Removing fear

The private member’s Bill aimed at protecting literary freedom from threats is welcome

Literary freedom is taken for granted in democracies, but forces that threaten or undermine it are always at work. Each age has to fight the battle afresh. In recent times, several attempts to get books withdrawn, pulped or sanitised of offending content have achieved full or partial success in India. Wendy Doniger’s The Hindus: An Alternative History was withdrawn from circulation, and A.K. Ramanujan’s essay ‘Three Hundred Ramayanas’ was dropped from a Delhi University syllabus. Tamil writer Perumal Murugan’s Madhorubagan was withdrawn by the author under mob pressure but resurrected by a Madras High Court verdict. Public order, national unity and social or religious harmony are the principles commonly invoked against the practice of literary freedom. Threats to free expression, especially artistic freedom, in our times mainly come from those claiming to espouse the interests of a particular religion or social group. It is in this context that Shashi Tharoor, Congress MP and writer, has introduced a private member’s Bill in the Lok Sabha seeking to protect freedom of literature. Its objective — that “authors must be guaranteed the freedom to express their work without fear of punitive action by the State or by sections of society” — commends itself to any society that upholds liberal values. It seeks the omission of three IPC sections, including 295A, in effect a non-denominational blasphemy law, as it targets deliberate or malicious acts to outrage religious feelings.

Section 295A is a grossly misused section, often invoked in trivial ways to hound individuals, harass writers and curtail free expression. It deserves to be scrapped. Sections that relate to the sale of obscene books and uttering words that hurt religious feelings are also sought to be omitted. However, it is unclear why Section 153A, which punishes those who promote enmity between groups on grounds of religion, race or language, and Section 153B, which criminalises words and imputations prejudicial to national integration, do not draw Mr. Tharoor’s attention. In the process of proscribing a book, he proposes a tweak in the form of a 15-day prohibition. Thereafter, the onus should be on the State government to approach the High Court to seek a permanent ban. It favours the scrapping of the provision in the Customs Act to ban the import of books, but makes a public order exception. It wants to limit the bar on obscenity in the Information Technology Act to child pornography. Private Bills rarely become law, but they are useful in highlighting gaps in the body of law. Seen in this light, Mr. Tharoor’s initiative is most welcome as a step towards removing or diluting penal provisions that inhibit literary freedom.

Source: The Hindu, 7/01/2019

Censoring online content is not easy any more

But the danger of allowing ingress to nationally critical sectors, like telecommunications, to countries that are not friendly must now be a matter of immediate national concern

The debate on whether or not to censor information has been going on for centuries. The term ‘censor’ in Roman times originally referred to the function of special magistrates assigned to supervise public morals and, so long as this remained the remit, the norms governing society provided the guidelines. But as governments, which have for eons used censorship as an instrument to control the flow of information to its citizens, expanded the definition of censorship to help them combat, for example, the spread of seditious ideas, attempts to fan communalism and the spread of terrorism, the debate has become more complex.

Governments have, over time, used different methodologies and, in some cases, including in democracies, their objective was often to prevent the flow and dissemination of ideas that could be inconvenient to those in authority. None of these efforts, despite short periods of gain, succeeded. The fine line between censorship and restricting content that offended society, however, got progressively blurred with citizens, including creative sections of society, accusing governments of violating their fundamental rights guaranteed by the Constitution. The other powerful argument against censorship is that it inhibits access to knowledge and stunts innovation.

At the same time, governments today are confronted with complex situations where threats to human life and society have got magnified. This is more the case when a country is flanked by hostile neighbours. In India, for example, terrorism and threats posed by hostile elements intent on creating communal violence challenge the resources of the government. These have the advantage of surprise and, often, anonymity. The government’s objective of preventing violence or spread of terror necessitates the monitoring and tracking of communications to detect terrorists and their plans and prevent situations from spiralling out of control.

Authoritarian and repressive states have traditionally focused on establishing strong and effective internal security services to control their populace and retain their monopoly on power. They use censorship to control what information can be accessed by their populace and augment that with propaganda. The rapid advances, especially in the last two decades, in telecommunications technology has intertwined interception, hacking of the Internet and censorship. Undoubtedly, in this process, privacy is eroded. Even authoritarian governments like the People’s Republic of China, who have invested huge amounts in the instruments of control, including Big Data, and have achieved a measure of success in censoring the Internet, have not been entirely successful. Hackers and information technology specialists have found ways through the Great Firewall and their citizens continue to find new ways to circumvent state controls.

With the evolution of technology, censorship is increasingly moving from the realm of print to cyberspace. Censoring the Internet or hacking communications — or for that matter even the mobile telephone — will become increasingly difficult with the refinement of encryption services. Some private service providers even today claim that they are unable to access content passing through their systems. This technology has made it difficult for government agencies to monitor or censor content without the collaboration of private telecommunication companies. The existence of multiple channels of communication and sophisticated software to defeat normal methods of interception or hacking have added to the security of communications systems.

The advent of Quantum technology has placed the telecommunications industry on the cusp of tectonic change. At least two new studies state that recent experiments with Chinese and European satellites have the brought the prospects of a space-based almost unhackable Quantum Internet closer to reality. Work has begun on a Quantum Internet using hardware based in space. Communications will be encrypted end-to-end and the channels of transmission, and, therefore, content, will not be vulnerable to interception. It is possible to envisage that within years the public Internet will be space-based. In other words, communications will flow directly from mobile handsets to transponders in satellites. Data will be stored on the cloud where the two biggest service providers are American and Chinese — Google and China’s Alibaba. With the close linkage between Alibaba and China’s security apparatus, the latter will retain access to data stored on the cloud. So will the US, but other countries who lack the software and hardware capabilities will be severely handicapped.

In addition to the danger of unauthorised access to information, this technology opens the possibility of other countries intercepting and censoring content that will increasingly be carried over Internet. The danger of allowing ingress to nationally critical sectors, like telecommunications, to countries that are not friendly must now be a matter of immediate national concern.

Source: Hindustan Times, 17/11/2018

Publishers withdraw copyright suit against DU

Established in 1998, the Rameshwari photocopy shop is a favourite among students to photocopy study material.

In a major relief to Delhi University-based photocopy shop Rameshwari, the group of international book publishers — Oxford University Press, Cambridge University Press and Taylor and Francis — who filed an infringement copyright suit against the shop withdrew the case on Thursday.

“We have taken a considered decision not to pursue the Delhi University photocopy shop case further in the courts and will be filing an application with the Delhi High Court to withdraw as plaintiffs,” the triad said in a joint statement.

Established in 1998, the Rameshwari photocopy shop is a favourite among students to photocopy study material. “This is a big relief for us. Now, we can serve the students, who can’t afford expensive books, without any fear,” said Dharampal Singh, the owner.

The publishers had filed a case against the shop in August 2012 for selling photocopies of parts of their books to students. The Delhi High Court, however, on December 9, 2016, allowed the shop to photocopy the copyrighted material for educational use under the Indian Copyright law and there was no restriction on how much the book is copied.

On Thursday, the publishers also said that they will submit an appeal to the Supreme Court of India, following the Delhi High Court Bench appeal decision on December 9, 2016.

Counting the five-year-long struggle, Singh said, “Before December 9, we used to say refuse unknown people who would come to us for photostats of international books. You cannot identify who is a student, or who is just scrutinising”.

“This development can be seen as a back-step by the publishers in the fear of losing the legal battle. Anyway, we are really happy that the shop can now serve us without any fear,” said Saurabh, a third-year student at Delhi School of Economics (DSE).

Besides, the publishers said that they now want to work “more closely with academic institutions, teachers, and students to understand and address their needs”.

Source: DNA. 10-03-2017

Play the new copyright act

Singers, composers are denied their due as music companies profiteer

 

A historic milestone was achieved in the Indian copyrights regime in 2012 during the tenure of Manmohan Singh, when Parliament extensively amended the Copyright Act, 1957, by making provisions that a portion of the earnings realised by music companies and film producers from the sale of film songs and other related materials will go to a corpus fund, which will be distributed among song writers, singers and music composers. The objective was to introduce a level playing field for different stakeholders in the music, film and other creative industries, eliminating unequal treatment to lyricists and music composers of copyrighted works.
But when I recently met Lata Mangeshkar in Mumbai, I was appalled to know that she is yet to get any payment under the amended Act; it is yet to be implemented. Finance Minister Arun Jaitley was present and assured Lataji that the government will implement this very soon.
Looking in-depth yields surprises. Several music companies have purchased copyrights of songs. There are more than 500 television channels in India, besides FM radio channels; every time these television or radio channels play a song, they pay these music companies who have purchased copyrights of the songs. In this way, the music companies earn hundreds of crores, from which they share a small portion with the film producers, making a huge profit from the rest. When Javed Akhtar became a Rajya Sabha Member, he took this issue to Parliament and appealed to the then-UPA government to suitably amend the copyright act so that lyricists, singers and composers can get their share and all the earnings don’t go to music companies. Javed Akhtar in fact took a vow that he wouldn’t speak in Parliament unless this legislation was passed; it was, despite stiff resistance from the music companies. As parliamentary affairs minister, I also made an effort for the passage of the legislation and ultimately, it became a reality. The new Act brought the Indian copyright regime in sync with technological advances and prevailing international standards. But the amendments did not go down well with music companies and producers. There is the strong hand of the Indian Performing Right Society (IPRS) behind non-implementation of the legislation. It seems there are many music companies behind this organisation; decades ago, they got an order from a court in Barasat and are now creating hurdles in implementation under the garb of this court order. When action was initiated against these companies by the Enforcement Directorate and Economic Offences Wing, they blinked and tried to meet Javed Akhtar for a compromise. No compromise has been reached but the hope is that some formula will be devised within a month or so.
Now, the question is, will the music companies give lyricists, singers and composers their share of the money they have earned during the last three years, after the new copyright act was enacted?
Even now, songs sung by Lata Mangeshkar, Mohd Rafi, Asha Bhosle, Kishore Kumar, etc., are on our lips. They still mesmerise millions around the world. Given that, I feel even sadder to think that we failed to ensure the dues to which these artistes are genuinely entitled. Next year, the 88-year-old Lataji will complete 75 years of her singing career. She started in 1942; the first song “Aayega aane wala” that became a huge hit was recorded in 1948. She was promised Rs 400 for this song — which she is yet to get.
Back then, neither singers, nor composers were given credit rolls or awards. Lataji says giving credit rolls to singers and composers started with “Barsat ki raat” by Raj Kapoor. With time, these artistes became popular across households, often through All India Radio, Vividh Bharati and Radio Ceylon. But despite that, today, senior singers and musicians live in a pitiable condition. Shamshad Begum even died, lacking vital treatment. The eminent poet Sahir Ludhianvi lived a miserable life. After his death, his flat was sold by his housing society; his manuscripts and awards were also sold by the society to scrap dealers. Lataji lives in a simple Pedder Road flat, her furniture witness to her frugal living.

The situation has changed now. Today, singers like Mika Singh earn more than what Mohd Rafi or Mukesh got. Javed Akhtar’s battle culminated in the new copyright act.
If this act is not implemented because of hurdles created by music companies, it is erroneous. All stakeholders, including artistes, composers and broadcasters, should get their dues. Artistes should get their share from television, radio and internet broadcast too. The present government should immediately implement the act, for which it will be blessed by senior artists who have been, and are still, contributing to India’s cultural heritage.
 Written by Rajeev Shukla |

The author is a member of Parliament and former union minister. Views expressed are personal

 

Source: Indian Express, 20-1-2017

The essence of education

The Delhi High Court arrives at a harmonious reading of the copyright doctrine which will further the cause of education and equitable access. It could serve as a global model

The philosophical roots of copyright are grounded in striking a balance between an exclusive right granted to the owner of copyright along with the interest of the public in ensuring that works are available in the public domain. The division bench (Justices Pradeep Nandrajog and Yogesh Khanna) of the Delhi High Court in their judgment (arising out of the appeal against Justice Justice Rajiv Sahay Endlaw’s decision in the Delhi University photocopy case) have arrived at a harmonious reading of copyright doctrine which will further the cause of education and equitable access.

The jurisprudential backbone

Being cognisant of the fact that this case is keenly followed by many non-lawyers who may get lost within the thicket of technical legal arguments, the court towards the end of the judgment provides a helpful musical analogy which succinctly summarises the jurisprudential backbone of the judgment. Comparing a statute to a musical melody with different notes, the judge observes that just as a harmonious melody would require that for all notes to be heard, sometimes the more dominant ones (such as a loud drum) sometimes needs to be muted in order for other notes to be heard. Translated into the Copyright Act it is clear that if the predominant purpose of the law is to provide exclusive rights to owners of copyright, this right sometimes has to be muted to serve other equally important purposes such as education.

Rejecting the contention of the publishers and the IRRO (Indian Reprographic Rights Organisation) demanding a narrow reading of the word instruction the judges referred to the parliamentary debate which led to the enactment of Act No.27 of 2012 where the Minister piloting the Bill clearly told the House, “Of course, non-profit libraries should not be charged. Many of these copyrighted materials can be used, should be used and must be used in non-profit libraries.” Echoing the policy intentions of the legislature, the judges chose to ignore the technical distinctions sought to be made between education and instruction, and between textbooks and course packs and held that: “The importance of education lies in the fact that education alone is the foundation on which a progressive and prosperous society can be built. Teaching is an essential part of education, at least in the formative years, and perhaps till post-graduate level. It would be difficult for a human to educate herself without somebody: a teacher, helping. It is thus necessary, by whatever nomenclature we may call them, that development of knowledge modules, having the right content, to take care of the needs of the learner is encouraged. We may loosely call them textbooks. We may loosely call them guide books. We may loosely call them reference books. We may loosely call them course packs. So fundamental is education to a society — it warrants the promotion of equitable access to knowledge to all segments of the society, irrespective of their caste, creed and financial position. Of course, the more indigent the learner, the greater the responsibility to ensure equitable access” (Paragraph 30).

Principle of fairness

They clarify that fairness is an essential aspect of the statute especially when there is an exception being carved out of a person’s legal rights. But what is a principle of fairness? In a crucial paragraph the judges clearly state: “In the context of teaching and use of copyrighted material, the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’. In other words, the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education. It would have no concern with the extent of the material used, both qualitative or quantitative. The reason being, ‘to utilize’ means to make or render useful. To put it differently, so much of the copyrighted work can be fairly used which is necessary to effectuate the purpose of the use i.e. make the learner understand what is intended to be understood.”

The significance of this interpretation is that it explicitly rejects the adoption of American standards (the four factor test) into Indian copyright law and grounds the principle of fairness within a philosophy of education, rejecting any claim that there should be either a quantitative or a qualitative restriction imposed. The significance of not laying down any restriction will be best appreciated by anyone who has encountered higher education in any Western university where teachers and students face severe constraints because of quantitative restrictions which can have debilitating effects. Consider, for instance, a rule which says that not more than 10 per cent of a work can be reproduced for education. While the publishers have primarily advanced a single example in the entire case (namely the reproduction of chapters or books in course packs), if such a quantitative restriction were applied in the case of a poem, or a photograph it would have ridiculous consequences.

‘A publication’ contention

The court also rejected the contention of the publishers that Sec. 52 allows for reproduction of a work, but by making it available through photocopies it is no longer a reproduction but a publication. The court holds that publication has an element of profit (for instance, in mass publication), and neither does the use of a photocopy machine nor the use of an intermediary (a photocopier) qualify automatically as publication, and the only relevant test is whether copying is “in the course of instruction”. And the test to see whether copying is “in the course of instruction” involves “considering whether the inclusion of the copyrighted work in the course pack was justified by the purpose of the course pack i.e. for instructional use by the teacher to the class”, and hence it would be inaccurate to claim that the word reproduction is limited to a single copy.

One crucial difference between Justice Endlaw’s judgment and the present one is that while the former found absolutely no fact that was worthy of being tried since there was no prima facie infringement, in the present judgment the court has held that the specific question of whether the reproduction of full works are in the course of instruction is a matter that can be determined in a trial and has consequently remanded that issue back to a trial judge.

The judgment rightfully rejects the rather scandalous attempt by the publishers to lock education within a straitjacket of property, and it is befitting that the appellants who are the university presses of two of the oldest and most prestigious universities should be provided a reminder of what the scope of education is. The significance of this judgment is that while it arose out of a seemingly narrow question of whether the photocopying of course packs was allowed in the copyright law, this question could only be answered by returning copyright back to its normative foundations in education. It is important to remember that the very first copyright statute dating back to 1710, the Statute of Anne was called “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies”.

This is a very welcome judgment which has immense significance beyond India and could serve as a model for the interpretation of copyright statues in other countries which also face the challenge of sharp inequalities and high cost of learning materials.

 Source: The Hindu, 13-12-2016

Lawrence Liang is a professor of law at the School of Law, Governance and Citizenship, Ambedkar University Delhi.

Copying texts for study doesn't violate copyright'

Abhinav Garg

New Delhi:





Single-Judge HC Bench To Decide On Purpose And Utility

Students in Delhi University and nearby can continue to buy photocopy material of international textbooks sold by shops such as Rameshwari Photocopy Service, for now. The Delhi high court on Friday ruled that copying extracts of original material, including of those brought out by international publishers, is exempt from copyright claim as long as it is justified by the purpose for which it is used.“Purpose“ and “utility“ of the photocopied material (content of the extract and needs of curriculum) decide if there has been any violation or there has been “fair use“, a bench of Justices Pradeep Nandrajog and Yogesh Khanna held, sending the suit filed by Oxford University Press, Cambridge University Press and others against Rameshwari shop back to the single judge to conduct a trial on these parameters.
Batting for free knowledge as long as original work is not misused, the HC observed that “the law in India would not warrant an approach to answer the question by looking at whether the course pack has become a textbook, but by considering whether the inclusion of the copyrighted work in the course pack was justified by the purpose of the course pack i.e. for instructional use by the teacher to the class and this would warrant an analysis of the course pack with reference to the objective of the course, the course content and the list of suggested readings given by the teacher to the students.“
Friday's verdict means publishers will have to prove before the single judge that their original work is being copied and misused for commercial gain and not for use in course of instruction by teachers to pupils.
While restoring the suit lost by the publishers earlier, the division bench said it was “not inclined“ to grant interim stay to the foreign publishers but added that there are “triable issues“ involved in the lawsuit seeking to restrain the shop in the varsity campus from selling photocopies of textbooks.
To facilitate inquiry , the court ordered the photocopy shop to maintain a record of course packs photocopied by it and supplied to students and file a report in court every six months, disposing of the appeal filed by publishers and posting the matter for further proceedings before the single judge on January 4, 2017.
It also cited a 2012 report of a court-appointed local commissioner who found that entire textbooks had been copied and sold by the shopkeeper, not just extracts for course packs.
The publishers had appealed against the single judge or der allowing Rameshwari Photocopy Service to sell photocopies of their textbooks on the ground that copyright in literary works does not confer “absolute ownership“ to the authors.
But the larger bench diffe red, saying the legal issue revolves around interpretation of Section 52(1)(i) of the Copyright Act, 1957 as the photocopy shop and other defendants have admitted photocopying pages from the publications in different proportions.
It also disagreed with publishers' argument that DU is to be blamed for encouraging photocopy instead of stocking its library with purchased books. “Role of the university ends when its academic council lays down the course curriculum. Thereafter, the individual teacher or the teachers acting collectively for a particular degree course sit down and prescribe the relevant reading material to be read by the students keeping in view the objective of the course as per the curriculum,“ the HC noted.
“The next exercise done by the teacher or the teachers would require eclectic selection of reading material and this would be the copyrighted works. This would constitute the reading material for the pupils, to be used by the teacher in the class room in course of instruction,“ he added.

Source: Times of India, 10-12-2016

Copyright as exception

Free competition and access to knowledge have been the default legal norm for many a nation.

In a thought-provoking piece, Krishna Kumar, a former NCERT chairman, argues that the Delhi University (DU) copyright decision encourages students to merely photocopy and skirt the more laudable aim of reading full books.

Speaking from personal experience, I was educated at the National Law School, Bangalore on course packs, where readings from different authors were excerpted and presented to us. When I yearned for more, I simply went to the library and picked up the full book. That is what a course pack does, or at least is meant to do. It is not meant to extinguish one’s fire for learning, but to kindle it. If in practice, it does no such thing but simply inspires students to regurgitate, that is not the fault of course packs but of the instructional methodology and uninspiring teachers. Kumar is right to the extent that our educational ecosystem suffers from some of the worst pedagogical woes.

However, his implicit suggestion that reversing the recent copyright verdict in favour of publishers will remedy this malady suffers from a striking logical fallacy. Restricting the right to photocopy will not automatically swing students towards savouring full texts. In fact, publishers themselves are hoping for this photocopy culture to continue — the only difference is that in their commoditised world, these copies — each and every page — have to be paid for.

Publishers know all too well that students are not their market. Had it been otherwise, they would have priced the books much more affordably. In an empirical study conducted some years ago, we demonstrated that a number of legal and social science texts were prohibitively expensive. The latest editions were not often available in India. Rather publishers were content with dumping old outdated editions at lower prices in India. As for the latest editions, they had to be imported at considerable cost, often exceeding those charged in the western markets, home to many of these profiteering publishers.

Kumar bemoans the fact that publisher profits have taken a big hit and they deserved to have their coffers filled. But where is the data for this?

From a layman’s perspective, photocopying has been rampant for well over 30 years in India. This is the first such copyright suit to be brought against an Indian educational institution. Had photocopying really eaten into publisher revenues, would this industry have survived in India?

Couldn’t one argue that course packs pump up publisher revenues in the long run by popularising authors to students who may otherwise have never heard of them? Little wonder then that a great number of authors signed a joint petition — which was submitted to the court — supporting the stand of students in carving up this clear legal zone for copying without being assaulted by an overarching copyright norm. A wisdom echoed by the sensible Amartya Sen!

This law suit is not about any serious economic damage suffered by publishers. Rather, it’s an avaricious attempt to cash in on an additional revenue stream that publishers have been salivating over for years. In the meanwhile, the Indian Reprographic Rights Organisation went around warning universities of dire copyright consequences if they didn’t pay up. All of this while the law suit was being fought and DU was legitimately arguing that the copyright exception permits such copying.

But what’s the harm in permitting them this privilege, you might ask? After all, aren’t these just a few extra pennies for the photocopied pages? Wrong! These pennies will soon convert to pounds as the Canadian experience amply reveals, where licensing fees were jacked up over the years to unaffordable levels, forcing universities to walk out of their licensing arrangements.

Contrary to popular belief, this path-breaking ruling by the Delhi High Court does not provide a carte blanche for full text copying. Rather the only issue before the judge was whether the copying of excerpts from books for the purpose of creating and disseminating course packs is legal. The judge ruled that the law was clear on this point and it exempted course pack copying. If the language of the law needs change in the near future to accommodate the concerns of the publishers (that without this additional copyright tax, they will go down under), then that policy case will have to be empirically made out by publishers. Till then, as the judge rightly alludes to, educational access is the controlling norm and copyright the mere exception.

Tis’ as it should be: For free competition and access to knowledge has always been the default legal norm for many a nation, with a former US president going so far as to label intellectual property (IP) as an “embarrassment” to be suffered only for the larger “public benefit”.

Unfortunately, powerful IP lobbies have successfully reversed the burden of proof and framed a narrative to trump up IP as the controlling default norm, and any carve out (such as educational access) as an “exception”, to be be grudgingly granted only upon strict empirical validation.

Reversing the copyright verdict will not sway our students towards highly priced academic books; rather it will restrict learning even further by imposing an additional educational cess.

The writer is Honorary Research Chair Professor of IP Law at Nirma University and the founder of SpicyIP

Source: Indian Express, 19-10-2016

Copyright and copy-making

The Delhi High Court verdict that photocopying portions of academic publications to make course packs for students does not amount to copyright infringement has been interpreted by many as a victory for the wider public interest of ensuring affordable access to quality educational material. The only question of law that arose in the suit filed by Oxford University Press, Cambridge University Press and Taylor & Francis was whether the making of course packs by the Delhi University by authorising a photocopying store to make numerous copies of course material drawn from different books amounts to copyright infringement. The court says copyright is not a natural or common law right in India, but is subject to statute. It proceeds to hold that photocopying for academic purposes is not an infringement as Section 52(1)(i) of the Copyright Act permits the making of copies of literary works by a teacher or pupil ‘in the course of instruction’, a phrase interpreted to cover whole academic sessions, from the preparation of syllabus onwards.

Given that the law contains provisions barring infringement of copyright and listing acts that do not constitute infringement, there is no doubt that the legislature wanted to balance copyright protection with the public interest in ensuring access. Interestingly, the judge sees the ‘no infringement’ clauses as being consistent with articles in the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights, which provide for domestic legislation to permit reproductions for specific purposes, as long as they do not conflict with normal exploitation of the works or unreasonably prejudice the rights-holder. The publishers have argued, in vain, that universities should not allow unrestricted photocopying, but instead apply for licences through the Indian Reprographic Rights Organisation, a registered copyright society. The publishers may pursue this aspect in their appeal, if there is one. The verdict may justly raise the concern whether conferring unrestricted reprographic rights on academic institutions will drive reputed publishers out of the field of education. It is true that academic publications, especially international ones, are expensive, putting them beyond the reach of many students. But the question is whether the balance between the competing interests has been fully preserved in the law. If reputed publishers feel that there is insufficient copyright protection and back out of educational publishing in the country, it will be equally injurious to the public interest.

Keywords: copyright law, Delhi University photocopying case

Source: The Hindu, 21-09-2016

Right to photocopy

The clause lists cases where users are exempted from copyright infringement and includes teachers and students “in the course of the activities of an educational institution”.

Copyright is not absolute and nor should it be, according to the Delhi High Court. Last week, the court ruled against five prominent academic publishing houses including Oxford University Press, Cambridge University Press and Taylor & Francis, allowing Rameshwari Photocopy Services (based in the Delhi School of Economics) and Delhi University to make photocopied “course packs” of books and excerpts prescribed in the university’s syllabus. The decision is welcome — and also necessary.

The case goes back to 2012, when the publishers asked the court for a permanent injunction against the photocopy kiosk and Delhi University from making copies of works, citing the need to protect authors’ and publishers’ economic and creative rights. Almost immediately, students at the university formed the Association of Students for Equitable Access to Knowledge (ASEAK) to mount a legal and ideological defence of the photocopy shop and their right to access knowledge.

In March 2013, over 300 academics — many of whose works were on reading lists in Delhi University syllabi — wrote to the publishers asking them to withdraw the case and expressed solidarity with the students. The case came down to the court’s interpretation of Section 52(1)(i) of the Copyright Act, 1957. The clause lists cases where users are exempted from copyright infringement and includes teachers and students “in the course of the activities of an educational institution”. While the publishers insisted that this meant only teachers and students should be allowed to make copies, and not third parties like the photocopy shop or the university, the court disagreed. “Copyright,” the court said, “is meant to increase and not to impede the harvest of knowledge.”

It is true that copyright laws often protect the work and livelihood of authors, especially in cases of plagiarism and piracy. However, in a developing economy like India, neither economies of scale nor access justify the kind of enforcement of the law that the publishers were demanding. Academic works are usually prohibitively expensive in India and are bought by institutions and not individuals. There are usually a handful of copies of a prescribed text in university libraries — not nearly enough to meet the demand. In addition, most students cannot afford to buy their own copies. An educated workforce and citizenry is an essential need in a growing economy, especially one that is hungry for innovation. The court has, in this case, recognised that the protection of intellectual property needs to be balanced with social need.

Source: Indian Express, 20-09-2016

A blow for the right to knowledge

The Delhi High Court has restored to copyright jurisprudence a clear mandate for the future — one which recognises that the end goal of technology is the improvement of our lives

In its much awaited judgment in the Delhi University photocopying case (The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court has dismissed the copyright infringement petition initiated in August 2012 by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University. This case, which was being closely tracked by students, teachers and the publishing industry alike, was seen as one with immense significance for questions of access to knowledge. While initially involving only the publishers, the photocopier and the university, the case also saw intervention petitions being filed by a student group (Association of Students for Equitable Access to Knowledge) as well as by teachers and academics (Society for Promoting Educational Access and Knowledge). While the publishers made the argument that the creation of course packs and the photocopying of academic material for the same amounted to an infringement of the exclusive copyright of the authors and publishers, the defendants argued that the reproduction of materials for educational purposes fell within the exceptions to copyright under Section 52(1)(i) of the Copyright Act.

Not a moral right

In his considered and sharply reasoned judgment, Justice Rajiv Sahai Endlaw examines the gamut of arguments made by both sides and arrives at the conclusion that copyright is a statutory right and not a natural right, and hence any right that is granted to owners is also limited by exceptions carved out by law. The nature of Section 52 of the Copyright Act is such that any act falling within its scope will not constitute infringement. Section 52(1)(i) allows for the reproduction of any work i) by a teacher or a pupil in the course of instruction; or ii) as part of the questions to be answered in an examination; or iii) in answers to such questions.

The crux of the dispute was about whether course packs fall within this exception. The petitioners tried to provide a narrow reading of the section, claiming that at best what the section allows for is the provision of materials in the course of a lecture and spatially restricted to a classroom. The court, while rejecting this claim, argues that “instruction” cannot be narrowly understood and, through a historically informed reading of the phrase “in the course of”, concludes that instruction includes the entire ambit of pedagogy from the creation of syllabus to teaching and provision of reading materials.

It then locates the question of education within a changing technological environment, and argues that “when an action, if onerously done, is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified” (paragraph 75). To make this point, Justice Endlaw contrasts his own experiences as a law student where photocopying was very limited and studying entailed students copying by hand, scribe like, pages after pages of books. Photocopiers have just made the task simpler and faster, but if the act of copying for a particular purpose is itself not illegal, and “the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence”.

For progress

In a clear statement of the philosophical basis of copyright law, Justice Endlaw rejects the populist and unidimensional assumption that copyright is about the protection of the property rights of owners. He notes instead: “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.”

If copyright was always about maintaining a balance between competing ideas of private and public interest, the Delhi High Court has restored to copyright jurisprudence a clear mandate for the future, one which is cognisant that the end goal of technology is the improvement of our lives (material and intellectual) and “no law can be interpreted so as to result in any regression of the evolvement of the human being for the better” (paragraph 87).

Global implications

The judgment has immense consequences beyond India and is a bold articulation of the principles of equitable access to knowledge — and one that deserves to be emulated globally. For a while now, the globalisation of copyright norms through international law (Berne Convention, TRIPS Agreement) has been accompanied by the globalisation of copyright standards that have primarily emerged from the global north. Aggressively pushed by the copyright lobby, such as Hollywood, the music industry and the publishing cartels, copyright law had effectively been hijacked by narrow commercial interests (albeit always speaking in the name of authors and creators). Thus even when it came to discussing fair use and exceptions and limitations, countries have found themselves constrained by judicial precedents from the U.S. and elsewhere that have defined quantitative restrictions on photocopying.

In a radical move, the Delhi High Court has concluded that if Indian law makers have allowed through statute for the reproduction of a copyrighted work in the course of instruction, it has done so on the basis of purpose (teaching) and with the conviction that this does not unreasonably prejudice the legitimate interest of the author. Further, this flexibility is provided to it through international law, and it is not the place of courts to impose artificial restrictions by way of quantitative limits. Justice Endlaw, while arriving at this conclusion, is acutely aware of the specific needs of countries like India where libraries and universities have to cope with the needs of thousands of students simultaneously, and it would be naïve to expect every student to buy copies of every book.

An interesting question to consider is whether the judgment effectively makes a clear distinction between fair dealing on the one hand (which is subject to doctrinal tests such as the Three-Step test), and in the copyright act in India governs personal use including research versus a clear statutory exception for educational use. This aspect of the judgment could almost be read as an instructional manual for countries who find themselves straitjackets under international copyright laws, and yet want to ensure the greatest flexibility in the way that they design a system that addresses their specific needs.

How will publishers respond?

While this judgment delivers a terrible blow to the publishers, the crucial question is, how will they respond? Through the entire case the publishers have alienated the student and academic community, and while it is within their right to appeal the judgment, it may be both politically prudent and ethically right not to do so. Teacher, readers, students and photocopiers are not the enemies of publishers; they are their greatest allies. In a time when books and reading itself are under threat from competing media forms, it may be useful to remember that it is education and greater access that makes readers, not copyright.

Lawrence Liang is a professor of law at Ambedkar University, Delhi, currently teaching at Yale University.

Keywords: copyright law, Delhi University photocopying case

Source: The Hindu, 19-09-2016

Govt clarifies copyright act applies to digital streaming services

New Delhi: TIMES NEWS NETWORK





In a decision that will help music streaming services, the Department of Industrial Policy and Promotion (DIPP) has clarified that all forms of broadcasting -including digital music streaming -fall under section 31(D) of the Copyright Act of 2013.Section 31(D) of the Act offers statutory licensing (SL) to broadcasting services, allowing them the right to offer music to their consumers at rates determined by the Copyright Board. This provision was brought into the Act to protect broadcasters from abusive practices of some music companies, who demanded unreasonable and unjustifiable royalties before granting permissions. Though the wording of the clause was quite clear in the Act, music companies had tried to create an impression that the section didn't apply to digital music services. With this clarification, DIPP has clarified that section applies to all broadcasters including digital music services.
Commerce and industry Minister Nirmala Sitharaman told TOI that the process for setting up the Copyright Board is on. She did not elaborate on the timeframe. Setting up of the board has been pending for a few years, but the minister has initiated the process. Government's clarification will bring major relief to services such as Gaana and Saavn, and will encourage them to renew commitment to their struggling businesses. Dhingana, another service, which was acquired by global giant Pandora, was shut down after being unable to fund music royalties. Guvera, an Australian music streaming service operating in India, is also struggling to pay its creditors. In addition, FM radio broadcasters have been unable to develop presence on digital because of the high costs demanded by labels.When asked to comment, an ex pert from a global consultancy firm stated: “Music companies should actually be giving their music at a very low cost initially to encourage multiple music services, which would help not only in curbing piracy but also in increasing their revenues from multiple sources However music companies have been thinking short term and increasing rates prohibitively making legal music services unviable and leading many of them to close down“.
In digital streaming, most music services are losing money significantly . Their royalty payments have grown by over 500% in the last four years, with built-in minimum guarantees to the labels. Digital broadcasters' revenues, however, have grown modestly as the business is taking time to develop. Labels also restricted how their music was used, initially offering web but not mobile rights, limiting how consumers could consume content, and restricting what partnerships digital music services could use.
Commenting on the clarification, Prashan Agarwal, COO of Gaana, said, “The clarification that internet companies are covered under SL is welcome. However, there was never any doubt in our minds that we were covered. This clarification will help the streaming industry grow and catch up with its peers internationally“.
Industry body IAMAI also issued a statement: “The clarification will also provide a relief to the spiralling annual licence fee paid to label companies that sometimes exceeded the revenue of many these startups....this clarification by DIPP now creates a level-playing field as the provisions of section 31D are not restricted to radio and television broadcasting organizations only , but cover internet broadcasting organizations also“.
Commenting on behalf of radio broadcasters, Prashant Panday , CEO Radio Mirchi said “Worldwide, radio broadcasters have moved towards streaming their on-air products as well as offering niche online products. Here in India, the huge minimum guarantees demanded by labels have made that impossible. What we forget is that the biggest losers in all this are the artists, the ones who deserve all the support and recognition possible“.

Source: Times of India, 8-09-2016