Centre for Internet and Society

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

nehaa — 2015-04-14T17:17:53Z

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

Super Cassettes v. MySpace (Redux)

sinha — 2017-01-18T14:31:25Z

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

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

Brief Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and

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

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

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

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

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

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

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

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

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

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

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

Additional Issues Considered by the Court

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

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

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

Relief Granted

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

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

Feedback to Draft Copyright Rules, 2012

pranesh — 2012-10-04T04:53:47Z

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

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

Dear Sir,

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

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

Relinquishment of Copyright

Analysis

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

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

Recommendations

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

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

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

Statutory Licence for Cover Versions

Analysis

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

Recommendations

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

Indexes

Analysis

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

Recommendation

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

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

Storage of Transient or Incidental Copies of a Work

Analysis

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

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

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

Recommendation

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

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

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

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

Analysis

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

Recommendations

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

Technological Protection Measures

Analysis

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

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

Recommendation

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

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

Meeting of the Global Network on Flexible Limitations and Exceptions

praskrishna — 2012-10-04T05:59:56Z

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

Agenda

September 12

4:00-6:00

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

September 13

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

September 14

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

September 15

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

The following individuals participated:

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

Read the original published in infojustice.org here

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

Comments on the Cinematograph (Amendment) Bill, 2021

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

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

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

Read our full submission here.

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

Plagiarism is rampant in Indian food writing – but finally, bloggers have a way to fight it

praskrishna — 2017-07-06T15:53:46Z

“We have been cheated,” declared the headline of the blog post making the rounds of social media on April 25.

The blogpost by Chanpreet Khurana was published by Scroll.in on July 4, 2017. Sunil Abraham was quoted.

The post, written by Rajkumar Saxena, former head of Mumbai’s Institute of Hotel Management, alleged that passages from his 1997 book on Awadhi cuisine, Dastarkhwan-e-Awadh, had been plagiarised by Sunil Soni, a veteran chef, in his new book titled Jashn-e-Oudh: Romance of the Cuisine.

The blog’s text, like the headline, dripped with hurt and contempt: “Here is a case of… a learned, literate person who has no qualms about unhesitatingly lifting word-by-word the explanations, recipes etc. from [a] book authored by us and claiming it to be his original work…” Images from the two books were embedded to support the allegation. “We need to name and shame such so-called experts through social media. We seek your support…”

The support came almost immediately.

Celebrity chef Ranveer Brar, who had written the foreword for Soni’s book, announced on Facebook that he wanted the author to remove it. Outrage also erupted on the wall of Food Bloggers’ Hall of Shame, a closed Facebook group of 421 members dedicated to fighting plagiarism in food writing and photography in India. “How can people even think that they can get away with such a shameless act of plagiarising?” wrote Anushruti RK.

It was an organic reaction. By blogging about his grievance, Saxena had tapped into the one space that Indian food writers are increasingly using today to redress the alleged plagiarism in food writing – social media.

“As a community, we are now discovering an average of one or two plagiarist websites/aggregators every week,” said Rhea Mitra-Dalal, the administrator of the Food Bloggers’ Hall of Shame, which shares dos and don’ts with members to protect their work. “We’ve had several run-ins with celebrity chefs, big food brands, restaurants, and food businesses, especially on their social media pages, where we have found plagiarised images. Public outcry on those pages has usually worked and we have got the plagiarised content down, but these are episodic and the basic mind-set hasn’t changed: it is fine to plagiarise, just apologise and take it down when caught.”

Cease and desist

Saxena’s blog post was a last resort. He says he had first noticed the alleged plagiarism – “42 recipes, 24 explanatory notes and 12 chapter notes,” according to him – in Jashn-e-Oudh in January, and had informed his publisher HarperCollins India. HarperCollins responded by sending a cease-and-desist notice to Soni, copying his publisher Shubhi Publications, and set three demands: remove the offending material from Jashn-e-Oudh, acknowledge the copyright of the authors of Dastarkhwan-e-Awadh, and pay Rs 5 lakh.

Soni and Sanjay Arya of Shubhi Publications claim they never received this notice.

On April 10, Saxena says he got an email from HarperCollins telling him it will not be pursuing the matter further because “currently HCI has put on hold all litigations due to some business-related issues”. “The copyright is definitely in your favour,” declared the email. “You are free to litigate this matter and file a suit for injunction. As far as shaming the authors/publisher on social media is concerned, as a publisher, we cannot opine on that. It is your personal decision...”

So, a fortnight later, Saxena did just that: he took his complaint to the internet.

Around the same time, he and his co-author Sangeeta Bhatnagar sent a legal notice, through their lawyer, to Soni to cease and desist from further publication and distribution of Jashn-e-Oudh, and demanded Rs 15 lakh in compensation.

This time, they got a seven-page response from Soni’s lawyer.

While denying the accusation of plagiarism, the response from Soni’s lawyer said, “Your clients are liable to show their copyright in the alleged infringed work of our client as no copyright can be claimed in the traditional recipes and their preparation as same will be similar across the globe to get the same taste.” It added that no copyright can be claimed on the subject of Awadhi recipes since it is “a common topic and known and available to the general public at large. All the recipes mentioned in the alleged publication are known in the market”.

Soni also denied the allegation when contacted for comment by Scroll.in.

Looking West

The reply from Soni’s lawyer makes some sound legal points, all of which, according to food bloggers, are reasons why food plagiarism is so hard to prove: a recipe that is a list of ingredients cannot be copyrighted. Nor can a traditional cooking method be seen as the property of any author. Reproducing these, therefore, is not plagiarism.

However, substantial literary and artistic expressions are copyrightable, according to the US Copyright Office, and reproducing these is unlawful. Another suspect action is when a chef’s work is tweaked by changing just one or two ingredients. In 2012, the Food Network in the US cancelled chef Anne Thornton’s TV show Dessert First, because some of her recipes were only mildly different from those created by superchefs like Martha Stewart.

Bloggers like Mitra Dalal lean on these definitions to call their content original. “Most of us have unique styles of writing, and we often include anecdotes and other content to our posts,” she said. “So copy-pastes can often be quite correctly identified.”

Another useful metric, according to Mitra Dalal, are rules set in more mature markets where bloggers have already fought, and won, battles.

“There are international guidelines for this,” she explained. “Loosely put, if every third word is different, the text cannot be deemed plagiarised. Also, you cannot say that an ingredient list is plagiarised.”

Small wins

Mitra Dalal and other food bloggers often fight their battles outside the court of law, which is good and bad. On the plus side, it’s faster and easier for them to control the context – but on the minus side, the wins are relatively small.

In July last year, for instance, 20 food bloggers alleged that the recipe aggregating app The Frying Pan had plagiarised their work. They lawyered up, and got ready for a legal battle.

“The Frying Pan had published our recipes and photographs without proper attribution, and without our consent,” said Deeba Rajpal, one of the 20 complainants. “We were advised that if we sought compensation, it would be a long haul. So, we only asked The Frying Pan to take our content down and never to use our work again without permission.”

The case didn’t go to court. The lawyers met and reached an agreement, according to Rajpal. “The app took our content down. The case never had a proper conclusion – it fizzled out.”

Except on social media, where the Food Bloggers’ Hall of Shame kept the pressure up, slamming The Frying Pan – hard.

Can Google help?

Proving plagiarism in food writing is difficult at any rate, but there are factors that complicate the matter in India, according to Sunil Abraham of The Centre for Internet and Society.

The copyright law here, he says, has inbuilt exceptions and limitations that protect the rights of stakeholders, including entrepreneurs, content creators, consumers, the public who may not pay for the content, and the government.

Many times, copyright holders in India have conceded or withdrawn legal cases because of limitations to the copyright law or the doctrine of fair use, which states that “brief excerpts of copyright material may, under certain circumstances, be quoted verbatim”. Just in February, a handful of publishers took back a lawsuit against a photocopier shop in Delhi University that had been selling study packs with materials reproduced from the publishers’ books.

Abraham said that often there is an economic incentive for plagiarising – take that away, and you fix half the problem.

For bloggers, a major source of income is Google AdSense, a popular program that allows website publishers to display ads on their pages and “earn money when visitors view or click the ads”. The problem is: if the advertiser cares only about page views and not the origin of the content, there is no incentive against plagiarism.

For checking online copyright infringement, Abraham says, the onus should be on multinationals like Google, which host a large number of blogs and web versions of media articles. “Google is constantly indexing the internet,” he said in a phone interview from Bengaluru, so Google knows when a write-up or a photo has been published before.

To be fair, according to the Digital Millennium Copyright Act, Google does entertain requests to remove online posts where a complainant can show copyright infringement. It’s a recourse that Mitra Dalal and some members of her Facebook group have found useful. But Abraham says this is less effective than if Google created hurdles to publishing content it deems plagiarised.

Need for reforms

Where does all this leave Saxena? It’s hard to tell.

Social media has generated awareness about his case, and Saxena has filed a complaint with the Delhi Police under Section 63 of the Indian Copyright Act. He plans to follow it up with a legal case. One thing that has certainly resulted from the episode is the food writing community’s intensified demand for clarity in laws to protect intellectual property.

As Saee Koranne-Khandekar, who blogs at myjhola.in, wrote on Food Bloggers’ Hall of Shame: “What’s amazing is that the original work [by Saxena and Bhatnagar] has gone through three successful editions, is published by a major player, and is written by two prominent names in the industry. One would think theft of content would occur in the case of less lesser known works, but this is pure guts! I hope at least this incident marks the immediate need for reform in our laws.”

For more details visit https://cis-india.org/a2k/news/scroll-july-4-2017-chanpreet-khurana-plagiarism-is-rampant-in-indian-food-writing-but-finally-bloggers-have-a-way-to-fight-it

RCEP IP Chapter: A Serious Threat to Access to Knowledge/ Cultural Goods?

Arul George Scaria and Anubha Sinha — 2017-08-01T15:24:51Z

Negotiators from sixteen countries are currently meeting in Hyderabad for discussing a free trade agreement titled Regional Comprehensive Economic Partnership (RCEP).

The blog post was published by Live Law.in on July 27, 2017.

Looking at the latest available IP chapter (leak dated October 15, 2015), RCEP stands to adversely affect nearly half of the world’s population on areas like access to knowledge and access to medicines. We would like to highlight five issues related to access to knowledge/ cultural goods, based on the leaked IP chapter.

Clear neglect of users’ rights

As different scholars and courts have tried to point out, copyright is not just about the rights of creators, but also those of users. The agreement will hurt this balance embedded in our copyright law. The balance within the copyright system is ensured by a set of limitations and exceptions which permit free uses for purposes like education, research, etc., thereby serving interests of students,researchers, educators, computer programmers, and persons with disabilities. Studies have also pointed out that industries that depend on limitations and exceptions also contribute substantially to economic growth. For example a recent study (by Computer and Communications Industry Association) in the US found that companies that extensively rely on limitations and exceptions, like media device manufacturers, software developers, internet search and web-hosting providers, and educational institutions, represent one-sixth of the US GDP. Thus, it follows that when countries revise their copyright legislations they should make sure that it fairly benefits right holders as well as users, and not just benefit right holders at the expense of the users which is what is transpiring at RCEP. The language of the agreement indicates that while it is mandatory for countries to increase protection for right holders, a commitment to restore balance via limitations and exceptions is only optional or worse, absent.

Broadcasters' Rights

The provisions regarding broadcasters’ rights also pose many concerns. First, RCEP engages in term extension without providing any economic rationale. The minimum term of protection stipulated under the Rome Treaty of 1961 (the major multilateral treaty in this area) is 20 years and India provides a term of 25 years for broadcasters rights.

The attempts to increase the term of protection to 50 years through RCEP, without conducting any impact assessment of the term extension on access to knowledge and cultural goods, is against public interest. Second, WIPO has been attempting to evolve a multilateral treaty on broadcasters’ rights for the last two decades and one of the major stumbling blocks in this regard is the lack of consensus among member states on what should be protected under the ‘broadcasters’ rights’ for purposes such as educational uses and private uses. RCEP provisions on broadcasters’ rights have conveniently ignored such exceptions and this again illustrates that the focus of RCEP is only on protecting the rightholders and not that of users.

Copyright enforcement

Many of the enforcement related provisions are as problematic. This includes proposals for taking into consideration suggested retail price (SRP) or market value of goods for valuation of the infringing goods as well as for making available pre-determined damages for copyright violations on the election of the right holder. In jurisdictions like the US, this has resulted in local courts being forced to grant millions in damages for even minor copyright infringements. It is also important to mention here that some of the enforcement related provisions can also result in serious privacy violations. This includes the suggestion for adding obligations on internet service providers to disclose to the rightholders the identity of users suspected to be engaging in infringing activities.

Ensuring transparency and accountability

The most troubling aspect of RCEP is that all the negotiations are being conducted in utmost secrecy without any public participation. Though the negotiators have already completed eighteen rounds of discussion, the negotiating text hasn’t been released officially and neither been a subject of parliamentary discussion nor public consultation. The public has a right to know what is being negotiated on their behalf and countries like India must take steps to release the negotiation text without any further delay. It is important to note that all these TRIPS-plus measures are being suggested without any consideration for the potential negative consequences on the society and therefore India must resist these TRIPS-plus provisions.

For more details visit https://cis-india.org/a2k/blogs/live-law-arul-george-scaria-and-anubha-sinha-live-law-rcep-ip-chapter-serious-threat-access-knowledge-cultural-goods

A Ludicrous Ban

Achal Prabhala and Lawrence Liang — 2012-06-04T04:22:11Z

Achal Prabhala and Lawrence Liang have written an article for the Open Magazine about the bizarre ways in which the Internet is regulated in 21st century India.

Small acts can have outsize consequences. In 15th century England, Richard III lamented that for want of a nail, a kingdom was lost. In 21st century India, the question is this: for want of copyright protection for a single film, will the whole Internet be lost? On 29 March 2012, the Madras High Court issued an order whose effect Internet users in the country are still reeling from. As we go to press, most Internet users in India are unable to access a number of popular websites that millions of people around the world use every day. These banned websites are not forums for human trafficking or illegal weapon sales, but merely extensions of ordinary human activity like learning, sharing and growing—activities that are particularly well facilitated by the Internet. That the websites have been banned is of great concern; that the order purportedly banning them, and its effect, are both inexplicable and badly understood is of greater concern still.

How did we get here?

These are the facts. Earlier in the year, a little-known Chennai firm called Copyright Labs filed a petition on behalf of RK Productions, seeking protection for their client’s upcoming release—the Tamil film 3—against copyright infringement on the Internet. The film had not opened to audiences yet; the petition sought pre-emptive protection. In response, the Madras High Court passed a ‘John Doe’ order—John Doe being American shorthand for the anonymous everyman—which has a wide, sweeping scope and is designed to protect against potential offences by necessarily nameless persons, or in other words, everyone. The order applied to several Internet Service Providers (ISPs), as well as the aforesaid nameless persons (the John Doe of India is, apparently, ‘Ashok Kumar’), binding them, and their heirs, assignees, representatives and the whole shebang, against infringing copyright in relation to the film on networks they administer.

In apparent compliance with the John Doe order, Indian ISPs reacted with obsequious haste, in singular—and totally arbitrary—fashion. Between them, they have blocked a range of torrent sites (like the Pirate Bay, which is always Target No. 1, regardless of the circumstances), a few video-sharing sites like Vimeo and DailyMotion, and for good measure, some unrelated and completely irrelevant websites such as Xmarks, which allows users to share and sync bookmarks, and Pastebin, a service to store text and code. The weirdest aspect of this countrywide clampdown on a large chunk of the Internet is that the Madras High Court order did not actually specify any websites to block at all. How—and why—the ISPs zeroed in on these particular entities remains a mystery.

The Pirate Bay certainly hosts large amounts of pirated material, but it is also in some part a way to distribute legitimate content legitimately; Vimeo, on the other hand, is the distribution channel of choice for independent films uploaded by the filmmakers themselves; Pastebin has strict policies that are respectful of copyright and is mostly used by free and open source developers to tweak and relay copyright-free software. The sweep of this clampdown by the ISPs defies logic by deeming everything illegal: the wedding video that we cherish and put up to share with our friends, the small, independently financed film we wish to distribute electronically, the piece of free and open source software we just improved upon and would like the world to know about. Luckily for us, any blocking action imposed by local ISPs can be easily subverted by going through a virtual private network—a proxy—and if you’d like to see just how easy and quick this is to execute, please go to http://anonymouse.org. You’re welcome.

But first, the law. There is some confusion as to whether blocking whole websites for copyright infringement is legally permissible, and the answer is mostly no—and partly yes. The procedure for blocking websites in India is governed by Section 69A of the Information Techno- logy Act 2000, as amended in 2008 (the IT Act). Section 69A of the IT Act gives the Central government, or any of its officers specially authorised by it, the power to direct either a government agency or an intermediary to block access to any website under a list of very specific circumstances, namely: a) in the interests of sovereignty and integrity of lndia, b) for the defence of India, c) for the security of the State, d) for friendly relations with foreign States, e) for public order, or f) for preventing incitement to the commission of any cognisable offence relating to the previous points. Failure to comply with a blocking order thus issued is punishable by imprisonment and fines.

Importantly, however, neither copyright infringement nor obscenity (the other popular trigger for censorious actions) is listed as grounds for which a website may be blocked. Sure, the IT Act has specific provisions that lay out the consequences of transmitting obscene material and the infringement of copyright, but being blocked is not one of them. On the basis of its powers under Section 69A(2), the government has laid out procedures for blocking websites and notified the Information Technology Rules, 2009 (with the ‘Procedure and Safeguards for Blocking for Access of Information by Public’), as well as designated nodal officers who can receive these complaints under the Act.

Section 6 of these IT Rules lays out a clear procedure for initiating and implementing a block. The procedure not only involves a thorough examination of the claims, but also reiterates the grounds under which a request for a block might be permissible, namely, the conditions laid out in the IT Act. Section 7 of the same IT Rules lays out the procedure for examination of the request and places it in the hands of a committee; the procedure involves the participation of several high-ranking officials and outlines detailed steps, such as contacting the potentially offending parties and giving them time to respond or take action as appropriate, only after which blocking may be deployed if still necessary.

The law is clear that copyright infringement cannot be legitimate grounds for the blocking of a website. Section 79 of the IT Act, in fact, explicitly provides safe harbour for ISPs, though the controversial Intermediary Due Diligence Rules, 2011, have made a mockery of this section. These Intermediary Rules are currently the subject of heated debate, with many civil society organisations and even some parliamentarians calling for them to be repealed. (You can learn more about the protests at www.it2011.in).

As things stand, a copyright holder can ask for the removal of infringing content by sending a take-down notice under the provisions of the Intermediary Due Diligence Rules, however flawed they are, or by asking for a John Doe order. A take-down notice is a complaint by the copyright holder to a website, indicating the specific uniform resource locator (URL) where the infringement is allegedly happening. It is a procedure further reinforced in the 2012 amendment to the Indian Copyright Act, which reiterates the rights of intermediaries, such as ISPs, to transmit any potentially infringing content until a take-down notice is sent and examined. A John Doe order, by its wide, sweeping nature, is normally exercised with the greatest caution, and only granted in the most exceptional circumstances. John Doe orders do not provide for public examination and discussion of claims; they do not allow any other side—other than the petitioning party—to state their case; and they can be badly misunderstood by the parties involved, as vividly demonstrated in this case.

In this case, both the petition and the order are questionable in several ways. The Tamil film 3—starring Dhanush and Shruti Haasan and directed by Rajini- kanth’s daughter Aishwarya—is not exceptional. It is one of the hundreds of Tamil films made this year, following on from the thousands of Tamil films made thus far. There is no particular reason why this film alone is worthy of a John Doe order. Ironically, it is exceptional only in that until Copyright Labs’ petition, the film served as a working demonstration of the benefits of a free and open Internet: the reason we knew of the film was the massive publicity generated by the viral hit ‘Kolaveri Di’—a song whose popularity spiralled by being shared freely and widely, regardless of copyright ownership. In the case of ‘Kolaveri Di,’ the producers saw the piracy of the song as publicity, and encouraged it. Then, it would seem, they decided that any piracy of the film was, well, piracy—and decided to stop it in the most insensible and ruthless manner possible. And there you have it: not only can you now have your cake and eat it too, you can also smash it in the faces of millions of users with impunity.

Copyright Labs, the previously unknown firm in Chennai that acted for the producers of 3 appears to be run by one Harish Ram, whose Twitter feed covers the catastrophe in revealing detail. Facing the wrath of fellow tweeters who were outraged at their inability to access their favourite websites, his collected responses on the handle @harishramlh instructively outline the disastrous way by which the court order he wanted has been implemented. Harish claims that his firm was forced to take action because infringing sites “don’t respond”. His cry for help would be plausible except for one inconvenient detail: the film 3 released on 30 March 2012, and the John Doe order was obtained on 29 March 2012—a day before the film’s release. What kind of piracy could Copyright Labs have been trying to battle unsuccessfully prior to the film’s release? There are instances of pre-screening prints of a film making it to torrent sites, though these are rare. Most often, the piracy of a film only happens after its public release. At the time of Copyright Labs’ petition, it is likely that very few or no take-down notices had been served because very few or no infringing acts had been committed yet: this is the very basis of the petition and ensuing order. (A quick search on Pirate Bay confirms that the only torrents related to the film are dated after its release, and not before). A little while later, perhaps upon discovering that he too cannot watch his best friend’s wedding video on Vimeo, Harish casually tweets that he has “written to unblock the whole site and block only specific piracy links” and presto, Vimeo is unblocked.

Regulators, take note. This is how the Internet is governed in 21st century India: by the fluctuating whims of an excited young man in Chennai in possession of a court order he neither deserves nor understands.

Thanks to the fact that our governments and corporations are constantly fantasising about how to censor our Internet (and frequently succeeding), the people who bring us the Internet, the hapless ISPs, have been beaten into submission; they now jump to the mildest murmur of reproach with wildly imaginative and unduly overreaching reactions. The last thing we need in an online environment full of dirty tricks is more dirty tricks. If anyone in power has any desire to keep the Internet working for the millions of Indians who prosper by it, safe harbour for ISPs must be restored in the IT Act—and the Intermediary Due Diligence Rules must be repealed.

Our courts cannot be used as quack-houses to buy pills for imaginary problems. The copyright industry is not a sick patient; it’s just a hypochondriac. Films don’t fail because of piracy; they fail because they’re not worth watching. The most popular films in this country are also the most pirated, and yet they remain money-spinners. The real problem is the unbending inability of this industry to adjust to the world; to the Internet; to the life-changing technologies that human beings have witnessed and embraced and prospered by over the past two decades. Instead of responding to these changes creatively, film producers and music distributors think that digging in their heels and acting like petulant children is going to delude consumers into seeing them as something grander than they are. The reality is that they are simply packers of culture and knowledge who aren’t even wrapping up their products competently. For now, though, these children have been given a nuclear bomb to play with, and they just used it to kill a cockroach. Beware the radiation.

Lawrence Liang is a lawyer and researcher at the Alternative Law Forum; Achal Prabhala is a writer and researcher in Bangalore

Click to read the original published in the Open Magazine on June 2, 2012

For more details visit https://cis-india.org/a2k/a-ludicrous-ban

Pranesh Prakash: Influencing India's IP Laws

praskrishna — 2014-02-25T06:20:31Z

Pranesh Prakash believes intellectual property laws need to evolve and change with time.

Samar Srivastava's article was published in Forbes India Magazine on February 15, 2014.

At an age where his contemporaries are still junior litigators and aspiring lawyers, Pranesh Prakash, 28, is already a recognisable name in the filed of legal activism.

In 2013 he worked with the World Intellectual Property Organization to draft a treaty for the blind. It provides for an exception to copyright laws so that books can be converted into accessible formats for the blind and visually impaired, and exchanged across borders.

For Prakash the treaty capped a signal achievement in intellectual property and copyright—an area he has been working in since graduating from the National Law School, Bangalore. In his closing speech at the diplomatic conference at Marrakesh, Morocco, Prakash said: “When copyright doesn’t serve public welfare, states must intervene... Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing.”

Prakash’s work on intellectual property has brought him recognition through affiliations: He is an Access to Knowledge Fellow at the Information Society Project at Yale Law School. In 2012, he was selected as an Internet Freedom Fellow by the US State Department.

“I was always interested in doing public interest work,” says Prakash. An internship with activist lawyer Rajeev Dhawan cemented his desire. Prakash is now prominent in a line of thinkers working in the area of freedom of expression, internet governance and intellectual property.

It is clear that existing laws in these areas are inadequate and a new jurisprudential setup needs to evolve. For example, the same standards often apply to print and internet media; they fail to recognise that, say, tweets have a different impact than newspapers headlines.

Prakash’s criticism of governments blocking websites stood out, but his recommendations were not accepted. He proposed that all intermediaries, like the ISP and the domain host, not be bunched, and separate standards be imposed on them, based on their editorial role in content creation.

“What distinguishes his work is the impact it has on the public at large,” says Gautam John, head, Karnataka Learning Partnership at the Akshara Foundation. “His work in the area is cutting edge. There is no one doing that work.”

Then there is his work with Section 66A of the IT Act. Under the section, anyone who sends false, offensive or inappropriate content by a computer or communication device can be punished with three years of imprisonment. This section has been misused by the police. Prakash has long argued that the law must be more specific in what it defines as offensive, and that the government needs to engage more with civil society and industry to end the antagonistic and selective manner in which the law is imposed.

Efforts of the Centre for Internet and Society (CIS), Bangalore, where Prakash is policy director, have resulted in rules being amended. Now, only officers of the rank of DCP and above can make an arrest. CIS, set up in 2008, has also made representations on the copyright law to Parliamentary Standing Committees.

Prakash’s activism has had another significant effect on intellectual property in India. By a 2008 Bill, the government had tried to privatise publicly-funded intellectual property. Prakash was part of a sustained campaign against the Bill, and in 2011 it was shelved.

For more details visit https://cis-india.org/news/forbes-india-february-15-2014-samar-srivastava-pranesh-prakash-influencing-indias-ip-laws

WIPO SCCR 24 Pre-lunch Text (July 19, 2012)

praskrishna — 2012-07-25T03:36:37Z

This is a rough transcript of the WIPO-SCCR discussions.

For more details visit https://cis-india.org/a2k/2012-07-19-sccr24-pre-lunch.txt

WIPO SCCR 24 Post-lunch Text (July 19, 2012)

praskrishna — 2012-07-25T03:33:29Z

This is a rough transcript of the WIPO-SCCR discussions.

For more details visit https://cis-india.org/a2k/2012-07-19-sccr24-post-lunch.txt

WIPO SCCR 24 Pre-lunch Text (July 20, 2012)

praskrishna — 2012-07-25T03:36:08Z

This is a rough transcript of the WIPO-SCCR discussions.

For more details visit https://cis-india.org/a2k/2012-07-20-sccr24-pre-lunch.txt

WIPO SCCR 24 Pre-lunch Text (July 23, 2012)

praskrishna — 2012-07-25T03:44:21Z

This is a rough transcript of the WIPO-SCCR discussions.

For more details visit https://cis-india.org/a2k/2012-07-23-sccr-24-pre-lunch.txt

Copyright Law: More Than A Moral Obligation

praskrishna — 2012-08-13T03:59:47Z

It was a cozy and warm atmosphere in a bookstore in South Delhi — with plenty of cushions thrown on the floor — that I attended a delightful book launch for children. The book was displayed prominently, along with some fabulous original illustrations done by the author, from which the book illustrator had been “inspired”. I clicked some photographs with my smartphone. The publishers, based in another city, couldn't attend the event. So, I thought why not mail it to them, they are fraternity. Soon, a newsletter popped into my mailbox from the same publisher, with a lovely write-up of the book launch accompanied by my photographs, but with no acknowledgement given to me. I was disappointed.

This column by Jaya Bhattacharji Rose was published in Business World on August 9, 2012. Pranesh Prakash is quoted.

After pondering over it, I decided to bring it to the publisher’s notice. To me, it was the principle of recognising the IPR (intellectual property rights) of the creator and giving due credit that I felt was at stake here. This was the reply I received, “So sorry. It was a slip up as I had said that you should be acknowledged. But since that is not the usual practice — simply because no one had asked — it was overlooked.” An apology received and accepted. I did not stop at that. I requested that in the next newsletter it should be rectified and on the blog, the photographs uploaded should go with credits.

To explore larger issues surrounding copyright, and for publishers in general, management of copyright is a very important part of their business. In May 2012, the Indian Parliament passed a few amendments to the Copyright Act. (It is still a bill, at the time of writing this column.) A victory to a large extent for the music industry, but it has made very little difference, so far, to the publishing industry. Plus, the debate surrounding Clause 2(m) of the Indian Copyright Act is still an open chapter. As per the clause, a book published in any part of the world can easily be sold here. Thus, diluting the significance or infringing upon an exclusive Indian edition. The Parliament Standing Committee investigating the pros and cons of Clause 2(m), made a “forceful recommendation” for its amendment, but it was not included in the bill. So the HRD Minister has referred it to an NCAER expert committee constituted.

However, another amendment relevant to the publishing industry has been the increase in copyright term for photographs. “This will make using older photographs impossible without hunting down the original photographer,” says Pranesh Prakash, a lawyer and copyright expert and programme manager at Centre for Internet and Society. “So far, things have worked well because sepia-tinted photographs have generally become part of the public domain. But now, only photographs by photographers who died before 1951 are part of the public domain. This has shrivelled up the public domain in photographs since it is even more difficult to trace the photographer (and date of death) than to estimate the age of a photograph, determining whether a photograph is in the public domain is laden with uncertainty. The use of historical photos in books (and Wikipedia) will be badly affected.”

Having been a publisher for years, I tend to be very careful about issues involving copyright. Dig deep and you will find anecdotes that illustrate the crying need for understanding copyright issues. For example, an illustrator submitting files to a reputed art director could be told that the illustrations are not up to mark. Unfortunately, when the book is published, the ‘new’ illustrations are pale imitations of the original line drawings submitted by the illustrator.

Or for that matter, a playwright being asked to create a script, but is never acknowledged or even paid the royalty due since the director believes that the core idea for the play is hers. ‘The playwright merely gave it a form’ is a common retort. Or, a couple of editors discovering their original research (and highly acclaimed globally) has been blatantly plagiarised by a well-known writer and published by an equally prominent publisher. Despite having marshalled all the necessary evidence, the editors are unable to file a case, since the court fee is a percentage of the damages sought and is beyond their reach. So, these cases stagnate with no redressal and the creators are left frustrated and angry.

The core issue is, how many professionals in the publishing eco-system actually know what is copyright or how to exercise their rights? After all, it is only a concept, albeit a legal one, which gives the creator of an original work exclusive right(s) to it for a limited period of time. Establishing and verifying the ownership to copyright is a sensitive issue. A good example of how an organisation can facilitate, disseminate, inform and empower a literary community on IPR and related topics is the Irish Writers Union.

According to their website, it is “the representative organisation for one of the major stakeholders in any discussion about copyright: Irish authors. While we understand that copyright legislation might be a barrier to innovation in certain industries, the IWU believes that any change to copyright law must be managed in such a way as to ensure that no damage is done to Ireland’s literary activity. ...literature earns hard cash for Ireland. Both in the form of its contribution to the €2bn annual gain from cultural tourism and in the considerable revenues deriving from the success of sales of Irish works, Irish publishing and writing is an activity that should not be jeopardised by any legal change that weakens the value of copyright ownership to the creators of original literary works. ...We note that if anything, copyright law in regard to literature should be strengthened to protect rights holders.”

As Shauna Singh Baldwin, a Canadian-American novelist of Indian descent, comments upon the significance of copyright in an e-mail conversation with me, “The breath of the individual creator, his/her imagination and speculation gives life to a work of art. To create something new, you take ideas from many sources, recontextualise them, find unexpected connections between them, and create something new — and beautiful. If we continue to be ashamed of our own imaginations and so fearful of mistakes that we must copy the tried and true, we will never create, only innovate.”

As for the rejoinder and photo credits I had requested for my photographs, the publisher implemented it immediately. And I was glad.

Jaya Bhattacharji Rose is an international publishing consultant and columnist.

For more details visit https://cis-india.org/news/www-businessworld-in-jaya-bhattacharji-rose-august-9-copyright-law

Ring Side View : Update on WIPO Negotiations on the Treaty for the Visually Impaired

Rahul Cherian — 2012-08-13T04:34:22Z

As a legal advisor of the World Blind Union and part of the World Blind Union delegation to the 24th meeting of the WIPO Standing Committee on Copyright and Related Rights (SCCR) that concluded on July 25, 2012 I had a ring side seat to the negotiations that happened between Member States in relation to the Treaty.

On call almost 24 x 7 to answer questions and clarify positions to Member States on aspects relating to the Treaty and the ground reality faced by the print disabled community, those were possibly the most grueling 10 days of my life.

Progress at the last 3 SCCRs was painfully slow. At the start of this SCCR on July 16 2012 the single biggest hurdle to progress on the Treaty was the stand that the African Group had taken at the earlier SCCRs with respect to a comprehensive text covering exceptions and limitations to copyright for education, libraries, archives and disabilities. See my discussion with Jamie Love from Knowledge Ecology International on this issue. It was evident that while a comprehensive text had its merits, it would be impossible to make progress on this comprehensive text because, other that for exceptions for disabilities, the issues relating to education, libraries and archives had not reached the level of maturity required to progress to a Treaty. So it was essential that exceptions for disabilities were de-linked from exceptions for education etc. This is exactly what the African Group did much to the excitement of the WBU team.

Much was left to be done over the next few days including discussion on the text of the working document which prepared by Chair after SCCR 23, available here. Normally, discussions on text happen at the plenary session attended by Member States as well as accredited organizations such as the World Blind Union, my organization Inclusive Planet Centre for Disability Law and Policy and others. This process, while adding to transparency and more participation is sometimes slow and the request of some Member States considering the urgency of the matter, discussions were taken out of plenary into a closed room round table discussion. All Member States could participate and many did. Unfortunately, accredited organizations were not invited to attend. Full credit to Member States in terms of effort put into this effort as they worked well beyond normal working hours on most days in an attempt to reach consensus on the text.

Another critical outcome we had hoped for was that there would be consensus between Member States that the instrument would be in the form of a Treaty. As the negotiations between Member States progressed it became clear that the United States and the European Union were blocking the Treaty while everybody else was pushing hard for the Treaty. The United States and the European Union were pushing for some form of non-binding instrument that would be more in the nature of a recommendation. Further coverage of this is at Huffington Post and in the Guardian. The drawbacks of a soft law as opposed to a Treaty is obvious in that a soft law has no binding force as opposed to a Treaty. Rumor has it that the reason for the United States not supporting the Treaty is that the publishing lobby is apparently a huge contributor to President Obama’s re-election campaign and that he could ill afford to alienate this lobby by pushing for the Treaty. The European Union’s opposition to a binding Treaty was despite a resolution adopted by the European Parliament in February 2012 calling on the European Union to support a binding Treaty.

We had hoped that SCCR 24 would close with agreement on the text, agreement that it would be a Treaty and finally that the SCCR referring the Treaty to the upcoming General Assembly in October 2012 to call for a Diplomatic Conference in 2013 to expressly agree on the Treaty.

However, this was not to be. Although much progress was made on the text, the text remains incomplete, with a lot of brackets in the text on undecided points. There was no consensus that the instrument should be a treaty. And lastly there was no decision on referring the issue to a diplomatic conference.

The next steps as outlined in the conclusions to SCCR 24 are the following:

an inter-sessional meeting of the SCCR be held in Geneva between the 2012 General Assembly and the 25th session of the SCCR to continue work;
the 25th session of the SCCR will attempt to conclude or advance substantially the text of the document; and
that the General Assembly convene an extraordinary session to be held in December 2012 to evaluate the text from SCCR/25 and to make a decision on whether to convene a diplomatic conference in 2013.

SCCR 24 made more progress on this issue that any of the previous SCCRs I have attended. We are very optimistic that the Treaty will become a reality of the next 18 to 24 months with the increased pressure being exerted on the US and the European Union by the blind groups in these jurisdictions respectively. Needless to say, the Treaty will benefit developing countries the most since the majority of persons with print disabilities are in these countries. India and other developing countries are mindful of this and are pushing as hard as possible to make it happen.

My next post will be on the pros and cons of the text that was proposed at the end of SCCR 24.

For more details visit https://cis-india.org/accessibility/ring-side-view