We are happy to bring our readers a Guest Post by Prashant Reddy, on the recent news regarding shifting the Copyright Office from the Ministry of Human Resources Development to the Department of Industrial Policy & Promotion. We have previously carried posts on the issue here.
Keep the Copyright Office with HRD
Author: Prashant Reddy
The Government of India has recently announced that it will be shifting the Copyright Office from its current ‘home’ the Ministry of Human Resources Development (HRD) to the Department of Industrial Policy & Promotion (DIPP) which functions under the Ministry of Industry and Commerce. While the government hasn’t yet put out a press release explaining the reasons for the transfer, the most likely reason for the transfer is the fact that the DIPP also has control over two offices which deal with intellectual property law: the Patents & Designs Office and the Trade Marks Registry. The move appears to be aimed at consolidation of all IP offices under one Ministry but such logic fails to understand the rationale of placing the Copyright Office within the precincts of the Higher Education Department of the Ministry of HRD. To understand why the shift may not be a good idea, it may be useful to glance through the history of the Copyright Office.
Until the mid-eighties, the Ministry of HRD was known as Ministry of Education and the Ministers in charge have included learned men like Maulana Azad, India’s first education minister, followed by others like Justice M.C. Chagla who was formerly, the Chief Justice of the Bombay High Court for close to a decade, before serving as a diplomat and eventually a Cabinet Minister. In those early days of the republic, one of the major objectives of the government was to make education more affordable and accessible to all Indians. A stumbling block at the time was that the copyright in most educational text books belonged to foreign publishing houses located in the United Kingdom. By its very nature copyright law vests a monopoly in the copyright owner thereby blocking competition which can reduce the price of copyright content like textbooks or academic journals. At the time most of the advanced textbooks on science, mathematics and foreign language literature was owned by foreign publishing houses. This meant that the Indians were required to pay up substantive royalties to the foreign publishers and at the same time the Indian publishing industry was deprived of content that they would publish. In 1955, the Ministry of Education introduced the Copyright Bill, 1955 in Parliament with the aim of replacing a British-era copyright law. The Ministry’s ambitious reform agenda included reducing the term of copyright protection, liberal fair dealing provision etc. Although these reforms would have put India in violation of its international commitments under the Berne Convention, these reforms would have also resulted in more affordable textbooks and also provide a boost to the domestic publishing industry. Several of those reforms were blocked in Parliament by a strong lobby of authors, which included the famous poet Ramdhari Dinkar who was then a nominated member of the Rajya Sabha. The final version of the law which was enacted in Parliament did away with several of the radical reforms proposed in the government’s initial draft of the bill but still contained generous fair dealing exceptions which privileged the use of copyrighted content for educational purposes. In the sixties, under the leadership of M.C.Chagla, the then Registrar of Copyright T.S. Krishnamurti launched a historical campaign to reform international copyright law governed by the Berne Convention that had been created by European countries who were at a different stage of development. A loose alliance of African and Asian countries headed by India and shepherded by Krishnamurti, shook the foundations of international copyright law in the sixties. Although a short-lived victory at the 1967 revision conference in Stockholm, was diluted in a later conference in Paris, 1971 the Indian Copyright Office forced the world to stand up and take note of the impact that copyright law was having on the education policies of the developing world. The only reason that such a strong effort had been made by the Copyright Office was because it was located in the same Ministry which had to foot the bill for the more expensive educational textbooks.
A more recent example of the Copyright Office’s role in influencing the cost of accessing education is the DU Photocopy case where foreign academic publishing houses are attempting to monetise a practice known as ‘photocopy piracy’ where Universities provided students with course-packs consisting of pirated photocopied material. A judgment on the issue of whether such photocopying is covered by the fair dealing provisions of Indian copyright law has been reserved for more than 15 months now by the Delhi High Court. The reason however that the case even had to be filed against a central government university is because the Copyright Office resisted lobbying by publishing houses to issue a circular to all universities to resist indulging in photocopy piracy. The likely reason behind the Copyright Office resisting this move was the fact that its parent Ministry would have to foot the hefty bill for agreeing to licensing copyrights at public universities.
The two examples provided above illustrate how copyright law is intrinsically linked with India’s education policy. Locating the Copyright Office within the Ministry of HRD forces the government to better balance the monopolistic demands of copyright law with the demands of affordable education in India. Such a balancing act is key to copyright law.
The flip side of the coin is that copyright law deals with several other areas especially creative sectors like the film, music and entertainment industries. There have been several tussles between the Ministry of Information & Broadcasting and the Copyright Office on the appropriate balance for the movie industry, which has been making extreme demands to tackle piracy, including and not limited to demands for preventive detention for ‘video pirates’. In any event, the DIPP has no real stake in copyright law – this department is preoccupied with regulating foreign investment, giving FIPB approvals and administering the Boilers Act, 1923. It is an open secret that the function of formulating IP policy and negotiating treaties is largely delegated to the Office of the Controller Generals of Patents, Designs & Trademarks. If the government is hoping for better outcomes in terms of increasing efficiency at the lethargic Copyright Office, one only needs to look at the woeful, borderline incompetent, record of the DIPP in administering the Patents Office and Trademark Registry.
That is well said. Works eligible for Copyright cannot be classified under ‘Industrial Property’ and hence it is inappropriate to bring the administration under Ministry of Commerce & Industry. It was the vested interest of White men to bundle Copyrights and related rights to Industrial property rights (Patents, Designs etc.) and Name it ‘Intellectual Property Rights (IPRs). In fact, Trademarks & GI cannot be considered as IPRs at all, since there is no inventive ingenuity in finding a TM or GI. White men could succeed in pushing the IPR bundle through TRIPS in WTO.
Agree fully with Prashant on this.
One more reason to keep the copyright authorities and IPO office separate is the balance it brings to decision making in government. We will continue to be pressurised by rich country governments. ( Incidentally, shifting copyright to DIPP was also one of the demands in the ‘private assurance on compulsory licensing’ fame submission to the USTR by the USIBC).
Distributed control of the IPR regime will always brings in views of other stakeholder Ministries and therefore a balance in the final outcome.
Certainly copyright isn’t “industrial property” but, given its importance in new areas and new technologies, the Ministry of HRD wasn’t the right environment. The Copyright Office’s work was completely different in kind and subject matter from everything else that Ministry did. As the Joint Secretary in charge of Copyright, at a time when the TRIPs negotiations were on, I was also in charge of Book Promotion (not the same thing), foreign scholarships, and at different times the Navodaya Vidyalayas, Kendriya Vidyalayas (very time-consuming). All the personnel in the Copyright Office, too, were birds of passage. Certainly DIPP can’t be a worse environment for copyright.