Centre for Internet and Society

WIPO Delegates Hear Concerns of NGOs on Exceptions for Libraries

praskrishna — 2014-12-27T14:40:05Z

As World Intellectual Property Organization member states launched into discussions on exceptions and limitations to copyright for the benefit of libraries and archives this week, non-governmental organisations were given the opportunity to present their views on the issue. They delivered vibrant, sometimes contradictory, statements on the opportunity for a treaty to preserve exceptions in the international copyright system.

The 26th session of the WIPO Committee on Copyright and Related Rights (SCCR) is taking place from 16-20 December. After two days devoted to the protection of broadcasting organisations, the focus of the next two days has been on a potential international instrument providing exceptions and limitations for libraries and archives.

In their general statements, countries remained faithful to their known positions. Developing countries generally underlined the necessity of achieving a balanced international copyright system and their wish to establish a legally binding instrument, and developed countries were of the view that the existing international copyright system already provides exceptions which could be used by libraries and archives.

The African Group said the countries in the group: find it difficult to set up and understand the existing limitations and exceptions; believe an international legally binding instrument would enable them to understand better how they can provide exceptions and limitations for libraries and archives; and consider that it would provide a mechanism for cross-border exchange for such entities.

The European Union clearly stated that its member countries were not willing to consider a legally binding instrument, and said that exceptions and limitations for libraries and archives did not require the same kind of action that was taken in favour of visually impaired people, referring to the recently adopted Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

Developed countries, in particular those in the European Union, did not always stand in favour of a treaty providing exceptions and limitations to copyright for visually impaired people. In the discussion on libraries and archives, developed countries are in favour of sharing national experiences rather than establishing binding new norms.

The United States said it was not in support of norm-setting through treaty provisions. The delegate also said exceptions and limitations should be consistent with other member state obligations, including the so-called three step test.

The notion of three-step test haunted the discussions leading to the Marrakesh Treaty. It stems originally from Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (IPW, WIPO, 14 June 2013) and provides conditions for reproduction.

A large number of non-governmental organisations took the floor on 18 December, with stark differences in the approach of the issue of exceptions and limitations to copyright for libraries and archives.

Industry, Creators: International Instrument Superfluous

The industry, such as the International Federation of Film Producers, the Motion Picture Association (MPA), The International Association of Editors (IPA), the International Video Federation (IVF), the Ibero-Latin-American Federation of Performers (FILAIE), and the International Association of Scientific, Technical and Medical Publishers (STM), said that the existing international copyright framework already provides exceptions and limitations, and national legislations can be develop to address issues met by libraries and archives.

FILAIE said that it was in support of the Marrakesh Treaty but that a balance between society and the rights holders should be maintained. The IPA said there is no need for change in the international law, and suggested active legislative assistance to WIPO member states by the secretariat.

IVF concurred and said effective technical assistance in implementing the existing international copyright framework should be a focus of the SCCR.

The International Federation of Reproduction Rights Organisation (IFRRO), in its statement, also said the current international conventions adequately provide for the establishment of relevant library exceptions in national legislation, such as reproduction for preservation proposals. The sharing of experiences ” both in the wording of library and archive exceptions and practical solutions seems to IFRRO to be the most appropriate way to enhance the performance of library and archive services,” the representative said.

“Exceptions and limitations are already part of the toolkit of existing treaties,” the representative for the International Federation of Actors and the International Federations of Musicians said. The international normative framework is providing “a coherent and flexible structure with just recognition of the contribution of creators to the information society and knowledge society, and the establishment of exceptions and other mechanisms providing access for the public to creative content,” he said.

The International Authors Forum concurred with the idea that existing provisions contain sufficient flexibility and asked that WIPO member states “will take advantage of the opportunity provided by the WIPO texts for adequate remuneration for the authors in accordance with the three-step test.”

Libraries, Archive Underline Inadequacies, Support Treaty

Libraries and archivists have a different view of the issue and reported on problems as they experience them on the ground.

The German Library Association cited a new study published by the European Commission (Study on the application of Directive 2001/29/EC on copyright and related rights in the information society [pdf]), and said it “paints a dire picture of the adequacy of the Directive for exceptions for libraries in the European Union in the digital environment.”

In particular, the representative said, it “identifies a lack of cross-border application of exceptions for libraries and a patchwork of national laws as preventing libraries from fulfilling their functions,” in particular presenting cross-border issues, he said.

“There is a high level of international copyright protection,” he said, but “there is no such uniformity of limitations.” To act legally, he said, “library staff has to know about the limitations and exception, not only in their own country, the country of origin, but also in the country of destination of its service.”

The Canadian Library Association said it came to WIPO “to ensure a basic copyright framework is made available to libraries everywhere, and not just in Canada to deliver essential information services, and so that other communities can benefit from the same societal and economic impacts as we have in Canada.”

Even in Canada, the representative said, libraries’ activities are under threat, “as increased restrictions such as technology group protection measures and licensing terms and conditions degrade the environment in which we work, leaving libraries changing our role to simple market access intermediaries for publishers.”

For Electronic Information for Libraries, an international framework establishing basic standards is necessary to avoid increasing inequalities in public knowledge. “We recognise the theory that the international copyright framework provides legal space to ensure meaningful limitations and exceptions,” the representative said, “But when the reality is different, and the gap between countries is widening, intervention is required to ensure the integration of key public interest concepts into the international framework.”

The International Federation of Library Associations and Institutions also underlined the disparity in national exceptions and limitations making it impossible for libraries to “competently fulfil our role as intermediaries between rights holders and users.”

WIPO Broadcast Treaty and Webcasting

pranesh — 2011-08-04T04:42:10Z

On Friday, 8 May 2009, at Shastri Bhavan, New Delhi, the Ministry of Information and Broadcasting held a stakeholders' briefing meeting on the Broadcast Treaty that has been on the table at the World Intellectual Property Organisation (WIPO). The purpose of that meeting was to inform the relevant stakeholders of the developments in Geneva, as well as to garner input from them regarding the stance to be adopted by India at the WIPO. Pranesh Prakash from the Centre for Internet and Society participated and made a presentation on webcasting, highlighting the differences between webcasting and broadcasting, and arguing that webcasting should not be part of the WIPO Broadcast Treaty.

First, we wish to applaud the Ministry of Information and Broadcasting for holding this stakeholders' meeting, which is a definite step towards greater transparency, and are grateful for having been invited to provide our input. The meeting was attended by representatives from various government offices and ministries, including the Ministry of Human Resource Development (which administers the Indian Copyright Act), broadcasters, broadcast associations, law firms, and civil society organisations. The Secretary of the Ministry of Information and Broadcasting inaugurated the session by talking of how the Broadcast Treaty involved the assessment and balancing of various interests while keeping 'public interest' foremost. This was followed by Mr. N. P. Nawani, Secretary General of the Indian Broadcasting Foundation (IBF), presenting on the concerns of the broadcasting industry. After this Prof. N. S. Gopalakrishnan, head of the School of Law, Cochin University of Science and Technology, spoke.

Prof. Gopalakrishnan covered many areas of relevance: the concept of broadcasting and the legal rights involved; the scheme of legal protection over broadcast signals and over the content of the signals, and the difference between the two; gaps in the international law covering broadcasting; details of the proposed broadcast treaty; the implications of the broadcast treaty and concerns of the Indian government; and unresolved issues.

Amongst the unresolved issues mentioned by Prof. Gopalakrishnan was that of webcasting and the problems related to that. The discussion below aims to shed some light on some of the problems created by the inclusion of webcasting in the broadcast treaty.

Legal regimes for broadcasting

At the national level, the law governing broadcasting is the Indian Copyright Act, 1957. Broadcasting is covered by many sections of the Indian Copyright Act, including: ss. 2(dd) (definition of "broadcast"), 2(ff) (definition of "communication to the public"), 37 (the section granting a special "broadcast reproduction right"), and 39A (containing exceptions to s.37). At the international level, broadcasting is covered by the Rome Convention, 1960 (which India has signed, but hasn't ratified); the Brussels Convention, 1974 (only pre-broadcast satellite signals); the TRIPS Agreement, 1994 per Article 14 (which doesn't mandate that broadcasting rights be granted directly to the broadcasters); the WIPO Performances and Phonograms Treaty, 1996 (WPPT) in Articles 2(f) and 15; and the proposed WIPO Treaty on the Protection of Broadcasting Organizations ("Broadcast Treaty"). In May 2006, provisions for webcasting were brought back into the Broadcast Treaty as part of the non-mandatory Appendix after having been excised in 2004 owing to protests by many countries on their inclusion. The current draft (SCCR/15/2 rev.) was prepared in September 2006 as an attempt to put together an all-inclusive document (with alternative versions of proposed provisions present in the document), and a diplomatic conference was planned to push the treaty through. In August 2007, WIPO released a 'non-paper' (SCCR/S2/Paper1) and dropped plans for the diplomatic conference, as there was still significant disagreement about the treaty. In November 2008, the WIPO chair released an informal paper (SCCR/17/INF/1), which advocated technological neutrality, and hence, presumably, that webcasting to be covered by the treaty.

Meaning of broadcasting and netcasting

Broadcasting is generally taken to be a point-to-multipoint transmission of audio-visual content. Hence, cable transmissions and Internet/Web transmissions (which are point-to-point) are usually not included when one uses the term "broadcasting". But there is no one common definition of "broadcasting". As things stand in the WIPO Broadcast Treaty, the definition of broadcasting (Art. 5(a)) does not cover cablecasting, which is separately defined in Art. 5(b), neither does it cover webcasting. However, the definition of "retransmission" as provided in the draft treaty is broad enough to cover Internet-based transmission, and hence could provide a backdoor via which webcasting is included. The rights covered by the all-inclusive draft WIPO Broadcast Treaty include the rights of and over: retransmission; communication to the public; fixation; reproduction; distribution; transmission following fixation; making available of fixed broadcasts; and pre-broadcast signals. The treaty also mandates legislative protection to systems of digital rights management (DRM) and technological protection measures (TPMs). This, coupled with post-fixation rights, grants broadcasters the rights to dictate what one can and cannot do with a broadcast, thus negating all fair dealing rights and possibly restricting the public domain as well. It may be noted that even content creators are not provided such rights in the vast majority of the world, and that fair dealing rights are much better safeguarded by copyright law. The latest proposal by the U.S. on the term "netcasting" is to be found in an informal paper presented at SCCR 15 [MS Word document], and has been criticised as overly expansive by civil society organisations such as Consumer Project on Technology (now Knowledge Ecology International).

Non-justifications for webcasting's inclusion

Webcasting is sought to be included within the Broadcast Treaty for a number of reasons, all of which are problematic. Firstly, there is the argument of technology neutrality, which advocates say is to ensure that the treaty is relevant into the future as well. However, adopting technology neutrality as the basis for doing so amounts to wilful blindness to technological advancements, and the benefits that such advancement provides, including lowered costs of infrastructure. Secondly, advocates argue that thanks to media convergence, the same content (which is usually digital) can be delivered through various communication networks. This disregards the need to establish the requirement for a new right to be created, and simply assumes that just because the function that the two (broadcasters and webcasters) perform are similar means that they operate in similar economic and social environments. In fact, webcasters work in a very different environment from broadcasters.

This is an environment where intense innovation and competition already exist, and don't need to be artificially created by means of a new property right in an international treaty. Furthermore, the United States, a country with extremely large and hugely profitable broadcasting networks, does not have a specific statute to protect broadcasters’ rights. Even it only has laws protecting the conditional-access regime. Second, much less investment is required to reach a set number of people through webcasting than through broadcasting -- and these people can be spread throughout the globe. Typically, a computer with a fast internet connection is all that is required. Given this, anyone can become a 'broadcasting organisation'. Additionally, IP addresses (in IPv6) are not limited, unless one considers 340 undecillion addresses to be 'limited'. This is a big difference from terrestrial broadcasting, where Hertzian frequencies are limited, and hence one has to pay a premium for them. Lastly, signal appropriation does not happen for sake of the signal, but for the content. Protection, thus has to be given to the content (and already is given, in the form of copyright law). Copyright owners who object to such appropriation, and who are often large multinational corporations, have proven more than willing to pursue those who appropriate their works – broadcasters are not necessarily in a better position to do so. This situation is aggravated with webcasting. Indeed, on the Web, something akin signal appropriation is not only not frowned upon, but often encouraged: embedding of audio and video from other servers on your own website is prevalent.

Problems if webcasting is included

Apart from the lack of justifications for going ahead with the treaty, especially when it seeks to create a separate property right over signals instead of merely providing for signal protection and includes webcasting (at least upon 'retransmission'), there are many problems that the treaty creates. Firstly, transaction costs will increase vastly, leading to a tragedy of the anticommons where no one ends up using the content because clearing all the surrounding rights is too difficult. On top of clearing and making payment for rights from the copyright holders, a person wishing to use parts of any content that has been broadcast/webcast would have to get the rights cleared from the first broadcaster/webcaster as well. This is inevitable if property-like rights are bestowed upon the act of distributing signal in the form of a broadcast or hosting audio and visual content for webcasting.

Secondly, materials in the public domain and openly-licensed content will become more difficult to gain access to, and the exercise of fair dealings with copyrighted content will be hampered. Since rights over signal are independent of rights over content, a copy of the public-domain work will have to be procured from an archive, which negates the very purpose of broadcasting and webcasting, which is to make content more easily accessible to a large number of people located over great distances. Additionally, limitations and exceptions are extremely difficult to negotiate and are of the 'ceiling' kind, limiting the limitations and exceptions that national legislatures can prescribe. Thus, the fair dealing rights over the signal will probably end up being more limited than the fair dealing rights over content. This makes the situation akin to anti-circumvention measures, which (in countries where they are legally recognised) have fewer limitations and exceptions than the content they protect.

Thirdly, public benefit and access will seriously be harmed. It is conceivable that this treaty might hamper the Indian legislature's ability to pass statutes such as the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007, which mandate sharing of certain kinds of signals. Lawyers will claim that such statutes go against India's international obligations.

Differences between webcasting and broadcasting

To sum up, there are a large number of differences between broadcasting and webcasting.
Infrastructure: The expenditure required to establish the infrastructure for a webcasting unit is much less than that required for an equivalent (in terms of reach in terms of listeners). Even traditional broadcasting is not that expensive: fixed-frequency radio transmission kits have been known to cost as little as Rs. 50 (<http://news.bbc.co.uk/2/hi/south_asia/4735642.stm>. Thus, one of the biggest arguments for protection ('to recover investment') is taken away. The content producers' 'investment' is protected by copyright law.
Competition: Providing incentives to increase competition and hence public benefit is often a reason cited as a reason for introduction of a new property-like right. However, such incentives seem utterly redundant in the online market where becoming a webcasting organisation is trivial, and immense competition already exists.
Broadcasting vs. Uni- and Multicasting: The notion of 'broadcasting' does not exist in IPv6. The closest that a webcaster can come to broadcasting is 'multicasting' to a specific range of IP addresses. What one sees on the Web today is "unicasting", which is initiated by a request from the recipient and not by the webcaster.
Temporal limitations: Unlike traditional broadcasting (which does not include cable), content on demand is possible over the Web. By this, the temporal limitations faced by traditional broadcasting, which is ephemeral, are overcome. This opens up many possibilities that should not be hampered by creating an excessive legal regime (and that too a property regime) over webcasting.
Geographic limitations: While terrestrial broadcasting is limited in geographic scope (which satellite and cable-casting are less susceptible to), webcasting knows no geographic limitations. As long as an Internet connection is present, the content can be viewed anywhere. Additionally, granting a separate webcasting right will open up a jurisdicational can of worms.
Marginal costs of subscribers: While in terrestrial broadcasting, adding an additional receiver does not cost the broadcaster anything, in satellite television (direct-to-home), cable television and webcasting, each additional receiver means either additional infrastructure (cables and set-top boxes) or additional server load. In the case of webcasting, this marginal cost is small enough to ignore, especially given all the other reasons mentioned previously.

Conclusion

There are still a number of uncertainties surrounding the inclusion of webcasting in the Broadcast Treaty. Michael Nelson of the Internet Society points out that questions such as who the broadcaster is in a download grid, in distributed gaming, for webcasts of surveillance videos, etc., are unanswered. As the example of the download grid (a situation where the 'casting' is multipoint-to-point) shows, many Internet-specific scenarios have not been contemplated by the treaty negotiators. Situations which might soon be reality, such as peer-to-peer relaying of webcasts are also not contemplated, and the treaty would become a policy document preventing such technological innovations. Whether IPTV would be included within webcasting is also unclear. The WIPO chair in his informal paper noted, 'Finally, if after consideration of the options above (A/B) and possible other options, it will not in the present situation be possible to decide on the establishment of a new treaty, the SCCR should end these discussions through an express decision in order to avoid further spending of time, energy and resources to no avail. Such a decision could include a timetable for later revisiting and reconsidering the matter.' (SCCR/15/2 rev) SCCR should end these discussions which have gone on for more than a decade without any progress.

For more details visit https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-and-webcasting

Why piracy is tough to rein in

praskrishna — 2011-04-02T10:16:50Z

“Video market is being treated as a poor cousin of the film industry”

Armed with a shoulder-strung carry bag, Meeran (name changed) walks into an apartment block that he frequents. By the time he comes out, he has sold nearly 10 pirated DVDs. His brother runs a shop which makes a business of Rs.1,000 to Rs.1,500 a day. But regular customers can avail themselves the privilege of his visit to their homes.

Film buffs like Madhankumar Subbiah, who buys DVDs, say the proliferation of multiplexes means a significant number of people cannot afford to go to the cinema regularly. “On the other hand, a whole family can watch the movie spending just Rs.30 on a pirated DVD. I feel that this trend would continue unless ticket prices are reduced,” he adds.

Depending on which side of the copyright debate you are on, Meeran is either a pirate who is a making a dent on the film industry's profits or a trader who is trying to take advantage of a backlash against monopolistic tendencies in the entertainment industry.

According to sources in the Video Piracy Wing of the Central Crime Branch, Puducherry is the headquarters of the illegal piracy business. Multiple copies are made using the master prints from the overseas rights agreement and distributed to various parts of Tamil Nadu.

CCB's Video Piracy Wing, in the last one year, has booked 234 cases and arrested 279 persons, of which 23 have been booked under the Goondas Act.

To understand piracy, it has to be placed in context. G. Dhananjayan, Chief Operating Officer, Moser Baer Entertainment, says the opportunity is not there for the consumer to buy the original. “Tamil cinema is not encouraging other modes of revenue generation. Unlike anywhere else in the country, producers get into agreements with satellite networks to release it on television before a DVD release.”

The DVD release window is usually six months after the release in theatres. According to him, the video market is being treated as a poor cousin of the industry. Kerala, for example, he says has a thriving video market because the release window is 90 to 100 days after the release in theatres.

Though movies are meant to be viewed in theatres, digital technologies have enabled a segment of movie watchers who prefer to enjoy the experience through on-demand or even streaming content.

Nishant Shah, Director, Centre for Internet and Society, says that attempts at controlling piracy are futile. The digital technologies that we are working with are intuitively designed for copying, dissemination and sharing.

According to him, copyright is not a pre-given frame of reference. It arose, historically and culturally, with the industrialisation of information and came into being so strongly because of the possibilities and limitations of analogue technologies.

He says media conglomerates that “try to imagine the consumer as monolithic and unchanging, and accuse them of piracy and theft, will only alienate the audience.” It is a move that fails to recognise the changing dynamics of cultural economies, he adds.

Read the original in the Hindu

For more details visit https://cis-india.org/news/piracy-tough-rein

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

When Copyright Goes Bad

praskrishna — 2011-08-04T04:37:21Z

A part of the Access to Knowledge Project, this short film by Consumers International is available on DVD and online at A2Knetwork.org/film.

For centuries, copyright law has existed to protect creative production whilst promoting public access. But the digital age is challenging this balance and fundamentally changing how we produce, access and distribute content. Suddenly, copyright rules no longer do what they are supposed to do. They have gone bad.

This is a film about how copyright has become one of the most important consumer issues of the digital age; why corporate lobbying risks criminalising the actions of hundreds of thousands of people; and what the future holds for the fight for fairer copyright laws.

When Copyright Goes Bad is an introduction to the renegotiation of copyright and is for anyone interested in how copyright is affecting consumers. It features some of the key players in the copyright debate, including: Fred Von Lohmann - Electronic Frontier Foundation; Michael Geist - University of Ottawa Law School; Jim Killock - Open Rights Group; and Hank Shocklee - Co-founder of Public Enemy.

Quotes from When Copyright Goes Bad

“People have realised that copyright affects them every day and the direction that we’ve seen over the last few years really troubles them. That’s why so many people are speaking out.” Michael Geist

“In the U.S, over 35,000 Americans were targeted for lawsuits for downloading music. In ten years time, everyone will look back at that as incredibly unjust and ridiculous. No-one thinks that suing music fans one at a time is the business model of the future.” Fred Von Lohmann

“The industry is trying to demonise consumer behaviour. They’re trying to create the idea that it’s a moral debate: is downloading something wrong or right? Is it theft or not? These are the wrong questions and they will only ever produce the wrong answers.” Jim Killock

Making copyright, right

When Copyright Goes Bad is being released under a Creative Commons (CC) licence, which means it’s free to copy and adapt, as long as content is attributed and the same CC licence is used.
We will also be making available extended interviews with all the contributors, as well as with other experts not featured in the film, under the same CC licence at A2Knetwork.org/film. By providing access in this way we are allowing others to go on and create further work around the issue.

View it on youtube

For more details visit https://cis-india.org/a2k/blogs/when-copyright-goes-bad

WEBINAR: Closed for Business

praskrishna — 2011-04-02T10:18:07Z

A Global Panel Discusses International Copyright Laws and Their Impact on the Open Internet

The digital revolution has forged new ways to create knowledge, educate people and disseminate information. It has also restructured the way the world perceives and conducts economic practices, runs governments and engages politically. Recognizing this new dynamic requires global discussion and a common desire & commitment to build a people-centred and development-oriented Information Society. Coming off the heels of the latest Anti-Counterfeit Trade Agreement (ACTA) discussions in Washington, D.C. and on the eve of the upcoming Internet Governance Forum (IGF) in Vilinius, we invite you to join in a discussion about the future of Internet.

This online-only event features an array of panelists from regions around the world. We invite you to watch the New America LiveStream channel and to participate in an online chat room during the event. If you plan to participate, please register using the form at right.

In addition, if you have specific questions you'd like the panel to address, we encourage you to post them prior to the event here.

Participants

Featured Speakers

Joe McNamee
Advocacy Coordinator, European Digital Rights

Sherwin Siy
Deputy Legal Director, Kahle/Austin Promise Fellow, Public Knowledge

Renata Avila
Creative Commons Guatemala and Global Voices Guatemala

Sunil Abraham

Centre for Internet and Society, Bangalore, India

Clare Curren

New Zealand Labour Party Spokesperson for Communications and IT

Moderator

Rebecca MacKinnon
Schwartz Fellow, New America Foundation

Event Time and Location
Thursday, September 9, 2010 - 10.00 a.m. to 11.00 a.m.

For details of the event on the New America Foundation website, click here.

For more details visit https://cis-india.org/news/webinar-closed-for-business

We’ve All Got Some Baggage

lawrence — 2014-05-29T07:22:29Z

America’s newest trade agreement is not going to kill only iPods. The article appeared in the Tehelka Magazine Vol 7, Issue 45, Dated November 13, 2010

EARLIER LAST week, a group of renowned academics in the United States wrote a letter to President Obama criticising his administration for the secrecy with which a new trade agreement, the Anti-Counterfeiting Trade Agreement (ACTA), was being negotiated. They argued that the agreement that has immense public interest implications, including freedom of speech and expression, privacy, access to medicines and access to technology, has been conducted only with the interests of large corporations in mind. The first official release of the draft text of this treaty took place only in April 2010, and since then there has not been a single public meeting to invite comments on the text. So what is the deal on ACTA, also known in some circles as the ‘iPod killer’ agreement, and why should we in India be concerned about it? To get a sense of the importance of ACTA, it would be useful to understand briefly the history of negotiations on multilateral agreements on intellectual property.

The establishment of the World Trade Organisation (WTO) and the successful conclusion of the negotiations of the TRIPS agreement set a minimum standard for intellectual property laws across the world. In the absence of an international standard, countries have far more flexibility in creating national laws that may be more suited to the development or technological needs of their society, and this is especially for developing countries hoping to create indigenous technological capabilities.

The best example of this perhaps is the rise of the generic pharmaceutical industry in India. Till the Patent Amendment in 2005, India did not recognise the grant of a product patent for drugs, and only allowed a process patent. This enabled pharmaceutical companies in India to import expensive drugs, reverse engineer them and create cheaper alternatives. And it is through this that India became a country that not only produced affordable medicines, but also exported them to many other countries, particularly in Africa.

After India became a member of the WTO and a signatory to the TRIPS agreement, it was obliged to change its patent laws to recognise product patents on drugs. It is clear then that the establishment of a multilateral venue for the creation of common norms can often act against the interests of developing countries that have much less of a bargaining power. This was particularly true in the early days of the WTO.

However, as countries like India, China and Brazil grew in strength and others also started getting a better sense of how developing countries could play the multilateral game, the very mode that was supposed to guarantee the protection of the interests of the global north became the basis through which other countries started articulating their own concerns. In 2004 for instance, the World Intellectual Property Organisation (WIPO) adopted a proposal for the establishment of a Development Agenda. This declaration proposed by Brazil and Argentina and supported by many countries of the southern hemisphere sought to bring development concerns into the agenda of the WIPO, thereby limiting the absolute rights of owners of intellectual property and argued for a more equitable global IP regime.

Two weeks after WIPO’s September 2007 adoption of the Development Agenda, the US, European and Japanese officials announced that they would seek to negotiate a new agreement in order to “set a new, higher benchmark for enforcement that countries can join on a voluntary basis”. Thus began the negotiations around the Anti-Counterfeiting and Trade Agreement.

ACTA is a new and separate international agreement dedicated to the enforcement of intellectual property. While some alleged that it was an effort to address existing limitations in the TRIPS agreement, it actually creates a wide range of policing powers. The two biggest concerns about ACTA include the creation of a new global IP enforcement regime by granting powers to customs officials to act as watchdogs for IP infringement. This essentially means that customs officials have the right to inspect any electronic device, including computers, hard drives and music devices, for copyright infringing materials. A scary proposition for anyone who travels. While apparently there are discussions over whether personal use items will be exempt, the fact that the agreement is being negotiated in such secrecy means that we don’t really know what the implications actually are. The second area of concern is the fact that ACTA dramatically intervenes in the creation of Internet policy — notably in regard to the liability of ISPS, search engines and other third parties to charges of ‘contributory’ infringement.

A pirated DVD is very different from a spurious drug, which is very different from a fake Gucci bag, and yet ACTA treats them all alike

THE PRIMARY supporters of ACTA include the US, the European Union, Japan, Germany, Switzerland, Australia, South Korea, Canada, New Zealand, Jordan, Morocco, Singapore and the UAE. Notably absent are many of the industrialised middleincome countries that have been the principal targets of the US and European enforcement concern in the past decade: Brazil, India, Russia, South Africa and China.

ACTA introduces a confusing language that deliberately attempts to bring things together that are not related. A pirated DVD is very different from a spurious drug, which is very different from a fake Gucci bag, and yet ACTA brings them all under the ambit of counterfeit goods. The negotiations of ACTA highlight the fact that the US and some countries in Europe have realised that multilateral venues like the WTO and WIPO are no longer the happy hunting grounds of hegemonic aspirations, and that it makes more sense now to have an agreement that is initiated by powerful countries who then use a bilateral mode of coercion to have countries sign on and then make it a multilateral agreement.

The classic mode of coercion, followed for instance by the US, has been the annual United States Trade Representative (USTR) reports that rank countries on the basis of their IP enforcement. Based on their assessment, they place countries on different watch lists, and these are backed by trade sanctions against a country. India and China have consistently made it to the priority watch list for the past 10 years, and using a carrotand- stick approach, the USTR makes recommendations for changes in national laws. It seems the failure to create norms at multilateral forums necessitated the creation of forums like ACTA, which when combined with the USTR, are used to exert pressure that can convert countries resistant to a dominant IP system into accepting higher norms on a voluntary basis.

Read the original here.

For more details visit https://cis-india.org/a2k/blogs/some-baggage

Twists and turns of the SOPA opera

praskrishna — 2012-01-16T09:48:02Z

Proposed DNS filtering threatens the core protocol on which the Internet's universality depends, writes Deepa Kurup in this article published in the Hindu on 15 January 2012. Sunil Abraham is quoted in this.

As the debate over piracy and copyright infringement on the web hots up in the United States, with the Government seeking to clamp down on intellectual property rights violations online, Internet majors Reddit, Wikipedia and others are planning a complete “Internet blackout” of their services for 12 hours on January 18.

This is in protest against the Stop Online Piracy Act (SOPA), introduced in the House of Representatives last year, and a related legislation in the U.S. Senate, the Protect IP Act.

The way the debate is playing out pits the large media corporations — movie houses, record companies and other IP holders — against ‘Internet users', backed by powerful Internet intermediaries such as Google and Yahoo!, who also stand to lose in a clampdown on websites and services that host content that violates U.S. copyright laws.

Global Relevance

Significantly, the proposed law, backed by big business interests, equips the U.S. Government to act against any website hosting content that it believes infringes copyright, even if hosted overseas. This makes SOPA relevant, globally.

The proposed action could involve domain name system (DNS) filtering or blocking, directing advertisement providers and web payment services to stop doing business with the host and preventing search engines from linking to the site. Penalties for simply streaming copyrighted content, such as movies, personal recordings of television shows or even a clipping of your favourite pop song, could be up to five years.

On the technology side, experts have argued that the proposal to allow DNS filtering (or blocking) can potentially weaken and destabilise the Internet. DNS servers convert every request made in a human-friendly languageto an IP address that computers and networks understand. Now what SOPA proposes is that at this DNS server level, when a request is made for “rogue sites”, it is redirected.

Technically, experts believe that this will have huge implications of the stability of the internet. A whitepaper titled ‘Technical concerns raised by DNS filtering requirements', authored by technology experts, claims that while this will promote more techniques to circumvent the DNS, it threatens “the ability of DNS to provide universal naming, a primary source of the Internet's values as a single, unified, global communications network.”

The DNS is a protocol that allows for universality, which lies at the core of the internet, enabling it to grow and become the important, borderless medium it is today. Further, such blocking would make it tough to distinguish between a resolution failure and a request from a hacked server, creating security concerns. It would also be counterproductive to existing Internet security protocols.

A Firewall

While opponents of the Bill have attacked it as an attempt to create a “firewall” — akin to or even worse than the infamous one that China has for its citizens — they point out that it is at stark odds with the oft-repeated stance of the U.S. on “Internet openness”.

Companies in the business of providing web services are, understandably, against the law as it allows the Government to block access to any intermediaries that facilitate or host any material that infringe on copyrights. This affects every service that hosts user-generated content.

In an advertisement published in The New York Times, nine internet majors including eBay, Google, Yahoo! And LinkedIn, urged the Government to find “targeted ways” to combat “foreign rogue websites” while preserving “the innovation and dynamism” that make the internet a driver of “growth and job creation”. Ironically, the Government too seeks to address protection of jobs and economic interests through this legislation.

Politics of the Internet

In terms of infrastructure, the U.S. controls critical web resources. Contrasting this to the Chinese firewall that blocks content for users within its jurisdiction, the U.S. decision to redirect a link can act as a “global block”, explains Sunil Abraham, director of the Centre for Internet and Society. Physically, seven of 13 root servers (or clusters) that run the DNS system, are located in the U.S., he points out. So, for an Indian citizen who chooses to record the latest episode of Dexter and stream it online, it means that both his site and the intermediary could be blacked out, in a post-SOPA world. Currently, the IP holder would have to take the trouble of reporting or challenging this in an Indian court, Mr. Abraham explains.

In recent years, countries led by Brazil, India and China have been lobbying for a greater role for multilateral bodies in controlling the Internet. In 2010, the U.S. Government “liberated” the ICANN (Internet Corporation for Assigned Names and Numbers) from its direct control. But, bringing a law that allows it to come down heavily on “rogues” unilaterally, is being viewed as a step backwards.

For now, all eyes in the tech community are on the legislation, and the many debates surrounding it, which promise to be among the most controversial and interesting ones in technology in recent times.

Read the original published in the Hindu

For more details visit https://cis-india.org/news/twists-and-turns-of-the-sopa-opera

Transcripts of Discussions at WIPO SCCR 24

pranesh — 2012-07-31T12:35:43Z

We are providing archival copies of the transcripts of the 24th session of the WIPO Standing Committee on Copyright and Related Rights, which is being held in Geneva from July 16 to 25, 2012.

This is an unedited rough transcript of the discussions at SCCR 24, which is live-streamed and made available by WIPO at http://www.streamtext.net/player?event=WIPO. We are hosting the live-streamed text for archival purposes:

WIPO SCCR 24 Pre-lunch Text (July 19, 2012)
WIPO SCCR 24 Post-lunch Text (July 19, 2012)
WIPO SCCR 24 Pre-lunch Text (July 20, 2012)
WIPO SCCR 24 Post-lunch Text (July 20, 2012)
WIPO SCCR 24 Pre-lunch Text (July 23, 2012)
(There was no post-lunch plenary session on July 23, 2012)
WIPO SCCR 24 Pre-lunch Text (July 24, 2012)
WIPO SCCR 24 Post-lunch Text (July 24, 2012)
WIPO SCCR 24 Pre-lunch Text (July 25, 2012)
WIPO SCCR 24 Post-lunch Text (July 25, 2012)

For more details visit https://cis-india.org/a2k/wipo-sccr24-discussions-transcripts

Transcripts of Discussions at WIPO SCCR 27

nehaa — 2014-05-25T04:50:59Z

We are providing archival copies of the transcripts of the 27th session of the WIPO Standing Committee on Copyright and Related Rights, which is being held in Geneva from April 28, 2014 to May 2, 2014.

Note: This is an unedited transcript of the discussions at SCCR 27. We are hosting the text for archival purposes:

Day 1: April 28, 2014:

Day 2: April 29, 2014:

Day 3: April 30, 2014

Day 4: May 1, 2014

Day 5: May 2, 2014

Click for WIPO Signing Ceremony for Marrakesh Treaty

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-27-discussions-transcripts

The US 301 Report – A Myopic View of IP Rights

nehaa — 2015-06-24T15:35:29Z

Varun Baliga and Nehaa Chaudhari discuss the 2015 US 301 Report, focussing on its narrow and convenient understanding of IP rights. A farrago of contradictions, it supports a rightsholder-centric view but not when the right, Geographical Indicator, is not to their liking. Similarly, the emphasis on the rights themselves gives short shrift to critical exceptions and limitations that also enhance and incentivize innovation, the ostensible purpose of IP.

The US Trade Representative ["USTR"] is the office in charge of the United States Special 301 Report ["301 Report"] - an annual report on the state of intellectual property rights in countries around the world. The Executive Summary of the 2015 Report states that it is conducted "pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (19 U.S.C. § 2242)". [1] The relevant excerpt of the provision states:

" The Trade Representative shall, by not later than the date by which countries are identified under subsection (a) of this section, transmit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, a report on actions taken under this section during the 12 months preceding such report, and the reasons for such actions, including a description of progress made in achieving improved intellectual property protection and market access for persons relying on intellectual property rights ."

The 2015 301 Report, much like its predecessors, prioritizes the existence of institutional mechanisms for the protection of intellectual property rights over the purported end goals of those rights, as argued by Shamnad Basheer.[2] The purported link between intellectual property and innovation, a key element of the CIS comment on the National IPR Policy , is not studied by the Report but simply assumed as a truism. In the usual criticism of India's laws, the Report notes that "IPR protection and enforcement challenges continue, and there are serious questions regarding the future of the innovative climate in India", operating on the assumption that IPR is the sole driving force of innovation. Instead, the Report is guided by the 'business climate' in a country as facilitated by its IP laws. To borrow from the EFF's incisive critique of this annual exercise, the 301 Report pressurizes India to criminalize the act of camcording in a cinema hall despite domestic copyright law that prohibits it subject to statutory exceptions.[3] Further, the Report finds India's compliance with the Berne Convention to be insufficient since 'business climate' favours as comprehensive an intellectual property regime as possible directed at the expansion of rights and the narrowing of exceptions critical to education and openness of knowledge.

International law on intellectual property is interpreted instrumentally by the drafters of the report. What this means is that IP is being viewed solely through the prism of national interest. A particularly egregious implication is being witnessed in the shift of preferred fora to discuss IP from bodies like the WIPO to trade-oriented platforms, a theme that is discussed later on in this piece. Further, Italy's notice and takedown regime is praised in the 2015 Report notwithstanding its procedure of obtaining an order of removal not from the courts but the Communications Regulatory Authority, against the Manila Principles of Intermediary Liability, an important albeit non-binding piece of state practice.[4]

Furthermore, the emphasis on the interests of rightsholders themselves coupled with enforcement seldom happens in a comparative context, in the Report. This means that the Report privileges the interests of rightsholders to the exclusion of any interest that the exceptions to copyright, for fair use and education for instance, may hold. The 2015 Report, for instance, notes positive developments in IP law as exclusively including the strengthening of the regulatory framework weighted in favour of rights. It fails to note the ratification of the Accessible Books Consortium or the Report of the UN Special Rapporteur Farida Shaheed on copyright policy,[5] implicitly signalling that the US does not consider these developments favourable. This is problematic at two level.

First, competing interests of free speech, open access to knowledge, education, public health are either downplayed or outright ignored. For example, the Report entirely ignores the work of WIPO on exceptions and limitations, and the Marrakesh Treat among the multilateral and plurilateral initiatives of note. Switzerland, for instance, is censured for the 2010 Swiss Federal Court decision that erred on the side of privacy by prohibiting Logistep from tracking IP addresses of entities accused of file-sharing.[6] Even in the emphasis on rightsholders, the 301 Report reeks of hypocrisy and doublespeak. Gabriel J. Michael notes that the 301 Report criticized the European Union for having too much protection of IP through geographical indicators (GI). So, IP protection appears to be an unreserved good as long as it's the right kind of IP as determined by the United States.

" For example, by any reasonably objective standard, the European Union offers very high levels of IP protection. Yet as recently as 2006, Special 301 listed the European Union on its watch list, citing "concerns" about the EU's geographical indication (GI) regime. Given that GIs are a form of intellectual property, USTR essentially placed the EU on its watch list for offering too much IP-or, if you prefer, the wrong kind of IP. Interestingly, this is a tacit admission by the U.S. that at least some kinds of IP can act as trade barriers ."[7]

Second, the 301 Report operates on the assumption that intellectual property is a right in rem. It does not even attempt to engage with the notion of IP as a public right. This is a direct implication of the methodology of the Report that privileges the simple existence of IP frameworks and enforcement mechanisms over a more substantive examination of the causal nexus between IP and its purported raison d'etre. Therefore, the interpretive approach of the 301 Report towards intellectual property law construes it not as a means to ends but as an end in itself.

What Does This Mean?

Finally, there are two implications of this approach to IP rights. The first is on the Report's words on India this year. Credit is given to India for establishing the High Level Working Group on Intellectual Property ["IPR Working Group"]. The purpose of the Working Group is said to be to "enable India to achieve its important domestic policy goals of increasing investment and stimulating innovation through, not at the expense of, IPR protection and enforcement". The façade of public interest behind which the 301 Report attempted to operate is finally off, one might say. IP exists, it seems, to facilitate not broader goals of public interest but investment and innovation within the myopic interests of 'rightsholders'. Paradoxically, however, the Report does call for more consultation on the First Draft of India's National IPR Policy - a noteworthy development, although inconsistent with the tenor of the rest of the Report. Second, the 301 Report as a reflection of American foreign policy goals is now being understood through the lens of ongoing trade negotiations. This steady shift in the preferable forum for IP negotiations from inclusive and democratic platforms, such as WIPO, towards restrictive and secretive ones, such as the WTO, is driven by regressive notions of IP as reflected in the 301 Report. Signalling a move towards a state-centric approach heralded by the United States, critical non-state actors from civil society find it increasingly difficult to exercise agency in these negotiations. While WIPO provides space for non-state actors such as non-governmental organizations to represent their positions and aid states with research, trade negotiations shunt civil society. The cloak and daggers approach of the United States Government towards the Trans-Pacific Partnership Treaty,[8] brought to some light with recent votes in the US Congress, negotiations contrasted with the democratic and open nature of the negotiations surrounding the Marrakech treaty underscores the important difference in approach.[9]

As a result, the civil society finds itself unable to counterbalance the power hierarchies entrenched in international relations as it has done, for example, with the attempted imposition of TRIPS-plus standards through bilateral and multilateral agreements. A state-centric approach makes it easier for larger economies to coerce smaller and dependent countries to draft laws with little regard for limitations and flexibilities that are key for innovation and standard of life in large swathes of Global South - peoples who cannot afford the costs of IP protected-innovation. Further, issues of IP and trade are not pertinent solely to states but are increasingly driven by and relevant to a raft of non-state actors. Any policy that does not actively seek to include these stakeholders in the decision making process is destined to fail. Therefore, on both principled and consequentialist grounds, the Special 301 Report deserves very little attention from the international community.

[1] Full text of the provision available at https://www.law.cornell.edu/uscode/text/19/2242.

[2] http://indianexpress.com/article/opinion/columns/these-rancid-rankings/99/

[3] https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found

[4] https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found ; https://www.manilaprinciples.org/

[5] http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/28/57 .

[6] http://arstechnica.com/tech-policy/2010/09/switzerland-gathering-ip-addresses-from-bittorrent-sites-illegal/

[7] https://topromotetheprogress.wordpress.com/2014/06/05/special-301-is-it-effective/ ;

https://www.techdirt.com/articles/20140612/17435227561/ustrs-special-301-list-naughty-countries-without-strong-enough-patent-copyright-laws-is-complete-joke.shtml

[8] http://www.politico.com/magazine/story/2015/05/tpp-elizabeth-warren-labor-118068.html#.VWvcMk-qqko ; http://www.ip-watch.org/2015/04/23/divide-and-conquer-the-new-us-strategy-to-disentangle-the-tpp-negotiations/

[9] http://www.ip-watch.org/2013/12/19/wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries/

For more details visit https://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights

The madness of software patents

praskrishna — 2011-04-02T10:17:11Z

India’s patent law excludes software per se, yet over a thousand patents have been granted, writes Lata Jishnu in an article published in Down to Earth.

Per se is a straightforward term meaning by or in itself. Those who use it are pretty clear what the Latin-origin term signifies. And that’s what our lawmakers must have also believed when they used it in the 2005 amendment to India’s Patent Act.

But unaccountably this particular term has turned out to be prone to misuse more than anything else in the country’s patent law, leading to a host of software patents that should never have been granted in the first place. So me have been challenged and many more are set to be opposed in the courts but what is clear is that patent examiners in India have learned nothing from the anarchy in the US where the liberal grant of patents to software programmes and business methods has resulted in the biggest logjam in the courts. Patents cripple innovation and creativity by blocking access to data format specifications—and they hurt everyone.

A scan of the current patents disputes reveals how expensive and destructive these suits are.

InNova is suing 36 of the world’s top flight computer, telecom and banking companies for violating its patent, which “covers technology used to differentiate between spam email messages and those that users actually want to receive”. The company claims its spam filter is one of the “building blocks for all email communications” but some experts say that actual spam filtering is far more sophisticated than the methods in the firm’s patent.
Oracle is suing Google because it says Google’s Android operating system infringes seven patents it owns on Java. Analysts allege that Oracle wants to assert its dominant position in the Java ecosystem.
Microsoft and Salesforce, a small competitor, were suing each other, with the Redmond behemoth claiming Salesforce used its software-as-a-service products, while Salesforce accuses Microsoft of violating its patents.
VirnetX Holding Corp, an Internet security software firm, which successfully sued Microsoft for US $200 million, is now charging several other corporations with violating patents for technology used in mobile phones, remote communication and virtual private networking.

This list is merely illustrative of the madness out there. It is precisely to avoid such anarchy that India’s law was so formulated as to exclude software and business method patents. Here is what Section 3 (k) of the Patent Act says cannot be considered inventions: a mathematical or business method or computer programme per se or algorithms. In other words, computer programmes are a kind of algorithm just as algorithms are a kind of mathematical method. One reason for this exclusion is that computer programmes are protected by copyright in India and it was not thought necessary to provide additional protection through patents.

But lawyers being what they are, have set their sharp legal brains to assay what “computer programme per se” could be made to mean—encouraged, of course, by firms keen on pat - ent protection for software applications and business methods. The result is pretty dismaying: hundreds of patents granted in recent years, setting at naught the intention of the law. The Bengaluru-based Centre for Internet and Society (CIS) offers some estimates of the number of software patents granted in India. It says around 200 software patents have been granted till date (applications have been filed since 1999), another 1,000 patents were given for inventions which use the term ‘computer’ in the abstract describing the invention.

Krithika Narayana of CIS explains that actual numbers are hard to come by because there is no category for software patents. Thus, applications may be described as either ‘computer-based’ or ‘computerised’ or ‘computer implemented’ systems. However, most software patents are concentrated in the group of patents with G06F as their classification. The figures have been culled from this category. There is more bad news. Hund reds of software patent applications are in various stages of examination, opposition and grant which have not been included in the CIS tally. How has all this come about?

Most applicants manipulate the term ‘computer programmes per se’ to obtain patents for computer programmes run in combination with hardware (even though the hardware only executes the programme and has no ingenuity of its own) or software embedded in a machine (embedded systems). Clearly, the patent office has been wrong in granting such patents.

To end this, CIS, working in tandem with Knowledge Com - mons and Software Freedom Law Centre, is set to challenge a software patent. Hopefully, it might stop the tide. Otherwise, the consequences are scary. As Richard Stallman, the guru of free software, said, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

Read the original in Down to Earth

For more details visit https://cis-india.org/news/madness-software-patents

The Game of IPR: Insights from the 6th Global Intellectual Property Convention in Hyderabad

samantha — 2014-01-31T09:56:10Z

IP practitioners and IP creators were among the 1700 participants to gather at the Hyderabad International Convention Centre earlier this month. Here, CIS had the opportunity of listening in on perspectives around the “Optimization of economic value of innovation & IPR in the global market” while attending numerous talks and sessions that were held over the course of the convention’s three days.

One of the event's speakers, Mr. Narendra Sabharwal, IPR-Chair of FICCI, speaks of the immense value of IPR, while serving as protection as well as collateral for investors. (Photo credit: GIPC 2014)

This year’s Global Intellectual Property Convention (GIPC) was held in Hyderabad January 16-18, 2014 by ITAG Business Solutions Ltd. in association with the Institute of International Trade (iitrade). As the 6th of its kind, the event was held in hopeful contribution “towards society with the active support and cooperation of the IP fraternity,” says ITAG Founder and Director, Dr. D. R. Agarwal, while offering a “good opportunity for learning and business networking through one to one interaction in a pre-arranged manner under a conducive environment.”

The theme at bay had been “Optimizing the economic value of innovation & IPR in global market.” In respect of this central focus, common themes across panel discussions and workshops included IP management, monetisation, application drafting, and litigation, with particular emphasis on India’s ‘Pharma’ industry. Over 100 speakers and panelists shared their personal knowledge from experience in the industry, and largely consisted of representatives from law firms, IP consultancies, pharmaceutical companies, and business organisations; all of which from India, Europe and the USA. As an attendee representing the Centre for Internet & Society (CIS), a research institute that works to address issues related to intellectual property (IP) reform, I had the privilege of listening to such perspectives on intellectual property from an alternative outlook.

On the other hand, if exploiting too much by “abusing one’s monopoly, you are [setting] certain conditions, which are neither germane nor connected to the patent, and more than what is statutory permissible.” Kumaran stresses the necessity for the intellectual property right (IPR) holder to comply to the rights given by statutory law.

The name of the game is the quality of drafting. It is the first and last chance." Vaidya D.P.,

Lakshmi Kumaran & Sridharan

Mr. Narendra Sabharwal, Panellist and IPR-Chair for the Federation of Indian Chambers of Commerce (FICCI), sought to demonstrate the immense value of innovation and IPR in technology, arts and culture globally, in explaining that a large portion of the EU’s GDP (39%), and employment (26%) are derived from IP-intensive industries (See study by European Patent Office here). Also argued was that enterprises and institutions can increase value through licensing of products and services, while also serving as protection, and which can then become “excellent collateral for investors,” he says. Among other points made, Sabharwal mentioned the need for more incubators in India. Currently, India acquires 200 new incubators each year compared to China’s 8000 new incubators annually. Opening more incubators will encourage innovation, he argues, leading to more marketable products and solutions.

Mr. William H. Manning, Partner of Robins, Kaplan, Miller & Ciresi L.L.P (USA), took on the role of the story teller while sharing particularly interesting cases of previous clients. Manning had explained the necessity to ask one question over and over throughout the entire IPR application process; that question being: “What difference does the invention make?”

In doing so, Manning was even able to take what would have been an ‘incremental’ patent—which is just distinct enough from prior art to get by—and turn it into a ‘foundational’ patent—generally adopted by the industry for 10-20 years before moving to a different technology. The better of these two types, however, is the ‘pioneering’ patent, an inventive leap in itself. This client success story definitely affirmed Speaker and Director of Lakshmi Kumaran & Sridharan, Vaidya D. P., when he said that “the name of the game is the quality of drafting. It is the first and last chance.” Manning had also claimed that 99.9% of patent in India are said to be incremental patents, with none being pioneering—at least not from the patent applications he’s seen in his 34 years of experience, anyway.

Also a rule of this game is the “Take now—pay later” rule, according to Manning, in which enterprises may “ignore the problem for now and move ahead with the product. If somebody sues you for patent litigation…. Take now—pay later.” Here, he makes reference to the judgements enterprises may make when misusing or infringing upon an IPR, while assessing the worth of doing so with the risks that may lie ahead. Often, an enterprise may find that it is more worthwhile to misuse or infringe and reap the benefits in the “now” while knowing there may be a chance they will have to “pay later.”

Throughout the convention, what I expected to be the elephant in the auditorium was surprisingly addressed quite often. Best said by Panellist, Mr. Mohan Dewan, “IPR only becomes an asset when it is misused or infringed upon.” Principal to R K Dewan & Co., Dewan compares IP rights with car insurance, which can only be cashed in when the car is stolen.

Applying for an IPR is a game in itself, that requires much knowledge of how it is played. Grab those power-ups or get eaten.	He then posed the question “how can we increase the economic value of an asset?”—presumingly so that one can capitalize when opportunity comes knocking—and responded to it in recommending the following measures: 1) ensuring one’s IPR is as strong as possible by drafting it according to national standards, 2) optimal protection—it is easier to register more than one at once! 3) diligence in auditing and licensing, and 4) staying alert and questioning what people are doing around you. These are only a few excerpts of the event’s many talks and panel discussions, yet these insights alone help to reveal the nature of the system where intellectual property rights reign. This is surely a system to be familiar with if it is within one’s interest to receive IPR for protection, yet I find it difficult to stop at the word “protection.” When you must learn how to play the game to ensure that you stay in it, I would say that IPR can extend well beyond protection, to be better off referred to as strategy. A strategy that enables you to reach a higher level and protects you from your opponents’ wrath. The higher the level, the more power-ups in reach and the higher you go. All the while undermining their chances of climbing up to where you are, and knocking them to even lower levels when possible. Lucky for you the majority of players are still stuck at level 1, but the nasty ones may be right behind you.

Applying for an IPR is a game in itself, that requires much knowledge of how it is played. Grab those power-ups or get eaten.

He then posed the question “how can we increase the economic value of an asset?”—presumingly so that one can capitalize when opportunity comes knocking—and responded to it in recommending the following measures: 1) ensuring one’s IPR is as strong as possible by drafting it according to national standards, 2) optimal protection—it is easier to register more than one at once! 3) diligence in auditing and licensing, and 4) staying alert and questioning what people are doing around you.

These are only a few excerpts of the event’s many talks and panel discussions, yet these insights alone help to reveal the nature of the system where intellectual property rights reign. This is surely a system to be familiar with if it is within one’s interest to receive IPR for protection, yet I find it difficult to stop at the word “protection.” When you must learn how to play the game to ensure that you stay in it, I would say that IPR can extend well beyond protection, to be better off referred to as strategy.

A strategy that enables you to reach a higher level and protects you from your opponents’ wrath. The higher the level, the more power-ups in reach and the higher you go. All the while undermining their chances of climbing up to where you are, and knocking them to even lower levels when possible. Lucky for you the majority of players are still stuck at level 1, but the nasty ones may be right behind you.

For more details visit https://cis-india.org/a2k/blogs/the-game-of-ipr-insights-from-the-6th-global-intellectual-property-convention-in-hyderabad

The Future of the Moving Image

nishant — 2008-11-11T09:06:57Z

All dissimilar technologies are the same in their own way, but all similar technologies are uniquely different. This was probably at the core of the zeitgeist at the international seminar on “The Future of Celluloid” hosted by the Media Lab at the Jadavpur University, Kolkata, at which Nishant Shah, Director - Research CIS, presented a research paper. Practitioners, film makers, artists, theoreticians and academics, blurring the boundaries of both their roles and their disciplines and areas of interest, came together to move beyond convergence theories – to explore the continuities, conflations, contestations and confusions that Internet Technologies have led to for earlier technologies, but specifically for the technology of the moving image.

How Digital Cinema changes the notion of authorship...

The concerns that emerged at the Jadavpur University Media Lab's international seminar on The Future of Celluloid, were manifold and not confined to cinema or the moving image. These are concerns that are voiced on all realms of cultural production, where the traditional forms feel stranded at digital intersections, threatened by the emergence of new cultural productions which are so much more quintessentially the form and ideal that the traditional forms aspired to.

The blog, as we saw at the “Writing the Future Conference” was seen as a threat and more fundamentally replacing the novel form. Ars electronica or digital music has long since played the swan song of traditional orchestration practices. Similarly, the digital film (often broadcast on video sharing spaces like YouTube and MySpace) or even mainstream feature films that embody digital technologies of hypervisualisation, show necessarily more than celluloid could ever capture. As Ashish Rajadhyaksha pointed out, “The capacity to pay almost infinite attention to the celluloid image was made possible only with the digitisation of the celluloid image”.

Through the different presentations, this strain of thought was apparent – will we lose celluloid altogether? Is the future of cinema going to be in infantile pre-lapsarian representations of smiling/dancing/gurgling babies and furry pets made by indulgent mothers and doting pet owners? When cinema transitions from deep celluloid to shallow pixels, will the loss in depth also result in the death of meaning and processes of reading the image? And finally, the question that seems to surface, sometimes in the guise of academic concern, sometimes in the shape of alarm and anxiety, and sometimes in the form of paranoia and raging uncertainty: “Is this the end of Celluloid? “ to which Matt Hanson, who presented his open source film A Swarm of Angels, nuancedly added: "Only the end of celluloid as we know it!”

In my presentation titled ´Of Pranksters, Jesters and Clowns – YouTube Videos and Conditions of Collaborative Authorship´ I made a call to identify these questions as symptomatic of another more deep seated anxiety which makes for a fundamental revisiting of the relationship between the author, the text and the reader. Looking particularly at YouTube videos and the kind of arguments that have surrounded them – on copyright, defamation, plagiarism, piracy, sampling, remix, authorship, ownership – I proposed that at the centre of all these anxieties is the question of authorship, what constitutes it and the need to expand the scope of authorship by looking at the series of engagements that happen online.

I presented two cases to make my argument. The first was the case of 13-month-old Holden Lenz, dancing to Prince’s Let’s Go Crazy. In February 2007, Stephanie Lenz’s family had a digital equivalent of a Kodak moment. Her 13-month-old son Holden, pushing a walker across her kitchen floor, started moving to the addictive rhythms of Prince’s Let’s Go Crazy song and Stephanie recorded him on her digicam. Wanting more of the family to share the joy, she uploaded the video on to YouTube and it was viewed scores of times. Laughs were shared, gaps were bridged, digital technologies brought families scattered across time-zones and lifestyles together.

However, the lawyers at Universal Music did not seem to share the enthusiasm or the joy. They fired off a notice to YouTube asking them to remove the video because it amounted to a copyright infringement. YouTube, fearing legal ramifications, removed the video. Stephanie Lenz approached the Electronic Frontier Foundation (EFF), which challenged Universal’s claims that held Lenz liable for up to 150,000 USD in fines for sharing the 29 seconds of her son dancing. While it is very easy to draw the battle-lines and look upon the well educated, highly paid lawyers of Universal as ‘idiots’ who spent probably millions of dollars in starting the legal battle, I think there is more at play here than who is right and who is wrong. What is really being debated, is not whether Lenz indulged in wilful copyright infringement or not, but the questions of who is an author, what are the mechanisms of attribution, and how do we understand these in the complex digital worlds that we populate?

Historically, the author was constructed as a communitarian figure whose work depended on and was enhanced by the collaborations and the collective knowledge of the people s/he interacted with. Chaucer, to quote the most canonical example, for instance, was recognised as the author of The Canterbury Tales only after the print industry finds its footing, thus neglecting the fact that the text was heavily distorted, enhanced, mutated, corrected, revised, edited and transformed by the various users of the manuscripts, who were not merely audience or receptors but also collaborative authors of the text. It is only with the establishment of the cultural industries, that such a fluid understanding of authorship gets crystalised into specific forms of engagement, where the author, the reader, the distributor, the consumer, the audience and the end user are all clearly defined and contained within presumed roles.

It is the blurring of these boundaries in the digital world that leads to the kind of debates that we observe around the Stephanie Lenz case. The inability of the newly emerging digital cultural industry to recognise different forms of engagement – remixing, sampling, embedding, referencing, distributing, editing, etc. – as creative and productive forms of authorship is at the basis of the anxieties that run amok in these debates. My presentation made a call for not only a de-criminalisation of pirate positions in the realm of cultural production, but also to recognise and celebrate the various conditions of collaborative authorship – be it by Holden Lenz who probably made the song twice as popular than it was, or by Avril Lavigne fans who went on a spree to make her song Girlfriend, the first video to be viewed one million times on Youtube – not merely as derivative or acts of prank and jests, but as legitimate and distinctive forms of authorship which expand the scope of the cultural object and give it unprecedented layers of meaning and engagement.

For more details visit https://cis-india.org/research/conferences/conference-blogs/future-of-the-moving-image

The First IJLT-CIS Lecture Series on Jurisdictional Issues in Cyberspace

praskrishna — 2011-04-05T04:12:05Z

The IJLT-CIS Lecture Series will be held at the National Law School of India University in Bangalore on 3 April, 2010.

The Indian Journal of Law and Technology (IJLT) is the law and technology journal of the National Law School of India University, Bangalore. The Centre for Internet and Society (CIS) is a leading research organisation devoted to the study of the Internet and its interface with the society. The IJLT-CIS Annual Law Lecture Series is an effort to promote a better understanding about crucial legal issues pertaining to the Internet and other emerging technologies.

The core theme of the lecture is Jurisdictional Issues in Cyberspace. Hon'ble Dr. Justice S. Muralidhar (Judge, Delhi High Court) shall be the Chief Guest and the first speaker. The other speakers are Amit Sachdeva (Advocate, Delhi High Court), Aditya Sondhi (Advocate, Karnataka High Court) and Dr. Lorna E. Gillies (Lecturer in Law, University of Leicester).

The Lecture Series is open to all law students and the general public. There are no charges or fees applicable to participants. However, all participants are requested to register through an e-mail to “editorialboard@ijlt.in”. All student participants shall be provided certificates of participation.

For more details visit https://cis-india.org/events/ijlt-cis-lecture