Centre for Internet and Society

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

ಡಿಜಿಟಲ್ ನಿರ್ಬಂಧಗಳ ನಿರ್ವಹಣೆ

sunil — 2012-06-18T11:19:35Z

ಸ್ವತಂತ್ರ ತಂತ್ರಾಂಶ ಪ್ರತಿಷ್ಠಾನದ ಸ್ಥಾಪಕ ರಿಚರ್ಡ್ ಸ್ಟಾಲ್‌ಮನ್ ಡಿಆರ್‌ಎಂ (ಡಿಜಿಟಲ್ ರೈಟ್ಸ್ ಮ್ಯಾನೇಜ್‌ಮೆಂಟ್) ಎಂಬ ಪರಿಕಲ್ಪನೆಯನ್ನು `ಡಿಜಿಟಲ್ ರೆಸ್ಟ್ರಿಕ್ಷನ್ ಮ್ಯಾನೇಜ್ಮೆಂಟ್` ಎಂದು ಬಿಡಿಸಿಡುತ್ತಾರೆ. ಅವರ ದೃಷ್ಟಿಯಲ್ಲಿ ಇದು ಡಿಜಿಟಲ್ ಹಕ್ಕುಗಳ ನಿರ್ವಹಣೆಯಲ್ಲ. ಡಿಜಿಟಲ್ ನಿರ್ಬಂಧಗಳ ನಿರ್ವಹಣೆ. ಈ ಡಿಆರ್‌ಎಂ ತಂತ್ರ ಬಳಕೆದಾರನ ಹಕ್ಕುಗಳನ್ನು ನಿಯಂತ್ರಿಸುತ್ತದೆ.

The article was published in Prajavani on June 9, 2012

ಕಾಪಿ ರೈಟ್ ಹೊಂದಿರುವವನಿಗೆ ಬಳಕೆದಾರನ ಹಾರ್ಡ್‌ವೇರ್, ಸಾಫ್ಟ್‌ವೇರ್ ಮತ್ತು ಅದರಲ್ಲಿ ನೋಡುವ, ಆಲಿಸುವ ಮತ್ತು ಓದುವ ವಸ್ತು-ವಿಷಯದ ಮೇಲೆಯೂ ನಿಯಂತ್ರಣ ಹೇರುವ ಅನೈತಿಕ ಅಧಿಕಾರವನ್ನು ಕೊಟ್ಟು ಬಿಡುತ್ತದೆ ಎಂಬುದು ಸ್ಟಾಲ್‌ಮನ್ ಅವರ ಅಭಿಪ್ರಾಯ.

ಕಾಪಿರೈಟ್‌ನ ಮಾಲೀಕರು ಈ ಡಿಆರ್‌ಎಂ ತಂತ್ರ ತಮ್ಮ ಹಕ್ಕಿನ ಉಲ್ಲಂಘನೆಯನ್ನು ತಡೆಯುತ್ತದೆ ಎಂದು ಹೇಳುತ್ತಾರಾದರೂ ಇದು ಜಾರಿಯಲ್ಲಿರುವ ಅನೇಕ ದೇಶಗಳ ಉದಾಹರಣೆಯನ್ನು ಮುಂದಿಟ್ಟುಕೊಂಡು ನೋಡಿದರೆ ಬಳಕೆದಾರನ ಮಟ್ಟಿಗೆ ಡಿಆರ್‌ಎಂ ಜ್ಞಾನದ ಬಾಗಿಲುಗಳನ್ನು ಮುಚ್ಚುತ್ತದೆ ಎಂಬುದೇ ನಿಜ.

ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆಯನ್ವಯ ಅಸ್ತಿತ್ವದಲ್ಲೇ ಇರದ ಹಕ್ಕುಗಳನ್ನು ಈ ಡಿಆರ್‌ಎಂ ಕಾಪಿರೈಟ್‌ನ ಮಾಲೀಕರಿಗೆ ನೀಡಿಬಿಡುತ್ತದೆ. ಅಂಗವಿಕಲರು ತಮಗೆ ಓದಲು ಅನುಕೂಲವಾಗುವ ಮಾಧ್ಯಮಕ್ಕೆ ಒಂದು ಪುಸ್ತಕವನ್ನು ಪರಿವರ್ತಿಸಿಕೊಳ್ಳುವುದು, ಸಂಶೋಧಕರು ಪುಸ್ತಕ ಅಥವಾ ಈ ಬಗೆಯ ಜ್ಞಾನದ ಮಾಧ್ಯಮಒಂದರಲ್ಲಿರುವ ವಿಷಯವನ್ನು ತಮ್ಮ ಸಂಶೋಧನೆಗೆ ಬಳಸಿಕೊಳ್ಳುವುದು, ಹಾಗೆಯೇ ಸಿನಿಮಾ, ಸಾಫ್ಟ್‌ವೇರ್ ಇತ್ಯಾದಿಗಳನ್ನು ವೈಯಕ್ತಿಕ ಬಳಕೆಗಾಗಿ ಉಳಿಸಿ ಇಟ್ಟುಕೊಳ್ಳಲು (ಬ್ಯಾಕ್‌ಅಪ್) ಬೇಕಾದಂತೆ ಪರಿವರ್ತಿಸಿಕೊಳ್ಳುವುದು, ಸಾಫ್ಟ್‌ವೇರ್‌ನಂಥ ಉತ್ಪನ್ನ ಗಳನ್ನು ಅವುಗಳನ್ನು ಉದ್ದೇಶಿತ ಉಪಯೋಗ ಕ್ಕಿಂತ ಭಿನ್ನ ಬಗೆಯಲ್ಲಿ ಬಳಸುವುದು, ಉದ್ದೇಶಿತ ವೇದಿಕೆಗಳಿಗಿಂತ ಭಿನ್ನವಾದ ವೇದಿಕೆಗಳಲ್ಲಿ ಬಳಸಲು ಸಾಧ್ಯವಾಗುವಂತೆ ಸಾಫ್ಟ್‌ವೇರ್‌ಗಳಂಥ ಉತ್ಪನ್ನಗಳನ್ನು ರಿವರ್ಸ್ ಇಂಜಿನಿಯರಿಂಗ್ ಮಾಡುವಂಥ ಕ್ರಿಯೆಗಳಿಗೆ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆ ಅನುವು ಮಾಡಿಕೊಡುತ್ತದೆ.

ಆದರೆ ಡಿಆರ್‌ಎಂ ತಂತ್ರಜ್ಞಾನ ಕಾನೂನುಬದ್ಧವಾಗಿಯೇ ಇರುವ ಈ ಎಲ್ಲಾ ಕೆಲಸಗಳಿಗೂ ತಡೆಯೊಡುತ್ತದೆ.2011ರ ತಿದ್ದುಪಡಿಯೊಂದಿಗೆ ಹೊಸ ರೂಪ ಪಡೆದುಕೊಂಡಿರುವ 1957ರ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆ ತಂತ್ರಜ್ಞಾನದ ಮೂಲಕ ಕಾಪಿರೈಟ್ ಉಲ್ಲಂಘನೆಯನ್ನು ತಡೆಯುವ ವಿಧಾನಕ್ಕೆ ಕಾನೂನಿನ ಮಾನ್ಯತೆಯನ್ನು ನೀಡಿದೆ.

ತನ್ನ ಹಕ್ಕಿನ ಉಲ್ಲಂಘನೆಯನ್ನು ತಡೆಯುವು ದಕ್ಕಾಗಿ ಕಾಪಿರೈಟ್ ಮಾಲೀಕ ಅಳವಡಿಸಿರುವ ತಂತ್ರಜ್ಞಾನವನ್ನು ಹ್ಯಾಕ್ ಮಾಡುವಂಥ ಕೆಲಸ ಮಾಡಿದವರಿಗೆ ಎರಡು ವರ್ಷಗಳ ಕಾರಾಗೃಹ ವಾಸದಂಥ ಶಿಕ್ಷೆಯೂ ಹೊಸ ಕಾನೂನಿನಲ್ಲಿದೆ. ಹಾಗೆಂದು ಈ ಕಾನೂನು ಬಹಳ ಋಣಾತ್ಮಕವಷ್ಟೇ ಆಗಿದೆ ಎನ್ನಲು ಸಾಧ್ಯವಿಲ್ಲ.

ಇದರಲ್ಲಿ ಮೂರು ಅತಿ ಮುಖ್ಯ ಧನಾತ್ಮಕ ಅಂಶಗಳಿವೆ. ಮೊದಲನೆಯದ್ದು ಸಾರ್ವತ್ರಿಕ ಲಭ್ಯತೆಯ ವಸ್ತು-ವಿಷಯಗಳನ್ನು ಈ ಬಗೆಯ ತಂತ್ರಜ್ಞಾನ ಉಪಯೋಗಿಸಿ ಬಳಕೆದಾರರನ್ನು ನಿರ್ಬಂಧಿಸಲು ಅವಕಾಶವಿಲ್ಲ. ಎರಡನೆಯದ್ದು ತಂತ್ರಜ್ಞಾನದ ಮಿತಿಯನ್ನು ಪರೀಕ್ಷಿಸುವ ಉದ್ದೇಶದಿಂದ ನಡೆಸಲಾಗುವ ಹ್ಯಾಕಿಂಗ್ ಅಪರಾಧವಲ್ಲ. ಮೂರನೆಯದ್ದು ಹೀಗೆ ತಂತ್ರಜ್ಞಾನದ ಮಿತಿಗಳನ್ನು ಬಳಸಿಕೊಳ್ಳುವ ಮತ್ತೊಂದು ತಾಂತ್ರಿಕ ವಿಧಾನವನ್ನು ಆವಿಷ್ಕರಿಸುವುದನ್ನು ಕಾನೂನು ತಡೆಯುತ್ತಿಲ್ಲ.

ಒಂದು ವಿಡಿಯೋ/ಆಡಿಯೋ ಕಂಪೆನಿ ಒಂದು ಡಿವಿಡಿಯನ್ನು ಕೇವಲ ಮೈಕ್ರೋಸಾಫ್ಟ್ ಮೀಡಿಯಾ ಪ್ಲೇಯರ್‌ನಲ್ಲಿ ಮಾತ್ರ ವೀಕ್ಷಿಸಲು ಅಥವಾ ಆಲಿಸಲು ಸಾಧ್ಯವಿರುವಂತೆ ಡಿಆರ್‌ಎಂ ಮಾಡಿದ್ದರೆ ಲೀನಕ್ಸ್ ಹೊಂದಿರುವ ಬಳಕೆದಾರರು ಅದನ್ನು ತಮ್ಮ ಕಂಪ್ಯೂಟರ್‌ಗಳಲ್ಲಿ ನೋಡಲು ಸಾಧ್ಯವಿರುವಂತೆ ಪರಿವರ್ತಿಸಿ ಕೊಳ್ಳುವುದು ಅಪರಾಧವಲ್ಲ. ಇಲ್ಲಿ ಕಾಪಿರೈಟ್ ಉಲ್ಲಂಘನೆಯಾಗುವುದಿಲ್ಲ.

ಹಾಗೆಯೇ ಆಡಿಯೋ ಪುಸ್ತಕವೊಂದನ್ನು ಬಿಡುಗಡೆ ಮಾಡಿರುವ ಕಂಪೆನಿ ಅದನ್ನು ಅಂಧರು ಬಳಸಿಕೊಳ್ಳಲಾಗದಂತೆ ಡಿಆರ್‌ಎಂ ಬಳಸಿದ್ದರೆ ಅಂಧರಿಗೆ ಅದನ್ನು ತಮಗೆ ಬೇಕಾದ ಸ್ವರೂಪಕ್ಕೆ ಪರಿವರ್ತಿಸಿಕೊಂಡು ಬಳಸುವ ಸ್ವಾತಂತ್ರ್ಯವನ್ನು ಕಾಯ್ದೆ ನೀಡುತ್ತದೆ. ಹಾಗೆಯೇ ಗೆಳೆಯನೊಬ್ಬನಿಂದ ಪಡೆದ ಡಿಆರ್‌ಎಂ ಇರುವ ಡಿವಿಡಿಯಿಂದ ಶಿಕ್ಷಕರೊಬ್ಬರು ತಮ್ಮ ತರಗತಿ ಅನುಕೂಲಕ್ಕಾಗಿ ಪ್ರತಿ ಮಾಡಿಕೊಂಡು ವಿಡಿಯೋ ಕ್ಲಿಪ್‌ಗಳನ್ನು ರೂಪಿಸಿದರೂ ಅದು ಅಪರಾಧವಾಗು ವುದಿಲ್ಲ. ಹಾಗೆಯೇ ತಂತ್ರಜ್ಞನೊಬ್ಬ ಅಂತರ ಜಾಲಸಂಪರ್ಕವನ್ನು ಬಳಸಿ ಆಡಬಲ್ಲ ಕಂಪ್ಯೂಟರ್ ಗೇಮ್ ಒಂದರಲ್ಲಿ ಸ್ಪೈವೇರ್ ಇದೆ ಅನುಮಾನಿಸಿ ಅದರ ಆಕರ ಸಂಕೇತಗಳನ್ನು ನೋಡಿ ಬದಲಾಯಿಸಲು ಪ್ರಯತ್ನಿಸಿದರೆ ಅದು ತಪ್ಪಲ್ಲ.

ಈ ಸವಲತ್ತನ್ನು ಭದ್ರತಾ ಏಜನ್ಸಿಗಳೂ ಬಳಸಿಕೊಳ್ಳಲು ಸಾಧ್ಯವಿದೆ. ಹಾಗೆಯೇ ಜಾಗತಿಕ ಮಾರುಕಟ್ಟೆಯಲ್ಲಿರುವ ಪ್ರಖ್ಯಾತವಾಗಿರುವ ಒಂದು ಸಾಫ್ಟ್‌ವೇರನ್ನು ಹೋಲುವಂಥದ್ದೇ ಉತ್ಪನ್ನವನ್ನು ಬೆಂಗಳೂರಿನ ಉತ್ಸಾಹಿಯೊಬ್ಬ ರೂಪಿಸಿ ಜಾಗತಿಕವಾಗಿ ಮಾರಾಟ ಮಾಡಲು ಹೊರಟರೂ ಅದನ್ನು ನಿಯಮ ತಪ್ಪು ಎನ್ನುವುದಿಲ್ಲ. ಆದರೆ ಇದರಲ್ಲಿ ಆತ ಅನುಕರಿ ಸುತ್ತಿರುವ ಉತ್ಪನ್ನ ಬಳಸಿರುವ ಆಕರ ಸಂಕೇತಗಳು ಇರಬಾರದಷ್ಟೇ.

ಎಲ್ಲವನ್ನೂ ಮಸಿ ನುಂಗಿತು ಎಂಬಂತೆ ಈ ಕಾಯ್ದೆಯಲ್ಲಿರುವ ಎರಡು ಋಣಾತ್ಮಕ ಅಂಶಗಳು ಅದರ ಧನಾತ್ಮಕತೆಗೆ ದೊಡ್ಡ ಮಿತಿಯನ್ನು ಹೇರಿಬಿಟ್ಟಿವೆ. ನಿರ್ದಿಷ್ಟ ಉತ್ಪನ್ನವನ್ನು ಪರಿವರ್ತಿಸಲು ಬೇಕಿರುವ ತಂತ್ರಜ್ಞಾನವನ್ನು ಒದಗಿಸುವ ಕಂಪೆನಿಗಳು ಅದನ್ನು ಯಾರಿಗೆ ಮಾರಿದ್ದೇವೆ ಎಂಬ ದಾಖಲೆಗಳನ್ನು ಇಟ್ಟುಕೊಳ್ಳಬೇಕೆಂಬ ನಿಯಮವಿದೆ.

ಅಂದರೆ ಇದೊಂದು ಬಗೆಯಲ್ಲಿ ಪರೋಕ್ಷವಾಗಿ ಈ ತಂತ್ರಜ್ಞಾನವನ್ನು ಬಳಸುವುದರ ಮೇಲೆ ಹೇರಿರುವ ನಿಯಂತ್ರಣದಂತಿದೆ. ಯಾರಿಗೆ ಮಾರಿದ್ದೇವೆಂಬ ದಾಖಲೆಯನ್ನು ಕಡ್ಡಾಯವಾಗಿ ಇಟ್ಟುಕೊಳ್ಳುತ್ತಾ ಹೋಗುವ ಕ್ರಿಯೆಯೇ ಮಾರಾಟ ಗಾರರ ಉತ್ಸಾಹಕ್ಕೆ ತಣ್ಣೀರೆರಚುತ್ತದೆ.

ಹಾಗೆಯೇ ಬಳಕೆದಾರರು ತಮ್ಮ `ಪರಿವರ್ತಿಸುವ ಹಕ್ಕನ್ನು` ಚಲಾಯಿಸಲು ಅಗತ್ಯವಿರುವ ಸವಲತ್ತು ಒದಗಿಸುವುದಕ್ಕೆ ಕಾಪಿರೈಟ್ ಮಾಲೀಕರನ್ನು ಬಾಧ್ಯಸ್ಥರನ್ನಾಗಿಸಿಲ್ಲ. ಅಂದರೆ ಬಳಕೆದಾರನಿಗೆ ಹಕ್ಕಿದೆ. ಆದರೆ ಅದನ್ನು ಚಲಾಯಿಸುವ ಅವಕಾಶದ ಬಗ್ಗೆ ಮಾತ್ರ ಖಾತರಿ ಇಲ್ಲ ಎಂಬ ಸ್ಥಿತಿ ಇದೆ.

ಲೇಖಕರು ಸೆಂಟರ್ ಫಾರ್ ಇಂಟರ್‌ನೆಟ್‌ಅಂಡ್ ಸೊಸೈಟಿಯ ಕಾರ್ಯನಿರ್ವಾಹಕ ನಿರ್ದೇಶಕರು

English translation below:

Digital Restrictions Management

As Richard Stallman the founder of the Free Software movement puts it the correct expansion of the acronym DRM is Digital Restrictions Management and not Digital Rights Management. According to his analysis DRM is used to limit the rights of consumers and enables rights-holders to exercise unethical control over the consumer's hardware, software and content.

Even though copyrights holders will tell us that DRM helps cut down on wilful and unwitting infringement. For consumers and members of the general public evidence from other countries reveal that DRM in most cases undermines access to knowledge. DRM permits the copyright holder to claim rights that don't exist as per copyright law and to restrict fair dealing (also referred to as far use) guarantees. Fair dealing protections include access by the disabled, use in research or academic context, archiving or making a personal backup, reverse engineering for academic reasons to to create interoperable/competing products/services etc.

The 2012 amendment to the Indian Copyright Act 1957 has resulted in legal recognition for effective technological measures [also called Technological Protection Measures or TPMs] and rights management information [RMI] applied for protecting the rights of the copyright-holder. Circumvention of such a measure could result in a 2 year jail term and a fine.

The DRM provisions per the amendment does three things correctly. One, it does not allow copyright-holder to use technological measure as a means to enclose public domain content or secure rights that are not granted to them under the Act. Two, any circumvention to exercise limitations and exceptions under the fair dealing provisions of the Act is not considered to be an offence. Three, it does not criminalise the creation of circumvention technologies. Unfortunately, however the Amendment also gets two things wrong. One, there are onerous recording keeping mandates for those providing circumvention technologies to consumers and members of the general public. Two, the provision does not make the rights-holder responsible for providing the means to consumers and members of the general public who wish to exercise their right to circumvention.

Suppose a movie studio released DVD version of its films with DRM that only worked with Microsoft Windows operating system. Those who bought the DVD but ran GNU/Linux or any other operating system would then have a right to circumvent the DRM and republish the content in an video encoding format. This would not be considered an offence because the customer is not attempting any copyright infringement.

Suppose a publishing house only released audio versions of its books with DRM that prevented accessibility to the content by the disabled. Another newly-introduced exception specifically for the disabled would apply if the rights-holder has ignored the disabled as a market but not making available accessible versions of their content. In other words, the disabled have a right to make accessible versions for themselves and therefore circumvent the DRM if necessary.

Suppose the very same movie studio also ensured that the DRM on its DVDs prevented customers from extracting video clips. If a teacher borrowed the film from a friend and then used circumvention technology to copy and paste video clips into her classroom presentation. This would not be considered an offence as she was only taking advantage of an exception meant for educational institutions.

Suppose a security researcher suspected the DRM technology in network enabled gaming console contained spy-ware. He would have the right to circumvent the DRM and reverse engineer the source code of the console in order to audit the code for the existence of back-doors. This exception will also be used by law enforcement agencies and military/intelligence organisations to purge our supply-chain of electronic infrastructure of spy-ware.

Finally assume a young entrepreneur from Bengaluru wanted to make a competing and yet interoperable product based on an existing product with global market penetration. Assume that the developers of the existing product used DRM to keep their source code and file format inaccessible to competitors. Again under the latest amendment our friend would have the right to circumvent the DRM as long as the code he write is not copied from the existing product.

For more details visit https://cis-india.org/a2k/digital-restrictions-management

ಸೃಜನಶೀಲತೆಗೆ ಸಂದ ಗೌರವ

Lawrence Liang — 2012-06-18T11:22:07Z

ತಾಂತ್ರಿಕ ಆವಿಷ್ಕಾರಗಳು `ಕೃತಿ ಸ್ವಾಮ್ಯ` ಎಂಬ ಪರಿಕಲ್ಪನೆಯನ್ನು ಅದರ ಮಾಮೂಲು ಅರ್ಥದಲ್ಲಿ ಬಳಸಲು ಸಾಧ್ಯವಾಗದಂತೆ ಮಾಡಿವೆ. ತಡವಾಗಿಯಾದರೂ ಭಾರತದ ಸಂಸತ್ತು `ಕೃತಿ ಸ್ವಾಮ್ಯ`ದ ಹೊಸ ಅರ್ಥವನ್ನು ಪರಿಗಣಿಸುವ ತಿದ್ದುಪಡಿ ಮಸೂದೆಯೊಂದನ್ನು ಅಂಗೀಕರಿಸಿದೆ.

The article was published by Prajavani on June 9, 2012

ಹಲವು ಧನಾತ್ಮಕ ಅಂಶಗಳನ್ನು ಒಳಗೊಂಡಿರುವ ಈ ಕಾಯ್ದೆಗೆ ಸಂಬಂಧಿಸಿದಂತೆ ಕೆಲವು ಸಂಶಯಗಳಿನ್ನೂ ನಿವಾರಣೆಯಾಗಿಲ್ಲ. ಕೃತಿ ಸ್ವಾಮ್ಯ ಕಾಯ್ದೆಯ ಹೊಸ ಸ್ವರೂಪದ ಮೇಲೆ ವಿವಿಧ ಕ್ಷೇತ್ರಗಳ ತಜ್ಞರಿಲ್ಲಿ ಬೆಳಕು ಚೆಲ್ಲಿದ್ದಾರೆ.

ರಾಜ್ಯಸಭೆಯಲ್ಲಿ ಇತ್ತೀಚೆಗೆ ಕೃತಿಸ್ವಾಮ್ಯ (ಕಾಪಿರೈಟ್) ತಿದ್ದುಪಡಿ ಮಸೂದೆ ಕುರಿತು ಚರ್ಚೆ ನಡೆಯುತ್ತಿರುವಾಗ ಹಿಂದಿಯ ಪ್ರಸಿದ್ಧ ಗೀತ ರಚನೆಕಾರ ಹಾಗೂ ಬರಹಗಾರ ಜಾವೇದ್ ಅಖ್ತರ್, ಹಿರಿಯ ಚಿತ್ರ ಸಾಹಿತಿಗಳು, ಸಂಗೀತಗಾರರು, ಗೀತ ರಚನೆಕಾರರು ಅನುಭವಿಸುತ್ತಿರುವ ಕಷ್ಟ- ಕಾರ್ಪಣ್ಯದ ಬಗ್ಗೆ ಆಕ್ರೋಶದಿಂದ ಮಾತನಾಡಿದರು.

ಭಾರತೀಯ ಸಿನಿಮಾ ರಂಗದಲ್ಲಿ ಇತಿಹಾಸ ಸೃಷ್ಟಿಸಿರುವ ಚಿತ್ರಗಳಿಗೆ ಕೆಲಸ ಮಾಡಿದ ಸಾಹಿತಿಗಳು, ಗೀತ ರಚನೆಕಾರರು ಹಾಗೂ ಸಂಗೀತಗಾರರು ತಮ್ಮ ಇಳಿಗಾಲದಲ್ಲಿ ಅನುಭವಿಸುತ್ತಿರುವ ಆರ್ಥಿಕ ಸಂಕಷ್ಟಗಳ ಬಗ್ಗೆ ಬೆಳಕು ಚೆಲ್ಲುವಾಗ ಅವರ ದನಿಯಲ್ಲಿ ವಿಷಾದವಿತ್ತು.

ತಮ್ಮ ಸೃಜನಶೀಲ ಸೃಷ್ಟಿಗಳ ಮೇಲೆ ಯಾವುದೇ ಹಕ್ಕು ಹೊಂದಿಲ್ಲದಿರುವುದೇ ಇವರೆಲ್ಲರ ಕಷ್ಟಕ್ಕೆ ಕಾರಣ. ಗೌರವಧನದ ಮೂಲಕ ಯಾವುದೇ ಲಾಭ ಇವರಿಗೆ ಬರುತ್ತಿಲ್ಲ ಎಂದು ಅಖ್ತರ್ ಹೇಳಿದರು. ಈ ವಿಚಾರ ಹೇಳುವಾಗ `ಆವಾರಾ`, `420`ಯಂತಹ ಚಿತ್ರಗಳಿಗೆ ಗೀತ ರಚನೆ ಮಾಡಿದ ಶೈಲೇಂದ್ರ ಅವರಿಗೆ ವೃದ್ಧಾಪ್ಯದಲ್ಲಿ ಔಷಧಕ್ಕೆ ನೀಡಲು ಹಣ ಇಲ್ಲದಿದ್ದುದು, `ಸೀತಾ ಔರ್ ಗೀತಾ` ಹಾಗೂ `ಸತ್ತೆ ಪೇ ಸತ್ತಾ` ಚಿತ್ರಗಳ ಕಥೆ ಬರೆದಿದ್ದ ಸತೀಶ್ ಭಟ್ನಾಗರ್ ಅನುಭವಿಸಿದ ಕಷ್ಟಗಳ ಉದಾಹರಣೆ ನೀಡಿದರು.

ಬರಹಗಾರರು, ಸಂಗೀತಗಾರರನ್ನು ದುಸ್ಥಿತಿಗೆ ತಳ್ಳಿ, ಕೇವಲ ನಿರ್ಮಾಪಕರ ಜೇಬು ತುಂಬಿಸುವ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆಯ ಬಗ್ಗೆ ಅವರಿಗೆ ಅಸಮಾಧಾನವಿತ್ತು. ಈ ವ್ಯವಸ್ಥೆಯನ್ನು ಸುಧಾರಿಸಲು ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆಗೆ ತಿದ್ದುಪಡಿ ತರುವುದು ಅತ್ಯಗತ್ಯ ಎಂದು ಅಖ್ತರ್ ಬಲವಾಗಿ ಪ್ರತಿಪಾದಿಸಿದರು.

ಜಾವೇದ್ ಅಖ್ತರ್ ಇಷ್ಟೆಲ್ಲ ಹೇಳಿದ ಮೇಲೆ ಲೋಕಸಭೆ ಹಾಗೂ ರಾಜ್ಯಸಭೆಯಲ್ಲಿ `ಕೃತಿಸ್ವಾಮ್ಯ ತಿದ್ದುಪಡಿ ಮಸೂದೆ 2012`ಗೆ ಎಲ್ಲ ರಾಜಕೀಯ ಪಕ್ಷಗಳ ಸದಸ್ಯರು, ಪಕ್ಷಭೇದ ಮರೆತು ಸರ್ವಾನುಮತದಿಂದ ಒಪ್ಪಿಗೆ ನೀಡಿದ್ದರಲ್ಲಿ ಆಶ್ಚರ್ಯ ಕಾಣುವುದಿಲ್ಲ. ` ಇದು ಬರಹಗಾರರು ಹಾಗೂ ಸಂಗೀತಗಾರರ ಹಕ್ಕನ್ನು ಕಾಪಾಡುವ ತಿದ್ದುಪಡಿ` ಎಂದು ಬಣ್ಣಿಸಲಾಯಿತು.

ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆಯ ವಿಚಾರ ಬಂದಾಗ ಈ ತಿದ್ದುಪಡಿ ಮಹತ್ವದ್ದು ಎಂಬುದರಲ್ಲಿ ಯಾವ ಅನುಮಾನವೂ ಬೇಡ. ತಿದ್ದುಪಡಿ ಕುರಿತು ಹೇಳುವಾಗ ಮಾಧ್ಯಮಗಳಲ್ಲಿ ಇದನ್ನು ಚಿತ್ರ ನಿರ್ಮಾಪಕರ ವಿರುದ್ಧ ಕಲಾವಿದರಿಗೆ ಸಿಕ್ಕಿದ ಜಯ ಎಂದೇ ವರ್ಣಿಸಲಾಯಿತು.

ಆದರೆ, ಕೃತಿಸ್ವಾಮ್ಯ ತಿದ್ದುಪಡಿ ಇನ್ನಷ್ಟು ವಿಸ್ತೃತವಾದ ವಿಚಾರಗಳನ್ನು ಹೇಳುತ್ತಿದ್ದು, ಈ ಜಯಘೋಷಗಳ ಅಬ್ಬರದ ನಡುವೆ ಅದರಲ್ಲಿನ ಸೂಕ್ಷ್ಮ ವಿಚಾರಗಳು ಯಾರ ಕಣ್ಣಿಗೂ, ಕಿವಿಗೂ ಬೀಳದೇ ಹೋಗುವ ಅಪಾಯವೂ ಇದೆ. ಈ ತಿದ್ದುಪಡಿಯಿಂದ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆಯಲ್ಲಿ ಹಲವು ಸ್ವಾಗತಾರ್ಹ ಬದಲಾವಣೆಗಳಾಗಿವೆ ನಿಜ. ಜ್ಞಾನ, ಸಂಸ್ಕೃತಿ, ತಂತ್ರಜ್ಞಾನದಂತಹ ವಿಚಾರಗಳು ಎಲ್ಲರಿಗೂ ದಕ್ಕಬೇಕು ಎಂಬ ಆಶಯ ಹೊಂದಿರುವವರನ್ನು ಚಿಂತೆಗೆ ಹಾಗೂ ಚಿಂತನೆಗೆ ದೂಡುವ ಅಂಶಗಳೂ ಇದರಲ್ಲಿ ಅಡಕವಾಗಿವೆ.

ಮೊದಲಿಗೆ ಈ ತಿದ್ದುಪಡಿ ಕಾಯ್ದೆಯ ಒಳ್ಳೆಯ ಅಂಶಗಳನ್ನು ಪರಿಶೀಲಿಸೋಣ. ಚಿತ್ರೋದ್ಯಮದಲ್ಲಿ ಕೆಲಸ ಮಾಡುವ ಸೃಜನಶೀಲ ಕಲಾವಿದರೆಲ್ಲ ಹಣದ ಥೈಲಿ ಹಿಡಿದುಕೊಂಡಿರುವ ಚಿತ್ರ ನಿರ್ಮಾಪಕರ ಮರ್ಜಿಯಲ್ಲೇ ಇರಬೇಕಾಗುತ್ತದೆ ಎಂಬುದು ಐತಿಹಾಸಿಕ ಸತ್ಯ. ಈ ಕಲಾವಿದರೊಂದಿಗಿನ ಮಾಡಿಕೊಳ್ಳುವ ಒಪ್ಪಂದದ ನಿಬಂಧನೆಗಳು ಸಹ ನಿರ್ಮಾಪಕರ ಮೂಗಿನ ನೇರಕ್ಕೆ ಇರುತ್ತವೆ ಎಂಬುದು ಮತ್ತೊಂದು ಕಟು ಸತ್ಯ.

ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆ ಪ್ರಕಾರ ಯಾವುದೇ ಕೃತಿ, ಅದು ಸಂಗೀತ ಸಂಯೋಜನೆ, ಗೀತೆ, ಬರಹ ಯಾವುದೇ ಆಗಿದ್ದರೂ ಅದನ್ನು ಸೃಷ್ಟಿಸಿದ ವ್ಯಕ್ತಿ ಅದರ ಮಾಲೀಕನಾಗಿರುತ್ತಾನೆ. ಇದೇ ಕಾಯ್ದೆ ಅಡಿ ಕೃತಿಯನ್ನು ಸೃಷ್ಟಿಸಿದ ಕಲಾವಿದ ಅಥವಾ ಬರಹಗಾರ ತನ್ನ ಹಕ್ಕುಗಳನ್ನು ಮೂರನೆಯ ವ್ಯಕ್ತಿಗೆ ವರ್ಗಾವಣೆ ಮಾಡುವ ಅವಕಾಶವನ್ನೂ ಕಲ್ಪಿಸಲಾಗಿದೆ. ಇಂತಹ ವರ್ಗಾವಣೆ ಒಪ್ಪಂದ ಸಂಪೂರ್ಣವಾಗಿ ನಿರ್ಮಾಪಕರ ಪರವಾಗಿ ಇರುತ್ತದೆ.

ಎಲ್ಲ ಮಾಧ್ಯಮಗಳಿಗೂ ಸಂಬಂಧಿಸಿದಂತೆ ಆ ಕೃತಿಯ ಎಲ್ಲ ಹಕ್ಕುಗಳನ್ನು (ವರ್ತಮಾನ ಮತ್ತು ಭವಿಷ್ಯದ) ನಿರ್ಮಾಪಕರಿಗೆ ವರ್ಗಾವಣೆ ಮಾಡಲಾಗುತ್ತದೆ. ಯಾವುದೇ ಕೃತಿಯನ್ನು ಸೃಷ್ಟಿ ಮಾಡಿದವರು ಆ ಕೃತಿಯ ಮೇಲೆ ಎಲ್ಲ ಹಕ್ಕುಗಳನ್ನೂ ಕಳೆದುಕೊಂಡಿರುತ್ತಾರೆ.

ತಂತ್ರಜ್ಞಾನ ಬೆಳೆದಂತೆಲ್ಲ ಸಿನಿಮಾ ಹಾಗೂ ಸಂಗೀತದ ಮಾರುಕಟ್ಟೆ ವಿಸ್ತರಿಸುತ್ತಲೇ ಹೋಗುತ್ತದೆ (ವಿಡಿಯೋ, ಡಿವಿಡಿ, ಸ್ಯಾಟ್‌ಲೈಟ್, ಎಂಪಿ ತ್ರಿ, ಮೊಬೈಲ್ ರಿಂಗ್ ಟೋನ್ ಇತ್ಯಾದಿ). ಈ ಕೃತಿಯ ಮಾಲಿಕರ (ನಿರ್ಮಾಪಕರು) ಬೊಕ್ಕಸ ತುಂಬುತ್ತಲೇ ಹೋಗುತ್ತದೆ. ಆದರೆ, ಅವರು ಈ ಆದಾಯವನ್ನು ಕೃತಿಯ ಸೃಜನಶೀಲ ಸೃಷ್ಟಿಕರ್ತರ ಹಂಚಿಕೊಳ್ಳಬೇಕೆಂಬ ನಿಯಮ ಮಾತ್ರ ಇಲ್ಲ.

ಈ ತಿದ್ದುಪಡಿ, ಎರಡು ಮಹತ್ವದ ಬದಲಾವಣೆಗಳ ಮೂಲಕ ಕಾಯ್ದೆಯಲ್ಲಿರುವ ಲೋಪದೋಷ ನಿವಾರಿಸುವಂತಿದೆ. ಯಾವುದೇ ಕೃತಿಯ ಮೇಲಿನ ಹಕ್ಕುಗಳ ವರ್ಗಾವಣೆ ಆ ಸಮಯದಲ್ಲಿ ಅಸ್ತಿತ್ವದಲ್ಲಿದ್ದ ಮಾಧ್ಯಮಕ್ಕೆ ಮಾತ್ರ ಸೀಮಿತವಾಗಿರಬೇಕು ಎಂಬುದು ಮೊದಲನೆಯ ಬದಲಾವಣೆ.

ಸಿನಿಮಾ ಹಾಡುಗಳ ಗೀತ ರಚನೆಕಾರರು ಹಾಗೂ ಸಂಗೀತಗಾರರಿಗೆ ಈ ಹಾಡನ್ನು ಬೇರೆ ರೂಪದಲ್ಲಿ ಬಳಸಿಕೊಂಡಾಗ, ಅಂದರೆ ಚಿತ್ರಮಂದಿರದ ಪ್ರದರ್ಶನ ಬಿಟ್ಟು ಇತರ ರೂಪದಲ್ಲಿ ಬಳಸಿಕೊಂಡಾಗ ಕಡ್ಡಾಯವಾಗಿ ಗೌರವಧನ ನೀಡಬೇಕು (ಅವರ ಹಕ್ಕುಗಳನ್ನು ಕಾನೂನುಬದ್ಧ ವಾರಸುದಾರರು ಅಥವಾ ಕೃತಿ ರಚನೆಕಾರರಿಗೆ ಸಂಬಂಧಿಸಿದ ಸಂಸ್ಥೆಗೆ ಮಾತ್ರ ವರ್ಗಾಯಿಸಬಹುದು) ಎಂಬುದು ಎರಡನೆಯ ಬದಲಾವಣೆ. ಕೃತಿಯನ್ನು ರಚಿಸಿದವರಿಗೆ, ಸಂಗೀತ ಸಂಯೋಜಕರಿಗೆ ಎರಡನೇ ಹಂತದ ಮಾರುಕಟ್ಟೆಯ ಲಾಭ ಪಡೆದುಕೊಳ್ಳಲು ಹಾಗೂ ವ್ಯವಹಾರದಲ್ಲಿ ಮತ್ತಷ್ಟು ಚೌಕಾಸಿ ಮಾಡಲು ನೆರವಾಗುವ ಕ್ರಾಂತಿಕಾರಿ ತಿದ್ದುಪಡಿ ಇದಾಗಿದೆ ಎಂಬುದರಲ್ಲಿ ಯಾವುದೇ ಸಂಶಯವಿಲ್ಲ.

ಆದರೆ, ಚಿತ್ರ ನಿರ್ಮಾಪಕರು ಸಿಟ್ಟಿನಿಂದ ತಮ್ಮ ವಾದ ಮಂಡಿಸುತ್ತಿದ್ದಾರೆ. ಚಿತ್ರದ ಮೇಲೆ ಹಣ ಹೂಡಿಕೆ ಮಾಡುವುದರಿಂದ, ಅದರಲ್ಲಿರುವ ರಿಸ್ಕ್ ಪರಿಗಣಿಸಿ ಚಿತ್ರದಿಂದ ಬರುವ ಎಲ್ಲ ಲಾಭಗಳನ್ನು ತಮಗೇ ನೀಡಬೇಕು ಎಂಬುದು ಅವರ ಅಭಿಪ್ರಾಯ. ಈ ತಿದ್ದುಪಡಿ ಸ್ವಾಗತಾರ್ಹವಾದರೂ ಅದರಲ್ಲಿನ ಗೊಂದಲಗಳು ನಿವಾರಣೆಯಾದಂತಿಲ್ಲ.

ಈ ಕಾಯ್ದೆ ಹೇಗೆ ಅನುಷ್ಠಾನಗೊಳ್ಳಲಿದೆ ಎಂಬುದನ್ನು ಕಾದು ನೋಡಬೇಕಾಗಿದೆ. ಇದು ಗುತ್ತಿಗೆ ಒಪ್ಪಂದದ ಸ್ವಾತಂತ್ರ್ಯ ಹಾಗೂ ವಾಣಿಜ್ಯ ವ್ಯವಹಾರದ ಸ್ವಾತಂತ್ರ್ಯ ಉಲ್ಲಂಘಿಸುತ್ತದೆ ಎಂಬ ಕಾರಣಕ್ಕೆ ಕಾಯ್ದೆಯನ್ನು ಕೋರ್ಟ್‌ನಲ್ಲಿ ಪ್ರಶ್ನಿಸುವ ಸಾಧ್ಯತೆಯೂ ಇದೆ. ಈ ತಿದ್ದುಪಡಿಯನ್ನೇ ರದ್ದುಪಡಿಸುವ ಯತ್ನಗಳು ನಡೆದರೂ ಆಶ್ಚರ್ಯವಿಲ್ಲ.

ತಿದ್ದುಪಡಿಯಲ್ಲಿ ಸೇರ್ಪಡೆ ಮಾಡಿರುವ ಬಹುಜನರಿಗೆ ಉಪಯುಕ್ತವಾಗಬಲ್ಲ ಮತ್ತೊಂದು ಮಹತ್ವದ ಅಂಶವೆಂದರೆ ಸಿನಿಮಾ ಹಾಗೂ ಸೌಂಡ್ ರೆಕಾರ್ಡಿಂಗ್ ಸೇರಿದಂತೆ ಎಲ್ಲ ಬಗೆಯ ಸೃಜನಶೀಲ ಕೆಲಸಗಳನ್ನು `ಫೇರ್ ಯೂಸ್` ನಿಯಮಾವಳಿ ಅಡಿ ತಂದಿರುವುದು. (ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆ ಅಡಿ ಯಾವುದೇ ಸೃಜನಶೀಲ ಕೃತಿ ವಿಮರ್ಶೆ ಮಾಡುವಾಗ ಆ ಮೂಲ ಸಾಹಿತ್ಯದ ಭಾಗ ಉದ್ಧರಿಸಲು ಅನುಮತಿ ನೀಡಲಾಗಿದ್ದು, ಅದಕ್ಕೆ `ಫೇರ್ ಯೂಸ್` ಎನ್ನುತ್ತಾರೆ. ಇದರಿಂದ ಕಾಪಿರೈಟ್ ಉಲ್ಲಂಘನೆಯಾಗುವುದಿಲ್ಲ.)

ಇಂದಿನ ಯುಟ್ಯೂಬ್ ಯುಗದಲ್ಲಿ ಯಾವುದೇ ಹವ್ಯಾಸಿ ಕಲಾವಿದರು ಮನೆಯಲ್ಲೇ ಕುಳಿತು ರಿಮಿಕ್ಸ್ ಮಾಡಿದ ತಮ್ಮ ಕ್ಲಿಪಿಂಗ್‌ಗಳನ್ನು ಅಪ್‌ಲೋಡ್ ಮಾಡಬಹುದಾಗಿದೆ. ಹವ್ಯಾಸಿ ಅಥವಾ ಸಾಕ್ಷ್ಯಚಿತ್ರ ತಯಾರಕರು ಮತ್ಯಾವುದೋ ಚಿತ್ರದ ಸಂಗೀತ ಅಥವಾ ವಿಡಿಯೋ ಚಿತ್ರದ ಕೆಲ ಭಾಗಗಳನ್ನು ತಮ್ಮ ಚಿತ್ರದಲ್ಲಿ ಅಳವಡಿಸಿಕೊಂಡಾಗ ಕಾಪಿರೈಟ್ ಉಲ್ಲಂಘಿಸಿದ್ದಕ್ಕಾಗಿ ಕಾನೂನು ಕ್ರಮ ಎದುರಿಸುವ ಭೀತಿ ಇದ್ದೇ ಇರುತ್ತದೆ.

ಈಗ ತಂದಿರುವ ತಿದ್ದುಪಡಿ ಯಿಂದ ಈ ಭಯ ನಿವಾರಣೆಯಾಗಿದೆ. ಸಂಶೋಧನೆ, ವಿಮರ್ಶೆ ಸೇರಿದಂತೆ ಖಾಸಗಿ ಹಾಗೂ ವೈಯಕ್ತಿಕ ಬಳಕೆಗಾಗಿ ಯಾವುದೇ ವ್ಯಕ್ತಿ ಚಿತ್ರದ ಅಥವಾ ಸಂಗೀತದ ಕ್ಲಿಪಿಂಗ್ ಬಳಸಿಕೊಳ್ಳಬಹುದು ಎಂದು ತಿದ್ದುಪಡಿಯಲ್ಲಿ ಹೇಳಲಾಗಿದೆ.

ಈ ತಿದ್ದುಪಡಿಯಲ್ಲಿ ಶಿಕ್ಷಣ ಸಂಸ್ಥೆಗಳು ಹಾಗೂ ಲಾಭ ರಹಿತವಾಗಿ ಗ್ರಂಥಾಲಯ ನಡೆಸುತ್ತಿರುವವವರಿಗೆ ಅನುಕೂಲಕರವಾಗುವ ಒಂದು ಅಂಶವಿದೆ. ಈ ಸಂಸ್ಥೆಗಳು ಕಾನೂನುಬದ್ಧವಾಗಿ ಖರೀದಿಸಿದ ಸಾಫ್ಟ್‌ವೇರ್ ಪ್ರೋಗ್ರಾಂ, ಸಂಗೀತ ಅಥವಾ ಸಿನಿಮಾದ ಪ್ರತಿಯನ್ನು ಬಾಡಿಗೆಗೆ ಕೊಡಬಹುದು ಅಥವಾ ಬಾಡಿಗೆಗೆ ಪಡೆಯಬಹುದು. ಇದರಿಂದ ಕಾಪಿರೈಟ್ ಉಲ್ಲಂಘನೆಯಾಗುವುದಿಲ್ಲ ಎಂದು ತಿದ್ದುಪಡಿಯಲ್ಲಿ ಹೇಳಲಾಗಿದೆ.

ಈಗ ತಿದ್ದುಪಡಿಯಲ್ಲಿ ಸ್ವಾಗತಾರ್ಹವಲ್ಲದ ಕೆಲ ವಿಚಾರಗಳ ಬಗ್ಗೆ ಚರ್ಚಿಸೋಣ. ಯಾವುದೇ ಸಂಗೀತ ರೆಕಾರ್ಡಿಂಗ್ ಆದ ಐದು ವರ್ಷದೊಳಗೆ ಅದರ `ಕವರ್ ವರ್ಷನ್` (ಕವರ್ ವರ್ಷನ್ ಅಂದರೆ ಯಾವುದೇ ಗೀತೆಯನ್ನು ಅದೇ ಟ್ಯೂನ್‌ನಲ್ಲಿ ಮೂಲ ಗಾಯಕರ ಬದಲಾಗಿ ಮತ್ತೊಬ್ಬರ ಬಳಿ ಹಾಡಿಸುವುದು) ಸೃಷ್ಟಿಸಬಾರದು ಎಂದು ಸ್ಪಷ್ಟವಾಗಿ ಹೇಳಲಾಗಿದೆ. ಜನಪ್ರಿಯ ಗೀತೆಗಳ ಕವರ್ ವರ್ಷನ್‌ಗಳ ಆಧರಿಸಿಯೇ ಭಾರತದ ಸಂಗೀತ ಉದ್ಯಮ ಬದುಕಿದೆ, ಬೆಳೆದಿದೆ ಹಾಗೂ ಬೆಳೆಯುತ್ತಿದೆ.

ಮತ್ಯಾರದೋ ಸೃಷ್ಟಿಯನ್ನು ಆಧರಿಸಿ ಹಣ ಮಾಡಿಕೊಳ್ಳುವ ಅಕ್ರಮ ಮಾರ್ಗದಂತೆ `ಕವರ್ ವರ್ಷನ್`ಗಳು ಕಾಣಬಹುದು. ಆದರೆ, ಸಂಗೀತ ಉದ್ಯಮದಲ್ಲಿ ಯಾವುದೋ ವ್ಯಕ್ತಿಯ, ಸಂಸ್ಥೆಯ ಏಕಸ್ವಾಮ್ಯವನ್ನು ಇದು ಮುರಿದಿದೆ ಎಂಬುದನ್ನು ನಾವು ಮರೆಯಬಾರದು.

ಈ ತಿದ್ದುಪಡಿಯ ಮೂಲಕ ಭಾರತದಲ್ಲಿ ಡಿಜಿಟಲ್ ಹಕ್ಕುಗಳ ನಿರ್ವಹಣೆಯ (ಡಿಆರ್‌ಎಂ) ನಿಯಮಾವಳಿಯನ್ನೂ ಜಾರಿಗೆ ತರಲಾಗಿದೆ. ವಿಪೊ ಕಾಪಿರೈಟ್ ಒಪ್ಪಂದ ಹಾಗೂ ವಿಪೊ ಪ್ರದರ್ಶನ ಹಾಗೂ ಧ್ವನಿ ಒಪ್ಪಂದದ (ಕಾಪಿರೈಟ್‌ಗೆ ಸಂಬಂಧಿಸಿದಂತೆ 1996ರಲ್ಲಿ ರೂಪಿಸಿರುವ ಜಾಗತಿಕ ಒಪ್ಪಂದ) ಧಾಟಿಯಲ್ಲಿ ಈ ಕಾಯ್ದೆ ರೂಪಿಸಲಾಗಿದೆ.

ಡಿಆರ್‌ಎಂ ಅಂದರೆ ಡಿಜಿಟಲ್ ರೂಪದಲ್ಲಿ ಇರುವ ವಿಚಾರಗಳನ್ನು ಯಾರೂ ಕಳವು, ನಕಲು ಮಾಡದಂತೆ ತಂತ್ರಜ್ಞಾನದ ಮೂಲಕ ಕೀಲಿ ಹಾಕುವುದು. ಈ ತಾಂತ್ರಿಕ ಕೀಲಿಯನ್ನು ಮುರಿದು ಡಿಜಿಟಲ್ ಮಾಹಿತಿಗಳನ್ನು ಪಡೆದಲ್ಲಿ ಅದು ಈಗ ಅಪರಾಧ. ಆದರೆ, ಡಬ್ಲುಸಿಟಿ ಅಥವಾ ಡಬ್ಲುಪಿಪಿಟಿಗೆ ಭಾರತ ಇನ್ನೂ ಸಹಿ ಹಾಕಿಲ್ಲವಾದ್ದರಿಂದ `ಡಿಆರ್‌ಎಂ` ಅನ್ನು ಭಾರತದಲ್ಲಿ ಜಾರಿಗೆ ತರುವ ಅಗತ್ಯ ಇತ್ತೆ ಎಂಬ ಪ್ರಶ್ನೆಯೂ ಇಲ್ಲಿ ಏಳುತ್ತದೆ.

ಇಷ್ಟೆಲ್ಲ ಹೇಳಿದ ಮೇಲೂ ಈ ತಿದ್ದುಪಡಿಯಲ್ಲಿ ಪ್ರಶಂಸಿಸಬಹುದಾದ ಮತ್ತೊಂದು ಅಂಶವಿದೆ. `ಡಿಆರ್‌ಎಂ` ಮೇಲೆ ಜಾರಿಗೆ ತರಲಾದ ಕಾನೂನು ಈ ನಿಟ್ಟಿನಲ್ಲಿ ಜಗತ್ತಿನ ಯಾವುದೇ ದೇಶದಲ್ಲಿ ರೂಪಿಸಲಾದ ಕಾಯ್ದೆಗಿಂತ ಅತ್ಯುತ್ತಮವಾಗಿದೆ. ಭವಿಷ್ಯದಲ್ಲಿ ಭಾರತ ಜಾಗತಿಕ ಒಪ್ಪಂದಗಳಾದ `ವಿಪೊ` ಮತ್ತು `ಡಬ್ಲುಪಿಪಿಟಿ`ಗೆ ಸಹಿ ಹಾಕುವ ಸಂದರ್ಭ ಬಂದೇ ಬರುತ್ತದೆ.

ಆಗ ಹೆಚ್ಚು ಚೌಕಾಸಿ ಮಾಡಲು ಸಾಧ್ಯವಾಗುವುದಿಲ್ಲ. ಒತ್ತಡ ಬರುವ ಮುನ್ನವೇ ನಮ್ಮ ದೇಶಕ್ಕೆ ಸೂಕ್ತವಾಗಬಲ್ಲ `ಡಿಆರ್‌ಎಂ` ಕಾನೂನು ರೂಪಿಸುವ ದೂರದೃಷ್ಟಿ ಹಾಗೂ ಜಾಣ್ಮೆಯನ್ನು ನಮ್ಮ ನೀತಿ ನಿರೂಪಕರು ಈಗ ತೋರಿದ್ದಾರೆ.

ಸೃಜನಶೀಲ ಕೃತಿಯ ಸೃಷ್ಟಿಕರ್ತರಿಗೆ ಸಾಕಷ್ಟು ಲಾಭ ಮಾಡಿಕೊಡುವ ಉದ್ದೇಶ ಹಾಗೂ ಜ್ಞಾನದ ಮುಕ್ತ ಬಳಕೆಯ ಅವಕಾಶ ಇವೆರಡರ ನಡುವೆ ಸಮತೋಲನ ಸಾಧಿಸುವಂತೆ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆ ಇರಬೇಕು. ಮಾಧ್ಯಮಗಳ ಏಕಸ್ವಾಮ್ಯ ಹಾಗೂ ಹಾಲಿವುಡ್ ಉದ್ಯಮದ ಅಗಾಧ ಬೆಳವಣಿಗೆಯಿಂದ ಕಾಲಾಂತರದಲ್ಲಿ ಈ ಸಮತೋಲನ ಹಕ್ಕುಸ್ವಾಮ್ಯ ಪಡೆದ ಮಾಲೀಕರತ್ತ ವಾಲಿತ್ತು.

ಕೃತಿಯ ಸೃಷ್ಟಿಕರ್ತರು ಹಾಗೂ ಸಾರ್ವಜನಿಕರು ಲೆಕ್ಕಕ್ಕೇ ಇರಲಿಲ್ಲ. ಇಂತಹ ಅಸಮತೋಲನ ನಿವಾರಿಸುವ ನಿಟ್ಟಿನಲ್ಲಿ ಸರ್ವರಿಗೂ ಒಳಿತಾಗುವಂತೆ ಸರ್ಕಾರ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆಗೆ ತಿದ್ದುಪಡಿ ತಂದಿದೆ. ಮುಂದಿನ ದಿನಗಳಲ್ಲಿ ನಿರ್ದಿಷ್ಟ ತಿದ್ದುಪಡಿಯ ಕುರಿತು ವಿಶದವಾಗಿ ಚರ್ಚಿಸಬಹುದು. ಆದರೆ, ಸದ್ಯಕ್ಕೆ ಸಂಸತ್ತಿನಂತೆ ಒಕ್ಕೊರಲಿನಿಂದ ತಿದ್ದುಪಡಿ ಕಾಯ್ದೆಯನ್ನು ಸ್ವಾಗತಿಸೋಣ.

ಆಲ್ಟರ್‌ನೇಟಿವ್ ಲಾ ಫೋರಂನ ಸ್ಥಾಪಕರಲ್ಲಿ ಒಬ್ಬರಾದ ಲೇಖಕರು ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆಯ ವಿಷಯದಲ್ಲಿ ತಜ್ಞರು.

Read the English translation below:

The pros and cons of the Copyright Amendment Act 2012

In his passionate speech in debate on the Rajya Sabha the noted lyricist and writer Javed Akhtar highlighted the plight of a number of musicians, lyricists and film writers who despite having contributed to some of the most important films in Indian history remained in poverty since they did not receive any benefits by way of royalties for their work. Examples of artists who suffered in penury unable to even afford medicines range from Shailendra who gave us the lyrics for films like Awara and Shree 420 to writer Satish Bhatnagar who wrote ‘Seeta aur Geeta’ and ‘Satte pe Satta’. Akhtar argued that the copyright amendment was a necessary corrective to a system that had worked incredibly well for film producers at the cost of artists. It was not surprising then that the Copyright Amendment Act 2012 saw a surprising consensus from all the political parties in the Lok Sabha and the Rajya Sabha and has been hailed as an amendment that restores rights to writers and musicians.

There is no doubt that the Copyright Amendment 2011 is one of the most significant developments in copyright law and while the media attention has been on the victory of artists against film producers it is important to remember that the amendment itself covers a much wider gamut of issues which runs the risk of being lost in the euphoria of this victory. While there are many welcome changes that have been brought about by the Amendment, there are also many others which should give cause of concern for anyone interested in public interest issues of wider access to knowledge, culture and technology. Lets start with the good news first.

It is well known that artists working in the film industry have historically been at a significant disadvantage when it comes to negotiating with the film producers who control the money and consequently dictate the terms of contracts with people who contribute to the film. Even though copyright law says that the owner of copyright is the creator of the work there has always existed an exception which allows the creator to assign their rights to a third party. The assignment agreements are heavily tilted in favour of the producers and all rights in all mediums (present and future) are handed over to the producer. It is a common experience that the creators of copyright are rarely ever the owners of copyright. As the secondary market for films and music developed with each generation of technology (videos, DVD, Satelite, MP3s, mobile ring tones) the owners of content found a situation in which we saw an evergreening of their property guaranteeing an eternal source of revenue which they were not obliged to share with any of the contributors. The amendment seeks to correct this by bringing in two significant changes. Firstly it says that an assignment of rights shall only be for a medium of exploitation which was in existence at the time of the assignment. It also says that authors of a literary or musical work used in a film song lyrics shall have a right to receive royalties from the work if the work is used in any manner other than as a part of a film shown in a cinema hall (the right may be assigned only to legal heirs or to a collecting society).

There can be no arguing that this is a radical amendment that significantly alters the ability of creators to participate in the benefits of secondary markets and also increase their bargaining power. Film producers on the other hand are livid arguing that as the primary investors and risk takers in a film they should be entitled to all the benefits accruing from the film. While the amendment is very welcome it is not bereft of ambiguities and possible complications, and we have to wait and see how the law will now be enforced. It is also likely that there will be constitutional challenges on the grounds that this is in violation of freedom of contract and the right to trade, and possibly even attempts to subvert the law. But for the moment lets celebrate a very significant victory for creators.

Even as creators celebrate, we should also toast the amendment for its sensitive response to the demands made by the visually disabled community. Technology has bridged the incredible gap that existed for disabled people desiring to access books and other materials. Braille was a horribly expensive and archaic technology but screen reading software has made it possible for visually disabled people to convert books into digital formats which can be read through mobile phones, computers and digital tablets. But it was impossible to convert books without violating the rights of copyright owners since the right to make electronic versions of the book is their exclusive right. The Amendment now carves out an exception for people with disabilities to be able – as a matter of right- to create digital versions and Sections 51(1)(zb) and 31B now allow the creation of ‘any accessible format’ without needing to pay royalty.

Another very significant amendment is the extension of the fair use provision to all classes of works including films and sound recordings. In this era of youtube when people routinely create their own remixes, upload clips this is a very welcome amendment. Any amateur or documentary film maker will testify to the difficulty hat the face when they need to use music or video clips as a part of their films and they do so with the constant threat of being sued for copyright infringement. The amendment allows a person to use film and music clips for private or personal use including research, as well as for criticism or review of that work. It is to be noted that the word criticism has been interpreted by the courts to include the ability to create parodies of the original work. Other people who should welcome the act includes educational institutions and non profit libraries who are now allowed to rent or lend a lawfully acquired copy of a software program, music and films.

And now for some of the not so good news. The amendment makes it more difficult to create cover versions of songs and cover versions can now not be made for a period of five year form the time of the recording of the song. As is well known the Indian music industry has grown on the basis of the freedom to make cover versions. While cover versions may seem like an unfair way of benefiting form someone else’s creation the fact of the matter is that version recording has been one of the most significant ways in which the music industry was demonopolized. The Amendment also brings in Digital rights Management (DRM) to keep India in tune with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. DRM are essentially digital or technology locks that are used to protect content and the law now makes it an offence to circumvent any technology lock. It is questionable whether this is a desirable introduction. India is not yet a signatory to the WCT or the WPPT and hence there is no need to bring DRM into Indian law. Having said that one must also appreciate that the Indian law on DRM is perhaps one of the best in the world, and one can speculate that the law makers decided to bring in a home grown version more suited to Indian reality knowing that at some point if time there would be global pressure on Indian to sign onto the two treaties and then there would be less bargaining power in terms of the law that would have been introduced.

Copyright was always supposed to be balance between providing incentives to creators and ensuring that there was adequate public access to knowledge. Over the years the rise of media monopolies and the might of Hollywood effectively ensured that this balance tilted heavily in favour of rights owners against the interests of creators and the general public. The Copyright amendment demonstrates that when such imbalances threaten creativity and free speech it is incumbent on the government to respond with necessary and adequate measures that serve the greater good. There will be time in the coming future to discuss and debate the specific amendments in detail, but for now lets join the parliament in unanimously welcoming a much over due amendment to the law.

For more details visit https://cis-india.org/a2k/pros-and-cons-of-copyright-act

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

praskrishna — 2012-07-25T03:34:22Z

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

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

CI IP Watch List 2009 - India Report

pranesh — 2009-12-09T10:09:52Z

The India Report of the Consumers International IP Watch List 2009, detailing ways in which Indian copyright laws are beneficial and harmful for creators and consumers.

For more details visit https://cis-india.org/publications-automated/cis/pranesh/IP%20Watch%20List%20-%20India%20Report.pdf

MHRD IPR Chair Series: Information Received from IIT Roorkee

Karan Tripathi and Nehaa Chaudhari — 2015-11-21T07:26:45Z

This post provides a factual description about the operation of Ministry of Human Resource Development IPR Chair’s Intellectual Property Education, Research and Public Outreach (IPERPO) scheme in IIT Roorkee.

Nehaa Chaudhari provided inputs, analysed, reviewed and edited this blog post.

The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non planned expenditure, nature and frequency of programmes organised and the allocation of funds for the same. Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2003-2014.

To collect the information for the given study, an RTI application was filed to the Indian Institute of Technology, Roorkee on 6/02/2015 by the Centre for Internet and Society. The reply to RTI application was received on 16/02/2015.

These are the documents received by CIS from IIT Roorkee:

For RTI Response click here (IIT Roorkee -Receipt of RTI- 20.4.15)
For complete supporting documents click here (IIT Roorkee – Response and Report)

Hereinafter, in order to receive any information about IIT Roorkee’s RTI reply, kindly refer to the above mentioned links.

Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at IIT Roorkee from 2003-20014
Reply: The University documented the minutes of the Departmental Faculty Committee Meeting where proposals for forming Departmental Administrative Committee, syllabus for new institute electives, duties of Departmental Research Committee, forming Institute Time Table Committee, conversion of existing LR1 computer lab and teaching scheme of autumn semester 2013 were deliberated upon. The University also organised various events such as Training of Trainers programme and International Conclave on Innovation and Entrepreneurship.
Documents indicating the date on which such an IPR Chair was set up at your institution and a copy of the application made by IIT Roorkee to the MHRD for instituting such an IPR Chair and documents received by IIT Roorkee from the MHRD approving the same
Reply: According to the Office Memorandum (dated 04 May 2012) of IIT Roorkee, Dr P.K. Ghosh had been appointed on the position of Professional Chair on IPERPO with effect from April 27 2012. A suitable financial grant of Rs. 208.02 lakhs was demanded for a period of five years.
Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: As it appears from the reply filed by IIT Roorkee to the RTI filed by the CIS, Rs. 30,00,000.00 of the Grant in aid was sanctioned to the University by the MHRD during the financial year 2010-2011 and nil amount was utilized for the purpose of it. At the end of the year, the balance sum of Rs. 30,27,041 (including the interest) was surrendered to the Government.
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at IIT Roorkee
Reply: IIT Roorkee has replied with a series of Statement of Expenditure ranging from 2010-2014 that explains its rate of expenditure and amount of interest accumulated and surrendered to the Government along with the unutilized amount. In the financial year 2011-2012 the unutilized expenditure was 3,105,159.00 which came down to 11,74, 026.00 in 2012-2013 due to which a grant of Rs. 24,00,000.00 was extended to the University by MHRD for the financial year 2013-2014.
Documents regarding all matters pertaining to finance and budget related the MHRD IPR Chair under the IPERPOs scheme established at IIT Roorkee
Reply: CIS did not receive any sort of clarity on matters pertaining to finance and budget related to MHRD IPR Chair under the IPERPO scheme as the response for this question was coupled with the previous question on utilization certificates.
Details of the IPR Chair’s salary under the IPERPO Scheme indicating whether this amount is paid over and above the professional’s usual salary
Reply: According to the RTI reply, the position of Chair Professor is awarded for a period of three years or upto 68 years of age, whichever is earlier. The pay of Chair Professor is fixed as per the rules and guidelines of Professional Chair in the institute.

2.0 Comparative Analysis between University Response and the guidelines of MHRD Scheme Document

The Scheme Document of MHRD is a comprehensive document which consists of guidelines regarding Intellectual Property Education, Research and Public Outreach. It talks about a list of objectives, purposes, conditions and eligibility criteria for a University to ensure in order to implement IPERPO in a truest sense. This document provides the procedural as well as qualifying conditions for an Institute to ensure or fulfil before applying for the MHRD grant. Some of these conditions include maintenance of utilization certificates, audit reports, expenditure statements and event information which would be open to access on demand by MDHR or Comptroller and Auditor General of India.

A. Objectives:

As it appears from the reply statement of IIT Roorkee, each and every event organised after the establishment of IPR Chair in 2012, where the funds from the grant have been utilized, is done to promote the scholarly as well as academic interests in the field of Intellectual Property. Even before applying for the MHRD grant, the University has organised many National Seminars and has started various short term courses in order to encourage research and excellence in Intellectual Property. This fact completely resonates with the core objective of MHRD scheme document, i.e. strengthening the academic and research discourses in the field of Intellectual Property.

B. Eligibility:
IIT Roorkee is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

C. Conditions for Grant of Assistance
There are several conditions laid down in the scheme document which need to be fulfilled by the concerned University in order to successfully receive the grant. The underlying condition is the dissemination and development in the field of Intellectual Property Rights.

According to the documents available with CIS, IIT Roorkee has organised at least 27 events in the field of IPR ranging from introduction of new electives, National Workshops and Symposiums, Expert Lectures, Infrastructure Development, Online portals for IP Administration and awareness and infrastructure development.

3.0 Financial Analysis of IIT Roorkee’s IPR Grant

According to the RTI reply, the IPR Chair at IIT Roorkee was established in the forenoon of 27th April 2012 with Dr P.K. Ghosh as its Chairman. Dr Ghosh was promised an Honorarium payment of Rs. 30,000 per month and a Contingency payment of Rs. 20,000 per month.

3.1 Financial Year 2010-2011

In this financial year, the IPR Chair was not established at IIT Roorkee. The total grant received by the University was Rs. 30, 00,000.00 out of which Rs.0 was utilized for the purpose of it was sanctioned.

At the end of the financial year, the remaining amount of Rs. 30,00,000, (due to Nil utilisation) along with the interest of Rs. 27041 was either surrendered to the government or adjusted towards the grants-in-aid payable during the next financial year.

3.2 Financial Year 2011-2012

The IPR Chair was still not established at the University. The opening balance was the amount carried forward from the previous year (30,27,041) upon which interest of Rs. 1,17,117 was received making the total receipt to be 31,144,158. Out of this, a total of Rs. 38,999 was utilised for travelling and miscellaneous expenditure. At the end of the year, the remaining of amount of Rs. 3,105,159 was either surrendered to the government or adjusted towards the grant-in-aid payable during the next financial year 2012-2013. As per the documents available with CIS, the statement of expenditure for this financial year has not been submitted by the university.

3.3 Financial Year 2012-2013

In this financial year the IPR Chair was established with Dr. P.K. Ghosh as its Chairman. The Opening balance was the amount carried forward from the previous financial year (31,05,159) upon which an interest income of Rs.1,25,376 was received along with a refund of advance amounting to Rs. 42,968. Out of the total receipt of Rs. 32,73,503 the total expenditure of the University on the current financial year was Rs. 20,99,477. The remaining amount of Rs. 11,74,026 was either surrendered to the government or adjusted towards the grants-in-aid payable during the next financial year 2013-2014.

3.4 Financial Year 2013-2014

In this financial year, the University received a grant of Rs. 24,00,000 from the government along with the amount carried forward from the previous financial year (Rs.11,74,026) upon which an interest income of Rs. 55,892 was received. Out of this, a sum of Rs. 24,01,045 was utilised as contingency expenditure. The remaining amount of Rs. 12,28,873 has been either surrendered to the government or adjusted towards the grants-in-aid payable during the next financial year 2014-2015.

In this financial year, the expenditure on library (5,00,979) is the only sum which exceeded the sanctioned amount (5,00,000). Moreover, there has been no expenditure on Outreach Program and Clinics. The honorarium payment to the IPR Chair Professor is similar to the sanctioned amount (3,60,000) but there’s a difference in his contingent payment (1,39,645 instead of 2,40,000). The total amount of expenditure in this financial year is Rs. 24,01,045.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-roorkee

Copyright Amendment: Bad, but Could Have Been Much Worse

sunil — 2012-06-15T12:29:39Z

The changes to the Copyright Act protect the disabled - but are restrictive about cover versions and web freedom, writes Sunil Abraham in this article published in the Business Standard on June 10, 2012.

When the Copyright (Amendment) Act, 2012, was passed unanimously by the Lok Sabha on May 22, it meant that there was little reason for celebration, some not-so-great news, and a lot of pretty bad news.

The only real reason for unqualified celebration is the amendment’s introduction of a robust exception for the disabled. It is bleeding-edge policy formulation, as it is right up there alongside the Treaty for the Visually Impaired currently being negotiated at the World Intellectual Property Organisation (WIPO). The Indian exception is more robust: first, it is disability-neutral, unlike the treaty which only addresses the needs of the print-impaired; and second, it is works-neutral, unlike the treaty which only addresses books and printed works. In brief, given the very limited circulation of copyrighted works amongst the disabled, they now can convert inaccessible works to accessible formats and share them with each other on a non-profit basis. No royalty needs to be paid to the rights-holders for this conversion and the resultant access. Other reasons to celebrate include the newly introduced exception for non-commercial lending and the extension of fair dealing (or fair use) to all works.

Now for some middling news. The Digital Rights Management provision makes it an offence punishable with a fine and a two-year jail term to circumvent “effective technological measures” (also called Technological Protection Measures) and remove “rights management information” (RMI). The provision protects public interest since it does not allow rights-holders to claim rights unavailable under copyright law, and does not prevent consumers and citizens from benefiting from the various fair dealing (or fair use) exceptions and limitations.

Unfortunately, the provision mandates onerous record-keeping for those providing circumvention technologies, and also does not insist that the rights-holder provide the means for circumvent when the consumer or citizen legitimately needs to do so.

The first piece of bad news is that an inadequate “safe harbour” provision has been introduced for Internet intermediaries. Like the Information Technology Act, the Copyright Act has also gotten the configuration of the intermediary liability regime wrong. This was the opportunity to finally protect common carriers, platforms for social media and commons-based peer-production (such as free software and open content). In short, search engines are finally legal in India, and so are ISPs, virtual private network providers and content delivery networks.

But unfortunately, social media platforms such as Facebook and peer-production platforms like Wikipedia are not afforded sufficient immunity to thrive as real-time participatory platforms. The take-down procedure is designed to provide instant relief to rights-holders, as intermediaries are supposed to remove content immediately. They have the option of reinstating content if the take-down notice is not followed within three weeks by a court order. This mechanism will have a chilling effect on free speech — given that Indian internet service providers very obviously privilege the interests of intellectual property rights-holders over those of the ISPs’ customers — as most recently illustrated by their over-compliance with certain John Doe court orders emerging from the Madras High Court.

The second piece of bad news is the extension of the term of protection for photographs. It has gone from being “sixty years after publication” to “sixty years after the death of the photographer”. Sixty years from publication was already in excess of the Agreement on Trade-Related aspects of Intellectual Property Rights (the TRIPS Agreement). Now we are in excess of WIPO Copyright Treaty requirements, even though India is not a signatory. The possibility of grandchildren earning royalties does not serve as an incentive for shutterbugs to take more photos or better photos. It is not even clear if one can monetise the average photo after the first decade. Therefore, the global public domain has been substantially impoverished, without any evidence that this will make the photographers reciprocally wealthier.

It does not stop there. In the age of hip-hop, trance, jhankar beats and turntables, one would have hoped that our law-makers would at least get the provision for “cover versions” or “remixes” right. Cover versions in India are doubly useful both in terms of aesthetics and profits — and yet the relevant provision can only be described as mediaeval. Cover versions can be produced only after a gap of five years; they have to be restricted to the same medium as the original; payment from them must be made in advance for 5,000 copies (should all those who sang commercially viable cover violations of “Kolaveri Di” be considered lawbreakers?); and there are strict limits on what are acceptable alterations to the original. The “alterations” have to be “reasonable” and “technically necessary”. Today, affordable yet sophisticated multimedia technologies allow teenagers to build professional sound recording studios in their bedrooms — and our government is seeking to restrict them to boring word-for-word and note-for-note covers.

And it gets worse. Bowing to pressure from foreign publishers’ associations, the government deleted the “parallel importation” provision at the last minute. The inclusion of this provision would have made it clear that works reproduced with the rights-holders’ permission in other countries could be imported into India. Foreign publishers and their lobbyists went all-out with a propaganda campaign predicting a dystopia filled with pirated books, surplus books dumped from overseas and starving, uncompensated authors. Had our government not caved, this clarification in law would have gone a long way in dismantling distribution monopolies and made the market much more competitive. The resultant increase in choice and reduction in cost would have benefited everyone. Human Resources Development Minister Sibal promised both Houses during the passage of the amendment that he would revisit this, and let’s hope he does so — especially for our libraries and our second-hand book stores, and for the students and disabled amongst us.

The writer is at the Centre for Internet and Society, Bangalore. sunil@cis-india.org

Click to read the original published by Business Standard.

For more details visit https://cis-india.org/a2k/copyright-amendment

The Work of Art in the Age of Mechanical Injunctions

Lawrence Liang — 2012-06-15T13:56:16Z

The same ‘Ashok Kumar,' now restrained from infringing the copyright of the film, ‘3,' helped its signature song, ‘ Kolaveri,' go viral by downloading and copying it without any restraints, writes Lawrence Liang in this Op-ed published in the Hindu on May 23, 2012.

The internet has been abuzz with news of all major Internet Service Providers (ISP) in India blocking popular websites like Piratebay, Vimeo, Dailymotion and Pastebin pursuant to a Madras High Court order issued in response to a petition by the makers of the Tamil movie, 3. For those who don't know, this is the film which features the song, “Kolaveri,” whose viral journey around the world was celebrated by virtually everyone, including the film-makers.

There are a number of unanswered questions about the validity of this, including whether the Department of Telecom was entitled to ask for sites to be blocked on the basis of the order and how the ISPs chose these particular websites since the order itself does not mention any particular website. This is not to mention the larger question of how the last 10 years have seen the dubious rise of John Doe orders as a pre-emptive measure against copyright infringement.

For those unfamiliar with John Doe orders, they are ex parte injunctions ordered against unknown persons.

Just to put this in context, ex parte injunctions are not the easiest things to obtain since they are based on the denial of another person's right to be heard. So even for cases of violence against women, getting an ex parte restraining order is not easy. In contrast, in the last decade we have seen the ease with which one can obtain these orders for copyright infringement cases.

High Court order

A number of legal innovations in the realm of injunctions have been developed to tackle the problem of anonymity in this domain. The three specific tools that have been used include

Ex parte injunctions (injunctions that are granted even without hearing the other party).

John Doe Orders (issued against anonymous offenders; e.g. Mirabhai Films got a John Doe Order against all cable operators before the release of “Monsoon Wedding”).

Anton Piller Orders (Search and seizure orders) including breaking down doors of shops which are closed.

But for the moment I want to focus on the fascinating High Court order itself and its incarnation of an unknown Indian person, Ashok Kumar, as well as the spectral fear of the copy.

The order names 20 respondents. Of these, the first 15 include all the major ISPs (BSNL, MTNL, Airtel, Tata, Reliance, etc) and respondents Nos.16 to 20 are Ashok Kumar, unknown person.

I am not sure why there are four Ashok Kumars when one would have done the trick. Is it a bug in the matrix? Are Nos.17 to 20 merely the pirated versions of respondent no.16? Could it be a viral infection from within the film and its well known song, which also has a habit of repeating itself (“Why this kolaveri kolaveri kolaveri kolaveri di?”).

The order basically says that M/s Fifteen Majors ISPs and Mr. Ashok Kumar, Ashok Kumar, Ashok Kumar, Ashok Kumar and Ashok Kumar should not infringe the copyright of the film “3.”

It is ordered that

the respondents/defendants herein, and other unknown persons by themselves, their partners/proprietor, heirs, representatives, successors in business, assigns, distributors, agents or anyone claiming through them be and are hereby restrained by order of interim injunction until further orders of this court from, in any manner infringing the applicants copyright in the cinematographic films/motion picture “3” by copying, recording, reproducing or allowing camcording or communication or allowing others to communicate to making available or distributing or duplicating or releasing or showing or uploading or downloading or exhibiting or playing in or in any manner communication in any manner without a proper license form the applicant or in any manner that would violate/infringe the applicants copyright in the said cinematograph film “3” through different mediums including CD, DVD, Blu-Ray disc, VCD, Cable TV, Direct to home services, internet services, multimedia messaging services, pen drives, hard drives, tapes, conditional access systems or in any other like manner whatsoever

So in addition to the unknown Ashok Kumar, we have the addition of other unknown persons (Kishore, Rajesh, Anup evam Indrajit?), their heirs, agents, representatives, etc of these unknown persons. This is followed by a list of prohibited acts (copying, uploading, downloading) through a set of prohibited objects (hard drives, pen drives, DVDs, etc).

This straightforward assault on the everyday passion that people invest in cinema and music is intriguing if not all that surprising in the history of copyright infringement.

Microsoft case

Companies have regularly benefited from the passionate investment of viewers, spectators and users in their goods before taking out their copyright sledge hammer to control the indisciplined passions of the same users and viewers. Consider for instance the fact that Microsoft did not enforce their copyright over illegal copies of their Operating System or products such as Microsoft Office for years (despite being one of the “best” software companies in the world). They only started enforcing their copyright when there was enough of a mass market that had been created and a lock-in secured for their goods. Learning a software includes a huge investment of time and effort on the part of users and, unlike toothpaste, cannot be changed overnight.

In the same way “kolaveri” became what it is because of M/s Ashok Kumar, Ashok Kumar, Ashok Kumar, Ashok Kumar and Ashok Kumar copying, communicating, uploading, downloading, modifying and distributing over the internet, through CDs, hard drives and pen drives, the song and all its hundred variations. This wasn't just a catchy song going viral but an attitude going global. Fan clubs in South India have been marked by the excess investment that they make in stars and in films, an excess that moves between the monetary economy of box office hits and profits on the one hand and the libidinal economy of love, passion and enthusiasm on the other.

For owners of copyright, an ideal world would be one where you could control one through the control of the other. So one benefits from all the passion of fans and enthusiasts even as one hopes that this will convert into mass hysteria at the box office. But there is that little thing about having one's cake and eating it too.

The copy which promised abundance but then threatens to eat into the film-makers profits seems to parallel the larger movement of the word copy, whose etymological roots in copia (“plenty”) moves in English from an original sense of “abundance” to the more recent sense of derivativeness. It passes, thereby, from a sense of plenty to a sense of scarcity.

Apart from the questionable logic of the film-makers turning fans and enthusiasts against their own film, what we probably need to do for the future is to think of how the investment of “excessive energy” allows us to make claims of ownership and limit the hackneyed argument of a film being the private property of the film-maker. This is a domain which necessarily takes us away from the usual focus either on the language of rights or even the language of openness and what we need is a Political language of Passion and Enthusiasm which can supplement the existing languages of denial and access. The excessive response of the film-makers in securing this order and in the blocking of the websites is plainly disrespectful of the excess that they thrived on just a few months ago.

The absolute ignorance and arrogance of the film-makers in trying to secure a ban on these websites shows their blindness to the way that the internet works. Imagine a Facebook without faces, a YouTube without uploaders, and Twitter without tweeters. It is said that Kafka came across a reference to a cinema for the blind in Prague, and he was intrigued by it and came to believe that all cinemas should be called The Cinema of the Blind, because their flickering images blind people to reality. What we have with the Ashok Kumar order is perhaps the inauguration of the cinema of visionless film-makers because their flickering profits blind them to reality.

(Lawrence Liang is a lawyer and researcher based at Alternative Law Forum, Bangalore. He can be contacted at lawrence@altlawforum.org)

Click to read the original in the Hindu.

For more details visit https://cis-india.org/a2k/work-of-art-in-age-of-mechanical-injunctions

35th SCCR: CIS' Question to Dr. Rostama on her Study on the Impact of the Digital Environment on Copyright Legislation

sinha — 2017-11-19T07:50:49Z

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

Thank you for the presentation, Dr. Rostamma.

My question relates to provisions allowing reverse engineering of computer programmes. You mentioned that 81% of member states (with the scope of your study) have exceptions for compilation and interoperability of computer programmes.

Can you comment, qualitatively, on how open/ strict you have found the limitations and exceptions to be in your study? Is there a member state that stands out in its treatment of limitations and exceptions for computer programmers, and/or users of such digital objects?

Answer: I would not like to make any qualitative comments.

Read Dr. Rostamma's study here.

For more details visit https://cis-india.org/a2k/blogs/35th-sccr-cis-question-to-dr-rostama-on-her-study-on-the-impact-of-the-digital-environment-on-copyright-legislation

Comparative Transparency Review of Collective Management Organisations in India, United Kingdom and the United States

maggie — 2015-08-21T17:12:10Z

This Transparency Review seeks to compare the publicly available information on the websites of music collective management organizations (“CMOs”) operating within India, the United States, and the United Kingdom. A total of 10 CMOs were selected, which included a range of non-profit, government registered organizations to for-profit, private organizations, managing works on behalf of record labels, publishers, composers, lyricists, and music performers. This exercise intends to contribute to the growing body of research on the relationship between transparency and effectiveness of CMOs. It concludes with recommendations and learnings which may lead to more transparent and effective functioning of copyright societies in India, and management of music copyright overall.

The research paper was co-authored by Maggie Huang, Arpita Sengupta, Paavni Anand.

Taking into account the needs of users and members of CMOs, the following pieces of information was determined to be useful to report on the websites: : membership lists, governing directors, user types, tariff rates, royalty distribution schemes, and annual revenue reports. Collectively, the presence of these became rough parameters for transparency. The authors then reviewed each website to determine whether this information was made publicly available, and whether such disclosure was voluntary or mandated by law. As a proxy for effectiveness, percentage of revenue distributed as royalties was calculated for those who made their annual revenue report available.

Broadly, the review found that India's 2012 Copyright Amendment Act and 2013 Copyright Rules were by far the most stringent regarding registration, operations, rate setting, and reporting. Despite India's strict laws, it appears there is little compliance, particularly by PPL which failed to report the mandated tariff rates, royalty distribution policy, and its annual revenue report. ISRA had all the information sought on their website except for the crucial annual revenue report. IPRS however clearly made an effort to comply, with all information sought, provided.

Relative to India, CMOs in the United Kingdom were regulated less strictly, with U.K.'s 2014 Copyright Regulations allowing self regulation provided CMOs follow guidelines to comply with the operating code of conduct. All six indicators were available on websites of both UK PPL and PRS for Music, although the latter required user authorization to access membership/repertoire data.

In comparison, the U.S. seems to have the most lax reporting standards of the three, really only mandating basic reporting for CMOs administering statutory licenses. However, similar to India, rate-setting in the U.S. for certain digital broadcasts are subject to significant government control, in addition to anticompetetive measures which prevent partial withdrawal of rights from certain CMOs’ blanket licenses. Availability of information varied, with BMI and Sound Exchange complying with the more demanding parts of US legislation and disclosing all information sought, while ASCAP and HFA were missing tariff rates and user types respectively. SESAC was the least informative, with governing directors absent, and more crucially, their annual revenue report.

To determine relative efficiency, the authors calculated the percentage of royalties distributed per total revenue for those CMOs which published their revenue reports. All distributed royalties ranged between 80%-90%. Though not necessarily the most accurate measure, there appeared no significant correlation between the percentage of distributed royalties, and amount of information found; therefore a correlation between effectiveness and information transparency remain unknown.

However, throughout the exercise, the limitations of the research design became clear, leading to its own learnings for future research. Methodologically, the more attention should have been paid to spanning a wider spectrum of legal control, drawing clear lines of which types of CMOs to include in the study, being careful not to equate presence of information with usability or effectiveness, deeper assessment of the legal provisions, and the inclusion of membership exclusive data as part of the exercise.

Nevertheless, the comparative review process did produce several learnings that Indian CMOs could adopt for enhanced transparency and potentially improved effectiveness as well. These recommendations are as follows:

Publish the full repertoire of works the CMO is authorized to license, and its corresponding rights holder information in a searchable format;
Provide a platform for collectively identifying the rights-holder of orphan works (works which are registered whose royalties are collected, but ownership information is unknown);
Guide new users and potential members through a more user-friendly designed page with simplified, accessible introduction to music licensing;
Increase clarity surrounding royalty distribution policies;
Publish updated annual revenue reports; and
Clarify the dispute resolution processes.

This review concludes by suggesting future research through stronger methodological design, further exploring membership exclusive data, assessing effectiveness outcomes between multiple, competing licensing bodies versus a single, state-granted monopoly society, and the possibility of alternative compensation schemes for music financing and production.

MOTIVATIONS FOR RESEARCH: MUSIC COPYRIGHT MANAGEMENT IN THE MOBILE MUSIC AGE for the PERVASIVE TECHNOLOGIES PROJECT

Managing copyright in the digital age is one of the most contentious issues today amongst music industries globally. Innovation in digital technologies has opened up formerly restricted production and distribution channels, resulting in a proliferation of music like never before.

The mobile phone is one of these innovations, particularly since becoming the most preferred music listening device in India. [1] The overarching utility of the mobile phone has made it the object of study for the Centre for Internet and Society's Pervasive Technologies project[2], which seeks to identify intellectual property levers which can enhance access to affordable mobile devices' hardware, software, and content within India and China.

Access to music content[3] via the mobile phone is one of the chapter's primary focus, with a research objective of balancing access to music for internet and mobile consumers, while ensuring the protection of rights and remuneration for artists and creators.

The initial phases of this research found that new stakeholders such as device manufacturers, telecom operators, and streaming services were developing business models based on a free, ad-supported service with a paid premium tier, ultimately resulting in high royalty payouts and low profit margins. However, artists in India and worldwide are raising grievances due to decreasing royalty revenue, putting to question whether these business models are sustainable in the long term.

We had hoped to answer these questions within the Indian context, but the findings were ultimately inconclusive. This was primarily due to two reasons: 1) lack of data transparency at multiple levels of the music distribution chain, and 2) a copyright management system heavily in flux due to poor enforcement of the ambiguous 2012 Copyright Amendment Act. The copyright societies in India embodied both these issues in India, resulting in a need to study these institutions further as one of the main objects of research.

INTRODUCTION to COLLECTIVE MANAGEMENT ORGANIZATIONS and the NEED FOR TRANSPARENCY

Music copyright societies, commonly referred to as collecting agencies or collective management organizations ("CMOs") provides music rights holders (authors, owners, and performers of lyrics, compositions, and sound recordings) the ability to authorize the licensing of their copyrighted works to another body (the CMO) who can collect royalties from the numerous sources of usage on behalf of its members. If the law allows, these CMOs are also able to collectively negotiate for rates as well. Royalties derived from these licenses are often collected and distributed by CMOs as a source of income for the creators of musical works, after administrative costs are deducted.

CMOs and their rights-holder members represent a principle-agent relationship as agent-CMOs collects royalties from users on behalf of its principle rightsholder-members. However, if a conflict of interest arises, the inherent information asymmetry may give rise to abuse. In the case of CMOs, this standard principle-agent problem has manifested in forms ranging from inefficient administration overhead, to more dubious acts of corruption and collusion.

Economic theory tells us that the key to a free and fair market is "perfect information", or when stakeholders are equipped with the relevant information needed to make market decisions. Information enforces accountability, an idea that sparked the Right to Information movement in India. This is why transparency is especially critical in the music industry, characterized by complex revenue and consumption patterns, an intricate copyright law framework and stakeholders with varying levels of bargaining power.

Given many CMOs operate as state-granted monopolies which exclusively administer specific class of works, it is important that the collection and distribution of royalties occur in a transparent manner so members and regulators can scrutinize its functioning to ensure greatest effectiveness. For countries which allow competition between CMOs, transparency in operations and revenue data can provide users and members the ability to make an informed choice, and the opportunity for other competing players to enter the market.

Within India, transparency has been a recurring issue due to allegations of mismanagement and corruption[4] of the copyright societies. This was one of the motivations for the 2012 Copyright Amendment and subsequent2013 Copyright Rules which attempted to address, amongst other issues, regulations around transparency for registered copyright societies in India.

Thus, in light of new transparency and operations regulations for India, and inconclusive research findings due to sparse data, the authors sought to review the transparency of various CMO websites and their corresponding regulatory measures in the hopes of answering the following questions:

1. How does India's level of CMO transparency compare to other countries?

2. Is disclosure of information a result of regulatory pressures or voluntary?

3. What kind of learnings and recommendations can be made from the voluntary information disclosure and/or legal regulatory environments of other countries?

METHODOLOGY

Selecting countries for comparison

Since one of the broader goals of this review was to identify legal and/or industry led proposals for increased CMO effectiveness in India, the authors wanted to select case study country samples which were relevant and useful for the Indian context, while also considering differing legal and regulatory regimes.

The United States was chosen due to its competitive CMO structure where multiple CMOs administering the same class of musical works, and representing similar kinds of rights-holders can co-exist as private entities. Aside from statutory rate-setting of sound recording broadcasts, and anticompetitive consent decrees for ASCAP and BMI, the United States seem to have little to no regulation overall surrounding CMO operations and management.

The United Kingdom was selected due to its recent growing interests in the Indian music industry. This was demonstrated by the high volume of British attendants at recent Indian music industry conferences , several of which were directly sponsored by UK Trade & Investment as a music trade export mission.[5] In addition, U.K.'s CMO structure seemed to be more streamlined, with class of works separately managed under two main music CMOs.

Indian research participants of ongoing research also expressed interest in registering their musical works with CMOs in the U.S. and U.K. given increasing market demand, higher currency exchange, and increased reliability of royalty receipts. This was further indication of relevant country case studies for a comparison with India.

Identifying the Relevant CMOs

Due to challenges enforcing India's 2012 Copyright Amendment Act, and subsequent ambiguity of copyright societies' registration statuses, the selection criteria for CMOs consisted of those organizations which generally issued music licenses and collected royalty revenue on behalf of other rights-holder members.

In India, the following three CMOs were identified for this review: the Indian Performing Right Society ("IPRS") which collects on behalf of composers, lyricists, and publisher-members[6]; the Phonographic Performance Limited ("PPL") which exclusively controls public performance and broadcasting rights for its music label members[7]; and the Indian Singers Rights Association ("ISRA") which is currently the sole officially registered copyright society collecting on behalf of singers for their Performer's Rights. [8]

The status of IPRS and PPL as registered societies are ambiguous due to recent reports of registration withdrawal [9]; therefore compliance to Section 33 of the Copyright Act is uncertain. However, the authors chose to uphold the same standards in this review due to similarity in purpose and functioning.

In the U.S., the identified CMOs included the American Society of Composers, Authors, and Publishers ("ASCAP"), Broadcast Music, Inc, ("BMI") and SESAC (originally the Society of European Stage Authors and Composers) which are all competing Performing Rights Organizations collecting on behalf of songwriters and music publishers for public performance rights. SoundExchange is responsible for managing digital sound recordings for copyright owners (mostly music labels) and performing artists; while Harry Fox Agency ("HFA") collects mechanical royalties on behalf of publishers and songwriters when their compositions are reproduced.

In the U.K., two CMOs were identified: PRS for Music which manages public performance rights on behalf of songwriters, composers, and music publishers; and Phonographic Performance Limited ("PPL-UK"), which manages the rights of performers and record producers. Unlike the United States and India, each society exclusively manages separate categories of works. Although technically a compulsory collective licensing scheme is mandated under Indian copyright law for musical works incorporated in cinematograph films or sound recordings, ambiguity in India remains due to the unregistered/deregistered yet still functioning licensing bodies.

Identifying the comparative parameters

To compare CMOs transparency, the authors sought to develop a feasible proxy to determine their website's degree of disclosure. This was done considering two main stakeholders who most often access CMO websites: rights-holders, and users. The rights holders are owners and/or authors of a copyright or related right (i.e. performer's right) who is a member, has sought membership, or is a potential member of the CMO. The user is any person or organization who seeks to use the copyrighted work and is hence made to pay a fee for such use. This fee is generally based on the licensing agreement, struck between the CMO and the user on behalf of their collective rights holders.

Thus, the following information was identified to be useful for comparative assessment: list of members, governing directors, usage types, tariff rates, royalty distribution policy, annual revenue report, and percentage of distributed royalties. The justifications, and comparative findings are outlined below.

FINDINGS

List of members

Publishing members lists is useful for potential users since it can collectively reduce search costs for ownership information, making the process of licensing and royalty collection more efficient overall. In addition, users approached for licensing payment can also verify that the CMO is indeed authorized to administer those works. This has been a recurring issue in recent history for CMOs in both the United States [10] and India[11], which have reported extortion-like licensing demands for songs which may not have been even owned by their member rights-holders. Some have been alleged to demand licenses for broad, undefined catalogs like entire genres of music.[12] Having members lists published can prevent these discrepancies.

In India, all identified CMOs published their membership lists in accordance with Rule 66, section 1(c) of the Copyright Rules, which mandates the disclosure of members lists explicitly on the website.

In the U.S., all CMOs have published their membership data either as full lists or in the form of a searchable repertoire database corresponding with the specific work. This presentation format was similar in the U.K. although PRS for Music restricted access to authorized users. Nevertheless, this disclosure went beyond U.K.'s Copyright Regulations which only require the number of rights holders represented, whether as members or non-member rights holders to be published in the annual report. To the authors' knowledge, the U.S. does not seem to have an equivalent law as such.

Several CMO websites in the U.S. and U.K. also feature a search for owners of orphan works - copyrighted songs within their catalog in which the due rights-holders are unable to be contacted, or simply unknown due to a multitude of reasons, including lack of data collection, transfer of rights, unknown inheritance from deceased rights holders, amongst others. Many of these CMOs hold undistributed royalties for these works, bringing to question whether rights-holder members truly give genuine authorization for their continued licensing.

India's CMOs could enhance their transparency by adopting the repertoire format of membership disclosure which corresponds with each copyrighted work. It could also provide a platform to collectively identify orphan works' due rights-holders.

Country	CMO	List of Members Available on Website?	Regulation?
India	IPRS	Yes	Copyright Rules, 2013, Rule 66 Code of Conduct for Copyright Societies. Section (1): Every society shall make available on its website... c) List of all members in the general body
	PPL	Yes
	ISRA	Yes
United States	ASCAP	Yes, members can be searched through a database[13]	N/A
	BMI	Yes, members can be searched through a database.[14]
	SESAC	Yes, member list available through repertoire search and as downloadable full list.[15]
	SoundExchange	Yes
	HFA	Yes, artists can be individually searched via HFA's 'Songfile' database[16] but not available as a whole
United Kingdom	PPL UK	Yes, repertoire search database including member/label search exists.[17]	The Copyright (Regulation of Relevant Licensing Bodies )Regulations , 2014 Reporting Requirements 6. The code of practice shall require the relevant licensing body to publish an annual report which includes: a) the number of right holders represented, whether as members or through representative arrangements including, where possible and if applicable, an estimate of the number of non-member right holders represented by any Extended Collective Licensing Scheme
	PRS for Music	A database exists but restricted to authorized users

Governing directors

For rights holder members, knowledge of the governing members directing the functioning of the CMO can help ensure decision making occurs in a representative, accountable manner. In 2011, it was found that IPRS and PPL of India were governed by the same Board of Directors [18], despite theoretically managing distinct sets of rights and representing different rights-holder members. Stopps (2013) in WIPO's 'How to Make a Living from Music' states that democratic governance is highly desirable if not essential, since the board structure should ideally reflect the rights they administer.[19]

In India, all CMOs comply with the 2013 Copyright Rules which mandates the publishing of Governing Council members on its website. All CMOs in the United States, with the exception of SESAC have published information on their governing or executive board. SESAC does highlight the appointment of the CEO within its 'news' section, but not in an easily accessible location.

In the UK, the governing directors are disclosed, though not explicitly mandated for disclosure on the website. Copyright Regulations does require the appointment procedure of the Directors and their remuneration be included in the Annual Report. India's 2014 Copyright Rules appears relatively stringent in comparison given the process is specified in detail rather than a self-regulated process.

Country	CMO	Governing Directors Available on Website?	Regulation?
India	IPRS	Yes	Copyright Rules, 2013, Rule 66 Code of Conduct for Copyright Societies. Section (1): Every society shall make available on its website… d) Names and address of chairman, other members of the Governing Council and other officers in the society Copyright Rules 59 Management of Copyright Society (1) Every copyright society shall have… a) General body…b) Governing Council with Chairman… c) a CEO… (3) The Chairman shall be elected by two third of the majority….
	PPL	Yes
	ISRA	Yes
United States	ASCAP	Yes	N/A
	BMI	Yes, management
	SESAC	Appointment of CEO announced under 'News' section.[20] No other members found
	SoundExchange	Yes
	HFA	Yes
United Kingdom	PPL UK	Yes	Copyright (Regulation of Relevant Licensing Bodies) Regulations, 2014 requires the procedure for appointment of Directors, and the list of remuneration of the Directors to be included in the Annual Report.
	PRS for Music	Yes

User Categories

The categorization of users simply allow potential licensees to understand when they would be legally required to purchase a music license given the scope and scale of their business/usage. User categories can range from restaurants, internet streaming, radio broadcasting, and live performance; to the physical reproduction of a musical composition or sound recording (for example through photocopying of sheet music or burning of CDs).

All CMOs identified had user categories displayed on the websites, with some presenting the distinctions through search options while others outlined usage types as a general list. Only India's Copyright Rules mandated the publishing of different categories of users as part of their tariff scheme.
U.S.'s HFA did not not distinguish licensing requirements by user type, but did communicate when a license would be needed through simple questions regarding usage.

Country	CMO	User categories Available on Website?	Regulation?
India	IPRS	Yes	According to Rule 56 of the Copyright Rules, 2013, it is mandatory for Indian CMOs to publish on their website the different categories of users in their Tariff Scheme
	PPL	Yes
	ISRA	Yes
United States	ASCAP	Yes	N/A
	BMI	Yes, Search bar for user types available
	SESAC	Yes
	SoundExchange	Yes
	HFA	Not specifically, but section on 'What kind of license do I need' delineates user types
United Kingdom	PPL UK	Yes	N/A
	PRS for Music	Yes

Tariff Rates

Tariff rates are the costs of licenses issued by the CMOs. The calculation of these rates are done in a myriad of ways, ranging from being fixed by statutory provisions, set collectively by CMOs, or negotiated privately in a willing buyer-willing seller market. Some rate-setting considerations have included anticipated number of listeners, physical size of establishment, time of music use, number of loudspeakers, etc. Due to similarities in mode and scale of usage, most fixed tariff rates such as blanket licenses offered by CMOs are distinguished by different categories of users, most fixed tariff rates are divided accordingly.

In a market like the U.S. where CMOs compete to sublicense similar kinds of rights, publishing tariff rates can enable comparison of licensing fees for the most cost effective choice.[21] It can also allow users to forecast licensing expenses and adjust their business models or anticipated usage accordingly. Lastly, transparent cost calculations as opposed to hidden negotiated rates can prevent price and user discrimination, since licensees can verify the accuracy of their license charge.

In India, IPRS and ISRA complies to Rule 56 (2) of the Copyright Rules 2014 which mandates the publication of rates distinguished by categories of users, mode of exploitation, user group, durations of use, and territory. In U.K., both CMOs comply with Section 5(c) of their Copyright Regulations 2014 which mandates the publication of 'tariff rates in a uniform format' on the website as part of the monitoring and reporting requirements. In the U.S., all CMOs with the exception of ASCAP publish their tariff rates.

Although the U.S. does not seem to mandate the explicit disclosure of rates, both U.S. and India set statutory rates for certain uses of sound recordings. In the U.S. for example, the rates for ephemeral sound recordings akin to non-interactive, radio-like services are set by the Copyright Royalty Board under S17 USC 112 and 114. Similarly, in India, a statutory rate is also fixed by the Copyright Board for radio broadcasting.

As an anticompetitive measure, music consent decrees in the U.S. also mandate that ASCAP and BMI provide licenses on equivalent, non exclusive terms. This means that while its members can still individually refrain from joining a CMO in its entirety, partial withdrawing of their works from blanket licenses are not allowed.[22]

Despite fairly affordable statutory rates for use in non-interactive services, interactive streaming which seeks to host popular content often still requires direct licensing agreements from major record label conglomerates. Due to the importance of acquiring that content, these labels are often able to negotiate exclusive deals with hidden terms. Evolving music consumption patterns and an inconsistent rate-setting landscape have raised grievances, particularly amongst songwriters. In the U.S., this has led to the Copyright Office's review and reconsideration of the music licensing landscape in recent months, while in India, the cost of content acquisition remain a source of debate by the services.

Country	CMO	Tariff Rates Available on Website?	Regulation?
India	IPRS	Yes, listed as per usage types	Section 33A of the Copyright Act, 1957 and Rule 56 of the Copyright Rules, 2013: ...must indicate separate for categories of users, media of exploitation, user group, durations of use and territory, etc.
	PPL	No
	ISRA	Yes
United States	ASCAP	No, must request	No regulation mandating the disclosure of tariff rates. Consent decrees for BMI/ASCAP as an anticompetitive measure mandates offering of licenses to services on equivalent, non exclusive terms. Statutory rates set by the Copyright Royalty Board under 17 U.S.C. 112 and 114.
	BMI	Yes
	SESAC	Yes
	SoundExchange	Yes
	HFA	Yes, rate charts published[23]
United Kingdom	PPL UK	Yes	The Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014 Section 5 of its Specified Criteria mandates 'provide details of tariffs in a uniform format on its website.
	PRS for Music	Yes

Royalty distribution policy

The royalty distribution policy typically outlines the process and manner of royalty distribution, specifying how royalty is split between member-rights holders and the CMO. It usually notes the frequency of payments as well. Since one of the main reasons a rights-holder seeks membership within a CMO is to ensure their royalties are received on a consistent basis without themselves having to track down all users of their work, a transparent distribution policy is of utmost importance.

In India, IPRS and ISRA published the distribution policy on their website in compliance with Rule 58 of the Copyright Rules. Upon review of both, it was interesting to note the lack of detail in India's policies. Although it is specified in the Act, ISRA does not convey on its website clearly the distribution of percentages, nor the administrative cut it seeks to take. IPRS was very unclear about their frequency of payments, noting that "The distribution of Royalties shall be carried out promptly from time to time", despite the Copyright rules stipulating that the frequency be set at every quarter.

In the U.S., S . 370.5 (c )of the Code of Federal Regulations for statutorily set sound recordings do state that online-published Annual Reports must have information on how royalties are collected, distributed, and spent as administrative expenses. All CMOs seem to comply.

In the UK, Section 6 of the 2014 Copyright Regulations Specified Criteria mandates reporting of the distribution policy in its annual report. Both identified CMOs comply.

Country	CMO	Royalty Distribution Policy Available on Website?	Regulation?
India	IPRS	Yes, although quite vague, unclear frequency of payments[24]	Rule 58 of the Copyright Rules 2013 outline the terms of the Royalty Distribution Policy
	PPL	No
	ISRA	Yes, but vague, unclear re: distribution of percentages and administrative deduction.
United States	ASCAP	Yes, it outlines exactly how it is calculated	For designated collection and distribution companies for use of sound recordings under statutory licenses: S . 370.5 ( c ) of the Code of Federal Regulations , as part of the annual Report, Collectives must indicate how royalties are collected and distributed.
	BMI	Yes, in the Royalty Policy Manual
	SESAC	Yes
	SoundExchange	Yes
	HFA	Yes, rate charts[25] and commission rates revealed.
United Kingdom	PPL UK	Yes	The Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014 Section 6 Reporting Requirements of its Specified Criteria mandates the publishing of the distribution policy in its annual report.
	PRS for Music	Yes

Annual revenue report

The annual revenue report provides an overview of total income, which is particularly important for a CMO acting as a non-profit organization. Rightsholders can assess what the rest of the revenue is being used for, and cross-verify whether the self-reported data is true. For market and policy researchers, the annual revenue report can also provide the breakdown of which licensing services or catalogs are being used. An externally audited revenue report also enhances trust in the organization and ensures reliable financial transparency. Thus, the publication of the annual revenue report forms one of the most important benchmarks of transparency.

In India, only IPRS has published their 2013-14 annual revenue report in compliance with Rule 66 of the Copyright Rules which mandates the publishing of an annual report and audited accounts on their website. None of the other CMOs seem to have done this.

In the United States,S . 370.5 (c ) of the Code of Federal Regulations mandates that CMOs collecting and distributing for statutorily licensed sound recordings must publish their annual revenue report. CMO SoundExchange complies, while HFA does so voluntarily. ASCAP and BMI also post their reports on occasion with a few years missing, but SESAC's report seems to be absent, possibly due to private incorporated company status.

In the UK, both CMOs comply with the 2014 Copyright Regulations under Rule 6 mandating the publication of an annual report.

Country	CMO	Annual Revenue Report Available on Website?	Regulation?
India	IPRS	Yes, for year '13-'14	Rule 66 of the Copyright Rules, 2013, CMOs mandate the publishing of an annual report and audited accounts on their website.
	PPL	No
	ISRA	No
United States	ASCAP	Yes, until 2013	For designated collection and distribution companies for use of sound recordings under statutory licenses: S . 370.5 ( c ) of the Code of Federal Regulations .
	BMI	Sporadically posted
	SESAC	No (possibly because privately held company?)
	SoundExchange	Yes
	HFA	Yes
United Kingdom	PPL UK	Yes, until 2013	In UK, the Copyright (Regulation of Relevant Licensing Bodies) Regulations, 2014 under Rule 6 requires that every CMO publish an annual report containing the annual financial statements, collections from the different licenses and the distribution of royalties.
	PRS for Music	Yes, until 2014

Percentage of Revenue as Distributed Royalties

Given the main function of CMOs are to secure royalties for rights-holders, the percentage of revenue as distributed royalties was calculated using numbers from the latest published annual revenue reports. Although there are differences in CMO mandates and subsequently their investment on litigation and advocacy for example, the proportion of revenue as distributed royalties was used as a simplified proxy of effectiveness for this review. [26]

For those CMOs who published their annual revenue reports, it was found that the percentage of revenue as distributed royalties seemed to range between 80-90%. Given the controversies surrounding collecting societies in India, it was admittedly surprising that IPRS' distributed royalty percentage averaged almost 1% higher than comparable societies in the UK. It is also interesting that the United States seem to have the most efficient CMOs, with two rounding to 90%.

Country	CMO	Data reported on Website	Percentage of Revenue as Distributed Royalties
India	IPRS	From 2013/14 annual revenue report: Net royalties payable: Rs 396743413 / License fees total revenue Rs 470934348:	0.84246013204 = 84.25%
	PPL	N/A	N/A
	ISRA	N/A	N/A
United States	ASCAP	Self reported 88cents/dollar goes back to artists. 2014 Revenue Report: Total receipts: 945 385 Total distribution to members: 850 984	850 984/945 385 = 0.90014544339 90.01%
	BMI	Self reported numbers from press release: "For the fiscal year ending June 30, 2012, BMI reported revenues of $898.7 million and royalty distributions to our affiliates totaling $749.8 million."	749.8 / 898.7 = 0.83431623456 83.43%
	SESAC	N/A
	SoundExchange	Self reported from pre-audit 2013 fiscal report[27]: Total Royalties Collected $656 Total gross distributions $590	590 / 656 = 0.8993902439 89.94%
	HFA	N/A but self reported 11.5% commission[28]	N/A
United Kingdom	PPL UK	Self reported from 2013 financial statement:[29] Total license fee income: £176.9 m Net distributable revenue: £148.4m	0.83889202939 83.89%
	PRS for Music	Self-reported from 2014 annual revenue report[30]: Our royalty revenues for the year were £664.3m, of which we distributed £565.6m to members.	565.6/664.3 = 0.85142255005 85.14%

LIMITATIONS & LEARNINGS

The major limitation of this review is rooted in its various methodological weaknesses, ranging from the sampling of countries, inclusion of ambiguous CMOs, possible bias towards Indian copyright law during the parameter design, limitations of distributed royalties percentage as an effectiveness proxy, lack of measurable factors when attempting to evaluate 'ease of website use', and somewhat shallow legal research. Nevertheless, these were part and parcel of the learnings which stemmed from this review.

Limitations in Country Selection Process

The selection of countries to be assessed was not very methodologically sound. After further literature review, it seems a more representative sample could have been selected. Dr. Fabrice Rochelandet in his 1996 conference paper ' Are Collecting Societies Efficient? An evaluation of collective administration of copyright in Europe' categorized legal supervision systems in the following spectrum: lack of control, control at request, setting up control, permanent control, and extreme control. [31]

Rochelandet (1996) identifies UK as having 'control at request' since decisions surrounding operations are generally left up to the CMO themselves, exemplified by the freedom to develop their own functioning and code of practices, which then must be approved. Control at request is also demonstrated by rights-holder members ability to procure certain documentation upon request, and call upon the tribunals for dispute resolution if desired.

Using this taxonomy, India would likely span across 'setting up control', 'control at request', and possibly 'permanent control'. Setting up control is fitting since the 2012 Copyright Amendment mandates the registration of any organization in the business of issuing and granting licenses for underlying musical works (composition and lyrics) as a 'copyright society'. Typically this requires extensive documentation on procedural and governance matters, most of which is predetermined in detail in the 2012 Copyright Act and 2014 Rules. Permanent control may also apply since the Central Government has powers to cancel the registration of any copyright society and legally cease its functioning. Additionally, quite substantial regulations determine rate setting process and even calculation, as well as distribution of royalties. Lastly, control at request may also be fitting since similar to the UK system, an internal dispute resolution is legally mandated. However, any dispute can also be brought to the quasi-judicial Copyright Board if unable to settle matters internally.

The United States appears as if it would deviate from former examples of more involved legal supervision since it would likely be characterized by 'lack of control'. Few requirements exist regarding specific operations of licensing bodies, with the exception of rate setting for ephemereal sound recordings and anticompetitive consent decrees, the U.S. does provide a contrasting comparative system.

Although these examples do span across part of the spectrum of legal control, a future case study country could include one which mandates complete control such as in the case of Italy with a single state granted monopolist or New Zealand in which a single clearance license is offered to reduce complexity and transaction costs for music users.[32]

Limitations of CMO Identification

Throughout the methodology design, one of the main challenges was deciding which CMOs to include in the review. Due to lack of in-depth knowledge of U.S. and U.K.'s music licensing space, the initial survey and selection included bodies irrelevant to music licensing specifically. Due to the ambiguity in India, all organizations who were involved in some form collective licensing were initially included, including private entities like Novex Communications, and the South Indian Music Companies Association, due to their seeming similarities in functioning. However, they were eventually excluded in the final review to include only those which have received registered society status, or are currently registered as such.

There was also a lack of distinction made between licensing bodies specifically managing underlying works like music composition and lyrics, sound recording (phonographic rights), and performance rights. Although interesting insights may have been able to be drawn between similarly managed members and rights, the disaggregated rights management in the U.S. made these categorizations and comparisons challenging.

Part of the confusion stemmed from the vast variety of CMO systems and characteristics. Ficsor (2003) distinguishes these differences from four varying viewpoints: the level of collectivization, rights' owners freedom of choice, scope of rights and rights-owners covered, and the freedom of CMOs to set rates and other licensing terms.[33] The level of collectivization range in terms of representation, authorization, and even distribution of royalties/returns. The freedom of rights owners' have range in the ability to choose joint management of rights, or even which CMO to manage their rights -- assuming the option is not restricted by their respective copyright laws. The scope of rights and rights owners covered by a CMO varies from exclusively managing its own members rights, occasionally managing other members rights, and occasionally managing all similar members rights with no ability to opt out. Lastly, the freedom of CMOs to set rates and licensing terms range from free negotiations with the possibility of an arbitration body, to legally fixed predetermined rates and conditions.

The tremendous variety of CMO characteristics and the lack of bright lines in defining control factors for this review's selection meant that major music publishers, music services who directly issue payment, and even content aggregators who collate and distribute works for a certain fee could have been included. However, the decision to include only those officially recognized and legally registered as CMOs enhanced the feasibility of this review.

Limitations of Parameter Selection

While reviewing the parameters for transparency, it soon became clear that there were several limitations to the information identified. These include heavy influence in its development from India's context and legal provisions, an assumed value in transparency for transparency's sake, lack of specificity when surveying 'ease of website use', overly simplified proxy for efficiency measurement, a relatively shallow review of the law, and lack of assessment of membership data.

While selecting the comparative parameters, the process of developing a feasible transparency proxy may have been tilted towards the context and legal developments of India. This appeared to be the case when the first round of data collection was inconsistent with further reviews due to what appeared to be differences in the terms being sought - terms used in the Indian Copyright Act - rather than the substance of the content. This is indicative of how India's laws heavily influenced the development of the parameters.

Exposure to mistrust and lack of data in the Indian context may have also led authors to a somewhat presumed ideal of transparency for transparency's sake, implying in a weak correlation between publicly available information, the more effective the website and possibly the CMO . However, Schroff (2014) noted that information overload could occur if a potential licensee is uncertain what they are looking for.[34] From an efficiency point of view, search costs may actually decrease if less information is provided upfront, but better presented in more accessible language and format to guide the user to the relevant information.

Following review of the websites for a list of members, it appears that a more fruitful parameter may have been the publication of actual works and affiliated creators, rather than only the rights-holder members themselves. A grievance occasionally raised is the lack of recognition of composers and producers within a song, since it is typically the singer (or in the case of Indian film music, the actor and the film) who the audience associates with the work. Thus, a full repertoire list could be a useful addition for Indian websites to consider.

The selection of governing directors as a marker of transparency may have also been influenced by India's recent concerns surrounding copyright societies' leadership. Although it is a useful indicator, private, for-profit CMOs which have exclusive membership does not necessarily have the same burdens of a compulsory collective licensing scheme in which representation is necessary. What may be more useful for members is ensuring a dispute resolution process is easily accessible so that any grievances can be taken up through proper channels.

Identifying a relatively simple proxy for effectiveness and efficiency was also challenging. Many CMOs in their annual reports highlighted figures such as 'administrative costs', 'operation costs', 'cost to income ratios', and other similar indicators to report expenses outside of royalty licensing, collection, and distribution. However, due to differences in calculations, a simplified proxy was developed to assess the effectiveness of their core purpose of royalty distribution. However, this calculation does not account for absolute sums, year on year growth, taxation, and other non-monetary benefits. In addition, the differing years, geographies, and class of works makes comparison not very methodologically sound.

The authors had initially included 'ease of website use' as part of the review. However, this parameter was not very clearly developed and defined, and thus reviewed subjectively by different research assistants with varying assessments. Nevertheless, closer attention was paid to web design and user interface to enable greater efficiency in searching for relevant information. Future assessments could measure the number of clicks or amount of time it takes to find a certain piece of oft-sought information.

The assessment of each country's relevant laws was based on whether reporting the information online was mandated by law. However, throughout the exercise it soon became clear that beyond reporting standards, more interesting distinctions such as the level of control and specificity to which the law sought to determine functioning and operations of the CMOs. Although this was briefly touched upon throughout the review, further research should be explored in this area.

Lastly, data the authors did not seek due to logistical limitations were membership-exclusive information. Recent complaints about royalties of streaming services have resulted in the publishing of
numerous HFA and SoundExchange royalty reports by their rights-owners. These reports outline the services and songs from which they have received their royalties, allowing for more informed debate and discussion of royalty payouts and business models of the various digital services. Ongoing research surrounding copyright management in India have found that detailed reports on how royalty was calculated, or from which works/services they were generated are often absent upon receipt of their royalty cheques.

CONCLUSIONS

Despite India's strict legal provisions and control regarding registration, operations, rate setting, and reporting, it appears there is little enforcement and even less compliance, particularly by Phonographic Performance Limited which failed to report tariff rates, royalty distribution policy, and its annual revenue report. The Indian Singers Rights Association published all parameters sought with the exception of their annual revenue report, leaving authors without data needed to calculate the percentage of distributed royalty. The Indian Performing Rights Association provided all information sought in this review, with an 84.25% of revenue as distributed royalties as calculated from its 2013/14 annual revenue report.

Relative to India, CMOs in United Kingdom were regulated less strictly, allowing self-developed codes of conduct providing adherence to certain broad guidelines on operations and reporting. It appears the government only imposes rules in the absence of adequate self-regulation. U.K.'s Phonographic Performance Limited displayed all six indicators sought, with 83.9% as distributed revenues from its 2013 financial statement. PRS for Music did not make its members list and repertoire open to the general public, but did publish all other parameters with 85.1% of distributed revenues as calculated from its 2014 annual revenue report.

To the authors' knowledge, the U.S. has the least operations regulation for CMOs with the exception of reporting laws for those issuing statutory licenses. Anticompetitive consent decrees also prevent partial withdrawal from blanket licenses to ensure non-discrimination towards select services. Despite relaxed regulation, BMI and SoundExchange reported all identified parameters, while ASCAP and HFA reported five, with SESAC only having four. ASCAP, Sound Exchange, and BMI were the only ones to have published their annual revenue report, with percentage of revenue royalty calculated to 90.0%, 89.9%, and 83.4% respectively.

It is important to reiterate however that information transparency demonstrated by CMOs website does not necessarily indicate effectiveness. Though not necessarily the most accurate indicator, there appeared no significant correlation between the percentage of distributed royalties, and amount of information found. All three countries have recently, or are currently undergoing regulatory reviews and reform to enhance copyright management. India's Copyright Amendment Act and Copyright Rules was a response to allegations of corruption and collusion of copyright societies. The legal status of certain CMOs and other private authorized agents not included here are ambiguous. Though they seem to function similarly to private CMOs in the US, whether they will be obliged to comply with copyright societies regulation is uncertain. The United States' Copyright Office has recently undergone a major study of the music licensing landscape. One of the major grievances highlighted was the disparity between negotiated sound recording rates and statutory rates of licenses for works of composers and publishers for the rapidly growing use of internet radio streaming. This disparity is furthered by the aforementioned Consent Decrees. In early 2014, the European Commission had also adopted the Collective Rights Management Directive with the main objectives of increasing transparency and efficiency of CMOs, and to facilitate cross-border licensing for music online. Thus, transparency and increased effectiveness of CMOs particularly in light of the digital age are being made a priority within legislation; and hopefully, in execution as well.

Recommendations

Through reviewing other CMO websites, a few learnings were found which could be adopted by Indian CMOs for enhanced transparency and effectiveness:

Publish a full repertoire of works the CMO is authorized to license with corresponding rights holder information. This recommendation stems from other CMO websites which present their administrable works in a searchable database, allowing users the ability to efficiently identify whether the work they seek to use are covered by the license.
Provide a platform for collectively identifying the due rights-holder of orphan works. This recommendation was a feature found in several other websites which lost contact with the rights holder through failure to update ownership information in the case of rights transfer, changes in contact details ,passing of the original author, unknown inheritance, and more.
Guide new users and potential members through a more user-friendly designed page with simplified, accessible introduction to music licensing. As exemplified by the layout of other websites, the webpage could be subdivided between information useful for prospective or current licensees, and prospective or current member rights-holders. Basic questions framed in accessible language can guide the website user to the correct information.
Increase clarity surrounding royalty distribution policies. During the review, IPRS and ISRA's royalty distribution scheme were noticeably vague. Although ISRA noted the most crucial elements, certain details like how "reliable statistical data" were to be procured and calculated in the case of missing log sheets was absent. IPRS was even more obscure, noting their frequency of royalty distribution would occur "promptly, from time to time."
Publish updated annual revenue reports. This document is probably one of the key indicators of how a CMO is doing financially, and it is important that these are made available so CMOs remain transparent and accountable to its rights-holder members and users.
Clarify dispute resolution processes. This is important particularly for those jurisdictions which do not allow much choice, if at all, between various institutions and rate-setting processes. Membership and representation would ideally provide and promote proper channels for raising and addressing grievances prior to seeking legal remedies.

Further Questions

Although a few insights were found through this review, the numerous limitations indicate a better designed exercise asking different, more nuanced questions may uncover some more fruitful conclusions. Future research could explore membership-exclusive data, and how reporting is presented across CMOs. From a legal standpoint, a more detailed analysis of regulations across different jurisdictions may shed light on different international standards of transparency and reporting. Additionally, given that the highest percentage of distributed royalties were from CMOs based in the U.S., the correlation leads to the question of whether more relaxed reporting requirements, or perhaps a competitive CMO structure can actually contribute to increased effectiveness? Lastly, given the increasingly complex licensing environment and continued creation of rights due to technological innovations, the feasibility of this system to monitor and finance music should be questioned as well. Further research on alternative compensation schemes considering tax-based, or patron-based financing will increasingly become more feasible and important systems to explore.

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Reddy, Prashant. "Did the Big Music Companies on IPRS & PPL Collude to Deny Lyricists and Composers Crores of Rupees in 'Ringtone Royalties? - An Investigation." Http://spicyipindia.blogspot.in/2011/02/did-big-music-companies-on-iprs-ppl.html. Spicy IP, February 14, 2011. http://spicyipindia.blogspot.in/2011/02/did-big-music-companies-on-iprs-ppl.html.
Reid, Harvey. "ASCAP & BMI - Protectors of Artists or Shadowy Thieves?" Wooedpecker.com, 1993. http://www.woodpecker.com/writing/essays/royalty-politics.html.
SESAC. "Repertory Seearch." SESAC, n.d. https://www.sesac.com/repertory/RepertorySearch.aspx?x=100&y=22.
---. "SESAC Announces the Appointment of John Josephson as Chairman and CEO of SESAC," July 31, 2014. http://www.sesac.com/News/News_Details.aspx?id=2109.
Smirke, Richard. "U.K. Music Industry Sets Trade Mission to India." Billboard, September 4, 2014. http://www.billboard.com/articles/business/6243633/ukti-aim-bpi-trade-mission-india-mumbai.
Sound Exchange. "Sound Exchange Draft Annual Report 2013." Annual Report. Sound Exchange, 2013. http://www.soundexchange.com/wp-content/uploads/2014/03/2013-Fiscal-Report-PRE-AUDIT.pdf.
Stopps, David. "How to Make a Living from Music." Creative Industries. WIPO, 2013. http://www.wipo.int/edocs/pubdocs/en/copyright/939/wipo_pub_939.pdf.

[1] FICCI & KPMG. "The Stage Is Set: FICCI-KPMG Indian Media and Entertainment Industry Report 2014." https://www.kpmg.com/IN/en/Topics/FICCI-Frames/Documents/FICCI-Frames-2014-The-stage-is-set-Report-2014.pdf

[2] Centre for Internet and Society. "Research Proposal: Pervasive Technologies: Access to Knowledge in the Marketplace.," http://www.google.com/url?q=http%3A%2F%2Fcis-india.org%2Fa2k%2Fpervasive-technologies-research-proposal.pdf&sa=D&sntz=1&usg=AFQjCNF4hnAUXGIRMcUozZfs5QOFwvO55A.

[3] Huang, Maggie. "Copyright Management in the Age of Mobile Music," December 26, 2014. http://cis-india.org/a2k/blogs/copyright-management-in-age-of-mobile-music.

[4] Reddy, Prashant. "The Background Score to the Copyright (Amendment) Act." NUJS Review 5, no. 4 (2012). http://nujslawreview.org/wp-content/uploads/2015/02/01_prashant.pdf.

[5] Smirke, Richard. "U.K. Music Industry Sets Trade Mission to India." Billboard, Sept 4, 2014. http://www.billboard.com/articles/business/6243633/ukti-aim-bpi-trade-mission-india-mumbai.

[6] IPRS. "The Indian Performing Right Society Limited.," http://www.iprs.org/cms/.

[7] PPL. "About Us." Phonographic Performance LImited, n.d. http://www.pplindia.org/aboutus.aspx.

[8] ISRA. "About ISRA." ISRA Copyright, n.d. http://isracopyright.com/about_isra.php.

[9] Agarwal, Devika. "After IPRS, PPL next to Claim It Is Not a 'Copyright Society.'" SpicyIP, Mar 30 2015. http://spicyip.com/2015/03/after-iprs-ppl-next-to-claim-that-it-is-not-a-copyright-society.html.

[10] Reid, Harvey. "ASCAP & BMI - Protectors of Artists or Shadowy Thieves?" Wooedpecker.com, 1993. http://www.woodpecker.com/writing/essays/royalty-politics.html.

[11] Basheer, Shamnad. "Indian Copyright Collecting Societies and Foreign Royalties: Whither Transparency?," November 18, 2008. http://spicyip.com/2008/11/indian-copyright-collecting-societies.html.

[12] Philipes, Richard Hayes. "How One Independent Musician Defeated BMI." Woodpecker.com, 2003. http://www.woodpecker.com/writing/essays/phillips.html.

[13] ASCAP. "Ascap Clearance Express (ACE) Search." ASCAP We Create Music, https://www.ascap.com/Home/ace-title-search/index.aspx.

[14] BMI. "BMI Search." BMI http://www.bmi.com/search.

[15] SESAC. "Repertory Seearch." SESAC, https://www.sesac.com/repertory/RepertorySearch.aspx?x=100&y=22.

[16] Harry Fox. "Songfile Search." Songfile,

https://secure.harryfox.com/songfile/termsofuse/publictermsofuse.do.

[17] PPL. "PPL Member/Label Search," http://repsearch.ppluk.com/ars/faces/pages/licenseSearch.jspx?_afrWindowMode=0&_afrLoop=6609527708771000&_adf.ctrl-state=17ajb42h7o_4.

[18] Reddy, Prashant. "Did the Big Music Companies on IPRS & PPL Collude to Deny Lyricists and Composers Crores of Rupees in 'Ringtone Royalties? - An Investigation." http://spicyipindia.blogspot.in/2011/02/did-big-music-companies-on-iprs-ppl.html. Spicy IP, Feb 14 2011.

[19] Stopps, David. "How to Make a Living from Music." Creative Industries. WIPO, 2013. http://www.wipo.int/edocs/pubdocs/en/copyright/939/wipo_pub_939.pdf.

[20] SESAC. "SESAC Announces the Appointment of John Josephson as Chairman and CEO of SESAC," July 31, 2014. http://www.sesac.com/News/News_Details.aspx?id=2109.

[21] Although it is important to note that each work can only be registered exclusively to one society, so the catalogs won't be identical.

[22] Future of Music Coalition. "ASCAP - BMI Consent Decrees." Future of Music Coalition, October 3, 2014. https://futureofmusic.org/article/fact-sheet/ascap-bmi-consent-decrees.

[23] HFA. "Rate Charts," 2014. https://www.harryfox.com/find_out/rate_charts.html.

[24] IPRS. "Distribution Scheme As Per 17-5-2013." Indian Performing Right Association, 2012. http://www.iprs.org/cms/IPRS/DistributionScheme.aspx.

[25] HFA. "Rate Charts," 2014. https://www.harryfox.com/find_out/rate_charts.html.

[26] However, it is important to note the major limitations of these numbers in making any sort of conclusions due to data acquired from different years, varying geographies, without accounting for differing mandates and non-royalty collection activities. More reflections on this in the Limitations and Learnings Section

[27] "Sound Exchange Draft Annual Report 2013." Annual Report. Sound Exchange, 2013. http://www.soundexchange.com/wp-content/uploads/2014/03/2013-Fiscal-Report-PRE-AUDIT.pdf.

[28] "HFA Commission Rates." HFA, https://www.harryfox.com/publishers/commission_rate.html.

[29] PPL UK. "Annual Review 2014." Annual Revenue Report, 2014. http://www.ppluk.com/Documents/Annual%20reviews/PPL_Annual_Report_2014.pdf.

[30] PRS for Music. "PRS for Music 2014 Review." Annual Review, 2014. https://www.prsformusic.com/SiteCollectionDocuments/About%20MCPS-PRS/financial-results/prs-for-music-financial-review-2014.pdf.

[31] Rochelandet, Fabrice. "Are Copyright Collecting Societies Efficient? An Evaluation of Collective Administration of Copyright in Europe." Universidad Autónoma de Madrid, 2002.

[32] Resnikoff, Paul. "New Zealand Invents the 'Single Music License' for ALL Performances…." Digital Music News, September 30, 2013. http://www.digitalmusicnews.com/permalink/2013/09/30/newzealand.

[33] Ficsor, Mihali. Collective Management of Copyright and Related Rights. Geneva: WIPO, 2002. http://www.wipo.int/edocs/pubdocs/en/copyright/855/wipo_pub_855.pdf.

[34] Andrew. "Transparency and the Collective Management Organisations." CREATe, October 1, 2014. http://www.create.ac.uk/blog/2014/10/01/transparency-and-the-collective-management-organisations.

For more details visit https://cis-india.org/a2k/blogs/comparative-transparency-review-of-collective-management-organisations-in-india-uk-usa

To embed a tweet or not?

praskrishna — 2016-09-23T01:08:13Z

Experts say it would amount to copyright infringement if the fair use clause is exploited.

The article by Vidhi Choudhary was published by Livemint on September 23, 2016. Vidhushi Marda was quoted.

On 20 September, a user on Twitter put out details of her intriguing conversation with the driver of a leading cab hailing service that she had used. Simply put, their conversation led to the revelation of a possible scam with a direct competitor of the said cab service.

The subject of the detailed chat easily had the makings of an investigative story and, therefore, a digital news website in India reproduced the string of tweets put out by the user in the form of a story on its platform.

This was done without her consent and hence the user asked the digital platform to take that story down.

In the light of this episode, let’s take a look at the laws governing such a situation. The question is, does the use of the tweet by the digital news website amount to copyright infringement or not? Or, whether Twitter is liable or not?

As it turns out, Twitter has a safety net within the terms of service that a user must agree to before they sign up onto the platform. A company spokesperson confirmed that Twitter was not liable if a user’s Tweet is used by someone else. “On the issue of consent, one (individual/organization) needs to take consent from the other user before using his\her tweets,” the spokesperson said.

Media lawyer Apar Gupta agreed and said that Twitter’s terms of service clearly state a clause in favour of the platform which means it is not legally liable in the above mentioned situation. “They have a worldwide, irrevocable license to publish content on their platform, which is also provided for third party affiliates,” said Gupta.

The next question is whether a user’s tweet published by someone else amounts to copyright infringement.

“The law that’s applicable in such a situation is the Copyright Act. For the purpose of reportage you can path your use within the fair dealing section (52) of the Copyright Act. Secondly, if the content used was a work of literary nature and creative, it would be up for copyright protection, just a mere Twitter rant or factual statements might not be that plausible,” said Anubha Sinha, program officer, at Centre for Internet and Society (CIS).

Both Gupta and Sinha agreed that the ownership of the tweet rests with the user and only the user. “It would amount to copyright infringement if the fair use clause is exploited,” said Gupta.

To be sure, globally, too, media has been grappling with the issue. In a September 2013 article published on leading media platform, Poynter stated, “The legal rights to re-use content really only extend to Twitter, its official partners and anyone pulling tweet data through the Twitter API. So if you embed a tweet using the official Twitter-provided embed code, you should be fine. However, if you just copy and paste the text of a bunch of tweets, or download a Twitter photo and upload it to your own CMS, you may be on shakier ground. The “fair use” exceptions to copyright may still protect you depending on the circumstances, but you might have to prove it.”

For more details visit https://cis-india.org/a2k/news/livemint-september-23-2016-vidhi-choudhary-to-embed-a-tweet-or-not