The Centre for Internet and Society
https://cis-india.org
These are the search results for the query, showing results 1 to 2.
Comments on the Draft Copyright (Amendment) Rules, 2019 concerning Statutory Licensing
https://cis-india.org/a2k/blogs/comments-on-the-draft-copyright-amendment-rules-2019-concerning-statutory-licensing
<b>The Centre for Internet & Society gave its comments on the proposed rules 29,30,31 of the Draft Copyright (Amendment) Rules, 2019. The comments were made in response to Notification G.S.R 393(E) published in the Gazette of India on May 30, 2019. </b>
<p></p>
<h2><strong>Preliminary</strong></h2>
<p>1. This
submission presents comments to the Department for Promotion of Industry and
Internal Trade (“<strong>DPIIT</strong>”), Ministry
of Commerce and Industry pertaining to the notification G.S.R 393(E) containing
the <a class="external-link" href="http://copyright.gov.in/Documents/pdfgazette.pdf">draft Copyright (Amendment) Rules, 2019</a> issued on 30<sup>th</sup> May 2019.</p>
<p>2. We
commend DPIIT on the release of the draft Copyright (Amendment) Rules, 2019 (“<strong>Draft Rules</strong>”) and are thankful for the
opportunity to put forth its views via this public consultation.</p>
<p>3.
This
submission is divided into three main parts. This part, ‘Preliminary’,
introduces the document; the second part provides an overview of the
organization and its research in the field of intellectual property rights; and
the third part contains CIS’ comments on the Draft Rules 29, 30, 31.</p>
<p class="MsoListParagraphCxSpLast">4.<strong> </strong>The
third part contains two sections. In the first section, we discuss the legal
validity of the Draft Rules 29,30,31. In the second part we discuss the general
implications of extending the legal regime of broadcasting rights under the
Indian Copyright Act, 1957 (“<strong>Act</strong>”)
to works on the Internet.</p>
<p class="MsoListParagraphCxSpLast"> </p>
<h2><strong>About The Centre for
Internet and Society</strong></h2>
<p class="MsoListParagraphCxSpFirst">5. The
Centre for Internet and Society (“<strong>CIS</strong>”)
is a non-profit organisation that undertakes interdisciplinary research on
internet and digital technologies from policy and academic perspectives. The
areas of focus in respect of intellectual property rights include research on domestic
copyright and patent laws, international trade agreements and treaties
pertaining to these subjects, promotion of creators’ and users’ rights with a
view to furthering access to knowledge and openness in the public interest. CIS
has also been participating at WIPO-SCCR negotiations in the capacity of an
Observer since 2009.</p>
<p class="MsoListParagraphCxSpLast">6. CIS
values the fundamental principles of justice, equality, freedom and economic
development. This submission is consistent with CIS' commitment to these values
including the safeguarding of general public interest. Accordingly, the
comments in this submission aim to further these principles.</p>
<p class="MsoListParagraphCxSpLast"> </p>
<h2><strong>Comments</strong></h2>
<p class="MsoListParagraphCxSpFirst">7. Draft
Rules 29, 30 and 31 pertain to section 31D of the Indian Copyright Act, 1957.
The proposed change in Rule 29 seeks to expand the modes of broadcast for which
notice for invoking statutory license under section 31D may be issued - which
previously was restricted to only radio and TV modes of broadcasting; and the
change in Rule 31 will permit the Appellate Board to determine royalties for <em>all</em> modes of broadcast.</p>
<p class="MsoListParagraphCxSpMiddle">8. In
view of current state of technological advancement, it is safe to deduce that
the <em>new</em> mode of broadcasting whose
inclusion is being contemplated in relation to s. 31D via the changes is
“internet broadcasting”. The changes will allow entities that operate over the
Internet medium to apply for a statutory license under s. 31D of the Act. In
the following part, we submit our specific comments in respect of Draft Rules
29,30,31.</p>
<h3><strong>a) Legal
validity of the Rules: Vires vis á vis the Parent Act</strong></h3>
<p>As
per s. 78(2)(cD), the power of the Central Government to make rules in respect
of s. 31D expressly exists in respect of “<em>the
manner in which prior notice may be given by a broadcasting organisation under
sub-section (2) of section 3ID.” </em>Apart from this clause, a general rule-making
power is conferred via s. 78(1) only for carrying out the <em>purposes of the Act</em>. We submit that this general power should be
exercised within limits of rule-making in the nature of administrative and
procedural detail, and should be in consonance with purposes of the Act. In
respect of s. 31D especially, the purpose can be inferred from the legislative
history of the provision. This was analysed by the Bombay High Court in <em>Tips Industries v. Wynk Music,<a name="_ftnref1" href="#_ftn1"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><strong>[1]</strong></span></span></a>
</em>where the court noted that the concerns raised before the Rajya Sabha
Parliamentary Standing Committee (on the Copyright Amendment Bill (2010))
related to radio and television industries only, and in the court’s opinion
those two modes specifically were contemplated while introducing s. 31D.<a name="_ftnref2" href="#_ftn2"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[2]</span></span></a> Primarily basis this
rationale, the court concluded that “internet broadcasters” offering on demand
streaming services cannot avail of s. 31D. Further, s.31D(3) expressly permits
the Appellate Board to fix royalty rates only in respect of radio broadcasting
and television broadcasting.</p>
<p>Hence,
we submit that there is no power under s.78 or any other provision in the Act afforded
to the Central Government to expand the scope of s.31D, directly or indirectly.
In <em>State of Karnataka v. Ganesh Kamath</em><a name="_ftnref3" href="#_ftn3"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[3]</span></span></a> the Supreme Court held
that “it is a well settled principle of interpretation of statutes that the
conferment of rule-making power by an Act does not enable the rule-making
authority to make a rule which travels beyond the scope of the enabling Act or
which is inconsistent there with or repugnant thereto”.</p>
<p>Thus,
the extent to which the Draft Rules 29,30,31 alter the intent and scope of s.31D
clearly leaves them ultra vires the parent Act. Rules that are ultra vires the
parent Act for exceeding the limits of subordinate executive power are void.<a name="_ftnref4" href="#_ftn4"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[4]</span></span></a> Hence, the proposed Draft
Rules 29,30,31 are both ultra vires their parent Act and void.</p>
<h3><strong> </strong><strong>b) Implications
of extending legal regime of broadcasting rights to works on the public
Internet</strong></h3>
<p>The
release of the Draft Rules 29,30,31 is another attempt to extend the statutory
licensing to “internet broadcasters”. The first attempt was when the Central
Government released an Office Memorandum<a name="_ftnref5" href="#_ftn5"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[5]</span></span></a> (dated 5<sup>th</sup>
September 2016) to extend statutory licensing under s.31D to “internet
broadcasting” companies. We submit that this was based on an incorrect
statutory construction by the Department of Industrial Policy and Promotion (“<strong>DIPP</strong>”) and was arbitrary in nature. Noted
academics and scholars have highlighted several constitutional infirmities in
respect of this memorandum.<a name="_ftnref6" href="#_ftn6"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[6]</span></span></a> Unfortunately, the current
Draft Rules (29,30,31) raise similar concerns.</p>
<p>Separately,
in the context of introducing a broadcasting right for works shared over the
Internet – we submit that if the line of argument taken by DIPP that s. 2(dd)
read with s. 2(ff) supports the inclusion of “internet broadcasting” is taken
to its logical conclusion, <em>any</em> person/
entity communicating to the general public via the public Internet can claim
protection of their broadcasters’ reproduction right under our Copyright Act. This
“broadcast” will happen via multiple platforms such as YouTube, Facebook Watch,
live-streaming platforms, on-demand platforms, etc., and such entities will be
entitled to enjoyment of this right. This will lead to a dangerous accumulation
of undeserved property rights in Internet giants; unlike traditional
broadcasters these companies never put up initial upfront economic investment
to distribute works to the public. They were launched on the public internet, and
currently thrive primarily off user-generated content. Even in respect of protecting
content that is actually created with their investment, copyright law will
suffice with its remedies for infringement. Hence, there is currently very little economic
and legal basis for extending the legal regime of broadcasting rights for works
on the Internet. Thus, we submit that in the domestic approach to modernising
our copyright legislation, we must refrain from considering distribution of born-digital/
digitised works over the public Internet equivalent to the function of broadcasting
works over cable/ satellite.</p>
<p class="MsoListParagraph">9.
We
are thankful to DPIIT and the Ministry of Commerce and Industry for the
opportunity to make these submissions. It would be our pleasure and privilege
to discuss these submissions and recommendations in detail with members of
DPIIT if the opportunity presents itself.</p>
<p> </p>
<div><br clear="all" />
<hr align="left" size="1" width="33%" />
<div id="ftn1">
<p><a name="_ftn1" href="#_ftnref1"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[1]</span></span></a> See Bom (HC) judgment in Case No.
NMCD/72/2019</p>
</div>
<div id="ftn2">
<p><a name="_ftn2" href="#_ftnref2"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[2]</span></span></a> See 227<sup>th</sup> Report of the Rajya Sabha
Parliamentary Standing Committee on the Copyright Amendment Bill (2010)
available at <a href="http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/227.pdf">http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/227.pdf</a></p>
</div>
<div id="ftn3">
<p><a name="_ftn3" href="#_ftnref3"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[3]</span></span></a> (1983) 2 SCC 40</p>
</div>
<div id="ftn4">
<p><a name="_ftn4" href="#_ftnref4"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[4]</span></span></a> See <em>Supreme Court Welfare
Association</em> (1989) 4 SCC 187 and <em>State of Karnataka</em> (1983) 2 SCC
402.</p>
</div>
<div id="ftn5">
<p><a name="_ftn5" href="#_ftnref5"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[5]</span></span></a> See ‘Office Memorandum’ available at <a href="https://dipp.gov.in/sites/default/files/OM_CopyrightAct_05September2016.pdf">https://dipp.gov.in/sites/default/files/OM_CopyrightAct_05September2016.pdf</a></p>
</div>
<div id="ftn6">
<p><a name="_ftn6" href="#_ftnref6"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[6]</span></span></a> See <em>Letter to Government on Internet Broadcasts</em> (2016) by Shamnad
Basheer available at <a href="https://spicyip.com/2016/09/letter-to-government-on-internet-broadcasts.html">https://spicyip.com/2016/09/letter-to-government-on-internet-broadcasts.html</a> ; and <em>Licensing of Internet Broadcasts under the Copyright Act: Key
Constitutional Issues</em> (2019) available at <a href="https://indconlawphil.wordpress.com/2019/01/25/guest-post-licensing-of-internet-broadcasts-under-the-copyright-act-key-constitutional-issues/">https://indconlawphil.wordpress.com/2019/01/25/guest-post-licensing-of-internet-broadcasts-under-the-copyright-act-key-constitutional-issues/</a></p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/comments-on-the-draft-copyright-amendment-rules-2019-concerning-statutory-licensing'>https://cis-india.org/a2k/blogs/comments-on-the-draft-copyright-amendment-rules-2019-concerning-statutory-licensing</a>
</p>
No publishersinhaLicenseBroadcastingCopyrightAccess to Knowledge2019-07-11T07:04:35ZBlog EntrySeminar on Rethinking Copyright and Licensing for Digital Publishing Today (Delhi, January 23)
https://cis-india.org/a2k/events/seminar-on-rethinking-copyright-and-licensing-for-digital-publishing-today-delhi-jan-23-2017
<b>Against the backdrop of a growing global and domestic digital publishing industry on one hand and the recent judgment by the Delhi High Court that upheld the education exception to reproduction of academic and literary works, Pro Helvetia - Swiss Arts Council, Goethe-Institut Max Mueller Bhavan New Delhi, and the Centre for Internet and Society (CIS) are organising a seminar to discuss and reflect on the relevance and functions of copyright and licensing within the transforming market practices and legal structures of the publishing industry today.</b>
<p> </p>
<img src="http://cis-india.org/a2k/events/seminar-on-rethinking-copyright-and-licensing-for-digital-publishing-today-delhi-january-23/leadImage" alt="Seminar on Rethinking Copyright and Licensing for Digital Publishing Today, Delhi, January 23" width="400" />
<p> </p>
<h4>Poster: <a href="http://cis-india.org/a2k/events/seminar-on-rethinking-copyright-and-licensing-for-digital-publishing-today-delhi-january-23/leadImage">Download</a> (PNG)</h4>
<hr />
<p>The two speakers at the seminar will be <a href="#philipp">Dr. Philipp Theisohn</a>, Professor of Modern German Literary Studies, Zurich University, and <a href="#kerstin">Ms. Kerstin Schuster</a>, Droemer Knaur publishing group. The session will be chaired by <a href="#zakir">Mr. Zakir Thomas</a>, Additional Director General (Risk Assessment), Directorate of Income Tax, Government of India.</p>
<p>Dr. Theisohn will address the question of whether the digital age requires a new approach to copyright thinking, and Ms. Schuster will discuss the dynamics of the international market for licenses in the contemporary publishing world.</p>
<p>Please join us at the CIS Delhi office on Monday, January 23, at 11:00 for the seminar. The seminar will include the presentations by the speakers followed by an open moderated discussion.</p>
<p>Further, it is our great pleasure to inform you that in a recent judgement on the Super Cassettes v. MySpace case, the Delhi High has strengthened the safe harbor immunity enjoyed by internet intermediaries in India. As CIS was one of the intervenors in the case, and has been duly acknowledged in the judgment, we would like to invite you for an informal discussion about the case over lunch. This will take place after the seminar.</p>
<p>A brief analysis of the judgement can be found <a href="http://cis-india.org/a2k/blogs/super-cassettes-v-myspace">here</a>.</p>
<p><strong>Please RSVP by sending an email to Nisha Kumar at <a href="mailto:nisha@cis-india.org">nisha@cis-india.org</a>.</strong></p>
<p><strong>Address:</strong> The Centre for Internet and Society, first floor, B 1/8, Hauz Khas, near G block market, after Crunch, New Delhi, 110016.</p>
<p><strong>Location on Google Map:</strong> <a href="http://j.mp/cis-delhi">http://j.mp/cis-delhi</a>.</p>
<hr />
<h3 id="philipp"><strong>Philipp Theisohn</strong></h3>
<p>Philipp Theisohn, who was born in 1974, studied Modern German Literature, Medieval Studies and Philosophy in Tübingen and Zürich. He gained his doctorate in Jerusalem and Tübingen and, since 2013, has been Professor of Modern German Literary Studies at Zurich University. He has produced numerous publications on German and European literary history from the 13th to the 21st century, in particular on “literary future knowledge“, the perception of literary property, and Jewish Cultural Poetics.</p>
<p>The focal points of his work and research are the literature of Switzerland, literary property/plagiarism as a literary historical phenomenon, science fiction and futurology, realism, Franz Kafka and Early Modern Poetics of Knowledge.</p>
<p>Theisohn is intensely involved in the transmission of literature far beyond the academic environment. He is a member of the jury for the “Swiss Book Prize“ of the Publishers‘ Association, an expert for inter-disciplinary and literary projects for the Swiss Arts Council Pro Helvetia; he curates literary exhibitions, is active in a broad range of journalistic work, among other things for the Neue Zürcher Zeitung, and is in charge of the blog and website of the “Schweizer Buchjahr” which contributes significantly to contemporary literary discourse.</p>
<p>Among his most important book publications are: "Die Zukunft der Dichtung. Geschichte des literarischen Orakels 1450-2050" (“The Future of Poetry. The History of the Literary Oracle 1450-2050”); “Plagiat. Eine unoriginelle Literaturgeschichte”( “Plagiarism. An Unoriginal Literary History”) and “Literarisches Eigentum. Zur Ethik geistiger
Arbeit im digitalen Zeitalter” (“Literary Property. On the Ethics of Intellectual Work in the Digital Age”).</p>
<h3 id="kerstin"><strong>Kerstin Schuster</strong></h3>
<p>Having obtained a university degree in Romance Studies and Political Science, Kerstin Schuster worked in the bookselling trade. Since 1993 she is trading licenses for the international market. She has worked till 2001 for the literary agency Dr. Ray-Güde Martin, from 2001 until 2013 for the publishing house S. Fischer Verlag in Frankfurt, and since 2014 for the Droemer Knaur publishing group.</p>
<p>For many years now, Kerstin Schuster is also facilitating seminars on how to successfully offer and sell licenses in the international market.</p>
<h3 id="zakir"><strong>Zakir Thomas</strong></h3>
<p>Mr. Thomas is an expert in the field of intellectual property. He has served as a former Registrar of Copyright for the Government of India, and as a project director of the Open Source Drug Discovery Initiative under the Council of Scientific & Industrial Research (a premier R&D org). His expertise spans across copyright, open source innovation, neglected diseases and innovation ecosystem in science and technology in India.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/events/seminar-on-rethinking-copyright-and-licensing-for-digital-publishing-today-delhi-jan-23-2017'>https://cis-india.org/a2k/events/seminar-on-rethinking-copyright-and-licensing-for-digital-publishing-today-delhi-jan-23-2017</a>
</p>
No publishersinhaCopyrightLicenseAccess to KnowledgeDigital PublishingDigital Scholarship2017-01-21T14:51:56ZEvent