Court noted that “other copyright rights (reprinting, copying, etc.) remain unimpaired”. It is clear therefore that the copies in question are infringing copies. Therefore, their importation, and more importantly, use for any of the purposes under section 51, other than the one spelt out in it the proviso is in contravention of the Act. The question, however, is whether the action of the defendants amounts to infringement of the copyright of the plaintiffs. This must be answered independently of the question of whether parallel importation of copyrighted goods is permissible under Indian copyright law.

While the reading of the law is correct (i.e., the first sale doctrine does not exhaust all rights, but merely the right to prevent further transfers), the application of the law to the facts is incorrect. In this case, the fact situation before the court was not of “reprinting, copying, etc.” but of the physical transfer of copies of a work bought in the US into India. As is noted in United States v. Wise, “after first sale,” the buyer “is not restricted by statute from further transfers of that copy”. Indeed, this was case can be seen as exactly such a “further transfer” (of the rights over that copy from a shop in the US to the buyer in India). How the judge misreads the argument as being about something other than transfer of property rights in a copy (and more as something akin to reproduction), and concludes that “it is clear therefore that the copies in question are infringing copies,” is not clear.

However, the verdict of the court does not proceed on this ground alone, and involves discussion of the doctrine of first sale with regard to cinematograph films, the provisions of section 53, which apply only to cinematograph films, none of which are applicable in case of literary works.

Export of copyrighted works

Now, that we have dealt with the traditionally contentious part on imports, we may now examine the rare, but even more contentious issue of exports. Barring a few exceptions, notably the United States, the copyright law in no country regulates exports. Even in the United States, section 602 of their Copyright Act regulates only the export of infringing works, and not the export of legitimate works. In India, though, there are two judgments of the Delhi High Court that seemingly make illegal export from India of legal copies of a copyrighted work. As one of these decisions is an ex parte order without any reasoning—indeed calling the reasoning “bare minimum” would be doing that phrase a disservice—we shall focus only on the other judgement: the one pronounced by Justice Manmohan Singh in John Wiley & Sons v. Prabhat Chander Kumar Jain [7]. The facts of the judgment are rather simple. John Wiley & Sons Inc., based in New York, exclusively licensed the rights over certain books to Wiley India Pvt. Ltd. (all the other plaintiffs follow the same model, so we shall restrict ourselves to the case of the Wiley corporation). These books were sold at a reduced cost in the Indian market and were clearly labelled as being “Wiley Student Edition restricted for sale only in Bangladesh, Myanmar, India, Indonesia, Nepal, Pakistan, Philippines, Sri Lanka and Vietnam”. Another label on the same book read: “The book for sale only in the country to which first consigned by Wiley India Pvt. Ltd and may not be re-exported. For sale only in: Bangladesh, Myanmar, India, Indonesia, Nepal, Pakistan, Philippines, Sri Lanka and Vietnam.”[8]. Quite clearly, John Wiley & Sons, being the owner of the rights, had given exclusive license to Wiley India Pvt. Ltd. to publish and print an English Language reprint edition only in the territories entailed in the agreement and not beyond that. Further, they wished to impose this restriction on all buyers of the book by way of that notice and attached conditionality, and thus prevent exports to the United States.

At this stage, it would do us well to dwell into the facts of the 1908 US Supreme Court case of Bobbs-Merrill Co. v. Straus[9]. In this case, the plaintiff-appellant sold a copyrighted novel with a clear notice under the copyright notice stating that, “The price of this book at retail is $1 net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright”. Macy & Co., a famous retailer, purchased large lots of books both at wholesale prices and at retail prices, and re-sold the books to its customers at 89 cents a copy. This was quite clearly in violation of the condition imposed by the notice.

It may be seen that the facts in this case quite clearly mirror the fact situation in John Wiley & Sons v. Prabhat Chander Kumar Jain. It is only the nature of the conditionality that differentiates the two cases: in the one it was a restriction on price at which the book could be further sold, in the other it was a restriction on where the book could be further sold. How did the judge rule in Bobbs-Merrill Co. v. Strauss? The court ruled that it was on the record that Macy & Co. had knowledge of the notice. However, despite that, the notice was held not to be binding on Macy & Co. The court noted:

The precise question, therefore, in this case is, “Does the sole right to vend secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail, to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum?” We do not think the statute can be given such a construction copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract …To add to the right of exclusive sale, the authority to control all future retail sales, by a notice that such sales must be made at a fixed sum, would give a right not included in the terms of the statute, and, in our view, extend its operation, by construction, beyond its meaning, when interpreted with a view to ascertaining the legislative intent in its enactment.

This judgment proceeded on privity of contract, the factum of a sale having occurred, and created what is now known as the doctrine of first sale–an established principle that the exclusive right to sell, distribute or circulate a copy of the copyrighted work exhausts the moment the item is placed into a stream of commerce through a sale. This can, of course, be contradicted if explicitly stated so in a statute.[10] However, as we noted earlier, the Indian statute explicitly notes that the right to issue copies of a work to the public, guaranteed to the owner of the copyright over a literary, dramatic, or artistic work is restricted to copies not already in circulation. Thus, it might seem to one to be quite clear how the court would in the John Wiley & Sons case. One would then be wrong.

In fact, Justice Manmohan Singh, in a very detailed and circuitous judgment, rules that the activity done by the defendant is a violation not of some implied contract between Wiley India Pvt. Ltd. and him, but that it constituted a violation of the Indian Copyright Act, and notably section 51 of the Copyright Act. How does he reach this conclusion?

His reasoning rests on 3 dubious pillars:

that the rights of the licensee are distinct from that of the owner, and that the former may get exhausted without affecting the latter;
that the licensee cannot pass on better title to those that buy from him than he himself has;
that sale or even offer for sale or taking of orders for sale are all forms of putting into circulation or issuance of copies.

First, through a close reading of the various provisions of the Copyright Act he notes that the Act creates a clear difference between the rights of the owner and the rights of the licensee (para 47-50). He then finally comes to noting that,

“A logical corollary drawn from above analysis which needs reiteration at this stage is that for the purposes of section 51 which is in the preceding chapter, the term owner of the copyright does not include exclusive licensee. Thus, the rights of the owner although may include rights of the exclusive licensee but the court cannot read the term owner of the copyright as that of the exclusive licensee and their rights are different as per the allocation by the owner.” (para 62).

Thus, he establishes that some rights of the licensee may be extinguished (as per the doctrine of exhaustion) without extinguishing that same right of the owner. In other words, while the right of circulation of the licensee get exhausted, the right of circulation of the owner remains unaffected. Justice Singh doesn’t go into the implications of this, but there can be two ways of interpreting what this means. It could mean that by virtue of the circulation rights of the licensee getting exhausted, the circulation right of the owner gets exhausted in those nine countries for which the licensee had been granted rights of circulation. Else, it could mean that the exhaustion of the licensee’s circulation rights does not at all affect the owner’s circulation rights. This latter one is obviously an absurd idea, since that would, in all cases, leave the owner with a cause of action in case of all sales even when the owner is in India. Thus, one is left considering the former the only logical meaning.

However, that this cannot possibly be right is demonstrated by the fact that this can easily be applied to an all-in-India transaction as well. Thus, for instance, the owner of rights can decide never to directly sell any book, but only allow its licensees to sell. Thus, it can contractually bind a licensee to sell only in Andhra Pradesh and hold that because of that license contract any buyer who buys from the Andhra Pradesh licensee and decides to re-sell to a second-hand bookstore in Karnataka is actually violating the terms of the license (because the circulation right gets extinguished only insofar as the licensee is concerned, and that licence only allows sales in Andhra Pradesh).

That is obviously cannot be held to be the purpose of the law. Thus, the privity of the contract between the owner of the right and the licensee must be upheld and may not be held to bind a third party purchaser.

The second ground on which Justice Singh rules is on the general property law principle that a person cannot pass on a better title than she herself has. Thus, Justice Singh holds that when the licensee sells a book to a person, that person only receives as much of the title to that book that the licensee has. Thus, since the licensee only has title in the book insofar as those nine countries go, the person who buys that book cannot get better title.

The plain fault in this reasoning is the very founding basis of the doctrine of first sale: the differentiation between property rights in a copy of a book and the copyright in the book. No one has contended in this case that the transaction between the licensee and the book purchaser is not a sale. Once a sale happens, all property rights in that copy of the book are alienated to the book purchaser. It must be remembered that this transaction is not the case of the licensee sub-licensing the right to circulate the book. The licensee cannot sub-license to another party the right to sell the book in, say, Australia, because she does not have that right in the first place. However, in this case, the licensee is invoking the right to sell the book in India, and is not passing on that right. The right of a book buyer to re-sell comes from the statute— from the doctrine of first sale and not from a passing on of that right from the licensee.

The last pillar of the judge’s reasoning is that the sale—or even offer for sale, or taking of orders for sale—of a book online are all forms of putting into circulation or issuance of copies. Section 40 does not work two ways. It only deems a foreign work “Indian”, and does not deem a sale in a foreign land the same as sale in India. Thus, even if we are to accept the other two pillars of Justice Singh’s reasoning, it is unclear how an offer made online to sell a book is equated to actually placing a book in circulation in India. How can an India law prohibit circulation on the streets of Bogotá? This is only possible if a separate right of export is recognised. But Justice Singh is extremely clear that he is not creating such a distinct right.

A notice to the buyer that re-exports are prohibited cannot be held to constitute a valid contract because the Transfer of Property Act clearly makes such a prohibition invalid (sections 10 and 11) after all, it is a sale that takes place and not a license as does the Copyright Act (section 14).

Amendment to Section 2(m)

There has been much controversy lately with some publishers trying to stop the government from amending section 2(m) of the Indian Copyright Act, clarifying that a parallel import will not be seen as an “infringing copy”. Some lawyers for the publishing industry have made the claim that allowing for parallel importation would legally allow for the exports of low-priced edition and overturn the basis of the Wiley judgment. This is false.

The amendment itself merely adds the following proviso at the end of section 2(m) (which itself defines what an “infringing copy” means):

Provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country shall not be deemed to be an infringing copy.

It seems that this is in fact a provision introduced solely to clarify that this (i.e., following international exhaustion) is the position that India holds, and not to change the statute itself. It is merely to clarify that the courts have misread the provisions of the law, or that they have indeed not read the provisions of the law (as in the Eurokids case).

This provision will have no effect whatsoever on the Wiley ruling. While the Wiley ruling deserves to fail on its own merits, the reasoning in that case does not depend on whether we follow international or national exhaustion. Indeed, in para 104, the judge states:

As per my opinion, as the express provision for international exhaustion is absent in our Indian law, it would be appropriate to confine the applicability of the same to regional exhaustion.

Be that as it may, in the present case, the circumstances do not even otherwise warrant this discussion as the rights if at all are exhausted are to the extent to which they are available with the licensees as the books are purchased from the exclusive licensees who have limited rights and not from the owner. In these circumstances, the question of exhaustion of rights of owner in the copyright does not arise at all.

Thus, the argument that following the principle of international exhaustion will upturn this judgment is faulty. Imports and exports are two distinct things. India’s following of the principle of “international exhaustion” means that the right to first sale is exhausted in India, when the work is legally published anywhere internationally (i.e., regardless of where that copyrighted work is legally published). The principle of international exhaustion does not not exhaust the right of first sale internationally—the word “international” is used to indicate where the publication has to take place for exhaustion to occur, and not where the exhaustion takes place. After all, Indian law on a matter cannot determine whether a book can or cannot be sold anywhere else in the world (which is precisely what it would do if it is to hold that rights are exhausted internationally by virtue of a book being printed in India).

Conclusion

I think the best way of concluding this are by quoting, in extenso, a passage from a book on the Indian intellectual property law by Prof. N.S. Gopalakrishnan & Dr. T.G. Agitha:

Under the Indian law there is no express provision recognising the right of importation. This would in fact enable parallel importation of works. “Parallel importation” means transportation of “legitimate” goods which are available at a cheaper rate in one country by independent buyers (e.g. book sellers), for sale in another country. This could act as an effective check on creating monopoly in the market. Hence, it is an important aspect to be borne in mind for a developing country like India. Since there is no international obligation against parallel importation, nothing prevented the court from taking the stand that unless there is an express provision conferring importation rights on the owner of copyright or prohibiting parallel importation, it need not be considered to be prohibited in India. It is pertinent to note that India supported the principle of international exhaustion and not the national exhaustion principle. [11]

However, it is submitted that the court (in Penguin v. India Book Distributors) failed to take note of these aspects while deciding this case.”[12]

One can only hope those words by these leading experts on IP law in India are paid heed to, and that the arguments otherwise will fail to convince both the government as well as future court decisions.

* Please do not cite this note in an academic paper. Feel free to cite elsewhere. This note is still very much a work in progress. However, given the urgency of this issue and the importance of ensuring debate on the legal ramifications of the proposed amendment to s.2(m), this note should prove useful.

Notes

[1]. Section 51(b)(iv) states: “Copyright in a work shall be deemed to be infringed (b) when any person (iv) imports into India, any infringing copies of the work.” A proviso to the section reads: “Provided that nothing in Sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.”

[2]. Ed.: MANU/DE/0402/1984: AIR 1985 Delhi 29, 26 (1984) DLT 316”

[3]. 210 U.S. 339 (1908).

[4]. Arathi Ashok, Economic Rights of Authors under Copyright Law, 15 J. Intell. Prop. Rights 46 (2010) at 50.

[5]. MANU/MH/0938/2005.

[6]. MANU/DE/0406/2009.

[7]. MANU/DE/1142/2010: MIPR 2010 (2) 0247.

[8]. While the exact countries were different in the case of each of the plaintiffs, there were all restricted to sale in India and a few of its neighbouring countries.

[9]. 210 U.S. 339 (1908).

[10]. All signatories of the TRIPS Agreement have to ensure a right of rental, over and above a right of first sale, for all video (or what are known as cinematograph films in the Indian law).

[11]. R.V. Vaidyanatha Ayyar, The Process and Politics of a Diplomatic Conference on Copyright (1998) 1 JWIP 3 at 17, cited in N.S. Gopalakrishnan and T.G. Agitha, Principles of Intellectual Property 256 (2009).

[12]. N.S. Gopalakrishnan and T.G. Agitha, Principles of Intellectual Property 256 (2009).

Also see SSRN

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Pirates, Plagiarisers, Publishers

prashant — 2014-05-29T05:55:27Z

This article attempts to rescue not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy. The article by Prashant Iyengar was published in the Economic & Political Weekly, February 26, 2011, Vol XLVI No 9.

"Copying one book is plagiarism; copying several is research." Unknown 1

Someone must have slandered Indian academia, for, without having done anything new or different, allegations of plagiarism have suddenly been tumbling out of India’s ‘top’ universities in these past few years.

In October 2002, a group of physicists from Stanford University, including three Nobel laureates, addressed a letter to the (then) President Abdul Kalam complaining of plagiarism by the Vice Chancellor of Kumaon University.2 In January 2006, a professor from IIM Bangalore was dismissed for plagiarism.3 In February 2008, a professor from the Sri Venkateswara University in Tirupathi was accused of having plagiarized up to 70 papers between 2004 and 2007.4 In October 2010, IIT Kharagpur was forced to set up a committee to investigate allegations of plagiarism by one of its professors and three doctoral candidates.5

And so on. It seems Benjamin Franklin’s adage about originality being “the art of concealing your sources” thrives today in Indian academia. Something is rotten in the State of academic research. Evidently, we even know exactly what it is: Some years ago, the Association of Indian Universities invited students to a research contest. The pamphlet advertising the contest contained a remarkably prolix account of the causes of the general decline in academic research:

Of late, research has become a subservient component in the university functioning. It is not considered a lucrative career option. Apart from this, resource constraints, lack of commitment, lack of proper encouragement, etc., are the impediments that are affecting the quality of research in our institutions of higher education. Another important factor for the deterioration of the quality of research is the absence of adequate training and other capacity building endeavour in our system, which has restricted students’ creativity only to rote memory. 6 (emphasis mine)

Similarly, we are periodically reminded, as in this instance, by the chief of the Defence Research and Development Organisation that “India lacks quality academic organisations and research and development institutions that breed inventions in technology. This is the major reason behind India's failure in breaking new ground in inventions and innovations.”7 Other news reports bemoan the fact that “Indian patent filings lag behind global average" with the total “number of filings by residents being just three per million people in its population, compared with the world average of 250”8

Accounts such as these, which abound in the press and journals, typically trace a “decline” hypothesis according to which the quality of academic research in India, once rigorous and upright, has fallen precipitously in recent times. Poor quality of academic research is then portrayed as a function of the impoverishment of the academy itself. Concealed within this auto-critique is an envy of putatively ideal systems in other countries which exhibit values that are an inversion of those identified as ours: i.e. they privilege research, are well-resourced, file the statistically approved average number of patents, allow students’ creativity free rein, and do not restrict their creativity only to rote memory. Lurking underneath these criticisms is also the anxiety that the arrival of the internet has, far from invigorating indigenous research in India, facilitated plagiarism on a wider scale than previously imaginable. What do we make of all this self-slander?

In this essay I will attempt to rescue Indian academic research, not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy.

I begin by drawing on my own prior study on student research in law universities in India9 to provide a rough account of how law students approach research. However inappropriate, I use some of my observations in the course of that study as a microcosmic model for how research is conducted by students across the country today.

Next, I will attempt to show how the charge of plagiarism only acquires its pungency after the installation of a particularly western ‘Romantic’ conception of creativity that is hinged on the ‘genius’ figure. My point here is not one of cultural difference – we may or may not have conflicting traditions of (literary) creativity in India - but of heterogeneity of possible standpoints from which creativity can be judged, which have been deprecated or forgotten since this modern conception took root. While this idea is itself not ‘original’, having been made by numerous authors on whose work I draw upon here10 , I am interested here in how it can inform our reaction to quotidian reports of plagiarism in the contemporary. Specifically, I think our understanding of 'originality-as-genius’ is a relatively recent historical product, and is definitely not the 'natural' or universal parameter by which literature and arts have been judged. I would assert that contemporary practices on the Internet restore us to (or renew the salience of) some of these pre-modern practices of authorship where originality in its Cartesian sense may not necessarily be determinative of value.

I would however hasten to add that this does not lead us inexorably to the conclusion that our traditional understanding of plagiarism has to abandoned. In the case of academic writing, 'Romantic' standards of originality have been rigorously upheld and policed by the spectral might of the University. Here, the ritual demonstration of cartesian orginality is not only a condition of success, but a minimum qualification for survival and advancement in this domain. With the stakes being so high, the temptation to pass off others' works as one's own is great, in contrast to the risks of being caught. This does not mean that everyone resorts to it, only that there are structural factors in the academy that make practices of plagiarism more 'rational' than, perhaps, in other domains11 .

To begin, then with my conclusions, I think that dulling the keenness of ‘cartesian originality’ in the University could be an important component in the serious task of educational reform. Equally, I aim, in this article to rehabilitate the term plagiarism so as to diminish the sense of embarrassment that seems to come naturally to us when we speak of Indian research.

Student ‘research’ in Law Schools in India

The content and observations in this section draw from a study that I had conducted in 2006 on student research in national law universities in India. During the study I had interviewed 40 students and eleven faculty members across three National Law Universities. 12 I will focus here on the themes from those surveys that directly address the issue of research and plagiarism.

By way of background, in a typical national law university following a semester model, a student must submit up to 5 research papers (of lengths varying from 20 to 50 pages) a semester – or ten papers a year. In the duration of her five year legal education, a student from a national law university in India would have submitted anywhere between 48 (NALSAR) to 70 (NLIU Jodhpur) research papers of varying lengths. Given an average class-size of 80, and 5 batches in every university, a guesstimate indicates an average output of about 4000 papers of varying quality from every national law university annually. The table below contains a rough back-of-envelope enumeration of the research output of five national law universities in India, drawn from respective university prospectuses and websites.

	NALSAR	NLSIU	NLIU	NLU	GNLU
Intake	80	80	80	80	160
Max Strength	400	400	400	400	800
Academic Unit	Semester	Trisemester	Trisemester	Semester	Semester
Law Courses	40	51	48	54	51
Non-Law Courses	10	10	26	8	9
Number of research papers per student through the duration of the 5 year course	18	50-60	65-74	55-62	55-60
Max number of research papers per semester / trisemester	1900	1400	2000	2200	4000
Number of student research papers per year (approx)	3800	4200	6000	4400	8000

By any estimate, this volume of research is staggering and should ordinarily be a cause for pride. However law universities are also beset with the same anxieties of poor research ‘quality’ and plagiarism that characterize the broader academy. While my previous study contains a fuller discussion on the causes of poor legal research at these universities, I would like, here, to only reproduce some of my survey conclusions from that study that would feed the discussion for the later sections of this paper.

From my surveys it appeared that both students and faculty shared a sense that the research burden on students in these universities was excessive and too onerous to facilitate high quality research.
Students respond to the high research load by budgeting their efforts – working more intensely on some research assignments while neglecting others. This accorded with the responses from faculty members who reported an extremely low number of high quality research papers turned in. Responses from faculty indicate that a high percentage of papers received fall under a median category between ‘high quality’ and ‘abjectly low quality’ – i.e. there are a large number of papers which, while offering a cogent account of the topic do not add any insight of their own.
Both students and faculty reported generally, the existence of a high degree of plagiarism (defined as the inclusion of extrinsic material without attributing sources) sourced both from amongst their peers as well as from extrinsic sources. Although most students (78%) claimed never to have directly copied from other students’ papers, many (67%) admitted to having shared their papers with other students either for ‘reference’, or more commonly, for adaptation/reuse in their assignments. The responses to whether they had any reservations against the practice were diverse with more students in favour of the practice of plagiarism (47%) than against (30%). Without admitting to participating it in themselves, 60% of respondents characterised the prevalence of ‘copy/paste’ plagiarism in research on their campus as ‘Rampant’ or ‘High’. Many reasons were forthcoming for the prevalence of this practice among which the more frequently stated included: ‘High work pressure’, ‘lack of time’ ‘lack of incentive to do high quality research’, ‘lack of emphasis by evaluators on high quality academic work’, ‘pointlessness of repeating identical research from scratch’. Other less common reasons offered were ‘emphasis on sheer volume to the neglect of quality of analysis’ and ‘disingenuousness of topics’ and ‘Laziness’.
Over half the students surveyed had never published their research in journals. This despite the fact that 75% of respondents reported that at least 1 of their research papers was either publishable immediately or with modifications. More than half the respondents reported upwards of three papers that they themselves regarded as ‘publishable’.
One of the common reasons that the faculty identified for the incidence of plagiarism was that students had begun to stereotype teachers who were unlikely to check or be able to check for plagiarism and would submit entirely plagiarised papers to them. Other reasons included the difficulty of checking the huge number of papers they received individually for plagiarism and also the fact that students had an unreasonably high workload coupled with the lack of enough incentive to do thorough research.

“Intuition” and “checking the number of sources” was still the common mode of detecting plagiarism although some faculty made creative use of the internet – particularly Google.

Faculty was asked if a paper that appeared plagiarized to a high degree, but also indicated that the student had put in an intelligent compilation of materials, would be acceptable by them. The response to this was largely affirmative with some faculty members saying that most papers would correspond to that category and this standard was imperative for a majority of students to pass! Most faculty required that the source material at least be acknowledged.
With regard to their research sources, there was a clear bias in favour of online sources almost to the exclusion of other sources. One respondent even rated online sources as being “more important than libraries”, and even claimed that she always began her legal research on the internet.

It is evident then from the foregoing account that the law universities are poor representatives of ‘original’ scholarship. The career of students through the law school seems to be marked by a blithe collaboration with faculty in which a Nelson’s eye is turned to their less-obvious plagiarisms. Although it is possible to adopt a high moralistic tone and condemn these practices, in the remainder of this paper I would like to marshal resources that would lend some dignity to them. In the section that follows, I will argue firstly, that there are rival conceptions of originality which privilege the recombination of existing information, rather than being fixated on ivory-towered ex nihilo originality.
Under this conception, even the pastiche works by lazy law students emerge as eminently ‘original’. Secondly, I argue that slavish imitation is never always only that, and have long been recognized as an integral aspect of the creative process itself.

‘Originality’ is only a special effect of reception

In his fascinating book Original Copy, Robert Macfarlane draws on George Steiner’s vocabulary to contrast two different narratives of literary creation – The first, creatio, espouses “a hallowed vision of creation as generation” which “connotes some brief, noumenal moment of afflatus or inspiration’ during which the author composes her work.

..the creative urge is dramatized as pulsing deep within the fastness of the individual self, and the solitary writer is seen to conjure ideas into the influence proofed chamber of his or her imagination. 13

By contrast, the second conception of literary creativity, inventio, which is commonly found both in literary postmodernism and Augustan aesthetics, conceives of “creation as rearrangement” and “refuse[s] to believe in the possibility of creation out of nothing, or in the uninfluenced literary work”.14 Instead this view “privileges the act of making out of extant material”. According to these “recombinative theories”, the creating mind is conceived

“as a lumber-room in which are stored innumerable verbal odds and ends. The supposedly ‘original’ writer in fact works with ‘inherited lexical, grammatical, and semantic counters, combining and recombining them into expressive executive sequences’. 15

As an instance of this latter view, Macfarlane cites the example of Derrida who coined the term itérabilité to describe “the semantic drift which inevitably occurs between consecutive uses of the same text”. Derived from a combination of the Latin verb iterare (meaning ‘to repeat’) and the Sanskrit word itara (meaning ‘other’), the word “valuably emphasizes ‘the logic which links repetition to alterity’. For Derrida, the repetition of a text inescapably involves its alteration: you can never step twice in the same poem, paragraph, or word.”

I find this latter conception, especially Derrida’s concept of itérabilité to be a valuable tool with which to think through the practices of the law students I interviewed. While being derived from a plurality of (frequently unacknowledged sources), their papers were never mere ‘slavish’ repetitions, but always contained an element of alterity.

Paradoxically, the networked information age that we inhabit both facilitates and preempts the flourishing of ‘recombinative creativity’. On the one hand, the abundance of informational resources that the internet puts at a researcher’s disposal, as well as the ease of word-processing makes it easy to rapidly refashion materials into a pastiche of one’s own. On the other hand, the illusion of novelty that such work may produce is capable of being dispelled equally swiftly, and more efficiently than ever before through the use of special applications designed to detect plagiarism. If, as MacFarlane suggests, originality is not “an indwelling quality of writerly production, but instead a function of readerly perception, or more precisely readerly ignorance (the failure to discern a writer’s sources)”, then the emergence of the internet has nearly made this form of originality impossible, by making this reader ignorance extremely evanescent (lasting only until the reader’s next Google search). The ability of students to pass off plagiarised material as their own will hinge increasingly on their ability to alter it unrecognizably, at which point the output is no longer a mere slavish imitation, but something new altogether – ‘quality research’.

In an essay on pre-print culture16 , Lawrence Liang demonstrates that the notion that prior to print technology, the task of writing was reduced to that of slavish copying by scribes is false. As Liang notes, the real story is slightly more complicated.

Acting as annotators, compilers, and correctors, medieval bookowners and scribes actively shaped the texts they read. For instance, they might choose to leave out some of the Canterbury Tales, or contribute one of their own. They might correct Chaucer’s versification every now and then. They might produce whole new drafts of Chaucer by combining one or more of his published versions with others.17

With the arrival of print technology, however, a fundamental transformation occurs in the way the activities of writing and reading. Liang quotes an extended passage from Rebecca Lynn’s study of reading and writing practices in medieval England18 that captures this change:

the benefits readers derived from the press, in terms of better access to authorized texts, were countered by a profound loss of opportunity for inventive forms of reception. They were free to take with the texts they recopied. Manuscript culture encouraged readers to edit or adapt freely any text they wrote out, or to re-shape the texts they read with annotations that would take the same form as the scribe's initial work on the manuscript. The assumption that texts are mutable and available for adaptation by anyone is the basis, not only for this quotidian functioning of the average reader, but also for the composition of the great canonical works of the period.19

Is it possible, in the light of this insight about the creative element of copying in pre-print days, to revise our pathological accounts of contemporary plagiarism? 20 Can we view plagiarism not as an offence against the ‘author’ity of knowledge, but in a sense as a reversion to a more primordial tradition in which the availability of a text presumes and is premised upon its availability for adaptation. As described previously, responses from interviews with faculty indicates a grudging tolerance of plagiarism in student research.

This tolerance, stemming from an acknowledgement that even acts of compilation are not wholly without a creative element, seems to restore us to such an understanding of ‘creative’ reading akin to what has been described above.

Conclusion

Few years ago, a famous author of textbooks on Intellectual Property law in India was discovered to have plagiarised close to two hundred pages of his new book on the Right to Information. The pages had been lifted verbatim from the manuscript sent by a famous law professor to the same publisher. When the matter came to light, the first author pleaded ignorance. After an ugly out-of-court tussle between the professor and the publisher (who happen to be one of India’s more powerful legal-publishing houses), a compromise was reached wherein the professor’s book would be published with a note inserted stating that 200 of his pages had been included in the other ‘author’s’ book.

I conclude this essay with this piece of copyright ‘gossip’ in order to highlight a couple of ironies that it animates. The first is, of course, the delicious irony that a famous author, of IP books no less, would stoop to such lows. (Could academic writing in any discipline be above suspicion now that academic writing in IP, that guardian discipline of genius ‘originality’, has proven susceptible to plagiarism?) The second irony is that this person’s reputation as the ‘author’ of a book, and of a genre of books survives despite the fact that he may not have penned even a single word of his book – which prompts us to ponder what function the author truly serves here. Lastly, I find the fact curious that both books continue to be displayed – and sold - in various legal bookstores, frequently side-by- side. The ‘fact’ of the plagiarism seems not to have significantly impacted sales of either author’s tome.

Tempting as it may be, one must resist treating this example as either exceptional or paradigmatic. Publishers in India in many cases do lead authors by their nose, and this is particularly so in the case of text-book publishing. However, this does not mean that original – in the Cartesian sense - academic writing does not continue to be produced in India. I feel this instance points us to the limits of the argument I have made in the preceding section. As well as it may be to celebrate ‘recombinative’ accounts of creativity in students, wholesale plagiarism with impunity by big name authors backed by large publishing houses cannot be easy to endure. In our acceptance of a combinatorial ‘inventio’ theory of creativity, it would be unwise too hastily to jettison the more austere creatio theory. As Macfarlane points out, popular attitudes to originality and plagiarism have moved between the two narratives of originality in a dialectical fashion so that they can best be thought of as “enmeshed .., or existing in a kind of helical wrap: each requiring the other for its support, counter-definition, and continued existence. Neither ever obliterates the other.”21

However they may have been produced, we regard our ‘works’ not merely as our property but also relationally through ethics of propriety. In other words, what we write is our “own” not in the way that our shoe is our own, but in the sense that our friends are our own. Plagiarism in this context most closely approaches its original Latin roots – plaga: to convert a freeman into a slave22. – as the unjust enslavement or capture of our work by someone else.
What role has the internet played in this crisis of plagiarism? Despite the inherent promiscuity of the medium, I think that the arrival of the internet has not actually changed our practices in relation to plagiarism. So the fact that I may blithely pirate movies and music on the internet does not mean, automatically, that I adopt 'piracy' as my research methodology for academic writing. Our choices remain as they were – to acknowledge or not, with the latter being increasingly more risky in an age when exposure is only a google search away.

Finally, how does all of this relate to the question I posed at the start viz: what do we make of this self-slander? I think it will not do to simply declare ourselves innocent of the charge of plagiarism. (As Josef K’s prison chaplain says, that is what the guilty usually do.) But equally we must be careful, to continue with a Kafkaesque metaphor, not to see the gallows being constructed in the distance and hang ourselves on the presumption they are being erected solely for us. Kafka alone, of course, does not supply good grist for policy decisions. A possible way forward would be to import the cinematic notion of plagiarism into academic writing: Not all that is unacknowledged is unoriginal (as my
example from student research at law universities shows), but this does not extend to a license to appropriate all as one's own (the example of the famous IP author who plagiarised 200 pages from a professor). The former is a function of the dominant, awkward alien aesthetic imposed by the University, which requires academic writing to be dully impersonal and abstract. Finding it too taxing, most students resort to a clumsy pastiche rather than, for instance, shifting to a more narrative style which they may be more comfortable with. The internet allows their pastiche to be more colorful than before.

The latter is plainly an ethical failing by someone who believes they can get away with impunity. The internet does not impact them in any way except that their 'crime' once discovered circulates endlessly on the internet (As this IP author discovered to his dismay).

In deciding what is to be done, however, I would advise our policy makers to make haste, only slowly.

Notes

Lindey, A., 1952. Plagiarism and originality, Harper., New York, P.2

Chu, S. et al., 2002. Letter from the group of Professors of Physics of Stanford University to the President of India. Available at: http://www.stanford.edu/dept/physics/publications/PDFfiles/india.pdf [Accessed December 22, 2010].

Seethalakshmi, S., 2006. IIM-B prof held violating copyright. The Times of India. Available at: http://timesofindia.indiatimes.com/city/bangalore/IIM-B-prof-held-violatingcopyright/ articleshow/1359149.cms?curpg=2 [Accessed December 21, 2010].

Tewari, M., 2008. Indian professor guilty of plagiarism. DNA India. Available at: http://www.dnaindia.com/india/report_indian-professor-guilty-of-plagiarism_1152417 [Accessed December 21, 2010].

Singh, K., 2010. IIT-K sets up panel to probe plagiarism charges. Indian Express. Available at: http://www.expressindia.com/latest-news/iitk-sets-up-panel-to-probe-plagiarism-charges/695196/ [Accessed December 21, 2010].

"Anveshan: Student Research Convention." Association of Indian Universities. Apr 2008. Research Division. 30 Apr 2008 <http://www.aiuweb.org/Research/research.asp>.

Josy Joseph , ‘India lacks R&D base, laments DRDO chief ‘, (2000), [Internet], Available from: <http://www.rediff.com/news/2000/aug/11josy1.htm> [Accessed 21 April 2008]

‘Indian patent filings lag behind global average’, [Internet], Available from: <http://www.eetimes.com/news/latest/showArticle.jhtml?articleID=204702703> [Accessed 21 April 2008]

Iyengar, P., 2008. Open Information Policy for Student Research in Law Universities. SSRN eLibrary.
Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555689 [Accessed December 24, 2010].

See for instance, Rose, M., 1993. Authors and Owners: The Invention of Copyright, Cambridge, Mass:
Harvard University Press. Woodmansee, M., 1984. The Genius and the Copyright: Economic and Legal
Conditions of the Emergence of the 'Author'. Eighteenth-Century Studies, 17(4), 425-448.

For instance, the charge of plagiarism in the domain of cinema seems to have a significantly diluted charge. Bollywood has been accused frequently of aping Hollywood, although this does not stand in the way of it immense popularity and renown. Ramesh Sippy's Sholay is regarded as having been influenced by John Sturges' The Magnificent Seven, itself being similarly 'influenced' by Akira Kurosawa's The Seven Samurai. On the modern definition of originality which requires us all to be 'perfectly uninfluenced', this qualifies as plagiarism. This definition however did not stand in the way of Sholay becoming an iconic film for Indian cinema.

Respectively The National Academy of Legal Studies and Research (NALSAR), the National Law School of India University (NLSIU) and the National University of Juridical Sciences (NUJS).Although this sample is not sufficiently representative to make statistically kosher extrapolations – indeed, I make no such claim - I think the responses I received affirmed certain interesting observable trends about student research, that would seem commonsensical to anyone who teaches in India. To that extent, I think this data yields some interesting starting points for the theme of the current paper.

Macfarlane, R., 2007. Original Copy: Plagiarism and Originality in Nineteenth-Century Literature, Oxford: Oxford University Press. p.2

Ibid, p.4

Ibid

Liang, L., 2009. A Brief History of the Internet from the 15th to the 18th Century. In N. Rajan, ed. The Digitized Imagination. Routledge India, pp. 15-36.

Ibid

Schoff, R.L., 2004. Freedom from the Press: Reading and Writing in Late Medieval England. Harvard University. Available at: http://sunzi.lib.hku.hk/ER/detail/hkul/3516592. cited in Liang, L., 2009. A Brief History of the Internet from the 15th to the 18th Century. In N. Rajan, ed. The Digitized Imagination. Routledge India, pp. 15-36.

Ibid

For instance the ‘epidemic of plagiarism’ language typified in this BBC article Precey, Matt. “Study shows 'plagiarism epidemic'.” BBC 17 Jan 2008. 13 May 2008 <http://news.bbc.co.uk/1/hi/england/cambridgeshire/7194850.stm>.

Supra n. 12, at p. 17

See Voltaire, 1824. A philosophical dictionary: from the French, J. and H. L. Hunt. (Accessed from Google Books)

Also see these:

For more details visit https://cis-india.org/a2k/blogs/plagiarism-in-indian-academia

Comments to the Ministry on WIPO Broadcast Treaty (March 2011)

pranesh — 2012-12-14T10:29:20Z

As a follow up to a stakeholder meeting called by the MHRD on the WIPO Broadcast Treaty, CIS provided written comments on the April 2007 Non-Paper of the WIPO Broadcast Treaty, emphasising the need for a signal-based approach to be taken on the Broadcast Treaty, and making it clear that India should continue to oppose the creation of new rights for webcasters.

On February 22, 2011, the Ministry of Human Resource Development held a meeting to decide on the Indian position on the WIPO Broadcast Treaty. The Ministry asked the participants at the meeting to send in written submissions on four matters. We sent in submissions on those four issues, as well as a few others.

Comments on the non-paper for the WIPO Broadcast Treaty by the Centre for Internet and Society

On February 23, 2011, the Ministry of HRD had asked for comments on four matters:

Article 3 of the Non-paper which was circulated earlier
Term of protection for signal
Nature of limitations and exceptions
Protection of signal and retransmission

We have made submissions on those and a few other matters as well. Unless noted otherwise, all comments made in this note pertain to the final non-paper (April 2007) and not the draft non-paper (March 2007).

Article 3

Article 3 of the draft non-paper that was circulated (March 2007) for comments from country delegates stated:

3. Scope of Application

The provisions of this Treaty shall not provide any protection in respect of

(i) mere retransmissions;

(ii) any transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or

(iii) any transmissions over computer networks (transmissions using the Internet

Protocol, “webcasting”, or “netcasting”).

A number of people present at the recent MHRD-organized meeting noted that “mere retransmissions” is a confusing term. In the revised non-paper (April 2007), it has been clarified that protection is not granted to third parties for merely retransmitting another’s signal (Art. 3(4)(i)).

3. Specific Scope and Object of Protection

(4) The provisions of this Treaty shall not provide any protection

(i) to retransmitting third parties in respect of their mere retransmissions by any means of broadcasts by broadcasting organizations;

(ii) to any person for transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or

(iii) to any person for transmissions over computer networks

In addition, Art. 3(4)(iii) is currently ambiguous since it is not clear whether “retransmissions” are subsumed under the word transmission. By allowing for separate rights for retransmission over computer networks, the Treaty allows for the creation of two classes: traditional broadcasters who will have rights over retransmissions over computer networks, and all other persons who will have no rights over transmissions. Thus, if “retransmission” is not subsumed under the word “transmission”, it would be advisable to alter that clause to read “to any person for transmissions or retransmissions over computer networks”.

Lastly, Art. 3(4) should additional prevent protection for persons broadcasting materials for which they have not acquired copyright, or for broadcasting materials in the public domain.

Term of Protection of Signals

No term of protection should be provided. As was noted by the US government in its response to the draft non-paper, it is questionable “whether a 20-year term of protection is consistent with a signal-based approach”. The Brazilian delegation also states: “Article 13 should be deleted. A twenty-year term of protection is unnecessary. The agreed “signal-based” approach to the Treaty implies that the objected of protection is the signal, and therefore duration of protection must be linked with the ephemeral life of the signal itself.” Thus, a term is only needed if we stray away from a signal-based approach. As we do not wish to do so, there should be no term of protection.

Limitations and Exceptions

The limitations and exceptions (L&E) currently provided for allow for mirroring of copyright L&E limited by a Berne-like three-step test.

However, reasons for providing protection over broadcasting are not the same as those for copyright. For instance, a country may wish to make exceptions to signal protection for cases such as broadcast of a national sport, as India has done with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act.

This might well afoul of the three-step test proposed in Article 10(2). Furthermore, a country may wish to limit the application of broadcasters rights for national broadcasters (whose programming is paid for by taxpayers, and thus should be available to them), but may not be able to do so under the provisions of Article 10(2). Thus, Article 10(2) should be deleted, and Article 10(1) should be expanded to include issues of national interest and for free-to-air broadcast signals.

Protection of Signal and Retransmission

It should be a sine qua non condition of India’s that that this be a purely signal-based treaty with no fixation or post-fixation rights. Thus, it should restrict itself to protection of signals, and simultaneous retransmission.

As a result, no separate right to prevent unauthorized “decryption” should be granted, since signal-theft is already a crime. For instance, this provision would also cover decrypting an unauthorized retransmission without authorization from the retransmitter. This provides the unauthorized retransmitter rights, even though s/he has no right to retransmit. This leads to an absurd situation.

As stated by the Brazilian government:

“[Article 10 of the draft non-paper and Article 9 of the non-paper] is inconsistent with a “signal-based approach”. It creates unwarranted obstacles to technological development, to access to legitimate uses, flexibilities and exceptions and to access to the public domain. It does not focus on securing effective protection against an illicit act, but rather creates new exclusive rights so that they cover areas unrelated with the objective of the treaty, such as control by holder of industrial production of goods, the development and use of encryption technologies, and private uses. The prohibition of mere decryption of encrypted signals, without there having been unauthorized broadcasting activity, is abusive.”

Other comments

Article 7

Article 7 of the non-paper provides broadcasters rights post-fixation (“Broadcasting organizations shall enjoy the exclusive right of authorizing … the deferred transmission by any means to the public of their fixed broadcasts. ”). This is contrary to a signal-based approach. A signal-based approach would necessarily mean that it is only signal theft (which happens only via unauthorized simultaneous retransmission) that should be protected. Deferred transmission should implicate the rights of the owner of copyright, but not of the broadcasting organization.

Article 4

As suggested by the Brazilian government, Article 4(1) which proposes a non-prejudice clause should be amended to add the words “and access to the public domain” at its end. This is consistent with the WIPO Development Agenda.

Article 5

India should re-iterate its suggestion to add the following to the definition of “broadcast” under Art. 5(a): “‘broadcast’ shall not be understood as including transmission of such a set of signals over computer networks. ”

Further, the phrase “general public ” should be retained in Art.5 (as was present in the draft non-paper), and should not be made into “public”. The danger is that a limited public (say family members) could possibly be covered by the term “public”, while they will be excluded from “general public”, which in any case is the target audience of all broadcast.

For more details visit https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011

Govt for Legalising Parallel Import of Copyright Works; Publishers Oppose

Shamnad Basheer — 2011-08-30T10:19:35Z

Section 2(m) legalises the parallel imports of books and other copyrighted material into India and was part of the initial Copyright Amendment Bill introduced in the Parliament of India in 2010.

Section 2(m) reads as below:

"[P]rovided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country into India shall not be deemed to be an infringing copy."

Unfortunately, the government did a sudden volte face owing to pressure from publisher lobbies and deleted it from the latest version of the Bill. The provision would have helped students gain access to the latest affordable versions of text books from around the world.

When the Bill was referred to a Parliamentary Standing Committee for review, the said Committee strongly supported the introduction of section 2(m) and stated as below:

"that availability of low priced books under the present regime is invariably confined to old editions. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books."

"Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. Thus, apprehensions about the flooding of the primary market with low priced editions, may be mis-founded as such a situation would be tackled by that country's law. The Committee would, however, like to put a note of caution to the government to ensure that the purpose for which the amendment is proposed i.e., to protect the interest of the students is not lost sight of."

Despite the Standing Committees support, it is curious as to why the government dropped this provision, particularly when it would have tremendously helped a number of students gain access to latest low priced editions of text books from around the world. It ought not to have succumbed to the pressures of the publishing lobby.

Empirical studies done on this count clearly demonstrate that publishers only introduce old versions of books in India. The latest versions have to be imported, and they are very expensive, often times costing more than what they cost in the US and EU. See the Economic Times article documenting this empirical study here.

Further, an easy right of import enables any third party to import books which could also then be made available in accessible formats to the visually impaired.

Download the Economic Times article by Shamnad Basheer here. [PDF, 470 Kb]

For more details visit https://cis-india.org/a2k/blogs/govt-legalising-parallel-import-of-copyright-work

Copyright Amendment Bill in Parliament

nirmita — 2011-08-30T09:26:44Z

The Copyright Amendment Bill is expected to be presented in the Rajya Sabha by the Minister for Human Resource and Development, Kapil Sibal today afternoon. The much awaited Bill (since it has been in the offing since 2006) has undergone significant changes since its initial appearance.

Given below is a very quick first cut highlight of the Bill from a public interest perspective. A more detailed analysis will follow after the session discussions.

Parallel imports: The parallel imports clause which had been put in as sec 2(m) has now been dropped from the present draft. This is a big setback because educational institutions, libraries and archives, second hand book, etc., were looking to this provision to bring down the prices and hasten the availability of books. This also affects persons with disabilities since they will be unable to import books in accessible formats.
Persons with disabilities: There are two provisions relating to persons with disabilities which have been introduced. Section 52 (1) (zb) relates to the conversion, reproduction, issues of copies or communication to the public of any work in any accessible format, provided that these activities are meant to enable access to persons with disabilities and sufficient safeguards are taken to ensure that these materials do not enter the mainstream market. This section in a sense is broader and more encompassing than some provisions found in other countries, which relate exclusively to the blind or visually impaired. This section would adequately cover persons with other disabilities who cannot read print. A new section 31B also provides for compulsory licensing for profit entities wishing to convert and distribute works in accessible formats, provided that they are primarily working for persons with disabilities and are registered under sec 12A of the Income Tax Act or under chapter X of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Many exceptions under 52 (1) (i) relating to fair dealing have been extended to all works except computer programmes. New sections 52 (1) (b) and (c) protect transient and incidental storage from being classified as infringing copies, which offers protection to entities such as online intermediaries.
The scope of compulsory licensing under sec 31 has been expanded from ‘any Indian work’ to ‘any work’. Three new sections 31 B, 31C and 31 D have been introduced. Section 31 B has already been described in the paragraph on persons with disabilities. Section 31 C lays down strict measures relating to statutory licensing in case of cover version, being a sound recording of a literary, dramatic or musical work. Section 31 D relates to statutory licenses for broadcasting organizations wishing to broadcast a literary or musical work or sound recording.
Non commercial public libraries can now store electronic copies of any non digital works they own (52(n)).
The new Bill introduces Technological protection measures (65A and 65B) and makes circumvention and distribution of works in which rights managements systems have been removed an offence which is punishable with imprisonment upto two years as well as fine. In addition the copyright owner can also avail of civil remedies. As such India is not really required to have these provisions in the copyright legislation since we are not yet a signatory to the WCT or the WPPT and such provisions will hamper consumer interests.
Terms of copyright have been increased significantly without reason, thus preventing works from falling into the public domain. For instance, the term of photographs has been increased from 60 years to life of the photographer plus 60 years. This is far in excess of the minimum term stipulated by international treaties.

For more details visit https://cis-india.org/a2k/blogs/copyright-bill-parliament

CIS-TWN Analysis of WIPO Treaty for the Print Disabled (SCCR/22/15)

pranesh — 2011-10-12T08:29:01Z

CIS and the Third World Network (TWN) conducted a quick analysis of the "Consensus document on an international instrument on limitations and exceptions for persons with print disabilities presented by Argentina, Australia, Brazil, Chile, Ecuador, Mexico, Paraguay, and the United States of America" presented as WIPO document numbered SCCR/22/15.

SCCR/22/15

ORIGINAL: English

DATE: June 20, 2011

Standing Committee on Copyright and Related Rights

Twenty-Second Session Geneva, June 15 to 24, 2011

Consensus document on an international instrument on limitations and exceptions for persons with print disabilities presented by Argentina, Australia, Brazil, Chile, Ecuador, Mexico, Paraguay, and the United States of America

PREAMBLE

Recalling the principles of non-discrimination, equal opportunity and access, proclaimed in the United Nations Convention on the Rights of Persons with Disabilities,

Mindful of the obstacles that are prejudicial to human development and the fulfillment of disabled persons with regard to education, research, access to information and communication,

Emphasizing the importance of copyright protection as an incentive for literary and artistic creation and enhancing opportunities for everyone to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits,

Recognizing the importance of both accessibility to the achievement of equal opportunities in all spheres of society and of the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,

Aware of the many barriers to access to information and communication experienced by persons who are blind or have limited vision, or have other disabilities regarding access to published works,

Aware that the majority of visually impaired persons/persons with a print disability live in countries of low or moderate incomes,

Desiring to provide full and equal access to information, culture and communication for the visually impaired persons/persons with a print disability and, towards that end, considering the need both to expand the number of works in accessible formats and to improve access to those works,

Recognizing the opportunities and challenges for the visually impaired/persons with a print disability presented by the development of new information and communication technologies, including technological publishing and communication platforms that are transnational in nature,

Recognizing the need to seek, receive and impart information and ideas through any media and regardless of frontiers,

Aware that national copyright legislation is territorial in nature, and where activity is undertaken across jurisdictions, uncertainty regarding the legality of activity undermines the development and use of new technologies and services that can potentially improve the lives of the visually impaired/persons with print disabilities,

Recognizing the large number of Members who, to that end, have established exceptions and limitations in their national copyright laws for visually impaired persons/persons with a print disability, yet the continuing shortage of works in ~~special~~accessible formats for such persons,

Recognizing that the preference is for works to be made accessible by rightholders to people with disabilities at publication and that, to the extent that the market is unable to provide appropriate access to works for visually impaired persons/persons with a print disability, it is recognized that alternative measures are needed to improve such access,

Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, and that such a balance must facilitate effective and timely access to works for the benefit of visually impaired persons/persons with a print disability,

Emphasizing the importance and flexibility of the three-step test for limitations and exceptions established in Article 9(2) of the Berne Convention and other international instruments,

Considering the discussions within the WIPO Standing Committee on Copyright and Related Rights on the issue of exceptions and limitations for the benefit of visually impaired persons/persons with a print disability and the various proposals tabled by Member States,

Prompted by a desire to contribute to the implementation of the relevant recommendations of the Development Agenda of the World Intellectual Property Organization,

Taking into account the importance of an international legal instrument/joint recommendation/treaty both to increase the number and range of accessible format works available to visually impaired persons/persons with a print disability in the world and to provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired/have a print disability in order to support their full and effective participation in society on an equal basis with others and to ensure the opportunity to develop and utilize their creative, artistic and intellectual potential, for their own benefit and for the enrichment of society,

Have agreed as follows:

ARTICLE A

DEFINITIONS

For purposes of these provisions

"work" means a work in which copyright subsists, whether published or otherwise made publicly available in any media.

"accessible format copy" means a copy of a work in an alternative manner or form which gives a beneficiary person access to the work, including to permit the person to have access as feasibly and comfortably as a person without a print disability. The accessible format copy must respect the integrity of the original work and be used exclusively by beneficiary persons~~persons with print disabilities~~.¹

[Possible enumeration of different formats.]²

"authorized entity" means a governmental agency, a non-profit entity or an~~non-profit~~ organization³ that has as one of its ~~primary missions~~activities to assist persons with print disabilities by providing them with services relating to education, training, adaptive reading, or information access.

An authorized entity maintains policies and procedures to establish the bona fide nature of persons with print disabilities that they serve.

An authorized entity has the trust of both persons with print disabilities and copyright rights holders. It is understood that to obtain the trust of rightholders and beneficiary persons, it is not necessary to require the prior permission of said rightholders or beneficiary persons.⁴

~~If an authorized entity is a nation-wide network of organizations, then all organizations, institutions, and entities that participate in the network must adhere to these characteristics.~~

"reasonable price for developed countries" means that the accessible format copy of the work is available at a similar or lower price than the price of the work available to persons without print disabilities in that market.

"reasonable price for developing countries" means that the accessible format copy of the work is available at prices that are affordable in that market, taking into account the humanitarian needs of persons with print disabilities.

References to 'copyright' include copyright and any relevant rights related to copyright that are provided by a Contracting Party in compliance with ~~the Rome Convention, the TRIPS Agreement, the WPPT or otherwise~~any applicable international treaties or otherwise.⁵

ARTICLE B

BENEFICIARY PERSONS

A beneficiary person is a person who

is blind;
has a visual impairment or a perceptual or reading disability, such as dyslexia, which cannot be improved by the use of corrective lenses to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or
is unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading.

ARTICLE C

NATIONAL LAW EXCEPTIONS ON ACCESSIBLE FORMAT COPIES

Member State/Contracting Party should/shall provide in their national copyright law for an exception or limitation to the right of reproduction, the right of distribution and the right of making available to the public, as defined in article 8 of the WCT, for beneficiary persons as defined herein.
A Member State/Contracting Party may fulfill Article C (1) by providing an exception or limitation in its national copyright law such that
1. Authorized entities shall be permitted without the authorization of the owner of copyright to make an accessible format copy of a work, supply that accessible format copy or an accessible format copy obtained from another authorized entity to a beneficiary person by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve these objectives, when all of the following conditions are met:
  1. the authorized entity wishing to undertake said activity has lawful access to that work or a copy of that work;
  2. the work is converted to an accessible format copy, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to the beneficiary person;
  3. copies of the work in the accessible format are supplied exclusively to be used by beneficiary persons; and
  4. ~~4. the activity is undertaken on a non-profit basis.~~ ⁶
  5. A beneficiary person or someone acting on his or her behalf may make an accessible format copy of a work for the personal use of the beneficiary person where the beneficiary person has lawful access to that work or a copy of that work.
2. A Member State/Contracting Party may fulfill Article C (1) by providing any other exception or limitation in its national copyright law that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
3. The Member State/Contracting Party may limit said exceptions or limitations to published works which, in the applicable ~~special~~accessible format, cannot be otherwise obtained within a reasonable time and at a reasonable price.
4. It shall be a matter for national law to determine whether exceptions or limitations referred to in this Article are subject to remuneration.
ARTICLE D

CROSS-BORDER EXCHANGE OF ACCESSIBLE FORMAT COPIES
1. Member States/Contracting Parties should/shall provide that if an accessible format copy of a work is made under an exception or limitation or export license in their national law, that accessible format copy may be distributed or made available to a beneficiary person in another Member State/Contracting Party by an authorized entity ~~where that other Member State/Contracting Party would permit that beneficiary person to make or import that accessible copy~~.⁷
2. A Member State/Contracting Party may fulfill Article D(1) by providing an exception or limitation in its national copyright law such that:
  1. Authorized entities shall be permitted without the authorization of the owner of copyright to distribute or make available accessible format copies to authorized entities in other Member States/Contracting Parties for the exclusive use of persons with print disabilities, where such activity is undertaken on a non-profit basis.⁸
  2. Authorized entities shall be permitted without the authorization of the owner of copyright to distribute or make available accessible format copies to persons with print disabilities in other Member States/Contracting Parties where the authorized entity has verified the individual is properly entitled to receive such accessible format copies under that other Member State/Contracting Party's national law.⁹
The Member State/Contracting Party may limit said distribution or making available to published works which, in the applicable ~~special~~accessible format, cannot be otherwise obtained within a reasonable time and at a reasonable price, in the country of importation.
1. Without prejudice to other exceptions to the exclusive rights of authors that are otherwise permitted by the Berne Convention or the TRIPS Agreement, a Member State/Contracting Party may fulfill Article D(1) by providing any other exception or limitation in its national copyright law that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
ARTICLE E

IMPORTATION OF ACCESSIBLE FORMAT COPIES

To the extent that national law would permit a beneficiary person or an authorized entity acting on the beneficiary person’s behalf to make an accessible format copy of a work, the national law should/shall permit a beneficiary person or an authorized entity acting on that person's behalf to import an accessible format copy.¹⁰

ARTICLE F

CIRCUMVENTION OF TECHNOLOGICAL PROTECTION MEASURES

Member States/Contracting Parties should/shall ensure that beneficiaries of the exception provided by Article C have the means to enjoy the exception where technological protection measures have been applied to a work.

In the absence of voluntary measures by rightholders and to the extent that copies of the work in the accessible format are not available commercially at a reasonable price or via authorized entities, Member States/Contracting Parties should/shall take appropriate measures to ensure that beneficiaries of the exception provided by Article C have the means of benefiting from that exception when technical protection measures have been applied to a work, to the extent necessary to benefit from that exception.¹¹

~~ARTICLE G~~

~~RELATIONSHIP WITH CONTRACTS~~

~~Nothing herein shall prevent Member States/Contracting Parties from addressing the relationship of contract law and statutory exceptions and limitations for beneficiary persons.~~

ARTICLE H

RESPECT FOR PRIVACY

In the implementation of these exceptions and limitations, Member States/Contracting Parties should/shall endeavour to protect the privacy of beneficiary persons on an equal basis with others.

[End of document]
1. This change must be replicated everywhere where appropriate. ↩
2. Formats should not be enumerated, since even the disabilities are not enumerated. ↩
3. Non-profit organizations alone cannot cope with the needs of visually impaired people in the developing world. Thus, while it may sound like the ideal, it is impractical given the realities of the situation in the developing world. ↩
4. A "trust" system would make it impossible for developing countries to actualize these provisions. If despite this, copyright infringement happens, then national remedies exist for such infringement. ↩
5. To clarify: what is the purpose of these and not mentioning WCT, Berne, etc.? ↩
6. To be deleted for the same reasons as above. Non-profit basis, if insisted upon, can be retained in Article D(2)(A), but not here. ↩
7. Import law provisions are already there in Article E, and should remain there. In Art. E, it states, “shall permit” import, and here, “would permit”. ↩
8. This instance of "non-profit basis" may be retained if necessary. ↩
9. To clarify: what would such verification require? Would self-certification suffice? ↩
10. It should be clarified, possibly through an agreed statement, that nothing in this article shall derogate from the flexibility provided in Art. 6 of the TRIPS Agreement, which allows for countries to provide international exhaustion.
  
  Thus, if the principle of international exhaustion is in place (i.e., parallel importation is allowed), then importation can be carried out by anyone, and not just by a beneficiary person or an authorized entity. ↩
11. This second paragraph weakens the principle established in the first by adding more conditions. They are almost phrased as alternatives, and the first alternative (paragraph) is the better one. ↩

For more details visit https://cis-india.org/a2k/blogs/cis-analysis-july2011-treaty-print-disabilities

Statement of CIS on the WIPO Broadcast Treaty at the 23rd SCCR

pranesh — 2011-11-30T06:55:43Z

The twenty-third session of the Standing Committee on Copyright and Related Rights is being held in Geneva from November 22, 2011 to December 2, 2011. Pranesh Prakash delivered this statement on a new proposal made by South Africa and Mexico (SCCR/23/6) on a treaty for broadcasters.

The Centre for Internet and Society would like to thank the South African and Mexican delegations for their hard work on this text before us.

We wish to reiterate the statement on principles provided last SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcasting Treaty, and would like to associate ourselves with the statements made today by Public Knowledge, Computer & Communications Industry Association, Knowledge Ecology International, International Federation of Library Associations, and the Canadian Library Association.

Broadcasters Already Protected Online

Broadcasters make two kinds of investments for which they are protected. They invest in infrastructure and they invest in licensing copyrighted works. The first investment is protected by 'broadcast rights', and the latter investment is protected by copyright law.

Broadcasters, being licensees of copyrighted works, generally already have rights of enforcement insofar as their licence is concerned. Therefore there is no need to provide for additional protections with regard to broadcasters in order to enable them to proceed against acts that violate existing copyright laws: they already have those rights by way of licence. This is often forgotten when talking about rights of broadcasters.

The investments to be made in infrastructure in traditional broadcast and in IP-based transmission are very different, even if it is the same 'traditional broadcasters' who are indulging in both. Given that this investment is the basis of additional protection for broadcaster over and above the rights provided to underlying copyright, IP-based transmissions should not be covered in any way even if it is traditional broadcast organizations that are engaged in them.

Providing new and separate rights to large broadcasters for their online transmission, as is currently being done via the provision on 'retransmission' while excluding small webcasters will create a hierarchy and a class distinction without any basis in either principle or existing laws.

Support Countries' Concerns

We also wish to support the amendments suggested by the Indian delegation. As we were reminded by the Indian delegation, the General Assembly mandate of 2007 only extends to traditional broadcasting and to a signal-based approach. In this regard, we also wish to support the question posed by the United States delegation between signal-based and rights-based approaches, as also the strong statement by the Brazilian delegation on the need to ensure that cultural diversity and competition are protected and promoted by any international instrument on broadcasting, and we would like to add 'preservation of a vibrant public domain' as provided by Paragraph 16 of the WIPO Development Agenda.

Thank you, Chair.

For more details visit https://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement

Comment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting

pranesh — 2011-12-01T11:59:45Z

The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.

Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.

And I would like to congratulate Prof. Sirenelli on his excellent presentation.

I would like to flag a few points, though:

One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.
The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights
The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.

I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.

For more details visit https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment

CIS Intervention on Future Work of the WIPO Advisory Committee on Enforcement

pranesh — 2011-12-01T15:30:38Z

The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement (ACE) is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash intervened during the discussion of future work of the ACE with this comment.

Thank you, Chair.

I just wanted to point out that some of the proposals on future work could be worded better to reflect their true meaning. For instance, one of the proposal calls for control of the problem of "parallel import". However, "parallel importation" is actually allowed by both the TRIPS Agreement and by various other instruments such as the Berne Convention? Indeed, calling “parallel import” a problem is like calling "exceptions and limitations" a problem. This is a view that has been firmly rejected here at WIPO, especially post the adoption of the WIPO Development Agenda. This, quite obviously, could not have been the intention of the proposal framers.

Further, the link between some of the proposals and the Development Agenda could be made clearer. It has been established that the Development Agenda is not just something for the Committee on Development and Intellectual Property (CDIP) to consider, but for all committees to make an integral part of their work.

I would also like to underscore the importance of evidence-based policy-making.

Lastly, I would like to mention that a report has already been commissioned by WIPO on intermediary liability, which was written by Prof. Lilian Edwards and was released in a side-event during SCCR 22, in June 2011.

If the ACE is going ahead with a study or an event, I would suggest that the UN Special Rapporteur on Freedom of Expression and Opinion, who in his report to the UN Human Rights Council dealt in some depth with intermediary liability, be involved or invited.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/ace-7-future-work-cis-intervention

Calling Out the BSA on Its BS

pranesh — 2011-09-14T18:16:51Z

The Business Software Alliance (BSA) is trying to pull wool over government officials' eyes by equating software piracy with tax losses. Pranesh Prakash points out how that argument lacks cogency, and that tax losses would be better averted if BSA's constituent companies just decided to pay full taxes in India.

In the past we have covered the Business Software Alliance's lack of rigour in their piracy statistics, and disconnect from their constituent members when it comes to opposing free and open source software. In reaction to the criticism they have received over the years, BSA has finally stopped equating lack of sales with losses. But now, they have started equating software piracy with tax losses.

How IDC thinks tax works

In a report prepared by International Data Corporation (IDC) for the Business Software Alliance (BSA), they note:

Substantial value in form of potential industry and tax revenues is lost to software piracy: The situation in India is not healthy with a software piracy rate of 65% in 2009 (more than six out of ten PC software programs installed in 2009 were not paid for). Only one-third of the overall PC software revenues are captured by the industry incumbents and the rest are lost to software piracy. Most of the unlicensed software use occurs in otherwise legal businesses installing the programs on more PCs than allowed by the licenses they have paid for. Consequently, in 2009, the state exchequer tax receipts loss was roughly US$866 million at the current piracy and employment levels, as the industry lost its otherwise legitimate share of revenues to piracy.

For this to be true, there must be two assumptions that are satisfied. First, those who are pirating software must not spend the money that they save by doing so on any other taxable activity. Second, the companies that would get the money if the software weren't pirated must pay the Indian government taxes. As we'll see, neither of these two assumptions are warranted.

The BSA-IDC report reasons as follows: Pirates don't pay taxes on the illegal software that they sell, so that is tax evasion and consequently a tax loss. It states:

Higher demand for legal software will result in higher flow of license volume through the supply chain, resulting in increase in volume of business transactions. Each transaction adds a certain percentage of the deal or value added to the state exchequer's coffers in the form of indirect tax revenue[...] Increase in demand will also result in increased employment. Consequently, revenues from direct taxes will be increased for the government, as employees join newly created high-paying jobs.

How tax actually works

That reasoning is flawed. The majority of software piracy in India happens through two methods: violation of software licence terms by using the software on more computers than it is licensed for; and pre-loading of illegal software by computer sellers. Those 'computer seller' pirates do not sell the software separately, but bundle it with the computer as an additional service. In other words, they don't charge for it in the first place. So, quite clearly, there is no tax evasion.

Despite there being no tax evasion, there is the possibility of tax loss for the state. That would happen when instead of doing taxable activity A with with their money, they do non-taxable activity B. Putting money in special government bonds instead of spending it on software, for instance, is one such instance. However, that is a strange, unwarranted assumption. People don't always put the money that they don't spend on software into government bonds. It is a much more reasonable assumption that people would spend that money on other consumables, like food or other such tangible commodities.

Lastly, there is the unwarranted assumption that increase in demand for legal software increases employment. In fact, it is a much more reasonable assumption that increase in piracy increases employment in case of developing countries. Printing ("DTP") shops use pirated versions of Photoshop, CorelDraw and InDesign, computer education centres use pirated versions of Microsoft Windows, offices use pirated versions of Microsoft Word and Excel. If these didn't teach their employees the use of pirated software, millions of people would lose their jobs. All of these employees pay direct taxes. There is no analysis in the BSA-IDC report that accounts for this, treating all these millions of people as non-existent for purposes of their analysis.

Increasing tax: Make MNC software companies pay full taxes

Thus, there is no real tax loss to the government if the money that would have been spent on commercial software was instead spent on some other commodity. Indeed, there might even be an increase in tax collection because software companies, including leading ones such as Microsoft, are much more likely to avoid taxes than companies that deal in tangible commodities. There are well-known routes of decreasing tax liability for intangible goods such as software. Software companies normally state that they license software instead of selling it (as this suits them on issues such as customs duties), but when it comes to income tax, they try to paint the transaction as a sale of a product. (Microsoft, for instance claims that its earnings in India are 'business income' and not 'royalties' and hence is exempt under the Double Taxation Avoidance Agreement between India and the USA.) A company that deals with tangible commodities has no such 'licensing vs. sale' loop-hole that they can try to exploit. Further, many software companies are located in special economic zones that are "software exporting zones", and hence get large tax deductions.

In India, for instance, Microsoft is resisting payment of income tax for by routing all licensing to distributors in India through a shell company in Singapore and holding that Microsoft India had no income tax liabilities. Microsoft has been fined Rs. 2 crore because it tried to separate the importing of software into India from the (more valuable) granting of licences to customers and pay only nominal customs duties on the former and under-declaring the value of the latter as zero. From nine Microsoft dealers a total of Rs 255 crore was collected as tax. Of the roughly Rs. 4000 crores loss that the BSA-IDC report claims, around 6% is realizable from just a single tax (customs duties) from 9 companies dealing in the products of one company. If we multiply this by all taxes (income tax included) amongst all the dealers of all the constituent companies of BSA, then the Indian government might recover more from taxes than is supposedly lost to piracy!

Elsewhere around the globe, the 'Double Irish' arrangement, the 'Dutch Sandwich' route and other such are used by MNC software companies to evade taxes. Just as there are tax havens, there are some IPR havens that cater to companies selling/licensing software and other such intangible commodities.

If only these software companies were to stop evading taxes in the countries in which they sell software, then the government's tax collections would automatically increase.

Final idiocies, and conclusion

In the BSA-IDC report, they write: "Assessing the relationship between software piracy rates and UN Human Development Index (a measure of average achievements in a country in three basic dimensions of human development) suggests that countries with greater rates of software piracy tend to have lower levels of economic development. This further strengthens the hypothesis that IP rights (IPR) enforcement increases economic activity.".

This is as sensible as saying "countries with greater rates of industrial espionage (such as France, Germany, and USA) tend to have higher levels of economic development" strengthens the hypothesis that industrial espionage increases economic development. While it is empirically true that most countries with greater rates of software piracy have lower levels of economic development, it is equally true that countries with lower levels of economic development (being countries with poorer populations) have more software piracy. It is equally true that software piracy decreases if the cost of software decreases, as shown by the more carefully-conducted analysis in the Media Piracy in Emerging Economies report.

To use greater software piracy and lower economic development as evidence of the causal link between IPR enforcement and economic activity is to betray absolute ignorance about both economics and logic.

The startlingly poor level of analysis of the BSA-IDC report leaves no question that the conclusions were arrived at independently of the analysis. Such misleading analysis is worse than trash: it is downright dangerous as an instrument of policy setting.

To increase tax receipts, the government may as well start by making BSA's constituent companies pay all the taxes they owe.

For more details visit https://cis-india.org/a2k/blogs/calling-out-the-bsa-on-bs

Photocopying the past

sunil — 2011-09-25T20:06:50Z

There is no single correct position when it comes to intellectual property or IP. In fact, there are at least five correct positions that you could possibly adopt based on who you are — a pro-creator position, a pro-entrepreneur position, a pro-government position, a pro-consumer position and a public interest position.

Therefore, before you progress any further, dear reader, you have to first decide which of the above you are. If you are an average Indian, then you are almost certainly a consumer or a member of the general public. Next, it would only be fair for me to tell you when I am coming from: I work for a policy research organisation that focuses on protecting consumer and public interest in the digital era. Before I proceed any further, also note that not all creators prefer profits to public adulation and therefore creators’ interests are not necessarily always opposed to consumer and public interest.

At this point, popular imagination is captivated by meta-regulation, issues of corruption and transparency. Few seem interested in the configuration details of property regimes that we are all implicated in: tangible property, capital and, in our increasingly dematerialised world, intangible property such as IP or spectrum. Unfortunately the complications of spectrum, banking and IP make our eyes glaze over and there is almost zero attention being paid to the copyright act amendment to be discussed in Parliament this week.

For the government, achieving a compromise is the primary objective, and then, perhaps a distant second, raising taxes. This is not a static compromise, since each generation of new technologies precipitates a new round of negotiations between the stakeholders. So while it is easy to be Anna Hazare, it is difficult to be Kapil Sibal. An optimal compromise position as in the world of capital and tangible property protects the production, circulation and consumption of IP. A sub-optimal position results in practices that are in conflict with policy — anti-competitive behaviour or infringement.

Unfortunately when it comes to evidence-based policy-making, there is little funding for public interest IP research in India and the pockets of the lobbyists of rights-holders are deep. The funded research that they tout claims that government loses significant taxes because of piracy or non-maximalist IP policies. Yet rights-holders, especially multinationals in the software business, are experts at tax avoidance through techniques with names like the “Double Irish” and the “Dutch Sandwich”.

Like any compromise, the latest amendment is a mixed bag for consumers and the general public. With regard to “digital rights management,” — or what consumers’ advocates refer to as “digital restrictions management” — the government has yielded to the TRIPS-plus agenda even though it is not a signatory to the WIPO Internet treaties. And with regard to the exception for the disabled, the Indian exception is both disability- and works-neutral making it much more robust when compared to the treaty for the visually impaired currently being discussed at the WIPO.

However, one particular compromise — the volte-face on Section 2 (m) on parallel imports of books — is particularly distressing for book-lovers and students. As part of the latest amendment, this new section was introduced in 2009. The standing committee report gave the section a thumbs-up, but strangely it has gone missing in the latest version of the bill circulated to the MPs in preparation for the Rajya Sabha debate this Friday.

Section 2 (m) is a provision that would have saved us from the uncertainty created by what some consider flawed jurisprudence around parallel importation of copyrighted works. As the standing committee report on the copyright amendment puts it, “nobody can deny the fact that the interests of students will be best protected if they have access to the latest editions of the books.” To date, I have never met an IIT or IIM graduate untainted by photocopied books. I would claim that the lack of quality education in our country is still at the level of an epidemic. The indigenous publication industry has benefited from our progressive copyright regime.

Wouldn’t it be appropriate to afford them maximum flexibility in a future rife with technological shifts? Are all the books that you wish to read available in the libraries and book shops you have access to? Have you ever been forced to photocopy a book because of time constraints? Would you like to see greater choice via increased free-market competition, and reduced state-sanctioned monopolies and enforcement? Does your definition of human rights include the “right to education” and the the “right to entertainment”? Shouldn’t the disabled in India benefit from the $500 million spent each year making books accessible in the US? And finally, shouldn’t a nation providing leadership to the development agenda at WIPO, walk the talk at home? If your answer to any of these questions is yes, you should demand that people are placed before the profits of foreign publishers.

This article by Sunil Abraham, Executive Director, Centre for Internet and Society was published in the Indian Express on 2 September 2011 in the Indian Express. Please read the original article here.

For more details visit https://cis-india.org/a2k/blogs/photocopying-the-past

Of Jesters, Clowns and Pranksters: YouTube and the Condition of Collaborative Authorship

nishant — 2012-12-14T10:24:05Z

The idea of a single author creating cinematic objects in a well-controlled scheme of support system and production/distribution infrastructure has been fundamentally challenged by the emergence of digital video sharing sites like YouTube, writes Nishant Shah in this peer reviewed essay published in the Journal of Moving Images, Number 8, December 2009.

The idea of the single author creating cinematic objects in a well-controlled scheme of support system and production/distribution infrastructure has been fundamentally challenged by the emergence of digital video sharing sites like YouTube. The recent state of controversies around YouTube, has foregrounded the question of authorship in collaborative conditions. Questions of who owns the particular videos and what is the role that the large communities of authorship play have not been resolved as the debaters have concentrated only on single videos and singular notions of authorship, dismissing the (this paper proposes) collaborators as jesters, clowns and pranksters, without recognizing their contribution to the videos.

Introduction

I shall begin by misquoting and possibly violating copyright regimes by invoking Dostoyevsky, to say that all dissimilar technologies are the same in their own way, but all similar technologies are uniquely different. Every technological innovation, but particularly innovations affecting authorship and the role of the author, brings with it a new set of anxieties and concerns. David Stewart, in his engrossing book on the history of technology and communication, for example, talks about how in the early years of postal service there were debates around who was the author of the mail that was being delivered. Through a particularly fascinating case that looked at a Lord in London holding the post office responsible for some objectionable mail delivered to his daughter, Stewart traces the origins of techno-neutrality and regulation to look upon technology as merely a bearer of knowledge – in this case, the mail – and the original author, this primordial figure that sits and writes or shoots or sings, as the only person upon whom the responsibility and hence also the credit can be placed.

Mark Joffe, in his movie The Man Who Sued God, introduces us to the case of Steve Myers, an ex-lawyer in Australia, who sues God because his boat is struck by lightning and his insurance company refuses to pay, claiming it to be an act of God. By claiming to be God’s representatives on Earth, the Christian churches and the Jewish synagogues are held to be the liable party, putting them in the difficult position of either having to pay out large sums of money, or prove that God does not exist. But more than anything else, it is the attribution of responsibility to one particular, identifiable entity that lies at the centre of the movie. Even in the pre-Internet world, one of the biggest sources of anxieties has been determining authorship and putting into place a knowledge apparatus that reinforces the need for such a condition. The question of authorship, while it surfaces in a number of contexts – copyright infringements, intellectual property right regimes, plagiarism, crediting and referencing industries, etc – is perhaps most interestingly manifest on video sharing social networking sites like YouTube and Myspace.

Rather than addressing what constitutes digital cinema or the future of celluloid, I would instead like to locate the emergence of the idea of authorship, through a historical examination of an ‘old media’. I will be looking at the early history of the book and the print revolution to argue that the condition of authorship that one presumes for the book, and subsequently, through a different trajectory, for cinema, is not something that was inherent to it; and in fact the early history of the book is filled with conflicts around the question of how you could attribute the book as an artefact to one individual author. By examining the conditions that enabled the establishment of the book as a stable object that can be linked to the author, I hope to return us to a different way of thinking about Youtube videos and the debates on authorship that surround it.

YouTube and the question of authorship

The world of YouTube stakeholders can roughly be divided into two camps: People who swear by it and people who swear at it. The camp has arisen mainly because of differences of opinions on who owns a YouTube video and the content therein. The critics of YouTube – largely recording companies and movie studios and distributors – argue that platforms like YouTube are killing their businesses, emptying their coffers, and are a direct threat to the sacred cow of all cultural productions – the livelihood and the integrity of the creative artist. They make claims that a site like YouTube infringes the copyright regimes because videos get published by somebody who has ripped it from another source, and often does no crediting. Also, that the sales of the music or the movies or television serials go down because of such activities.

One of the most recent infamous example that can be cited is the case of the Let’s Go Crazy Dancing video case, were the world literally went crazy. In early February 2007, Stephanie Lenz’s 13-month-old son started dancing. Pushing a walker across her kitchen floor, Holden Lenz started moving to the distinctive beat of a song by Prince, “Let’s Go Crazy.” [1] Lenz wanted her mother to see the film so she did what any citizen of the 21st century would do: She uploaded the file to YouTube and sent her relatives and friends the link. They watched the video scores of times. It was a perfect YouTube moment: a community of laughs around a homemade video, readily shared with anyone who wanted to watch.

Sometime over the next four months, however, someone from Universal Music Group also watched Holden dance. Universal manages the copyrights of Prince. It fired off a letter to YouTube demanding that it remove the unauthorized “performance” of Prince’s music. YouTube, to avoid liability itself, complied. YouTube sent Lenz a notice that it was removing her video. She wondered, “Why?” What had she done wrong? Her questions reached the Electronic Frontier Foundation and then started the battle, where on Lenz’s behalf, the EFF lawyers sent a ‘counter-notice’ to YouTube, that no rights of Universal were violated by Holden’s dancing video. Lenz as the author of the video was concentrating on her son’s dancing and that the presence of Prince’s song was negligible and definitely fair use. Yet Universal’s lawyers insist to this day that sharing this home movie is wilful copyright infringement under the laws of the United States. On their view of the law, she is liable to a fine of up to $150,000 for sharing 29 seconds of Holden dancing. They specifically state that Lenz is not the ‘original’ artist who made the music and thus she is appropriating authorship and violating the rights of the artist – Prince, to be identified as the creator of the song. The notice also informed her that they were unhappy with the ‘clowning’ around of Prince’s music which might offend his fan-base.

The questions which come to the fore are very obvious and not new to the history of legal debates on cinema: What is the content of the video? Who is the author of the video? Who watches the video? What are the intentions of the video? The supporters of the ‘Free as in Beer’ access movements and also of YouTube clearly point out the farcical condition of this battle. As Lawrence Lessig very eloquently points out in his essay on the ‘Defence of Piracy’.

How is it that sensible people, people no doubt educated at some of the best universities and law schools in the country, would come to think it a sane use of corporate resources to threaten the mother of a dancing 13-month-old? What is it that allows these lawyers and executives to take a case like this seriously, to believe there’s some important social or corporate reason to deploy the federal scheme of regulation called copyright to stop the spread of these images and music? “Let’s Go Crazy” indeed![2]

In another instance, which is a competition on YouTube between two videos to reach the coveted “first video to be seen 1 million times” status, brings again these question of the author and the pranksters. Avril Lavigne fans, on the release of her recent Single ‘Girlfriend’, started campaigning to make that video the first to be viewed 1 million times on YouTube. They put it in direct competition with the then most viewed video – ‘History of Dance’ – and started activities that violated the Terms of Service for YouTube. They embedded the videos in many sites and started websites which played the videos automatically. They even created a website which auto reloaded the video every fifteen minutes and encouraged fans to keep the website opened, abusing the power of broad band, while they are browsing, surfing, or even sleeping. The efforts paid off and Avril Lavigne’s ‘Girlfriend’, in July 2008, became the first video to be watched 1 million times in the history of YouTube. One would have thought that such publicity is what a distributor’s wet dreams are made of. However, just after the video reached the 1 million mark and entered the heights of popularity, YouTube received a notice from Times Warner, to remove the video because it was a copyright violation. They also demanded that all the other compilations and samplings which included the song be removed from YouTube. The supporters of the move, condemned the Lavigne fans as ‘pranksters’ or ‘jesters’ who were in for the cheap publicity, because they were not really creators of the video or the authors. In a startling Op-Ed titled ‘How Avril Lavigne Killed YouTube’ in the New York Times, a spokesperson for Times Warner suggested.

This is not respectable fan behaviour. A fan is somebody who loves and worships the author and not somebody who pretends to be the author. The avrilelavignebandaid group just turned out to be a group of pirates who passed off Lavigne’s video as their own and went on to promote it, forgetting the fact that they were using a democratic platform like YouTube for activities which can only be called theft!

Predictably, the debate on the question of authorship takes place in a rather somber tone, whether it is the zealous claims of monopoly of production and authorship that the established industries claim for themselves, or the passionate defenses of the YouTubeians. What remains constant through the entire process is the fact that the idea of a singular, identifiable author remains stable and unchallenged. I would like to take a slightly different track here, and try and see how we can think the question of the “production of the author” by revisiting the history of the book and of early print culture, and look at the manner in which the idea of the author emerges.

There is often an unstated assumption about the book as authored by a single person and authorship is spoken of in a value-neutral and ahistorical manner. It would be useful to situate the condition of authorship within a historical moment, where authorship is not seen to be an apriori condition but a constructed one, and one whose history is located in specific technological changes. The technology of print and paper brought about a set of questions around the question of authorship, and in the same way, the domain of Internet video sharing and collaborative authorship raises a set of questions and concerns.

The construction of author/ity

In many ways, the debate on authorship and knowledge is similar to the older debate in philosophy between body and self. Critics of self, such as Foucault, demonstrate that the notion of the self has often stemmed from very particular experiences in the Christian West, which were then posited as universal experiences. However, doing away with the notion of the self does not do away with the question of the body. In fact, Foucault goes on to explore the technologies of the self and how it informs our understanding of the body. In a similar vein, while the proponents of the Web 2.0 revolution (sometimes unknown to themselves, echoing debates that happened in print about a 100 years ago) announce either the death of the author or the availability of open licensing, fail to recognize that the question of authorship (and hence authority) are rooted both in particular practices as well as in technological forms. Hence the debates take familiar shapes: author versus pirate, digital versus celluloid, collaborative versus single author, etc.

It is especially when posing the question of authorship in absolute terms that the cultural producers/consumers on YouTube get reduced to pranksters, jesters or clowns. The debate also excludes the temporal framework of the debate and forget that the Internet is still a work in progress. Even though an Internet year is akin to seven pre-digital years, and time is now experienced in accelerated modes, it is necessary to realize that the domain of collaborative online sharing and production of videos is a relatively new one.

It may be more useful to think of the post-celluloid world as an extremely ambiguous and fluid period, undoubtedly marked by immense possibilities, but we have not reached any settled phase yet. So if we are to make comparisons, then it is more useful to compare the contemporary period with another moment in history, and the emergence of a cultural form other than cinema, which was marked by an equal fluidity. It is here that I go to the early history of print culture or ‘print in the making’[3] and the conflicts over the question of authorship, to demonstrate that the condition of authorship question is an important one, but it is not a question that is unique to YouTube or the Internet. And an examination of the conditions under which authorship came to be established may help us get over our anxieties about authorship, and better understand it with certain lightness – through pranks, jests and clowning around.

What’s in a name? – The author and the book

For us to understand the idea of print in the making, we need to understand some of the practices that preceded the idea of print. They also enable us to understand the specific nature of the disputes around the question of authorship, and more importantly rethink disputes over authorship as productive disputes. Lawrence Liang in his ‘A brief history of the Internet in 13th and 14th Century’ takes up the example of Chaucer, the father of English poetry. He demonstrates, through different readings, “how the structure and the form of the Canterbury Tales reflects, interestingly, the question of approaches to the idea of authorship as well as the conditions of the production of the Canterbury Tales itself.” Liang looks at the manuscript cultures and the ways in which authorship and rights were understood.

Borrowing from Mark Rose, Liang shows how, in the Middle Ages, the owner of a manuscript was understood to possess the right to grant permission to copy it, and this was a right that could be exploited, as it was, for example, by those monasteries that regularly charged a fee for permission to copy one of their books. This was somewhat similar to copyright royalty with the crucial difference that the book-owner’s property was not a right in the text as such but in the manuscript as a physical object made of ink and parchment. The value provided by the monastery and the reason for their charging for their copy fee did not emerge just from the existence of the copy alone, but also from the fact that each monastery also had their unique elements in the form of the annotations, the commentary, corrections, which only the particular monastery’s copy might contain. The very act of copying and possession made you the author of that text and also the owner of the book.[4] The author was not only the reclusive solitary figure that coins the first word but the various scribes, writers, annotators and litterateurs who offered changes, as well as helped in distribution and copying.[5]

So, while the popular account of preprint cultures is of slavish copying by scribes, the story turns out to be slightly more complicated. Acting as annotators, compilers, and correctors, medieval book owners and scribes actively shaped the texts they read. For example, they might choose to leave out some of the Canterbury Tales, or contribute one of their own. They might correct Chaucer’s versification every now and then. They might produce whole new drafts of Chaucer by combining one or more of his published versions with others. And these were all legitimate, acceptable and engaged forms of authorship. While this activity of average or amateur readers differs in scale and quality from Chaucer’s work, it opens us to new questions of the relationship between author, text, and reader in the Middle Ages, and also what it may mean to understand contemporary practices of knowledge and cultural creation.

Scribes and readers responded to Chaucer, Langland, and others, not by slavishly copying, canonizing, or passively receiving their texts, but by reworking them as creative readers. In doing so, they continue and contribute to the great layers of intertextual conversation that made the work of these now canonical authors relevant, interesting, and, fundamentally, possible. Similar debates surround the attribution of authorship to William Shakespeare for his work. Literary historians have periodically made claims that Shakespeare’s plays were written by the then court poet Ben Jonson, that Shakespeare’s plays were written by Christopher Marlowe, who is considered to be his arch enemy, that Shakespeare’s plays were written by another man named Shakespeare, and not the Shakespeare we think we know. At the basis of these arguments was the idea that the plays were designed not to be written but be performed and that in the lively rendering of the play, between different actors and producers, the original text changed. Interestingly, the Shakespearean technique of ‘asides’ and ‘taking the audience into confidence’ was actually a way of inviting the audience to not only receive the story but to read it differently, and edit it with their response to it.

This invitation was accepted by late Elizabethans who took great pleasure in seeing the same play multiple times to see how it has changed in the performance. Moreover, as multiple copies of the same manuscript started appearing in the living public, along with the actors and the producers, the readers also took great pleasure in creating copies of the takes that drastically cut, expand, edit and otherwise Shakespeare’s plays.[6]

This activity goes beyond the mechanics of audience reception and looks at the plays as a collaborative effort which gets glossed over in the making of the authoritative folios which looked upon all such interventions as anomalies to the text. Before the fixity of text, there was a possibility to think of the text not as a finished product but a work in progress that elicits new responses, meanings and forms through its engagement with the audience. Moreover, the audience, in their rights of consumption, also seemed to possess the right to edit, change and circulate the text. They were the original jesters, pranksters and clowns, who, in their playful response to the text, constructed it to respond to their contexts and traditions. This sounds a lot like the debates we are experiencing on YouTube videos where the readers respond in kind to the poetics of reading and composing within which the YouTube videos operate.

Conclusion

Thus rather than speaking about authorship as something that is intrinsic to either a particular mode of authorship or intrinsic to any technological form, it might be more useful instead to consider the variety of knowledge apparatuses which come into play to establish its authority. In the case for the history of the book, it was clear that the establishment of authorship depended on the arrangements, classifications and kinds of assemblage that make it possible, maintain it as well as critique it. The conventions, for instance, by which the title and author of a work are identified play very specific functions in preparing for knowledge, as do the several kinds of documentation, attribution, citation and copyright.

The preconditions for authorship cannot easily be made into the object that we identify as author. It is a matter of making evident (making known) the structures of authorship which emerge in ways that provide definitive proof of the imperfectability and ambiguity of the authorial position. To speak of the productive nature of conflicts over authorship is then to recognize that any author – either exalted or dismissed - is constructed in a condition of potential collaboration and revision. The question thus centres on how we use the notion of authorship, how we bring it to light and mobilize it today to understand cultural forms differently. The way the authorship debates take place, there is almost a theological devotion to an exalted idea of author, without a consideration of the apparatus that was established to construct that condition.

The point is not to do away with the question of the author or construct another catch-all retainer that accepts all forms of engagement as authorship, but to recognize it not as something that is intrinsic or a given but something that is always transient, and to locate it, in the case of digital cinema, within specific practices and technologies. To return to the question of YouTube videos and the future of celluloid image; we are now faced with new questions about authorship and the very form that the digital cinema embodies: If the image itself is no longer made to bear the burden of meaning and intention, can we locate new forms of authorship – sometimes in incidental intertextuality, sometimes in creating conditions (as is in the case of DVDs or digital video sharing sites) narratives, meanings, interpretations and paraphernalia that simultaneously re-emphasize the sacredness of the image while deconstructing the apparatus that establishes a fixity of authorship over that image? Can we look at not only novel forms of interaction and consumption of the celluloid image but at a playful engagement with the image to create a galaxy of responses – sometimes as reciprocal videos, often through comments, embedding mechanisms, using the video not as an object unto itself but as a form of complex referencing and citation to a larger community of artists and authors?

The future of celluloid, especially if we are locating it in the realm of the Digital Moving Objects of Web 2.0 technologies, is going to have debates which were relevant also to the making of the book. However, this is not to say that the challenges faced and the problematic that emerge are redundant. Indeed, the celluloid frame and its overpowering capacity to incorporate technology, content, response and remixes, to produce the spectacle of watching, posit certain challenges to the Web 2.0 celebrations while simultaneously expanding its own scope of production. YouTube debates around infantile abuse of video/cinema technologies to make dancing babies and furry animals popular need to be read as symptomatic of a much larger question of authorship, authority and the conditions of cultural production rather than signalling the death of celluloid. An escape from the authority question also allows for an escape from the celluloid-digital binary and posits a more fruitful engagement in looking at how celluloid technologies (and the constellation of factors therewith) inform our understanding and analysis of the DMIs that are slowly gaining popularity.

This research was originally published in the Journal of Moving Images.

See the research paper in Academia.edu.

References

[1].Holden Lenz’s YouTube debut, that probably made him the most popular baby on the Internet is still available for viewing at <http://www.youtube.com/watch?v=N1KfJHFWlhQ> retrieved 12:14 a.m. 22nd January 2010.

[2].The essay is available for open access at <http://online.wsj.com/article/SB122367645363324303.html>

[3].I am grateful to Lawrence Liang for this methodological framework where he looks at the emergence of Wikipedia and the pre-print cultures, to look at the similarities and differences between the two. “A Brief History of the Internet in the 13th and 14th Century”. Forthcoming 2010.

[4].See Alberto Manguel’s A History of Reading. 1990. New York: Penguin Books.

[5].Daniel Wolf, in Reading History in Early Modern England. 2005. Cambridge, UK: Cambridge University Press, explains in great detail how the reader as well as the author were imagined, constructed and recognized in the early days of print.

[6].See Molly Abel Travis’s comprehensive account of the debates in Construction of Readers in the Twentieth Century. 1998. Illinois, Chicago: Southern Illinois University Press.

For more details visit https://cis-india.org/a2k/blogs/jesters-clowns-pranksters

pranesh — 2013-11-12T14:13:04Z

There are some welcome provisions in the Copyright (Amendment) Bill 2012, and some worrisome provisions. Pranesh Prakash examines five positive changes, four negative ones, and notes the several missed opportunities. The larger concern, though, is that many important issues have not been addressed by these amendments, and how copyright policy is made without evidence and often out of touch with contemporary realities of the digital era.

The Copyright (Amendment) Bill 2012 has been passed by both Houses of Parliament, and will become law as soon as the President gives her assent and it is published in the Gazette of India. While we celebrate the passage of some progressive amendments to the Copyright Act, 1957 — including an excellent exception for persons with disabilities — we must keep in mind that there are some regressive amendments as well. In this blog post, I will try to highlight those provisions of the amendment that have not received much public attention (unlike the issue of lyricists’ and composers’ ‘right to royalty’).

Welcome Changes

Provisions for Persons with Disabilities

India now has amongst the most progressive exception for persons with disabilities, alongside countries like Chile. Under the amendments, sections 51(1)(zb) and 31B carve out exceptions and limitations for persons with disabilities. Earlier s.52(1)(zb) dealt only with formats that were “special designed only for the use of persons suffering from visual, aural, or other disabilities”. Thanks to a campaign mounted by disability rights groups and public interest groups such as CIS, it now covers “any accessible format”. Section 52(1)(zb) allows any person to facilitate access by persons with disabilities to copyrighted works without any payment of compensation to the copyright holder, and any organization working the benefit of persons with disabilities to do so as long as it is done on a non-profit basis and with reasonable steps being taken to prevent entry of reproductions of the copyrighted work into the mainstream. Even for-profit businesses are allowed to do so if they obtain a compulsory licence on a work-by-work basis, and pay the royalties fixed by the Copyright Board. The onerousness of this provision puts its utility into question, and this won’t disappear unless the expression “work” in s.31B is read to include a class of works.

Given that the Delhi High Court has — wrongly and per incuriam, since it did not refer to s.14(a)(ii) as it was amended in 1994 — held parallel importation to be barred by the Copyright Act, it was important for Parliament to clarify that the Copyright Act in fact follows international exhaustion. Without this, even if any person can facilitate access for persons with disabilities to copyrighted works, those works are restricted to those that are circulated in India. Given that not many books are converted into accessible formats in India (not to mention the costs of doing so), and given the much larger budgets for book conversion in the developed world, this is truly restrictive.

Extension of Fair Dealing to All Works

The law earlier dealt with fair dealing rights with regard to “literary, dramatic, musical or artistic works”. Now it covers all works (except software), in effect covering sound recordings and video as well. This will help make personal copies of songs and films, to make copies for research, to use film clips in classrooms, etc.

Creative Commons, Open Licensing Get a Boost

The little-known s.21 of the Copyright Act, which deals with the right of authors to relinquish copyright, has been amended. While earlier one could only relinquish parts of one’s copyright by submitting a form to the Registrar of Copyrights, now a simple public notice suffices. Additionally, s.30 of the Act, which required licences to be in writing and signed, now only requires it to be in writing. This puts Creative Commons, the GNU Public Licence, and other open licensing models, on a much surer footing in India.

Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too

Everywhere that the word “hire” occurs (except s.51, curiously), the word “commercial rental” has been substituted. This has been done, seemingly, to bring India in conformance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The welcome side-effect of this is that the legality of lending by non-profit public libraries has been clarified. The amendment states:

"2(1)(fa) “commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution."

Even after this, the overwhelming majority of the ‘video lending libraries’ that you see in Indian cities and towns continue to remain illegal.

Another welcome provision is the amended s.52(1)(n), which now allows “non-commercial public libraries” to store an electronic copy of a work if it already has a physical copy of the work. However, given that this provision says that the storage shall be “for preservation”, it seems limited. However, libraries might be able to use this — in conjunction with the fact that under s.14 of the Copyright Act lending rights of authors is limited to “commercial rental” and s.51(b) only covers lending of “infringing copies” — to argue that they can legally scan and lend electronic copies of works in the same manner that they lend physical copies. Whether this argument would succeed is unclear. Thus, India has not boldly gone where the European Commission is treading with talks of a European Digital Library Project, or where scholars in the US are headed with the Digital Public Library of America. But we might have gone there quietly. Thus, this amendment might help foster an Indian Internet Archive, or help spread the idea of the Open Library in India.

On a final note, different phrases are used to refer to libraries in the amendment. In s.2(1)(fa), it talks about "non-profit library"; in s.52(1)(n) and (o), it refers to "non-commercial public library"; and in s.52(1)(zb), it talks of "library or archives", but s.52(1)(zb) also requires that the works be made available on a "non-profit basis". The differentiation, if any, that is sought to be drawn between these is unclear.

Limited Protection to Some Internet Intermediaries

There are two new provisions, s.52(1)(b) and 52(1)(c), which provide some degree of protection to 'transient or incidental' storage of a work or performance. Section 52(1)(b) allows for "the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public", hence applying primarily to Internet Service Providers (ISPs), VPN providers, etc. Section 52(1)(c) allows for "transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy". This seems to make it applicable primarily to search engines, with other kinds of online services being covered or not covered depending on one’s interpretation of the word 'incidental'.

Compulsory Licensing Now Applies to Foreign Works Also

Sections 31 ("compulsory licence in works withheld from public") and 31A ("compulsory licence in unpublished Indian works") used to apply to Indian works. Now they apply to all works, whether Indian or not (and now s.31A is about "compulsory licence in unpublished or published works", mainly orphan works). This is a welcome amendment, making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. Given how onerous our compulsory licensing sections are, especially sections 32 and 32A (which deal with translations, and with literary, scientific or artistic works), it is not a surprise that they have not been used even once. However, given the modifications to s.31 and s.31A, we might just see those starting to be used by publishers, and not just radio broadcasters.

Worrisome Changes

Term of Copyright for Photographs Nearly Doubled

The term of copyright for photographs has now gone from sixty years from publication to sixty years from the death of the photographer. This would mean that copyright in a photograph clicked today (2012) by a 20 year old who dies at the 80 will only expire on January 1, 2133. This applies not only to artistic photographs, to all photographs because copyright is an opt-out system, not an opt-in system. Quite obviously, most photoshopping is illegal under copyright law.

This has two problems. First, there was no case made out for why this term needed to be increased. No socio-economic report was commissioned on the effects of such a term increase. This clause was not even examined by the Parliamentary Standing Committee. While the WCT requires a ‘life + 50′ years term for photographs, we are not signatories to the WCT, and hence have no obligation to enforce this. We are signatories to the Berne Convention and the TRIPS Agreement, which require a copyright term of 25 years for photographs. Instead, we have gone even above the WCT requirement and provide a life + 60 years term.

The second problem is that it is easier to say when a photograph was published than to say who the photographer was and when that photographer died. Even when you are the subject of a photograph, the copyright in the photograph belongs to the photographer. Unless a photograph was made under commission or the photographer assigned copyright to you, you do not own the copyright in the photographs. (Thanks to Bipin Aspatwar, for pointing out a mistake in an earlier version, with "employment" and "commission" being treated differently.) This will most definitely harm projects like Wikipedia, and other projects that aim at archiving and making historical photographs available publicly, since it is difficult to say whether the copyright in a photograph still persists.

Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals

The present amendments have brought about the following changes, which make it more difficult to produce cover versions:

Time period after which a cover version can be made has increased from 2 years to 5 years.
Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.
Payment has to be made in advance, and for a minimum of 50000 copies. This can be lowered by Copyright Board having regard to unpopular dialects.
While earlier it was prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now cover versions are not allowed to "contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated".
All cover versions must state that they are cover versions.
No alterations are allowed from the original song, and alteration is qualified as ‘alteration in the literary or musical work’. So no imaginative covers in which the lyrics are changed or in which the music is reworked are allowed without the copyright owners’ permission. Only note-for-note and word-for-word covers are allowed.
Alterations were allowed if they were "reasonably necessary for the adaptation of the work" now they are only allowed if it is "technically necessary for the purpose of making of the sound recording".

This ignores present-day realities. Kolaveri Di was covered numerous times without permission, and each one of those illegal acts helped spread its popularity. 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. Film producers and music companies want both the audience reach that comes from less stringent copyright laws (and things like cover versions), as well as the ability to prosecute that same behaviour at will. It is indeed ironic that T-Series, the company that broke HMV’s stranglehold over the Indian recording market thanks to cover versions, is itself one of the main movers behind ever-more stringent copyright laws.

Digital Locks Now Provided Legal Protection Without Accountability

As I have covered the issue of Technological Protection Measures (TPM) and Rights Management Information (RMI), which are ‘digital locks’ also known as Digital Rights Management (DRM), in great detail earlier, I won’t repeat the arguments at length. Very briefly:

It is unclear that anyone has been demanding the grant of legal protection to DRMs in India, and We have no obligation under any international treaties to do so. It is not clear how DRM will help authors and artists, but it is clear how it will harm users.
While the TPM and RMI provisions are much more balanced than the equivalent provisions in laws like the US’s Digital Millennium Copyright Act (DMC), that isn’t saying much. Importantly, while users are given certain rights to break the digital locks, they are helpless if they aren’t also provided the technological means of doing so. Simply put: music and movie companies have rights to place digital locks, and under some limited circumstances users have the right to break them. But if the locks are difficult to break, the users have no choice but to live with the lock, despite having a legal right.

Removal of Parallel Importation

In past blog posts I have covered why allowing parallel imports makes sense in India. And as explained above, the Delhi High Court acted per incuriam when holding that the Copyright Act does not allow parallel importation. The Copyright Act only prohibits import of infringing copies of a work, and a copy of a book that has been legally sold in a foreign country is not an “infringing copy”. The government was set to introduce a provision making it clear that parallel importation was allowed. The Parliamentary Standing Committee heard objections to this proposal from a foreign publishers’ association, but decided to recommend the retention of the clause. Still, due to pressure from a few publishing companies whose business relies on monopolies over importation of works into India, the government has decided to delete the provision. However, thankfully, the HRD Minister, Kapil Sibal, has assured both houses of Parliament that he will move a further amendment if an NCAER report he has commissioned (which will be out by August or September) recommends the introduction of parallel imports.

Expansion of Moral Rights Without Safeguards

Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without adequate safeguards. The changes might allow the legal heir of an author, artist, etc., to object to ‘distortion, mutilation, modification, or other act’ of her ancestors work even when the ancestor might not have. By this amendment, this right continues in perpetuity, even after the original creator dies and even after the work enters into the public domain. It seems Indian policymakers had not heard of Stephen Joyce, the grandson of James Joyce, who has “brought numerous lawsuits or threats of legal action against scholars, biographers and artists attempting to quote from Joyce’s literary work or personal correspondence”. Quoting from his Wikipedia page:

In 2004, Stephen threatened legal action against the Irish government when the Rejoyce Dublin 2004 festival proposed public reading of excerpts of Ulysses on Bloomsday. In 1988 Stephen Joyce burnt a collection of letters written by Lucia Joyce, his aunt. In 1989 he forced Brenda Maddox to delete a postscript concerning Lucia from her biography Nora: The Real Life of Molly Bloom. After 1995 Stephen announced no permissions would be granted to quote from his grandfather’s work. Libraries holding letters by Joyce were unable to show them without permission. Versions of his work online were disallowed. Stephen claimed to be protecting his grandfather’s and families reputation, but would sometimes grant permission to use material in exchange for fees that were often "extortionate".

Because in countries like the UK and Canada the works of James Joyce are now in the public domain, Stephen Joyce can no longer restrict apply such conditions. However now, in India, despite James Joyce’s works being in the public domain, Stephen Joyce’s indefensible demands may well carry legal weight.

Backdoor Censorship

As noted above, the provision that safeguard Internet intermediaries (like search engines) is very limited. However, that provision has an extensive removal provision:

Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;

There are two things to be noted here. First, that without proof (or negative consequences for false complaints) the service provider is mandated to prevent access to the copy for 21 day. Second, after the elapsing of 21 days, the service provider may 'put back' the content, but is not mandated to do so. This would allow people to file multiple frivolous complaints against any kind of material, even falsely (since there is no penalty for false compalaints), and keep some material permanently censored.

Missed Opportunities

Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities

The following important changes should have been made by the government, but haven’t. While on some issues the Standing Committee has gone beyond the proposed amendments, it has not touched upon any of the following, which we believe are very important changes that are required to be made.

Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.
Fair dealing guidelines: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions, but would act as a more general framework for those cases which are not covered by the specific exceptions.
Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection could simply allow for “the reproduction, communication to the public, or publication of any government work” as being non-infringing uses.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled. Importantly, after the terrible judgment passed by Justice Manmohan Singh of the Delhi High Court in the Super Cassettes v. Myspace case, any website hosting user-generated content is vulnerable to payment of hefty damages even if it removes content speedily on the basis of complaints.

Amendments Not Examined

For the sake of brevity, I have not examined the major changes that have been made with regard to copyright societies, lyricists and composers, and statutory licensing for broadcasters, all of which have received considerable attention by copyright experts elsewhere, nor have I examined many minor amendments.

A Note on the Parliamentary Process

Much of the discussions around the Copyright Act have been around the rights of composers and lyricists vis-à-vis producers. As this has been covered elsewhere, I won’t comment much on it, other than to say that it is quite unfortunate that the trees are lost for the forest. It is indeed a good thing that lyricists and composers are being provided additional protection against producers who are usually in a more advantageous bargaining position. This fact came out well in both houses of Parliament during the debate on the Copyright Bill.

However, the mechanism of providing this protection — by preventing assignment of “the right to receive royalties”, though the “right to receive royalties” is never mentioned as a separate right anywhere else in the Copyright Act — was not critically examined by any of the MPs who spoke. What about the unintended consequences of such an amendment? Might this not lead to new contracts where instead of lump-sums, lyricists and music composers might instead be asked to bear the risk of not earning anything at all unless the film is profitable? What about a situation where a producer asks a lyricist to first assign all rights (including royalty rights) to her heirs and then enters into a contract with those heirs? The law, unfortunately at times, revolves around words used by the legislature and not just the intent of the legislature. While one cannot predict which way the amendment will go, one would have expected better discussions around this in Parliament.

Much of the discussion (in both the Rajya Sabha and the Lok Sabha) was rhetoric about the wonders of famous Indian songwriters and music composers and the abject penury in which some not-so-famous ones live, and there was very little discussion about the actual merits of the content of the Bill in terms of how this problem will be overcome. A few MPs did deal with issues of substance. Some asked the HRD Minister tough questions about the Statement of Objects and Reasons noting that amendments have been brought about to comply with the WCT and WPPT which were “adopted … by consensus”, even though this is false as India is not a signatory to the WCT and WPPT. MP P. Rajeeve further raised the issue of parallel imports and that of there being no public demand for including TPM in the Act, but that being a reaction to the US’s flawed Special 301 reports. Many, however, spoke about issues such as the non-award of the Bharat Ratna to Bhupen Hazarika, about the need to tackle plagiarism, and how the real wealth of a country is not material wealth but intellectual wealth.

This preponderance of rhetoric over content is not new when it comes to copyright policy in India. In 1991, when an amendment was presented to increase term of copyright in all works by ten years (from expiring 50 years from the author’s death to 60 years post-mortem), the vast majority of the Parliamentarians who stood up to speak on the issue waxed eloquent about the greatness of Rabindranath Tagore (whose works were about to lapse into the public domain), and how we must protect his works. Little did they reflect that extending copyright — for all works, whether by Tagore or not — will not help ‘protect’ the great Bengali artist, but would only make his (and all) works costlier for 10 additional years. Good-quality and cheaper editions of Tagore’s works are more easily available post-2001 (when his copyright finally lapsed) than before, since companies like Rupa could produce cheap editions without seeking a licence from Visva Bharati. And last I checked Tagore’s works have not been sullied by them having passed into the public domain in 2001.

Further, one could find outright mistakes in the assertions of Parliamentarians. In both Houses, DMK MPs raised objections with regard to parallel importation being allowed in the Bill — only in the version of the Bill they were debating, parallel importation was not being allowed. One MP stated that “statutory licensing provisions like these are not found anywhere else in the world”. This is incorrect, given that there are extensive statutory licensing provision in countries like the United States, covering a variety of situations, from transmission of sound recordings over Internet radio to secondary transmission of the over-the-air programming.

Unfortunately, though that MP did not raise this issue, there is a larger problem that underlies copyright policymaking in India, and that is the fact that there is no impartial evidence gathered and no proper studies that are done before making of policies. We have no equivalent of the Hargreaves Report or the Gowers Report, or the studies by the Productivity Council in Australia or the New Zealand government study of parallel importation.

There was no economic analysis conducted of the effect of the increase in copyright term for photographs. We have evidence from elsewhere that copyright terms are already too long, and all increases in term are what economists refer to as deadweight losses. There is no justification whatsoever for increasing term of copyright for photographs, since India is not even a signatory to the WCT (which requires this term increase). In fact, we have lost precious negotiation space internationally since in bilateral trade agreements we have been asked to bring our laws in compliance with the WCT, and we have asked for other conditions in return. By unilaterally bringing ourselves in compliance with WCT, we have lost important bargaining power.

Users and Smaller Creators Left Out of Discussions

Thankfully, the Parliamentary Standing Committee went into these minutiae in greater detail. Though, as I have noted elsewhere, the Parliamentary Standing Committee did not invite any non-industry groups for deposition before it, other than the disability rights groups which had campaigned really hard. So while changes that would affect libraries were included, not a single librarian was called by the Standing Committee. Despite comments having been submitted to the Standing Committee on behalf of 22 civil society organizations, none of those organizations were asked to depose. Importantly, non-industry users of copyrighted materials — consumers, historians, teachers, students, documentary film-makers, RTI activists, independent publishers, and people like you and I — are not seen as legitimate interested parties in the copyright debate. This is amply clear from the the fact that only one MP each in the two houses of Parliament raised the issue of users’ rights at all.

Concluding Thoughts

What stands out most from this process of amendment of the copyright law, which has been going on since 2006, is how out-of-touch the law is with current cultural practices. Most instances of photoshopping are illegal. Goodbye Lolcats. Cover versions (for which payments have to be made) have to wait for five years. Goodbye Kolaveri Di. Do you own the jokes you e-mail to others, and have you taken licences for quoting older e-mails in your replies? Goodbye e-mail. The strict laws of copyright, with a limited set of exceptions, just do not fit the digital era where everything digital transaction results in a bytes being copied. We need to take a much more thoughtful approach to rationalizing copyright: introduction of general fair dealing guidelines, reduction of copyright term, decriminalization of non-commercial infringement, and other such measures. If we don’t take such measures soon, we will all have to be prepared to be treated as criminals for all our lives. Breaking copyright law shouldn’t be as easy as breathing, yet thanks to outdated laws, it is.

This was reposted in infojustice.org on May 25, 2012

For more details visit https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

CIS's Statement at SCCR 24 on the Treaty for the Visually Impaired

pranesh — 2012-07-22T12:01:28Z

This was the statement read out by Pranesh Prakash at the 24th meeting of the WIPO Standing Committee for Copyright and Related Rights in Geneva, on Friday, July 20, 2012.

Thank you, Mr. Chairman.

I would like to associate CIS with the statements made by the WBU, eIFL, IFLA, KEI, ISOC, and CLA.

We NGOs been making statements at SCCR on this the topic of a treaty for the reading-disabled since 2009 now.

In this room there are a number of organizations that work with and for persons with disabilities which come here to Geneva, SCCR after SCCR. They do not come here to watch the enactment of an elaborate ritual, but to seek solutions for the very real knowledge drought that is being faced by the reading-disabled everywhere, and particularly in developing countries.

The way work on this treaty — or rather this binding-or-non-binding international instrument — has been stalled by some member states is a matter of shame. In India our Parliament recently passed an amendment to our copyright law that grants persons with disabilities, and those who are working for them, a strong yet simply-worded right to have equal access to copyrighted works as sighted persons.

An instrument that lays down detailed guidelines on rules and procedures to be followed by authorized entities will not work. An instrument that subjects the enjoyment of fundamental freedoms by persons with visual impairments to market forces and bureaucratic practices will not work.

Importantly, an instrument that ignores realities of the world: that the vast majority of persons with visual impairment live in developing countries just will not work.

I implore the delegations here to keep up the constructive spirit I have seen most of them display in the past two days, and ensure that the 2012 General Assembly convenes a Diplomatic Conference on this topic.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-treaty-visually-impaired

Centre for Internet and Society

Why Parallel Importation of Books Should Be Allowed

The amendment

What is parallel importation?

Harms on existing books of not allowing parallel importation

Benefits of parallel importation

Dismantling distribution monopoly rights

Helping book publishers

Helping libraries and the print-disabled

Helping all consumers

Rebutting objections

1. Authors' won't lose out on royalties

2. Remaindered books are in publishers' control

3. Dumping of books should be tackled separately

4. Non-printing of low-priced editions for India because of "unsecure" market won't happen

5. Rhetoric flourish and the law: Open and closed markets

Standing Committee consultations

Lack of wide consultation

Publishers were represented

Libraries, students, consumers were not represented

Department's and Standing Committee's reasoning

Conclusion

Exhaustion: Imports, Exports and the Doctrine of First Sale in Indian Copyright Law

Can foreign works be copyrighted works?

Import of copyrighted works

Judicial history on importation

The Penguin case [2]

Privity of contract

Doctrine of first sale/exhaustion

1994 Amendment to the Act

Eurokids case[5]

Warner Bros. case [6]

Export of copyrighted works

Amendment to Section 2(m)

Conclusion

Notes

Pirates, Plagiarisers, Publishers

Student ‘research’ in Law Schools in India

‘Originality’ is only a special effect of reception

Conclusion

Notes

Also see these:

Comments to the Ministry on WIPO Broadcast Treaty (March 2011)

Comments on the non-paper for the WIPO Broadcast Treaty by the Centre for Internet and Society

Article 3

Term of Protection of Signals

Limitations and Exceptions

Protection of Signal and Retransmission

Other comments

Article 7

Article 4

Article 5

Govt for Legalising Parallel Import of Copyright Works; Publishers Oppose

Copyright Amendment Bill in Parliament

CIS-TWN Analysis of WIPO Treaty for the Print Disabled (SCCR/22/15)

SCCR/22/15

PREAMBLE

ARTICLE A

DEFINITIONS

ARTICLE B

BENEFICIARY PERSONS

ARTICLE C

NATIONAL LAW EXCEPTIONS ON ACCESSIBLE FORMAT COPIES

ARTICLE D

CROSS-BORDER EXCHANGE OF ACCESSIBLE FORMAT COPIES

ARTICLE E

IMPORTATION OF ACCESSIBLE FORMAT COPIES

ARTICLE F

CIRCUMVENTION OF TECHNOLOGICAL PROTECTION MEASURES

ARTICLE G

RELATIONSHIP WITH CONTRACTS

ARTICLE H

RESPECT FOR PRIVACY

Statement of CIS on the WIPO Broadcast Treaty at the 23rd SCCR

Broadcasters Already Protected Online

Support Countries' Concerns

Comment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting

CIS Intervention on Future Work of the WIPO Advisory Committee on Enforcement

Calling Out the BSA on Its BS

How IDC thinks tax works