Don’t lose hope Ms. Jishnu – Keep the faith

Today’s Business Standard carried Ms. Latha Jishnu’s weekly column. As always Ms. Jishnu’s article made for some interesting reading. For this week she had written about the anti-IP crusades of Brazil’s Grammy Award winning former cultural minister – Gil. Of course Ms. Jishnu does not descend into the extremities of asking for the dissolution of the copyright regime but instead limits herself to a call for diluting the copyright regime on the lines of Gil’s efforts in Brazil which has centred around publicising the Creative Commons license and the innovative use of the internet to spur the creativity of the digital generation. So far I was nodding my head in agreement. The concluding portion of her article however was a rather depressing diagnosis of the copyright regime in India:

It’s a pity that India has not learned some lessons from its partner in the promising new IBSA alliance which brings together India, Brazil and South Africa. We have not had the liberating experience of having a culture minister from among the creative community nor sadly have we had a leader who was able to visualise new ways of harnessing culture as a tool for bridging the difference in our deeply divided society. The Internet does not figure even remotely as a creative space that can yield huge dividends.

In our determination to meet America’s standards of IP protection, we seem to be forgetting a basic lesson: that IPR is not an end in itself. Brazil has shown that by fighting IPR imperialism as a matter of state policy a country can turn into an open source nation that can unleash positive trends in society. And it has done so without suffering any serious consequences. The Indian government sadly believes in nothing more than following the increasingly higher standards of IPR protection demanded by the developed world. How dull and uncreative can we get?

Being a cynical young man I would usually agree with such a depressing diagnosis and would have stoked it further but I’m trying to turn a new leaf and would like to provide a more optimistic perspective on the history and the future of the Indian copyright regime. Therefore I’m going to nit-pick at certain points made by Ms. Jishnu.

First things first: Although its true that India had to succumb to an extent to considerable American pressure when it came to the patent law component of TRIPs the same is not true when it comes to copyright law. It’s a misconception that we follow American mandated standards of copyright protection. As most of you must know TRIPs did not mandate a new standard of protection for copyright instead Article 9 merely mandates that all signatories shall now follow the standards of the Berne Convention for the Protection of Literary and Artistic Works with the exception of Article 6bis of Berne Convention which protects even the moral rights of the author. So let’s go into the history of the Berne Convention. The Berne Convention was a result of tough negotiations between the North and South with the notable exception of the U.S.A. In fact the U.S.A. signed the Berne Convention only in 1988 while India signed the Berne Convention in 1974. Therefore if anybody does have a problem with the Berne Convention the villains are not the Americans but the Europeans. Personally I think the Berne Convention represents quite a fair deal especially since Indian negotiators fought tooth and nail for extremely flexible compulsory licensing provisions for all developing countries. Let’s give them some recognition for their efforts. Coming back to the Berne Convention and this is actually quite funny, the Americans have in fact been hauled to the WTO DSB by the E.U. because their copyright laws were in violation of TRIPs standard! Yes – its true the Americans have actually been caught on the backfoot when it come to IP laws! Now for the icing on the cake – the WTO actually held that American Copyright Law was not in compliance with the TRIPs standard and hence America was fined and required to change their laws. You can access the decision here: Part I and Part II .

Moving on to Ms. Jishnu’s dismay at the lack of a ‘Gil’ in India – of course its true that we’ve never had former rock stars as our Cultural Ministers but we’ve had Arjun Singh as the HRD Minister who in the 1990s was responsible for widening the already expansive fair use exceptions in Section 52 to include amongst others, two crucial provisions – Section 52(j) and Section 52(za). Section 52(j) is the provision which allows for version recording after a period of two years of the release of the original. This is the provision which allows for those ‘lovely’ remix albums to be released by new artists much to the chagrin of the original artists who claim the new ones are butchering their beloved melodies. Section 52(za) allows for any bona fide religious ceremony to play any copyrighted work and be exempted from the fair use exception. Given the blurred lines between religion and commercial ventures these days its quite possible that Durga Pooja pandals will get away with playing any number of Bollywood songs. These are only two provisions of the several fair use exceptions under Section 52 which is one of the longest, most comprehensive provisions of the Act. At the end of the day the fair use exceptions are quite similar to the open source structure, in that there are several blanket exceptions for non-commercial uses of copyrighted material. When these provisions are read with the extremely broad compulsory licensing provisions of the Indian Copyright Act, especially with regards to literary works, I think it is unfair to term the Indian approach to copyright law as unimaginative.

Secondly I would like to take this opportunity to mention one of the greatest Indian icons in the cultural sphere – Mr. Gulshan Kumar. A Robin Hoods of sorts he was a man who encouraged an ‘alternative’ practice of copyright law by working on the fringes of the law. More importantly he was the man who broke the monopoly of HMV over the music industry and in the process brought about fierce competition throughout the music industry leading to a downward spiral of prices which eventually made music available to millions of Indian. In the process he revived several dying genres of Indian music. The popularity of Bollywood music, remixes and version recordings are all a result of Mr. Gulshan Kumar’s efforts. It’s a different story that T-Series seems to have become the HMV of our age. For those of you interested in the history of the Indian music industry please read this fascinating piece written by Lawrence Liang, Head of Creative Commons India & one of the founding member of the Alternative Law Forum.

Lastly I would like to point out to Ms. Jishnu that India has been using the internet to engage in cultural production. A couple of months ago we had blogged about Tempostand.com – a wonderful enterprise started by a bunch of young graduates to promote independent Indian music which is then licensed under a Creative Commons licence. Recently the website held a competition on patriotic songs for Independence Day. The competition saw 50 entries all of which were independent, original music which was then licensed under a Creative Commons licence. For a such a young website I think thats a fantastic turnout. I’m sure there are other sites like that of Tempostand. The market as usual has adapted to the challenges of the 21^st Century.

My point therefore being that all is not lost Ms. Jishnu – there is more than just a ray of sunlight for the copyright regime and cultural production in India. In fact I would say that the sun is shining bright over the Indian copyright regime and we must recognize the efforts of those few bureaucrats, politicians and businessmen who have played an important role in cultural production by encouraging an accessible cultural regime either through the innovative use of the law or through innovative business strategies.