Developing countries have traditionally understood copyright as an area of both commercial and cultural regulation, and indeed, many of them have emphasized the cultural benefits that may be gained from effective copyright policies. In contrast to this approach, the TRIPS Agreement has brought a new commercial emphasis to intellectual property at the international level. In the area of copyright, the focus of the Agreement is on the development of “copyright industries,” including “cultural industries.” At the same time, aspects of copyright law, which are perceived to be primarily cultural in nature are treated with disfavour, and even suspicion, under the TRIPS scheme.
Copyright Policy in India
Like most developing countries, India faces two fundamental challenges in the area of copyright law. First, Indian copyright law must promote the widest possible access to information and knowledge. The Indian public requires access to copyright works, both foreign and domestic, for scientific, educational, cultural, and intellectual development. The broad availability of information and knowledge is essential, not only for industrial growth, but also, for the promotion of literacy, in the broadest sense of the word.
Secondly, Indian copyright law must provide a favourable regulatory environment for the ongoing development of creative endeavours within India. Copyright law can help to promote artistic and intellectual activities within India. It can also contribute to the protection and publicizing of India’s existing cultural heritage. In order to accomplish this objective, Indian copyright law must successfully accommodate a range of interests associated with the great diversity of Indian cultural expression, whether in ancient or modern times.
In their pioneering study of different copyright systems around the world, Ploman and Hamilton draw attention to these features of the Indian cultural scene – cultural traits that are characteristic of many developing countries, but especially prominent in the Indian context.
They observe: “There is…a great variety of expression from the most traditional to the most modern. This mixture and juxtaposition of the traditional and the modern would by itself pose a number of specific copyright problems. At the same time, the development needs of the country require access to and wide dissemination of intellectual works, particularly scientific and technical. As a result, India’s attitude towards intellectual property rights has to take into account the need to promote and encourage indigenous creation of expression in both the traditional and the modern sector, and also to provide for an active public role in the widespread dissemination of intellectual property. Indian copyright policy might therefore be seen as founded on two basic principles: encouragement of authorship through protective copyright, and provision of safeguards against undue barriers to the exploitation of works.” In a more general sense, the dissemination of knowledge and the provision of adequate “incentives to create” are universally recognized as two fundamental objectives of copyright policy. However, these two policy goals are often considered to be in conflict, while effective copyright laws are in search of an equitable balance between them. Copyright law in developing countries requires a somewhat different conceptual orientation: it becomes necessary to consider the ways in which the two basic objectives of copyright policy, rather than being in competition, can also be understood as two aspects of a single goal. It is apparent that authors have an interest in the broad dissemination of their ideas, and in securing their own access, for creative purposes, to the intellectual and artistic work of others. At the same time, the public has an important interest in maintaining the best possible quality of information and knowledge in society, by promoting the accuracy and reliability of reproductions and adaptations, and encouraging an attitude of respect towards intellectual endeavour. In practice, how can these policy objectives be made to work together effectively? This is the pragmatic problem, which Indian copyright law attempts to address.
Copyright law in India, as in many developing countries, faces the additional problem of enforcement. The costs associated with litigation, and the time involved in obtaining an authoritative judicial decision, are major obstacles to the effectiveness of the courts in resulting copyright disputes. At the same time, the governments of developing countries represent a great concentration of power and resources, and they often become the ultimate authority, de facto, on cultural issues. While the government may have special powers and abilities in relation to cultural matters, official corruption and the capacity for violence may also have a damaging impact on the cultural sphere.
Indian copyright law attempts to take into consideration the special powers and abilities of the government in relation to cultural matters, as well as its special duty of care. A consideration of Indian jurisprudence in this area reveals a strong and growing awareness among Indian judges of the special role of government in relation to intellectual property. As Ploman and Hamilton observe: “Distinguishing Indian law from European and Anglo-American legislation are several provisions that, under certain circumstances, allow the government to play an active role in encouraging the exploitation of needed intellectual property.” Finally, it is worth noting that the relative power of cultural industries may stand in stark contrast to the relatively weak position of the individual author in developing societies. For example, the Indian film industry is a wealthy and powerful force for any author to confront – a deciding factor in the seminal Indian moral rights case of Mannu Bhandari v Kala Vikas Pictures.
The problem of “literary theft” has long been recognized in Indian culture. Its widespread occurrence is documented in writing as early as the seventh century. It has been the subject of both complaint and investigation by Indian poets and aesthetic philosophers. For example, Anandavardhana, a ninth-century poet, undertakes a detailed analysis of the phenomenon: he identifies three distinct categories of theft, with only the last of the three, the “similarity between two individuals” being “permissible” conduct for authors. Moreover, in Indian tradition, the author was believed to have rights and interests in his ideas which were equivalent to his interests in the final work, the position that is drastically different from Western copyright tradition. As Krishnamurti points out, plagiarism in tenth-century India was defined as “an appropriation by a writer of words and ideas – I emphasize, and ideas – from the work of another and passing them off as his own.”
Legal Approach to “Literary Theft”
In spite of the relatively common occurrence of literary theft, the problem was never dealt with by legal authors as a matter of law. Rather, in ancient India, literary appropriation was a theme explored by philosophers and poets. Nevertheless, the Indian cultural tradition includes a particularly rich and highly developed legal tradition, based on Sanskrit texts and treatises on law. Why, then, were the problems of appropriation and exploitation faced by literary and artistic authors not considered by ancient legal scholars?
This puzzling situation could have been due to a number of factors. The absence of authors’ rights, interests, and obligations from the ambit of the law in traditional Indian society suggests that it was somehow not considered to be appropriate to deal with these issues as matters of law, at all. Indeed, it is commonly believed by Western scholars that the traditions of the developing world do not recognize the issues, which flow from the appropriation of literary and artistic works to be legal problems. This analysis often leads to the conclusion that the misappropriation of literary and artistic work has historically been tolerated in developing societies. However, this perspective is basically flawed. On the contrary, developing societies are keenly aware of the value of knowledge in all its forms, often, like India, in highly sophisticated terms. However, the way in which these interests are recognized and protected depends on the cultural environment. As Gana observes:“[T]he mistaken premise of [United States] negotiations with China and…with most other developing countries is that these countries lack intellectual property laws. A cursory study of indigenous approaches to the protection of intellectual goods reveals that most cultures recognized the material value engendered by the results of intellectual labour. The way that value is protected, however, differs significantly from what modern categories of intellectual property laws provide.”
With respect to India, Krishnamurti points out that the absence of discussion among legal authors of issues arising from the misappropriation of knowledge is clearly a matter of culture. In keeping with Indian tradition, Krishnamurti identifies the value of “dharma,” which may be very loosely translated into English as “duty,” as the basic ethos of Indian civilization. Society at large, and the creators of artistic and intellectual works in particular, have mutual obligations towards each other. The structure of Indian society reflects this basic understanding of the role of art and artists, in such a way that it has not been necessary for Indian thinkers to attempt to concretize this relationship according to the conventions of written law. As Krishnamurti points out: “It was the duty of the State and the people to look after the authors. That one side might stray from its duty or its obligations was not considered sufficient justification for the other to give up its duty.”
The Relationship between Artists and Society
Krishnamurti limits his discussion of the impact of culture on concepts of “copyright” to dharma. However, the Indian social ethos surrounding art played a key role in defining the status of authors’ rights in ancient Indian society. Hindu thought, in particular, attributes a value to art beyond the purely “aesthetic,” in the sense of the enjoyment of beauty. Rather, artistic expression is an expression of metaphysical values. The Hindu view of art implies a certain understanding of the relationship between artists and the society in which they live. The functions of the artist are recognized as serving a concrete social purpose, and stand in some contrast to the potential elitism and emptiness of purpose in the modern affirmation that art’s ultimate value lies in its “uselessness.” As Pandit observes:“[T] he true nature and purpose of art… is [as] a means of relating human life to the creative cosmic life, to the essential vitality and movement which underlies the universal system. The artist discovers this universal creative process by an actual participation and essential identity of experience.” This view of art implies a focus on the work rather than the artist. In a subtler way, rather than the physical object per se that is produced by the artist, the experience inspired by the work represents the essence of artistic achievement. Seen from this aesthetic perspective, it is clear why the Indian concept of appropriation may have extended to ideas. At the same time, it is worth noting that the protection of expressions and ideas occurred through artistic and social conventions, arguably a distinctive form of “law” in themselves.
As Coomaraswamy observes: “Themes are repeated from generation to generation and pass from one country to another; neither is originality a virtue nor “plagiarism” a crime, where all that counts is the necessity inherent in the theme. The artist as maker, is a personality much greater than that of any conceivable individual; the names of even the greatest artists are unknown.” Indeed, a closer examination of the Indian view of law reveals that authors’ rights and obligations did, in fact, amount to a matter of “law” within the meaning of this term in traditional Indian society.
The traditional concept of law, like the Indian conception of “intellectual property,” was more wide-ranging and comprehensive than the modern, Western understanding of the bounds of the legal arena. Modern and traditional societies diverge widely in their understanding of the place of culture in society, both in relation to cultural heritage, and the intellectuals, artists, and craftsmen who create it. Law, in the form of legislation, adjudication, and social custom, is an embodiment of these relationships. The relationship between artists and society has traditionally been one of mutual dependence and, potentially, mutual suspicion. Artists play a fundamental role in developing social values, since their works are essentially reflections of the societies in which they were produced. Both the laudatory and the critical aspects of artists’ work are of value to society. At the same time, artists are dependent on society to value their work and to participate in it as audience, spectator, and critic. In one form or another, law inevitably has an important role to play in mediating the relationship between artists and society. It accomplishes this function in a number of ways, from allowing censorship to protect society from the excesses of the arts, to recognizing the right of artists to express their ideas beyond the normal reach of social mores and public acceptability.
In Western society, legislation and case law in an adversarial context reflect the traditional tensions in the relationship between artists and society. In contrast, the role of artists in traditional cultures is somewhat different, due to a degree of common awareness of the social needs fulfilled by the arts, and recognition of the social value of the artistic function. As Pandit points out: “The traditional Indian theory of art assumes an integral relation between art and society…. The point of difference between this approach… and other art theories lies basically in its refusal to isolate art from human purposes and to make a distinction between the utilitarian and the beautiful…. To seek for art a function away from society and to try and create beauty without meaning and utility is to reduce art to a mere superficiality. By introducing art to serious living, the quality of disciplined spontaneity and organized pleasure is brought to everyday life and work is transformed from drudgery into a creative fulfilment. The primary function of art in society is to effect this transformation and thereby to help integrate the social order.”
Perhaps as a result of this difference in the perception of the relationship between artists and society, traditional cultures, including those with a long tradition of written law such as India, often maintain a degree of flexibility and informality in their systems of law, particularly in relation to the arts. Notably, social custom and traditional rules are an important source of “law” relating to the arts in these societies. Pandit observes:“As a tangible phenomen[on], art is subject to the laws and rules of society, and its making is not merely an occasion for aesthetic contemplation, but does something for human needs…. [T]he outward restrictions imposed upon the artist are not designed to stultify and choke him, but rather to provide the guidelines within the framework of which he can achieve a more profound expression. The goal of art is not a vagrant spontaneity but a disciplined expression. Freedom in art as in any other human activity is achieved, when the universal principles are understood by the subject so completely that their manifestation in a specific form becomes effortless and spontaneous.”
Indigenous Theories of Copyright
A brief consideration of pre-colonial theories of the arts, creative endeavour, and the nature of creators’ rights in their creation reveals a number of divergences from modern copyright concepts. Copyright law reflects the historic rise of individualistic theories of creativity, characteristic of romantic ideals of authorship and original genius. The close link between the romantic concept of authorship and the ever-increasing possibilities for public access to knowledge during the eighteenth century lies at the heart of the historical development of the arts as professional fields. Copyright law reflects the individual author’s attempt to secure both economic returns and social status from his work, by controlling the conditions of its dissemination.
In a culture, which did not conceive of the author in primarily economic and professional terms, however, the problem of misappropriation of knowledge was dealt with as a matter of ethics, custom, and convention. The focus of thinking on “intellectual property” was the work, rather than the identity of the author, allowing flexibility and diversity in the development of artistic and literary forms. This conceptual orientation may well have provided an environment favourable to the development of diverse forms of authorship, such as group and community authorship.
Interestingly, these considerations also demonstrate some interesting similarities between modern ideas of copyright and Indian cultural traditions. Notably, moral rights, which emphasize the integrity of artistic and literary works and the preservation of an accurate historical context for these works share, perhaps paradoxically, the fundamental cultural concerns of Indian tradition. This may also be the case in other developing countries which share the Indian cultural mix of individualistic and community values. This juxtaposition of values may also be at the heart of the extensive acceptance of moral rights in the Indian context, especially by the judiciary.
Indian judges are well aware of the difficulties of situating a modern framework for copyright protection in Indian tradition, and at the same time, of the necessity of doing so for the establishment of viable legal and social practice. India’s ambivalence towards copyright concepts is pointed out by Ramaiah, who offers contrasting quotations from two
Indian courts on the judicial approach to copyright. While the High Court of Madras stated, in 1959 that “India was and continues to be a member of the Copyright Union and in that sense the conception of copyright is not repugnant to her ideas,” a Bombay court later determined that, “if historically some roots of this legislation are to be found in English statutes, they may be cited [only] as an aid to thinking.”
Modern copyright law developed in India gradually, in what we may identify roughly as three distinct phases spanning more than 150 years. This section attempts to briefly navigate through the major changes brought in by each successive wave of copyright amendment which have cumulatively resulted in the way Indian Copyright law stands today.
Phase I: East India Company Statute
Copyright law entered India in 1847 through an enactment during the East India Company’s regime. According to the 1847 enactment, the term of copyright was for the lifetime of the author plus seven years post-mortem. But in no case could the total term of copyright exceed a period of forty-two years. The government could grant a compulsory licence to publish a book if the owner of copyright, upon the death of the author, refused to allow its publication. The act of infringement comprised in a person’s unauthorized printing of a copyright work for (or as a part of attempt of) “sale hire, or exportation”, or “for selling, publishing or exposing to sale or hire”. Suit or action for infringement was to be instituted in the “highest local court exercising original civil jurisdiction.” The Act provided specifically that under a contract of service copyright in “any encyclopaedia, review, magazine, periodical work or work published in a series of books or parts” shall vest in the “proprietor, projector, publisher or conductor.” Infringing copies were deemed to be copies of the proprietor of copyrighted work. Importantly, unlike today, copyright in a work was not automatic. Registration of copyright with the Home Office was mandatory for the enforcement of rights under the Act. However, the Act also specifically reserved the subsistence of copyright in the author, and his right to sue for its infringement to the extent available in law other than the 1847 Act.
As we shall see, this reservation of other “copyright-type” laws was done away with in later legislations.
At the time of its introduction in India, copyright law had already been under development in Britain for over a century and the provisions of the 1847 enactment reflected the learnings from deliberations during this period. Thus, in it’s very first avatar, copyright had arrived in India as a modern law that was both abstract (encompassing “all works” of literature and art) and forward looking (in the way that it sought to accommodate both existing and new forms of subject matter). As a result, many of the philosophical debates over the nature of ‘literary property’ that had animated the initial years of copyright development in Britain were conspicuous by their absence in the sub-continent.
On the precise manner that the 1847 enactment operated, very little is known. However this enactment created the conceptual milieu that eased the passage of succeeding legislations.
Phase II – Copyright Act 1914
In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most portions of the United Kingdom Copyright Act of 1911 to India. It did, however, make a few minor modifications. Baxi identifies two of the major changes; “First, it introduced criminal sanctions for copyright infringement (sections 7 to 12). Second, it modified the scope of the term of copyright; under section 4 the “sole right” of the author to “produce, reproduce, perform or publish a translation of the work shall subsist only for a period of ten years from the date of the first publication of the work.” The author, however, retained her “sole rights” if within the period of ten years she published or authorised publication of her work a translation in any language in respect of that language.”
Vesting violations or property rights with criminal sanctions can probably be understood as a part of general colonial legal and political policies which sought to protect the right to property over rights to personal freedom. The modification of term of copyright for translation rights however cannot be explained by any reference to dominant characteristics of colonial policy. The language of the Act might suggest a laudable policy objective of promoting wider diffusion of Indian works in one language into other Indian languages, a consideration which might have appeared distinctive to India as compared with the United Kingdom. There might also have been the desire to promote the growth of the publication industry in numerous Indian languages. But whatever the intention, the impact was disadvantageous to the authors and a boon to publishers.
The 1914 Act was continued with minor adaptations and modifications till the 1957 Act was brought into force on 24 January 1958 – very shortly after the attainment of independence.
This phase of copyright law generated some important “classical” decisions on the law of copyright. Simultaneously, however, it also sowed the seeds of a trend that Baxi terms as “a juristic dependencia” – the tendency of Indian judicial decisions as well as forensic styles relying excessively on United Kingdom precedents. On the impact of this trend, he notes:
“The heavy hand of UK law still lies on Indian creative works despite the reformulation of the law in 1957. Judicial interpretation is perhaps most heavily influenced by UK precedents in the area of copyright law than in any other. The slavish imitation of foreign precedents has occasionally led intrepid Indian justices to remind the Bar and the Bench that the 1957 Act is made by “a sovereign legislature of this land” and its interpretation “must be based upon the object of the legislation and the language used” and that the “historical roots” of the Indian law in the UK law of copyright should have no higher function than that of providing an “aid to thinking.”
Phase III – Post Independence
Independent India accorded high priority to formulation of her own law on copyright. The Indian Copyright Act 1957 (“the 1957 Act”) repealed the Indian Copyright Act 1914 (“the 1914 Act”) which had virtually incorporated the whole of the Imperial Copyright Act 1911. The revision of the 1914 Act occurred within a mere seven years of Independence.
A number of factors, according to Baxi, impelled this early revision. First, it was clear that continued existence of the 1911 Act through the 1914 Act was unbecoming to “the changed constitutional status of India.” Second, the 1914 Act did not accord with the 1948 Brussels Act of the Berne Convention and the 1952 Universal Copyright Convention
– chiefly in the much longer terms that the Berne Convention mandated. Third, new “and advanced method of communications” rendered modernisation of the law necessary. Fourth, the need for an “independent self-contained law” was also felt in the light of the experience of the “working” of the 1911 Act, and more important, of “the growing public consciousness of the rights and obligations of the authors.”
It is a long forgotten fact of history that the Copyright Bill, 1956, as introduced into Parliament would have curtailed the rights of copyright owners to the point of obviating continued membership of the Berne Convention. The intervention of the film and music industries, more than anything else, ensured the retention of Berne standards in the statute as eventually enacted.
To aid them in this task of indigenisation, the Indian legislators appointed a “Select Committee” to propose a model Copyright Act. The Committee appears to have consulted “the report of the English Copyright Committee, the models provided by the relevant international conventions; they received evidence from twelve organisations, including the International Confederation of Societies of Authors and Composers (Paris), the Performing Right Society (London), British Copyright Council and the Columbia Gramophone Company Ltd. The Report of the Select Committee, says Baxi “appears to be among the briefest in the annals of the Indian Parliament but, in many senses, it made major innovations which were ultimately enacted.”
One of the key legacies of the Committee’s Report, for instance, was the abolition of registration as a pre-condition for infringement proceedings. Another significant area where the new Indian Copyright Act parted ways from the UK Act was in its omission of sections contained in the latter providingfor“gratuitous”supplyof booksto designated libraries.
Three sets of ancillary amendments succeeded the 1957 Act. In 1983, several new sections were introduced into the act. Sections 32A and 32B provided for ‘compulsory licences’ for publication of copyrighted foreign works in any Indian language for the purposes of systematic instructional activities at a “low price” with the permission of the Copyright Board on certain conditions.
The other crucial change was the insertion of section 19A, relating to the conferral of power in the Copyright Board, upon a due complaint to it, to order revocation of the assigned copyright where either the terms are ‘harsh’ or where the publication of the work is unduly delayed. In addition the 1983 Amendment provides for power in the Copyright Board to publish unpublished Indian works, and for the protection of ‘oral works.’ The amendment made it mandatory for the copyright office to publish details of all copyright registrations in the Gazettte of India. Lastly, the amendment disallowed the importation of an ‘infringing copy’ of a copyright work for ‘private and domestic use’ which had been permissible prior to the amendment.
Subsequently, after a gap of a decade, sweeping changes were introduced through an amendment in 1994. These included:
- The increase of the term of copyright from fifty years post mortem to sixty years; -The extension of copyright to new types of works including computer programmes and performances;
- The redefinition of “communication to the public” so that a work is communicated “regardless of whether any member of the public actually sees, hears or otherwise enjoys the work”;
- An overhaul of the vocabulary employed in the Act, for instance – substituting ‘broadcast’ for ‘radio diffusion’, ‘work of architecture’ in the place of ‘architectural work’, ‘sound recording’ in the place of ‘record’;
- Clarification of the ownership of copyrights over public speeches and works by public undertakings.
In 1999, certain sections relating to international broadcasting rights were inserted into the Act, along with stipulations enhancing the fair dealing rights of users of computer programmes – these permitted the “doing of any act necessary” to obtain information essential for the interoperability of computer programmes, and also permitting the making of personal copies and adaptations of computer programmes if they were legally obtained. Thus the history of the Indian Copyright act is characterised by a tendency to expand commodification of culture while at the same time constricting access to it.
Thus, while originally focused solely on the written work, copyright has been extended over the years to include maps, artwork, music, phonographic records (and later audio tapes and now CDs), photographs, and, most recently, computer software and databases. From being a right acquired only through registration, copyright was made an automatic right that inhered in any “work” the instant such work was created. Further, performers and broadcast organisations have been accorded special rights in excess of copyright over other kinds of works. The term of copyright has been extended repeatedly, most recently in 1991 when it was extended by a period of ten years, bringing the total term of protection for a work to sixty years post mortem.
SCOPE OF PROTECTION IN INDIA
Consistent with most regimes internationally, the nucleus of copyright protection in India is the copyrightable ‘work’ which is classified into three categories:
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a sound recording;
Apart from these “traditional” works of copyright, the Indian Copyright Act also grants exclusive rights in Broadcasts and Performances. The Act grants different bundles of exclusive rights to different categories of works and for different durations. These rights are available automatically and works do not need to be registered in order to acquire copyright protection.
However under the Indian Copyright Act, there is no clarity on exactly how a “reproduction” right is different from a “right to copy” or how the exclusive right to “issue copies to the public” differs from the right to “communicate to the public”. While there is a need for greater clarity and possibly uniformity in the vocabulary employed, this must not be rushed into since the variance in terminologies may also potentially serve as a source of freedoms. For instance, one could hypothetically argue that one can “make copies” of a literary work as long as one is not “reproducing it in material form”. This is assuming that the two phrases in fact indicate protection of different qualities.
Another feature of the Indian Copyright Act is the fact that Cinematographs and Sound Recordings have not been granted exclusive rights of adaptation. Thus, under the Indian scheme, producers enjoy the freedom to adapt – “any use of such work involving its rearrangement or alteration” – other cinematographs or sound recordings. This freedom is not granted by virtue of a fair-dealing exception but through a threshold exception in the rights conferred on copyright.
Copyrights normally vest in the “authors” of “original” works, although where the work is made “in course of employment”, the employer is, in the absence of an agreement to the contrary, deemed to be the first owner of the copyright. Similarly “Government works” or works made or published under the direction of a public sector undertaking are deemed to be the property of the Government or the public sector undertaking as the case may be. Consistent with practice worldwide, originality does not mean the expression of original or inventive thought, but with the expression of thought in print and writing. It must be original in the sense that it embodies the original labours of the author. Ideas are not susceptible to copyright, much less “common source ideas”. As one case points out, “In modern complex society, provisions have to be made for protecting every man’s copyright whether big or small, whether involving a high degree of originality, as in a new poem or a picture, or only originality at the vanishing point as in a law report.”
Different terms are assigned for different classes of works although they are either for periods of 60 years after the death of the author or for a fixed duration of 60 years from the year following creation. Once the natural term of a copyright expires, the work passes into the public domain and is free for anyone to appropriate.
Copyrights may be assigned by licence or outright sale and in the latter case must be done in writing. Relinquishment of copyright is not easy and requires a written intimation to the Registrar of Copyrights of one’s intention to abandon one’s copyrights.
In addition to the various exclusive rights outlined above, authors are granted “special rights” under the Indian Copyright Act:to claim authorship of the work; and to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.
These special rights are “independent of the author’s copyright” and even survive the assignment of the copyright in whole or partially. Currently “Performers” do not enjoy these special rights, although the amendment to the Indian Copyright Act has been proposed to redress this lacuna.
In July 2006, the Ministry of Human Resource Development invited comments on a draft of proposed amendments to the Copyright Act. Some of the proposals exempting non-profit institutions and libraries from the ambit of infringing activities are extremely salutary. On the other hand proposals to enhance the duration of protection over photographs appear fairly regressive. The ambit of the exclusive right to reproduce literary, dramatic and musical works has been extended to include their electronic embodiments. This is expressly directed at clamping down on the easy movement of copyright materials between computers. One of the most controversial proposed amendments is the inclusion of Digital Millenium Copyright Act-type anti-circumvention provisions which make it a criminal offence to interfere with “technological measures” of protection or to remove any “Rights Management Information” that has been applied to a work by the owner.
The purpose for such introduction in the Indian copyright laws has been to “keep pace with national and international developments and advance in technologies,” a purpose which is over simplified and undermines the complex debate which surrounds the introduction of these measures in the most developed countries. A technological measure which is not only still in the evolutionary stages but the policy itself is being reviewed by various countries, particularly USA, which spearheaded the introduction of such rights in the realm of international law. The proposed introduction of such provisions in the Indian copyright system in spite of the fact that India not being a signatory to the World Copyright treaties, is not under any obligation to introduce such changes, particularly, at this stage of Indian socio-economic development when digital technology can play a vital role in the developmental process. The rationale behind the introduction of these provisions in Indian law is rather obscure but if it intends to tackle the escalating problem of piracy, then such introduction requires a better analysis in the light of the manner in which these provisions came into existence in the realm of international as well as other national legislations and what has been the consequent development following adoption of such provisions. The legislative provisions already adopted in US and are intended to be adopted in India without providing any value judgment as to their utility or effects in India.
In India, one may presume like copyright industries in U.S., of which Hollywood is an important segment, Bollywood is a significant copyright industry, a presumption which is relevant only since 1998 when it was given an industry status in terms of production. In terms of the numbers of productions, the Bollywood is the biggest industry producing over 1000 films a year. There are no concrete figures as to what is the total contribution of the copyright industries in the Indian economy except that the Executive Summary of FICCI, 2006 reports that Indian Entertainment and Media industry is worth 353 billion INR which is expected to grow 19% over next five years; the motion picture industry is about 19% of the total E&M market and 42% is TV. The market is big and attractive enough for foreign capital and the government has allowed up to 100% Foreign Direct Investment equity in film production, exhibition and distribution. Motion Pictures Association of America has earned about $44 million in 2006. This has also attracted some of the Hollywood industries such as Sony, Universal and Fox Corporations in Indian market.
The market for film exports and overseas rights for Bollywood films has grown to INR 10 billion by 2006. Notably, it is not only the Indian Diaspora which constitute the customers in the overseas markets but it is also people of other Asian descent, Arabian descent and even African descent who are big consumers of these movies. Notably, the industry has gained popularity in certain European countries other than UK such as Germany, Denmark, Holland, and even China. Most often, the dubbed version of these movies are screened in TV as well as theatres. UK, of all the overseas market, is the biggest market, largely due to greatest number of British Asian population and also the number of screens showing the movies. This apart, USA, Canada, Middle East countries such as UAE, Bahrain, Qatar, also constitute for a significant consumer base of the Bollywood movies added with African countries and other former British colonies with people of Indian and Asian origin also account for this consumption.
The above figures would prompt one to believe that Bollywood, like Hollywood, forms a strong lobby in shaping the copyright laws in India and is therefore a stakeholder in initiating the proposed amendments. However, unlike Hollywood, the studio system, baring few prominent production houses, is almost non-existent in Bollywood since post1950s which explains the absence of any Hollywood style oligopolistic corporation with vertical integrations in production distribution- exhibition in the Indian motion picture business. This aspect of Bollywood also explains the lack of initiative for lobbying for copyright reforms in India by the members of this unintegrated sector. The trend has changed in recent years particularly after government has announced industry status for film production and a few of the production houses such Yashraj Film Corporation, Rajshri Productions Ltd., Adlbas films, UTV and Times Group have engaged themselves in the debate surrounding copyright reforms. However, a very large number of production houses still remain indifferent to these measures.
A study was conducted by National Productivity Council (NPC) sponsored by Department of Education, Ministry of Human Resource Development, Government of India to study the issue of piracy in India. The study shows that the piracy in India is worth £ 41 million(USD 82 million) consisting of 23% of total sales of recorded copyright products which is about 4% of world trade 40 Value of Indian Rupees: 1£=Rs.85; 1$=Rs.45. The Gross box office collection for 2006 was around Rs.95 billion. Compared to this the 2001 figures were Rs. 72 billion of which overseas rights constituted more than Rs. 5 billion and music rights 1.5 billion. One of the major markets are overseas markets which account for about 25-30% of the proceeds and was estimated to about 10 Billion in 2006.
India has been under a constant diplomatic pressure, particularly from U.S. to improve its IP regime and continues to be so as U.S. copyright industries suffered loss of $496 million in India due to piracy. India is strongly recommended ‘to adopt amendments to the copyright law that correct deficiencies and properly implement all the obligations of the WIPO Internet Treaties (WCT and WPPT), including protection for temporary copies; adequate and effective protection against the circumvention of technological protection measures.’
Therefore, the actual stakeholders who are lobbying to change the copyright legislation in India is not Bollywood but the same monopolistic Hollywood entertainment studios who lobbied to shape the WIPO internet treaties and succeeded in tilting the balance in favour of copyright owners.
The entry of the Hollywood studios may have repercussions beyond the copyright laws and may eventually spell the doom for Bollywood.
In Indian context, the other important stakeholders in the proposed amendments are IT/ ITeS companies, both Indian and foreign who constitute a major block to which the proposed DRM changes would matter. The DRM technologies themselves are owned by a few non-Indian and mostly U.S. or European companies, of which Sony, Philips, Microsoft and Panasonic are a few which have considerable market presence in India. However, the DRMs are themselves inhibitory against the IT companies engaged in software research. These technologies once acquired by the studios and music companies, may be enforced against the IT companies to prevent any circumvention for the research purposes. The proposed provisions prevent anti-circumvention activities, however, they make an exception for research in encryption technologies and this is perhaps would be beneficial for the Indian IT/ITeS companies particularly when unlike DMCA provisions, they do not prevent access to content.
However, it would be important to take into account the caution by the U.K.-based Commission on Intellectual Property Rights:
“For developing countries, where Internet connectivity is limited and subscriptions to online resources unaffordable, [anti-circumvention legislation] may exclude access to these materials altogether and impose a heavy burden that will delay the participation of those countries in the global knowledge-based society…. [W]e consider that, if anything, the costs of getting the IP system “wrong” in a developing country are likely to be far higher than in developed countries. Most developed countries have sophisticated systems of competition regulation to ensure that abuses of any monopoly rights cannot unduly affect the public interest. In the US and the EU, for example, these regimes are particularly strong and well-established. In most developing countries this is far from being case. This makes such countries particularly vulnerable to inappropriate intellectual property systems.”
Copyright laws as they stand in India today, ominously lean towards the developed world partiality for protecting private interest over the promotion of societal welfare. Keeping in mind the nature of the Indian Republic which is a welfare state and the mandate of the Constituion which requires that there must be socio economic justice and equality of opportunity, India cannot adopt the copyright regime in its current form as inherited from the colonial regime. Rather, it is necessary for India to develop a sui generis system of for governing copyrights that strikes a balance between the constitutional mandate of socio economic justice and need for promotion of arts and sciences.
Legal scholar and Professor of Law in Development at the University of Warwick, United Kingdom, Upendra Baxi argues that the constitutional imagination of India is premised on a history of violence and sharp inequalities. In India, the birth of the constitution was preceded by the experience of colonialism and the violence of partition. In other words, in India, the constitution emerged as a text of hope against a traumatic past, and the constitution was not merely a liberal document of governance, but a promissory note for a more just and equitable future. Baxi terms these as “transformative constitutions” whose responsibility to history is documented in the kind of promises made in chapters of the rights of individuals, as well as in the recognition of collective rights.
The framers of our Constitution intended for India to be, not a capitalist but a socialist economy, where the welfare of the people would be paramount. The Preamble to the Constitution introduces India as a “socialist” Republic. The Supreme Court of India, while interpreting the word “socialist” has held that the term “socialist” read with Article 14 of the Constitution of India, empowers the Court to strike down a statute, which fails to achieve the socialist goals to the fullest extent. The idea of “socialism” as contained in the Preamble is also accompanied by the concept of “social justice”. The expression “social and economic justice” involves the concept of “distributive justice which connotes the removal of economic inequalities and rectification of injustice caused by transactions between unequal’s in society.
Article 38 of the Constitution of India enjoins the State to strive to promote the welfare of the people by securing and protecting a social order in which justice- social, economic and political shall inform all the institutions of national life striving to minimise the inequalities in income and endeavour to minimise inequalities in status, facilities and opportunities. “Copyright creates proprietary rights over information. These proprietary rights restrict the free flow of information. This would in effect create inequality of a new kind and split the population into two groups i.e. information poor versus the information rich.” The copyright regime in its current form would thus create disparities which are “in essence old forms of inequalities patterned around the ownership of productive forces.”
Sub clause (b) of Article 39 of the Constitution of India provides that “ The State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.” The Supreme Court of India had held that the expression “material good” used in the sub clause (b) of Article 39 is wide enough to include not only natural or physical resources but also movable and immovable property.
Given the socio economic conditions in India, the adoption of the copyright regime in its current form, would establish a new class of socially and economically disparate people who are also unequal in their possession of information, which is essential for economic growth and prosperity.
The establishment of the Berne convention and the TRIPS agreement has meant the establishment of a common global standard of copyright. And yet, we see that India has had a different history of copyright development, both in the doctrinal level as well as in the real-world experience of how copyright has played out in these countries. At the doctrinal level, there exists differences in the treatment of rights; the ways in which India has made use of exceptions and limitations within its copyright statutes and the judicial interpretations that have taken place. At the level of the real-world experience of copyright, India has a distinct history of enforcement or non-enforcement, distinct institutional experiences of copyright reform as well as unique experiences of activism around access to knowledge and culture.
India having inherited a colonial copyright system, is facing similar challenges with regards to restrictions that copyright places on them in trying to service the education, health and innovation needs of her population. India being a key country in Asia and as such, has a potential to set the groundwork for more visionary policy-making in the future.
As suggested by Lawrence Liang, rather than accepting a “one size fits all” approach advocated by WIPO, we can leverage on the experience of India to argue for an approach towards copyright that is sensitive to the differential need of the country and the transformative countries as a whole. It is further important to reiterate that larger normative
commitments should animate our discussion of copyright and public interest. India, marked by a sharp distinction between the constitutional elite who enjoy all the privileges of a global knowledge economy, and a constitutional underclass who are left out of the imagination of the information economy is a complicated matrix of realities, which defy any neat and easy definitions such as developed, and developing, global north and south.
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