Copyright

Parallel Imports: The Unexpected Dumping of Section 2(m)


In a rather unexpected development, the government decided to drop section 2(m) from the latest version of the copyright amendment bill. All the more strange, given that section 2(m) was the product of this very same government. And had received a thumping endorsement from the Parliamentary Standing Committee that reviewed the amendment bill.

As many of you may know by now, 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 Parliament in 2010. It reads as below:

“[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”.

This provision would have helped Indian students gain access to the latest affordable versions of text books from around the world. Unfortunately, the government appears to have succumbed to pressure from publisher lobbies and deleted it from the latest version of the Bill.

Parliamentary Standing Committee

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:

“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.



Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books.




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.”

Despite the Parliamentary support above, it is curious as to why the government dropped this provision, particularly when it had the potential of helping a number of students gain access to latest low priced editions of text books from around the world.

Empirical Study Showing the Lack of Latest Editions in India

An earlier blog post documented an empirical study done by P-PIL, an organisation of which I am part. The study (which was summarised in an Economic Times article) demonstrated that publishers routinely introduce old versions of books in India (in relation to legal titles). The latest versions have to be imported directly from the publisher, and they are often expensive, costing even more than what they cost in the US and EU in many a case.

A parallel imports provision would permit one to buy the cheapest editions available anywhere in the world, without necessarily going through the publisher.

Parallel Imports are Part of other IP Regimes

It is important to note that the right of parallel imports is present in all the other IP regimes of India such as the Patents Act and the Trademarks Act. There is no compelling reason why the same should not be the case with copyrighted works such as books as well.



Impact on Libraries and Educational Institutions

Absent section 2(m), our libraries and educational institutions cannot import foreign copies of books without seeking the permission of the copyright owner. Section 51 of the copyright act only exempts the import of one copy of a book for personal use and cannot therefore apply to libraries which offer books for reading purposes to others (and not for personal use).

Therefore, there is a dire need to reintroduce section 2(m) to protect our libraries.

Impact of Removing Section 2(m) on The Disabled

Lastly, the lack of a right to import books from abroad would severely impact persons with disabilities. Many books have to be imported from abroad prior to conversion to formats that are accessible to persons with disabilities. Without section 2(m), such books cannot be freely imported and converted. Further, even accessible versions already present abroad (a number of state sponsored organisations routinely convert copyrighted material for the benefit of the disabled) cannot be imported into India.

The current progressive provision (section 52(1)(zb)) that I had blogged about earlier that enables a number of activities for enabling access to the disabled does not include the right to “import” any copyrighted works for the benefit of the disabled.

ps: Sunil Abraham who heads CIS India has a thoughtful piece documenting this unexpected dumping of section 2(m).

pps: Nandita Saikia has a very useful page showing the latest set of changes to the amendment bill in a format that is much easier to access and appreciate than the government version.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

5 comments.

  1. AvatarAnonymous

    Shamnad, I thought parallel imports of goods is not permitted under the Trade Marks ACt, 1999 as I know Hindustan Lever (Now Hindustran Uniliever) has been filing complaints with Custom Officials and restraining the import of goods. Please correct me if I am wrong.

    Reply
  2. AvatarAnonymous

    In my view anon, the customs application that are being filed by HUL are for seizure of counterfeit goods rather than stopping import of parallel goods which the trademark act allows.

    Reply

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