Centre for Internet and Society

Statement of CIS, India, on the WIPO Broadcast Treaty at the 22nd SCCR

praskrishna — 2011-08-04T04:41:12Z

The twenty-second session of the Standing Committee on Copyright and Related Rights is being held in Geneva from June 15 to June 24, 2011. Nirmita Narasimhan and Pranesh Prakash are attending the conference. CIS delivered its statement, on the Broadcast Treaty, and made it available in print form as well.

The Centre for Internet and Society would like to associate itself with the comprehensive statement made by the Electronic Frontier Foundation (EFF). We are one of the signatories of the joint statement, which EFF referred to, of the many civil society non-governmental organizations, cable casters and technology companies opposing an intellectual property rights based Broadcasting Treaty.

We believe that the protection that may be afforded to broadcasters under existing international treaties, including Article 14 of the TRIPS Agreement, are sufficient to safeguard the interests of broadcasters, and that the Broadcast Treaty, which has been under discussion for more than a decade without any progress is, as the WIPO Chair observed in the conclusion to the informal summary prepared after the 16th SCCR (SCCR/17/1/inf), an expenditure of "time, energy and resources to no avail". Without prejudice to that position, we would like to make a few points on the content of the treaty as well.

There has been talk of ensuring a technology-neutral approach. While a technology-neutral approach is useful since technology keeps changing, we believe that that necessarily means the differences between different technologies should be recognized. The capital costs and investments of traditional broadcasters, which are—as has been highlighted in the many statements here today—the basis on which broadcasters' rights are demanded, are not in the least comparable with the capital costs and investments of webcasting.

These differences have not come out adequately in the various regional seminars that WIPO helped organize, since those were mostly with traditional broadcasters and did not cover webcasters.

"Communication to the public", while that is a technologically neutral formulation, is an element of copyright, and is not the same of broadcast rights, which is a related right.

Any departure from a signal-based approach would require the assent of the WIPO General Assembly, which has in 2007 specifically requested for signal-based approach for the treaty.

Specifically, we believe that Paragraph 16 of the WIPO Development Agenda, which relates to preservation of a vibrant public domain, will be endangered by a right being given to webcasters which is separate from the underlying content of the transmission.

In this regard, we strongly support the delegations of South Africa and India, in their strong pronunciation of public interests while looking at such a treaty. We further support the delegation of Canada, for strongly emphasizing the need to allow countries the flexibility to opt-out of the provisions of the treaty for certain forms of broadcasting.

For more details visit https://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement

Putting a Lid on Royalty Outflows — How the RBI can Help Reduce India's IP Costs

Sanjana Govil — 2012-01-26T17:11:29Z

While entrepreneurs, IP rights-holders and everyone else who has a stake continue to voice their opinions on the appropriate shape that the Indian IP regime ought to take, they tend to narrow their discussions to the language of substantive IP laws. However, there are regulations that cannot be found in the Patent Act, Copyright Act or Trademarks Act which nevertheless have an impact on how much one is paying for intellectual property. Paying attention to these external factors might just provide a simple solution to your IP woes.

One such factor is the regulation of foreign technology agreements. A foreign technology agreement is an agreement under which a transfer of technology occurs from a foreign source to an Indian entity. This transfer may include anything from the creation of an Indian wholly-owned subsidiary of a foreign parent company to the transfer of manufacturing or design know-how.

Regulation of these agreements in India is carried out by the Ministry of Commerce and Industry as well as the Reserve Bank of India. In 1991, the Ministry’s Department of Industrial Development (DID) released Press Note No.10 which stated the following:

“39 C. Foreign Technology Agreements

i) Automatic permission will be given for foreign technology agreements in high priority industries (Annex III)* upto a lumpsum payment of Rs. 1 crore, 5% royalty for domestic sales and 8% for exports, subject to total payments of 8% of sales over a 10 year period from date of agreement or 7 years from commencement of production. The prescribed royalty rates are net of taxes and will be calculated according to standard procedures."

As a consequence, automatic approval could only be granted to high priority industries whose royalty payments fell within the prescribed limits. In every other case, the approval of the Secretariat of Industrial Approvals (SIA), DID and the RBI had to be sought. It must be noted that in theory this regulation did not place an absolute ban on royalty outflows above the 5% and 8% ceilings since the possibility of securing government approval for the same did exist. However, considering that a mere 8062 approvals were granted between 1991 and 2009[1], the ceiling was in effect almost absolute.

It appears that the stance of the government of the time was one of strict regulation. From the perspective of Indian entrepreneurs, shareholders and consumers, this was a good thing. To illustrate, imagine a foreign company which manufactures a networked camera cell phone. The company will be paying royalties for several of its features such as the camera, USB port, operating system, etc. This company then sets up a subsidiary in India to manufacture the same phones. Though the total royalties being paid by the parent company are likely to far exceed five per cent of its sales, it cannot charge the subsidiary royalties above this ceiling. Therefore, the costs for the Indian subsidiary reduce significantly. This reduction will be reflected in an increased dividend for shareholders and a reduced cost for consumers.

While the benefits of this royalty ceiling are manifold, it is evident that foreign rights-holders are adversely affected. Therefore, the Government has, unfortunately, gradually “liberalized” its approach towards royalty payments over the years. First the 7 or 10 year duration restrictions were done away with and next the lump sum ceiling was increased from Rs.1 crore to USD 2 million. Ultimately, the ceiling was removed altogether through the Department of Industrial Policy and Promotion’s Press Note No.8 of 2009 in the name of liberalization. The adverse impacts on Indian manufacturers were almost immediate as foreign rights-holders began to revise their license agreements.[2]]

Why was this ceiling introduced in the first place? Some say it was due to the acute balance of payments deficit that existed in the country in 1991[3]; when India found itself overspending on imported oil. This urged the government at the time to ensure that foreign collaboration in the private sector was well regulated. Since then, the balance of payments situation in India has comparatively stabilized (though a deficit still does exist[4]) and so there appears to be no immediate need to continue to regulate foreign technology collaboration. However, one can’t help but remember Mark Getty’s prediction that intellectual property will be the "oil of the twenty-first century".[5]

Notes

[1] F. Bureaus, “Tech Transfer, Royalty Payment Norms Eased”, Financial Express (November 6, 2009) available at <http://www.financialexpress.com/news/tech-transfer-royalty-payment-norms-eased/537816/

[2]http://www.moneycontrol.com/news/cnbctv18comments/india-inc-to-bearbruntroyalty-payment-revision_472540.html">http://www.moneycontrol.com/news/cnbctv18comments/india-inc-to-bearbruntroyalty-payment-revision_472540.html>.

[3]K. Sen, “News on Royalty Payment Brings Cheer in New Year”, Business Standard (January 4, 2010) available at <

http://www.business-standard.com/india/news/newsroyalty-payment-brings-cheer-in-new-year/381521/>

[4]http://www.rbi.org.in/scripts/SDDS_ViewDetails.aspx?SDDSID=165">http://www.rbi.org.in/scripts/SDDS_ViewDetails.aspx?SDDSID=165>.

[5]http://www.stealthisfilm.com/Part2/projects.php">http://www.stealthisfilm.com/Part2/projects.php

For more details visit https://cis-india.org/a2k/blogs/lid-on-royalty-outflows

Consumers International World Congress - Day 3 roundup

praskrishna — 2011-05-06T05:34:47Z

Consumers can be empowered, and consumer organisations can make sure this happens through sharing and networking, speakers at the 19th Consumers International World Congress in Hong Kong said. The programme of the Congress finished on Thursday evening, and on Friday the global consumer body will hold its General Assembly and Council elections. This news was published in the Consumer's International Blog on May 5, 2011.

In his closing remarks, CI President Samuel Ochieng, emphasised "our ability to shape our future," ending the event on a positive note. Acting Director General, Helen McCallum, showed, in her remarks, the real excitement of the last few days.

Earlier, CI Vice President, James Guest, who is also President and CEO, Consumers Union of United States, delivered a keynote address on one of the key themes of the Congress: "The fight for fair financial services - a battle our movement must win".

Guest had this message for delegates and consumers around the world: "If you're wondering whether you, as an individual or through your organisation, can really make a difference in a David versus Goliath battle against the power of special interests, you already know the answer — yes, you can. The banking lobbyists are rich and powerful, and they spend a lot of money trying to buy influence. But there is one important asset that they lack and we have: people power. In the end, although it will be a hard and difficult fight, I believe that people power - mobilised by the over 220 members of CI - will eventually win.

"That’s because our cause and our stories and our passion are real. We fight for change, not because we are well-heeled lobbyists paid to do so, but because we care about our lives and the lives of our children, our neighbours, our countrymen, and citizens of the world - today and tomorrow, for this generation and the next."

Other highlights:

In a video message to the CI World Congress, French Finance Minister Christine Lagarde, that currently holds the presidency of the G20, said that the "G20 called for action on behalf of consumers, and with OECD I am working to protect consumers of financial services". She expressed the view that "consumers should be participants in the process of ensuring their own security," and admitted that "at the time of the crisis we did not focus enough on consumers in the first instance". Christine Lagarde said she remained "interested in the proposals developed for consumer protection and involvement following a successful CI Congress".

Gerd Leonhard, CEO of The Futures Agency, attracted a lot of interest with his views. Consumer organisations must network to have greater impact, they must share and publish; this is how you engage and enable others, he suggested. The difference between MTV and YouTube is the difference between 'the network' and networked, he said.

"'When five billion people are on the internet within a few years, the power of the consumer will be greater than ever," Gerd predicted.

We use social media/mobile phones to 'review' services, and corporations are paying attention, he added and noted that with broadband culture "everything known to man will be copied".

Former CI President Anwar Fazal delivered a rousing speech, which resulted in a standing ovation from the audience. He said that "in a world of big power, big media... networking is the new democracy".

Fazal added: ''CI is a force for social justice, we can do it, we must and we will!' He warned consumer organisations to "train new people or you will have no future," and noted that we "must not allow modernity to replace fundamental human connections".

On the subject of copyright and access to knowledge, David Hammerstein, TACD IP adviser, said: "We are not against copyright, we are for a more direct relation between artists and consumers".

CI's Dr Jeremy Malcolm added: "We want to support authors but not outdated regulation". He also argued that "unbalanced copyright and IP laws hurt consumers not pirates".

We aim to have A2K included in UN guidelines on consumer protection, Malcolm said.

Go to www.a2knetwork.org to comment on draft UN guidelines for A2K.

Sunil Abraham, Executive Director, Centre for Internet & Society, argued that fake mobile phone innovators in China are not pirates but "enablers of connectivity in the developing world".

Sue Rutledge, Coordinator for Global Program on Consumer Protection and Financial Literacy, World Bank, thanked Consumers International and HKCC for tackling the issue of financial services. She said that "all financial services providers should enable consumer redress," and that she "would like to see consumer ogranisations play an active role in protecting consumer financial protection".

Interviews

A number of speakers at CI World Congress have been interviewed by young TV journalists from Hong Kong City University involved in covering the event. Check the following videos:

You can also watch:

Read the original here

For more details visit https://cis-india.org/news/consumers-international-world-congress-day-3-roundup

Global IP Convention, 2011

praskrishna — 2011-05-08T04:04:31Z

The Global IP Convention, 2011 is being held at the Lalit Ashok Hotel in Bangalore from 28 to 30 April 2011.

Institute of International Trade and Sughrue are the knowledge partners, Thomson Reuters, Licensing Executives Society India and Society of Indian Law Firms are the supporting organisers, and the sponsors include Bird & Bird, Finnegan, watermark, MOS AID, Brinks Hofer Gilson & Lione, Philips, Kilburn & Strode, Lakshmi Kumaran & Sridharan, Questel, SCOPE, EVALUESERVE, STN, DoW, United Phosphorus Limited, Yahoo India, Indian Oil, DANIEL, Global IP Services, Jitendra Intellectual Property, Novel Patent Services Limited and resurgentindia. CIPA, iam, World Trademark Review, manupatra, Lex Witness and LexisNexis Butterworths Wadhwa are the media partners. The event is convened by Tata Consultancy Services and Intangible Business.

Speakers

Narendra K. Sabharwal, Former Deputy Director General [World Intellectual Property Organization]
Chid Iyer, Partner [Sughrue Mion PLLC, USA]
Michael R. Dzwonczyk, Partner [Sughrue Mion, PLLC, USA]
Jay Lytle, Partner [Sughrue Mion PLLC, USA]
Susan Pan, Partner [Sughrue Mion PLLC, USA]
Alban Kang, Managing Partner [ATMD Bird & Bird LLP, Singapore]
Anand K. Sharma , Partner [Finnegan, USA]
Dr. Raj Gupta, Partner [Finnegan, USA]
Richard Baddeley, Principal [Watermark, Australia]
Thayne Forbes, Joint Managing Director [Intangible Business, UK]
Ralph J. Gabric, Partner [Brinks Hofer Gilson & Lione, USA]
Nicholas G. de la Torre, Partner [Brinks Hofer Gilson & Lione, USA]
Manish Mehta, Partner [Brinks Hofer Gilson & Lione, USA]
Rana Gosain, Senior Partner [Daniel Advogados, Brazil]
Nick Lee, Partner [Kilburn & Strode LLP, UK]
Ravi Srinivasan, Partner [JA Kemp & Co. UK]
Paul Teng, Partner [COOPER & DUNHAM LLP, USA]
Richard Liu, Regional IP Director, Asia Pacific [Yahoo!]
Pravin Anand, Managing Partner [Anand and Anand]
V Lakshmi Kumaran, Founder and Managing Partner [Lakshmikumaran & Sridharan]
N. L. Mitra, Senior Partner [FoxMandal Little]
Dr. Rahul Verma, Assistant Vice President [Evalueserve]
Deepak Maheshwari, Director - Corporate Affairs [Microsoft]
S K Murthy, Patent Counsel [Intel India]
Vinod Kumar, Sr. Director, Business Development *TBC [MOSAID Technologies Inc., Canada]
Terry Ludlow, Founder and CEO [Chipworks, Canada]
Benjamin C. Adams, Director - Legal and Intellectual Property [Nokia]
Alex Jamal, Director-Patent Licensing [Ericsson Group]
Dr. Pinaki Ghosh, Head IP [Infosys Technologies Ltd]
Dr. Viswanathan Seshan, Country Manager -IP&S India [Philips Electronics India Ltd.]
Chandra Bajagur, Head- IP [Shell Technology India Private Ltd]
Dr. Aravind Chinchure, Head-IP [Reliance Industries Ltd.]
Dr. Anindya Sircar, Head – IP [Infosys Technologies Ltd]
Dr. Arun Kumar Kashyap, Chief Research Manager – IPR [Indian Oil Corporation Ltd]
Anup Kacker, General Manager (IP) [Indian Oil Corporation Ltd]
T C James, Director [National Intellectual Property Organisation]
Dr. Samiran Mahapatra, Open Innovation Director- Asia [Hindustan Unilever Limited]
Dr. A.S. Narayan [Unilever Research Center]
Dinesh Jotwani, President, National Bar Association of India [National Bar Association of India]
Santanu Mukherjee, Lead IPR Attorney [Qualcomm India Pvt. Ltd.]
Neeraj Panchal, Senior Manager – IP [John Deere]
Murthy Kotra, General Manager, Technical Information Services [Dow Chemical International Pvt. Ltd.]
Arun Bhardwaj, Director – Business Development [Dell Global]
Dr. Raghunadh Vajjula, IP Analyst [GE India Technology Center]
Anubha Sharma, Senior Legal Counsel and Head-IP [Bharti Enterprises]
Dawn Jos, Patent Strategy Coordinator- Asia [Texas Instruments]
Dr. Pradeep V Desai, Principal Consultant [Tata Consultancy Services]
Faiz ur Rahman, Manager – IP [Wipro Technologies]
Ayan Roy Chowdhury, Senior Manager - Legal & IP [Sony Entertainment Television]
Stephen Mathias, Partner [Kochhar & Co]
Lokesh V, Founder and CEO [Innomantra Consulting]
Lakshminarayanan R, IPR Specialist [Nokia]
Prof. Dr.-Ing. Sigram Schindler, CEO [TELES AG Informationstechnologien, Germany]
Navneet K Bhushan, Founder Director [Crafitti Consulting Pvt Ltd]
Hasit Seth, Director [Coofluence]
Mohammad S. Rahman [Rahman LLC, USA]
Sunil Abraham, Executive Director [Centre for Internet and Society]
Dr. Vijay Soni, Executive Vice President-IP [Glenmark Generics Inc]
Dr. Balu Gupta, Vice President - Patent Estate [Dr. Reddy's Laboratories]
Dr. Rajiv Saha, General Manager, IP *TBC [Torrent Pharmaceuticals Ltd]
Gautam Bakshi, Head – Corporate Intellectual Property [PROMED Research Centre]
Dr. Swati Bal-Tembe, Vice President [Piramal Life Sciences Ltd]
Dr. Alpesh Pathak, Head- API Patent Cell [Alembic Research Center]
Ashwini Sandu , Senior GM- IPR [United Phosphorus Ltd]
Jayanthi M, Senior Executive – IPM [Intas Biopharmaceuticals Ltd]
Dinesh Pillai, CEO [Mahindra Special Services Group]

For more details, click here

Download the event brochure here [PDF, 1.09 MB]

For more details visit https://cis-india.org/notices/global-ip-convention

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

pranesh — 2012-12-14T10:29:20Z

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

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

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

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

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

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

Article 3

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

3. Scope of Application

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

(i) mere retransmissions;

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

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

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

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

3. Specific Scope and Object of Protection

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

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

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

(iii) to any person for transmissions over computer networks

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

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

Term of Protection of Signals

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

Limitations and Exceptions

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

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

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

Protection of Signal and Retransmission

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

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

As stated by the Brazilian government:

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

Other comments

Article 7

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

Article 4

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

Article 5

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

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

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

Pirates, Plagiarisers, Publishers

prashant — 2014-05-29T05:55:27Z

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

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

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

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

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

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

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

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

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

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

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

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

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

Student ‘research’ in Law Schools in India

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

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

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

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

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

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

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

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

‘Originality’ is only a special effect of reception

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

Notes

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

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

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

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

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

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

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

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

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

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

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

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

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

Ibid, p.4

Ibid

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

Ibid

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

Ibid

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

Supra n. 12, at p. 17

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

Also see these:

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

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

pranesh — 2014-05-29T06:18:31Z

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

Can foreign works be copyrighted works?

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

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

Import of copyrighted works

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

This question is laid out as:

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

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

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

Judicial history on importation

The Penguin case [2]

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

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

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

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

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

Privity of contract

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

Doctrine of first sale/exhaustion

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

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

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

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

1994 Amendment to the Act

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

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

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

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

Eurokids case[5]

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

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

Warner Bros. case [6]

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

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

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

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

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

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

Export of copyrighted works

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

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

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

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

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

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

His reasoning rests on 3 dubious pillars:

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

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

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

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

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

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

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

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

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

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

Amendment to Section 2(m)

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

Notes

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

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

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

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

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

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

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

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

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

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

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

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

Also see SSRN

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2(m) or not 2(m)

praskrishna — 2011-04-01T15:55:48Z

An article by Nilanjana S Roy was published in the Business Standard on February 19, 2011. In this article Nilanjana Roy explains to us how a copyright amendment might change the way we read, write and publish in India.

Call this the war of the slogans. On one side, copyright lawyers and the Ministry of Human Resource Development offer the lure of cheaper books for Indian readers. On the other, publishers and authors speak of the death of Indian publishing as we know it.

Section 2(m), a proposed amendment to India’s copyright law that would allow the parallel import of books, is a dry piece of legalese, but it’s sparked a blog war, a flurry of publisher white papers, and a wide debate on copyright and territory.

The rationale is a legally sound one — to align Indian copyright law with Indian patent and trademark law, both of which follow the principle of “international exhaustion”: once a product has been legitimately sold, that product can be resold anywhere in the world without the consent of the owner of the copyright, be that the author or the publisher.

According to the Association of Publishers of India, “This proviso would mean that books published in any country could be freely made available and sold in India, without this amounting to infringement of copyright.”

Theoretically, parallel imports would allow a publisher or a printer who does not hold copyright to an Indian edition of a book to print his or her own editions of the book, under certain conditions, and release them back into the Indian market. There is also a fear among publishers that this might lead to widespread “dumping”, where the market is flooded with cheap, remaindered books.”

When this applies to books, specifically, one side argues that allowing “parallel imports” of books would open up the Indian publishing market to competition and would allow readers access to cheaper books. The other side argues that authors and publishers would suffer, and that in the long run, so would the reader. Thomas Abraham, managing director, Hachette India, states his position succinctly: “This would be the death of publishing and writing as we know it in India — and ironically by a surfeit of books.”

Step back from the rhetoric and the very complex issues involved about the intricacies of copyright law, territoriality in publishing, the book remainders market and book dumping, and here’s how the amendment is likely to affect readers, authors, publishers and booksellers.

Booksellers

Perhaps the sharpest summary comes from Landmark Bookstore’s Madhu Mohan: “As booksellers, we want to give our customers a wider range at a lower price. An open market immediately affords both: the cost of this is that publishers with Indian market rights might suffer. The more significantly affected parties are authors, publishers and readers. If, arguably, territorial rights are not sold, authors might earn lower advances. Publishers who have paid for territorial rights, are not able to get the full benefit of their monies. Readers should welcome the change, because at the outset they will get lower priced books.”

His view is echoed across the bookselling industry, with reactions ranging from indifference to the possible repercussions to cautious alarm — for many booksellers, a weak or damaged Indian publishing industry is also a negative.

Almost all booksellers agree that the short-term benefits of allowing parallel imports would be to lower the price of books. India already has among the lowest-priced English language books in the world, but it would be interesting to see if even lower prices reeled in a different kind of reader. As Mohan points out, book imports would be cheaper; books published in India by Indian or foreign authors would be adversely affected. The long-term scenario is another matter; if the Indian publishing industry is hit hard, we could be flooded with cheap, low-quality remainders, or lose price benefits in the long run.

Authors

For authors, what’s key about the 2(m) amendment is the way in which it would affect the writer’s copyright over his/ her work — and also the shifts it might bring about in the industry in general. Copyright lawyer Nandita Saikia observes that once a publisher effectively loses control over an edition of a book — if competing editions are allowed into the market — “This would significantly diminish the ability of publishers to invest in Indian authors and Indian writing.” From Abraham at Hachette to Chiki Sarkar at Random House to Tata McGraw Hill, there seems to be consensus on this aspect of the amendment.

In contrast, Pranesh Prakash of the Centre for Internet and Society argues strongly in favour of 2(m) and dismantling the “licence raj” that requires booksellers and distributors to have authorisation to import books: “Allowing people to import goods without permissions (with appropriate duties) is taken for granted in all other areas, so why not copyrighted works? After all, it is not the act of publication that gets affected, but the right of exclusive distribution.”

But many authors point out that publishing and bookselling operate differently from other industries, and the dynamics of writing and bookselling are not comparable. Author Amit Varma puts forward the writer’s objections: “As the author of a book, I should have the right to assign the rights to sell my book to any publisher in India that I feel like, and the law should protect that right, and my contract with the publisher. Parallel import obviously makes a mockery of that right, and can deny me significant potential royalties.”

Publishers

At Penguin India, Andrew Phillips is blunt: “We stand firmly against the amendment. Penguin is both a ‘foreign’ publisher and an Indian publisher and we believe it will affect both parts of our business. We don’t believe the effects will be minor — to the contrary, this would have a fundamental impact on the publishing business both for international authors and Indian authors who aspire to be read outside India.”

The publishers’ arguments are complex, but stripped of the technicalities, they rest on the question of territoriality. When publishing worldwide operates on the basis of territorial agreements — authors sell rights to their works for specific regions — opening up the market unilaterally makes little sense. India might open its market, via 2(m), to competing imports and editions; but Indian publishers don’t have the right to sell similar editions of books in the UK or US markets.

In other words, the market would open up only in one direction — and this could diminish Indian publishers’ ability to nurture new writing, release Indian editions of foreign authors, and pay authors significant royalties.

Behind the rhetoric, nothing about this proposed change in copyright laws is simple, and the repercussions for authors and publishers are likely to be both significant and adverse. There’s an interesting parallel in the Australian market, which, like the Indian publishing industry, is thriving but relatively young, and lacks the clout of the formidable US, UK and European markets.

Two years ago, when the move to allow parallel imports of books was discussed in Australia, that discussion was fierce, impassioned and hotly contested. Nor was it limited to the industry; when readers realised that the debate was really over what they would get to read, which authors would benefit or lose out, and how this would impact their intellectual lives, the debate went public.

In the case of Australia, it took a full year of discussion before it was finally decided not to introduce parallel imports for the publishing industry. Whatever the possible adverse effects — or benefits — of parallel imports, we haven’t had that discussion yet in India. It’s a necessary one, and it affects anybody equipped with a mind, a wallet and the ability to walk into a bookstore. This would be a good time to have it, before the law is set in stone.

The original article was published by Business Standard.

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

Procuring books in Indian libraries

praskrishna — 2011-04-01T16:27:28Z

Campaign to legalise parallel imports gathers steam.

In a move to advocate the cause of libraries and book readers throughout India, campaigners are telling Kapil Sibal, the Minister of Human Resources Development (HRD), why it is important to legalise parallel imports in India. This move is supported by the International Federation of Library Associations in developing countries.

Among the proposed amendments to the Copyright Act is a proposal to legalise parallel importation of books into India. This provision is now under threat because a publishers’ association convinced the HRD Minister (who is in charge of copyright law) that no one is calling for parallel importation. If parallel importing is not legalised in developing countries, it becomes impossible for libraries in India to even procure books from Amazon (for instance), especially the ones which have not yet released in India.

Parallel importation allows books that are (legally) bought overseas to be imported into India without asking the copyright owners permission. Without parallel importation being allowed, purchases made by libraries from foreign sellers (for instance on the Internet) are rendered illegal. International organisations like the International Federation of Library Associations (IFLA), Electronic Information for Libraries (eIFL), and Consumers International all support parallel importation, especially in developing countries.

For more on the need for parallel importation, see this write up by Pranesh Prakash from the Centre for Internet and Society, Bangalore.

For the campaign letter sent to Kapil Sibal by February 1st 2011, see below:

To
Minister for Human Resource Development
Room No 301
Shastri Bhawan
Dr. Rajendra Prasad Road
New Delhi – 110 001

Date: Tuesday, February 1, 2011

Dear Shri Sibal,

Subject: Parallel Importation of Books

We write to you as an organisation interested in the availability of books for libraries. Recently, a publishers’ association has made public statements that there are no groups that are demanding parallel importation, and that they themselves will be harmed by allowing for parallel importation.

We wish to inform you that this is not true. We believe that being able to legally purchase a book outside of India and import in into India is crucial for libraries. Many books that we wish to provide for our users—faculties, students, and others—are not available in India and have to be imported from abroad.

Currently the exception contained in s.51(b) proviso is applicable only to individuals for “private and domestic use” and does not cover libraries. Thus, if parallel importation is prohibited, then we will be unable to buy foreign books directly from foreign sellers. We often have to make purchases on online bookstores such as Amazon and Alibris, and these will be construed to be illegal without parallel importation being legal. We will be left at the mercy of what books are offered by sellers in India, instead of being able to buy what is required by our readers.

Parallel importation is allowed by the TRIPS agreement (Article 6, “Exhaustion”) as well as by the WIPO Copyright treaty (Article 6, “Right of Distribution”). We hope you will keep our concerns in mind.

Yours sincerely,
Centre for Internet and Society, Bangalore

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Digital Wrongs

praskrishna — 2011-04-01T16:26:11Z

Protecting Intellectual Property Rights. This article by Rohin Dharmakumar was published in Forbes India on January 28, 2011.

Imagine you are in the mood for some fun and so you create a spoof video, the sort that you find on YouTube everyday. If the changes proposed under the Indian Copyright (Amendment) Bill, 2010 come through, you won’t be able to do that.

The bill explicitly recognises the technology protection measures that publishers wrap around their content, commonly known as digital rights management (DRM), but without placing any limitations on it.

So there’s a good chance a parody clip that uses video clips from a news show or of a baby dancing to the tune of ‘Sheila ki Jawani’ could be taken down by over eager copyright owners.

Pranesh Prakash, a program manager with Bangalore-based Centre for Internet and Society, a non-profit civil society policy advocacy and research body, says such a scenario is perfectly possible under the proposed new law. “Providing legal backing to technological protection measures without imposing appropriate duties means that companies can effectively expand their rights to whatever technology can do. It’s a ridiculous situation,” he says.

Even worse, the law provides for criminal liability for breaking such DRM. Ask the Indian developers behind ‘PlayFair’, an open source software that allowed consumers to bypass Apple’s FairPlay DRM.

The developers were forced to stop their project even though Apple challenged them under the US DMCA law, which has no jurisdiction in India. They still folded because as individuals they didn't have the wherewithal to challenge Apple in a court.

“Our basic principle is that generally large corporations have the wherewithal to go to court and get orders, but individuals don’t. That balance must be maintained in the law, that everything isn’t presumptively violative of the law,” says Prakash.

Many fear of what might happen when digital rights management actually starts getting protection under Indian law. Raman Jit Singh Chima, a policy analyst with Google India’s legal team, says the present version of the amendment is unclear on intermediary liability and ‘fair dealing’. Simply put, if a user does something illegal, even the service provider or search site that was used may become liable for the offence.

“Unless the government or a court of law interprets it otherwise, this could mean users submitting their content for approval before uploading, with approvals taking months due to the volume of information on the Internet,” says Chima.

Read the original in Forbes India here

For more details visit https://cis-india.org/news/digital-wrongs

January 2011 Bulletin

praskrishna — 2012-07-30T11:25:44Z

Greetings from the Centre for Internet and Society! It gives us immense pleasure to present regular updates on the progress of our research on the mainstream Internet media. In this issue of we bring our latest project updates, news and media coverage:

Researchers@Work

RAW is a multidisciplinary research initiative. CIS believes that in order to understand the contemporary concerns in the field of Internet and society, it is necessary to produce local and contextual accounts of the interaction between the Internet and socio-cultural and geo-political structures. To build original research knowledge base, the RAW programme has been collaborating with different organisations and individuals to focus on its three year thematic of Histories of the Internets in India. Monographs finalised from these projects have been published on the CIS website for public review:

Digital Natives

CIS has interest in developing Digital Identities as a core research area and looks at practices, policies and scholarships in the field to explore relationships between Internet, technology and identity.

Column on Digital Natives

A fortnightly column on ‘Digital Natives’ authored by Nishant Shah is featured in the Sunday Eye, the national edition of Indian Express, Delhi, from 19 September 2010 onwards. The following article was published in the Indian Express recently:

Is That a Friend on Your Wall? [published in the Indian Express on 9 January 2010]

Workshop

The third and final workshop in the Digital Natives with a Cause? research project will take place in Santiago, Chile, from the 8 to 10 February. Open Call and FAQs for the workshop are online:

Blog Entry by Maesey Angelina

Maesy Angelina is a MA candidate on International Development, specializing in Children and Youth Studies at the International Institute of Social Studies, Erasmus University of Rotterdam. She is working on her research on the activism of digital natives under the Hivos-CIS Digital Natives Knowledge Programme. She spent a month at CIS, working on her dissertation, exploring the Blank Noise Project under the Digital Natives with a Cause framework. She writes a series of blog entries. The latest is:

The Digital Tipping Point

Announcement

Rising Voices Seeks Micro-Grant Proposals for Citizen Media Outreach

Accessibility

Estimates of the percentage of the world's population that is disabled vary considerably. But what is certain is that if we count functional disability, then a large proportion of the world's population is disabled in one way or another. At CIS we work to ensure that the digital technologies, which empower disabled people and provide them with independence, are allowed to do so in practice and by the law. To this end, we support web accessibility guidelines, and change in copyright laws that currently disempower the persons with disabilities.

New Blog Entry

Accessibility in Telecommunications

Intellectual Property

Copyright, patents and trademarks are the most important components on the Internet. CIS believes that access to knowledge and culture is essential as it promotes creativity and innovation and bridges the gaps between the developed and developing world positively. Hence, the campaigns for an international treaty on copyright exceptions for print-impaired, advocating against PUPFIP Bill, calls for the WIPO Broadcast Treaty to be restricted to broadcast, questioning the demonization of 'pirates', and supporting endeavours that explore and question the current copyright regime. Our latest endeavour has resulted into these:

New Blog Entry

New Release of IPR Chapter of India-EU Free Trade Agreement

Internet Governance

Although there may not be one centralised authority that rules the Internet, the Internet does not just run by its own volition: for it to operate in a stable and reliable manner, there needs to be in place infrastructure, a functional domain name system, ways to curtail cybercrime across borders, etc. The Tunis Agenda of the second World Summit on the Information Society (WSIS), paragraph 34 defined Internet governance as “the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.” Within the larger field of Internet governance, the Internet Governance Forum (IGF), a multi-stakeholder policy dialogue forum that was instituted by the WSIS processes and that is their only formal outcome, has fast emerged as one of the key institutions. As the definition quoted above indicates, a unique feature of the field of Internet governance is that, unlike many other governance spheres, it does not only involve governments. Historically, not only governments but also the technical community and private players have played a crucial role in the development of the Internet. In the context of the IGF, that role is not only explicitly acknowledged but also institutionalised as the IGF formally brings together governments, private players and civil society actors from all areas of and organisations involved in Internet governance. Moreover, now that the open and egalitarian potential of the Internet is increasingly under attack, this unique nature of the IGF, in addition to its WSIS roots, has made it a prime venue to remind stakeholders in all areas of Internet governance of the commitment they have made earlier to building a “people-centred, inclusive and development-oriented Information Society” (WSIS Geneva Principles, Para 1). CIS involvement in the field of Internet governance has the following shape:

New Blog Entry

Jurisdictional Issues in Cyberspace

Privacy

CIS has undertaken many new and exciting projects. One of these, "Privacy in Asia", is funded by Privacy International (PI), UK and is being completed in collaboration with Society and Action Group. "Privacy in Asia" is a two-year project that commenced on 24 March 2010 and will complete within two years from the commencement date, unless otherwise agreed to by the parties. The project was set up with the objective of raising awareness, sparking civil action and promoting democratic dialogue around privacy challenges and violations in India. In furtherance of these goals it aims to draft and promote an over-arching privacy legislation in India by drawing upon legal and academic resources and consultations with the public.

Apart from "Privacy in Asia" CIS is also participating in the " Privacy and Identity" project, which is funded by the Ford Foundation and managed by the Centre for Study of Culture and Society. The project is a research inquiry into the history of Privacy in India and how it shapes the contemporary debates around technology mediated identity projects like Aadhaar. The "Privacy and Identity" project started in August 2010.

New Blog Entries

Staff Update

Prashant Iyengar is a lawyer and legal scholar who has worked extensively on intellectual property issues particularly focusing on copyright reform and open access. He is a past recipient of an Open Society Institute fellowship for research into Open Information Policy, and has been affiliated with the Alternative Law Forum – a collective of lawyers in Bangalore engaged in human rights practice.

Prashant joined the Centre for Internet and Society as a lead researcher in the Privacy India project recently.

Telecom

The growth in telecommunications in India has been impressive. While the potential for growth and returns exist, a range of issues need to be addressed for this potential to be realized. One aspect is more extensive rural coverage and the second aspect is a countrywide access to broadband which is low at about eight million subscriptions. Both require effective and efficient use of networks and resources, including spectrum. It is imperative to resolve these issues in the common interest of users and service providers. CIS campaigns to facilitate this.

Column

Shyam Ponappa is a Distinguished Fellow at CIS. He writes regularly on Telecom issues in the Business Standard and these articles are mirrored on the CIS website as well.

The policy langurs [published on 6 January 2011]

News & Media Coverage

Civic hackers seek to find their feet in India (Livemint, 24 January 2011) and (IndiaInfoline, January 2011)
A Tweet and a poke from the CEO (Livemint, 24 January 2011)
Clicktivism & a brave new world order (Mail Today, 2 January 2011)
Would it be a unique identity crisis? (Bangalore Mirror, 2 January 2011)
Nel suk dei nativi digitali. Perché gli studenti 2.0 hanno bisogno di una bussola per orientarsi (Il Sore24 ORE, 2 January 2011)
A Refreshing Start! (Verveonline, Volume 19, Issue 1, January, 2011)
Getting Connected (Livemint, January 2011)
Knowledge Warriors (Il Sore24 ORE, January 2011)
Nishant Shah Quoted in Livemint 2011 Tweet-out (Livemint, January 2011)
Digital Natives with a Cause? - Workshop in Chile seeks participants (Bahama islands info, 30 December 2010)
Mothers discuss kids, music, fashions, on Net (The Hindu, 26 December 2010)

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Visit us at www.cis-india.org

Looking forward to hearing from you. Please feel free to write to us for any queries or details required. If you do not wish to receive these emails, please do write to us and we will unsubscribe your mail ID from the mailing list.

For more details visit https://cis-india.org/about/newsletters/january-2011-bulletin

Why Parallel Importation of Books Should Be Allowed

pranesh — 2019-02-01T17:41:26Z

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

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

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

The amendment

2(m) "infringing copy" means,—

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

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

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

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

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

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

What is parallel importation?

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

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

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

Harms on existing books of not allowing parallel importation

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

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

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

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

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

Benefits of parallel importation

Dismantling distribution monopoly rights

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

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

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

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

Helping book publishers

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

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

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

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

Helping libraries and the print-disabled

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

Helping all consumers

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

Rebutting objections

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

1. Authors' won't lose out on royalties

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

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

Indian authors

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

2. Remaindered books are in publishers' control

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

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

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

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

3. Dumping of books should be tackled separately

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

Customs laws are better suited

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

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

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

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

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

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

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

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

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

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

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

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

Standing Committee consultations

Lack of wide consultation

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

Publishers were represented

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

Libraries, students, consumers were not represented

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

Department's and Standing Committee's reasoning

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

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

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

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

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

Conclusion

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

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

New Release of IPR Chapter of India-EU Free Trade Agreement

pranesh — 2011-09-22T12:34:05Z

A draft of the IPR chapter of the EU-India FTA, made publicly available now for the first time, provides insight into India's response in July 2010 to several EU proposals on intellectual property protection and enforcement.

A draft of the IPR chapter of the EU-India FTA, made publicly available for the first time (PDF, 296Kb), provides insight into India's response in July 2010 to several EU proposals on intellectual property protection and enforcement. The consolidated draft which was prepared to serve as the basis of talks that took place from July 12-14, 2010, in New Delhi, reveals parties' negotiating stances in response to preliminary positions put forth earlier (see IPR Chapter May draft).

In particular, this draft reflects India's rejection of many EU proposals that would require India to:

exceed its obligations under the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), e.g by providing data exclusivity for pharmaceutical products;
impose radical enforcement provisions, such as liability of intermediary service providers, border measures for goods in transit, and raised norms for damages and injunctions; or
require legislative change, e.g., on data protection, and to accommodate the full EU demands on geographical indicators.

A chart compiled by CIS comparing proposed language by India and the EU in several provisions with TRIPS can be found here (PDF, 402 Kb).

Sources close to the negotiations have also confirmed that during the July talks India reiterated its refusal to go beyond TRIPS, and its refusal to discuss issues that require changes to Indian law. India appears to have also reiterated that it could not finalise FTA copyright provisions before passage of the Copyright Amendment Bill in the Indian Parliament.

It is hard to assess the current state of the negotiations on IP or to measure the outcomes of subsequently held talks without access to recent drafts, a public record of deliberations, or the schedule of full and intersessional rounds taking place. However, from press and other statements attributed to the European Commission and Indian officials after the December 2010 EU-India Summit in Brussels, it appears that:

both parties plan to conclude the FTA, the biggest ever for the EU, by Spring 2011;
the EU has not relaxed its pursuit of at least some "TRIPS plus" provisions such as data protection for pharmaceuticals
a mutually agreed solution to India's WTO case against the EU over the seizure of generic medicines may be round the corner. Its impact on the FTA is open to speculation.

Because the India-EU FTA is likely to set a new precedent for future trade agreements between developed and developing countries, and with enormous stakes for patients across the globe, India and the EU need to get it right and ensure no provision runs counter to the interests of millions of citizens.

For further information about the text, contact Malini Aisola <malini.aisola@gmail.com> or Pranesh Prakash <pranesh@cis-india.org>

For more details visit https://cis-india.org/a2k/blogs/july-2010-ipr-india-eu-fta

Problems Remain with Standing Committee's Report on Copyright Amendments

pranesh — 2011-09-06T07:50:12Z

The Rajya Sabha Standing Committee on Human Resource Development (under which ministry copyright falls) recently tabled their report on the Copyright (Amendment) Bill, 2010 before Parliament. There is much to be applauded in the report, including the progressive stand that the Committee has taken on the issue of providing access by persons with disabilities. This post, however, will concern itself with highlighting some of the problems with that report, along with some very important considerations that got missed out of the entire amendment debate.

Fair Dealings and Intermediary Liability

The amendments make a number of changes to s.52(1) of the Act, including to the fair dealing provisions under s.52(1)(a), and introduction of two new sub-sections (s.52(1)(b) and (c)) with s.52(1)(c) introducing a modicum of protection for intermediaries involved in "transient and incidental storage for the purpose of providing electronic links, access or integration" (but only if the copyright holder has not expressed any objections, and if the intermediary believes it to be non-infringing). The provision allows the intermediary to ask the person complaining against it to provide a court order within 14 days, since the intermediary is in no position to determine the judicial question of whether the copyright holder holds copyright and if the third party has violated that copyright. However this provision was opposed tooth and nail by the copyright holders' associations that dominated the representations, while intermediaries and consumers remained woefully under-represented before the Standing Committee.

Predictably, the Standing Committee dealt a blow against intermediaries and consumers by asking the government to review the "viability of the duration of 14 days... by way of balancing the views of the stakeholders as well as the legal requirement in the matter". They recommended a relatively minor change of changing the phrase "transient and incidental" to "transient or incidental". By doing this, they failed to address the concerns raised by Yahoo India, Google India, and also failed to acknowledge the submissions made by 22 civil society organizations (available here: http://cis-india.org/advocacy/ipr/upload/copyright-bill-submission).

Technological Protection Measures and Rights Management Information Provision

The amendments aim to bring about two new criminal provisions, and seek to make circumvention of technological protection measures (digital locks) and alteration of rights management information (which are embedded into digital files and signals) illegal.

The Standing Committee heard a number of organizations on technological protection measures, which we had argued are harmful as they a) cannot distinguish between fair dealing and infringement, and b) are harmful even if a legal right to circumvent for fair dealings is provided because the technological means to circumvent doesn't necessarily exist. (Imagine a law that says that breaking a lock using lock-breaking implements isn't a crime if it is done to enter into your own house. Such a law doesn't help you if you can't get your hands on the lock-breaking implements in the first place.) The Indian Broadcasting Federation, the Business Software Alliance, and the Motion Picture Association (which represents six studios, all American), the Indian Music Industry, and the Indian Performing Right Society Limited all felt that this provision did not go far enough. The Motion Picture Association, for instance, wants not just controls over that which copyright covers

Yahoo India and Google India on the other hand thought that provision went too far. Google made it clear that they thought having criminal repercussions for circumvention was clearly disproportionate. Thus, a clearer split is established between old media companies; the old media companies clutching on to straws that they feel will save them from adapting their business practices to the digital environment, and online companies that understand the digital environment better having a markedly different idea.

Currently section 65B (read with the definition of "Rights Management Information" in section 2(xa)) of the proposed amendments ensures that Rights Management Information cannot be used to spy on users. The Indian Reprographic Rights Organization however believes that this is wrong: it believes that copyright owners should have the ability to track users without their consent. Yahoo India, on the other hand, believes that this is a harmful provision, and state that "the imposition of criminal and monetary liability could adversely affect consumers", and cites the instance of difficulties that would be faced by "entities engaged in creating copies of any copyright material into a format specially designed for persons suffering from disability" because of the language of the provision that requires knowledge instead of intention. The committee responds to this by summing up with a tautology, stating:

The Committee is of the view that the parties responsible for distribution or broadcasting or communication to the public through authorized licence from the author or rights holder and who do not remove any rights management information deliberately for making unauthorized copies need not worry about this provision as long as their act is as per the framework of this provision.

Implications of Standing Committee's Report Unclear

Many of the comments made by the Standing Committee are unclear. On compulsory licensing, the committee states:

The Committee also takes note of the proposed amendments in section 31 A relating to compulsory licence in unpublished Indian works. The provision of compulsory licence for orphaned works available under this section is proposed to be extended to published works as well. Like in the case of section 31, extension of applicability to all foreign works (including film, DVDs, etc.) could be violative of Berne Convention and TRIPS Agreement and seem to fall short of the minimum obligations imposed by such instruments. The Committee is of the view that future implication of proposed amendment in Section 31A vis-à-vis India's commitment to international agreement needs to be free from any ambiguity so as to prevent any negative fallout.

However, the usage of the phrase "could be violative" leaves it unclear whether the Standing Committee believes the proposed amendments to be violative of the TRIPS Agreement or not. All that the Standing Committee says is that the provision needs to be unambiguous, and that TRIPS compliance must be ensured. That word of caution does not directly rebut the government's contention that the proposed amendment is TRIPS-compliant.

Similarly, the Committee's views on increase of copyright term for cinematograph films is unclear. While commenting on the clause that introduces the term increase (as part of the proposal to include the principal director as an author of the film along with the producer), the Committee states:

It, therefore, recommends that the proposal to include principal director as author of the film along with producer may be dropped altogether.

While this presumably means that the proposal to increase term is also being rejected, that is not made clear by the Committee's comments.

Increased Copyright Duration, Expansive Moral Rights and Other Negative Changes

In the submission of CIS and twenty-one other civil society organizations to the Standing Committee, we highlighted all of the below concerns. However, our submission was not tabled before the Standing Committee for reasons unknown to us.

WCT and WPPT compliance: India has not signed either of these two treaties, which impose TRIPS-plus copyright protection, but without any corresponding increase in fair dealing / fair use rights. Given that the Standing Committee has recommended against some aspects of WCT compliance (such as the move to change "hire" to "commercial rental") and that without such changes India cannot be a signatory to the WCT, it is unclear why other forms of WCT compliance (such as TPMs) should be implemented.
Increase in duration of copyright: The duration of copyright of photographs and video recordings is sought to be increased. The term of copyright for photographs is being increased from sixty years from creation to sixty years from death of the photographer. This will significantly reduce the public domain, which India has been arguing for internationally, especially through its push for the Development Agenda at the World Intellectual Property Organization.
Moral rights: Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without requisite safeguards.
Version recordings: The amendments make cover version much more difficult to produce, and while the Standing Committee has addressed the concerns of some in the music industry, it hasn't addressed the concerns of artists and consumers.

Criminal Provisions, Government Works, and Other Missed Opportunities

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

Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.
Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection would except "the reproduction, communication to the public, or publication of any government work" as being non-infringing uses.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled.
Fair dealing and fair use: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions.

For more details visit https://cis-india.org/a2k/blogs/sc-report-on-amendments

Intellectual Property Rights as seen in a graphic novel

praskrishna — 2011-04-02T06:32:01Z

While most engagements with the issue of Intellectual Property Rights take the form of academic papers and scholarly articles, the Centre for Internet and Society is approaching the subject through another medium – an online graphic novel. Commissioned by the organisation, and conceived, written and drawn by Mumbai-based Anand Ramachandran (a man who keeps himself busy in a number of ways, from writing satire columns to developing videogame designs), the novel, titled Learning to Floo, is being serialised on the CIS website.

“People are aware of the implications of IPR issues when it comes to movies and music,” said Ramachandran, over the phone from Mumbai. “Less so when it comes to patents and medicines. We’re trying to throw light on some of these issues through the comic.” One attraction of dealing with the subject through a story is that it becomes possible to avoid proselytising. “We’re telling a story, not taking a moral stand,” said Ramachandran.

The premise – an India many centuries in the future. IPR laws have slowly become so restrictive that people can’t even hum a popular tune without first paying a license fee. As a result creativity and originality have been strangled, and people’s brains have turned to mush. A band of rebels holds out, including an individual named Teech who, as the story opens, is in prison awaiting execution. Unknown to him and his cohorts, the government actually needs them because, as pirates, they have access to knowledge that has been lost to the rest of mankind. A prison break sets the story off at a cracking pace.

Ramachandran uses Celtx to write his scripts, and Xara Xtreme and the GIMP pencil and airbrush tool for the illustrations – all free software, he pointed out. The art is minimalist, with one or two facial features defining each character (Teech himself has no facial features), and the story is sped along by snappy dialogue and smooth storyboarding. CIS also has plans to produce a print version of the comic once it is complete. Ajay Krishnan

Learning to Floo can be read here
Read the original article in TimeOut Bengaluru

For more details visit https://cis-india.org/news/ipr-in-graphic-novel