Towards an En-lightened Copyright Regime

Many of us wait with baited breath as the latest set of copyright amendments are slated to be discussed the following week in both the Rajya Sabha and the Lok Sabha. Given that this monsoon session ends by the 8th of this month, it is doubtful if the bill will clear this session. Most expect it to be passed over to the next winter session in November.

The bill was initially scheduled to come up last week but was drowned out…first by the Medical Council bill, that took a good 4 hours of discussion. And later by a political agitation by the BJP, the main opposition party over the conduct of the Gujarat governor in relation to the appointment of the Lokayukta chairman. If you wish to follow the discussion on the Bill in Parliament tomorrow (assuming it comes up tomorrow), click here.

Prashant already brought you a succinct overview of the key features of the latest set of changes to the Copyright Amendment Bill 2010. As he rightly mentions, the latest set of changes translate to a major victory for disability access, and brings light and joy to the hearts of many that campaigned tirelessly for these provisions.

The earlier provision relating to disability access introduced by the government in the Copyright Amendment Bill was severely flawed, as it restricted the copyright exemption only to “special” formats such as Braille. Thankfully the government has now widened the scope of the exemption and removed the special format limitation. This makes our section one of the most progressive in the world and will be of great help to differently-abled people who have thus far been at the receiving end of a “book drought”!

India has again proved that it can be trend setter in the IP policy space. Section 52(1)(zb) now permits the conversion of a copyrighted work to any accessible format, so long as the converter operates on a non profit basis and ensures that such formats are only accessed by those with disabilities and do not flow into the regular mainstream market. In case the activity is done for profit, the concerned person needs to apply for a compulsory license in section 31(B).

I reproduce the two important provisions in this regard for those interested.

1. Section 52(1) (zb) exempts from infringement:

“the adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format, by-

(i) any person to facilitate persons with disability to access to works including sharing with any person with disability of such accessible format for private or personal use, educational purpose or research; or

(ii) any organisation working for the benefit of the persons with disabilities in case the normal format prevents the enjoyment of such works by such persons:

Provided that the copies of the works in such accessible format are made available to the persons with disabilities on a nonprofit basis but to recover only the cost of production: Provided further that the organisation shall ensure that the copies of works in such accessible format are used by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business.

Explanation.- For the purposes of the sub-clause, “any organisation” includes an organization registered under section 12A of the Income Tax Act, 1961 and working for the benefit of persons with disability or recognized under Chapter X of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 or receiving grants from the Government for facilitating access to persons with disabilities or an educational institution or library or archives recognized by the Government.”

2. Section 31(B) deals with compulsory licenses for “for profit” conversion and distribution:

“31B.(1) Any person working for the benefit of persons with disability on a profit basis or for business may apply to the Copyright Board, in such form and manner and accompanied by such fee as may be prescribed, for a compulsory licence to publish any work in which copyright subsists for the benefit of such persons, in a case to which clause (zb) of sub-section (1) of section 52 does not apply and the Copyright Board shall dispose of such application as expeditiously as possible and endeavour shall be made to dispose of such application within a period of two months from the date of receipt of the application.

(2) The Copyright Board may, on receipt of an application under sub-section (1), inquire, or direct such inquiry as it considers necessary to establish the credentials of the applicant and satisfy itself that the application has been made in good faith.

(3) If the Copyright Board is satisfied, after giving to the owners of rights in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, that a compulsory licence needs to be issued to make the work available to the disabled, it may direct the Registrar of Copyrights to grant to the applicant such a licence to publish the work.

(4) Every compulsory licence issued under this section shall specify the means and format of publication, the period during which the compulsory licence may be exercised and, in the case of issue of copies, the number of copies that may be issued including the rate of royalty: Provided that where the Copyright Board has issued such a compulsory licence it may, on a further application and after giving reasonable opportunity to the owners of rights, extend the period of such compulsory licence and allow the issue of more copies as it may deem fit.”

If these provisions convert to law, the HRD ministry will be credited with one of the most progressive provisions ever known to copyright law.

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's 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 Prof. Basheer joined Anand 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. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

One comment.

  1. Avatarnandhini

    Thanks for the update. Can you please also comment on the recent settlement of youtube settling the copyright infringement dispute with the music publishers?


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