Apart from the PRS website, Prashant informs me that a current version of the bill is up on the Parliament website as well. But the most useful version of the bill is one that was created by Pranesh Prakash of CIS…this combines the parent copyright text with the latest amendments. And Pranesh kindly agreed to share this with all of this: so a round of applause is due.
The Ugly “Disabilities” Provision
The bill is a mixed bag and comes with its cliched set of the good, bad and ugly. If you’ve been following our blog closely, you’d have immediately spotted the “ugly” as the deplorable copyright exception in favour of the disabled. And the sheer lack of transparency and public consultation post 2006.
The “Bad” Extensions and TPM
As for the bad, one would immediately point to copyright term extensions provided for in the bill.
Why on earth do we provide these extensions at the behest of industrial lobbies without any independent economic studies that suggest that unless we grant these, we’re going to see a drying up of our society’s creative juices ! In fact in an earlier post, I’d pointed to Lessig’s classic admonishment that term extensions in many cases were a simple no brainer: they would simply detract from the public domain without adding much!
The “bad” would also include the introduction of technology protection measures (TPM) for the first time into Indian copyright law. Do we have convincing case for introduction of this added layer of protection? The government suggests that it is doing so for helping India comply with the WCT (Wipo Copyright Treaty) and WPPT (WIPO Phonograms and Performances Treaty)–treaties that India is not a signatory to! When there are plenty of treaties that we routinely flout, despite having signed up to them, why are we going out of our way to comply with a treaty that haven’t signed up to?
The Good: Parallel Imports and Bollywood Artists
As for the good, there are plenty.
The parallel import provision (bringing in international exhaustion principles to India by a simple and elegant amendment to the definition of an “infringing copy” in section 2) has been articulated in a very clear manner and needs to be lauded.
The provisions in favour of authors/composers are aimed at injecting some “fairness” into an industry characterised by exploitation of artists and is therefore commendable. The devil will however lie in the details and the modalities of implementation, which are not clear in the bill.
Firstly a simple amendment to section 17 seeks to clarify that lyricists. music composers and script writers will continue to have separate copyrights in their underlying works, despite it being incorporated into a movie. This proviso appears to address the rather uncertain legal position prevailing after a 1977 Supreme Court judgment, which has been interpreted to suggest that underlying rights do not separately exist in favour of works that have been incorporated into a movie.
However, the major changes however to Bollywood sharp practices are sought to be brought in through an amendment to section 18 which reads as under:
“Provided further that no such assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work.
Provided also that the author of the literary or musical work included in a cinematograph film or sound recording shall not assign the right to receive royalties from the utilisation of such work in any form other than as part of the cinematograph film or sound recording except to the legal heirs or to a copyright society for collection and distribution and any agreement to the contrary shall be void.”
1. The first proviso above appears to be aimed at preventing catch all clauses that ‘assignee” lawyers routinely insert into their contracts: “you hereby agree to assign your rights over this work for exploitation in any medium, whether now known or hereafter invented”. The amended clause now suggests that unless a new medium is specifically envisaged and provided for, no assignment will have effect qua a new medium that comes into being. In other words, unless the assignee knows of the new medium while contracting, how can he/she agree to contract away rights qua that medium? This provision in also in consonance with a 1998 Madras High Court judgment in Raj Video Vision.
It is to be noted that this proviso which effectively prevents the copyright owner from appropriating all windfalls qua new media covers all “copyrighted works” and is not limited to films.
2. The second proviso is the one that applies primarily to Bollywood and has been blogged about earlier here and here. Although this socially progressive amendment is aimed at helping artists, I personally think it should have gone further. For one, there should be a continuing right to royalties in all cases AND NOT MERELY in cases where the lyrics/music are not exploited as part of the complete film/sound recording.
Secondly, I fail to understand the import of the provision when it tries to “save” any assignments in favour of collecting societies. Pray, why should there be an assignment at all in favour of collecting societies? These societies are mere agents for administering rights and collecting royalties and should therefore be treated as mere “licensees”. If at all anything, there needs to be a bar on any assignments to collecting societies. We’ve blogged several times earlier on the sheer high handedness of these societies and their non transparent mode of functioning. The present set of amendments do make some changes in relation to the regulation of these societies and we will bring you a separate post on this.
Thirdly, for this socially progressive provision guaranteeing a right to royalties (notwithstanding an assignment) to work well, one needs to be clear on the modalities. How will “fair” and “appropriate” royalties be worked out? Through the present copyright board that has, thus far, not impressed with its competence in conducting the current compulsory licensing dispute involving radio stations and sound recording giants? As the bill generates more debate and the standing committee (headed by Oscar Fernandez) to which this is most certain to go, examines evidence and submissions from stakeholders, we hope to see some more thinking on this. For it is imperative that well intentioned provisions translate well in practice! The devil truly will be in the details.