Make full use of RTI

Make full use of RTI

Make full use of RTI

BALWINDER SINGH IN THE HINDU

The Right to Information Act (RTI) is a path-breaking law which empowers ordinary citizens to obtain the required information from the public authorities. This is also a major tool for preventing and fighting corruption. The media have been highlighting from time to time the positive work being done by RTI activists. But the experience in the last few years reveals that implementation of the Act has got distorted.

Section 4 is the cornerstone of the Act. It stipulates that “it shall be the constant endeavour of every public authority to provide as much information suo motu to the public at regular intervals through means of communication, including internet so that the public have minimum resort to the use of this Act to obtain information.” The Act goes to the extent of identifying certain specific areas of information which the authorities have to publish in the public domain within 120 days of the enactment.

This critical aspect of the RTI Act has not received the attention it deserves from the authorities, the Central and State Information Commissions or even RTI activists. This has led to the burdening of government organisations as well as the Central and State Information Commissions with a large number of individual applications seeking information and filing appeals, clogging the system. The Information Commissions will soon reach a stage where pending matters will take years for disposal, thus making the system dysfunctional. Every public authority, especially those having a large public interface, needs to take up the challenge of fully implementing Section 4 at the earliest.

Computerisation of government records is not merely a process of conversion of manual records. The challenge lies in re-engineering the business processes and then computerising the records in such a manner that it simultaneously leads to improvement in the efficiency of the organisation and maximising the availability of information in the public domain in formats which are useful to the general public or the stakeholders. While there is no explicit mention of the role of the CIC and the State Information Commissions in this regard, it is inherent in the very scheme of the Act that the Information Commissions have to play a pivotal role in ensuring that Section 4 on maximising information in the public domain is complied with. The Information Commissions can take the cue from the directions issued by the Central Vigilance Commission (CVC) in November, 2006.

This author conceptualised and drafted the relevant circular of the CVC which gave directions to all government organisations to provide complete information on their websites on the laws, procedures governing the issue of licence, permission, clearance, etc., and also make known the stage of applications from public or business entities when they are seeking such permissions, clearances, NOCs, licences, building plans and passports from the public authorities. He prepared an illustrative list of 16 areas where information is to be necessarily displayed in the public domain; three of these are as follows:

Land & building related issues

-Applications for mutation, conversion from leasehold to freehold of lands and buildings, approval of building plans by municipal authorities and the land owning regulating agencies like the MCD, the DDA, the NDMC, the L&DO and similar agencies in other Union Territories;

-Application for registration deeds by Sub-Registrars/Registrars and other applications connected with land record management;

-Application for allotment of land/flats, etc., by urban development agencies like the DDA.

Contracts & Procurement

-Applications for registration of contractors/suppliers/consultants/vendors, etc.

-Status of all bill payments to contractors/suppliers, etc.

Transport sector

Issue of driving licences, registration of vehicles, fitness certificates, release of impounded vehicles, etc. by the RTAs.

The same exercise can be carried forward by the Central as well as State Information Commissions. If the Information Commissions construe their responsibilities in a very narrow manner and take a view that they can only act on complaints, then civil society, the chambers of industries and commerce and RTI activists can lodge complaints wherever maximum possible information has not been placed in the public domain on websites or otherwise and the Information Commissions can issue directions to the public authorities in this regard.

The full potential of the RTI Act can be realised only by maximising information in the public domain. This would not only further the cause of right to information but also upgrade and modernise the working of government agencies, thus improving governance.

(The author is Special Director of the CBI and his email id is sbalwinder@yahoo.com)

http://www.thehindu.com/opinion/open-page/article2442483.ece

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The Copyright Amendment Bill 2010: on the death of books and the digital environment

WIPO emblem.

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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.

Copyright law

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.

Encryption techniques

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.)

http://www.thehindu.com/opinion/op-ed/article2156475.ece

On different notes

Srikrishna Rajagopal in THE INDIAN EXPRESS

The contribution of writers and music composers to Indian cinema cannot be overestimated. However, due to unremitting exploitation by film producers and record companies, they have seldom had the opportunity to truly benefit from the value they have consistently brought to films. Now, a well-intended amendment to the country’s copyright law seeks to address the situation.

However, the amendments proposed to protect writers and music composers may further undermine their ability to negotiate new forms of exploitation of their works. Over the last few years, several new revenue opportunities have arisen with respect to film songs such as their use in ringtones. Although one might imagine that the writers and composers instrumental in the creation of film songs would be able to benefit from these new revenue opportunities, film producers and record companies have systematically ensured that they are denied their fair share.

By way of background, film producers and record companies succeeded in marginalising writers and composers by interpreting a Supreme Court judgment rendered in the IPRS case in 1977. The owner of copyright in a film is the producer of the film. In the IPRS case, the Supreme Court held that when music composers or lyric writers write music to be used in a film, they are in fact making a part of the film, and consequently the producer is the owner of copyright. The decision was based on the definition of “cinematographic film” that prevailed under the Copyright Act 1957 at the time. Pertinently, “cinematographic film” was defined to include the “soundtrack” accompanying the film. The court held that since the music composition and lyrics contribute to the soundtrack of the film, and the soundtrack is an integral part of the film, the producer is the owner of copyright in the music and lyrics.

Significantly, in 1994, the act was amended and the definition of “cinematographic” film changed so that it included only the accompanying “sound recording”. Consequently, musical compositions and lyrics which are treated as “musical works” and “literary works” respectively, under the act, could no longer be treated as integral to the film. In other words, after the 1994 amendment, in the absence of a contract to the contrary, a music composer or lyric writer merely gave a producer a licence to use/ incorporate the music compositions/ lyrics as part of the film and no other rights. All other forms of exploitation of the musical works and lyrics such as use as ringtones, public performance of the music in hotels, discos, etc, were retained by the music composers/ lyric writers, in their capacity as the authors/ creators.

The producers and record companies saw in the 1977 judgment of the Supreme Court an opportunity to deprive music composers and lyric writers of their share in revenues generated out of alternative steams of exploitation of their works. Unfortunately, there was no occasion for a court to revisit the decision of the Supreme Court in the IPRS case in the light of the 1994 amendment to the act, resulting in music composers and lyric writers having no choice but to accept the position of the producers and record companies.

The proposed amendments to the act seek to retain ownership of copyright in favour of the music composers and lyric writers so that producers will have only obtained a permission to use the music and lyrics in the film. However, the amendments may have the unintended consequence of further undermining the rights of music composers/ lyric writers. The amendments ought to have just clarified that music composers/ lyric writers retain all rights of exploitation of their works unless they have specifically assigned their rights to the producer. Instead, the proposed amendments merely give the music composer/ lyric writer the right to claim royalties in respect of exploitation of their works other than in respect of making a film. The amendments merely seek to prohibit any agreement by virtue of which a music composer/ lyric writer assigns the right to receive royalties. Pertinently, there appears to be no bar on the ability of a music composer/ lyric writer to assign copyrights in favour of a producer or any third party in respect of exploitation of his/ her works in any other form. If the proposed amendments were to become law, this could result in an anomalous and peculiar situation.

For example, a mobile company which seeks to exploit a particular film song for mobile ringtones may need to pay the producer (who may be the assignee of all copyrights in respect of the music) and also pay the music composer/ lyric writer royalties. In a situation where a composer/ lyric writer alone has been paid royalties, the producer as owner of copyright may also stake a claim. It is not clear whether the law contemplates in what manner and proportion the producer and the music composer/ lyric writer would share royalties. The proposed amendments will only result in having to additionally pay the music composer/ lyric writer, with the producer being in a position to independently assert his/ her rights.

A simpler way of protecting music composers/ lyric writers would perhaps be for the law to just clarify that they continue to retain all rights of exploitation unless these rights have been specifically assigned to the producer. If the law were to be amended to simply clarify this position, music composers and lyric writers in this country would be placed in a considerable position of strength to negotiate commercial terms. One can only hope that the Copyright Committee constituted for this purpose addresses important issues such as these rather than bicker over whose contribution to cinema is more important.

The writer is a Delhi-based intellectual property litigator

http://www.indianexpress.com/news/on-different-notes/582081/0