EXTENSION OF COPYRIGHT TERMS: Photographs and Principal Directors
Those of you who have been following the proposed amendments to the Copyright Act would have noticed the extended copyright terms for photographs and principal directors, who have also been accorded joint authorship in cinematographic films, by means of the proposed amendment. This post attempts to provide a simple and objective overview of the changes and a concise opinion on copyright term extensions in general, with a limited application to photographic and cinematographic works.
What is the present term of copyright in photographs?
While Section 22 contains terms of copyright for all other works, the term for photographs has been set out separately in Section 25 of the Act. This is in consonance with the Berne convention, which also arrays separate terms for photographs and other works under Article 7.4 and Article 7.1 respectively. The Indian Copyright Act provides for copyright in a photograph for a period of 60 years from the beginning of the calender year, following the year in which the photograph is published.
What is the proposed change to and potential impact on the duration of copyright in photographs?
The Copyright (Amendment) Bill, 2010 seeks to eliminate the differential treatment meted out to photographic works on one hand and literary, dramatic, musical and other artistic works on the other, resulting in a uniform copyright term of life plus sixty years. The legislative alteration involves the complete deletion of Section 25, which presently provides separately for photographs, and divesting of photographs as an exception to artistic works, in which copyright ordinarily subsists for life plus sixty years.
However, an interesting development is effectuated by the proposed change, since the present Section 25 speaks of copyright duration calculated from the date of publication, while its deletion, as suggested by the amendment, would render the calculation of the term from the death of the author. It is unclear whether this is a result of legislative oversight or a deliberate effort, but a brief comment on its potential impact is perhaps necessary.
To illustrate the problem imagined, let us that the example of a young photographer who publishes an image at the age of 25, in the year 2000. Assuming he dies at the age of 75, the photograph would be in the public domain post-2061 under the present Act (‘sixty years from the beginning of the calendar year next following the year in which the photograph is published‘). However, if the proposed amendment were to take effect, the copyright would be extinguished only in the year 2110 (“sixty years from the beginning of the calendar year next following the year in which the author dies”). Mathematical proof aside, it is a sure-fire strategy to extend the duration of copyright in photographs, if intentional, and if not, then a clarification must be made to avoid treating photographs on par with other works in calculating the duration of copyright.
Does it ensure conformity with international obligations?
As mentioned earlier, Article 7.4 of the Berne Convention specifies the minimum copyright duration for photographs to be twenty-five years from the making of the work. The proposed duration of sixty years is clearly far in excess of the mandated period of protection. However, it must be borne in mind that the same Article leaves it open to member nations to determine through domestic legislation, the desired duration of copyright for photographic works, while stipulating only the minimum as twenty five years. But at the same time, it must be ensured that international treaties serve as the guiding force behind domestic legislative activity, and domestic laws should resemble their provisions and conform to their stipulations as much as possible.
Why does the Amendment seek to extend the copyright duration in photographs?
To discern the thrust behind the proposed change, we have to look no further than the the press release on the Copyright Amendments (reflecting the Government’s basic objective and intentions) and the WIPO Copyright Treaty, and read them harmoniously. The press release emphasises the fact that ‘the amendments are being made to bring the Act in conformity with the WCT and WPPT‘. Examining Article 9 of the WCT, it is clear that it is at directs odds with the Berne convention, since members of the WCT are effectively required to protect photographs for longer than the term fixed under Article 7(4) of the Berne Convention. What Article 9 of the WCT does is nullify the very existence and purpose of Article 7(4) of Berne by stating that “In respect of photographic works, the Contracting Parties shall not apply the provisions of Article 7(4) of the Berne Convention“, instead rendering applicable, the general term of protection under Article 7(1) of the Berne Convention (life of the author plus fifty years). There is little doubt that in fulfilling its overall objective of WCT conformity, the government has ignored the subtle but important difference between the Berne and WCT provisions in relation to photographic works and privileged the latter, challenging the well established principle that there is no uniformly applicable term of protection for all categories of copyrighted works.
While such arguments are often dismissed as mere technicalities, it brings forth the crucial question of the necessity and desirability of such adjustment. Since India is not a party to the WCT, India’s international obligations do not require uniform and lengthier copyright protection for photographic works. We have seen the same issue emerge in relation to the anti-circumvention provision in the amendments, with India needlessly overstepping its international obligations, and including a TRIPS-plus provision into the Indian copyright regime. Without going into the social and economic benefits or disadvantages of extending copyright protection for photographs, a strict analysis of the question is certain to throw up the question – Should India’s loyalty lie with Article 7(4) of the Berne Convention which India is a party to, or Article 9 of the WCT, which it is not?
Without getting into the merits or demerits of recognising the principal director as a joint author of the film and the potentially complex issues that may result in implementing such a provision, I will restrict my scope, in this section, to the extension of copyright terms in cinematographic films.
What is the present term of copyright in cinematographic films?
Section 26 of the Act establishes that the copyright in a cinematographic film will subsist for a period of 60 years from the year of publication. Given the fact that producers are generally large corporations and not natural persons, the term of copyright is calculated from the date of its publishing and does not correspond with the language used in respect of books, photographs etc., which is expressed in terms of life of the author plus sixty years (or as provided for specific works) a manifestation of the obvious trouble that results from making the term of protection dependent on the life of the author in such cases.
What is the proposed change in relation to cinematographic films?
An analysis of the changes can be fractioned into two parts – one deals with Section 17, which, through the inclusion of sub-clause (f) confers substantive joint authorship rights to the principal director and clause (g) which grants an extension of copyright duration for films produced before the passing of the Amendment Act; the second adds a proviso to Section 26, stating that principal directors will benefit from copyright protection for a period of 70 years, with prospective effect.
Thus, Section 26 actually provides the extension in copyright term for all films that are published after the Amendment Act is passed, and sets it at seventy years for the principal director, as opposed to sixty years provided to the owner of the copyright (the producer). This should be read in conjunction with Section 17 (g) which seems to compensate for the prospective nature of the former, granting copyright protection for films produced prior to the Amendment Act passing as well. However, it must be noted that the director must have entered into a written agreement with the producer (presumably on this point) before the expiry of the sixty year copyright term. While the section hesitates to particularise the nature and content of the agreement, it is indeed commendable that principal directors have been granted additional protection for films published prior to the amendment, an implicit acknowledgement of the fact that several directors have been denied authorship rights in the past, despite making significant creative contributions to the film.
Overall impact on copyright duration for cinematographic works
Given that principal directors will now have an additional protection of ten years, Bollywood classics produced prior to 1950 for example, which, based on the present copyright term of 60 years, have fallen into the public domain, will now be extricated from it and the copyright will remain with the director to be exploited in any manner he likes for another decade.
Does India’s obligations under the Berne Convention have any bearing on this issue?
The Berne Convention (Article 7) allows a country to protect cinematographic films for the life of the author plus 50 years, or for 50 years from the year of publication (or from the making of the film, if it is not published within 50 years of making). Similarly, TRIPS (Article 12) provides that where the term of protection is determined otherwise than on basis of a person’s life, the term shall be 50 years from publication, or at least 50 years from making. While it seems that there is no inconsistency, especially since Article 7(4) states that countries may grant a term of protection in excess of those provided by the preceding sections, it is debatable whether an additional protection of 20 years fosters creativity as well as economic and cultural productivity or merely accumulates profits in the hands of the copyright owner.
FEW RESERVATIONS ON COPYRIGHT TERM EXTENSIONS IN GENERAL
While a purely objective presentation of the potential changes effected by the Amendment Act has been aimed at, I wish to conclude by raising a few questions in the context of copyright term extensions, transferring the job of applying the following insights to these amendments, to individual labours and faculties, by providing merely a context in which to analyse and discuss specific provisions of the Indian Copyright (Amendment) Bill, 2010.
(i) Incentive to create new works
It is a well reasoned assertion that an extension in the duration of copyright for existing works will have no real impact on the incentive-driven impulse of an author since a meticulous tallying of the benefits would have been undertaken previously. Whether extended copyright protection for future works incentivises authors or not often results in a long and winding debate, given that most works rake in profits in the first few years and an extension from say 60 years to 70 years, provides no added inducement since only a fraction of copyrighted works possess any economic value more than 50 years after the work is created. At the cost of taking too rudimentary an example, I daresay a director’s decision to make a film does not ride on the additional ten years’ copyright protection he will get in the film. While photographers would certainly be enthused by the extended protection of their works, I’m sure there are ways other than copyright extensions to provide them with incentive and security over their works (I suggest flexible licensing techniques such as creative commons licensing, for example). Of course, there exist exceptions. But should copyright terms cater to these exceptions or to the interest of the masses? Surely, the right policy decision would involve a careful consideration of the costs and benefits involved. Even assuming that extending the duration of copyright does serve as an incentive for creative output, what are the costs involved?
(ii) Impact on the Public Domain
The most demonstrable cost is the reduction of works in the public domain, one that cannot easily be ignored since the world’s greatest works have been unlicensed adaptations of works in the public domain. A simple reference to Pamela Samuelson’s eight “values” that can arise from information and works in the public domain is sufficient to prove this point. Kruttika’s post on Bollywood movies and the public domain also illustrates the point that unnecessary copyright extensions can hinder the availability of Bollywood classics whose period of copyright protection have long expired. Looking forward, there is certain to be a feeling of dismay in all of us that notwithstanding all the benefits copyright extensions may bring, the contraction of the public domain is a significant loss to one and all. As for photographs and images in general, I draw from Lawrence Lessig’s experience where he narrates the incident of ‘a critical table being omitted in an otherwise free article about his daughter’s possible illness, due to rights-clearance issues‘, to exemplify how important it is that photographs rest in the public domain, where we can enjoy and at the same time also protect them, so that they can be put to beneficial use and reused in infinitely creative ways.
(iii) Potential problems in seeking permissions
A more practical difficulty rests in obtaining licenses and permissions for use of copyrighted works and at the same time ensuring that a particular creation does not infringe a pre-existing copyright (referred to as ‘tracking costs’) the assumption being that with increased copyright duration, it becomes harder to assess the legitimacy of copyrights, as time goes on. When several existing works are granted an additional life of ten years because of the amendment, it becomes an arduous task to keep a tab on which films and photographs have extinguished their copyright protection and which ones haven’t, to assess the permissibility of its use without licensing.
While it is true that copyright extensions do provide incentives to authors in some way or the other, and also serve to indicate the strength of a country’s intellectual property laws, thereby attracting foreign investment, it is a question of degree, insofar as making sure that the potential benefits that may accrue are not negligible, that the above expressed concerns are adequately addressed and the policy decision is satisfactorily justified. Let us hope that in the spirit of copyright, true balance is maintained and the proposed amendments see the light of day in a form acceptable to all.