APARNA VISWANATHAN IN THE HINDU
The Copyright (Amendment) Bill 2010, approved by the Union Cabinet on December 24, 2009, and introduced in the Rajya Sabha on April 19, 2010, sparked great controversy for a number of reasons. First, in an unusual departure from the British legal tradition, inspired by French and German law, the Bill proposes guaranteed royalties for lyricists/composers for the commercial exploitation of their songs. Anticipating that these new rights will force producers to share 50 per cent of royalties with lyricists and composers, these proposals were simultaneously welcomed by the former and condemned by the film industry. Second, the Bill introduces the parallel importation of books in accordance with Article 6 of the Trade Related Intellectual Property Rights (TRIPS) Agreement — a provision intended to provide readers in developing countries with books at cheaper prices but which, ironically, in India has been heralded by publishers as the death of books or at least the death of Indian publishing.
Section 2(m) of the Copyright Act, 1957 defines the expression “infringing copy” as a reproduction of a literary work. The Bill proposes to add the following proviso: “provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country into India shall not be deemed to be an infringing copy.” The impact of this proviso is as follows. Currently, an Indian publisher has to enter into a license agreement with the owner of the Indian copyright in a foreign work (usually the foreign publisher) which authorises him to publish the work in India. If the proviso is added to section 2(m), the Indian publisher can buy the book abroad and freely import it and re-sell it in India without obtaining a license from the owner of the Indian copyright in the work — a practice called parallel importation. It is important to note that the book still has to be legally purchased from the foreign publisher and re-sold in India and cannot just be illegally copied or imported into India.
Allowing parallel importation only liberalises the distribution of books after the first sale of the work and does not affect the copyright holder’s exclusive right to make the first sale of the work. Parallel importation takes into the international context the “first sale doctrine” in copyright law which provides that, after the first sale of the work, the copyright is exhausted and the copyright owner cannot prevent re-sale of the work.
Indian publishers oppose allowing parallel importation of books on the grounds that foreign publishers will stop licensing cheap Indian editions of their work to Indian publishers leading to rise in book prices in India. Further, if licensing ends, Indian publishers will have no incentive to invest in the marketing and promotion of books. In its report on the Copyright Amendment Bill 2010, the Department-Related Parliamentary Standing Committee on Human Resource Development disagreed and found that the present practice of publishing books under a territorial license results in very high prices of books and the low priced books are confined to old editions. However, notably, no empirical evidence was discussed by the Parliamentary Standing Committee in its Report before arriving at this conclusion. If it is true that the “cheap Indian editions” are limited to outdated works, then clearly the Parliamentary Standing Committee was correct in recommending the introduction of parallel imports and Indian publishers are only decrying the loss of their comfortable “license raj” and the introduction of competition through parallel imports.
While the foregoing controversies have attracted a lot of press, little attention has been paid to the fact that the Bill also seeks to modernise copyright law in view of the challenges raised by the new digital environment and the internet which has been described by the World Intellectual Property Organisation (WIPO) as “the world’s biggest copy machine.” While the older technologies of photocopying and taping were expensive, time-consuming and produced copies of lower quality than the original, the internet enables one to make instantaneous copies of the same quality. Earlier, copies had to be individually faxed or couriered to each recipient. Today, an unlimited number of copies can be distributed instantaneously around the world with the click of a mouse. Copyright law, therefore, has to rise to the challenge of how to protect the rights of authors of works published on the internet.
According to the Bill, the answer lies in the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which address the challenge posed to the protection of copyright arising from dissemination of works over the internet. Curiously, even though India is not a signatory to either of these treaties which entered into force in 2002 and also refused WIPO’s call to sign the treaties in July 2008, the Bill seeks to conform Indian law to these “Internet Treaties.”
The first legal principle enshrined in the WCT and the WPPT is that existing rights will continue to apply in the digital environment. In other words, copyright holders will continue to be protected by copyright when their works are published on the internet. This principle is implicit in section 14 of the existing Copyright Act while not expressly stated.
The second legal principle of the WCT and WPPT is the “anti-circumvention provisions” which are intended to ensure that copyright holders can effectively use technology to protect their rights and to license their works online by, for example, using encryption technology, access control devices and copy control devices to protect their copyrighted works from cyber criminals hacking into passwords and illegally reproducing their works.
The second prong of the anti-circumvention provisions in the WCT/WPPT requires countries to prohibit the deliberate alteration or deletion of electronic “rights management information,” that is, information which accompanies any protected material and which identifies the work, its creators, performer or owner and the terms and conditions for its use. The Bill seeks to introduce both of these two prongs of the “anti-circumvention provisions” into the Copyright Act through the new sections 64A and 65B. The new section 65A(1) provides that any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by the Act with the intention of infringing such rights shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
Interestingly, the Bill does not follow the approach of the Digital Millennium Copyright Act (DMCA) which incorporated the “anti-circumvention provisions” of the WCT into U.S. law in 1998 as it does not distinguish between technological measures which prevent unauthorised access to a copyrighted work and measures that prevent unauthorised copying of a copyrighted work. The DMCA only prohibits the circumvention of the access control measures and not the copy control measures because copying of a work may be fair use under appropriate circumstances. Moreover, the DMCA creates a civil right of action, in addition to criminal remedies, and any person injured by the circumvention of the technological measures intended to protect his rights can seek monetary damages against the offender in U.S. Federal Court. The Bill, however, fails to give copyright holders a right of action and provides only for criminal remedies.
The main objective of the proposed section 65A is to enable authors of copyrighted works to use encryption techniques in order to protect their copyrighted works against unauthorised dissemination on the internet. However, Indian law, in any case, severely restricts the use of encryption technology by providing that DoT approval is required for use of encryption levels higher than the outdated 40-key bit length. Today, 128-256-key bit length is required to protect communications from interception.
In sum, the Copyright Amendment Bill 2010 bravely takes socially progressive steps intended to ensure that lyricists and composers get a fair share of royalties and that Indians will have access to recent editions of foreign works at reasonable prices. However, in order to modernise Indian copyright law, the Bill has to go beyond only copying the provisions of the WCT and WPPT and should incorporate the provisions necessary to ensure that authors have the access to encryption and other technological means to protect their works published on the internet from hacking and can enforce those rights in the courts.
(Aparna Viswanathan is with Viswanathan & Co., Advocates, New Delhi, Bangalore and Chennai.)