Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

11 June 2010

DRM and other Implications of the Copyright (Amendment) Bill

Thus far, there have been no provisions in the Indian Copyright Act, 1957 which deal with Digital Rights Management (DRM). The Copyright (Amendment) Bill, 2010 is, however, poised to change this: it includes three sections [viz. Sections 2(xa), 65A and 65B] which deal with DRM.

DRM is basically an umbrella term which includes any technology used (by a copyright owner) to restrict / allow access to and use of works protected by copyright which are embodied in media such as CDs or communicated to the public by digital means. In its most generic sense, Digital Rights Management refers to a system which is used to control access to, and possibly, the use of copyrighted works through technological means. It can broadly be classified into Rights Management Information (RMI) and Technological Protection Measures (TPMs).

The provisions in the in the Copyright (Amendment) Bill which deal with DRM are soporific. And to the average person, they seem to mean nothing. They are, nonetheless, provisions which are industry-oriented. They could control the locations (i.e. countries) in which a copyrighted work is enjoyed — consider a DVD of a film which is playable in just one continent. The could control the formats in which a work can be enjoyed — they could prevent a consumer from changing a song from .wav to MP3. They could limit the number of copies which may be made of a work — so a consumer may not be able to buy one copy of a Music CD and copy it on to his laptop, desktop, notebook, and MP3 player.

DRM goes beyond establishing respect for the territorial divisions of rights on which many copyright industries thrive whether it be with respect to Internet streaming of TV shows or country-specific editions of books. TPMs and RMIs can be used to try to ensure not just that consumers use copies of copyrighted works in a legal manner but also that they comply with what may be far more stringent requirements unilaterally imposed by copyright owners.

Some people are remarkably well versed with the proposals to amend Indian copyright law, and understand the implications which, frankly, is more than I claim to do. There are also, however, those who are horrified by what some of the implications of the Copyright (Amendment) Bill, if it were passed in its current form, would be but simply do not understand how the possible consequences of the passing of the Bill in its current form would arise. The problem is that since these provisions are shrouded in the language of the law, they quite simply do not automatically make the connection between a proposed amendment and its possible consequences. That in itself isn’t altogether surprising given that the Copyright (Amendment) Bill has taken most people by surprise, and the Bill itself, exists, with reference to clarity, not in black and white but in the entire spectrum of shades of grey.

Much has been said about the implications of the proposed amendments for the film industry. However, there are a number of provisions in the Bill which, for whatever reason, have not been in the limelight. A few examples are:
  • The amendment if the definition of an “infringing copy” [Section 2(m)]
Technically, India would, without doubt, follow a principle of international exhaustion of rights with respect to copyright. Practically this could:
(a) disincentivise publishers from making available Low Priced Editions of academic texts which many students and researchers in India rely on;
(b) turn India into a dumping ground for foreign editions of books which remain unsold abroad. This would harm both the Indian publisher whose market share would be eaten into, and the author since he would not generally receive any royalty in respect of remainders.
  • Relinquishment of Copyright [Section 21]
Copyright may be relinquished by a Notice to the Registrar or by a Public Notice in a newspaper. Whichever route a person uses to relinquish his copyright, the Registrar must post the Notice on the website of the Copyright Office. Without requiring the person who relinquishes copyright to inform the Registrar, this places an extra, onerous burden on the Registrar to scan newspapers everyday looking for Public Notices through which copyright has been relinquished.
  • Attribution of a Licence [Section 30]
Under the current law, a licensor must sign a licence agreement through which he intends to licence copyright. This is not the case under the Amendment Bill. The current law states that the licence must be “in writing signed” by the licensor, but the amendment only requires that the licence agreement be “in writing”. It isn’t clear what this means, and one can only hope that it does not mean that it would be possible for anyone to claim that an unsigned document is a valid licence agreement.

The Bill aims to make the Indian Copyright Act compliant with the WCT and the WPPT. Although it isn’t clear why Indian law should be compliant with these WIPO treaties. After all, the country has made no commitment to abide by them.

True, India is routinely denounced in the annual Special 301 Reports of the Office of the United States Trade Representative pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (enacted in 1994) which “reviews of the global state of intellectual property rights (IPR) protection and enforcement”. These reports have, however, been a running joke and countries like Canada refuse to recognise the 301 watch list process.

On the other hand, the current Indian Copyright Act has been rated at No. 1 in terms of consumer friendliness by Consumers International. It is unclear why it would be advisible to do anything which would change this.

What is, in a way, most frightening about the Copyright Amendment Bill is that there are provisions in it which could significantly affect consumer use and access to copyrighted works. A large fraction of consumers are, however, unaware of the the implications of the Bill.

Also See:
1. Technological Protection Measures in the Copyright (Amendment) Bill, 2010 by Pranesh Prakash

(This post is by Nandita Saikia and was first published at LawMatters.in.)

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