On July 4, 2018, the Union Cabinet approved the proposal to accede to the WIPO Copyright Treaty, 1996 (‘WCT’) and the WIPO Performance and Phonograms Treaty, 1996 (‘WPPT’). These treaties are part of a series of international instruments created by the World Intellectual Property Organisation (‘WIPO’) to promote the protection of intellectual property throughout the world. They are commonly referred to as the ‘WIPO Internet Treaties’ due to their emphasis on protection of rights in a digital environment.
While India became a member of WIPO in 1975 and has acceded to a number of treaties administered by WIPO, it has not become a party to either of the Internet Treaties till date. Following the approval of the Union Cabinet, however, India’s accession to these treaties will become official once the Instrument of Accession is deposited with the Director General of WIPO (according to the latest Standard Operating Procedure issued by the Ministry of External Affairs). Once this process is complete, the treaties will become binding upon India.
The first of these treaties – the WCT – is a treaty that falls under the Berne Convention. It specifically sets out a framework for the protection of authors’ rights in the digital environment and also makes the protection of computer programs and databases mandatory. The WPPT, on the other hand, pertains to the rights of performers and producers of phonograms. It protects, specifically in a digital environment, the rights of actors, musicians, singers and producers of soundtracks.
In 2012, the Copyright Act, 1957 (‘the Act’), went through a number of changes to, inter alia, make its provisions compliant with these treaties. These amendments include changes to the definition of “Communication to the public” in order to make it applicable to the digital environment [Section 2(ff)], the introduction of provisions related to Technological Protection Measures [Section 65A] and Rights Management Information [Section 65B], and safe harbour provisions over electronic medium [Section 52 (1) (b) and (c)], among several others. The approval of the Union Cabinet to accede to these treaties comes in furtherance of these amendments and is a step towards fulfilling the objectives laid down in the National IPR Policy, 2016.
While accession to the Internet Treaties will benefit copyright owners in the digital environment, one is not sure as to how it might impact some of the progressive provisions that India introduced via the 2012 amendments. Rights holder lobbyists from the US and EU are likely to allege that the unique Technology Protection Measures (‘TPM’) provisions in the Indian regime are not compliant with the strict standard mandated by these treaties. Others may counter that the treaty provisions are flexible enough to permit the custom-made Indian provision.
By way of background, TPMs are digital management tools used to restrict what users can do with digital materials, and include mechanisms such as encryption and digital watermarking. Section 65A of the Act, which restricts circumvention of TPMs, dilutes the rights of the owner in several ways. For instance, Section 65A does not penalise the actions of a third party that creates or facilitates the circumvention of TPMs, provided that the purpose of the facilitation is not a prohibited act under the Copyright Act, 1957. Section 65A also states that a person may be penalised only if it is proved that there was an intention to infringe upon the rights of the owner. As is evident, these provisions on TPM are less friendly to the copyright owner than other provisions found in the US and EU.
One has to wait and watch to see the kind of pressure that will come to bear on India in the aftermath of this accession.
What is most worrying though is that this decision to accede to the major Internet Treaties accession appears to have come out of the blue—unlike earlier years, where no major reforms in copyright law were unleashed without public stakeholder consultations, this one appears to have slipped by without much public discussion.
But for now, copyright owners at least have cause to celebrate.
Image from here.