Thursday, December 24, 2009

Indian Copyright Amendments Clear Cabinet

The government issued a press release announcing that the much awaited and controversial copyright amendment bill has now cleared "cabinet", a group of senior ministers that represent the highest decision making body of the government. Since the winter session of Parliament is over and done with, the Bill is only likely to be introduced in the budget session of Parliament in February 2010.

The amendment process began around the year 2005 and the present Bill draft is one that has come about after what the government claims is a fairly elaborate consultative process. This is true in some particulars, though not quite true in others. Notably, the present version of the Bill includes substantive copyright provisions that were introduced for the first time in 2009 (pertaining to the music and film industry) and did not form part of the earlier 2005 draft that was subject to public consultations.

Unfortunately, the Bill will only be made "public", only after it has been introduced in Parliament.

Importantly, the bill provides a copyright defence to enable access to copyrighted works by the disabled, something covered on this blog . In particular, the very first proposal in a newly introduced collaborative law making platform (CLAM) revolves around what an optimal provision to enable access to the disabled might look like.

Here is the detailed government press release:

"The Union Cabinet today approved the proposal to introduce a Bill to amend the Copyright Act, 1957. The Ministry of Human Resource Development has proposed the amendments in order to gain clarity, remove operational difficulties and to address the newer issues that have emerged in the context of digital technology and the internet.

Amendments are being made to bring the Act in conformity with the World Intellectual Property Organisation (WIPO) Internet Treaties, namely WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) which have set the international standards in these spheres. The WCT deals with the protection for the authors of literary and artistic works such as writings, computer programmes, original databases, musical works, audiovisual works, works of fine art and photographs. The WPPT protects certain “related rights” which are the rights of the performers and producers of phonograms. While India has not yet signed the above two treaties it is necessary to amend domestic legislation to extend the copyright protection in the digital environment.

Amendments related to bring the Act in conformity with WCT and WPPT:

i) Through a new section in the Act, it is proposed to ensure protection to the Right holders against circumvention of effective technological measures applied for purpose of protection of his rights like breaking of passwords etc. while maintaining an appropriate balance between the interests of the right holders on the one hand and of Technology innovators, Researchers and Educational Institutions on the other.

ii) The existing Performers’ Rights are proposed to be further enhanced by introducing a new section to provide exclusive rights compatible with WPPT.

iii) “The Moral Rights of Performers” are proposed to be introduced in a new section.

iv) Amendments have been proposed to protect the interests of researchers, students and educational institutions so as to ensure that Technological Measures do not act as a barrier for further development of the technology. These amendments also address the issue of access to information in the digital context and the liability of Internet service providers.

v) The period of copyright for photographers is proposed to be enhanced to “Life plus sixty years” instead of only sixty years as at present.


Amendment to protect the Music and Film Industry and address its concerns :

i) Statutory licence for version recordings and authorship to ensure that while making a sound recording of any literary, dramatic or musical work the interest of the copyright holder is duly protected.

ii) Term of copyright for cinematograph films has been extended by making the Producers and Principal director as joint authors.

iii) A copyright term of 70 years to Principal Director which automatically extends the copyright term for the Producers for another 10 years provided he enters into an agreement with the Director;

Amendments to address the concerns of the physically challenged:

The physically challenged need access to copyright material in specialized formats, e.g. Braille text, talking text, electronic text, large print etc. for the visually challenged and sign language for the aurally challenged. Currently the cost of production of material in such formats is very high. With additional requirement of royalty payments the price of such material to the target groups would be even higher.

i) A clause is proposed to be introduced as a fair deal clause to allow the production of copies of copyright material in formats specially designed for the physically challenged.

ii) A separate compulsory licensing provision has been proposed to allow for publication of copyright works in formats other than specifically suited for the physically challenged.

Amendments for rights to authors:

i) Amendment is proposed to give independent rights to authors of literary and musical works in cinematograph films, which were hitherto denied and wrongfully exploited, by the producers and music companies.

ii) An amendment is proposed to ensure that the authors retain their right to receive royalties and the benefits enjoyed through the copyright societies.

iii) Another amendment ensures that the authors of the works, particularly songs included in the cinematograph film or sound recordings, receive royalty for the commercial exploitation of such work.

iv) It has been proposed to introduce a system of statutory licensing to ensure that the public has access to musical works over the FM Radio and Television networks and at the same time the owners of copyright works are also not subject to any disadvantages.

v) It is proposed to amend existing provisions to provide compulsory license through Copyright Board to publish or communicate to the public such work or translation where the author is dead or unknown or cannot be traced or the owner of the copyright work in such work cannot be found.

Other amendments

i) Amendments are being made for incidental changes, which are required in the context of digital technology to cover “storing of copyrights material by electronic means’.

ii) Amendments in relation to operational facilities, such as registration of Copyright Societies by providing that only authors can register and procedure for tariff schemes of copyright societies and commercial distinction between assignment and licence; and

iii) Enforcement of rights such as border measures, disposal of infringing copies and presumption of authorship under civil remedies.

Background :

In order to formulate the proposed amendments and to carry out wide-ranging consultations with all stakeholders, the Ministry of Human Resource Development had constituted a 30-member Core Group in the year 2005 under the Chairmanship of the Education Secretary with representatives of the other Ministries/Departments concerned with the subject and other key stakeholders like copyright-industry organizations, stakeholders, subject experts and Institutions of repute in related fields. The Core Group had deliberations at length in five sessions to cover all the provisions of the existing statute and made recommendations with regard to the proposed amendments. The Core Group then created a Drafting Committee to draw up the text of the proposed amendments and to fine-tune the recommendations of the Core Group."

5 comments:

Tarunabh Khaitan said...

thanks for this shamnad. you have alluded to the secrecy behind our law-making process in this post. this is an important issue, discussed (if only tangentially) in these previous posts (I, II). It may be time to formalise a transparent, public and participative pre-legislative process for all laws.

Shamnad Basheer said...

You're absolutely right Tarun,

we must think through the legislative process and how to inject more transparency norms and public participation.

calcuttachronicles said...

Unfortunately our democracy has not been able to get out of the imperial/colonial mindset of dividing people into the rulers and the ruled.

Thanks for the article.

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vicky said...

dear shamnad sir,
can u pls tell me where i can get this draft of proposed amendment bill, 2009??
Im a master's law student specialising in IPR..
i could find only commentaries and opinions on it. so would be really glad if i get the draft bill..

awaiting for a positive response..