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Legal Pulse (IP): Copyright Bill flawed; Permits cinema camcorder piracy, Fudges 'Right to Read'

Cinema piracy
Cinema piracy

Intellectual property lawyers have criticised provisions of the Copyright Amendment Bill 2010, which proposes to modernise the Copyright Act 1957 and was introduced in the Upper House by the Union Government yesterday.

The new draft primarily hopes to harmonise the existing Indian copyright laws with international standards set by various Treaties like the World Intellectual Property Organisation (WIPO) Internet Treaties, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).

The amendments are purported to lend clarity, remove operational difficulties and address the newer issues that have emerged in the context of digital technology and the internet in the sphere of copyrights.  

Yesterday’s draft was tabled in the Rajya Sabha after receiving the union cabinet’s approval to bring about changes suggested by the Ministry of Human Resource Development to the original legislation on 24 December 2009.

Several changes are sought to be made under categories such as amendments to protect and address concerns of the music and film industries and amendments related to bringing the Act in conformity with WCT and WPPT and amendments to address concerns of the physically challenged and amendments for rights to authors.

However, experts have criticised several provision of the bill.

No right to read
For example, NUJS professor Shamnad Basheer noted in his Spicy IP blog that the copyright exemptions to enable consumption of copyright material by the disabled under the new draft bill did not far enough. "Better no exception than such an obnoxiously articulated and appallingly onerous provision, craftily engineered for sub-optimal use."

"Only formats that are specially created to cater to the needs of the disabled (such as Braille) will fall within the section 52 exception," he explained. "For any other format, one requires a compulsory licence. However, such a licence cannot be applied for by the intended beneficiary, but only by a narrow group of organisations that comply with stringent criteria."

"The problems with the above framework may be obvious to anyone sensitive to the present societal structure that disadvantages the disabled at every turn."

Basheer has been heavily involved in the 'Right to Read' campaign, which aims to make books available to people with visual and other disabilities.

Camcorder piracy
Boutique IP firm Lall & Sethi founding partner Chander Lall evaluated the changes proposed in Section 52 contained in Chapter XI of the Copyright Act, 1957 dealing with the infringement of copyrights.

The original wording of the section reads: "The following acts shall not constitute an infringement of copyright, namely: (a) A fair dealing with [a literary, dramatic, musical or artistic] work [not being a computer programme] for the purpose of: (i) private use, including research,
(ii) criticism or review, whether of that work or of any other work."

It is proposed to be amended to: "(a) A fair dealing with any work [not being a computer programme] for the purpose of: (i) private and personal use, including research, (ii) criticism or review, whether of that work or of any other work, (iii) the reporting of current events, including the reporting of a lecture delivered in public."

"This provision is really damaging to the film and music industry," wrote Lall. "If you see by virtue of this amendment the term 'any work' will include a cinematograph film and sound recording. Hence, one can now go to a theater or a performance of an artist and make a copy for 'private use' and take it out of there.

"Hence, theater owners cannot stop camcorders and owners of concert halls cannot stop taking in of recording equipment because it is now permissible to make one copy for private use. At the time of making the recording it will not be possible to make a determination whether the use is in fact private use. The person making the recording can come out and sell that print or recording to a commercial outfit who can then make millions from additional copies.  This provision will therefore encourage piracy."

He added: "World-wide such practice is being shunned.  In the film industry camcorder use are a primary source of piracy and countries are enacting laws to stop camcorders from entering theatres.  Likewise, in live concerts, recordings should not be permitted.  Our drafters are actually making it legal."

While the Bill would not benefit music companies, added Lall, it boded well for lyricists, composers and singers as the authors of literary and musical works in films. "If the Bill is enacted, authors, especially lyricists, will get royalties and other benefits from the commercial exploitation of their work. Under the present copyright regime, the right to receive royalty vests with the music firms and producers."

The bill is available for download from PRS.

Photo by: Looking Glass

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