Centre for Internet and Society

Entertainment industry and Internet piracy in focus

praskrishna — 2012-09-17T10:00:54Z

The first-of-its-kind initiative by the anti-piracy cell of the Kerala Police to register cases against 1,010 Internet users for uploading or downloading the Malayalam film Bachelor Party has sparked a debate between social media experts and legal puritans on what the law actually says.

Krishnadas Rajagopal's article was published in the Hindu on September 17, 2012. Pranesh Prakash and Prashant Iyengar are quoted.

Internet users and anti-monopoly advocates say the police action against movie downloaders is “questionable.” They argue how the Copyright Act, 1957, has given wide exception to those who disseminate copyright works for “personal and private use.”

Legal puritans, on the other hand, quote the same 1957 law and the Information Technology (IT) Act, 2000, to argue that the State police have not done anything wrong.

They say the act of uploading and downloading a copyrighted cinematographic work amounts to publishing and transmitting it, respectively.

They cite Section 66 of the IT Act, 2000, that says a “hacker,” if found guilty, can get three years’ imprisonment, a fine up to Rs.2 lakh, or even both.

That’s not all. Section 43 of the same statute prescribes that a “hacker” may have to cough up Rs.1 crore in compensation in case of “damage to the computer system.”

Middle line

Some others draw the middle line about the police’s drive. They say that though downloading is as illegal as buying a pirated CD from the market and “ignorance of law is no excuse to escape prosecution under an existing law,” the sheer magnitude of registering mass cases against downloaders, probably on a global scale, is impractical.

“It is questionable whether downloading for personal use by itself constitutes an offence under the Copyright Act, 1957. The Act has created a wide exception for personal and private use,” says Pranesh Prakash, programme manager for Access to Knowledge, Openness, Internet Governance and Freedom of Speech at The Centre for Internet and Society in Bangalore.

The usage “personal and private use” in the Act can be better understood in the contrast — that is, downloading without any intention to “disseminate the cinematographic work to a community you are not provisionally associated to.”

Legislative intent

Prashant Iyengar, Assistant Professor and Assistant Director, Centre for Intellectual Property Rights Studies, Jindal Global Law School, says the legislative intent behind the wide exceptions given to dissemination of work in the 1957 law is actually strengthening the public domain.

“In India under the Copyright Act, we have a robust regime of fair dealing rights to ensure that information cannot be monopolised at the expense of the public’s access to information,” he says.

He refers to Section 52 of the Act that allows reproduction of literary, artistic, musical, and dramatic works for research and private uses without any “quantitative restriction” on the amount that may be copied. “However, cinematographic works do not fall under this exception,” he says.

Under Section 51, a single copy of a cinematographic work could be “imported” to India for personal and domestic use. This would not amount to copyright infringement.

“But it is currently unsettled in law whether Section 51 would protect users downloading movies for their personal use. On the other hand, if you receive a copy of a movie CD by post, this section would clearly apply,” Mr. Iyengar says.

Pavan Duggal, senior Supreme Court lawyer specialising in cyber laws, differs in his opinion. As far as he is concerned, the law is clear against copyright infringement.

He says unauthorised downloading of movies also attracts action under the IT Act, 2000. “The legal perspective is that when you upload a pirated copy, you are doing an act of publishing and when you click the ‘download’ button, you are transmitting data in an electronic format for the purpose of diminishing the value of electronic information,” he says.

“The Kerala Police have not done anything fundamentally wrong by registering cases against uploaders and downloaders. When I am creating a film, I have copyright to both cinematic and electronic versions. In case of infringement, I can act by suing for damages, injunction, in addition to exposing the person to criminal liability under the Copyright Act,” Mr. Duggal says.

However, Mr. Iyengar vehemently counters the point. He asks a “pertinent” question — how the Kerala Police conducted their probe and how the Internet Protocol addresses were obtained when Internet service providers have strict privacy obligations against disclosure of any such details, except to government authorities.

“In this case, one hears that a private investigation firm called ‘Jadoo Infotech’ was involved in conducting ‘cyber-patrolling,’ which is not authorised by any law. They would be guilty of the digital equivalent offence of ‘lurking house trespass’,” Mr. Iyengar says.

But Nandagopal Rajan, an associate editor with a technology magazine in Delhi, has a simple logic grounded in law.

“Anybody who is downloading illegally cannot seek protection. You are actually doing something illegal. On the flip side, how many people can you prosecute?” he asked.

For more details visit https://cis-india.org/news/www-the-hindu-sep-17-2012-krishnadas-rajagopal-entertainment-industry-and-internet-piracy-in-focus

Don't Shoot the Messenger: Speech on Intermediary Liability at 22nd SCCR of WIPO

pranesh — 2012-06-01T15:01:08Z

This is a speech made by Pranesh Prakash at an side-event co-organized by the World Intellectual Property Organization and the Internet Society on intermediary liability, to coincide with the release of Prof. Lillian Edwards's WIPO-commissioned report on 'Role and Responsibility of the Internet Intermediaries in the Field of Copyright'.

Good afternoon. I've been asked to provide a user's perspective to the question of intermediary liability. "In what cases should an Internet intermediary—a messenger—be held liable for the doings of a third party?" is the broad question. I believe that in answering that question we can be guided by two simple principles: As long as intermediaries don't exercise direct editorial control, they should not be held liable; and as long as they don't instigate or encourage the illegal activity, they should not be held liable. In all other cases, attacking Internet intermediaries generally a sign of 'shooting the messenger'. General intermediary liability and intermediary liability for copyright infringement share a common philosophical foundation, and so I will talk about general intermediary liability first.

While going about holding intermediaries liable, we must remember that what is at stake here is the fact that intermediaries are a necessary component of ensuring freedom of speech and self-expression on the World Wide Web. In this regard, we must keep in mind the joint declaration issued by four freedom of expression rapporteurs under the aegis of the Organization of American States on June 1, 2011:

Intermediary Liability

a. No one who simply provides technical Internet services such as providing access, or searching for, or transmission or caching of information, should be liable for content generated by others, which is disseminated using those services, as long as they do not specifically intervene in that content or refuse to obey a court order to remove that content, where they have the capacity to do so (‘mere conduit principle’).

b. Consideration should be given to insulating fully other intermediaries, including those mentioned in the preamble, from liability for content generated by others under the same conditions as in paragraph 2(a). At a minimum, intermediaries should not be required to monitor user-generated content and should not be subject to extra-judicial content takedown rules which fail to provide sufficient protection for freedom of expression (which is the case with many of the ‘notice and takedown’ rules currently being applied).

It is useful to keep in mind what the kind of liability we affix on offline intermediaries: Would we hold a library responsible for unlawful material that a user has placed on its shelves without its encouragement?

Ensuring a balanced system of intermediary liability is also very important in preserving the forms of innovations we have seen online. Ensuring that intermediaries aren't always held liable for what third parties do is an essential component of encouraging new models of participation, such as Wikipedia. While Wikipedia has community-set standards with regard to copyright, obscenity, and other such issues, holding the Wikimedia Foundation (which has only around 30-40 people) itself responsible for what millions of users write on Wikipedia will hamper such new models of peer-production. This point, unfortunately, has not prevented the Wikimedia Foundation being sued a great number of times in India, a large percentage of which take the form of SLAPP ('strategic lawsuit against public participation') cases, since if the real intention had been to remove the offending content, editing Wikipedia is an easy enough way of achieving that.

While searching for these balanced solutions, we need to look beyond Europe, and look at how countries like Chile, Brazil, India and others are looking at these issues. Unfortunately, this being Geneva, most of the people I see represented in this room are from the developed world as are the examples we are discussing (France and Spain).

In India, for instance, the Internet Service Providers Association made it clear in 2006 (when there was an outcry over censorship of blogging platforms) that they do not want to be responsible for deciding whether something about which they have received a complaint is unlawful or not.

With respect to copyright and the Internet, while the Internet allows for copyright infringement to be conducted more easily, it also allows for copyright infringement to be spotted more easily. Earlier, if someone copied, it would be difficult to find out. Now that is not so. So, that balance is already ingrained, and while many in the industry focus on the fact of easier infringement and thus ask for increased legal protection, such increase in legal protection is not required since the same technological factors that enable increased infringement also enable increased ability to know about that infringement.

On the Internet, intermediaries sometimes engage in primary infringement due to the very nature of digital technology. In the digital sphere, everything is a copy. Thus, whenever you're working on a computer, copies of the copyrighted that show up on your screen are automatically copied to your computer's RAM. Whenever you download anything from the Internet, copies of it are created en route to your computer. (That is the main reason that exceptions in the copyright laws of most countries that allow you to re-sell a book you own don't apply to electronic books.) In such a case, intermediaries must be specially protected.

Additionally, online activities that we take for granted, for instance search technologies, violate the copyright law of most countries. For online search technology to be reasonably fast (instead of taking hours for each search), the searching has to be done on a copies (cache) of actual websites instead of the actual websites. For image searching, it would be unreasonable to expect search companies to take licences for all the images they allow you to search through. Yet, not doing so might violate the copyright laws of many countries. No one, or so one would think, would argue that search engines should be made illegal, but in some countries copyright law is being used to attack intermediaries.

As noted above, intermediaries are a necessary part of online free speech. Current methods of regulating copyright infringement by users via intermediaries online may well fall afoul of internationally accepted standards of human rights. Frank La Rue, the UN Special Rapporteur on Freedom of Opinion and Expression in his recent report to the UN Human Rights Council stated:

While blocking and filtering measures deny access to certain content on the Internet, States have also taken measures to cut off access to the Internet entirely.

The Special Rapporteur is deeply concerned by discussions regarding a centralized “on/off” control over Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three-strikes law” in France and the Digital Economy Act 2010 of the United Kingdom.

Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression.

With respect to graduated response, there is very little that one can add to Prof. Edwards's presentation. I would like to add one further suggestion that Prof. Ed Felten originally put forward as a 'modest proposal': Corporations which make or facilitate three wrongful accusations should face the same penalty as the users who are accused thrice. The recent US strategy of seizing websites even before trial has been sufficiently criticised, so I shall not spend my time on it.

I still have not seen any good evidence as to why for other kinds of primary or secondary liability incurred by online intermediaries the procedure for offline copyright infringement should not apply, since they are usually crafted taking into account principles of natural justice.

The only 'international' and slightly troublesome issue that a resolution is needed to is that of problems relating to different jurisdiction’s laws applying on a single global network. However, this question is much larger one that of copyright and a copyright-specific solution cannot be found. Thus WIPO is not the right forum for the redress of that problem.

For more details visit https://cis-india.org/a2k/blogs/intermediary-liability-wipo-speech

Do You Have the Right to Unlock Your Smart Phone?

puneeth — 2013-08-07T07:32:52Z

In this blog post Puneeth Nagaraj looks at the recent controversy over the expiration of the exemption granted by the US Library of Congress for unlocking phones and compares the Indian position as per a 2005 Andhra Pradesh High Court judgment.

Being a gadget freak in India is difficult. Smartphone companies take months to release their latest product in India (if they do at all) and even when they are released, they are overpriced. For instance, Google's offering in the entry level tablet market, the Nexus 7 was released in India only in April — a full 9 months after its US debut. It is priced at Rs. 16,000 (USD 300) while it costs only USD 200 in the US. Google’s other device Nexus 10 is yet to make its way to the Indian market.

For long, the Indian gadget freak has relied on friends or family travelling abroad to get his/her hands on the latest gadgets on offer. It was not uncommon in the days following the release of the earlier models of the iPhone for eager owners of foreign bought phones to unlock or “jailbreak” their phones so they could use it in India. But the practice of “jailbreaking” or “android rooting” (hereinafter referred to as unlocking [*] for convenience) phones serves a wider purpose. Unlocking smart phones allows users to overcome limitations imposed by hardware manufacturers or carriers. As a result, users can freely switch service providers. While some manufacturers (like Apple) strongly oppose unlocking- even threatening to cancel warranty in case of unlocked devices, others do not mind it and some (like Google and HTC) even encourage it.

US Library of Congress Exemption

The whole controversy surrounding the legality of unlocking phones started in the US last October when the Library of Congress decided against renewing a copyright exemption it granted in 2006. As a result, the exemption expired in January and caused a furore in the US. The DMCA (1201 of the USC), prohibits circumvention of technological measures that protect access to a copyrighted work. This sort of protection is necessary to protecting copyrighted works in a digital format. But the US Congress was informed of the restrictive effects of such a prohibition. Consequently, the Congress created statutory exemptions to allow circumvention of these technological measures and empowered the Library of Congress to grant or renew such exemptions.

Despite the exemption granted by the Library of Congress in 2006, many phone companies successfully sued hardware providers who enabled unlocking of phones. With the expiration of the exemption in January, the status of phone unlocking hangs in a balance. This is especially troublesome as it is a widespread and in some cases essential practice. Both the White House and the FCC have been petitioned to legalise unlocking. In response, four different proposals have been tabled in the US Congress just for this purpose (here is an analysis of each of the bills).

At the moment, the unlocking of phones to run unapproved software is still legal as a result of an exemption granted in 2012. But this is also up for review in 2015. There is a need for a more comprehensive solution to address both these issues and the proposals before the Congress fall short.

Indian Position

Syed Asifuddin v. State of Andhra Pradesh
A case based on the unlocking of phones came before the Andhra Pradesh High Court in 2005. Certain Employees of TATA Indicom had facilitated the migration of customers contracted to Reliance for 3 years by unlocking their phones. Representatives of Reliance filed a criminal complaint against them alleging criminal breach of trust (IPC Section 409), cheating (IPC Section 420) and criminal conspiracy (IPC Section 120). They also claimed the violation of copyright and sought punishment under Section 63 of the Copyright Act, as well as Section 65 of the IT Act.

The court dismissed the criminal petitions under the IPC, IT Act and the Copyright Act. However, on the question of copyright infringement, the court held that if a person alters computer programme of another person or another computer company, the same would be infringement of copyright. The court also found that a cell phone would fall under the definition of a computer under Section 2(1) (i) of the Information Technology Act. Consequently, the court held that Section 65 of the IT Act, which deals with the tampering of computer source documents, would be applicable to the present case. The decision itself may not have precedent value on the issue as the High Court was merely ruling on the admissibility of the case on the basis of the above provisions and sent the matter back to the trial court to decide based on the evidence available. But the opinion of the court on copyright infringement and the IT Act is troubling.

Criticism

First, the court used the rather expansive definition of computers in the IT Act (Section 2(1) (i)) to include mobile phones as well. The definition under the above section reads as under:

any electronic, magnetic, optical or other high speed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network.

It would not be unreasonable to see smartphones as being capable of “high speed data processing” or “input, output, processing, storage”. However, the phones in question here were basic Samsung N191 and LG-2030 phones (images of these phones can be seen here and here). Even if it might be conceivable that such basic phones can be put in the same bracket as desktop computers or laptops, the court had to examine the definition in the context of the substantial provision. In this case, the substantial provisions were Section 65 and 66 of the IT Act, which deal with tampering source documents and hacking computer systems respectively. So, by equating a basic mobile phone to a computer, the court equated unlocking a mobile phone to hacking a computer. This problem is exacerbated by the fact that Section 66 prescribes criminal punishment to hackers.

Second, the court also erred in its ruling on the Copyright Act. Once again, the court held a basic phone to mean a computer under Section 2(ffb). More worryingly, it was held that the Electronic Serial Number (ESN), a unique code given to every phone would qualify as a computer program under Section 2(ffc) and is thus subject to copyright under Section 14 of the Copyright Act. In doing so, the court has set the bar extremely low for copyrightablity of computer programs. Needless to say this judgment needs to be reconsidered if not watered down. While there is recognition that bootloader protection programmes barely meet the standard for copyright, the Andhra Pradesh High Court has granted protection to a randomly generated 11 digit number.

Fortunately, the case of Syed Asifuddin was not a final ruling on the issue as the court sent the matter back to the trial court. However, there is every chance that a future court can rely on the erroneous reasoning in this case. Further, fair use arguments can always be mad in the favour of an individual consumer who wishes to migrate to another service provider.

The larger problem is that by giving an expansive meaning to the provisions in the Copyright Act and the IT Act, it can be used to target businesses that facilitate unlocking devices that can be targeted (like in the US). Unlike in the US, phone unlocking is not a business in India and is usually done by small business owners who sell and repair mobiles. The consequences of suing such businesses can be worse in India as they can end up in jail for an act that falls in an undefined area of the law. It seems that the situation may be resolved in the US in the near future in favour of the consumer — although the issue of the business of unlocking phones must be resolved finally. The position in India is worrisome especially due to the threat of criminal persecution.

[*]. The term jailbreaking is used specifically in the case of iOS devices and android rooting, as the name suggests is used in the case of android devices. Technically speaking, they are very different given that most android devices do not restrict access to their “bootloaders”. Acknowledging the difference between the two, the discussion here is focused on overriding technological measures meant to protect underlying copyrighted works.

For more details visit https://cis-india.org/a2k/blogs/do-you-have-right-to-unlock-your-smart-phone

Disability Exceptions in Copyright Legislations

rishi — 2015-01-12T02:14:53Z

In the year 2006, the World Intellectual Property Organization (WIPO) conducted a study on different national approaches to copyright exception for persons with disabilities. Over 60 countries have an exception in their Copyright laws permitting conversion of works into accessible formats for the benefit of persons who cannot read print. The scope of the exception varies, in terms of the beneficiaries covered, formats permitted, restrictions on who can convert, etc.

On June 28, 2013 the Marrakesh Treaty was signed by 51 countries, to facilitate the creation of accessible copyrighted works for the disabled. The treaty, however, will not come into force until 20 countries ratify it. India, in June 2013, became the first country to ratify it. In this report, we aim to provide an update to the 2006 WIPO study, whereby all relevant details, including whether the countries are signatories to the Treaty are given in a simplified manner. This is to ensure that the information is readily accessible in a simple and comprehensive table for all readers.

A consolidated list of copyright legislations can be found here. See table below for the country-wise exceptions.

Country-wise Exceptions in Copyright Legislations

Country	Legislation	Scope	Works Covered	Formats covered	Who can convert	Marrakesh Treaty Signatory	Ratified UNCRPD
Armenia	Article 22 (h), Law on Copyright and Related Rights adopted by the National Assembly of Armenia on 15 June 2006	Persons who require Braille and other formats designed for blind people	Lawfully disclosed work, except those created for the blind	Braille and other special means for the blind	No restrictions	No	Yes
Australia	Sections 47A, 112, Part VB Division 3, 116A, The Copyright Act 1968 as amended up to 2014	Persons with print disability, persons who by reason of old age, disability or literary problems are unable to handle books or newspapers or to read or comprehend written material	Sound recordings of literary or dramatic works, published editions of literary or dramatic works,	Sound recordings, Braille, large print, photographic or electronic, sound broadcast	By body administering an institution assisting persons with print disability, persons holding print disability radio license	Yes	Yes
Austria	Section 42d, Federal law on Copyrights on Literary and Artistic works and Related Rights as amended up to 2011	Covers all 'disabled persons' however does not define who is disabled	Published works, which are not possible or it is substantially difficult on account of their disability for the person to access a published work	Any suitable format	No restrictions	Yes	Yes
Azerbaijan	Article 19.6, Law on Copyright and Related Rights, 1996 as amended up to 2013	Persons requiring Braille and other formats designed for blind people	Any lawfully disclosed works, except those created especially for the purpose	Braille or other special means for the benefit of the blind	No restrictions	No	Yes
Belarus	Article 19, Law on Copyright and Related Rights, 1998 as amended up to 2003	Persons requiring Braille and other formats designed for blind people	Any work other than those created especially for this purpose	Braille or other special means for the benefit of the blind	No restrictions	No	Yes
Belize	Section 83, The Copyright Act, as amended up to 2008	Persons who are hearing-impaired, or physically or mentally handicapped in other ways	Television broadcasts or cable programs	Copies which are sub-titled or otherwise adapted for the special needs of the persons	A body designated for the purposes of this section by order of the Minister	No	Yes
Brazil	Section 46.I(d) of Law No 9610 on Copyright and Neighboring Rights, 1998	Visually handicapped persons	Literary, artistic or scientific works	Braille or by means of another process using a medium designed for visually handicapped users	No restrictions	Yes	Yes
Bulgaria	Articles 24(1)10, 24(2), 23, 25a(1) and 25a(2) of the Copyright and Neighbouring Rights Act, 1993 as amended up to 2006	Persons requiring Braille and analogous specialized formats	Lawfully disclosed works, except computer programs	Braille or other analogous formats	No restrictions	No	Yes
Cameroon	Section 29(1)(g) of Law No. 2000/011 on Copyright and Neighbouring Rights, 2000	Blind persons	Works published with the authorization of the author	Limited to Braille	No restrictions	Yes	Signed but not ratified
Canada	Section 32, Copyright Act, 1985 as amended up to 203	Persons with 'perceptual disability' and 'print disability' which is any disability which prevents or inhibits a person from reading or hearing a literary, musical, dramatic or artistic work in its original format, including disability resulting from (a) severe or total impairment of sight or hearing or the inability to focus or move one's eyes; (b) the inability to hold or manipulate a book; (c) an impairment relating to comprehension.	Literary, musical or dramatic works other than cinematographic work and not where the work is commercially available in a format specially designed to meet the needs of a person with the disability	Formats specially designed for persons with a perceptual disability, but not large print books	Any person at the request of a person with a perceptual disability or non-profit organization acting for his or her benefit	No	Yes
China	Section 22(12), Copyright Law of the People's Republic of China (as amended up to 2010)	Persons requiring Braille	Published work and additionally applies to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations	Braille	No restrictions	Yes	Yes
Croatia	Sections 80, 86, 98, Copyright and Related Rights Act as amended up to 2013	Persons with disability.	Lawfully disclosed work	Any format required by the disabled person	No restrictions	No	Yes
Czech Republic	Article 38, Copyright and Rights Related to Copyright as amended up to 2006	Persons with disability	Lawfully published works with the exception of computer programs	Reproduction to the extent required by the specific disability	No restrictions	Yes	Yes
Denmark	The Consolidated Act on Copyright, 2010	Blind, visually impaired and deaf people, people suffering from a speech impediment and people unable to read printed text on account of a handicap	Lawfully published works	Any format specifically intended for those with such disabilities	No restrictions	Yes	Yes
Dominican Republic	Article 44, Law No 65-00, on Copyright of 21 August 2000	Sightless persons and persons with other physical disabilities. However, only public communication if permitted	Scientific, literary or artistic works	No reproduction is permitted	No restrictions	Yes	Yes
El Salvador	Article 44 (d) of the Law on Promotion and Protection of Intellectual Property, 1993	Blind and other handicapped persons	All works of the mind including literary, scientific, artistic, musical and dramatic works. However, mere public communication is permitted and not reproduction	Reproduction is not permitted	No restrictions	Yes	Yes
Estonia	Section 19, Copyright Act (as amended up to 2000)	Blind persons	Works made available to the public except those created especially for the blind.	Braille and other technical formats for the benefits of blind persons	No restrictions	No	Yes
Fiji	Section 185, Copyright Act 1999	People who are hearing-impaired or physically or mentally handicapped in other ways	Television broadcasts or cable programs	Copies which are sub-titled or otherwise modified for the benefits of the beneficiaries	Designated body	No	Signed but not ratified
Finland	Section 17, Copyright Act, 1961, as amended up to 2010	Persons with visual impairments and others who, owing to the disability or illness cannot use the works in the ordinary manner	Published literary or musical works	Text readable by visually impaired persons	No restrictions. However, sound recordings can be made only by institutions	Yes	Signed but not ratified
France	Articles L122-5 and L331-5 to L331-21 of the Intellectual Property Code as amended up to August 2006	Person with motor, psychological, hearing or visual disability which must be at least 50 % assessed against specified relevant standards	Any lawfully disclosed work	Any format used to the extent consistent with the nature of the disability	Disabled persons or organizations listed by the relevant administrative authority	Yes	Yes
Gabon	Article 33, Copyright Law	Persons with a disability including people who are visually impaired	Lawfully published work	Limited to formats for "welfare purposes"	No restrictions	No	Yes
Georgia	Article 23, Law of Georgia on Copyright and Neighboring Rights (as amended up to 2010)	Persons requiring Braille or other means for blind people	Lawfully disclosed work other than those specially created for use by blind people.	Relief dotted print or other special means for blind people	No restrictions	No	Yes
Germany	Articles, 45a, 63 and 95b, Copyright Act, 1965 as amended up to 2013)	Disabled persons	All works, except where the accessible version is available	Formats accessible to the disabled persons to the extent required	No restrictions	Yes	Yes
Greece	Articles 28A, 28C and 66A, Law No. 2121/1993 on Copyright, Related Rights and Cultural Matters (as amended up to 2003)	Blind and deaf-mute persons	Any lawfully disclosed work	Formats directly related to the disability and specifically required by the disability	No restrictions	Yes	Yes
Hungary	Articles 41(1) and 33, Act No LXXVI of 1999 on Copyright (as amended up to 2007)	Disabled persons	Any lawfully disclosed work	Formats designed specially to benefit the disabled	No restrictions	No	Yes
Iceland	Article 19, Copyright Act No 73 of 1972, as amended up to 2006	Blind and visually impaired persons	Published literary or musical works	Braille	No restrictions	No	Signed but not ratified
India	Section 52, Copyright Act 1957 (as amended up to 2012)	Disabled persons	Any lawfully disclosed works	Any accessible format	Any person to facilitate persons with disability to access works including sharing with any person with disability and any organization working for the benefit of the persons with disabilitites	Yes	Yes
Indonesia	Article 15d, Law of the Republic of Indonesia regarding Copyright, No 19 2002	Blind persons	Scientific, artistic and literary works	Braille	No restrictions	Yes	Yes
Ireland	Sections 104, 106, 374, Copyright and Related Rights Act, 2000	Persons with physical or mental disability	Any lawfully disclosed work	Modifications permitted to meet the special needs of a the disabled persons	A designated body	Yes	Signed but not ratified
Israel	Section 28A, Copyright Law, 2007	Persons with disabilities	Any lawfully disclosed work	Formatted to meet the needs of the disabled persons	Any Not for Profit Institution where one of its objectives or primary activities is education, training or welfare of persons with disabilities, A Government Office, or An educational institution determined by the Minister	No	Yes
Italy	Articles 71 bis and 71 nonies of the Law for the Protection of Copyright and Neighbouring Rights, (as amended up to 2010)	Persons with disability in the categories as defined by Ministerial decree	Any lawfully published work	Formats directly related to the disability and only to that extent	No restrictions, but could be set by Ministerial decree	No	Yes
Japan	Articles 33bis, 37, 48, Copyright Law as amended up to 2004	Visually handicapped persons and visually handicapped children/pupils	Works that have been lawfully disclosed and school textbooks (for children)	Braille, including electronically recorded Braille and Large prints	No restrictions found, Braille libraries and other establishments designated by the Cabinet order for sound recordings	No	Yes
Kazakhstan	Articles 19 and 16, Law on Copyright and Neighbouring Rights, 1996, as amended up to 2012	Blind persons and persons requiring Braille	Any work, except those created in special formats for the blind	Braille or other special means for the benefit of the blind	No restrictions	No	Signed but not ratified
Republic of Korea	Articles 30 and 34, Copyright Act No 3916, 1989 as amended up to 2013	Blind persons	Works that have been made public	Braille or sound recordings	No restrictions for Braille, sound recordings can be used only at facilities established for the promotion of the blind as prescribed by Presidential Decree	Yes	Yes
Kyrgyztan	Articles 19, 16, Law on Copyright and related Rights,1998 as amended up to 2014	Persons requiring Braille and Blind persons	Lawfully published works, except those created for this purpose	Braille copies or those produced by other means for blind persons	No restrictions	No	Signed but not ratified
Latvia	Sections 19, 22, Copyright Law as amended up to 2011)	Visually and hearing impaired persons	Any work published lawfully	Formats that permit a visually or hearing impaired person to use it	Organizations for the visually and hearing impaired and libraries providing services to such people are permitted to undertake this activity. However, other persons are not barred other than by limitations imposed	No	Yes
Lithuania	Article 25, Law on Copyright and Related Rights No VIII-1185, 1999 (As amended up to 2014)	Visually and hearing impaired persons	Lawfully published works other than those created in special formats for this purpose	In any format that would benefit the persons having hearing or visual impairment	No restrictions found	Yes	Yes
Macau	Articles 65, 66, Decree-Law No 43/99/M of 1999	Blind persons and those who require Braille	Published works and lectures by Professors	Braille copies or any other format for blind persons	No restrictions on making copies on Braille. However, fixation of lectures may be done only by the Blind persons	No	No
Malaysia	Section 13, Copyright Act 1987 as amended up to 2006	Persons who require Braille copies and persons who are deaf, hard of hearing, physically or mentally handicapped in other ways	Any published work, and television broadcasts	Braille copies and copies with subtitles or other modifications for the end beneficiaries	Braille copies can be used only by the Braille MAB Library, and for television broadcasts, bodies and institutions which the Minister has prescribed	No	Yes
Republic of Moldova	Article 22, Law of Republic of Moldova on Copyright and Neighbouring Rights, 2004	Blind persons	Published works except those created for this purpose	Braille only	No restrictions found	Yes	Yes
Mongolia	Article 24, Law of Mongolia on Copyright as amended up to 2006	Visually and hearing impaired persons	Lawfully published works	Any format that can be used by the disabled	No restrictions	Yes	Yes
Netherlands	Articles 15i, 15c and 29a of the Copyright Act 1912 as amended up to 2008	Handicapped individuals	Literary, scientific and artistic works	Formats directly related to the handicap and necessary because of the handicap	No restrictions found	No	Signed but not ratified
New Zealand	Articles 69, 89, Copyright Act 1994 (version 2014)	A person with a print disability [as defined in Article 69(4)] and persons who are deaf or hard of hearing, or physically or mentally handicapped in any other way	For print disabled, literary or dramatic works and for others, television broadcasts or cable programmes	Braille copies or copies with other modifications for the special needs of the people, and copies that are subtitled or otherwise modified for the special needs	A body prescribed by regulations	No	Yes
Nicaragua	Articles 32 (2), Law on Copyright and Related Rights, 1999 (version 2001)	Visually impaired people	Any lawfully published work	Copies made using the Braille system or any other format necessary	No restrictions	No	Yes
Nigeria	Second Schedule, Copyright Act, 1988 No 47 (No. 42) (version 2004)	Blind people for Braille copies, disabled persons for sound recordings	Any lawfully published works	Braille copies or sound recordings	For sound recordings, only institutions or establishments approved by the Government for the promotion of the welfare of other disabled persons	Yes	Yes
Norway	Sections 17, 17a, 17b, 11, 53b and 12, of Act No 2, relating to Copyright in Literary, Scientific and Artistic Works Etc (version 2005)	Blind persons and other disabled persons	Any published literary, scientific, musical work, film and, any published film or picture or transmitted broadcast program , except any work which has been made specifically for this purpose	For blind persons, any form other than a sound fixation and for the disabled, a fixation on a device that can reproduce the fixation.	No restrictions for the Blind, however, for the disabled, only organizations and libraries as specified by the Kind	Yes	Yes
Panama	Article 47 of Law No. 15 of 8 August 1994	Blind and other handicapped persons. Mere public communication is permitted	Any lawfully published work	No reproduction permitted, hence no accessible formats can be made	No restrictions founds	Yes	Yes
Paraguay	Articles 39 and 45, Law No. 1328/98 on Copyright and Related Rights	Visually handicapped persons	Lawfully disclosed work	Braille or another specific form for the use of visually handicapped	No restrictions found	Yes	Yes
Peru	Articles 43, 50 of Copyright Act- Legislative Decree No 822 of 23 April 1996	Blind people	Lawfully disclosed works	Braille or another specific format to assist blind persons	No restrictions	Yes	Yes
Poland	Articles 33¹, 34, 35, Act on Copyright and Related Rights, 1994	Disabled persons	Lawfully disseminated works	No restrictions on the format; any format which is required by the disabled shall be permitted	No restrictions	Yes	Yes
Portugal	Articles 75, 76, 80, 221, 222 of Copyright and Related Right as amended up to 2008	Blind people and people with disability	Lawfully published works	Braille or another system for blind people, and formats directly related to the disability	No restrictions	No	Yes
Russian Federation	Articles 19, 16 of Law of Copyright and Neighbouring Rights, 1993	Persons needing access to Braille copies or other formats for the blind	Lawfully published works, other than those specifically created for this purpose	Braille copies or other special formats for the blind	No restrictions	No	Yes
Singapore	Sections 54, 261D of Copyright Act (Chapter 63) version 2008	Handicapped readers	Literary or dramatic works that have been published, and where the format has been published, it can be made under the exception that it is not possible to obtain the published copy in a reasonable time and at an ordinary commercial price	Sound recording, Braille copies, large print or photographic version	Body administering an institution assisting handicapped readers, which includes educational institutions	No	Yes
Slovakia	Sections 29, 25, 38 of Copyright Act, 2004	Handicapped persons	Lawfully disclosed works	Formats used exclusively for the needs of the handicapped people	No restrictions	No	Yes
Slovenia	Articles 47a, 46, 166c, Copyright and Related Rights Act, 1995 (amended up to 2001)	Persons with disability	Any work that is not available in the desired format	Formats used directly to assist the disability	No restrictions	Yes	Yes
Spain	Article 31, Royal Legislative Decree 1/1996, (amended up to 2011)	Blind persons	Lawfully disclosed works	Braille system or another specific method	No restrictions	No	Yes
Sweden	Articles 17, 52f of Act on Copyright in Literary and Artistic Works	Persons with disability	Literary and musical works and works of visual art	Formats that can be used to assist the disabled	No restrictions, except for communication of any work to those with a disability, and making, distribution and communication of a sound recording, when the activity can only be undertaken by libraries and organizations as decided by the Government	No	Yes
Ukraine	Articles 21, 15, Law on Copyright and Related Rights 2011	Blind persons	Lawfully disclosed works	Braille only	No restrictions	No	Yes
Uzbekistan	Article 28, Law on Copyright and Neighbouring Rights, 1996 (2011 version)	Blind persons	Lawfully published works, except those specially created for blind people	Relief-dot font or other means for blind people	No restrictions	No	Yes
United Kingdom	Sections 31A to 31F, 74, 28, and 296ZE of the Copyright, Designs and Patents Act 1988 (2003 version)	Visually impaired people, people who are deaf or hard of hearing or physically or mentally handicapped in other ways.	Literary, dramatic, musical or artistic works or published editions, which a visually impaired person has in their lawful possession and which are not accessible to him because of the impairment, television broadcasts, including those delivered by a cable	Any accessible copy, and copies that are subtitled or otherwise modified for the special needs of the beneficiaries	(i) For making accessible copies of works that the person have in their possession, only the visually impaired or someone on his behalf; (ii) for making copies by approved bodies for supply to visually impaired persons, an approved body which is an educational establishment and (iii) for making subtitled or modified copies of broadcasts for supply, only a designated body	Yes	Yes
United States of America	Sections 121, 110 and 1201 of United States Code -Title 17, as amended up to 2004	Blind persons, or other persons with disabilities	(i) For making specialized formats by authorized entities, previously published, non dramatic literary work, but not standardized, secure or norm-referenced tests and related testing material, or computer programs, other than the portions in conventional human language that are displayed to users when the program is in use (ii) For publishers, instructional materials for use in elementary or secondary schools (iii) For transmission of performances of literary works to blind/handicapped persons, any literary work which has been published at least ten years prior to the date of performance	(i) Specialized formats, i.e, Braille, audio or digital texts, exclusively for use by blind people or people with other disabilities (ii) Copies of electronic files as described in legislation relating to individuals with disabilities. The copies must be used solely for reproduction and distribution of the contents in specialized formats (iii) Copies are not permitted except transmissions specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap	(i) Activity must be by an authorized entity, which is non-profit organization or governmental agency that has primary mission to provide specialized services relating to training, education or adaptive reading or information access needs of blind/persons with disabilities (ii) Activity by publisher of print instructional materials (iii) The transmission must be made through the facilities of a governmental body, a non-commercial educational broadcast station, a radio sub carrier authorization or a cable system	Yes	Signed but not ratified

For more details visit https://cis-india.org/accessibility/blog/disability-exceptions-in-copyright-legislations

Delhi High Court’s Ruling Against Publishers is a Triumph For Knowledge

sinha — 2016-09-26T15:07:07Z

The court conclusively stated that the reproduction of any work by a teacher or a pupil in the course of instruction would not constitute infringement.

The article was published in the Wire on September 23, 2016.

In a landmark judgment, Justice Rajiv Sahai Endlaw of the Delhi high court has held that reproducing books and distributing copies thereof for the purpose of education is not copyright infringement. The ruling legitimises the practice of photocopying prevalent in universities and other spaces of learning. The question of whether such photocopying without the permission of the copyright holders was legal arose in 2013. A group of five prominent publishers had filed a suit against the University of Delhi and its photocopying service provider, alleging infringement of their copyrighted titles. Specifically, they argued that the infringement arose from widely used ‘course packs’ which were photocopies of collated passages and chapters from various titles and, sometimes included entire books as well. At the heart of the matter lay the interests of students and their rights and ability to access education, academics invested in the importance of readership and the free flow of knowledge and the publishers who claimed that photocopies hurt their sales and that they ought to benefit from this practice, monetarily. The publishers wanted the court to restrain the defendants from committing ‘institutionalised infringement’ and make them apply for bouquet licenses to carry on with the practice of photocopying.

The suit caused a huge furore. Soon, students and academics joined the fray to mount a stronger defence against the publishers. Notably, Amartya Sen wrote a letter urging the publishers to reconsider the action. Thirty three academics delivered a joint statement against the suit and intervened as the Society for Promoting Educational Access and Knowledge, or SPEAK, while students put forth their interests through the Association of Students for Equitable Access to Knowledge, or ASEAK.

Pending the adjudication of the matter, the court proceeded to temporarily injunct the preparation of such course packs.

The copyright law rests on a delicate balance between the interests of copyright owners (authors, publishers, creators, artists) and copyright users (those who use and enjoy the works). The law is designed to encourage the creation of works and simultaneously, to permit the users to enjoy the works and promote arts and knowledge.

In the Indian Copyright Act, 1957, section 52 lists a number of scenarios which do not constitute infringement, including a fair dealing provision. In other words, the section is the bulwark for public enjoyment of copyrighted work – it allows largely purposive acts, including fair dealing, tied to bona fide use and copying in research, educational institutions, libraries, review, reportage, criticism, incidental copying and a greater degree of use for the benefit of disabled people.

The act of photocopying, the court ruled, is reproduction of the work and constitutes infringement, unless it is listed under section 52. It found that the acts of photocopying, preparing course packs and their distribution fell within the ambit of section 52(1)(i), which states that “the reproduction of any work – by a teacher or a pupil in the course of instruction”, would not constitute infringement. Interpreting the clause in an expansive manner, the court deemed that the application of the clause is not limited to an individual teacher-student relationship, but is applicable to educational institutions and organisations such as DU and thus, the law must reflect the realities of our burgeoning educational system.

The publishers contended that use of the copyrighted material should occur only during the course of the instruction, that is, in classroom lectures. The court disagreed and held that the course of instruction “…include(s) reproduction of any work while the process of imparting instruction by the teacher and receiving instruction by the pupil continues during the entire academic session for which the pupil is under the tutelage of the teacher and that imparting and receiving of instruction is not limited to personal interface between teacher and pupil but is a process commencing from the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing text books, readings and ensuring, whether by interface in classroom/tutorials or otherwise by holding tests from time to time or clarifying doubts of students, that the pupil stands instructed in what he/she has approached the teacher to learn.”

Whereas the court liberally interpreted the provision on educational institutions, it also rigidly laid out the contours of the copyright law, pivotal in enabling public enjoyment of works. It held that copyright is a statutory right and not a natural or a common law right. Thus, the nature of copyright is limited and is subject to limitations and exceptions set in the law. It further added that “Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”

On the issue of charging a nominal fee (40 paise per page), it was held that the said rates could not cumulatively amount to be competing with the sales price of the books. They were reasonable operational costs and only if the reproduction charges were similar to the books, could they have been said to be functioning commercially. Furthermore, the court observed that in an age of technological advancement, any act of copying for the purpose of education (within the ambit of section 52) – whether by pen and paper, or photocopying machines, or by students clicking pictures of textbooks on their cellphones should be permissible.

Justice Endlaw also pointed out that this flexing of user rights is in conformity with several international treaties. India is a signatory to the TRIPS Agreement and the Bern Convention, which allows India to decide “as to what extent utilisation of copyrighted works for teaching purpose is permitted..(provided) that the same is to the extent justified by the purpose” and does not “unreasonably prejudice the legitimate rights of the author.”

This fresh jurisprudence is a vindicates the freedom to exchange ideas and knowledge, which is crucial to fostering an excellent learning space. This will also ensure that eager students and teachers in developing countries freely share latest research and publications, without the slightest hesitation of operating in a grey area. Justice Endlaw’s judgment has aptly restored the public-serving face of copyright law, which is a huge triumph for access to knowledge.

For more details visit https://cis-india.org/a2k/blogs/the-wire-anubha-sinha-september-23-2016-delhi-high-court-ruling-against-publishers-is-a-triumph-for-knowledge

Copyrights and Copywrongs Why the Government Should Embrace the Public Domain

pranesh — 2013-09-06T04:56:42Z

Each of you reading this article is a criminal and should be jailed for up to three years. Yes, you. "Why?," you may ask.

This article by Pranesh Prakash was published in Yojana, Issue: August 2013.

Have you ever whistled a tune or sung a film song aloud? Have you ever retold a joke? Have you replied to an e-mail without deleting the copy of that e-mail that automatically added to the reply? Or photocopied pages from a book? Have you ever used an image from the Internet in presentation? Have you ever surfed the Internet at work, used the the 'share' button on a website, or retweeted anything on Twitter? And before 2012, did you ever use a search engine?

If you have done any of the above without the permission of the copyright holder, you might well have been in violation of the Indian Copyright Act, since in each of those examples you're creating a copy or are otherwise infringing the rights of the copyright holder. Interestingly, it was only through an amendment in 2012 that search engines (like Google and Yahoo) were legalized.

Traditional Justifications for Copyright

Copyright is one among the many forms of intellectual property rights. Across differing theories of copyright, two broad categories may be made. The first category would be those countries where copyright is intended to benefit society, the other where it is intended to benefit the author. Within the second category, there can again be two subcategories: those that see the need to benefit the author due to notions of natural justice and those that see the need to provide incentives for authors to create. Incentives to create are necessary only when the act of creation itself is valuable (and more so than the creator). The act of creation is valued highly as it directly benefits society. Thus, it is seen that the second sub-category is closer to the societal benefit theory than the natural justice sub-category. In the United States, the wording of the Progress Clause makes things clear that copyright is for the benefit of the public, and the author is only given secondary consideration. It is in light of this that the U.S. Supreme Court said,
"The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired."

Economic theories of copyright see copyright as an incentive mechanism, designed to encourage creators to produce material because they would be able to recover costs and make a profit due to the exclusionary rights that copyright law grants. Thus, the ideal period of copyright for any material, under the economic theory would be the minimum period required for a person to recoup the costs that go into the production of that material. Allowing for the great-grandchildren of the author to benefit from the author’s work would actually go against the incentive mechanism. Even if the author is motivated enough to put in even more hard work to provide for her great-grandchildren, her children, grandchildren, and great-grandchildren wouldn’t have any incentive to create for themselves (as the incentive is seen purely in terms of economics, and not in terms of creative urge, etc.), as they are already provided for by copyright. Thus, in a sense, the shift towards longer periods of copyright terms that we are seeing today can be seen as a shift from the incentive-based model to a rewards-based model of copyright.

The other standard theory of copyright justification is the natural rights theory, which deems intellectual property the fruit of the author’s labour, thus entitling them to complete control over that fruit. This brings us to the conception of property itself, and the Lockean and Hegelian justifications for personal property is what is most often used to back such an argument up.

There are many problems with the natural rights theory of intellectual property. If that theory were to hold water, copyright law would accord greater precedence to authors than to publishers. Yet, we see that it is publishers primarily, and not authors, who get benefit of copyright. The "work for hire" doctrine, embodied in Section 17 of the Copyright Act, holds that it is the employer who is treated as the owner of copyright, not the author. This plainly contradicts that natural rights theory. And it also raises the question of why we should protect certain kinds of knowledge investments in the first place. Publishing is a business, and all risks inherent with other businesses should come along with publishing. There is no reason that the State should safeguard their investment by vesting in them a right while safeguarding the investments of any other business only occasionally, and that too as an act of munificence. This problem arises because of the free transferability of copyright. This leads us to the larger problem, which is of course that of treating knowledge as a form of property. Property, as we have traditionally understood it, has a few features like excludability. Knowledge, however, does not share that feature with property. Once you know something that I created, I can’t exclude you from that knowledge that (unlike my ability to take back an apple you have stolen from me). This analysis also has the pernicious effect of excluding free speech analysis of copyright laws. An incorrect analogy is often drawn to explain why free speech analysis doesn’t work on property: you may wish to exercise your right to free speech on my front lawn, yet the State may decree that I am in full right to throw you off my property, without being accused of abridging your right to freedom of speech. So, the argument goes, enforcement of property rights is not an affront to freedom of speech. The problems with this analogy are obvious enough: the two forms of “property” cannot be equated. If you take the location of speech away, I can still speak. If, on the other hand, you restrict my ideas/expression, then I can no longer be said to have the freedom of expression.

One Size Doesn't Fit All

It is easy to see that copyright is an ill-fit for all the things that it now covers. Copyright in its present form is a historical accident, which evolved into the state it is in a very haphazard fashion. It is a colonial imposition on developing countries. It does not value that which we often value in Indian culture: tradition. Instead, copyright law values modernity and newness. It can also be seen as a trade issue imposed on us through the Trade-Related Intellectual Property Agreement (TRIPS Agreements) as part of the World Trade Organization.

Importantly, copyright is not a single well-planned scheme. In some cases — for literature, visual art works, lyrics, musical tunes, etc. — it provides rights to the artist, while in other cases — for recordings of those musical tunes, and for films — it provides rights to the producers. What are the legal reasons for this distinction? There aren't any; the distinction is a historical one (with sound recordings and films getting copyright protection after literature, etc.). At one point of time only exact copies were governed by copyright law. Hence, translations of a work were considered not to be infringement of that work (or a "derivative work"), but new independent works, since after all it takes considerable artistic effort to create a good translation of a work. However now even creating an encyclopedia based on Harry Potter (as the Harry Potter Lexicon was), is covered as infringement of the exclusive rights of the author. At one point of time photographs were not provided any copyright, being as they are, 'mere' mechanical reproductions. They were seen as not being 'creative' enough. However, around the turn of the twentieth century, that position changed, and hence every photograph you've taken of your dog is now copyrighted. According to a recent Supreme Court decision, merely adding paragraph numbering to court judgments is considered to be 'creative' enough to merit copyright protection! At one point of time, copyright existed for 14 years. Now, with the international minimum being "fifty years after the death of the author", it lasts for an average of more than a century! Once upon a time, copyright was only granted to those who wanted it and applied for it. That has now changed, and you have copyright over every single original thing that you have ever written, recorded, or otherwise affixed to a medium.

Copyright in the Digital Era

All digital activities violate copyright, since automatically copies are created on the computer's RAM, cache, etc. Because now everything is copyrighted, and copyrighted seemingly forever, each one of us violates copyright on a day-to-day basis. It is a mockery of the law when everyone is a criminal. The US President Barack Obama violated copyright law when he presented UK's Queen Elizabeth II an iPod filled with 40 songs from popular musicals like West Side Story and the King and I. When even presidents, with legal advisers cannot navigate copyright law successfully, what hopes have we ordinary people?

There is no shortage of similar examples to show that copyright law has gone out of control.

Take extradition, for instance. Augusto Pinochet was extradited, Charles Shobraj was sought to be extradited. Added to their ranks is the pimply teenager who runs TVShark, who British courts have cleared for extradition to the USA for potential violation of copyright law. The extreme injustice of copyright is easily observable if one sees the contorted map depicting net royalty inflows available on Worldmapper.org: there are a sum total of less than a dozen countries which are net exporters of IP; all other countries, including India, are net importers of IP. IP law is one area where both those who talk about social justice and those who talk about individual liberties find common ground in the monopolistic or exclusionary rights granted under copyright law. Copyright acts as a barrier to free trade, thus allowing Nelson Mandela's autobiography to be more expensive in South Africa than the United Kingdom because South Africa is prohibited by the UK publisher from importing the book from India. Mark Getty, the heir to the Getty Images fortune, once presciently observed that "IP is the oil of the 21st century".

Government Copyright

In the ivory towers of academia, there has in recent times been a clarion call that's resounding strongly: the call for open access. As the Public Library of Science states, "open access is a stands for unrestricted access and unrestricted reuse". Why is it important? "Most publishers own the rights to the articles in their journals. Anyone who wants to read the articles must pay to access them. Anyone who wants to use the articles in any way must obtain permission from the publisher and is often required to pay an additional fee. Although many researchers can access the journals they need via their institution and think that their access is free, in reality it is not. The institution has often been involved in lengthy negotiations around the price of their site license, and re-use of this content is limited." Importantly, the writers of articles (scholars) do not get paid by the publishers for their articles, and most developing countries are not able to afford the costs imposed by these scholarly publishers. Even India's premier scientific research agency, the Council for Scientific and Industrial Research, recently declared that the costs of scientific journals was beyond its means.

Why is this important? Because apart from establishing the idea of informational equity and justice, it also establishes the idea that taxpayer-funded research (as most scientific and much of academic research is) ought to belong to the public domain, and be available freely. This principle, seemingly uncontroversial, is very unfortunately not embodied in the Indian Copyright Act. Most public servants do not realize that that which they create may not be freely used by the public whom they serve.

Under the Indian Copyright Act, all creations of the government, whether by the executive, judiciary, or legislature, is by default copyrighted. This does not make sense under either of the two theories of copyright that we examined above. The government is not an 'author' who can have any form of 'natural rights' over its labour. Nor is the government incentivised to create more works if it has copyright over them. Most of the copyrighted works, such as various reports, the Gazette of India, etc., that the government creates are required to be created, and the cultural works it creates are for cultural promotion and not for commercial exploitation. Hence it makes absolutely no sense to continue with the colonial regime of 'crown copyright', when countries like the USA have suffered no ill effects by legally placing all government works in the public domain.

While there are a limited set of exceptions to government copyright provided for in the law, those are very minimal. This means that even though you are legally allowed to get a document through the Right to Information Act, publicising that document on the Internet could potentially get you jailed under the Copyright Act. This is obviously not what any government official would want. If instead of the four sub-sections that form the exception, the exception was merely one line and allowed for "the reproduction, communication to the public, or publication of any government work", then that itself would elegantly take care of the problem. This would also remove the ambiguities inherent currently in the Data.gov.in, where the central government is publishing information that it wants civil society, entrepreneurs, and other government departments to use, however there is no clarity on whether they are legally allowed to do so.

Recently, the member states of the World Intellectual Property Organization passed a treaty that would facilitate blind persons' access to books. On that occasion, at Marrakesh, I noted that intellectual property must not be seen as a good in itself, but as an instrumentalist tool which may be selectively deployed to achieve societally desirable objectives. I said: It is historic that today WIPO and its members have collectively recognized in a treaty that copyright isn't just an "engine of free expression" but can pose a significant barrier to access to knowledge. Today we recognize that blind writers are currently curtailed more by copyright law than protected by it. Today we recognize that copyright not only may be curtailed in some circumstances, but that it must be curtailed in some circumstances, even beyond the few that have been listed in the Berne Convention. One of the original framers of the Berne Convention, Swiss jurist and president, Numa Droz, recognized this in 1884 when he emphasized that "limits to absolute protection are rightly set by the public interest". And as Debabrata Saha, India's delegate to WIPO during the adoption of the WIPO Development Agenda noted, "intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare." When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers. Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing. Marrakesh was the city in which, as Debabrata Saha noted, "the damage [of] TRIPS [was] wrought on developing countries". Now it has redeemed itself through this treaty.

The Indian government needs to similarly redeem itself by freeing governmental works, including the scientific research it funds, the archives of All India Radio, the movies that it produces through Prasar Bharati, and all other tax-payer funded works, and by returning them to the public domain, where they belong.

For more details visit https://cis-india.org/a2k/blogs/yojana-august-2013-pranesh-prakash-copyrights-and-copywrongs-why-the-govt-should-embrace-the-public-domain

Copyright Madness

Lawrence Liang and Achal Prabhala — 2012-05-30T03:46:24Z

Prompted by courts and piracy-fearing businesses, Indian ISPs have taken down popular, legitimate websites. This Op-ed by Lawrence Liang and Achal Prabhala was published in the Indian Express on May 22, 2012.

The funniest thing about the “ban” on torrent sites and video-sharing sites by a Madras high court order of March 29 is that it doesn’t work. Naturally: we’re talking about the Internet, whose users and makers have fended off twisted judgments, corporate takeovers, undue state control and outrageous censorship since its inception. So if you currently live in India and want to read the new Paulo Coelho bestseller on his preferred distribution service — otherwise known as The Pirate Bay — or want to watch your own wedding video on Vimeo, the platform of choice for independent filmmakers, then all you have to do is go through one of the many hundreds of virtual private networks that provide a workaround, most of which are free and take about two seconds to execute.

Sadly, this is where the fun ends. As you read this, Internet Service Providers (ISPs) across the country will have put in place an overreaching, wildly imaginative and totally ludicrous ban on just about everything the Internet facilitates human beings to excel at — learning, sharing and growing. The real danger is not the effect of the court order or its interpretation, but the fact that it is a part of a disturbing trend in which copyright owners presume that it is piracy that results in the failure of their films. This, coming from an industry that regularly churns out facsimiles of Hollywood hits and renders them original works worthy of copyright protection. Let’s get this clear: films fail when they are bad. Films that hit the box office jackpot do so in spite of piracy simply because they are good.

A quick recap of the facts. Earlier this year, a Chennai firm called Copyright Labs, acting on behalf of its client R.K. Productions, applied to the Madras High Court to protect the Tamil film 3 — starring Dhanush and Shruti Haasan and directed by Rajnikanth’s daughter, Aishwarya — from copyright infringement on the Internet. The petition was filed even before the film’s release; the protection sought was pre-emptive. The Madras high court passed a “John Doe” order, which is, in essence, a sweeping set of protections granted against unknown potential offenders in the future, without giving any other interested party the chance to be heard. Any order that does not give the other side a chance to be heard — without even knowing who the other side is — has to be exercised judiciously; if every new film produced in India released with an ex parte order every Friday, principles of natural justice would be diluted, to the larger detriment of the legal system itself.

This is not the first John Doe order pertaining to copyright that has been issued in India, but it is certainly the most consequential. Previous orders (in relation to copyright) are relatively recent, and have been passed over the last few years in relation to a single motion picture and to music at large — but their effects have been relatively contained. The problem with John Doe orders is that by their overly broad and sweeping nature, they extend to a range of non-infringing activities as well, thus catching a whole range of legal acts in their net. And speaking of legal acts, the ultimate irony here is that the first we heard of this film was through the viral hit song Kolaveri Di — distributed at will with the blessings of the filmmakers — which created massive pre-release publicity for 3. Consider then that this order is not quite the slaying of the golden goose, but a gag order on the animal kingdom since there could be a wild animal lurking amidst the geese.

Reading through the list of websites that ISPs have banned — as Nikhil Pahwa carefully details on Medianama — is an eye-popping exercise. The Pirate Bay, everyone’s favourite hallucination, is on it. So are Isohunt, and a few others. Two video-sharing sites are named, Vimeo and DailyMotion. (Never mind that all these websites house a sizeable percentage of perfectly legitimate content that is user-generated and user-uploaded and distributed with the full permission of the copyright owner.) Inexplicably, the ISPs — or some mysterious intermediaries between the Madras high court and them — in their wisdom, march forth and ban a website that allows the sharing of bookmarks (Xmarks), and another that primarily exists for Twitter users who want to exceed their 140 character limit (Pastebin), regardless of their complete inapplicability in this situation.

India’s copyright act allows owners of content the right to prevent infringement through the use of injunctions, but these injunctions have to be narrowly construed and applied only to specific instances of infringement. Which is to say, take down the infringing video, not the whole website, and don’t intimidate the host. When injunctions threaten freedom of speech and expression, then free speech should necessarily trump copyright claims — and the courts cannot be used as convenient shopping forums for maladies that don’t exist. The real issue here is that copyright industries have to come up with better business models that take cognisance of technologies that allow people to exchange information. The course we are currently on will only result in strangling technology and stifling innovation and creativity.

Read the original published by the Indian Express here

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

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

Copyright Amendments – Empowering the Print Disabled

Rahul Cherian — 2012-09-07T11:11:26Z

The much anticipated Copyright Amendment Bill, 2012 was passed with a few changes in the Rajya Sabha on 17th May 2012 after a very spirited debate and passed by the Lok Sabha on the 22nd May 2012 with unanimous consensus.

The Bill now requires presidential assent to become a law. The Bill discusses various key aspects which have not been addressed in the present copyright regime due to reasons such as changing international standards, technological and scientific advancements. This blog post is limited to the new Section 52(1)(zb) which creates a new copyright exception for the benefit of persons with print disabilities, including persons with visual impairment and dyslexia.

Prior to the inclusive of Section 52(1)(zb) that the owner of copyright in a work had the exclusive right to adapt, make copies, communicate to the public etc. the work. Therefore, any conversion of a book into accessible formats such as Braille, Daisy, audio books, etc., for the benefit of persons with print disabilities could be undertaken only by the owner of copyright or with the permission of the owner of copyright. More often than not, owners of copyright are unwilling or disinterested to either undertake the conversion and sale of such accessible format copies or permit such conversion, for reasons varying from lack of profitability to limited target audience.

The Copyright Amendment Bill, 2012 does away with the necessity to seek the consent of the publishers for converting their books into accessible formats. To this extent, the Bill provides that it would not be an infringement of copyright for any person or any organization working for the benefit of the persons with disabilities and on a non-profit basis to create accessible format copies or distribute them to persons with disabilities who cannot enjoy the work in their normal formats. This provision is very wide and inclusive in its scope and also has some protection built in against unauthorized use by non-beneficiaries of the exception. For instance, the books so provided in accessible formats shall be for private or personal use, education or research only. Moreover, the persons or organizations providing such services have the obligation to ensure that such converted formats do not enter the mainstream business channels. While the new exception permits the recovery of the expenses incurred in converting the books, they do not permit the making of any profit under the exception. However, under a new Section 31 B any person working for the benefit of the persons with disabilities on a profit basis or for business can undertake conversion and distribution after obtaining a license from the Copyright Board in accordance with the procedure laid down in that section.

It is to be noted that the original wording of the amendment as proposed by the Copyright Office in 2006 was extremely limited in that it allowed conversion only into “specialized formats designed for persons with disabilities” and not into "all formats" as is the case now. The problem with "specialized formats" is that many persons with print disabilities, including those with dyslexia, person who lost their eyesight at a later age etc. cannot use specialized formats such as Braille and use mainstream formats such as .pdf or audio. By limiting conversion into “specialized formats” such as Braille, a large number of potential beneficiaries would have been excluded from the amendment. In order the attempt to change the wording of the proposed amendment to reflect technological developments and also benefit a larger number of persons with disabilities, the nationwide Right to Read Campaign was launched by Inclusive Planet, the Centre for Internet and Society, the Daisy Forum of India. As a result of sustained campaigning and high level advocacy during which over 70 Members of Parliament were met, we were invited to present evidence before the Parliamentary Standing Committee which fully endorsed our concerns. The Copyright Office then changed the wording from the 2006 wording to the current wording. It still took about a year and half for the amendments to be passed by both Houses of Parliament.

In conclusion, the Copyright Amendment Bill will enable persons with disabilities to be able to exercise their right to knowledge on an equal basis with others. It also shows that a small group of committed disability activists with the support of a handful of lawyers and the tool of high level advocacy can bring about effective change.

For more details visit https://cis-india.org/accessibility/copyright-amendments

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

Copyright Amendment Bill in Parliament

nirmita — 2011-08-30T09:26:44Z

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

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

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

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

Copy, Left And Right

praskrishna — 2012-05-23T06:37:53Z

Copyright laws are becoming more rigid and anti-sharing. But copyleft has a solution.

The article by Shruti Yadav was published in Outlook Business on February 19, 2011. Pranesh Prakash was quoted in this article.

Underlying some of the most ancient Indian literature is a unique concept—sruti, or divine revelation. Much of this Vedic literature is supposed to have been revealed by the Gods to sages, who then passed it on orally from generation to generation till the formation of the written word, when it was codified. By claiming this divine connection, the authors didn’t just immortalise themselves and their works, they also renounced ownership of it. They presented themselves as humble storytellers, who needed the audience to tell the story again and again to keep it alive, just like the Gods needed them to tell it for the first time.

The transfer of knowledge freely wasn’t limited to India. In the ancient systems of medicine, schools of art, mythology and folklore, there is striking and frequent cross-referentiality across civilisations. Of course, knowledge was at a premium even in these societies, but no one claimed ownership of it.

Then, as increasing democratisation of knowledge threatened established political, religious and commercial interests, the western world awoke to the necessity of copyright, which evolved as a protection for monopolies over technology, research and works of art, and now is strangling even those who produce the work in the first place. So, after transferring the copyrights to their work, people often find that their lives are dictated to by studios, publishers and software companies, through complex and rigorous laws that concentrate on profiteering to the exclusion of everything else, including the freedoms of the author and the user.

It is in the assertion of the freedom, of both the source of the work, and its users, that copyleft is becoming the voice of a growing number of people. The copyleft movement can be said to have been started by Richard Stallman, founder of the Free Software Foundation (FSF), who developed the GNU operating system that, with the incorporation of the Linux kernel made free by its proprietor Linus Torvalds, became Gnu/Linux. His General Public Licence (GPL) is the byword in protecting user freedom.

So, what is copyleft? It is a form of copyright, but unlike copyright that reserves all rights related to a work, copyleft allows users to copy, modify and distribute the work, with the rider that the resulting copies come with the same freedom. Creative Commons, the non-profit global organisation that helps people copyleft their work, calls this ShareAlike.

Sharing is a contentious issue today. Because of digital technology, which allows us to copy and share virtually free of cost, knowledge and art are easily and cheaply accessible. Unfortunately, this has resulted in a stricter regime that routinely criminalises schoolchildren for downloading the latest songs from the Internet. If you buy a car, and lend it your friend, can the car company claim you are a criminal? But it is the technicality of making a copy for the purpose of sharing that makes a vice out of a natural human impulse. As Karsten Gerloff, President, FSF Europe, puts it, “When laws clash with common sense, on such an enormous, global scale, we don’t need to change common sense. We need to change the laws.” A purist when it comes to freedom, Stallman echoes this sentiment in stronger words, “Laws against sharing are attacks on society. "Anyone who tries to stop people from sharing has declared himself the enemy of us all.”

Richard Stallman, Founder and President, Free Software Foundation

Copyright Protects Work... Or Does It?

Two arguments often misused to justify the strict, all-rights-reserved policy of copyright are that it prevents plagiarism and incentivises innovation and creativity. The argument of plagiarism can easily be dismissed. As Pranesh Prakash, Programme Manager, Centre For Internet And Society points out, “No licence can take away the right of a person to be identified with his or her work. The moral rights of a person are non-transferable.” The second argument is more insidious.

When Nina Paley released her critically acclaimed animation film, Sita Sings The Blues, she chose a Creative Commons By-SA licence. This means anybody could copy, modify and distribute the work under the same licence. Paley says, “I wanted my film to reach the widest audience...ShareAlike would prevent the work from being ever locked up. It’s better than Public Domain; works are routinely removed from the Public Domain via privatised derivatives.” So copyright doesn’t really protect the work; often people who decide its destiny have not even made it in the first place. In fact, Gerloff points out, “Copyright makes it possible for individuals to appropriate traditional stories and mythical characters as Disney has done with the folk tales collected by the Brothers Grimm and others. Anyone who tries to return those characters to the popular imagination is immediately torn apart by a screaming horde of Disney lawyers.” So, is it an incentive for the artist, the software-maker, or the scientist?

Of course, there is a financial aspect of the question. Most people who use copyleft licences do not become millionaires overnight. But they do make money. Within a year of her film’s release, Paley made $132,000, recovering about half the cost of production. The money came from donations, awards, screenings, merchandising and sharing of revenue by people who made derivative works. Best of all, Paley could choose her revenue models, without restricting her audience. Compare this with lyricist Javed Akhtar being banned by the Film Federation of India for lobbying in Parliament for better royalty for lyricists and composers—the new law proposes to improve their lot by giving them 12.5% each, while 75% still goes to the producers.

How Copyleft Helps

On the economic side of the argument for copyleft is also the fact that making a work available for others to modify leads to improved quality and saves costs of duplication of work. Android is an example of sharing driving innovation, though, according to Stallman, it compromises the spirit of free software, as many phones with Android systems don’t let users install modified versions of the software but let software companies do so. Finally, free market logic should make absolute copyright redundant. As Paley points out, “Copyright is an artificial monopoly. Monopolies are inherently at odds with competition and free trade."

While knowledge-based economies are still reluctant to give up their old habits, legislators in countries like India have to make a choice. Shishir K Jha, Project Leader, Creative Commons India, says, “We need to take a view: do we want to make information scarce or easily available? Because this has implications in many areas—education, health, R&D."

Artists who copyleft their work do make money; they distribute their work without restricting its audience.

In the Mahabharata, the tribal boy Eklavya wants to learn archery from Dronacharya—the teacher of the Pandavas and Kauravas—who has vowed to teach only the royal princes. Determined, Eklavya makes a clay statue of his revered teacher and learns on his own, soon becoming the best archer in the kingdom, even better than Arjun, Dronacharya’s favourite student. So what does the teacher do when he finds out? As guru-dakshina, (the obligatory payment for teaching), he asks for Eklavya’s right thumb, thus cutting him off (literally) from his self-taught skill.

Those seeking to establish a knowledge monopoly often operate through a set of cruel and unfair laws. Should we stop sharing?

Licences for Freedom

Bridging the gap between Copyright and Public Domain.

Art Libre: Allows users to copy, modify and incorporate a creative work, including for commercial use, as long as subsequent versions are licenced under the same or a compatible licence. The user must specify if the original is modified and credit the original artist. A creative work may be physical or digital—text, sound, video—anything over which the maker has a copyright.

GNU/ GPL: Allows users to copy, modify and incorporate the work, including for commercial purposes. The licence is passed on automatically with subsequent versions. A person can’t compromise user freedom by using a GPL software as part of a version that is licenced under conditions (or is subject to legislations) that infringe on the rights granted by the GPL licence. In case of a clash, the use of the GPL software is simply invalid.

Creative Commons (CC) has several licences, which are essentially combinations of a few standard criteria:

Attribution: Maker’s name.
Share-alike: The stipulation that copies, modifications or derivatives be passed on under the same conditions.
Derivatives: The licencee can chose whether or not to allow derivatives of his work.
Comercial use: The licencee can choose whether or not to allow copies, derivatives and subsequent versions to be used for commercial use.

As a result, we have six types of licences:

CC BY or Attribution
CC BY-SA or Attribution-ShareAlike
CC BY-ND or Attribution-NoDerivatives
CC BY-NC or Attribution-NonCommercial
CC BY-NC-SA or Attribution-NonCommercial-ShareAlike
CC BY-NC-ND or Attribution-NonCommercial-NoDerivatives

Paley warns: Use a truly Free licence, such as ShareAlike or ArtLibre. NEVER use a “non-commercial” or “no-derivatives” licence. Those are not copyleft and are incompatible with Free Culture.

For more details visit https://cis-india.org/news/copy-left-and-right

Consumers International IP Watchlist 2012 — India Report

pranesh — 2012-08-16T10:23:36Z

Pranesh Prakash prepared the India Report for Consumers International IP Watchlist 2012. The report was published on the A2K Network website.

Summary

India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist. India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist.

It is unfortunate that the larger public interest in copyright-related issues are never foregrounded in India. For instance, the Standing Committee tasked with review of the Copyright Amendment Bill has held hearings without calling a single consumer rights organization, and without seeking any civil society engagement, except for the issue of access for persons with disabilities. This was despite a number of civil society organizations, including consumer rights organizations, sending in a written submission to the Standing Committee.

This lopsidedness in terms of policy influence is resulting in greater imbalance in the law, as evidenced by the government's capitulation to a handful of influential multinational book publishers on the question of allowing parallel importation of copyrighted works. Furthermore, pressure from the United States and the European Union, in the form of the Special 301 report and the India-EU free trade agreement that is being negotiated are leading to numerous negative changes being introduced into Indian law, despite us not having any legal obligation under any treaties. Such influence only works in one direction: to increase the rights granted to rightsholders, and has so far never included any increase in user rights.

It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Visually impaired persons, for instance, have no option but to disobey the law that does not grant them equal access to copyrighted works. Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works.

Source URL: http://bit.ly/QEJf5l
Click to download the report [PDF, 201 Kb]

For more details visit https://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012

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.

WORKS CITED

Agarwal, Devika. "After IPRS, PPL next to Claim It Is Not a 'Copyright Society.'" SpicyIP, n.d. http://spicyip.com/2015/03/after-iprs-ppl-next-to-claim-that-it-is-not-a-copyright-society.html.
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.
ASCAP. "Ascap Clearance Express (ACE) Search." ASCAP We Create Music, n.d. https://www.ascap.com/Home/ace-title-search/index.aspx.
Basheer, Shamnad. "Indian Copyright Collecting Societies and Foreign Royalties: Whither Transparency?," November 18, 2008. http://spicyip.com/2008/11/indian-copyright-collecting-societies.html.
BMI. "BMI Search." BMI, n.d. http://www.bmi.com/search.
Centre for Internet and Society. "Research Proposal: Pervasive Technologies: Access to Knowledge in the Marketplace.," n.d. http://www.google.com/url?q=http%3A%2F%2Fcis-india.org%2Fa2k%2Fpervasive-technologies-research-proposal.pdf&sa=D&sntz=1&usg=AFQjCNF4hnAUXGIRMcUozZfs5QOFwvO55A.
FICCI & KPMG. "The Stage Is Set: FICCI-KPMG Indian Media and Entertainment Industry Report 2014." Industry Report. FICCI-KPMG, 2014. https://www.kpmg.com/IN/en/Topics/FICCI-Frames/Documents/FICCI-Frames-2014-The-stage-is-set-Report-2014.pdf.
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.
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.
Harry Fox. "Songfile Search." Songfile, n.d. https://secure.harryfox.com/songfile/termsofuse/publictermsofuse.do.
HFA. "HFA Commission Rates." HFA, n.d. https://www.harryfox.com/publishers/commission_rate.html.
---. "Rate Charts," 2014. https://www.harryfox.com/find_out/rate_charts.html.
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.
IPRS. "Distribution Scheme As Per 17-5-2013." Indian Performing Right Association, 2012. http://www.iprs.org/cms/IPRS/DistributionScheme.aspx.
---. "The Indian Performing Right Society Limited.," n.d. http://www.iprs.org/cms/.
ISRA. "About ISRA." ISRA Copyright, n.d. http://isracopyright.com/about_isra.php.
Philipes, Richard Hayes. "How One Independent Musician Defeated BMI." Woodpecker.com, 2003. http://www.woodpecker.com/writing/essays/phillips.html.
PPL. "About Us." Phonographic Performance LImited, n.d. http://www.pplindia.org/aboutus.aspx.
---. "PPL Member/Label Search," n.d. http://repsearch.ppluk.com/ars/faces/pages/licenseSearch.jspx?_afrWindowMode=0&_afrLoop=6609527708771000&_adf.ctrl-state=17ajb42h7o_4.
PPL UK. "Annual Review 2014." Annual Revenue Report, 2014. http://www.ppluk.com/Documents/Annual%20reviews/PPL_Annual_Report_2014.pdf.
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.
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

Comments on the Draft Copyright (Amendment) Rules, 2019 concerning Statutory Licensing

sinha — 2019-07-11T07:04:35Z

The Centre for Internet & Society gave its comments on the proposed rules 29,30,31 of the Draft Copyright (Amendment) Rules, 2019. The comments were made in response to Notification G.S.R 393(E) published in the Gazette of India on May 30, 2019.

Preliminary

1. This submission presents comments to the Department for Promotion of Industry and Internal Trade (“DPIIT”), Ministry of Commerce and Industry pertaining to the notification G.S.R 393(E) containing the draft Copyright (Amendment) Rules, 2019 issued on 30^th May 2019.

2. We commend DPIIT on the release of the draft Copyright (Amendment) Rules, 2019 (“Draft Rules”) and are thankful for the opportunity to put forth its views via this public consultation.

3. This submission is divided into three main parts. This part, ‘Preliminary’, introduces the document; the second part provides an overview of the organization and its research in the field of intellectual property rights; and the third part contains CIS’ comments on the Draft Rules 29, 30, 31.

4. The third part contains two sections. In the first section, we discuss the legal validity of the Draft Rules 29,30,31. In the second part we discuss the general implications of extending the legal regime of broadcasting rights under the Indian Copyright Act, 1957 (“Act”) to works on the Internet.

About The Centre for Internet and Society

5. The Centre for Internet and Society (“CIS”) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus in respect of intellectual property rights include research on domestic copyright and patent laws, international trade agreements and treaties pertaining to these subjects, promotion of creators’ and users’ rights with a view to furthering access to knowledge and openness in the public interest. CIS has also been participating at WIPO-SCCR negotiations in the capacity of an Observer since 2009.

6. CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values including the safeguarding of general public interest. Accordingly, the comments in this submission aim to further these principles.

Comments

7. Draft Rules 29, 30 and 31 pertain to section 31D of the Indian Copyright Act, 1957. The proposed change in Rule 29 seeks to expand the modes of broadcast for which notice for invoking statutory license under section 31D may be issued - which previously was restricted to only radio and TV modes of broadcasting; and the change in Rule 31 will permit the Appellate Board to determine royalties for all modes of broadcast.

8. In view of current state of technological advancement, it is safe to deduce that the new mode of broadcasting whose inclusion is being contemplated in relation to s. 31D via the changes is “internet broadcasting”. The changes will allow entities that operate over the Internet medium to apply for a statutory license under s. 31D of the Act. In the following part, we submit our specific comments in respect of Draft Rules 29,30,31.

a) Legal validity of the Rules: Vires vis á vis the Parent Act

As per s. 78(2)(cD), the power of the Central Government to make rules in respect of s. 31D expressly exists in respect of “the manner in which prior notice may be given by a broadcasting organisation under sub-section (2) of section 3ID.” Apart from this clause, a general rule-making power is conferred via s. 78(1) only for carrying out the purposes of the Act. We submit that this general power should be exercised within limits of rule-making in the nature of administrative and procedural detail, and should be in consonance with purposes of the Act. In respect of s. 31D especially, the purpose can be inferred from the legislative history of the provision. This was analysed by the Bombay High Court in Tips Industries v. Wynk Music,[1] where the court noted that the concerns raised before the Rajya Sabha Parliamentary Standing Committee (on the Copyright Amendment Bill (2010)) related to radio and television industries only, and in the court’s opinion those two modes specifically were contemplated while introducing s. 31D.[2] Primarily basis this rationale, the court concluded that “internet broadcasters” offering on demand streaming services cannot avail of s. 31D. Further, s.31D(3) expressly permits the Appellate Board to fix royalty rates only in respect of radio broadcasting and television broadcasting.

Hence, we submit that there is no power under s.78 or any other provision in the Act afforded to the Central Government to expand the scope of s.31D, directly or indirectly. In State of Karnataka v. Ganesh Kamath[3] the Supreme Court held that “it is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent there with or repugnant thereto”.

Thus, the extent to which the Draft Rules 29,30,31 alter the intent and scope of s.31D clearly leaves them ultra vires the parent Act. Rules that are ultra vires the parent Act for exceeding the limits of subordinate executive power are void.[4] Hence, the proposed Draft Rules 29,30,31 are both ultra vires their parent Act and void.

b) Implications of extending legal regime of broadcasting rights to works on the public Internet

The release of the Draft Rules 29,30,31 is another attempt to extend the statutory licensing to “internet broadcasters”. The first attempt was when the Central Government released an Office Memorandum[5] (dated 5^th September 2016) to extend statutory licensing under s.31D to “internet broadcasting” companies. We submit that this was based on an incorrect statutory construction by the Department of Industrial Policy and Promotion (“DIPP”) and was arbitrary in nature. Noted academics and scholars have highlighted several constitutional infirmities in respect of this memorandum.[6] Unfortunately, the current Draft Rules (29,30,31) raise similar concerns.

Separately, in the context of introducing a broadcasting right for works shared over the Internet – we submit that if the line of argument taken by DIPP that s. 2(dd) read with s. 2(ff) supports the inclusion of “internet broadcasting” is taken to its logical conclusion, any person/ entity communicating to the general public via the public Internet can claim protection of their broadcasters’ reproduction right under our Copyright Act. This “broadcast” will happen via multiple platforms such as YouTube, Facebook Watch, live-streaming platforms, on-demand platforms, etc., and such entities will be entitled to enjoyment of this right. This will lead to a dangerous accumulation of undeserved property rights in Internet giants; unlike traditional broadcasters these companies never put up initial upfront economic investment to distribute works to the public. They were launched on the public internet, and currently thrive primarily off user-generated content. Even in respect of protecting content that is actually created with their investment, copyright law will suffice with its remedies for infringement. Hence, there is currently very little economic and legal basis for extending the legal regime of broadcasting rights for works on the Internet. Thus, we submit that in the domestic approach to modernising our copyright legislation, we must refrain from considering distribution of born-digital/ digitised works over the public Internet equivalent to the function of broadcasting works over cable/ satellite.

9. We are thankful to DPIIT and the Ministry of Commerce and Industry for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these submissions and recommendations in detail with members of DPIIT if the opportunity presents itself.

[1] See Bom (HC) judgment in Case No. NMCD/72/2019

[2] See 227^th Report of the Rajya Sabha Parliamentary Standing Committee on the Copyright Amendment Bill (2010) available at http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/227.pdf

[3] (1983) 2 SCC 40

[4] See Supreme Court Welfare Association (1989) 4 SCC 187 and State of Karnataka (1983) 2 SCC 402.

[5] See ‘Office Memorandum’ available at https://dipp.gov.in/sites/default/files/OM_CopyrightAct_05September2016.pdf

[6] See Letter to Government on Internet Broadcasts (2016) by Shamnad Basheer available at https://spicyip.com/2016/09/letter-to-government-on-internet-broadcasts.html ; and Licensing of Internet Broadcasts under the Copyright Act: Key Constitutional Issues (2019) available at https://indconlawphil.wordpress.com/2019/01/25/guest-post-licensing-of-internet-broadcasts-under-the-copyright-act-key-constitutional-issues/

For more details visit https://cis-india.org/a2k/blogs/comments-on-the-draft-copyright-amendment-rules-2019-concerning-statutory-licensing