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Why Parallel Importation of Books Should Be Allowed
http://editors.cis-india.org/a2k/blogs/parallel-importation-of-books
<b>There has been much controversy lately with some publishers trying to stop the government from amending s.2(m) of the Indian Copyright Act, clarifying that a parallel import will not be seen as an "infringing copy". This blog post argues that the government should, keeping in mind the larger picture, still go ahead and legalise parallel imports.</b>
<p>[Updated Wednesday, February 2, 2011, to respond to <a class="external-link" href="http://dearddsez.blogspot.com/2011/01/thomas-abrahams-rebuttal-to-why.html">Thomas Abraham's extensive and thoughtful rebuttal</a> of the earlier version this post.]</p>
<p>First off, here is the controversial clause, with the proposed amendment (the insertion of a "proviso", in legalese) being emphasised in bold font-face:</p>
<h2>The amendment<br /></h2>
<blockquote>
<p>2(m) "infringing copy" means,—</p>
<p> (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;</p>
<p> (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;</p>
<p> (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;</p>
<p> (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;</p>
<p><strong>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 shall not be deemed to be an infringing copy.</strong></p>
</blockquote>
<p>Some claim that this amendment to s.2(m) ("provided that... copy") has the potential to
destroy the publishing industry. The most lucid explanation of this was in a recent op-ed by Thomas Abraham
in the Hindustan Times, very ominously titled <a class="external-link" href="http://www.hindustantimes.com/StoryPage/Print/652735.aspx">The Death of Books</a>. However it seems to us that the publishing
industry—especially foreign publishers with distributorships in India—don't want to open
themselves up to competition in the distribution market, and are opposing this most commendable move.</p>
<h2>What is parallel importation?<br /></h2>
<p>Before getting into explanations of why allowing for parallel importation is good, and how the arguments otherwise fall short, we should examine what parallel importation is. </p>
<blockquote>
<p>"Parallel import, insofar as copyright is concerned, involves an “original” copyright product (i.e. produced by or with the permission of the copyright owner in the manufacturing country) placed on the market of one country, which is subsequently imported into a second country without the permission of the copyright owner in the second country. For instance, the copyright owner of a book produced in India places the book on the market in India. A trader buys 100 copies of the book from India and imports them to China without the permission of the copyright owner of the book in China. This act of the trader bringing the books into China is called parallel import, the legality of which depends on the copyright law of the importing country (namely China in this example)." (Consumers International, <em>Copyright and Access to Knowledge: Policy Recommendations on Flexibilities in Copyright Laws</em> 23 (2006).)</p>
</blockquote>
<p>Some fear-mongers try to equate parallel importation with
'anarchy' in markets, and some confusedly claim that this amendment would allow <em>infringing</em> copies of books
would be permitted. That is simply not true. For parallel importation to be said to happen, the sale must itself be legal. If it is an an illegally sold copy (a pirated copy of a book, for instance) that is imported, then it will count as a black market import—not as a parallel import. Allowing for parallel imports will only dismantle
monopoly rights over importation, and the amendment makes
that amply clear.</p>
<h2>Harms on existing books of not allowing parallel importation</h2>
<p>Libraries/second-hand bookshops/consumers have no way of knowing if a book was originally imported legally or not, since there is no easy way of telling a parallel-ly imported copy apart from a exclusively imported copy. If one of them, even unknowingly buys/sells a foreign edition about which they am not sure and it turns out it was not legally imported (and there are literally thousands of such books, and I personally own at least a couple dozen foreign editions bought from various second-hand bookshops) then they are committing copyright infringement.</p>
<p>This precisely was argued by the library associations and others in <em>amici</em> briefs to the US Supreme Court in the <em>Costco v. Omega</em> case. For instance, the <a title="http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1423_PetitionerAmCu3LibraryAssns.pdf" href="http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1423_PetitionerAmCu3LibraryAssns.pdf" rel="nofollow">brief
for the the American Library Association, the Association of College
and Research Libaries, and the Association of Research Libraries in
Support of Petitioner</a> argues that:</p>
<blockquote>By restricting the application of [the first sale doctrine] to copies manufactured in the United States, the Ninth Circuit’s decision threatens the ability of libraries to continue to lend materials in their collections. Over 200 million books in U.S. libraries have foreign publishers. Moreover, many books published by U.S. publishers were actually manufactured by printers in other countries. Although some books indicate on their copyright page where they were printed, many do not. Libraries, therefore, have no way of knowing whether these books comply with the Ninth Circuit’s rule. Without the certainty of the protection of the first sale doctrine, librarians will have to confront the difficult policy decision of whether to continue to circulate these materials in their collections in the face of potential copyright infringement liability. For future acquisitions, libraries would be able to adjust to the Ninth Circuit’s narrowing of [the first sale doctrine] only by bearing the significant cost of obtaining a “lending license” whenever they acquired a copy that was not clearly manufactured in the United States. <br /></blockquote>
<p>and, the <a title="http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1423_PetitionerAmCu6NonProfitOrgs.pdf" href="http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1423_PetitionerAmCu6NonProfitOrgs.pdf" rel="nofollow">brief
for the Public Knowledge, American Association of Law Libraries,
American Free Trade Association, the Electronic Frontier Foundation,
Medical Library Association, and the Special Libraries Association in
Support of Petitioner</a> states:</p>
<blockquote>The uncertainty created by the Ninth Circuit’s holding [against parallel importation] will harm used bookstores, libraries, yard sales, out-of-print book markets, movie and video game rental markets, and innumerable other secondary markets. Owners of copyright works or goods containing copyrighted elements manufactured abroad will be unable to dispose of these products without authorization at the risk of liability under copyright law’s extensive damages provisions. Furthermore, the chilling effects of the Ninth Circuit’s holding will extend beyond works manufactured abroad. Owners of copies of works will be unable to determine whether they are protected by [the first sale doctrine], as they will not always know where their goods were manufactured. Copyright holders will have little incentive to make clear the location of manufacturing of their copyrighted works,3 as greater uncertainty means a greater ability to sell the right to distribute the goods within the United States. Secondary market sellers who cannot afford to purchase this right will be unable to do business unless they are prepared to engage in lengthy and expensive litigation with an uncertain result. A wide variety of important secondary markets in copyrighted works and goods with copyrighted elements will suffer without the protection of the first sale doctrine.<br /></blockquote>
<h2>Benefits of parallel importation</h2>
<h3>Dismantling distribution monopoly rights<br /></h3>
<p>The benefits that will accrue from allowing for parallel importations
are huge. Currently a large percentage of educational books in India
are imported, but with different companies having monopoly rights in
importation of different books. If this was opened up to competition,
the prices of books would drop, since one would not need to get an
authorization to import books—the licence raj that currently exists
would be dismantled—and Indian students will benefit. This is
especially important for students and for libraries because even when
low-priced editions are available, they are often of older editions.</p>
<p>Allowing people to import goods without permissions (with appropriate duties) is taken for granted in all other areas, so why not copyrighted works? After all, it is not the act of publication that gets affected, but the right of exclusive distribution. And if that goes away after first sale internationally, that's not a bad thing at all.</p>
<p>Generally, there are two main benefits of allowing for parallel importation: faster introduction of the latest international releases into the domestic country, and lowered prices by decreasing the costs imposed by a monopoly right over distribution.</p>
<p>All the foreign books that an online bookseller like Flipkart delivers in India are procured from international sources. Without parallel importation, Flipkart will have to ask for permission from the book publishers for each foreign book each time it makes a sale. This would cripple Flipkart's business model.</p>
<p> </p>
<h3>Helping book publishers</h3>
<p>Book publishers will be benefited by parallel importation, just as they are benefited by the existence of libraries and second-hand book stores. Libraries and second-hand book stores help with market segmentation, providing access to people who can't afford expensive books at much lower rates, often free. However, the existence of second-hand book stores in almost every city in India—I have personally bought second-hand books everywhere from Jhansi (Leo Tolstoy's <em>War and Peace</em>) to Delhi's Darya Ganj market (Edmund Wilson's <em>Letters on Literature and Politics</em>)—does not prevent me from buying books first hand. Indeed, Wilson's <em>Letters</em> is out of print, and cannot be bought in a store like Crosswords or Gangaram's.</p>
<p>Why do I emphasise second-hand books and libraries? They are artefacts of something variously known as the "first sale doctrine" or the "doctrine of exhaustion" in copyright law: After the first sale of a book, subsequent sales, rentals, etc., cannot be controlled by the copyright owner. Parallel importation is simply a matter of applying this doctrine to the first sale of the book internationally rather than its first sale in India. </p>
<p>Thus we see that the existence of second-hand books, libraries, and parallel imports, are all dependent on the same rule of copyright law: the first sale doctrine. This doctrine is enshrined in s.14(b)(iv) of the Indian Copyright Act, and has been interpreted by the Delhi High Court to mean first sale in India. The present amendment changes that to mean first sale internationally.</p>
<p>The introduction of the modern "public library" in the mid-19th century
led to a surge in literacy, readership, and book sales, and not a
decline. Similarly, there is no reason to suppose that allowing parallel importations will lead to a decline in book sales.</p>
<h3>Helping libraries and the print-disabled<br /></h3>
<p>Even currently, many people buy books directly from abroad and have them shipped to India. This is especially necessary for libraries whose patrons—scholars and students—very often need access to the latest books. Currently, libraries often buy books from abroad from Amazon, Flipkart, Alibris, etc. Such acts, within a strict reading of the law, are not legal, since they fall afoul of s.51(b)(iv), since the import is not for the "private and domestic use" of the libraries. This is also of especial concern for organizations working with print-disabled individuals, since the number of books legally available domestically in formats accessible by the print-disabled is very small, and often need to be imported.</p>
<h3>Helping all consumers<br /></h3>
<p>An excellent report was prepared in <a class="external-link" href="http://www.consumersinternational.org/news-and-media/publications/copyright-and-access-to-knowledge">2006 by Consumers International</a>, in which they studied the costs of textbooks in eleven countries, including India, by average purchasing power of each country's citizens, instead of absolute cost. Based on that study, and a detailed investigation of international treaties on copyright and the flexibilities allowed in them, Consumers International recommended that India should amend our law to make it clear that parallel importation of copyrighted works is legal (on page 51 of the report).</p>
<h2>Rebutting objections</h2>
<p>I will address a few specific objections raised by Mr. Abraham, Nandita Saikia, and others.</p>
<h3>1. Authors' won't lose out on royalties<br /></h3>
<p>Authors do not lose out on royalties because of parallel importation, just as they do not lose out on royalties because of libraries, nor because of second-hand book stores.
For parallel importation to take place, the books have to be purchased
legally, and that first sale itself ensures that authors are paid royalties. </p>
<p>Of
course, publishing contracts often have a clause that remaindered books will
not garner royalties. But in that case, the problem is not parallel importation,
but the overstocking and subsequent <a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Remaindered_book">remaindering of books</a>. The authors wouldn't be paid (or would be paid very little) for remaindered books even if the books weren't imported into India. Parallel importation
does not in any way change that.</p>
<p><strong>Indian authors</strong></p>
<p>There is a worry that an Indian author would be hit if remaindered copies of his/her books started entering the Indian market. That would mean that foreign publishers had overstocked that Indian author's book, i.e., that the expectation from the book was much higher than the actual demand. If this happens infrequently, then the author hasn't much to worry about (since remainders aren't a big problem). If it happens frequently, then firstly the publisher should re-adjust to the market and realize that demand is low. Secondly, the author needs to worry more about quality of the book (and whether it caters to foreign audiences) than the possible effects that the availability of cheaper copies of that book would have.</p>
<h3>2. Remaindered books are in publishers' control<br /></h3>
<p>India has amongst the cheapest book prices in the world. Then why would book publishers be wary of even cheaper books overrunning the Indian market? The reason, Mr. Abraham tells us, is <a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Remaindered_book">remaindered books</a>. He believes that remaindered books have the potential to destroy the Indian book
market. Remaindering of books has been happening for decades. If remaindered books haven't already
destroyed all book markets worldwide, then it is unlikely that they will
do so suddenly just because parallel importation of books is permitted
in India.</p>
<p>Remainders happen because of a miscalculation by the publisher: expecting more demand than was actually present. What happens with that excess stock is controlled by the publishers. They can choose to pulp them, burn them, or even push them into other channels of commerce that Mr. Abraham points out exist in the mature, frontline markets where remaindering happens:</p>
<blockquote>
<p>And the reason why they have not destroyed book markets worldwide is because the mature markets exist with multiple strands (chains and high street stores, independents, direct sellers, online sellers, and supermarkets)—so a direct seller will sell the same book a high street store is selling at a much reduced price without it affecting the business of each strand. Each strand is discrete and price sensitivity does not matter the same way. </p>
</blockquote>
<p>Since those multiple strands of commerce exist, each of which would enable the seller to get a better profit (being in a developed country) than in India, there is no reason to fear overrunning of the market with remainders.</p>
<h3>3. Dumping of books should be tackled separately<br /></h3>
<p>An extension of the remaindered books concern is that of India becoming a land where all books will be dumped. This hasn't happened in case of countries like New Zealand,
Mexico, Chile, Egypt, Cameroon, Pakistan, Argentina, Israel, Vietnam, South Korea,
Japan, and a host of other countries, all of which allow for parallel importation of books. In a 1998 judgment, the United States Supreme Court, <a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Quality_King_v._L%27anza">some parallel imports of copyrighted goods were legal</a>.
That ruling did not cause the downfall of the US book market, despite
cheaper books being available outside the US. Australia has allowed for
parallel importation of books in one form or another since 1991 (when
the law was changed to allow for all parallel of all books that weren't
introduced in the Australian market within 30 days of it being released
elsewhere in the world). New Zealand did a study after removing the ban
on parallel importation, and declared that cheaper books were available
on a more timely basis than previously. None of these countries have
been overrun by grey market books.</p>
<p><strong>Customs laws are better suited</strong></p>
<p>Even assuming that this fear is well-founded, copyright law is not the best way to deal with the problem. Dumping of books should be regulated by customs laws (anti-dumping and countervailing duties). Using copyright law to regulate apprehended book dumping practices (which might not even happen) is like using a trawler hoping to catch only shrimp: it is naive to think that there won't be unintended <a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Bycatch">bycatch</a>, and the consequences can be disastrous for the knowledge environment in case of books.</p>
<p>Customs laws are more flexible because they are imposed by the executive, and unlike copyright law, can be more easily changed as per requirements. So even if copyright law allows for parallel importation of copyrighted works, a special case can be made out by publishers in case of trade publishing, for instance, and that can be targetted specifically by imposing duties. However, the inverse cannot happen, since we are not aware of any mechanism whereby libraries, consumers and others can get to 'override' the provision in the Copyright Act.</p>
<p>Additionally, these duties can be made to operate only if the book is already being sold in India; these duties can be made to operate only on new books. A ban on parallel importation, on the other hand will apply equally to books that are out of print, to books that the original copyright owner has not even granted an exclusive Indian distributorship and are not even being sold in India. It goes right to the heart of freedom of speech, which the Supreme Court has held includes the right to receive information.</p>
<h3>4. Non-printing of low-priced editions for India because of "unsecure"
market won't happen<br /></h3>
<p>Parallel importation, which is what the amendment to s.2(m) allows for,
affects only importation. It does not in any way affect publication in
India or exports. Exporting low-priced Indian editions to countries which allow for parallel importation of books, is currently of doubtful legality. [Update: Earlier an incorrect claim was made in this post that such export was legal. The legal status is not that clear. While there is a Delhi High Court case that makes exports of low-priced editions illegal in the context of sale to the United States, it specifically states that the decision <a href="http://editors.cis-india.org/a2k/blogs/indian-law-and-parallel-exports" class="external-link">does not depend on whether India allows for parallel importation or not</a>.] The
amendment does not change that position, for reasons explained at greater length <a href="http://editors.cis-india.org/a2k/blogs/indian-law-and-parallel-exports" class="external-link">in a separate post</a>. The incentives to print
low-priced editions hence does not decrease. If anything it will increase
because currently books that are not available as low-priced editions
cannot be imported without exclusive licensing, and with a change in this position, the incentive to compete in the form of low-priced editions will increase.</p>
<p>Indeed, even before that 2009 Delhi High Court judgment prohibiting exports to the United States, many low-priced editions were being printed in India. And even before the 2005 Bombay High Court judgment prohibiting parallel imports, many low-priced editions were being printed in India. This won't change, regardless of the law, because India is an increasingly profitable and expanding market, and low-priced editions are a necessity in this market due to lower average income.</p>
<h3>5. Rhetoric flourish and the law: Open and closed markets<br /></h3>
<p>Mr. Abraham asks how many authors one can name from open markets like Malaysia, Singapore, and Hong Kong, as a sign of the 'history of creativity' in each of these countries and territories. It might be just as well to ask how many authors he can name from closed markets like Bhutan, Kazakhstan, Cambodia, Papua New Guinea, Indonesia, Jordan, and Ukraine. One's ability to name authors from a country has less to do with the open/closed nature of its market and more to do with one's general knowledge.</p>
<p>Additionally, the 'mature' markets which he wishes India to emulate—United States, the United Kingdom, and Australia—are more ambiguous on parallel importation than he would have us believe. In the United States, the legality of a segment of parallel importation of copyrighted goods reached the United States Supreme Court in <em><a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Quality_King_v._L%27anza">Quality King v. L'anza</a></em> in 1998, in which the court held in favour of the importer. </p>
<p>The question reached the US Supreme Court again last year in <a class="external-link" href="http://www.scotusblog.com/case-files/cases/costco-v-omega/"><em>Costco v. Omega</em></a>, but the court split on it 4-4, and <a class="external-link" href="http://copyright.columbia.edu/copyright/2010/12/16/costco-omega-libraries-and-copyright/">did not deliver a binding precedent on parallel importation</a>. Thus, for all intents and purposes, under copyright law, the United States is an open market. </p>
<p>In the United Kingdom, as per European Union law, <a class="external-link" href="http://a2knetwork.org/reports2010/uk">parallel importation is permitted from anywhere within the EU</a>. And in Australia, parallel importation of parallel goods is largely allowed, with <a class="external-link" href="http://a2knetwork.org/reports2010/australia">some conditions to encourage faster publishing in Australia of foreign books.</a></p>
<p>Most importantly, none of the markets held up as role models are developing countries. India is. This makes all the difference, as the Consumers International report underscores.</p>
<h2>Standing Committee consultations</h2>
<h3>Lack of wide consultation<br /></h3>
<p>On one point we are in complete agreement with Mr. Abraham, which is his point regarding lack of adequate consultation. While there was a good amount of consultation during the drafting stage, when a wide-ranging public consultation was held in 2006, this was not repeated in 2010 by the Standing Committee. Further, the Standing Committee only gave fifteen days for responses to its call for comments.</p>
<h3>Publishers were represented<br /></h3>
<p>While Mr. Abraham states that only the Authors Guild was represented before the Standing Committee, by going through the report prepared by it, we see that the Federation of Indian Publishers and the Association of Publishers in India were also called to testify before the Standing Committee. </p>
<h3>Libraries, students, consumers were not represented</h3>
<p>However, while the authors supported it, and the publishers opposed it, no one got to hear the voice of the readers, the students, the libraries, the book buyers. For instance, not a single consumer rights organization or library association was called before the Standing Committee. Internationally, organizations like Consumers International, the International Federation of Library Associations, and EIFL (an international library organization) are invited to meetings of the World Intellectual Property Organization and their views are taken with seriousness as they are a very important part of the copyright environment.</p>
<h3>Department's and Standing Committee's reasoning</h3>
<p>We reproduce below four paragraphs from the Standing Committee's report, which elucidate many of the reasons for going in for this particular amendment.</p>
<blockquote>7.10<br />All the reservations/objections raised by the various stakeholders [including the Federation of Indian Publishers and the Association of Publishers in India, whose objections are quoted in an earlier paragraph of the report -ed.] were taken up by the Committee with the Department with the intent of having full understanding of the background necessitating the proposed amendment and its exact impact on the various stakeholders. As clarified by the Department, the main purpose of this amendment was to allow for imports of copyright materials (e.g. books) from other countries. It was in accordance with Article 6 of the TRIPS Agreement relating to exhaustion of rights whereunder developing countries could facilitate access to copyright works at affordable cost. Exhaustion of rights (popularly called as parallel import) was a legal mechanism used to regulate prices of IPR protected materials. This was viable only if the price of the same works in the Indian market was very high when compared to the price in other countries from where it was imported to India. <br /><br />7.11<br />Committee's attention was drawn to the fact that majority of educational books used in India were imported from other countries particularly from US and EU. There was an increasing tendency by publishers to give territorial licence to publish the books at very high rates. The low price editions were invariably the old editions than the latest ones. This provision would compel the Indian publishers to price the works reasonably so that it would not be viable for a distributor to import same works to India from other countries. This would also save India foreign exchange on the payment of royalties (licence fee) by the Indian publishers to foreigners. <br /><br />7.12<br />Committee was also given to understand by the representatives of the publishing industry that Scheme of the Copyright Law was entirely different from the Trade Marks Act, 1999 and the Patent Act, 1970. The application of the standards and principles of these two laws through the proposed amendment of section 2(m) would completely dismantle the business model currently employed, rendering several industries unviable. On a specific query in this regard the Department informed that the concept of international exhaustion provided in section 107 A of the Patent Act, 1971 and in section 30 (3) of the Trademarks Act, 1999 and in section 2 (m) of the copyright law were similar. This provision was in tune with the national policy on exhaustion of rights.<br /><br />7.13 <br />After analysing the viewpoints of all the stakeholders along with the clarifications given thereupon by the Department, the Committee is of the view that proposed inclusion of the proviso in the definition of the term 'infringing copy' seems to be a step in the right direction, specially in the prevailing situation at the ground level. <strong>The present practice of publishers publishing books under a territorial license, resulting in sale of books at very high rates cannot be considered a healthy practice.</strong> [Emphasis added.] The Committee also notes that availability of low priced books under the present regime is invariably confined to old editions. It has been clearly specified that only those works published outside India with the permission of the author and imported into India will not be considered an infringed copy. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. <strong>Thus, apprehensions about the flooding of the primary market with low priced editions, may be mis-founded as such a situation would be tackled by that country's law.</strong> [emphasis added.] The Committee would, however, like to put a note of caution to Government to ensure that the purpose for which the amendment is proposed, i.e., to protect the interest of the students is not lost sight of.<br /></blockquote>
<h2>Conclusion</h2>
<p>It is clear that allowing for parallel imports is not likely to hurt publishers, but will result in an expansion of the reading market. It is mainly foreign publishers' monopoly rights over distribution which will be harmed by this amendment, while Indian
publishers, Indian authors, and Indian readers, especially students, will stand to gain. Furthermore, in the long run, even foreign publishers will stand to gain due to market expansion. Any legitimate worries that publishers may have are better dealt with under other laws (such as the Customs Act) and not the Copyright Act.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/parallel-importation-of-books'>http://editors.cis-india.org/a2k/blogs/parallel-importation-of-books</a>
</p>
No publisherpraneshIntellectual Property RightsCopyrightAccess to Knowledge2019-02-01T17:41:26ZBlog EntryIndian Law and "Parallel Exports"
http://editors.cis-india.org/a2k/blogs/indian-law-and-parallel-exports
<b>Recently, a lawyer for the publishing industry made the claim that allowing for parallel importation would legally allow for the exports of low-priced edition. Here we present a legal rebuttal of that claim.</b>
<p>Recently, on publisher/editor/writer Divya Dubey's blog, Saikrishna Rajagopal, a highly respected copyright lawyer and founding partner of Saikrishna & Associates, <a class="external-link" href="http://dearddsez.blogspot.com/2011/01/thomas-abrahams-rebuttal-to-why.html">claimed that</a> we had misconstrued the law with regard to export of books from India, and that allowing for parallel importation would harm that.</p>
<p>Mr Rajagopal writes:</p>
<blockquote>
<p>The fundamental legal infirmity that I find in Mr. Prakash’s argument are twofold:<br />1. That current Indian Law allows export of low priced editions;<br />2. That the proposed proviso would not include within its scope 'exports'.</p>
<p>1. As regards the argument that current Indian Law allows export of low priced editions, the two John Wiley cases of the Delhi High Court of May 2010, make it abundantly clear that current Indian Copyright Law precludes export of low priced editions. Pertinently, an appeal was preferred in one of the Wiley cases and was dismissed. These judgments are therefore final now and therefore authoritatively, interpret Indian Copyright Law as it stands today.</p>
</blockquote>
<p>I was wrong regarding the question of export of low-priced editions. There are are two Delhi High Court judgments which came out in May 2010 on export of books, holding that export of Low-Priced Editions meant for India to countries outside is unlawful (<em>John Wiley & Sons Inc. & Ors v. Prabhat Chander Kumar Jain & Ors</em> and <em>John Wiley & Sons Inc. & Ors v. International Book Store & Anr</em>). However, in the first judgment Justice Manmohan Singh clearly held that it would be unlawful to export without permission of the rights owner regardless of whether we followed the doctrine of national exhaustion (disallowed parallel importation) or the doctrine of international exhaustion (allowed parallel importation), and the "the question of exhaustion of rights of owner in copyright does not arise at all".[1] Thus Mr. Rajagopals's fears are, thankfully, unfounded.</p>
<p>Mr. Rajagopal continues:</p>
<blockquote>2. As regards Pranesh’s argument that the proposed amendment does not cover ‘exports’, this argument is completely specious. In order to determine at what stage a copyright owner loses its right to control further sale and distribution of a copyrighted product, the statute itself needs to be looked into to determine what standard of exhaustion of rights has been contemplated. If the proposed proviso becomes law, it would be a clear indicator to a Court that Indian Copyright Law follows international exhaustion, namely, that once a product is legitimately sold anywhere in the world market, the copyright owner loses/exhausts the right to control further distribution and sale, including export and import. It is because the copyright owner exhausts rights globally that the proposed amendment is allowing for genuine copies of books sold in the international market, to be legally imported into India. This being the case, there is almost unanimity amongst IP Lawyers that export of low priced editions would also be considered legal, in view of the proposed amendment. This is not just our Indian view, but also the view of other international IP experts who have had an opportunity to look at the implications of this proviso.<br /></blockquote>
<p>The copyright owner, under a proper appreciation of the Indian law,
never has the right to control "further sale and distribution" (as per s.14(a)(ii) of the Copyright Act), contrary to Mr. Rajagopal's assertion. Once a
copy is in circulation (e.g., is sold), the copyright owner no longer has the exclusive
right to put that copy into circulation, nor to control its further sale /
distribution in any manner. This is the limitation on the owner's right that allows libraries exist. This is how second-hand book shops exist. If this limitation of the copyright owner's right did not exist, libraries and second-hand book shops would need to take permissions from the owner for each copy of each book that they lend or sell.</p>
<p>Imports and exports are two distinct things. India's following of the principle of "international exhaustion" means that the right to first sale is exhausted <em>in India</em>, when the work is legally published anywhere <em>internationally</em> (i.e., regardless of where that copyrighted work is legally published). The principle of international exhaustion doesn't not exhaust the right of first sale <em>internationally</em>—the word "international" is used to indicate where the <em>publication</em> has to take place for exhaustion to occur, and not where the <em>exhaustion</em> takes place. After all, Indian law on a matter cannot determine whether a book can or cannot be sold anywhere else in the world (which is precisely what it would do if it is to hold that rights are exhausted internationally by virtue of a book being printed in India).</p>
<p>Having done research on this point for the past week, I have not been able to come up with any legal articles or cases to directly oppose Mr. Rajagopal's claim that the legality of book exports from a country can depend on whether it follows national or international exhaustion. It is such a novel claim that no one has made it so far, and so no one has thought to oppose it. I know of no other IP lawyers in India or internationally who agree with
Mr. Rajagopal's claim that allowing for parallel importation in India will have
an impact on the exports of low-priced editions from India.</p>
<blockquote>
<p>Most pertinently, when the Wiley judgments which related to export of low priced editions, were being pronounced in Court, the Hon’ble Judge casually remarked that the law laid down in cases may soon become redundant if the proposed legislation comes into force.</p>
</blockquote>
<p>As noted above, the judge specifically stated in the written judgment itself that as per the court's reasoning, the question of whether the export of low-priced editions is legal is not related to the question of exhaustion of rights of the owner: "<em>. . . as the express provision for international
exhaustion is absent in our Indian law, it would be appropriate to
confine the applicability of the same to regional exhaustion. Be that as
it may, in the present case,</em> <em>the circumstances do not even otherwise
warrant this discussion </em>. . . <em>the question of exhaustion of
rights of owner in the copyright does not arise at all</em>". </p>
<p>To get a little bit more technical, Justice Singh rules that there is a difference between first sale (exhaustion) vis-a-vis the owner and first sale vis-a-vis the licensee. He states that only rights of the licensee have been exhausted, and that the rights of the owner being exhausted do not even arise. But he is quite clear that this difference would apply regardless of whether we follow international exhaustion or national exhaustion.</p>
<strong>Update (2011-02-15): </strong>For the tabularly inclined, here's a summary of what it means for a country to follow "national exhaustion" or "international exhaustion":
<div align="center"> </div>
<table class="plain">
<tbody>
<tr>
<td align="center"><br /></td>
<td align="center">What "Exhaustion" Means<br /></td>
<td align="center"><br /></td>
</tr>
<tr>
<th align="center">Where copyrighted work is first circulated<br /></th>
<th align="center">Where right of circulation is exhausted <br /></th>
<th align="center">What this is termed<br /></th>
</tr>
</tbody>
<tbody>
<tr>
<td align="center">In any country<br /></td>
<td align="center">In all countries<br /></td>
<td align="center">[- Not possible.<br /><br />- Law in one country<br />can't dictate law in another.<br /><br />- Exhaustion of right of circulation<br />
"in all countries" can only be <br />
declared so through an <br />
international treaty<br />
(e.g., the way TRIPS makes a book<br />copyrighted in all countries if <br />it is copyrighted in any country)<br /><br />- Art. 6 of TRIPS doesn't allow for this interpretation.]<br /></td>
</tr>
<tr>
<td align="center"><strong> In any country<br /></strong></td>
<td align="center"><strong>Domestic territory<br />
</strong></td>
<td align="center"><strong>International exhaustion<br />
</strong></td>
</tr>
<tr>
<td align="center"> Domestic territory<br /></td>
<td align="center">In all countries<br /></td>
<td align="center">[- Not possible.<br />
<br />- Law in one country <br />can't affect law in another.<br /><br />- Exhaustion of right of circulation<br />
"in all countries" can only be <br />declared so through an <br />international treaty<br />(e.g., the way TRIPS makes a book<br />
copyrighted in all countries if <br />it is copyrighted in any country)<br /><br />- Art. 6 of TRIPS doesn't allow for this interpretation.]<br /></td>
</tr>
<tr>
<td align="center"><strong> Domestic territory<br />
</strong></td>
<td align="center"><strong>Domestic territory<br />
</strong></td>
<td align="center"><strong>National exhaustion<br />
</strong></td>
</tr>
</tbody>
</table>
<p> </p>
<p>Thus it is seen that the "national" or "international" exhaustion only determines the question of where the book has to be first circulated for exhaustion to happen. It can never change <em>where</em> the right of first circulation is exhausted (which in either case can only happen at a territorial level). </p>
<p>The implication of the right of circulation being exhausted world-wide is that no country can by law prevent parallel importation. The TRIPS Agreement, via Article 6, decided to give each country the right to choose to allow or disallow parallel importation. This was despite a great effort by developing countries to get international exhaustion codified as the worldwide norm.</p>
<p>To make this even more clear, I propose the following thought experiment.<br /><br /><strong>X</strong> - national of <strong>New Zealand</strong>, which follows international exhaustion.<br /><strong>Country 1</strong> - a country that follows national exhaustion / doesn't allow parallel imports<br /><strong>Country 2</strong> - a country that follows national exhaustion / doesn't allow parallel imports<br /><strong>Country 3</strong> - a country that follows international exhaustion / allows for parallel imports<br /><br /></p>
<ul><li>Example 1: If <strong>X</strong> buys a book from <strong>Country 1</strong> and sells that book in <strong>Country 2</strong>, he is in violation of <strong>Country 2</strong>'s laws, regardless of the laws in <strong>New Zealand</strong> and <strong>Country 1</strong>.</li><li>Example 2: If <strong>X</strong> buys a book from <strong>Country 1</strong> and sells that book in <strong>Country 3</strong>, he is <em>not</em> in violation of the law (either in <strong>New Zealand</strong> or in <strong>Country 3</strong>).</li><li>Example 3: If <strong>X</strong> buys a book in <strong>New Zealand</strong> and sells that book in <strong>Country 2</strong>, he is in violation of <strong>Country 2</strong>'s laws, regardless of the laws in <strong>New Zealand</strong>.</li><li>Example 4: If <strong>X</strong> buys a book in <strong>New Zealand</strong> and sells that book in <strong>Country 3</strong>, he is <em>not</em> in violation of the law (either in <strong>New Zealand</strong> or in <strong>Country 3</strong>).</li></ul>
<p><br />If one takes "international exhaustion" to mean that the right is exhausted in <em>every country</em>, then <strong>Example 3</strong>
would be wrong. But that would be absurd, since we know from experience
that it is correct: Buying a book in New Zealand and selling it in the
United Kingdom (which follows national/regional exhaustion) is unlawful. So obviously "international exhaustion" doesn't mean that.</p>
<p>Similarly, if one takes "national exhaustion" to mean that after sale a book cannot be exported, that
would imply that <strong>Example 2</strong> is faulty. But we know from
experience that this is not so: Buying a book in the United Kingdom and selling it in New Zealand is lawful. So obviously "national exhaustion" doesn't mean that.</p>
<p>Thus, it is only the act of import that is ever affected by the question of national vs. international exhaustion, and never exports.</p>
<h3>Notes</h3>
<p> [1]: Justice Manmohan Singh writes: "As per my opinion, as the express provision for international
exhaustion is absent in our Indian law, it would be appropriate to
confine the applicability of the same to regional exhaustion. Be that as
it may, in the present case, the circumstances do not even otherwise
warrant this discussion as the rights if at all are exhausted are to the
extent to which they are available with the licensees as the books are
purchased from the exclusive licensees who have limited rights and not
from the owner. In these circumstances, the question of exhaustion of
rights of owner in the copyright does not arise at all." (Para 104).</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/indian-law-and-parallel-exports'>http://editors.cis-india.org/a2k/blogs/indian-law-and-parallel-exports</a>
</p>
No publisherpraneshConsumer RightsCopyrightAccess to Knowledge2011-08-04T04:47:07ZBlog EntryThomas Abraham's Rebuttal on Parallel Importation
http://editors.cis-india.org/a2k/blogs/parallel-importation-rebuttal
<b>We engaged in an e-mail conversation with Thomas Abraham, the managing director of Hachette India, on the issue of parallel importation of books into India. We thought it would be in the public interest to publish a substantive part of that conversation. In this post he points at great length how our arguments are faulty. While we still believe that he doesn't succeed, we hope this will clarify matters a bit.</b>
<h2>Nature of disagreement</h2>
<p>There is essentially fundamental disagreement on principle and definition-and I guess there will always be if you knock actual knowledge and see things as abstract philosophical (and legal) points. Why I think detailed knowledge is necessary is precisely illustrated at the logic (or lack thereof actually) employed by the Ministry. And then there is to me the fundamental problem of disregarding the author's wishes (for no greater good).</p>
<h2>Second hand books and libraries</h2>
<p>The comparison is not the same. Both (second-hand and libraries) have had a first sale where the copyright holder has got his/her basic right-the designated royalty. (I have explained earlier how export royalties and remainder royalties are much lower and results in losses to the author.) So here we come back to the basic philosophy-who has greater right on deciding on creative works? The creator or the government? A just answer would be the creator provided commercial dissemination fulfilled society's needs-which in India's case would be availability and right pricing keeping in mind socio-economic needs. Both are happening through local publishing and pricing of imports. But parallel imports would take away that right an author has of deriving a rightful income as per existing norms in all mature markets (including India so far). We are heading towards being a mature market and this has come about only because we are in the self-perpetuating framework of publishing, writing, and cultural development.</p>
<p>So the argument is that second hand books and libraries foster reading without depriving the author of rightful royalty or ruining the market.</p>
<p>Parallel importation does both. There is every reason to know that this will happen-that's exactly the substantiation we are offering. And the advocates of parallel importation have none to offer-pricing (where is it high, and by how much should it come down?), what is not freely available and at special prices? So for what reason do we want the existing law-also made by lawmakers-to change the stated remit of exhaustion from national to international.</p>
<p>No book publisher objects to libraries or even second hand books. But they are objecting to parallel importation. So leave it to them to decide. It is a tad patronizing to tell us what will help us, without having a shred of actual knowledge.</p>
<h2>Helping libraries and disabled</h2>
<p>This is completely false. No library needs to import from Amazon. And if it is a public library then they are wasting taxpayer money. Almost any book in the world they will still get at a special price through Indian publishers or distributors. There are societies for the disabled to whom publishers give rights at almost no cost. The UK has a law that a copy must be made available at near cost for disabled. By all means have such a law here. Why try and use parallel importation as an excuse for this?</p>
<h2>Flexibility in the law</h2>
<p>To your point: "Even if prices don't fall, it is good to have the flexibility for libraries to import four copies of a book that students need and isn't being made available in India. That flexibility is crucial, for availability, and just on principle, and not just for the sake of prices". By all means pass the law that gives the libraries the right to import 5 copies of any book they want. Publishers won't gripe at that. Libraries would still get it cheaper here than Amazon but that's the libraries' call.</p>
<h2>Law should promote fairness and equity, not perpetuate a particular business model</h2>
<p>No disagreement here. But the contention is that it will result in exactly the opposite. Sure, so let the lawmakers demonstrate they have done due diligence and outline evidence for their assumptions and how it will promote fairness and equity. What is unfair right now and what is not equitable? And how this law will address that. Why do other markets have it, and why should we not? On no count is there any detailing-just three false assumptions-availability, pricing and current editions.</p>
<p>Equally one can't have the law being made the proverbial ass because the lawmakers won't do their homework.</p>
<h2>Export and remainder royalties are lower</h2>
<p>I explained export vs domestic royalties in my first rebuttal. Not just remainders. Remainders are near zero royalties. Export surplus even pre-remainders are low royalty-against the author's wishes. And parallel importation will result in further loss of royalties from loss of sales of the hitherto legitimate edition.</p>
<h2>Why anti-dumping laws will not be practical</h2>
<p>Firstly there will be 40,000-plus titles to track, and the damage would have been done by the time you invoke the law. And assuming we want to invoke anti-dumping law, what parameters will be fixed? what discount are you going to fix? What quantity? I'll explain why this will never work. There are no real averages to draw lines and say this much and no more for either discount or price or quantity. To understand why we need to understand cost to price structures. Indian publishing (both publishing and imports) is low margin. Our books are priced to market; that means from cost our mark up is 2.5 times for imports and about 3-4 on average for local publishing-to enable the prices you see. Abroad it is 8-10 times from cost. To enable low pricing in India, we already have overseas terms that exceed 70% discounts, going into 'net pricing' for the ones that we pick to push big. Once the market is opened up, you will have two things-(a) targeted remainders as against the minor trickle now and (b) surplus clearance or even targeted sale to undercut the existing lawful edition. And I repeat the point that these remainders and 'targeted exports' can still end up undercutting the local edition. Not significantly enough to cause a change in pricing pattern (no benefit to consumer), but enough to undermine existing industry structures.</p>
<p>And yes, parallel importation (the current trickle) does see enforcement the logical way (by which I mean that the intensity of the problem merits the level of redressal). So far (believe me, each of us keeps tabs) we have 'unaware imports' and 'deliberate imports'. It is an irritant but is gradually reducing as the market matures. And the unaware ones are easily remedied by a simple letter asking for infringing stock to be withdrawn. In fact 8 out of 10 cases this simple letter works. For the deliberate ones, as I said earlier, it's just one or two where the impact is not worth the cost. Our margins do not allow us to hire expensive lawyers. But the moment it touches key brands or high revenue, legal action is taken.</p>
<h2>Market expansion</h2>
<p>Again the inherent assumption that this is some 'fat cat' lobbying protest. For once the lawmakers need to apply themselves-why is everybody from Penguin & Hachette (biggest) to Zubaan and Yatra (amongst smallest) all opposing it? Similarly from Crossword (large chain) to 'The Bookshop' in Jor Bagh (small independent), nobody wants this. Why? Surely that must speak for something? The only ones it will benefit are the remainder stalls you see (of which there must be about 25-30 all over the country). But over time every bookshop will be forced to keep this kind of stocking eroding current shelf space (they will have no choice). This is not market expansion.</p>
<h2>Pricing drop</h2>
<p>The other thing being ignored is that it's not just short term spoiler pricing. When one thinks in purely theoretical terms and says "open up, prices will drop", one is also not factoring in that the composition of what is stocked will changed. It's no longer <em>status quo</em> at reduced prices. That's the key to a mature market, that what the market needs is available-from bestsellers to literary works to philosophical works-balancing commercial and cultural needs and at prices the market can afford. So sure we can sit back and say we don't care if the history and philosophy shelves are eroded, if local publishing shrinks, let market forces prevail and let there be just foreign mass market novels and old editions (which will flow in by the thousand). But I'd like to hear the government say that.</p>
<h2>Not just about copyrighted books but about all copyrighted materials</h2>
<p>Yes, and we're not commenting about the others (other materials, i.e.) because we do not know enough. But we cannot have one size fits all if there are legitimate grounds to think about otherwise. Why is there a redressal of authors' needs in the music and film industry and a total disregard of books? Why were there panels created to discuss and thresh the whole thing through for films, and no detailed consultation at all for the books industry?</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/parallel-importation-rebuttal'>http://editors.cis-india.org/a2k/blogs/parallel-importation-rebuttal</a>
</p>
No publisherpraneshConsumer RightsCopyrightAccess to Knowledge2011-08-04T04:47:12ZBlog EntryPirates, Plagiarisers, Publishers
http://editors.cis-india.org/a2k/blogs/plagiarism-in-indian-academia
<b>This article attempts to rescue not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy. The article by Prashant Iyengar was published in the Economic & Political Weekly, February 26, 2011, Vol XLVI No 9.</b>
<p>"Copying one book is plagiarism; copying several is research." Unknown <a href="#1">1</a></p>
<p>Someone must have slandered Indian academia, for, without having done anything new or different, allegations of plagiarism have suddenly been tumbling out of India’s ‘top’ universities in these past few years.</p>
<p>In October 2002, a group of physicists from Stanford University, including three Nobel laureates, addressed a letter to the (then) President Abdul Kalam complaining of plagiarism by the Vice Chancellor of Kumaon University.<a href="#2">2</a> In January 2006, a professor from IIM Bangalore was dismissed for plagiarism.<a href="#3">3</a> In February 2008, a professor from the Sri Venkateswara University in Tirupathi was accused of having plagiarized up to 70 papers between 2004 and 2007.<a href="#4">4</a> In October 2010, IIT Kharagpur was forced to set up a committee to investigate allegations of plagiarism by one of its professors and three doctoral candidates.<a href="#5">5</a></p>
<p>And so on. It seems Benjamin Franklin’s adage about originality being “the art of concealing your sources” thrives today in Indian academia. Something is rotten in the State of academic research. Evidently, we even know exactly what it is: Some years ago, the Association of Indian Universities invited students to a research contest. The pamphlet advertising the contest contained a remarkably prolix account of the causes of the general decline in academic research:</p>
<p>Of late, <b>research has become a subservient component in the university</b> functioning. It is <b>not considered a lucrative career option</b>. Apart from this, <b>resource constraints, lack of commitment, lack of proper encouragement</b>, etc., are the impediments that are affecting the quality of research in our institutions of higher education. Another important factor for the deterioration of the quality of research is the <b>absence of adequate training and other capacity building</b> endeavour in our system, which has <b>restricted students’ creativity only to rote memory</b>. <a href="#6">6</a> (emphasis mine)</p>
<p>Similarly, we are periodically reminded, as in this instance, by the chief of the Defence Research and Development Organisation that “India lacks quality academic organisations and research and development institutions that breed inventions in technology. This is the major reason behind India's failure in breaking new ground in inventions and innovations.”<a href="#7">7</a> Other news reports bemoan the fact that “Indian patent filings lag behind global average" with the total “number of filings by residents being just three per million people in its population, compared with the world average of 250”<a href="#8">8</a></p>
<p>Accounts such as these, which abound in the press and journals, typically trace a “decline” hypothesis according to which the quality of academic research in India, once rigorous and upright, has fallen precipitously in recent times. Poor quality of academic research is then portrayed as a function of the impoverishment of the academy itself. Concealed within this auto-critique is an envy of putatively ideal systems in other countries which exhibit values that are an inversion of those identified as ours: i.e. they privilege research, are well-resourced, file the statistically approved average number of patents, allow students’ creativity free rein, and do not restrict their creativity only to rote memory. Lurking underneath these criticisms is also the anxiety that the arrival of the internet has, far from invigorating indigenous research in India, facilitated plagiarism on a wider scale than previously imaginable. What do we make of all this self-slander?</p>
<p>In this essay I will attempt to rescue Indian academic research, not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy.</p>
<p>I begin by drawing on my own prior study on student research in law universities in India<a href="#9">9</a> to provide a rough account of how law students approach research. However inappropriate, I use some of my observations in the course of that study as a microcosmic model for how research is conducted by students across the country today.</p>
<p>Next, I will attempt to show how the charge of plagiarism only acquires its pungency after the installation of a particularly western ‘Romantic’ conception of creativity that is hinged on the ‘genius’ figure. My point here is not one of cultural difference – we may or may not have conflicting traditions of (literary) creativity in India - but of heterogeneity of possible standpoints from which creativity can be judged, which have been deprecated or forgotten since this modern conception took root. While this idea is itself not ‘original’, having been made by numerous authors on whose work I draw upon here<a href="#10">10</a> , I am interested here in how it can inform our reaction to quotidian reports of plagiarism in the contemporary. Specifically, I think our understanding of 'originality-as-genius’ is a relatively recent historical product, and is definitely not the 'natural' or universal parameter by which literature and arts have been judged. I would assert that contemporary practices on the Internet restore us to (or renew the salience of) some of these pre-modern practices of authorship where originality in its Cartesian sense may not necessarily be determinative of value.</p>
<p>I would however hasten to add that this does not lead us inexorably to the conclusion that our traditional understanding of plagiarism has to abandoned. In the case of academic writing, 'Romantic' standards of originality have been rigorously upheld and policed by the spectral might of the University. Here, the ritual demonstration of cartesian orginality is not only a condition of success, but a minimum qualification for survival and advancement in this domain. With the stakes being so high, the temptation to pass off others' works as one's own is great, in contrast to the risks of being caught. This does not mean that everyone resorts to it, only that there are structural factors in the academy that make practices of plagiarism more 'rational' than, perhaps, in other domains<a href="#11">11</a> .</p>
<p>To begin, then with my conclusions, I think that dulling the keenness of ‘cartesian originality’ in the University could be an important component in the serious task of educational reform. Equally, I aim, in this article to rehabilitate the term plagiarism so as to diminish the sense of embarrassment that seems to come naturally to us when we speak of Indian research.</p>
<h3>Student ‘research’ in Law Schools in India</h3>
<p>The content and observations in this section draw from a study that I had conducted in 2006 on student research in national law universities in India. During the study I had interviewed 40 students and eleven faculty members across three National Law Universities. <a href="#12">12</a> I will focus here on the themes from those surveys that directly address the issue of research and plagiarism.</p>
<p>By way of background, in a typical national law university following a semester model, a student must submit up to 5 research papers (of lengths varying from 20 to 50 pages) a semester – or ten papers a year. In the duration of her five year legal education, a student from a national law university in India would have submitted anywhere between 48 (NALSAR) to 70 (NLIU Jodhpur) research papers of varying lengths. Given an average class-size of 80, and 5 batches in every university, a guesstimate indicates an average output of about 4000 papers of varying quality from every national law university annually. The table below contains a rough back-of-envelope enumeration of the research output of five national law universities in India, drawn from respective university prospectuses and websites.</p>
<table class="plain">
<tbody>
<tr>
<td><br /></td>
<td><b>NALSAR</b></td>
<td><b>NLSIU</b></td>
<td><b>NLIU</b></td>
<td><b>NLU</b></td>
<td><b>GNLU</b></td>
</tr>
<tr>
<td>Intake</td>
<td><b>80</b></td>
<td><b>80</b></td>
<td><b>80</b></td>
<td><b>80</b></td>
<td><b>160</b></td>
</tr>
<tr>
<td>Max Strength</td>
<td><b>400</b></td>
<td><b>400</b></td>
<td><b>400</b></td>
<td><b>400</b></td>
<td><b>800</b></td>
</tr>
<tr>
<td>Academic Unit</td>
<td><b>Semester</b></td>
<td><b>Trisemester</b></td>
<td><b>Trisemester</b></td>
<td><b>Semester</b></td>
<td><b>Semester</b></td>
</tr>
<tr>
<td>Law Courses</td>
<td><b>40</b></td>
<td><b>51</b></td>
<td><b>48</b></td>
<td><b>54</b></td>
<td><b>51</b></td>
</tr>
<tr>
<td>Non-Law Courses</td>
<td><b>10</b></td>
<td><b>10</b></td>
<td><b>26</b></td>
<td><b>8</b></td>
<td><b>9</b></td>
</tr>
<tr>
<td>Number of research papers<br />per student through the <br />duration of the 5 year course</td>
<td><b>18</b></td>
<td><b>50-60</b></td>
<td><b>65-74</b></td>
<td><b>55-62</b></td>
<td><b>55-60</b></td>
</tr>
<tr>
<td>Max number of research <br />papers per semester / trisemester</td>
<td><b>1900</b></td>
<td><b>1400</b></td>
<td><b>2000</b></td>
<td><b>2200</b></td>
<td><b>4000</b></td>
</tr>
<tr>
<td>Number of student<br />research papers per year<br />(approx)</td>
<td><b>3800</b></td>
<td><b>4200</b></td>
<td><b>6000</b></td>
<td><b>4400</b></td>
<td><b>8000</b></td>
</tr>
</tbody>
</table>
<p>By any estimate, this volume of research is staggering and should ordinarily be a cause for pride. However law universities are also beset with the same anxieties of poor research ‘quality’ and plagiarism that characterize the broader academy. While my previous study contains a fuller discussion on the causes of poor legal research at these universities, I would like, here, to only reproduce some of my survey conclusions from that study that would feed the discussion for the later sections of this paper.</p>
<ul>
<li>From my surveys it appeared that both students and faculty shared a sense that the research burden on students in these universities was excessive and too onerous to facilitate high quality research.</li>
<li>Students respond to the high research load by budgeting their efforts – working more intensely on some research assignments while neglecting others. This accorded with the responses from faculty members who reported an extremely low number of high quality research papers turned in. Responses from faculty indicate that a high percentage of papers received fall under a median category between ‘high quality’ and ‘abjectly low quality’ – i.e. there are a large number of papers which, while offering a cogent account of the topic do not add any insight of their own.</li>
<li>Both students and faculty reported generally, the existence of a high degree of plagiarism (defined as the inclusion of extrinsic material without attributing sources) sourced both from amongst their peers as well as from extrinsic sources. Although most students (78%) claimed never to have directly copied from other students’ papers, many (67%) admitted to having shared their papers with other students either for ‘reference’, or more commonly, for adaptation/reuse in their assignments. The responses to whether they had any reservations against the practice were diverse with more students in favour of the practice of plagiarism (47%) than against (30%). Without admitting to participating it in themselves, 60% of respondents characterised the prevalence of ‘copy/paste’ plagiarism in research on their campus as ‘Rampant’ or ‘High’. Many reasons were forthcoming for the prevalence of this practice among which the more frequently stated included: ‘High work pressure’, ‘lack of time’ ‘lack of incentive to do high quality research’, ‘lack of emphasis by evaluators on high quality academic work’, ‘pointlessness of repeating identical research from scratch’. Other less common reasons offered were ‘emphasis on sheer volume to the neglect of quality of analysis’ and ‘disingenuousness of topics’ and ‘Laziness’.</li>
<li>Over half the students surveyed had never published their research in journals. This despite the fact that 75% of respondents reported that at least 1 of their research papers was either publishable immediately or with modifications. More than half the respondents reported upwards of three papers that they themselves regarded as ‘publishable’.</li>
<li>One of the common reasons that the faculty identified for the incidence of plagiarism was that students had begun to stereotype teachers who were unlikely to check or be able to check for plagiarism and would submit entirely plagiarised papers to them. Other reasons included the difficulty of checking the huge number of papers they received individually for plagiarism and also the fact that students had an unreasonably high workload coupled with the lack of enough incentive to do thorough research. <br /><br />“Intuition” and “checking the number of sources” was still the common mode of detecting plagiarism although some faculty made creative use of the internet – particularly Google.</li>
</ul>
<ul>
<li>Faculty was asked if a paper that appeared plagiarized to a high degree, but also indicated that the student had put in an intelligent compilation of materials, would be acceptable by them. The response to this was largely affirmative with some faculty members saying that most papers would correspond to that category and this standard was imperative for a majority of students to pass! Most faculty required that the source material at least be acknowledged.</li>
<li>With regard to their research sources, there was a clear bias in favour of online sources almost to the exclusion of other sources. One respondent even rated online sources as being “more important than libraries”, and even claimed that she always began her legal research on the internet.</li>
</ul>
<p>It is evident then from the foregoing account that the law universities are poor representatives of ‘original’ scholarship. The career of students through the law school seems to be marked by a blithe collaboration with faculty in which a Nelson’s eye is turned to their less-obvious plagiarisms. Although it is possible to adopt a high moralistic tone and condemn these practices, in the remainder of this paper I would like to marshal resources that would lend some dignity to them. In the section that follows, I will argue firstly, that there are rival conceptions of originality which privilege the recombination of existing information, rather than being fixated on ivory-towered ex nihilo originality.<br />Under this conception, even the pastiche works by lazy law students emerge as eminently ‘original’. Secondly, I argue that slavish imitation is never always only that, and have long been recognized as an integral aspect of the creative process itself.</p>
<h3>‘Originality’ is only a special effect of reception</h3>
<p>In his fascinating book Original Copy, Robert Macfarlane draws on George Steiner’s vocabulary to contrast two different narratives of literary creation – The first, creatio, espouses “a hallowed vision of creation as generation” which “connotes some brief, noumenal moment of afflatus or inspiration’ during which the author composes her work.</p>
<blockquote class="webkit-indent-blockquote">
<div>..the creative urge is dramatized as pulsing deep within the fastness of the individual self, and the solitary writer is seen to conjure ideas into the influence proofed chamber of his or her imagination. <a href="#13">13</a></div>
</blockquote>
<p>By contrast, the second conception of literary creativity, inventio, which is commonly found both in literary postmodernism and Augustan aesthetics, conceives of “creation as rearrangement” and “refuse[s] to believe in the possibility of creation out of nothing, or in the uninfluenced literary work”.<a href="#14">14</a> Instead this view “privileges the act of making out of extant material”. According to these “recombinative theories”, the creating mind is conceived</p>
<blockquote class="webkit-indent-blockquote">
<div>“as a lumber-room in which are stored innumerable verbal odds and ends. The supposedly ‘original’ writer in fact works with ‘inherited lexical, grammatical, and semantic counters, combining and recombining them into expressive executive sequences’. <a href="#15">15</a></div>
</blockquote>
<p>As an instance of this latter view, Macfarlane cites the example of Derrida who coined the term itérabilité to describe “the semantic drift which inevitably occurs between consecutive uses of the same text”. Derived from a combination of the Latin verb iterare (meaning ‘to repeat’) and the Sanskrit word itara (meaning ‘other’), the word “valuably emphasizes ‘the logic which links repetition to alterity’. For Derrida, the repetition of a text inescapably involves its alteration: you can never step twice in the same poem, paragraph, or word.”</p>
<p>I find this latter conception, especially Derrida’s concept of itérabilité to be a valuable tool with which to think through the practices of the law students I interviewed. While being derived from a plurality of (frequently unacknowledged sources), their papers were never mere ‘slavish’ repetitions, but always contained an element of alterity.</p>
<p>Paradoxically, the networked information age that we inhabit both facilitates and preempts the flourishing of ‘recombinative creativity’. On the one hand, the abundance of informational resources that the internet puts at a researcher’s disposal, as well as the ease of word-processing makes it easy to rapidly refashion materials into a pastiche of one’s own. On the other hand, the illusion of novelty that such work may produce is capable of being dispelled equally swiftly, and more efficiently than ever before through the use of special applications designed to detect plagiarism. If, as MacFarlane suggests, originality is not “an indwelling quality of writerly production, but instead a function of readerly perception, or more precisely readerly ignorance (the failure to discern a writer’s sources)”, then the emergence of the internet has nearly made this form of originality impossible, by making this reader ignorance extremely evanescent (lasting only until the reader’s next Google search). The ability of students to pass off plagiarised material as their own will hinge increasingly on their ability to alter it unrecognizably, at which point the output is no longer a mere slavish imitation, but something new altogether – ‘quality research’.</p>
<div>
<p>In an essay on pre-print culture<a href="#16">16</a> , Lawrence Liang demonstrates that the notion that prior to print technology, the task of writing was reduced to that of slavish copying by scribes is false. As Liang notes, the real story is slightly more complicated.</p>
</div>
<blockquote class="webkit-indent-blockquote">
<div>
<div>Acting as annotators, compilers, and correctors, medieval bookowners and scribes actively shaped the texts they read. For instance, they might choose to leave out some of the Canterbury Tales, or contribute one of their own. They might correct Chaucer’s versification every now and then. They might produce whole new drafts of Chaucer by combining one or more of his published versions with others.<a href="#17">17</a></div>
</div>
</blockquote>
<div>
<p>With the arrival of print technology, however, a fundamental transformation occurs in the way the activities of writing and reading. Liang quotes an extended passage from Rebecca Lynn’s study of reading and writing practices in medieval England<a href="#18">18</a> that captures this change:</p>
</div>
<blockquote class="webkit-indent-blockquote">
<div>
<div>
<div>the benefits readers derived from the press, in terms of better access to authorized texts, were countered by a profound loss of opportunity for inventive forms of reception. They were free to take with the texts they recopied. Manuscript culture encouraged readers to edit or adapt freely any text they wrote out, or to re-shape the texts they read with annotations that would take the same form as the scribe's initial work on the manuscript. <i>The assumption that texts are mutable and available for adaptation by anyone is the basis, not only for this quotidian functioning of the average reader, but also for the composition of the great canonical works of the period</i>.<a href="#19">19</a></div>
</div>
</div>
</blockquote>
<div>
<p>Is it possible, in the light of this insight about the creative element of copying in pre-print days, to revise our pathological accounts of contemporary plagiarism? <a href="#20">20</a> Can we view plagiarism not as an offence against the ‘author’ity of knowledge, but in a sense as a reversion to a more primordial tradition in which the availability of a text presumes and is premised upon its availability for adaptation. As described previously, responses from interviews with faculty indicates a grudging tolerance of plagiarism in student research.</p>
<p>This tolerance, stemming from an acknowledgement that even acts of compilation are not wholly without a creative element, seems to restore us to such an understanding of ‘creative’ reading akin to what has been described above.</p>
<h3>Conclusion</h3>
<p>Few years ago, a famous author of textbooks on Intellectual Property law in India was discovered to have plagiarised close to two hundred pages of his new book on the Right to Information. The pages had been lifted verbatim from the manuscript sent by a famous law professor to the same publisher. When the matter came to light, the first author pleaded ignorance. After an ugly out-of-court tussle between the professor and the publisher (who happen to be one of India’s more powerful legal-publishing houses), a compromise was reached wherein the professor’s book would be published with a note inserted stating that 200 of his pages had been included in the other ‘author’s’ book.</p>
<p>I conclude this essay with this piece of copyright ‘gossip’ in order to highlight a couple of ironies that it animates. The first is, of course, the delicious irony that a famous author, of IP books no less, would stoop to such lows. (Could academic writing in any discipline be above suspicion now that academic writing in IP, that guardian discipline of genius ‘originality’, has proven susceptible to plagiarism?) The second irony is that this person’s reputation as the ‘author’ of a book, and of a genre of books survives despite the fact that he may not have penned even a single word of his book – which prompts us to ponder what function the author truly serves here. Lastly, I find the fact curious that both books continue to be displayed – and sold - in various legal bookstores, frequently side-by- side. The ‘fact’ of the plagiarism seems not to have significantly impacted sales of either author’s tome.</p>
<p>Tempting as it may be, one must resist treating this example as either exceptional or paradigmatic. Publishers in India in many cases do lead authors by their nose, and this is particularly so in the case of text-book publishing. However, this does not mean that original – in the Cartesian sense - academic writing does not continue to be produced in India. I feel this instance points us to the limits of the argument I have made in the preceding section. As well as it may be to celebrate ‘recombinative’ accounts of creativity in students, wholesale plagiarism with impunity by big name authors backed by large publishing houses cannot be easy to endure. In our acceptance of a combinatorial ‘inventio’ theory of creativity, it would be unwise too hastily to jettison the more austere creatio theory. As Macfarlane points out, popular attitudes to originality and plagiarism have moved between the two narratives of originality in a dialectical fashion so that they can best be thought of as “enmeshed .., or existing in a kind of helical wrap: each requiring the other for its support, counter-definition, and continued existence. Neither ever obliterates the other.”<a href="#21">21</a></p>
<p>However they may have been produced, we regard our ‘works’ not merely as our property but also relationally through ethics of propriety. In other words, what we write is our “own” not in the way that our shoe is our own, but in the sense that our friends are our own. Plagiarism in this context most closely approaches its original Latin roots – plaga: to convert a freeman into a slave22. – as the unjust enslavement or capture of our work by someone else.<br />What role has the internet played in this crisis of plagiarism? Despite the inherent promiscuity of the medium, I think that the arrival of the internet has not actually changed our practices in relation to plagiarism. So the fact that I may blithely pirate movies and music on the internet does not mean, automatically, that I adopt 'piracy' as my research methodology for academic writing. Our choices remain as they were – to acknowledge or not, with the latter being increasingly more risky in an age when exposure is only a google search away.</p>
<p>Finally, how does all of this relate to the question I posed at the start viz: what do we make of this self-slander? I think it will not do to simply declare ourselves innocent of the charge of plagiarism. (As Josef K’s prison chaplain says, that is what the guilty usually do.) But equally we must be careful, to continue with a Kafkaesque metaphor, not to see the gallows being constructed in the distance and hang ourselves on the presumption they are being erected solely for us. Kafka alone, of course, does not supply good grist for policy decisions. A possible way forward would be to import the cinematic notion of plagiarism into academic writing: Not all that is unacknowledged is unoriginal (as my <br />example from student research at law universities shows), but this does not extend to a license to appropriate all as one's own (the example of the famous IP author who plagiarised 200 pages from a professor). The former is a function of the dominant, awkward alien aesthetic imposed by the University, which requires academic writing to be dully impersonal and abstract. Finding it too taxing, most students resort to a clumsy pastiche rather than, for instance, shifting to a more narrative style which they may be more comfortable with. The internet allows their pastiche to be more colorful than before.</p>
<p>The latter is plainly an ethical failing by someone who believes they can get away with impunity. The internet does not impact them in any way except that their 'crime' once discovered circulates endlessly on the internet (As this IP author discovered to his dismay).</p>
<p>In deciding what is to be done, however, I would advise our policy makers to make haste, only slowly.</p>
</div>
<h2>Notes</h2>
<div>
<p class="discreet"><a name="1">Lindey, A., 1952. <i>Plagiarism and originality</i>, Harper., New York, P.2</a></p>
<p class="discreet"><a name="2">Chu, S. et al., 2002. Letter from the group of Professors of Physics of Stanford University to the President of India. Available at: </a><a class="external-link" href="http://www.stanford.edu/dept/physics/publications/PDFfiles/india.pdf">http://www.stanford.edu/dept/physics/publications/PDFfiles/india.pdf</a> [Accessed December 22, 2010].</p>
<p class="discreet"><a name="3">Seethalakshmi, S., 2006. IIM-B prof held violating copyright. The Times of India. Available at: </a><a class="external-link" href="http://articles.timesofindia.indiatimes.com/2006-01-05/bangalore/27803993_1_iim-b-p-g-apte-copyright-violation">http://timesofindia.indiatimes.com/city/bangalore/IIM-B-prof-held-violatingcopyright/ articleshow/1359149.cms?curpg=2</a> [Accessed December 21, 2010].</p>
<p class="discreet"><a name="4">Tewari, M., 2008. Indian professor guilty of plagiarism. DNA India. Available at: </a><a class="external-link" href="http://www.dnaindia.com/india/report_indian-professor-guilty-of-plagiarism_1152417">http://www.dnaindia.com/india/report_indian-professor-guilty-of-plagiarism_1152417</a> [Accessed December 21, 2010].</p>
<p class="discreet"><a name="5">Singh, K., 2010. IIT-K sets up panel to probe plagiarism charges. Indian Express. Available at: </a><a class="external-link" href="http://www.expressindia.com/latest-news/iitk-sets-up-panel-to-probe-plagiarism-charges/695196/">http://www.expressindia.com/latest-news/iitk-sets-up-panel-to-probe-plagiarism-charges/695196/</a> [Accessed December 21, 2010].</p>
<p class="discreet"><a name="6">"Anveshan: Student Research Convention." Association of Indian Universities. Apr 2008. Research Division. 30 Apr 2008 <http://www.aiuweb.org/Research/research.asp>.</a></p>
<p class="discreet"><a name="7">Josy Joseph , ‘India lacks R&D base, laments DRDO chief ‘, (2000), [Internet], Available from: <</a><a class="external-link" href="http://www.rediff.com/news/2000/aug/11josy1.htm">http://www.rediff.com/news/2000/aug/11josy1.htm</a>> [Accessed 21 April 2008]</p>
<p class="discreet"><a name="8">‘Indian patent filings lag behind global average’, [Internet], Available from: <</a><a class="external-link" href="http://www.eetimes.com/electronics-news/4075557/Indian-patent-filings-lag-behind-global-average">http://www.eetimes.com/news/latest/showArticle.jhtml?articleID=204702703</a>> [Accessed 21 April 2008]</p>
<p class="discreet"><a name="9">Iyengar, P., 2008. Open Information Policy for Student Research in Law Universities. SSRN eLibrary. <br />Available at:</a><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555689"> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555689</a> [Accessed December 24, 2010].</p>
<p class="discreet"><a name="10">See for instance, Rose, M., 1993. <i>Authors and Owners: The Invention of Copyright</i>, Cambridge, Mass: <br />Harvard University Press. Woodmansee, M., 1984. The Genius and the Copyright: Economic and Legal<br />Conditions of the Emergence of the 'Author'. <i>Eighteenth-Century Studies</i>, 17(4), 425-448.</a></p>
<p class="discreet"><a name="11">For instance, the charge of plagiarism in the domain of cinema seems to have a significantly diluted charge. Bollywood has been accused frequently of aping Hollywood, although this does not stand in the way of it immense popularity and renown. Ramesh Sippy's Sholay is regarded as having been influenced by John Sturges' The Magnificent Seven, itself being similarly 'influenced' by Akira Kurosawa's The Seven Samurai. On the modern definition of originality which requires us all to be 'perfectly uninfluenced', this qualifies as plagiarism. This definition however did not stand in the way of Sholay becoming an iconic film for Indian cinema.</a></p>
<p class="discreet"><a name="12">Respectively The National Academy of Legal Studies and Research (NALSAR), the National Law School of India University (NLSIU) and the National University of Juridical Sciences (NUJS).Although this sample is not sufficiently representative to make statistically kosher extrapolations – indeed, I make no such claim - I think the responses I received affirmed certain interesting observable trends about student research, that would seem commonsensical to anyone who teaches in India. To that extent, I think this data yields some interesting starting points for the theme of the current paper.</a></p>
<p class="discreet"><a name="13">Macfarlane, R., 2007. Original Copy: Plagiarism and Originality in Nineteenth-Century Literature, Oxford: Oxford University Press. p.2</a></p>
<p class="discreet"><a name="14">Ibid, p.4</a></p>
<p class="discreet"><a name="15">Ibid</a></p>
<p class="discreet"><a name="16">Liang, L., 2009. A Brief History of the Internet from the 15th to the 18th Century. In N. Rajan, ed. <i>The Digitized Imagination</i>. Routledge India, pp. 15-36.</a></p>
<p class="discreet"><a name="17">Ibid</a></p>
<p class="discreet"><a name="18">Schoff, R.L., 2004. Freedom from the Press: Reading and Writing in Late Medieval England. Harvard University. Available at: </a><a class="external-link" href="http://sunzi.lib.hku.hk/ER/detail/hkul/3516592">http://sunzi.lib.hku.hk/ER/detail/hkul/3516592</a>. cited in Liang, L., 2009. A Brief History of the Internet from the 15th to the 18th Century. In N. Rajan, ed. The Digitized Imagination. Routledge India, pp. 15-36.</p>
<p class="discreet"><a name="19">Ibid</a></p>
<p class="discreet"><a name="20">For instance the ‘epidemic of plagiarism’ language typified in this BBC article Precey, Matt. “Study shows 'plagiarism epidemic'.” BBC 17 Jan 2008. 13 May 2008 <</a><a class="external-link" href="http://news.bbc.co.uk/2/hi/uk_news/england/cambridgeshire/7194850.stm">http://news.bbc.co.uk/1/hi/england/cambridgeshire/7194850.stm</a>>.</p>
<p class="discreet"><a name="21">Supra n. 12, at p. 17</a></p>
<p class="discreet"><a name="22">See Voltaire, 1824. <i>A philosophical dictionary: from the French</i>, J. and H. L. Hunt. (Accessed from Google Books)</a></p>
</div>
<h2><span class="Apple-style-span">Also see these:</span></h2>
<div>
<div>
<ul>
<li><a class="external-link" href="http://epw.in/epw/uploads/articles/15759.pdf">Economic and Political WEEKLY</a></li>
<li><a class="external-link" href="http://originalfakes.wordpress.com/2011/03/03/epw-article-on-plagiarism/">Originalfakes</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1775582">Social Science Research Network</a></li>
</ul>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/plagiarism-in-indian-academia'>http://editors.cis-india.org/a2k/blogs/plagiarism-in-indian-academia</a>
</p>
No publisherprashantIntellectual Property RightsCopyrightAccess to Knowledge2014-05-29T05:55:27ZBlog EntryComments to the Ministry on WIPO Broadcast Treaty (March 2011)
http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011
<b>As a follow up to a stakeholder meeting called by the MHRD on the WIPO Broadcast Treaty, CIS provided written comments on the April 2007 Non-Paper of the WIPO Broadcast Treaty, emphasising the need for a signal-based approach to be taken on the Broadcast Treaty, and making it clear that India should continue to oppose the creation of new rights for webcasters.</b>
<p>On February 22, 2011, the Ministry of Human Resource Development held a meeting to decide on the Indian position on the WIPO Broadcast Treaty. The Ministry asked the participants at the meeting to send in written submissions on four matters. We sent in submissions on those four issues, as well as a few others.</p>
<h2>Comments on the non-paper for the WIPO Broadcast Treaty by the Centre for Internet and Society</h2>
<p>On February 23, 2011, the Ministry of HRD had asked for comments on four matters:</p>
<ol>
<li>
<p>Article 3 of the Non-paper which was circulated earlier</p>
</li>
<li>
<p>Term of protection for signal</p>
</li>
<li>
<p>Nature of limitations and exceptions</p>
</li>
<li>
<p>Protection of signal and retransmission</p>
</li>
</ol>
<p>We have made submissions on those and a few other matters as well. Unless noted otherwise, all comments made in this note pertain to the final non-paper (April 2007) and not the draft non-paper (March 2007).</p>
<h2>Article 3</h2>
<p>Article 3 of the draft non-paper that was circulated (March 2007) for comments from country delegates stated:</p>
<blockquote>
<p>3. Scope of Application</p>
<p>The provisions of this Treaty shall not provide any protection in respect of</p>
<blockquote>
<p>(i) mere retransmissions;</p>
<p>(ii) any transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or</p>
<p>(iii) any transmissions over computer networks (transmissions using the Internet</p>
<p>Protocol, “webcasting”, or “netcasting”).</p>
</blockquote>
</blockquote>
<p>A number of people present at the recent MHRD-organized meeting noted that “mere retransmissions” is a confusing term. In the revised non-paper (April 2007), it has been clarified that protection is not granted to third parties for merely retransmitting another’s signal (Art. 3(4)(i)).</p>
<blockquote>
<p>3. Specific Scope and Object of Protection</p>
<blockquote>
<p>(4) The provisions of this Treaty shall not provide any protection</p>
<blockquote>
<p>(i) to retransmitting third parties in respect of their mere retransmissions by any means of broadcasts by broadcasting organizations;</p>
<p>(ii) to any person for transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or</p>
<p>(iii) to any person for transmissions over computer networks</p>
</blockquote>
</blockquote>
</blockquote>
<p>In addition, Art. 3(4)(iii) is currently ambiguous since it is not clear whether “retransmissions” are subsumed under the word transmission. By allowing for separate rights for retransmission over computer networks, the Treaty allows for the creation of two classes: traditional broadcasters who will have rights over retransmissions over computer networks, and all other persons who will have no rights over transmissions. Thus, if “retransmission” is not subsumed under the word “transmission”, it would be advisable to alter that clause to read “<i>to any person for transmissions or retransmissions over computer networks</i>”.</p>
<p>Lastly, Art. 3(4) should additional prevent protection for persons broadcasting materials for which they have not acquired copyright, or for broadcasting materials in the public domain.</p>
<h2>Term of Protection of Signals</h2>
<p>No term of protection should be provided. As was noted by the US government in its response to the draft non-paper, it is questionable “whether a 20-year term of protection is consistent with a signal-based approach”. The Brazilian delegation also states: “Article 13 should be deleted. A twenty-year term of protection is unnecessary. The agreed “signal-based” approach to the Treaty implies that the objected of protection is the signal, and therefore duration of protection must be linked with the ephemeral life of the signal itself.” Thus, a term is only needed if we stray away from a signal-based approach. As we do not wish to do so, there should be no term of protection.</p>
<h2>Limitations and Exceptions</h2>
<p>The limitations and exceptions (L&E) currently provided for allow for mirroring of copyright L&E limited by a Berne-like three-step test.</p>
<p>However, reasons for providing protection over broadcasting are not the same as those for copyright. For instance, a country may wish to make exceptions to signal protection for cases such as broadcast of a national sport, as India has done with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act.</p>
<p>This might well afoul of the three-step test proposed in Article 10(2). Furthermore, a country may wish to limit the application of broadcasters rights for national broadcasters (whose programming is paid for by taxpayers, and thus should be available to them), but may not be able to do so under the provisions of Article 10(2). Thus, Article 10(2) should be deleted, and Article 10(1) should be expanded to include issues of national interest and for free-to-air broadcast signals.</p>
<h2>Protection of Signal and Retransmission</h2>
<p>It should be a sine qua non condition of India’s that that this be a purely signal-based treaty with no fixation or post-fixation rights. Thus, it should restrict itself to protection of signals, and simultaneous retransmission.</p>
<p>As a result, no separate right to prevent unauthorized “decryption” should be granted, since signal-theft is already a crime. For instance, this provision would also cover decrypting an unauthorized retransmission without authorization from the retransmitter. This provides the unauthorized retransmitter rights, even though s/he has no right to retransmit. This leads to an absurd situation.</p>
<p>As stated by the Brazilian government:</p>
<blockquote>
<p>“[Article 10 of the draft non-paper and Article 9 of the non-paper] is inconsistent with a “signal-based approach”. It creates unwarranted obstacles to technological development, to access to legitimate uses, flexibilities and exceptions and to access to the public domain. It does not focus on securing effective protection against an illicit act, but rather creates new exclusive rights so that they cover areas unrelated with the objective of the treaty, such as control by holder of industrial production of goods, the development and use of encryption technologies, and private uses. The prohibition of mere decryption of encrypted signals, without there having been unauthorized broadcasting activity, is abusive.”</p>
</blockquote>
<h2>Other comments</h2>
<h3>Article 7</h3>
<p>Article 7 of the non-paper provides broadcasters rights post-fixation (“Broadcasting organizations shall enjoy the exclusive right of authorizing … the deferred transmission by any means to the public of their fixed broadcasts. ”). This is contrary to a signal-based approach. A signal-based approach would necessarily mean that it is only signal theft (which happens only via unauthorized simultaneous retransmission) that should be protected. Deferred transmission should implicate the rights of the owner of copyright, but not of the broadcasting organization.</p>
<h3>Article 4</h3>
<p>As suggested by the Brazilian government, Article 4(1) which proposes a non-prejudice clause should be amended to add the words “and access to the public domain” at its end. This is consistent with the WIPO Development Agenda.</p>
<h3>Article 5</h3>
<p>India should re-iterate its suggestion to add the following to the definition of “broadcast” under Art. 5(a): “‘broadcast’ shall not be understood as including transmission of such a set of signals over computer networks. ”</p>
<p>Further, the phrase “general public ” should be retained in Art.5 (as was present in the draft non-paper), and should not be made into “public”. The danger is that a limited public (say family members) could possibly be covered by the term “public”, while they will be excluded from “general public”, which in any case is the target audience of all broadcast.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011'>http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011</a>
</p>
No publisherpraneshAccess to KnowledgeIntellectual Property RightsBroadcastingSubmissionsTechnological Protection Measures2012-12-14T10:29:20ZBlog EntryGovt for Legalising Parallel Import of Copyright Works; Publishers Oppose
http://editors.cis-india.org/a2k/blogs/govt-legalising-parallel-import-of-copyright-work
<b>Section 2(m) legalises the parallel imports of books and other copyrighted material into India and was part of the initial Copyright Amendment Bill introduced in the Parliament of India in 2010. </b>
<p>Section 2(m) reads as below:</p>
<blockquote class="webkit-indent-blockquote">
<div>"[P]rovided 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."</div>
</blockquote>
<p>Unfortunately, the government did a sudden volte face owing to pressure from publisher lobbies and deleted it from the latest version of the Bill. The provision would have helped students gain access to the latest affordable versions of text books from around the world.</p>
<p>When the Bill was referred to a Parliamentary Standing Committee for review, the said Committee strongly supported the introduction of section 2(m) and stated as below:</p>
<blockquote class="webkit-indent-blockquote">
<p>"that availability of low priced books under the present regime is invariably confined to old editions. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books."</p>
</blockquote>
<blockquote class="webkit-indent-blockquote">
<p>"Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. Thus, apprehensions about the flooding of the primary market with low priced editions, may be mis-founded as such a situation would be tackled by that country's law. The Committee would, however, like to put a note of caution to the government to ensure that the <strong>purpose for which the amendment is proposed i.e., to protect the interest of the students is not lost sight of</strong>."</p>
</blockquote>
<div class="pullquote"><span class="Apple-style-span">Despite the Standing Committees support, it is curious as to why the government dropped this provision, particularly when it would have tremendously helped a number of students gain access to latest low priced editions of text books from around the world. It ought not to have succumbed to the pressures of the publishing lobby.</span></div>
<p> </p>
<p> </p>
<p> </p>
<p> </p>
<p> </p>
<p> </p>
<p> </p>
<p> </p>
<p>Empirical studies done on this count clearly demonstrate that publishers only introduce old versions of books in India. The latest versions have to be imported, and they are very expensive, often times costing more than what they cost in the US and EU. See the Economic Times article documenting this empirical study <a class="external-link" href="http://economictimes.indiatimes.com/opinion/policy/govt-for-legalising-parallel-import-of-copyright-works-publishers-oppose/articleshow/7723572.cms">here</a>.</p>
<p>Further, an easy right of import enables any third party to import books which could also then be made available in accessible formats to the visually impaired. </p>
<p class="callout">Download the Economic Times article by Shamnad Basheer <a href="http://editors.cis-india.org/a2k/blogs/govt-legalising-parallel-import" class="internal-link" title="Govt for legalising parallel import of copyright works; publishers oppose">here</a>. [PDF, 470 Kb]</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/govt-legalising-parallel-import-of-copyright-work'>http://editors.cis-india.org/a2k/blogs/govt-legalising-parallel-import-of-copyright-work</a>
</p>
No publisherShamnad BasheerIntellectual Property RightsCopyrightAccess to Knowledge2011-08-30T10:19:35ZBlog EntryCopyright Amendment Bill in Parliament
http://editors.cis-india.org/a2k/blogs/copyright-bill-parliament
<b>The Copyright Amendment Bill is expected to be presented in the Rajya Sabha by the Minister for Human Resource and Development, Kapil Sibal today afternoon. The much awaited Bill (since it has been in the offing since 2006) has undergone significant changes since its initial appearance.</b>
<p>Given below is a very quick first cut highlight of the Bill from a public interest perspective. A more detailed analysis will follow after the session discussions. </p>
<ul><li>Parallel imports: The parallel imports clause which had been put in as sec 2(m) has now been dropped from the present draft. This is a big setback because educational institutions, libraries and archives, second hand book, etc., were looking to this provision to bring down the prices and hasten the availability of books. This also affects persons with disabilities since they will be unable to import books in accessible formats.</li><li>Persons with disabilities: There are two provisions relating to persons with disabilities which have been introduced. Section 52 (1) (zb) relates to the conversion, reproduction, issues of copies or communication to the public of any work in any accessible format, provided that these activities are meant to enable access to persons with disabilities and sufficient safeguards are taken to ensure that these materials do not enter the mainstream market. This section in a sense is broader and more encompassing than some provisions found in other countries, which relate exclusively to the blind or visually impaired. This section would adequately cover persons with other disabilities who cannot read print. A new section 31B also provides for compulsory licensing for profit entities wishing to convert and distribute works in accessible formats, provided that they are primarily working for persons with disabilities and are registered under sec 12A of the Income Tax Act or under chapter X of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.</li><li>Many exceptions under 52 (1) (i) relating to fair dealing have been extended to all works except computer programmes. New sections 52 (1) (b) and (c) protect transient and incidental storage from being classified as infringing copies, which offers protection to entities such as online intermediaries. </li><li>The scope of compulsory licensing under sec 31 has been expanded from ‘any Indian work’ to ‘any work’. Three new sections 31 B, 31C and 31 D have been introduced. Section 31 B has already been described in the paragraph on persons with disabilities. Section 31 C lays down strict measures relating to statutory licensing in case of cover version, being a sound recording of a literary, dramatic or musical work. Section 31 D relates to statutory licenses for broadcasting organizations wishing to broadcast a literary or musical work or sound recording.</li><li>Non commercial public libraries can now store electronic copies of any non digital works they own (52(n)).</li><li>The new Bill introduces Technological protection measures (65A and 65B) and makes circumvention and distribution of works in which rights managements systems have been removed an offence which is punishable with imprisonment upto two years as well as fine. In addition the copyright owner can also avail of civil remedies. As such India is not really required to have these provisions in the copyright legislation since we are not yet a signatory to the WCT or the WPPT and such provisions will hamper consumer interests. </li><li>Terms of copyright have been increased significantly without reason, thus preventing works from falling into the public domain. For instance, the term of photographs has been increased from 60 years to life of the photographer plus 60 years. This is far in excess of the minimum term stipulated by international treaties. </li></ul>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/copyright-bill-parliament'>http://editors.cis-india.org/a2k/blogs/copyright-bill-parliament</a>
</p>
No publishernirmitaIntellectual Property RightsCopyrightAccess to Knowledge2011-08-30T09:26:44ZBlog EntryCIS-TWN Analysis of WIPO Treaty for the Print Disabled (SCCR/22/15)
http://editors.cis-india.org/a2k/blogs/cis-analysis-july2011-treaty-print-disabilities
<b>CIS and the Third World Network (TWN) conducted a quick analysis of the "Consensus document on an international instrument on limitations and exceptions for persons with print disabilities presented by Argentina, Australia, Brazil, Chile, Ecuador, Mexico, Paraguay, and the United States of America" presented as WIPO document numbered SCCR/22/15.</b>
<h1>SCCR/22/15</h1>
<p>ORIGINAL: English</p>
<p>DATE: June 20, 2011</p>
<p>Standing Committee on Copyright and Related Rights</p>
<p>Twenty-Second Session Geneva, June 15 to 24, 2011</p>
<p>Consensus document on an international instrument on limitations and exceptions for persons with print disabilities <i>presented by Argentina, Australia, Brazil, Chile, Ecuador, Mexico, Paraguay, and the United States of America</i></p>
<h2 id="preamble">PREAMBLE</h2>
<p>Recalling the principles of non-discrimination, equal opportunity and access, proclaimed in the United Nations Convention on the Rights of Persons with Disabilities,</p>
<p>Mindful of the obstacles that are prejudicial to human development and the fulfillment of disabled persons with regard to education, research, access to information and communication,</p>
<p>Emphasizing the importance of copyright protection as an incentive for literary and artistic creation and enhancing opportunities for everyone to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits,</p>
<p>Recognizing the importance of both accessibility to the achievement of equal opportunities in all spheres of society and of the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,</p>
<p>Aware of the many barriers to access to information and communication experienced by persons who are blind or have limited vision, or have other disabilities regarding access to published works,</p>
<p>Aware that the majority of visually impaired persons/persons with a print disability live in countries of low or moderate incomes,</p>
<p>Desiring to provide full and equal access to information, culture and communication for the visually impaired persons/persons with a print disability and, towards that end, considering the need both to expand the number of works in accessible formats and to improve access to those works,</p>
<p>Recognizing the opportunities and challenges for the visually impaired/persons with a print disability presented by the development of new information and communication technologies, including technological publishing and communication platforms that are transnational in nature,</p>
<p>Recognizing the need to seek, receive and impart information and ideas through any media and regardless of frontiers,</p>
<p>Aware that national copyright legislation is territorial in nature, and where activity is undertaken across jurisdictions, uncertainty regarding the legality of activity undermines the development and use of new technologies and services that can potentially improve the lives of the visually impaired/persons with print disabilities,</p>
<p>Recognizing the large number of Members who, to that end, have established exceptions and limitations in their national copyright laws for visually impaired persons/persons with a print disability, yet the continuing shortage of works in <s>special</s><span style="text-decoration: underline;">accessible</span> formats for such persons,</p>
<p>Recognizing that the preference is for works to be made accessible by rightholders to people with disabilities at publication and that, to the extent that the market is unable to provide appropriate access to works for visually impaired persons/persons with a print disability, it is recognized that alternative measures are needed to improve such access,</p>
<p>Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, and that such a balance must facilitate effective and timely access to works for the benefit of visually impaired persons/persons with a print disability,</p>
<p>Emphasizing the importance and flexibility of the three-step test for limitations and exceptions established in Article 9(2) of the Berne Convention and other international instruments,</p>
<p>Considering the discussions within the WIPO Standing Committee on Copyright and Related Rights on the issue of exceptions and limitations for the benefit of visually impaired persons/persons with a print disability and the various proposals tabled by Member States,</p>
<p>Prompted by a desire to contribute to the implementation of the relevant recommendations of the Development Agenda of the World Intellectual Property Organization,</p>
<p>Taking into account the importance of an international legal instrument/joint recommendation/treaty both to increase the number and range of accessible format works available to visually impaired persons/persons with a print disability in the world and to provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired/have a print disability in order to support their full and effective participation in society on an equal basis with others and to ensure the opportunity to develop and utilize their creative, artistic and intellectual potential, for their own benefit and for the enrichment of society,</p>
<p>Have agreed as follows:</p>
<h2 id="article-a">ARTICLE A</h2>
<h2 id="definitions">DEFINITIONS</h2>
<p>For purposes of these provisions</p>
<p>"work" means a work in which copyright subsists, whether published or otherwise made publicly available in any media.</p>
<p>"accessible format copy" means a copy of a work in an alternative manner or form which gives a beneficiary person access to the work, including to permit the person to have access as feasibly and comfortably as a person without a print disability. The accessible format copy must respect the integrity of the original work and be used exclusively by <span style="text-decoration: underline;">beneficiary persons</span><s>persons with print disabilities</s>.<sup><a class="footnoteRef" href="#fn1" id="fnref1">1</a></sup></p>
<p>[Possible enumeration of different formats.]<sup><a class="footnoteRef" href="#fn2" id="fnref2">2</a></sup></p>
<p>"authorized entity" means a governmental agency, a non-profit entity or <span style="text-decoration: underline;">an</span><s>non-profit</s> organization<sup><a class="footnoteRef" href="#fn3" id="fnref3">3</a></sup> that has as one of its <s>primary missions</s><span style="text-decoration: underline;">activities</span> to assist persons with print disabilities by providing them with services relating to education, training, adaptive reading, or information access.</p>
<p>An authorized entity maintains policies and procedures to establish the bona fide nature of persons with print disabilities that they serve.</p>
<p><s>An authorized entity has the trust of both persons with print disabilities and copyright rights holders. It is understood that to obtain the trust of rightholders and beneficiary persons, it is not necessary to require the prior permission of said rightholders or beneficiary persons.</s><sup><a class="footnoteRef" href="#fn4" id="fnref4">4</a></sup></p>
<p><s>If an authorized entity is a nation-wide network of organizations, then all organizations, institutions, and entities that participate in the network must adhere to these characteristics.</s></p>
<p>"reasonable price for developed countries" means that the accessible format copy of the work is available at a similar or lower price than the price of the work available to persons without print disabilities in that market.</p>
<p>"reasonable price for developing countries" means that the accessible format copy of the work is available at prices that are affordable in that market, taking into account the humanitarian needs of persons with print disabilities.</p>
<p>References to 'copyright' include copyright and any relevant rights related to copyright that are provided by a Contracting Party in compliance with <s>the Rome Convention, the TRIPS Agreement, the WPPT or otherwise</s>any applicable international treaties or otherwise.<sup><a class="footnoteRef" href="#fn5" id="fnref5">5</a></sup></p>
<h2 id="article-b">ARTICLE B</h2>
<h2 id="beneficiary-persons">BENEFICIARY PERSONS</h2>
<p>A beneficiary person is a person who</p>
<ol style="list-style-type: lower-alpha; ">
<li>is blind;</li>
<li>has a visual impairment or a perceptual or reading disability, such as dyslexia, which cannot be improved by the use of corrective lenses to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or</li>
<li>is unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading.</li>
</ol>
<h2 id="article-c">ARTICLE C</h2>
<h2 id="national-law-exceptions-on-accessible-format-copies">NATIONAL LAW EXCEPTIONS ON ACCESSIBLE FORMAT COPIES</h2>
<ol style="list-style-type: decimal; ">
<li>
<p>Member State/Contracting Party should/shall provide in their national copyright law for an exception or limitation to the right of reproduction, the right of distribution and the right of making available to the public, as defined in article 8 of the WCT, for beneficiary persons as defined herein.</p>
</li>
<li>
<p>A Member State/Contracting Party may fulfill Article C (1) by providing an exception or limitation in its national copyright law such that</p>
<ol style="list-style-type: upper-alpha; ">
<li>
<p>Authorized entities shall be permitted without the authorization of the owner of copyright to make an accessible format copy of a work, supply that accessible format copy or an accessible format copy obtained from another authorized entity to a beneficiary person by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve these objectives, when all of the following conditions are met:</p>
<ol style="list-style-type: decimal; ">
<li>the authorized entity wishing to undertake said activity has lawful access to that work or a copy of that work;</li>
<li>the work is converted to an accessible format copy, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to the beneficiary person;</li>
<li>copies of the work in the accessible format are supplied exclusively to be used by beneficiary persons; and </li>
<li><s>4. the activity is undertaken on a non-profit basis. </s><sup><a class="footnoteRef" href="#fn6" id="fnref6">6</a></sup></li>
<li>
<p>A beneficiary person or someone acting on his or her behalf may make an accessible format copy of a work for the personal use of the beneficiary person where the beneficiary person has lawful access to that work or a copy of that work.</p>
</li>
</ol> </li>
<li>
<p>A Member State/Contracting Party may fulfill Article C (1) by providing any other exception or limitation in its national copyright law that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.</p>
</li>
<li>
<p>The Member State/Contracting Party may limit said exceptions or limitations to published works which, in the applicable <s>special</s><span style="text-decoration: underline;">accessible</span> format, cannot be otherwise obtained within a reasonable time and at a reasonable price.</p>
</li>
<li>
<p>It shall be a matter for national law to determine whether exceptions or limitations referred to in this Article are subject to remuneration.</p>
</li>
</ol>
<h2 id="article-d">ARTICLE D</h2>
<h2 id="cross-border-exchange-of-accessible-format-copies">CROSS-BORDER EXCHANGE OF ACCESSIBLE FORMAT COPIES</h2>
<ol style="list-style-type: decimal; ">
<li>
<p>Member States/Contracting Parties should/shall provide that if an accessible format copy of a work is made under an exception or limitation or export license in their national law, that accessible format copy may be distributed or made available to a beneficiary person in another Member State/Contracting Party by an authorized entity<s> where that other Member State/Contracting Party would permit that beneficiary person to make or import that accessible copy</s>.<sup><a class="footnoteRef" href="#fn7" id="fnref7">7</a></sup></p>
</li>
<li>
<p>A Member State/Contracting Party may fulfill Article D(1) by providing an exception or limitation in its national copyright law such that:</p>
<ol style="list-style-type: upper-alpha; ">
<li>
<p>Authorized entities shall be permitted without the authorization of the owner of copyright to distribute or make available accessible format copies to authorized entities in other Member States/Contracting Parties for the exclusive use of persons with print disabilities, where such activity is undertaken on a non-profit basis.<sup><a class="footnoteRef" href="#fn8" id="fnref8">8</a></sup></p>
</li>
<li>
<p>Authorized entities shall be permitted without the authorization of the owner of copyright to distribute or make available accessible format copies to persons with print disabilities in other Member States/Contracting Parties where the authorized entity has verified the individual is properly entitled to receive such accessible format copies under that other Member State/Contracting Party's national law.<sup><a class="footnoteRef" href="#fn9" id="fnref9">9</a></sup></p>
</li>
</ol> </li>
</ol>
<p>The Member State/Contracting Party may limit said distribution or making available to published works which, in the applicable <s>special</s><span style="text-decoration: underline;">accessible</span> format, cannot be otherwise obtained within a reasonable time and at a reasonable price, in the country of importation.</p>
<ol style="list-style-type: decimal; ">
<li><span style="text-decoration: underline;">Without prejudice to other exceptions to the exclusive rights of authors that are otherwise permitted by the Berne Convention or the TRIPS Agreement,</span> a Member State/Contracting Party may fulfill Article D(1) by providing any other exception or limitation in its national copyright law that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.</li>
</ol>
<h2 id="article-e">ARTICLE E</h2>
<h2 id="importation-of-accessible-format-copies">IMPORTATION OF ACCESSIBLE FORMAT COPIES</h2>
<p>To the extent that national law would permit a beneficiary person or an authorized entity acting on the beneficiary person’s behalf to make an accessible format copy of a work, the national law should/shall permit a beneficiary person or an authorized entity acting on that person's behalf to import an accessible format copy.<sup><a class="footnoteRef" href="#fn10" id="fnref10">10</a></sup></p>
<h2 id="article-f">ARTICLE F</h2>
<h2 id="circumvention-of-technological-protection-measures"><span style="text-decoration: underline;">CIRCUMVENTION OF </span>TECHNOLOGICAL PROTECTION MEASURES</h2>
<p>Member States/Contracting Parties should/shall ensure that beneficiaries of the exception provided by Article C have the means to enjoy the exception where technological protection measures have been applied to a work.</p>
<p><s>In the absence of voluntary measures by rightholders and to the extent that copies of the work in the accessible format are not available commercially at a reasonable price or via authorized entities, Member States/Contracting Parties should/shall take appropriate measures to ensure that beneficiaries of the exception provided by Article C have the means of benefiting from that exception when technical protection measures have been applied to a work, to the extent necessary to benefit from that exception.</s><sup><a class="footnoteRef" href="#fn11" id="fnref11">11</a></sup></p>
<h2 id="article-g"><s>ARTICLE G</s></h2>
<h2 id="relationship-with-contracts"><s>RELATIONSHIP WITH CONTRACTS</s></h2>
<p><s>Nothing herein shall prevent Member States/Contracting Parties from addressing the relationship of contract law and statutory exceptions and limitations for beneficiary persons.</s></p>
<h2 id="article-h">ARTICLE H</h2>
<h2 id="respect-for-privacy">RESPECT FOR PRIVACY</h2>
<p>In the implementation of these exceptions and limitations, Member States/Contracting Parties should/shall endeavour to protect the privacy of beneficiary persons on an equal basis with others.</p>
<p>[End of document]</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1">
<p>This change must be replicated everywhere where appropriate. <a class="footnoteBackLink" href="#fnref1" title="Jump back to footnote 1">↩</a></p>
</li>
<li id="fn2">
<p>Formats should not be enumerated, since even the disabilities are not enumerated. <a class="footnoteBackLink" href="#fnref2" title="Jump back to footnote 2">↩</a></p>
</li>
<li id="fn3">
<p>Non-profit organizations alone cannot cope with the needs of visually impaired people in the developing world. Thus, while it may sound like the ideal, it is impractical given the realities of the situation in the developing world. <a class="footnoteBackLink" href="#fnref3" title="Jump back to footnote 3">↩</a></p>
</li>
<li id="fn4">
<p>A "trust" system would make it impossible for developing countries to actualize these provisions. If despite this, copyright infringement happens, then national remedies exist for such infringement. <a class="footnoteBackLink" href="#fnref4" title="Jump back to footnote 4">↩</a></p>
</li>
<li id="fn5">
<p>To clarify: what is the purpose of these and not mentioning WCT, Berne, etc.? <a class="footnoteBackLink" href="#fnref5" title="Jump back to footnote 5">↩</a></p>
</li>
<li id="fn6">
<p>To be deleted for the same reasons as above. Non-profit basis, if insisted upon, can be retained in Article D(2)(A), but not here. <a class="footnoteBackLink" href="#fnref6" title="Jump back to footnote 6">↩</a></p>
</li>
<li id="fn7">
<p>Import law provisions are already there in Article E, and should remain there. In Art. E, it states, “shall permit” import, and here, “would permit”. <a class="footnoteBackLink" href="#fnref7" title="Jump back to footnote 7">↩</a></p>
</li>
<li id="fn8">
<p>This instance of "non-profit basis" may be retained if necessary. <a class="footnoteBackLink" href="#fnref8" title="Jump back to footnote 8">↩</a></p>
</li>
<li id="fn9">
<p>To clarify: what would such verification require? Would self-certification suffice? <a class="footnoteBackLink" href="#fnref9" title="Jump back to footnote 9">↩</a></p>
</li>
<li id="fn10">
<p>It should be clarified, possibly through an agreed statement, that nothing in this article shall derogate from the flexibility provided in Art. 6 of the TRIPS Agreement, which allows for countries to provide international exhaustion.</p>
<p>Thus, if the principle of international exhaustion is in place (i.e., parallel importation is allowed), then importation can be carried out by anyone, and not just by a beneficiary person or an authorized entity. <a class="footnoteBackLink" href="#fnref10" title="Jump back to footnote 10">↩</a></p>
</li>
<li id="fn11">
<p>This second paragraph weakens the principle established in the first by adding more conditions. They are almost phrased as alternatives, and the first alternative (paragraph) is the better one. <a class="footnoteBackLink" href="#fnref11" title="Jump back to footnote 11">↩</a></p>
</li>
</ol></div>
</li>
</ol>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-analysis-july2011-treaty-print-disabilities'>http://editors.cis-india.org/a2k/blogs/cis-analysis-july2011-treaty-print-disabilities</a>
</p>
No publisherpraneshIntellectual Property RightsAccessibilityAccess to KnowledgeWIPO2011-10-12T08:29:01ZBlog EntryStatement of CIS on the WIPO Broadcast Treaty at the 23rd SCCR
http://editors.cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement
<b>The twenty-third session of the Standing Committee on Copyright and Related Rights is being held in Geneva from November 22, 2011 to December 2, 2011. Pranesh Prakash delivered this statement on a new proposal made by South Africa and Mexico (SCCR/23/6) on a treaty for broadcasters.
</b>
<p>The Centre for Internet and Society would like to thank the South African and Mexican delegations for their hard work on this text before us.</p>
<p>We wish to reiterate the statement on principles provided last SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcasting Treaty, and would like to associate ourselves with the statements made today by Public Knowledge, Computer & Communications Industry Association, Knowledge Ecology International, International Federation of Library Associations, and the Canadian Library Association.</p>
<h3>Broadcasters Already Protected Online<br /></h3>
<p>Broadcasters make two kinds of investments for which they are protected. They invest in infrastructure and they invest in licensing copyrighted works. The first investment is protected by 'broadcast rights', and the latter investment is protected by copyright law.</p>
<p>Broadcasters, being licensees of copyrighted works, generally already have rights of enforcement insofar as their licence is concerned. Therefore there is no need to provide for additional protections with regard to broadcasters in order to enable them to proceed against acts that violate existing copyright laws: they already have those rights by way of licence. This is often forgotten when talking about rights of broadcasters.</p>
<p>The investments to be made in infrastructure in traditional broadcast and in IP-based transmission are very different, even if it is the same 'traditional broadcasters' who are indulging in both. Given that this investment is the basis of additional protection for broadcaster over and above the rights provided to underlying copyright, IP-based transmissions should not be covered in any way even if it is traditional broadcast organizations that are engaged in them.</p>
<p>Providing new and separate rights to large broadcasters for their online transmission, as is currently being done via the provision on 'retransmission' while excluding small webcasters will create a hierarchy and a class distinction without any basis in either principle or existing laws.</p>
<h3>Support Countries' Concerns</h3>
<p>We also wish to support the amendments suggested by the Indian delegation. As we were reminded by the Indian delegation, the General Assembly mandate of 2007 only extends to traditional broadcasting and to a signal-based approach. In this regard, we also wish to support the question posed by the United States delegation between signal-based and rights-based approaches, as also the strong statement by the Brazilian delegation on the need to ensure that cultural diversity and competition are protected and promoted by any international instrument on broadcasting, and we would like to add 'preservation of a vibrant public domain' as provided by Paragraph 16 of the WIPO Development Agenda.<br /><br />Thank you, Chair.<br /><br /><br /></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement'>http://editors.cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightIntellectual Property RightsBroadcastingWIPO2011-11-30T06:55:43ZBlog EntryComment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting
http://editors.cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment
<b>The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.</b>
<p> </p>
<p>Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.<br /><br />And I would like to congratulate Prof. Sirenelli on his excellent presentation.<br /><br />I would like to flag a few points, though:</p>
<ol><li>One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.</li><li>The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights</li><li>The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.<br /></li></ol>
<p>I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment'>http://editors.cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment</a>
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No publisherpraneshAccess to KnowledgeCopyrightPrivacyFreedom of Speech and ExpressionIntellectual Property RightsPiracyCensorshipWIPO2011-12-01T11:59:45ZBlog EntryCIS Intervention on Future Work of the WIPO Advisory Committee on Enforcement
http://editors.cis-india.org/a2k/blogs/ace-7-future-work-cis-intervention
<b>The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement (ACE) is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash intervened during the discussion of future work of the ACE with this comment.</b>
<p> </p>
<p>Thank you, Chair.</p>
<p>I just wanted to point out that some of the proposals on future work could be worded better to reflect their true meaning. For instance, one of the proposal calls for control of the problem of "parallel import". However, "parallel importation" is actually allowed by both the TRIPS Agreement and by various other instruments such as the Berne Convention? Indeed, calling “parallel import” a problem is like calling "exceptions and limitations" a problem. This is a view that has been firmly rejected here at WIPO, especially post the adoption of the WIPO Development Agenda. This, quite obviously, could not have been the intention of the proposal framers.</p>
<p>Further, the link between some of the proposals and the Development Agenda could be made clearer. It has been established that the Development Agenda is not just something for the Committee on Development and Intellectual Property (CDIP) to consider, but for all committees to make an integral part of their work.</p>
<p>I would also like to underscore the importance of evidence-based policy-making.</p>
<p>Lastly, I would like to mention that a report has already been commissioned by WIPO on intermediary liability, which was written by Prof. Lilian Edwards and was released in a side-event during SCCR 22, in June 2011.</p>
<p>If the ACE is going ahead with a study or an event, I would suggest that the UN Special Rapporteur on Freedom of Expression and Opinion, who in his report to the UN Human Rights Council dealt in some depth with intermediary liability, be involved or invited.</p>
<p>Thank you.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/ace-7-future-work-cis-intervention'>http://editors.cis-india.org/a2k/blogs/ace-7-future-work-cis-intervention</a>
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No publisherpraneshDevelopmentAccess to KnowledgeCopyrightIntellectual Property RightsWIPO2011-12-01T15:30:38ZBlog EntryCalling Out the BSA on Its BS
http://editors.cis-india.org/a2k/blogs/calling-out-the-bsa-on-bs
<b>The Business Software Alliance (BSA) is trying to pull wool over government officials' eyes by equating software piracy with tax losses. Pranesh Prakash points out how that argument lacks cogency, and that tax losses would be better averted if BSA's constituent companies just decided to pay full taxes in India.</b>
<p>In the past we have covered the Business Software Alliance's <a href="http://cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">lack of rigour</a> <a href="http://arstechnica.com/old/content/2005/06/4993.ars">in their piracy</a> <a href="http://www.economist.com/node/3993427">statistics</a>, and disconnect from their constituent members when it comes to <a href="http://www.cis-india.org/a2k/blog/2010-special-301">opposing free and open source software</a>. In reaction to the criticism they have received over the years, BSA has finally stopped equating lack of sales with losses. But now, they have started equating software piracy with tax losses.</p>
<h2>How IDC thinks tax works</h2>
<p>In a report prepared by International Data Corporation (IDC) for the Business Software Alliance (BSA), they note:</p>
<blockquote>
<p>Substantial value in form of potential industry and tax revenues is lost to software piracy: The situation in India is not healthy with a software piracy rate of 65% in 2009 (more than six out of ten PC software programs installed in 2009 were not paid for). Only one-third of the overall PC software revenues are captured by the industry incumbents and the rest are lost to software piracy. Most of the unlicensed software use occurs in otherwise legal businesses installing the programs on more PCs than allowed by the licenses they have paid for. Consequently, in 2009, the state exchequer tax receipts loss was roughly US$866 million at the current piracy and employment levels, as the industry lost its otherwise legitimate share of revenues to piracy.</p>
</blockquote>
<p>For this to be true, there must be two assumptions that are satisfied. First, those who are pirating software must not spend the money that they save by doing so on any other taxable activity. Second, the companies that would get the money if the software weren't pirated must pay the Indian government taxes. As we'll see, neither of these two assumptions are warranted.</p>
<p>The BSA-IDC report reasons as follows: Pirates don't pay taxes on the illegal software that they sell, so that is tax evasion and consequently a tax loss. It states:</p>
<blockquote>
<p>Higher demand for legal software will result in higher flow of license volume through the supply chain, resulting in increase in volume of business transactions. Each transaction adds a certain percentage of the deal or value added to the state exchequer's coffers in the form of indirect tax revenue[...] Increase in demand will also result in increased employment. Consequently, revenues from direct taxes will be increased for the government, as employees join newly created high-paying jobs.</p>
</blockquote>
<h2>How tax actually works</h2>
<p>That reasoning is flawed. The majority of software piracy in India happens through two methods: violation of software licence terms by using the software on more computers than it is licensed for; and pre-loading of illegal software by computer sellers. Those 'computer seller' pirates do not sell the software separately, but bundle it with the computer as an additional service. In other words, they don't charge for it in the first place. So, quite clearly, there is no tax evasion.</p>
<p>Despite there being no tax evasion, there is the possibility of tax loss for the state. That would happen when instead of doing taxable activity A with with their money, they do non-taxable activity B. Putting money in special government bonds instead of spending it on software, for instance, is one such instance. However, that is a strange, unwarranted assumption. People don't always put the money that they don't spend on software into government bonds. It is a much more reasonable assumption that people would spend that money on other consumables, like food or other such tangible commodities.</p>
<p>Lastly, there is the unwarranted assumption that increase in demand for legal software increases employment. In fact, it is a much more reasonable assumption that increase in piracy increases employment in case of developing countries. Printing ("DTP") shops use pirated versions of Photoshop, CorelDraw and InDesign, computer education centres use pirated versions of Microsoft Windows, offices use pirated versions of Microsoft Word and Excel. If these didn't teach their employees the use of pirated software, millions of people would lose their jobs. All of these employees pay direct taxes. There is no analysis in the BSA-IDC report that accounts for this, treating all these millions of people as non-existent for purposes of their analysis.</p>
<h2>Increasing tax: Make MNC software companies pay full taxes</h2>
<p>Thus, there is no real tax loss to the government if the money that would have been spent on commercial software was instead spent on some other commodity. Indeed, there might even be an increase in tax collection because software companies, including leading ones such as Microsoft, are much more likely to avoid taxes than companies that deal in tangible commodities. There are well-known routes of decreasing tax liability for intangible goods such as software. Software companies normally state that they license software instead of selling it (as this suits them on issues such as customs duties), but when it comes to income tax, they try to paint the transaction as a sale of a product. (Microsoft, for instance claims that its earnings in India are 'business income' and not 'royalties' and hence is exempt under the Double Taxation Avoidance Agreement between India and the USA.) A company that deals with tangible commodities has no such 'licensing vs. sale' loop-hole that they can try to exploit. Further, many software companies are located in special economic zones that are "software exporting zones", and hence get large tax deductions.</p>
<p>In India, for instance, Microsoft is resisting payment of income tax for by routing all licensing to distributors in India through a shell company in Singapore and holding that Microsoft India had no income tax liabilities. <a href="http://articles.timesofindia.indiatimes.com/2011-07-28/software-services/29824411_1_customs-duty-importer-ravi-venkatesan">Microsoft has been fined Rs. 2 crore</a> because it tried to separate the importing of software into India from the (more valuable) granting of licences to customers and pay only nominal customs duties on the former and under-declaring the value of the latter as zero. From nine Microsoft dealers a total of Rs 255 crore was collected as tax. Of the roughly Rs. 4000 crores loss that the BSA-IDC report claims, around 6% is realizable from just a single tax (customs duties) from 9 companies dealing in the products of one company. If we multiply this by all taxes (income tax included) amongst all the dealers of all the constituent companies of BSA, then the Indian government might recover more from taxes than is supposedly lost to piracy!</p>
<p>Elsewhere around the globe, the <a href="https://secure.wikimedia.org/wikipedia/en/wiki/Double_Irish_Arrangement">'Double Irish' arrangement</a>, the <a href="http://www.msnbc.msn.com/id/39784907/ns/business-bloomberg_businessweek/">'Dutch Sandwich' route</a> and other such are used by MNC software companies to evade taxes. Just as there are tax havens, there are some IPR havens that cater to companies selling/licensing software and other such intangible commodities.</p>
<p>If only these software companies were to stop evading taxes in the countries in which they sell software, then the government's tax collections would automatically increase.</p>
<h2>Final idiocies, and conclusion</h2>
<p>In the BSA-IDC report, they write: "Assessing the relationship between software piracy rates and UN Human Development Index (a measure of average achievements in a country in three basic dimensions of human development) suggests that countries with greater rates of software piracy tend to have lower levels of economic development. This further strengthens the hypothesis that IP rights (IPR) enforcement increases economic activity.".</p>
<p>This is as sensible as saying "countries with greater rates of industrial espionage (such as France, Germany, and USA) tend to have higher levels of economic development" strengthens the hypothesis that industrial espionage increases economic development. While it is empirically true that most countries with greater rates of software piracy have lower levels of economic development, it is equally true that countries with lower levels of economic development (being countries with poorer populations) have more software piracy. It is equally true that software piracy decreases if the cost of software decreases, as shown by the more carefully-conducted analysis in the Media Piracy in Emerging Economies report.<br />
</p>
<p>To use greater software piracy and lower economic development as evidence of the causal link between IPR enforcement and economic activity is to betray absolute ignorance about both economics and logic.</p>
<p>The startlingly poor level of analysis of the BSA-IDC report leaves no question that the conclusions were arrived at independently of the analysis. Such misleading analysis is worse than trash: it is downright dangerous as an instrument of policy setting.</p>
<p>To increase tax receipts, the government may as well start by making BSA's constituent companies pay all the taxes they owe.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/calling-out-the-bsa-on-bs'>http://editors.cis-india.org/a2k/blogs/calling-out-the-bsa-on-bs</a>
</p>
No publisherpraneshPiracyIntellectual Property RightsAccess to Knowledge2011-09-14T18:16:51ZBlog EntryPhotocopying the past
http://editors.cis-india.org/a2k/blogs/photocopying-the-past
<b>There is no single correct position when it comes to intellectual property or IP. In fact, there are at least five correct positions that you could possibly adopt based on who you are — a pro-creator position, a pro-entrepreneur position, a pro-government position, a pro-consumer position and a public interest position.</b>
<p>Therefore, before you progress any further, dear reader, you have to first decide which of the above you are. If you are an average Indian, then you are almost certainly a consumer or a member of the general public. Next, it would only be fair for me to tell you when I am coming from: I work for a policy research organisation that focuses on protecting consumer and public interest in the digital era. Before I proceed any further, also note that not all creators prefer profits to public adulation and therefore creators’ interests are not necessarily always opposed to consumer and public interest.</p>
<p>At this point, popular imagination is captivated by meta-regulation, issues of corruption and transparency. Few seem interested in the configuration details of property regimes that we are all implicated in: tangible property, capital and, in our increasingly dematerialised world, intangible property such as IP or spectrum. Unfortunately the complications of spectrum, banking and IP make our eyes glaze over and there is almost zero attention being paid to the copyright act amendment to be discussed in Parliament this week.</p>
<p>For the government, achieving a compromise is the primary objective, and then, perhaps a distant second, raising taxes. This is not a static compromise, since each generation of new technologies precipitates a new round of negotiations between the stakeholders. So while it is easy to be Anna Hazare, it is difficult to be Kapil Sibal. An optimal compromise position as in the world of capital and tangible property protects the production, circulation and consumption of IP. A sub-optimal position results in practices that are in conflict with policy — anti-competitive behaviour or infringement.</p>
<p>Unfortunately when it comes to evidence-based policy-making, there is little funding for public interest IP research in India and the pockets of the lobbyists of rights-holders are deep. The funded research that they tout claims that government loses significant taxes because of piracy or non-maximalist IP policies. Yet rights-holders, especially multinationals in the software business, are experts at tax avoidance through techniques with names like the “Double Irish” and the “Dutch Sandwich”.</p>
<p>Like any compromise, the latest amendment is a mixed bag for consumers and the general public. With regard to “digital rights management,” — or what consumers’ advocates refer to as “digital restrictions management” — the government has yielded to the TRIPS-plus agenda even though it is not a signatory to the WIPO Internet treaties. And with regard to the exception for the disabled, the Indian exception is both disability- and works-neutral making it much more robust when compared to the treaty for the visually impaired currently being discussed at the WIPO.</p>
<p>However, one particular compromise — the volte-face on Section 2 (m) on parallel imports of books — is particularly distressing for book-lovers and students. As part of the latest amendment, this new section was introduced in 2009. The standing committee report gave the section a thumbs-up, but strangely it has gone missing in the latest version of the bill circulated to the MPs in preparation for the Rajya Sabha debate this Friday.</p>
<p>Section 2 (m) is a provision that would have saved us from the uncertainty created by what some consider flawed jurisprudence around parallel importation of copyrighted works. As the standing committee report on the copyright amendment puts it, “nobody can deny the fact that the interests of students will be best protected if they have access to the latest editions of the books.” To date, I have never met an IIT or IIM graduate untainted by photocopied books. I would claim that the lack of quality education in our country is still at the level of an epidemic. The indigenous publication industry has benefited from our progressive copyright regime.</p>
<p>Wouldn’t it be appropriate to afford them maximum flexibility in a future rife with technological shifts? Are all the books that you wish to read available in the libraries and book shops you have access to? Have you ever been forced to photocopy a book because of time constraints? Would you like to see greater choice via increased free-market competition, and reduced state-sanctioned monopolies and enforcement? Does your definition of human rights include the “right to education” and the the “right to entertainment”? Shouldn’t the disabled in India benefit from the $500 million spent each year making books accessible in the US? And finally, shouldn’t a nation providing leadership to the development agenda at WIPO, walk the talk at home? If your answer to any of these questions is yes, you should demand that people are placed before the profits of foreign publishers.</p>
<p>This article by Sunil Abraham, Executive Director, Centre for Internet and Society was published in the Indian Express on 2 September 2011 in the Indian Express. Please read the original article <a class="external-link" href="http://www.indianexpress.com/news/photocopying-the-past/840461/1">here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/photocopying-the-past'>http://editors.cis-india.org/a2k/blogs/photocopying-the-past</a>
</p>
No publishersunilIntellectual Property RightsAccess to Knowledge2011-09-25T20:06:50ZBlog EntryCIS Hosts Scanned Version of George Orwell’s Books vs. Cigarettes
http://editors.cis-india.org/a2k/blogs/books-vs-cigarettes
<b>Verbindingen/Jonctions (V/J), the bi-annual multidisciplinary festival organised by Constant is taking place on December 1, 2011. Amateur scanning of books often raises a lot of questions, around the issue of copyright. For this V/J13 is scanning George Orwell’s Books vs. Cigarettes. The essay is in public domain in Russia, India and South Africa, but not in Europe and America due to copyright issues. CIS is hosting the scanned pages of the essay in public domain.</b>
<p>During the morning session DIY-made book scanner and OCR-software will be used to transform the scans into text files and in the afternoon session the digital material generated in the morning will be remixed.<br /><br />The main sessions can be followed online at the home page of <a class="external-link" href="http://www.vj13.constantvzw.org/site/">VJ13</a></p>
<h3>About VJ13</h3>
<p>Verbindingen/Jonctions (V/J) is the bi-annual multidisciplinary festival organised by Constant. Since 1997, Verbindingen/Jonctions combines high, low and no-tech strategies from utopian, contemporary, traditional and tribal cultures, free software, feminism and queer theories. V/J is an occasion to explore the space between thinking and doing, and the festival is always a mix of activities. It is an occasion to invite radio makers, artists, programmers, academics, Linux users, interface designers, urban explorers, performance artists, technicians, lawyers and others to experience each other’s practice, and to share their interests with a broad public of visitors.</p>
<p>V/J13 has been developed in collaboration with Le P’tit Ciné, Recyclart, Hacker Space Brussels (HSB), QO2, Renovas, Boutique de Quartier and Yves Poliart, Myriam Van Imschoot, Piet Zwart Institute: Networked Media.</p>
<p>Download the <a href="http://editors.cis-india.org/a2k/blogs/books-vs-cigarettes.zip" class="internal-link" title="Books vs Cigarettes">scanned version</a> (Zip files, 28091 kb)</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/books-vs-cigarettes'>http://editors.cis-india.org/a2k/blogs/books-vs-cigarettes</a>
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No publisherpraskrishnaCopyrightAccess to Knowledge2011-12-01T13:31:39ZBlog EntryConsumers International IP Watchlist 2011 — India Report
http://editors.cis-india.org/a2k/blogs/ip-watch-list-2011
<b>Pranesh Prakash prepared the India Report for the Consumers International IP Watchlist 2011. The report was published on the A2K Network website. </b>
<p>The report says:</p>
<p>India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies.</p>
<p>While India has not acceded to the WIPO [23] Copyright Treaty or the WIPO Performers and Phonograms Treaty, yet a set of amendments have been proposed which would bring the Indian law in compliance with both the WCT and the WPPT. These amendments would expose India's consumers to the same problems experienced in other jurisdictions which have prohibited the use of circumvention devices to gain access to legally-acquired copyright material. These amendments also propose a substantial increase in the copyright term for photographs (from 50 years to life plus 60 years), and a conditional increase of ten years for cinematograph films to 70 years if a special agreement is entered into by the producer with the director. It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Physically challenged persons have no option but to disobey the law that does not grant them equal access to copyrighted works.</p>
<p>Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works in a suitable format.</p>
<p>Over the last year, the Standing Committee tasked with review of the Copyright Amendment Bill has held hearings and presented its findings and recommendations to the HRD Ministry. However, not a single consumer rights organization was called by the Standing Committee, and no civil society engagement was sought except for the issue of access for persons with disabilities. This was despite a number of civil society organizations sending in written submissions to the Standing Committee. The government is going to re-table the Bill in this session of Parliament (February-April).</p>
<ul>
<li><a href="http://editors.cis-india.org/a2k/blogs/ip-watch-list-2011.pdf" class="internal-link" title="Consumers International IP Watchlist 2011 — India Report">Click</a> to download the full report [PDF, 150 kb]</li>
<li>Read the report published by A2K Network <a class="external-link" href="http://a2knetwork.org/sites/default/files/IPWatchlist-2011-ENG.pdf">here</a></li>
</ul>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/ip-watch-list-2011'>http://editors.cis-india.org/a2k/blogs/ip-watch-list-2011</a>
</p>
No publisherpraneshAccess to Knowledge2014-05-29T05:52:28ZBlog Entry