Copyright

Copyright Amendments: A Fair Balance?


In a belated post (and a severely belated one at that), we bring you this special report on a conference held last year in Kolkata titled ‘Copyright Amendments, 2012: A Fair Balance?’

The two-day event was organized by the MHRD IP Chair at National University of Juridical Sciences (NUJS) with the help of the following partners: 

i) MHRD IP Chair at Cochin University of Science and Technology (CUSAT) 

ii) IPTLS (a student run IP and tech law society) and 
iii) NUJS Law Review 
This conference was one of the first to rigorously brainstorm the contentious 2012 copyright amendments. A detailed report on the conference can be found on the SpicyIP resource page. The report is a collective effort of a number of dedicated student volunteers who took elaborate notes throughout the conference. 
For those interested in a more audiovisual feel, we’ve uploaded most of the sessions on this Youtube link
For those with little time to read the entire conference report, here is a short version (well, not really, but as with most other things in life, I use the term in a relative sense). 
Summary of Copyright Conference
Welcome Address: 
Prof Shamnad Basheer, the MHRD IP Chair at WB NUJS opened the conference along with the student MC’s, Arun Mal and Amba Kak. 
Prof. (Dr.) Ishwara Bhat, the Vice Chancellor of WB NUJS and the Registrar, Dr. Surajit Mukhopadhyay extended a warm welcome to all present. Dr. Mukhopadhyay, a professor of social sciences, shared his insightful views on copyright norms and access to knowledge. Deploying his deep knowledge of ancient scriptures, Prof. Bhat reminded the audience of the importance of knowledge sharing/dissemination. 
Introductory Session: 
The session began with two special presentations from individuals who’d contributed significantly to the crafting of the amendments, Prof. N.S. Gopalakrishnan and Mr G.R. Raghavender. Prof. Gopalakrishnan [Part I & Part II] began the proceedings with a wonderful sweep of the social, economic and political narratives that informed the 2012 Amendments. He noted that the changes were brought in to balance three broad principles, namely; promotion of creativity, facilitation of access and the social dimensions of copyright. 
As many of you know by now, Prof NSG was thanked profusely for his services to the nation by a golden handshake meted out by his home institution (CUSAT). For those interested, our protest petition against his untimely handshake garnered 300 signatures and is open for signatures for another 3-4 days or so. So please do sign up if you wish to lend your name to this cause. 
Following Prof NSG, Mr. Raghavender, the Registrar of Copyrights piloted us through a wonderful and insightful examination of the history behind the amendments. 
Session I: Copyright & Entertainment 
The first session focused on the impact of the amendments on the entertainment industry. Voicing the interests of radio broadcasters, Prashant Pandey, CEO of Radio Mirchi welcomed the statutory licensing provisions. Tracing the evolution of private radio industry in India in a compelling narrative, he persuasively argued that the monopolistic behaviour of copyright societies and owners rendered many radio stations financially unviable. Prashant rightly noted that the newly introduced statutory licensing provisions would greatly benefit copyright owners as well as consumers. 
Arun Mohan, a practicing advocate at Madras High Court, was highly critical of the amendments dealing with mandatory royalty sharing. Noting that the drafting of the amendments left much to be desired, Arun also reflected on the fact that the amendments could have done with better homework of comparative positions in the US etc. He also rightly noted that a key solution is also to strengthen unions and collective bargaining power. 
Anjum Rajabali, who heads the Copyright Committee at the Film Writers’ Association, responded by noting that it was indeed the weak bargaining power of artists and lack of good business practices in the industry that prompted the statutory intervention. 
This was followed by a round table discussion on the on the future of entertainment in India. [Part I, Part II & Part III] The moderator, Dr. Madhukar Sinha, Professor at Centre for WTO Studies, in his opening remark noted the star-power is no longer the driving force for Indian films and asked the panelists on measures taken to improve access to entertainment. The panelists of this round table discussion were Phulak Bagchi (Vice-President, Legal & Regulatory Affairs, Star India), Anjum Rajabali (Film Writers’ Association) and Rajesh Dhupad (Jt. Secretary, South India Music Companies Association). It was a vibrant session with lots of interesting thoughts from the various panelists. 
Section II: Copyright & Technology 
The second session dealt with technological protection measures (TPMs) and intermediary liability exemption in Section 52 and its impact on the IT sector. 
Pranesh Prakash, Policy Director at the Centre for Internet and Society, questioned the need for introducing the provisions on TPMs as India was not a signatory to the WIPO agreements, namely; WCT and WPPT. Nonetheless, Pranesh hailed the provisions as being more evolved than most other pari materia provisions around the world. In the round table discussion that followed later, Prof Dr. V.C. Vivekanandan, MHRD IP Chair at NALSAR suggested that the provisions might have been inserted to placate the US. 
Praneshs’ presentation was followed by an insightful and well researched presentation on safe harbour provisions by Rajendra Kumar, Partner at K&S Partners. Kumar traced the evolution of intermediary liability jurisprudence around the world, most notably the US and EU. He noted that the Indian provisions were akin to conduit safe harbour provisions in the EU directive. He opined that Section 52(1)(c) lacked clarity in terms of not clearly spelling out as to which intermediaries were entitled to the exemption. Pranesh suggested that the provision was applicable to search engines and perhaps storage services depending on the interpretation of the word ‘incidental’ in the provision. 
Prof. Basheer, moderating the round table discussion, asked the panelists if a broad construction of the word ‘access’ in Sec. 52(1)(c) would effectively render redundant the exception provided in sub-clause (b). Prof. Gopalakrishnan suggested that the difference between both clauses rests on the ‘technical processes’ involved in the transient or incidental storage. If the incidental or transient storage is for longer duration, there is a need for checks and balances and Cl. (c) addresses these concerns. 
Session III: Copyright Limitations & Exceptions 
Pranesh Prakash spoke on the legality of parallel imports and observed that there is no statutory basis providing for an exclusive right to import copyrighted works. He went on to defend his hypothesis based on text of Section 2(m) and 51(b)(iv). Pranesh further criticized the decision of Justice Manmohan Singh of the Delhi High Court in John Wiley v. Prabhat Chandra Kumar Jain for recognizing a right to export works under the Copyright Act instead of contract law. 
Following this presentation, the copyright registrar, Mr Raghavender drew attention to a study conducted in New Zealand which demonstrated positive spillovers of parallel imports. Further, he informed the audience of an on-going study by National Commission of Applied Economic Research to determine whether or not parallel imports ought to be legalized in India. 
Abhishek Malhotra, Partner at TMT Law Partners delivered a riveting presentation on the statutory licensing scheme, noting that the amendments were prompted by demands for unreasonable royalties from music labels. Abhishek also highlighted the possibility of constitutional challenge to Section 31D. 
In a provocative presentation, Amlan explored the educational exception in the backdrop of the Delhi University photocopying row. He argued in favour of a broad interpretation as would promote access. The presentation elicited sharp reactions from the audience. One of the audience suggested that DU students have the financial means to afford a license and should therefore take a license without relying on the exception. Sheetal Chopra, representing FICCI, highlighted the loss of royalties from photocopies. 
In response, Prof. Basheer cautioned that this case was about educational course packs and that the statute provided a broad enough framework to exclude educational photocopying. Further, it was evident that a majority of academic scholars preferred enhanced readership over the paltry economic benefits through royalties. Lastly, he cautioned that while some DU students might be able to afford licenses offered today, such students are not representative of all Indian students, a large percentage of whom struggle to even pay their tuition. 
Ujwala Uppaluri, a fourth year student at NUJS, explored the impact of the amendments on public libraries in India. Ujwala welcomed the exception for storage of electronic copies by non-commercial public libraries and rightly stressed the need for digital preservation of works. Mr. Raghavender woed the fact that there was no express provision for inter-library loans, especially in the context of digital copies. Prof. Gopalakrishan observed that virtual libraries require significantly different rules and that it requires a fresh look as in when virtual libraries become a reality. 
The session ended with a passionate presentation by Prof. Sam Taraporevala, Director at Xavier’s Resource Center for the Visually Challenged, narrating the ‘unique Indian story’ in campaigning for and obtaining a special copyright exceptions for the benefit of people with disabilities. The amendments were a result of prolonged efforts from several individuals and civil society organizations. Prof. Taraporevala further noted that there is need to ensure accessible books in real time and proposed for setting up of National Library for Accessible Content in consonance with UNCRPD. 
Session IV: Copyright Enforcement, Adjudication & Governance 
Pravin Anand, one of India’s leading IP lawyers began this session by delivering a scintillating presentation on: ‘Copyright Enforcement: Will the amendments make a Difference?’. He applauded the Delhi High Court for measures aimed at making court processes quicker and more efficient and noted in particular that the collection of evidence by local commissioners had eased the pressure on regular judges who were already clogged with backlogs. He also highlighted the fact that the Delhi High Court had often taken the lead in IP jurisprudence by interalia being the first to Anton Pillar orders, Mareva injunctions etc. 
Sheetal Chopra, Joint Director at FICCI passionately advocated for more stringent antipiracy measures. She noted the significant losses made by the entertainment industry as a result of piracy and highlighted the role of camcorders in promoting piracy. 
She recorded her displeasure at the amendments to Section 52(1)(a) which allowed for reproduction for ‘personal or private use’, arguing that this effectively legitimized the use of cam-cording devices. Ms. Chopra further expressed her dissatisfaction with lack of penal action against those manufacturing devices with the sole objective of circumvention. In response, Mr. Prakash and Mr. Sinha suggested that affordable pricing is the most effective solution to piracy. (Note: we are given to believe that the government is now initiating measures to criminalise the possession of camcorders in cinema halls. This comes at the behest of concerted advocacy by several Bollywood producers, FICCI, USIBC, MPAA etc. 
The constitutional validity of the composition of the Copyright Board was challenged in the Madras High Court recently. Ananth Padmanabhan, counsel for the challenger (SIMCA) argued quite persuasively that the appointment and qualification of Board members did not conform to constitutional principles laid down by the Supreme Court recently in relation to the National Company Law Tribunal (NCLT). Mr. Padmanabhan rightly noted that the amendments were a missed opportunity to cure infirmities in the Board. 
Achille Forler, Managing Director of Deep Emotions and a regular commentator at SpicyIP, was confident that the statutory licensing scheme would transform the industry. Mr. Forler opined that the mandatory licensing of music through copyright societies would be advantageous for users and also that societies would be in a better position to distribute royalties for lyricists and composers. However, Mr. Forler emphasized that IPRS in its present state required significant reforms to function effectively. 
The session ended with Dr. Anirban Mazumdar, Assistant Professor at NUJS, rightly highlighting the key administrative, adjudicatory and logistical complexities ahead of us. 
Acknowledgments: 
But for the passion, commitment and support of a number of people, this conference would never have materialized. I thank each of them below: 
i) As with most other IP events at NUJS, the most significant contributor was Sai Vinod, who worked tirelessly to make this happen. He also goaded several of his classmates and friends to work around the clock and pull off this stellar event. Our sincere gratitude to all of them: Vasudha Sharma, Nitika Gupta, Akshay Sharma, Amba Kak, Arun Mal, Pranav Narain, Aman Taneja, Abin Francis, Jaimini Vyas, Sahil Arora, Raveena Paul, Isha Narain, Siddharta Srivastava, Pranjal Singh, Sreyan Chatterjee, Shyam Gopal, Aparajita Lath, Abhinav Shrivastava, Asha Racheal Joy, Ashna Ashesh, Nidhi Rao, Nivedita Saksena, S. Varsha and Indrajeet Sircar. 
ii) The NUJS law review and in particular Smaran Shetty and Nimisha Srinivas for proposing a special issue devoted to the copyright amendments. Their prompting essentially served as the impetus for the conference. 
iii) The Ministry of HRD and in particular the Secretary, Shri Ashok Jha, the Joint Secretary, Ms Veena Ish and the Copyright Registrar, Mr Raghavender, the Registrar of Copyrights for their continuous support to all our IP activities. 
iv) Prof Ishwar Bhat for his enthusiastic encouragement of IP activities at NUJS. 
v) Prof NSG who readily agreed to combine his conference budget with ours in order to pull off this 2 day event with aplomb. 
vi) K&S Partners, a leading IP law firm and specifically Latha Nair and Rajendra Kumar, who immediately agreed to fund our conference in view of the shortfall at the last minute. I cannot thank them enough. 
vii) Sumeet Malik for his generous donation of latest versions of the Copyright Act to all present at the conference and for agreeing to publish a special issue of the NUJS law review (published and printed by EBC) as well as a book analyzing the amendments. 
viii) Arnab Roy for his wonderful magic in setting up a creativity theme based village (with Baul singers, Santhali dancers, weavers, potters and what not) to entertain the conference delegates and speakers). Thanks also to Manab Da for all his organizational work around the IP chair and the conference.
There were many others who contributed to the show,but unfortunately space constraints stand in the way of naming them: we are immensely grateful to each one of them for their time and commitment to the cause. 
NUJS Law Review Special Issue: 
We were fortunate enough to convince a number of our conference speakers to convert their presentations to papers. This special issue has just come back from the printers, thanks to a terrific team of student editors and the efforts of Sumeet Malik and his team at EBC. 
Given that the NUJS law review is an open access publication, all these articles will be available for convenient consumption on your computers soon. Stay tuned.

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.

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  1. Pingback: FICCI’s BS argument against movie piracy – Trashed on all fronts ‘academically’. | Sundakka

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