Centre for Internet and Society

Copyright Amendment: Bad, but Could Have Been Much Worse

sunil — 2012-06-15T12:29:39Z

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

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

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

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

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

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

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

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

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

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

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

Click to read the original published by Business Standard.

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

The Work of Art in the Age of Mechanical Injunctions

Lawrence Liang — 2012-06-15T13:56:16Z

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

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

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

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

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

High Court order

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

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

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

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

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

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

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

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

It is ordered that

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

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

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

Microsoft case

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

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

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

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

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

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

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

Click to read the original in the Hindu.

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

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

sinha — 2017-11-19T07:50:49Z

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

Thank you for the presentation, Dr. Rostamma.

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

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

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

Read Dr. Rostamma's study here.

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

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

maggie — 2015-08-21T17:12:10Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

INTRODUCTION to COLLECTIVE MANAGEMENT ORGANIZATIONS and the NEED FOR TRANSPARENCY

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

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

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

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

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

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

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

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

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

METHODOLOGY

Selecting countries for comparison

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

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

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

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

Identifying the Relevant CMOs

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

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

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

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

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

Identifying the comparative parameters

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

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

FINDINGS

List of members

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

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

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

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

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

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

Governing directors

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

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

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

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

User Categories

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

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

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

Tariff Rates

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

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

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

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

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

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

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

Royalty distribution policy

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

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

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

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

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

Annual revenue report

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

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

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

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

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

Percentage of Revenue as Distributed Royalties

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

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

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

LIMITATIONS & LEARNINGS

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

Limitations in Country Selection Process

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

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

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

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

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

Limitations of CMO Identification

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

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

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

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

Limitations of Parameter Selection

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

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

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

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

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

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

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

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

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

CONCLUSIONS

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

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

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

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

Recommendations

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

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

Further Questions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To embed a tweet or not?

praskrishna — 2016-09-23T01:08:13Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

sinha — 2016-09-26T15:07:07Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

National IPR Policy: Mapping the Stakeholders’ Response

Akshath Mithal — 2015-11-24T15:02:17Z

The first draft of the National IPR Policy was released last December. Following that, a plethora of comments and suggestions was submitted to the DIPP on the same. In this post, I will focus on the comments that were available online and analyse the trends that I was able to find in the same and also highlight the many suggestions put forth by the stakeholders.

Nehaa Chaudhari provided inputs and feedback and also edited this post.

I. Introduction

On 24^th December 2014, the IPR Think Tank constituted by the Department of Industrial Policy and Promotion (DIPP) officially released the first draft of the National IPR Policy. Following this, in a press release dated 30^th December, 2014, the DIPP called for comments and suggestions on the draft from all stakeholders. CIS, through an RTI, asked the DIPP to disclose all the comments received by it. However, the DIPP’s reply, rather vague, stated that it is not in the position to provide the same. (Further details here).

II. Research Methodology

In this post, I have compiled and compared the various submissions that I was able to find online in a SpicyIP post and will provide an analysis of the same.

The spreadsheet that I have created contains a compilation of the many issues that were raised by 15 stakeholders of various affiliations (organisations/scholars/unions). This spreadsheet was put together after reading each submission carefully, and summarizing the same. After dividing the contents of the submissions into the various issues, they were put under certain heads in this sheet. Though there were a few ideas covered by certain submissions that have not been tabulated, all the major and important ones have been covered, in my opinion.

On the basis of this spreadsheet, the following observations have been made on the feedback of the many stakeholders on the various aspects of the draft.

III. Stakeholders - A Statistical Analyis

A total of 15 submissions were taken into consideration for the purpose of this post, and all of them applauded the government for recognizing of the need for a comprehensive policy on IP and the DIPP’s efforts to give the public a chance to play a role in the process of formation of a policy that would affect the country and its economy significantly. However, each submission had its own set of criticisms and suggestions to the various aspects dealt with by the policy. In my analysis there are three broad categories that the stakeholders can be divided into:

Research organisations/NGOs.
Industrial representative bodies/Political organisations.
Scholars/Academia.

A representation of the stakeholders and the categories that they belong to has been produced below.

Categories	Stakeholders
Research organisations/NGOs	Centre for Internet and Society (CIS); Consumer Unity & Trust Society (CUTS); Software Freedom Law Centre (SFLC); Centre for Law & Policy Research (CLPR).
Industrial representative bodies/Political organisations	Intellectual Property Owners Association (IPO); National Association of Manufacturers (NAM); International Trademark Association (INTA); IP Federation – UK; ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP); Swadeshi Jagaran Manch (SJM); American Chamber of Commerce (AmCham – India).
Scholars/Academia	Centre for Intellectual Property and Technology Law – O.P. Jindal Global University (CIPTEL); S. Ragavan, B. Baker, S. Flynn; Adv. Ravindra Chingale – NLU Delhi; Prof. N.S. Gopalakrishnan & Dr T.G. Agitha – CUSAT.

Out of the comments studied, the largest chunk of stakeholders (46.67%) belonged to the industrial/manufacturing sector, with the other two categories comprising only 26.67% each. This could be attributed to the fact that a country’s IPR policy has a very vital role to play in influencing an industrial firm’s strategy and an unsatisfactory policy could have a serious and adverse effect on the profit-making abilities of an industry.

IV. IP - Innovation / Growth Nexus

There are a total of 13 themes that have been identified in the spreadsheet, and out of these 13, the one that the largest number of stakeholders has commented on is the question of there being nexus between intellectual property, innovation and growth. Eleven out of the fifteen stakeholders have given their opinion on this issue.

The opinion on this theme is not very uniform. Some organisations are of the opinion that there is a strong correlation between robust IPR protection mechanisms and innovation in a country, and thus there is a resultant benefit to the economy of the country. For example, the IP Federation of UK claimed that with a strong IPR regime, there is a greater inflow of FDI and R&D expenditure in countries, thus benefitting the country’s economy. On the other hand, there are some stakeholders who believe that there is no nexus and that the underlying assumption made by the draft policy is not backed by any research or evidence. The Centre for Internet and Society (CIS), for example, even cites evidence in its submission to oppose this assumption. The smallest chunk of stakeholders suggests to the Think Tank that in the current draft, there is not enough authority cited by them, and thus, there should be some research that must be done in order to give this assumption some backing. CIPTEL, a research centre based in OP Jindal Global University, stated that there should be a transparent survey conducted on this issue by a neutral agency.

The figure below would give the reader a comparative analysis of the responses from the stakeholders on this particular theme.

All the research organisations/NGOs that presented their views on this assumption are in opposition to the same and have proposed to the Think Tank that it should amend the contents of the policy after taking this incorrectly-made assumption out of the mix.

A majority of the industrial bodies have supported the existence of a nexus and have stated that by enforcing stronger IPR protection laws, the innovative/inventive environment of a country develops and this in turn encourages investors, which culminates into a rise in the growth of the economy.

Scholars and academia have a difference of opinion amongst themselves and there is no uniform pattern that can be seen in their responses to this issue.

The only political organisation in this analysis, the Swadeshi Jagaran Manch opposes the assumption and states that the policy has turned a blind eye to the development of the country and that there is no analysis on whether there is any effect of the proposed strengthening of IP protection on the various sectors of the economy.

V. International Treaties

The policy, in its introduction states the following stance on negotiation of international treaties and agreements – “In future negotiations in international forums and with other countries, India shall continue to give precedence to its national development priorities whilst adhering to its international commitments and avoiding TRIPS plus provisions.”

On this general theme, 9 out of 15 stakeholders have submitted their comments to the Think Tank. Out of these 9, the category-wise division of the stakeholders is represented by the diagram below.

The opinion of the stakeholders on this issue varied and there were broadly 3 kinds of responses that were found in the analysis. More than half of these responses (56%) suggested that all negotiations of treaties must be done transparently, with proper consultation of all stakeholders. CUTS, for example, recommended that to increase the confidence of the people in the country’s IP regime, the negotiations must be done with the opinion of all stakeholders being taken into consideration. They also cautioned the government to make sure that any future agreements do not contain any TRIPS-plus provisions. The second category applauded the policy’s pro-global stance towards IPR developments, and has recommended certain treaties that India must sign in order to strengthen its regime (details in spreadsheet). Only one stakeholder, the National Association of Manufacturers of the USA suggested that India’s stance of avoiding TRIPS-plus agreements is in contravention to its objective of keeping up with global IP developments. This point of view is clearly in favour of the USA as TRIPS-plus provisions have always been more beneficial to developed countries than developing countries like India.

Thus, it can be said that almost 90% of stakeholders, from across categories, are satisfied with India’s pro-international stance, and only want the government to be cautious and consult the public before signing treaties on IPR.

VI. Utility Models

A provision to legalise utility model protection was also a part of the draft policy. Utility models or petty patents are suggested by the policy in order to protect parties like MSMEs and their many innovations which may not satisfy the requirements of regular patent protection and thus losing out from IPR protection, leading to benefits not being reaped properly from these inventions.

This provision was commented on by eight of the 15 stakeholders, making it a little above half of the total. A category-wise division can be found below.

The opinion on utility models was majorly negative across categories, with 75% of the stakeholders believing that utility model protection must be given a second thought and many drawbacks were pointed out such as frivolous litigation, uncertainty in the market, and a drop in the quality of innovation registered in the country. A review of how effective utility model laws are in other countries was suggested before making any final decision. Only 2 out of the 8 stakeholders supported the provision for petty patents and stated that this would give a good means of protection to ‘jugaad’ innovations that are very popular in India and thus believed that such laws would help increase the innovation levels in the country.

VII. Public Funded Research Labs and Universities

Only four stakeholders had a say on the issue of grants to Government labs and universities, these organisations being Indian research organisations and academia. The opinion varied from party to party and the Centre for Internet and Society argued that if there was a rise in IP protection for government funded research, it would be against the vision of free and open access to research funded by taxpayers’ money.

The other three stakeholders, namely CIPTEL, CUTS and Adv. Ravindra Chingale emphasised on the importance of merit-based funding instead of funding on the basis of whether an organisation is Government-owned or not. Two of these also suggested that there must be a system of contact between industry and academia to incentivise and utilize innovation properly.

VIII. Limitations and Flexibilities

A very important aspect of any IPR regime is the presence of limitations, exceptions and flexibilities on the rights protected by IP laws, as it allows for the appropriate amount of information being shared for free or at reasonable costs, for furtherance of public interest.

On this vital issue, most stakeholders had a say and the trends of the feedback on the limitations and flexibilities on IP protection were as expected. There were two broad sets of opinions that could be gathered from the analysis, and while there was a majority (62.5%) of organisations and people who believed that the government must keep up its efforts of providing a good framework for exceptions to IPR protection with measures like compulsory licensing being put in place in order to protect broader interests of the country such as access to reasonably priced medicines and other necessities. The only recommendation that they had was that these measures should be decided after a careful analysis of what the economy really needed in order to develop further.

The opposition, quite understandably came from international industrial bodies representing manufacturers and intellectual property owners who argued that the policy of limitations to IPR protection is discouraging those who want to invest in the country and that it hurts the business of foreign-based companies that operate in India or want to do so in the near future as their intellectual property may not be protected adequately with such a policy in place.

The figure above clearly points out that none of those against limitations being placed on IP protection had an Indian background and all those in favour of the same were primarily Indian-based organisations and academics, with the exception of the American scholars – S. Ragavan, B. Baker, and S. Flynn.

IX. Trademarks

Only a single stakeholder, the International Trademark Association, was interested in the issue of trademarks. This can be attributed to the fact that this is the only association out of all the stakeholders having a direct interest in trademark law and policy. The organisation suggested that there should be a greater amount of clarity in the trademark examination process and also suggested that there should be an increase in the number of examiners to make the process of trademark registration quicker.

X. Trade Secrets

In objective 3 of the draft policy, the Think Tank suggests that to strengthen the IP framework of the country, trade secret protection must be introduced as a formal law. India, today, does not have a law to protect sensitive trading information and there needs to be a formalised contract for there to be any relief for leaking of such information.

The stakeholders supporting the enactment of trade secret legislation were interestingly all industrial bodies representing international companies and firms. Only 2 parties expressed their worries about such a law, and argued that there must be more backing to make this recommendation more convincing. A graphical representation of the stakeholders is given below to provide a clearer picture of the responses.

This chart portrays clearly that international bodies are insistent on the enactment of a trade secret law as this would help incentivise knowledge sharing in the country. In many countries, trade secret protection is formalised legally and these stakeholders argue that for foreign multinationals to feel confident while sharing sensitive information with others in India, the government must follow in the footsteps of such countries and legislate on this matter soon.

XI. On Specialised Courts

A common suggestion found across 5 of the 15 stakeholder responses was for the creation of a specialised IP judiciary that would be formed by widening the patent bench that was proposed in the draft policy. Such a court would deal only with issues of intellectual property and would consist of judges having special knowledge in the various branches of IP law.

XII. Conclusion

The draft policy was released almost a year ago, and since then, much discussion has taken place on the same, with many contradictory opinions and suggestions on the various aspects of the policy. It can be observed from this compilation that industrial bodies have been insistent on stronger IP protection and more incentives to multinationals to invest in India in the form of trade secret legislations, keeping limitations such as compulsory licensing to a minimum, et al.

On the other hand, a trend could be seen of research organisations and academia having a view that was more in the interest of the public and with the Indian scenario taken into consideration, with the criticism of utility models, TRIPS-plus agreements, and by raising the question of whether the assumption underlying the draft of there being a link between IP protection and a rise in innovation had any basis whatsoever. This post, however, is only a glimpse of the stakeholders’ responses owing to the fact that the DIPP has not officially released the submissions made to it and only the ones that were available online have been taken into consideration.

It is only a matter of time that the Think Tank releases the final policy and one shall hope that this tedious process of seeking comments and suggestions will bear any fruit with the policy being a balanced one and being aimed ultimately towards the benefit of the country as a whole.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-mapping-the-stakeholders2019-response

The International Copyright System and Access to Education: Challenges, New Access Models and Prospects for New Principles

praskrishna — 2012-06-01T04:29:36Z

This event organised by Max Planck Institute was held in Munich, Germany on May 14 and 15, 2012. Pranesh Prakash participated in this event.

List of Participants

Name	Affiliation
Mr. Olatunji Babatunde Adetula	Director, Nigerian Copyright Commission
Prof. Olufunmilayo Arewa	African University for Science and Technology & University of California School of Law, Irvine
Prof. Michael W. Carroll	Professor of Law, Director, Program on Information Justice and Intellectual Property, American University, Washington College of Law
Mr. Alberto Cerda Silva	S.J.D. Candidate Georgetown University Law Center, Research Associate,Knowledge Ecology International
Ms. Vera Franz	Senior Program Manager Open Society Information Program Open Society Foundations
Prof. Christophe Geiger	Associate Professor Director General Director of the Research Department CEIPI, Université de Strasbourg
Prof. Daniel Gervais	FedEx Research Professor of Law Co-Director, Vanderbilt Intellectual Property Program Vanderbilt University Law School
Ms. Cristiana Gonzalez	Senior Researcher Universidade de São Paulo
Ms. Teresa Hackett	Programme Manager EIFL
Prof. Dr. Reto M. Hilty	Managing Director Full Professor ad personam at the University of Zurich Honorary Professor at the University of Munich Max Planck Institute
Dr. Zorina Khan	Professor Department of Economics Bowdoin College
Dr. Kaya Köklü	Senior Research Fellow Intellectual Property and Competition Law Max Planck Institute
Ms. Eniko Kovacs	Program Manager Academic Fellowship Program, HESP Open Society Foundations
Mr. Ahmed Abdel Latif	Intellectual Property and Technology Senior Programme Manager International Centre for Trade and Sustainable Development
Ms. Mayara Nascimento Santos Leal	Division of Intellectual Property Economic Department Ministry of External Relations, Brazil
Prof. Lydia Loren	Professor of Law Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar Lewis & Clark Law School
Ms. Viviana Munoz Tellez	Programme Officer, IAKP The South Centre
Prof. Ruth Okediji	William L. Prosser Professor of Law University of Minnesota Law School
Mr. Pranesh Prakash	Programme Manager The Center for Internet and Society
Mr. G.R. Raghavender	Registrar of Copyrights & Director (BP & CR) Copyright Office Government of India, Department of Higher Education, Ministry of Human Resources Development
Prof. Jerome H. Reichman	Bunyan S. Womble Professor of Law Duke University Law School
Dr. Manon Ress	Director of Information Society Projects Knowledge Ecology International
Ms. Carolina Rossini	Senior Fellow at GPOPAI, University of Sao Paulo
Dr. Susan Strba	Expert and Author, Copyright L&Es for Education in Africa
Mr. Luis Villaroel Villalon	Director de Investigación Corporación Innovarte
Dr. Moktar Warida	First Secretary, Permanent Mission of the Arab Republic of Egypt to the United Nations
Ms. Raquel Xalabarder Plantada	Director, Learning Resources Vice President’s Office, Faculty and Academic Organization Open University of Catalonia

Workshop Associates

Name	Affiliation
Lindsey Niznik	Senior, University of Minnesota
Peju Solarin	Doctoral Candidate International Max Planck Research School on Retaliation, Mediation, and Punishment, Max Planck Institute

See the original here

For more details visit https://cis-india.org/news/workshop-on-education-and-copyright

An FAQ on the Copyright Amendment Bill, 2012, for the Benefit of Persons with Disabilities

Dr. Sam Taraporevala and Rahul Cherian — 2012-06-02T04:35:51Z

The Copyright Amendment Bill 2012 introduced certain provisions for the benefit of persons with disabilities and as it has been passed by both houses of parliament (By the Rajya Sabha on May 17, 2012 and the Lok Sabha on May 22, 2012).

Who does this amendment benefit?
This amendment benefits all persons with disabilities who cannot enjoy works in their normal format thus amongst others it would cover totally blind, low vision, learning disabled, the deaf and hard of hearing and orthopedically challenged people who are unable to hold books or turn its pages.
What can be done now that was not possible earlier?
Persons with disabilities who cannot access a work in their normal format and organizations can suitably modify a work so as to make it accessible to meet the specific needs of the person with disability. This means that a standard printed book, for example may be converted to an alternate format (not necessarily a special format) including Braille, large font, text readable by screen reader, audio (be it synthetic audio or human voice recording) without seeking the permission of the rights holder.
How is this different?
In the past, any alternate format creation would have been an infringement unless it was backed up by prior written permission from the rights holder. One had to seek the permission if one had to be on the right side of the law. Now these permissions are not needed for non-profit conversion and distribution.
Are there any restrictions? Yes, there are reasonable restrictions such as:
(a) conversion should be a not for profit activity. In case it is a for profit activity, there is a separate clause under which a special license can be obtained.-
(b) The accessible format copy has to be distributed to a bonafide print impaired person or organizations that serve them.
(c) reasonable precaution need to be taken by all that the accessible copy is not misused commercially.
What is the meaning of a “work”?
A work means:
(a) a literary, dramatic, musical or artistic work;
(b) a cinematograph film;
(c) and a sound recording;
It includes all works which are available in India in the normal channels of business.
What activities are permitted for the benefit of persons with disabilities?
The adaption, reproduction, issue of copies or communication to the public of any work in any accessible format to facilitate persons with disability to access works.
Is permission required from publishers to undertake the above activities?
No, permission from publishers are not required to undertake the above activities subject to the points given below.
What are “accessible formats”?
Accessible formats include, Braille, audio (be it synthetic audio or human voice recording), Daisy, accessible pdf, large print, movies with subtitles etc.
What is the meaning of “adaption”?
“Adaption” in relation to any work, mean any use of such work involving its re-arrangement or alteration. Conversion of a work into an accessible format would be treated as an adaption
What is the meaning of “communication to the public”?
"Communication to the public" means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work. This includes making the accessible format copy available over the Internet or distributing it from a website.
Who can create and distribute accessible formats?
(a) Any person can create and distribute accessible formats if it is done for facilitating access by persons with disabilities. Parents, friends and persons with disabilities themselves can create accessible formats.
(b) An organization working for the benefit of the persons with disabilities can also create and distribute accessible formats.
Are there any preconditions on the type of organization that can undertake the activities?
Yes, the organization must satisfy one of the following conditions to undertake the activities:
(a) The organization must be registered under section 12A of the Income Tax Act, 1961 and work for the benefit of persons with disability; or
(b) The organization must be recognized under Chapter X of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995; or
(c) The organization must receive grants from the Government for facilitating access to persons with disabilities; or
(d) The organization must be an educational institution or library or archives recognized by the Government.
Can accessible format copies be shared between persons with disabilities?
Yes, they can be shared
Can any of the activities be undertaken for profit?
No, for profit activities require a separate license from the copyright board. This license will prescribe several conditions including the royalty, if any, that must be paid. For further details, see point 23 of this note.
Can the costs of production of accessible format copies be recovered?
Yes the cost can be recovered.
Does this mean that the publisher has to give you a soft copy?
No. Publishers are not required to give a soft copy under the amendment.
What steps are required to be taken by organizations who undertake the activity?
The organization must ensure that the copies of works in such accessible format are made available to persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business.
Can works be simplified so that people with psycho social disabilities or intellectual disabilities can enjoy the work?
Yes, this can be done since this will fall within the meaning of “adaption” as given above.
Can subtitles be added to movies and other audio visual work for the benefit of the deaf/hard of hearing?
Yes, this can be done since this will fall within the meaning of “adaption” as given above.
Can audio descriptions be added to movies and other audio visual works for the benefit of the blind/low vision?
Yes, this can be done since this will fall within the meaning of “adaption” as given above.
Can an organization in India import or export accessible format copies from/to organizations and beneficiaries abroad?
The Copyright Amendment Bill, 2012, does not address import and export and this depends on various factors and legal preconditions. In this case, it is advisable to check with your legal advisors before undertaking such an activity.
What is the wording of the section?
Section 52 (1)The following act shall not be an infringement of copyright, namely:
(zb) the adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format, by —
(i) any person to facilitate persons with disability to access to works including sharing with any person with disability of such accessible format for private or personal use, educational purpose or research; or
(ii) any organization working for the benefit of the persons with disabilities in case the normal format prevents the enjoyment of such works by such persons:
Provided that the copies of the works in such accessible format are made available to the persons with disabilities on a nonprofit basis but to recover only the cost of production:
Provided further that the organization shall ensure that the copies of works in such accessible format are used by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business.
Explanation. For the purposes of the sub-clause, “any organization” includes an organization registered under section 12A of the Income Tax Act, 1961 and working for the benefit of persons with disability or recognized under Chapter X of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 or receiving grants from the Government for facilitating access to persons with disabilities or an educational institution or library or archives recognized by the Government.
What is the wording of the section relating to for profit activity?
³31B. (1) Any person working for the benefit of persons with disability on a profit basis or for business may apply to the Copyright Board, in such form and manner and accompanied by such fee as may be prescribed, for a compulsory license to publish any work in which copyright subsists for the benefit of such persons, in a case to which clause (zb) of sub-section (1) of section 52 does not apply and the Copyright Board shall dispose of such application as expeditiously as possible and endeavor shall be made to dispose of such application within a period of two months from the date of receipt of the application.
(2) The Copyright Board may, on receipt of an application under sub-section (1), inquire, or direct such inquiry as it considers necessary to establish the credentials of the applicant and satisfy itself that the application has been made in good faith.
(3) If the Copyright Board is satisfied, after giving to the owners of rights in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, that a compulsory license needs to be issued to make the work available to the disabled, it may direct the Registrar of Copyrights to grant to the applicant such a license to publish the work.
(4) Every compulsory license issued under this section shall specify the means and format of publication, the period during which the compulsory license may be exercised and, in the case of issue of copies, the number of copies that may be issued including the rate or royalty: Provided that where the Copyright Board has issued such a compulsory license it may, on a further application and after giving reasonable opportunity to the owners of rights, extend the period of such compulsory license and allow the issue of more copies as it may deem fit.

Compiled By:

The Xavier’s Resource Centre for the Visually Challenged (XRCVC)
Dr. Sam Taraporevala
St. Xavier’s College, 5 Mahapalika Marg, Mumbai 400001
#+91-22-22623298/ + 91- 9967028769
sam@xrcvc.org
info@xrcvc.org
www.xrcvc.org
Inclusive Planet Centre for Disability Law and Policy
Rahul Cherian
12/21 Custain Beach Road, Santhome,
Chennai – 600004
# +91 9840357991
rahul.cherian@inclusiveplanet.com
www.inclusiveplanet.org.in

For more details visit https://cis-india.org/accessibility/faq-on-copyright-amendment-bill-2012

Land and Social Justice - An introduction to Georgism

praskrishna — 2013-04-28T07:06:03Z

Cherry G Mathew will be giving a public talk on Georgism at the office of the Centre for Internet and Society in Bangalore on April 12, 2013, from 5 p.m. to 7 p.m.

Abstract

In his popular book of the 1870s "Progress and Poverty", Henry George examined the causes of Poverty in contemporary America, and proposed very specific solutions for economic justice. "His genius has been glowingly acknowledged by such renowned figures as philosophers John Dewey and Mortimer J. Adler, presidents Woodrow Wilson and Dwight D. Eisenhower, scientists Alfred Russel Wallace and Albert Einstein, essayists John Ruskin and Albert Jay Nock, jurists Louis D. Brandeis and Samuel Seabury, columnists William F. Buckley and Michael Kinsley, and statesmen Winston Churchill and Sun Yat-sen.", while being heavily criticised by Karl Marx (who referred to George's teaching as "Capitalism's last ditch."[*]

This talk will make a brief introduction to George's Ideas, and then will attempt to draw discussion on their relevence to information and current copyright and intellectual property landscapes.

Cherry G. Mathew

Cherry G. Mathew is a British Chevening Scholar and an Open Source Kernel Hacker. He has worked on the Linux kernel in the past, and is an active FreeBSD and NetBSD developer/committer. He is an Electronics Engineer by basic training, with a Masters in Evolutionary and Adaptive Systems. He has worn various hats professionally, from Technical Developer, Roboticist, Free Software campaigner, CEO, volunteer teacher and currently software consultant. His current area of professional work is the Xen hypervisor and BSD kernels. His non-technology hobbies include outdoor pursuits and swing dancing.

Click to see the presentation

[*]. http://bit.ly/13HZg7m (Retrieved on March 29, 2013).

For more details visit https://cis-india.org/a2k/events/land-and-social-justice-an-introduction-to-georgism

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

sinha — 2019-07-11T07:04:35Z

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

Preliminary

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

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

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

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

About The Centre for Internet and Society

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

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

Comments

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

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

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

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

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

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

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

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

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

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

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

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

[3] (1983) 2 SCC 40

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

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

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

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

WIPO: Scope and rights of potential broadcasting treaty clarified

praskrishna — 2014-05-28T07:03:17Z

This post by Alexandra Bhattacharya was published in SUNS #7796 dated 5 May 2014.

Read the story posted on Third World Network here. CIS is quoted.

Integral concepts and the options on the scope of a proposed broadcasting treaty, and the substantive rights envisaged for broadcasting organisations have been further elucidated.

The 27th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) completed its two- and-half-day discussion on 30 April of the agenda item on a proposed Treaty on the Protection of Broadcasting Organisations - a 16-year-old issue in WIPO.

However, a number of member states (India and Brazil) pointed out that there was further need to tackle the technical issues and that there was still no clear consensus.

The results of the informal consultations (Regional Coordinators plus six) held by the committee's Chair have produced two tables based on Article 6 which deals with the "Scope of Application" of the proposed treaty, and with Article 9 on "Protection for Broadcasting Organisations" in the working document (SCCR/27/2 Rev).

There is no clear consensus on most of the elements in the tables, but they are meant to consolidate all the options and proposals currently in place.

The 27th session of the SCCR is taking place in Geneva from 28 April to 2 May.

In 2007, WIPO's General Assembly agreed to pursue a "signal-based approach" to drafting a new treaty to provide protection for broadcasting organisations, to ensure that provisions on signal theft in themselves did not give broadcasters additional rights over program content.

Results of Informal Consultations: Tables on Scope of Application and Rights

The informal consultations have resulted in a table on the Scope of Application of the treaty which relates to Article 6 of the proposed treaty. The potential applicable areas identified include:

(i) traditional broadcasting [and cablecasting](wireless or by wire)(+pre-broadcast signal);

(ii) simultaneous and unchanged transmission of broadcast program (simulcasting);

(iii) deferred linear transmission of broadcast program;

(iv) on-demand transmission of broadcasting program (catch up) and program-related material (to be defined); and

(v) internet originated linear transmission (webcasting).

Elements (ii) to (v) relate to transmission over the Internet [if included, only for traditional broadcasters/cable casters]. The Chair stated that there was greater emphasis on traditional broadcasting which included both wireless or by wire along with pre-broadcast signals. There was greater divergence with respect to transmissions over the internet with a majority position that simultaneous and almost simultaneous broadcasting should be part of the treaty. Some had also expressed the opinion that webcasting should be beyond the scope of the treaty.

The second table relates to rights for broadcasting organisations and is in the context of Article 9 on "Protection for Broadcasting Organisations".

This table includes: (i) simultaneous re-transmission of the broadcast signal to the public over any medium; (ii) Near simultaneous re-transmission of the broadcast signal to the public over any medium (to be defined); (iii) Transmission of the broadcast signal to the public from a fixation and over any medium (not limited in time) including the making available right; (iv) Fixation of a broadcast signal, reproduction of fixation of broadcasts, distribution of fixations (copies) of broadcasts, performance of broadcast signal in places accessible to the public [against payment of an entrance fee]; (v) Protection of pre-broadcast signals; and (vi) National Treatment when the protection is equivalent; reciprocity when there is a difference in the protection.

After the presentation of the tables in the plenary, Brazil said that "for the sake of transparency", it wanted to state that the informal discussions were helpful in the sense that they had produced a "deeper understanding of what we are talking about".

It stressed that it had tremendous difficulty in referring to the word "consensus", as many aspects were yet to be clarified. It underlined the need to see the discussion with a "grain of salt".

India supported the statement by Brazil, noting that although the committee had "grappled with many issues," there was need for a more technical discussion. In this context, it proposed that broadcasting engineering experts be invited to an informal experts' meeting during the next session of the SCCR.

Support for India's proposal was voiced by the United States, Brazil, El Salvador, Canada, and Colombia.

The European Union stated that the discussions showed that a number of delegations had expressed their support for covering traditional broadcasting and cablecasting transmissions. The most divergent views were with respect to simulcasting deferred transmissions and on-demand transmissions.

It also said that there was a need to have more discussion with respect to elements (ii) and (iii) of the table on Rights. It added that there could be flexibility on element four if there was a good solution for two and three.

The United States was of the opinion that the "charts" that pulled out the multiple proposals on the table allowed the delegation to understand the key elements better and also to get some initial indication of the thinking of different delegations on those elements.

It observed that there was general agreement as to the inclusion of traditional broadcasting over the air which is clearly within the mandate of the General Assembly.

Elements (i) and (ii) in the table on rights, the simultaneous and near simultaneous re-transmission of signals to the public were essentially the proposal of the United States for discussion purposes, it added.

Trinidad and Tobago stated for the record that it would like the scope of protection to include traditional broadcasting and cablecasting.

China stated that simulcasting should be included in the treaty.

Protection for Broadcasting Organisations: Exclusive Rights Discussed

The second day of the SCCR focused on Article 9 on "Protection for Broadcasting Organisations" which deals with the substantive rights envisaged in the protection for broadcasting organisations in the potential treaty.

The divergence in views related to the scope and range of the substantive rights to be given to broadcasting organisations. This issue, along with the Scope of Protection (Article 6), remains one of the integral areas of the proposed treaty where consensus is yet to be reached.

A consistent concern expressed by a number of member states and some stakeholders' groups such as those representing copyright providers (authors, actors, musicians) during the session, has been the need to ensure that the potential broadcasting treaty did not infringe or curtail the existing rights of underlying content providers of the broadcast.

As seen in the discussion on the Scope of Protection, the complexity of the issue was evident and member states were encouraged to work on a matrix of exclusive rights envisaged for broadcasting organisations in order to both cement progress and also for better conceptualisation.

[The current text of Article 9 on "Protection for Broadcasting Organisations" includes two Alternatives A and B which deal with exclusive rights to be authorised to broadcasting organisations.

[Alternative A lists fewer rights which include: (i) the re-transmission of their broadcast signals to the public, by any means; (ii) performance of their broadcast signal in places accessible to the public, for commercial advantage or using very large screens; (iii) the use of a pre-broadcast signal intended for them.

[Alternative B has a more extensive list of exclusive rights and includes: (i) the right of fixation of their broadcasts; (ii) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts; (iii) the re-transmission of their broadcasts by any means, including re-broadcasting, re-transmission by wire, and re-transmission over computer networks; (iv) the communication to the public of their broadcasts; (v) the making available to the public of the original and copies of fixations of their broadcasts in such a way that members of the public may access them from a place and at a time individually chosen by them; (vi) the transmission by any means for the reception by the public of their broadcasts following fixation of such broadcasts; (vii) the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.

[India's proposal in the Annex of the working document is essentially based on the right to prohibit, if done without authorisation, the following: (i) the re-broadcast of their signal through traditional broadcasting means; (ii) causing the broadcast to be seen or heard in public on payment of any charge; and (iii) make a fixation of signal for the purpose of re-broadcast.

[Additionally, for this session, Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan, Turkmenistan, Ukraine and Uzbekistan tabled a proposal (SCCR/27/6) in which a broad range of rights such as fixation and re-transmission rights are included.

[The United States has also included a proposal for "discussion purposes" which states that "Broadcasting organizations shall have the right to authorize the simultaneous or near-simultaneous re-transmission of their broadcast or pre-broadcast signal over any medium".]

The Chair sought comments from member states on how to move forward on the issue, particularly with respect to determining the range of rights to be given to broadcasting organisations.

Belarus, introducing the group proposal SCCR/27/6, said that adequate protection should be afforded to broadcasters, bearing in mind the economic investment required by them. It added that there should be the broadest scope for the protection to be enjoyed by the broadcasters.

Belarus stated that these rights have to be linked to re-broadcasting of any such content and with the broadcasting of the content in whatever form. It added that the exhaustion of the rights should be left to domestic legislations.
With respect to India's proposal, Belarus stated that the right to prohibit was not sufficient.

The United States stated that its proposal for discussion attempted to "cut through the debate on the scope of rights" and attempted to focus on a "single core right".

The proposal for a "right to authorize the simultaneous or near-simultaneous re-transmission" focused on the need to address the fundamental concerns of the broadcasting organisations within the scope of the 2007 General Assembly mandate on a signal-based protection.

The US added that it was suggesting no post-fixation rights at the international level and only for the protection of the signal. Any protection for post-fixation would be relying on the protection of the content.

The right to authorise the simultaneous or near-simultaneous re-transmission would include the broadcast and pre-broadcast signal, it explained.

It also noted that there had not been opposition to the treaty covering these elements during the meeting, adding that there had not been any consensus on post-fixation rights.

The US further suggested an approach which could be either (i) based on the US proposal, or (ii) used the US proposal as a basis and included some version of post-fixation rights.

It said that there was a need for something that "we can all agree to in the international level".

India stated that its proposal was based on protection for broadcasting organisations based on a "signal based" approach in the traditional sense. In this context, it supported protection for simultaneous broadcasting in the traditional sense and not for webcasting and simulcasting.

Mexico was of the opinion that there was a need to seek "the establishment of general standards" and the discussion had to focus on general principles and not on the details.

In this context, it supported the proposal by the US.

In a similar vein, South Africa noted the need for a general signal-based approach and supported the proposal by the US which was based on a narrow scope of rights.

Brazil also expressed support for the US proposal and stated that with this "narrow and simple" approach it would be possible to make progress.

It however expressed reservation about including other forms of protection other than for simultaneous and near simultaneous re-transmissions.

The European Union also agreed that there was consensus in the room as to the right to authorise or prohibit simultaneous transmissions by any means. However, there was a need to focus on transmissions from fixations where there was less clarity.

It added that there was a need to separate the discussion from fixation and post-fixation rights. There was also a need to be clear about what "near simultaneous" transmissions meant.

The EU said that there was a need to also be clear about what kind of rights were referred to with respect to the right to prohibit.

Canada stated that a single solution to signal piracy remained a challenge and that it was attached to finding a minimum standard today. It added that there was a need to look at both pre- and post-fixation.

It also noted that there were different modes of delivery of broadcasts and there were a number of alternatives in the text. In this context, it would be useful to develop a matrix to further the discussion.

The need to simplify the range of rights on the table was echoed by the US, Ecuador, Chile and Colombia.
The Russian Federation supported the approach in restricting rights in some way and to focus on agreements previously reached, particularly with reference to traditional broadcasting.

It added that with respect to including additional rights in the scope of protection, there would be a need to receive corresponding authority from the General Assembly to do that.

It reiterated that a signal-based approach had already been decided and " if we are going to keep looking at every nuance, then we will not get anywhere".

Iran stated that the aim of the exercise should focus on the "anti-piracy function" and the function of the treaty should stop all forms of piracy. It noted that one approach could be an umbrella solution as seen in the WIPO Performance and Phonograms Treaty.

The Chair proposed informal consultations (Regional Coordinators plus six) in order to make progress on a matrix with respect to the range of rights and the scope of application of the potential treaty.

Concerns Expressed by Observers

A number of observers to the SCCR representing broadcasting organisations expressed the need for a treaty for the protection of broadcasting organisations; however, a number of other organisations also expressed reservations with the current work being undertaken in the SCCR.

The Trans-Atlantic Consumer Dialogue (TACD) stated that it opposed the idea of granting any new layer of intellectual property rights for broadcasters that would make it more expensive and more complex to legally obtain access to and use of information.

It explained that this treaty could create many problems for consumers especially if it is without very clear fixation rights, the rights in literary, dramatic, musical, artistic works, performances, films, sound recordings, broadcasts and other material in which there are copyright and related rights.

The Electronic Information for Libraries (EIFL) and the International Federation of Library Associations and Institutions (IFLA) said that they saw no compelling public policy reason for a new international instrument on the protection of broadcasting organisations, because piracy of broadcast signals is already adequately dealt with under existing laws and treaties.

They explained that the creation of a new layer of rights that affects access to content is of great concern to librarians, because it imposes an additional barrier to access to knowledge, especially to content in the public domain and that libraries have practical experience of such over-protection caused by multiple layers of rights.

EIFL and IFLA urged the member states to consider the costs to taxpayers and society, as well as the perceived benefits of this proposed treaty.

The Centre for Internet & Society (CIS) also expressed concerns regarding the intended scope and language of Article 9 on "Protection for Broadcasting Organisations" in Working Document SCCR/27/2 Rev.

It was of the opinion that the current language expanded the scope of the proposed treaty and was likely to have the effect of granting broadcasters rights over the content being carried and not just the signal.

It stated that the language in Article 9 envisaged fixation and post-fixation rights for broadcasting organisations, for instance, among others, those of reproduction, distribution and public performance and this was inconsistent with a signal-based approach.

Secondly, it expressed reservations on the inclusion of "communication to the public" reflected in Article 9 Alternative B.

It stated that communication to the public was an element of copyright and governs the content layer, as distinct from the "broadcast" or "transmission" of a signal.

Therefore, attempts to regulate "communication to the public" would not be consistent with a signal-based approach, which the CIS believes is the mandate binding on this Committee.

The Chair's conclusions on all the agenda items are expected to be circulated and finalised on the last day of the session (2 May 2014).

The remaining days of the SCCR focused on Exceptions and Limitations for Libraries and Archives as well as Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with Other Disabilities.

For more details visit https://cis-india.org/news/third-world-network-may-5-2014-wipo-scope-and-rights-of-potential-broadcasting-treaty-clarified

5th Global Congress On IP And The Public Interest: Successes, Strategies Highlighted

Admin — 2018-10-31T01:57:59Z

More than 400 activists, academics and practitioners from over 50 countries gathered at this year’s Global Congress on Intellectual Property and the Public Interest, according to organisers.

The story by David Branigan was published in Intellectual Property Watch on October 3, 2018.

At the Congress, participants shared success stories, developed strategies, and engaged in critical dialogue to re-think and re-invent intellectual property systems that serve the public interest.

The 5th Global Congress on Intellectual Property and The Public Interest was hosted by American University Washington College of Law in Washington, DC from 27-29 September. The core goal of the Congress, according to the website, is “to promote evidence-based policy-making by fostering partnerships between academics and policy advocates from around the world.”

The Congress featured three concurrent, but interconnected, tracks centred around copyright user rights, access to medicines, and trade. A list of the many panels, workshops and other events of the Congress can be found in the event agenda.

Key themes that emerged from the plenary sessions of the Congress include the need to take a critical look at the association between intellectual property and development, the important roles that both IP activism and academic research play in shifting practice, and the complex tension between pursuing incremental IP reform in the short-term, while envisioning and building toward IP system change in the long-term.

Participants were asked by organisers to contribute statements and to vote in an online poll to chart and map participant perspectives at this year’s Congress. The interactive results of the poll can be viewed here.

Access to Medicines Track

Intellectual Property Watch followed the access to medicines track throughout the Congress, to develop a broad picture of the persistent challenges and new strategies in this field, and to identify key initiatives to feature in the coming months. Below are some of the themes that emerged over the course of the sessions, along with key highlights.

Compulsory Licensing

Some participants highlighted their countries’ use of compulsory licensing to reduce drug prices and to maximise health budget capacity, with notable examples from Ecuador, Chile and Malaysia. Participants identified that many other countries, however, are not taking full advantage of these flexibilities, which can be partly attributable to a lack of awareness regarding these flexibilities, and a lack of systems to employ them. They noted that this is often compounded by IP-centric technical assistance that frames strong IP systems as necessary for development. Many participants argued that compulsory licensing, along with other intellectual property flexibilities, should be fully normalised, and that IP law should be structured to maximize the use of these flexibilities, rather than treat them as exceptions. Some also argued for the institution of international or regional coordination mechanisms for compulsory licensing.

Competition Law

Many participants, representing activist organisations working for access to medicines, noted that their campaigns were largely focused on the price of a particular drug in a particular country. Pursuing access to medicines on such a piecemeal basis, they explained, does not produce sustainable change within the IP system itself. This, they noted, is a similar challenge faced when issuing compulsory licences. Participants explained that pursuing strategies based in competition law could perhaps offer a more sustainable solution to address excessive pricing across a range of drugs. This strategy, they explained, could move forward key legal reforms to systemically challenge pharmaceutical monopolies and bring about more competitive drug pricing.

Innovation

According to participants, the term innovation infers a particular narrative, similar to “intellectual property,” and has been used by industry to justify the pharmaceutical patent system. One participant explained that patents are currently being granted on the basis of utility, rather than real inventiveness. He explained that the term innovation has come to represent the industry-led process of shaping markets and cycles of consumption, and that therefore, we need to reconsider our use of the term.

Research and Development

Many participants highlighted the dysfunction of the current monopoly incentive system for pharmaceutical research and development, and advocated for other systems such as delinking the price of pharmaceuticals from the cost of research and development and the volume of sales. Others highlighted examples of how drugs for neglected diseases can be developed and manufactured without intellectual property incentives, and still others how drug licences can be efficiently pooled to facilitate widespread generic drug production. Another participant further illustrated the dysfunction of the current system, noting that much of the research and development of patented pharmaceuticals was publicly funded, and that there needs to be greater public accountability in drug pricing.

Medicines as Non-Patentable

One important perspective, expressed by participants across tracks, is simply that medicines should be non-patentable and accessible to all people, without restriction.

Intellectual Property Watch will feature some of the key access to medicines initiatives highlighted at the Congress in greater depth and detail in the coming months.

Background of the Global Congress

The First Global Congress on Intellectual Property and the Public Interest was held in 2011 at American University Washington College of Law in Washington, DC, and the specific policy goals of the Congress were summarized in the 2011 Washington Declaration on Intellectual Property and the Public Interest.

The Congress was subsequently hosted in 2012 by Centro de Tecnologia e Sociedade of FGV Direito, in Rio de Janeiro, Brazil, in 2013 by University of Cape Town IP Unit, in Cape Town, South Africa, and in 2015 by the Centre for Internet and Society, in New Delhi, India. Intellectual Property Watch has attended them all.

More background information on the Global Congress on Intellectual Property and the Public Interest can be found at infojustice.org.

For more details visit https://cis-india.org/a2k/news/5th-global-congress-on-ip-and-the-public-interest-successes-strategies-highlighted

Stakeholders Consultation on draft WIPO Treaty to Protect Broadcasting Organization

Admin — 2018-11-14T02:26:56Z

Anubha Sinha participated in a stakeholder consultation organized by the Ministry of Commerce and Industry, Govt. of India to discuss the various aspects of draft WIPO Treaty to Protect Broadcasting Organization, which is under discussion in Standing Committee on Copyright and Related Rights at Copyright Office in New Delhi on October 23, 2018.

Notice for the Stakeholders Consultation Meeting

SCCR 36th Session

SCCR 37th Session

For more details visit https://cis-india.org/a2k/news/stakeholders-consultation-on-draft-wipo-treaty-to-protect-broadcasting-organization

CIS Intervention on the Treaty for the Visually Impaired at SCCR/SS/GE/2/13

pranesh — 2013-04-25T11:57:02Z

The informal session and special session of the Standing Committee on Copyright and Related Rights was organised by WIPO in Geneva from April 18 to April 20, 2013. Pranesh Prakash participated in the session and spoke about the rights of the visually impaired. An abridged version of this was read out during the meeting on Saturday, April 20, 2013, at 22:15 due to time restrictions.

Thank you, Mr. Chair. I represent the Centre for Internet and Society, a policy research organization based in India. India, as everyone who has been attending these SCCR meetings since 2008 would know, has the world's largest population of blind and visually impaired persons. Two of my colleagues at CIS — Nirmita Narasimhan and Anandhi Viswanathan — are blind, and another one of my CIS colleagues who passed away recently (and whose tireless efforts were remembered here at WIPO recently with a minute of silence) — Rahul Cherian — spent many years working extensively on policy issues related to persons with disabilities, and in particular worked here in WIPO as part of Inclusive Planet, and with the World Blind Union. Hence, this issue is not an abstract one for us, but a very real one.

I commend the delegates here for taking some steps forward during this meeting. However, very disappointingly, with those few steps forward, we have seen a few things we had taken as settled being opened up again, and many steps being taken backward. The already-onerous requirements and procedures laid down in this treaty are seen by a few countries as not being onerous enough. Blind people, it is believed, might 'wrongly' take advantage of these provisions. Worse yet, there is a fear that sighted persons might take advantage of these provisions relating to the blind.

The absurdity of these fears somehow seems to have escaped the notice of many involved in these discussions. There is nothing in these provisions that would convert infringement by sighted people — even if under the pretence of this treaty — magically into lawful acts. And, indeed, there are multifarious ways of infringing copyright without such resort to this treaty. Yet, these very same onerous requirements (such as the "commercial availability" requirement) and bureaucratic processes will unrealistically increase transaction costs for the visually impaired and render infructuous the very purpose of this treaty. Those delegations who are unrelenting on these issues seem to living in a bizarre world where sighted infringers deviously use exceptions granted in an international copyright treaty to engage in piracy; a bizarre world where scanners and the Internet have not been invented. And by refusing to acknowledge these ground realities, they are merely forcing the blind into wearing eye-patches and being 'pirates'.

In particular, I would like to deplore the stand taken by the European Union, being represented here by the European Commission, whose actions run contrary to the call made in May 2011 by the European Parliament to "to address the ‘book famine’ experienced by visually impaired and print-disabled people". This is despite the European Parliament having reminded "the Commission and Member States of their obligations under the UN Convention on the Rights of Persons with Disabilities to take all appropriate measures to ensure that people with disabilities enjoy access to cultural materials in accessible formats, and to ensure that laws protecting IPR do not constitute an unreasonable or discriminatory barrier to access by people with disabilities to cultural materials". The EU, and a few countries of Group B, including the United States, have been slowly bleeding this treaty to death through over-legislation and bureaucracy.

The United States' and EU's stand on technological protection measures, if accepted, would mean that publishers will technologically be able to prevent the blind from enjoying accessible works, even when they can't do so legally on the basis of copyright law. The European Union's stand on all issues has been extraordinarily harmful, and seems to have an aim to make this treaty as unwieldy and unworkable as possible. They seem to regard the Berne Appendix as their model in this regard: an international agreement that exists on paper for the benefit of developing countries, but because of its bureaucratic processes is little used, and is widely regarded as a failure.

Here is what it boils down to: when it comes to the economic rights of copyright owners, current international law insists that there be no formalities, yet when it comes to the human rights of visually impaired person to access information — a right specifically guaranteed to them under the UN Convention on the Rights of Persons with Disabilities — some delegates in this room wish to ensure as many formalities as possible.

The rights of the visually impaired are being buried under unnecessary and complicated requirements and bureaucratic practices. This injustice must stop: the delegates here have the power to do so. And if the EU does not wish to be viewed as villains by all persons with print disabilities and all persons with conscience, it should stop trying to make this an ineffectual treaty. Many have quipped that this is fast becoming "A Treaty for Rightholders Against Persons with Visual Impairments and Print Disabilities" or alternatively "A Treaty for Morally Impaired Persons and Persons with Ethical Disabilities". That is an international shame.

Having colonized much of the world into using English, French, and Spanish, these European countries along with the USA are now in a position to be both culturally dominant and to refuse to sign up to this treaty if it helps blind persons outside of the EU and the USA who seek access to texts in these languages. These remnants of colonialism must be stamped out.

For more details visit https://cis-india.org/a2k/blogs/cis-intervention-eu-blocking-wipo-treaty-for-blind