Copyright Uncategorized

Copyfraud, Collecting Societies and Quixotic Crusades


rubber stamp marked with regulation

More than a year ago, a curious incident cropped up in the copyright circles. Saint Tyagaraja’s music (recorded by various Carnatic music enthusiasts and uploaded on select YouTube channels) was hit with a copyright claim! An all too pliant YouTube immediately took down the content, thereby placating the purported copyright owner.

Bizarre to say the least, since the good saint had by then been dead a good 200 years! And had never ever claimed copyright, if ever there was such a thing during his time. And yet here were these alleged copyright proprietors, claiming on his behalf. Fortunately, the channels that uploaded the recordings on YouTube (most notably Parivadini) fought back claiming that Tyagaraja’s music was in the public domain and could not be misappropriated through false copyright claims. YouTube reinstated the videos and all was forgotten. But by then, I expect some damage might have already been done: for it is likely that these IP hoodwinkers extorted some sums from unsuspecting channels (much like our famed Ramkumar in the patent sphere)! A practice that is now referred to as “copy fraud”!

Copyfraud

As Jason Mazonne who appears to have first coined this term states:

“Copyfraud, as the term is used in this Article, refers to claiming falsely a copyright in a public domain work…. “Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution…..These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner’s permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.”

The “copyfraud” phenomenon resonates well with India, given the IP excesses engaged in routinely by IPRS and PPL, two home grown collecting societies. They’ve been particularly proficient in co-opting our cops and pursuing any style of establishment (clubs, hotels etc) that dared played any music….even music by independent labels that never fell within the IPRS repertoire! Some of the establishments wisened up and demanded that the repertoire of works (over which copyright administration rights were being claimed) be revealed. But a large majority just caved in, not wanting a show down in front to of their prized customers, when cops ruthlessly raided their premises.

IPRS and PPL: The Hand(icap) of the Law

Despite this copyright overreach and the deliberate disembowelment of thousands of poor musicians whose legitimate royalties were denied them (a sordid saga meticulously documented by the precious Prashant Reddy), IPRS and PPL managed to dodge the long arm of the law for way too long. Thanks in no small part to a heavily influenced court from where it routinely obtained favourable orders, a court in the small Bengal town of Barasat, a site likely to go down in history as an IP pilgrimage site of sorts, given the extent to which it influenced the course of Indian copyright law and policy!

But while IPRS and PPL may have dodged man made laws, it was inevitable that another law would soon catch up with them…the mother of all laws, the grund norm, so to speak: the “law of karma”! And from recent developments (as outlined below), it appears that this meta law is slowly spreading its noose around them:

i) The Enforcement Directorate (ED) of the Government of India recently attached various assets of IPRS pursuant to serious charges of money laundering (where money that rightfully belonged to lyricists and composers were laundered away)!

ii) A charge sheet has been lodged in a criminal case against IPRS’s Chairman and a Director for allegedly inducting fake members into IPRS with forged signatures etc.

iii) More recently, an inquiry committee was set up by the government to investigate IPRS for fraud, corruption and other irregularities. This committee has the implicit blessings of the court as well, given that IPRS’ petition to block this committee didn’t succeed at the Supreme Court. Readers may recall that they effectively forced an earlier committee (chaired by Justice Mukul Mudgal) to resign.

Purely Private Societies

Interestingly, IPRS and PPL now claim that they are no longer “collecting societies” (under the copyright act), but merely private corporations, entitled to do as they please! And, much in line with the ruling in the Novex case (by the wonderful Justice Gautam Patel of the Mumbai High Court), they are well within their rights to sue those that fail to pay up, despite not being registered! More so in respect of works where they have clear assignments in their favour (from composers, lyricists etc) and qualify independently as copyright owners. A position vindicated again by a more recent judgment of Justice Kathawalla of the Mumbai High Court (IPRS vs Harsh Vardhan Samor (Suit Number 1345/2015), where he permitted IPRS to go after entities that refused to license works in their repertoire, despite IPRS not being a registered collecting society.

All fine, except that this flies in the face of the spirit and intent behind Section 33, which suggests that only collecting societies registered under the copyright act ought to be able to carry on the “business” of administering copyrights on behalf of other third parties. Put another way, if the sole purpose of an entity is to aggregate the copyrighted works of various third parties and collectively license them out in an economically efficient framework, such entity ought to be subject to the regulatory framework envisaged under the Copyright Act. For such third parties are essentially “quasi-public” in character—performing as they do a valuable public function, entailing issues of social justice (protecting the interests of individual artists who do not have the wherewithal to independently track all usage of their copyrighted words and enforce rights), incentivisation of creativity (on a mass scale) and access to cultural products for the general public. And should, as recently endorsed in a Supreme Court decision, be subject to judicial review under Article 226 of the Constitution of India.

Given the present structure of section 33 and its rather lousy drafting, one could argue that Justice Patel’s lucidly articulated and well reasoned decision could have gone either way. And here is where we lost out on a fabulous opportunity to rein in potential abuses by copyright collectives in future. For under the terms of the Novex decision, private collectives could demand royalties from third parties, so long as they issue licenses in the name of the copyright owner, and not in their own name. The decision effectively enables private enterprises to escape the rigours of a regulatory framework meant to safeguard the interests of individual artists and the public at large.

Some Regulation: Transparency?

This does not mean that we thwart the evolution of private enterprise. Far from it! Indeed, there is something to be said for the fostering of a free market for copyright collectives, as opposed to a rigid regulatory regime that privileges a select few and breeds monopolistic inefficiencies and excesses. However, the advantages of a free flowing market notwithstanding, a purely private copyright collective model  may be a bit premature for India at this stage, given the stakes involved and the systemic exploitation of artists and lyricists witnessed in the past.

Hopefully the new-year will generate creative ideas on how best to balance out these seemingly conflicting set of concerns i.e. fostering efficiency and competition it the market place, whilst at the same time subjecting these collectives to some modicum of regulation. Perhaps, at the very least, one might think of a central database where all copyright owners (and societies representing them) mandatorily declare their copyrights in order to enforce them later. At least for those copyrighted works amenable to mass distribution and licensing through collectives such as musical works and recordings. If not for anything else, this will at least engender more “transparency”, a virtue that lies the very heart of this blog and the quixotic crusades that it undertakes from time to time.

And on that hopeful note, let me again wish our readers a wonderful new year! One filled with creativity, courage and camaraderie, three much needed ingredients for our uniquely evolving IP regime.

ps: image from here.

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.

3 comments.

  1. AvatarAnushree Rauta

    Justice Kathawala’s order in IPRS vs Harsh Vardhan Samor kind of renders Section 33 (1) new proviso redundant. This order has bought IPRS back into the game.

    Reply
    1. AvatarPoorv

      Isn’t it weird because the judgment actually makes the above mentioned redundant? I don’t get the point? So an association can sue even if its not registered not it is an agent.

      Reply
  2. AvatarRounak Biswas

    Brilliantly written article. So lucidly written that not for a moment I have felt bored .In the same time it made me aware of this development and have also made me a little aware of this copy fraud issue.

    Reply

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