It appears that there is a copyright amendment bill in the offing! This is surprising because there has been no public call for consultations as far as I can see on the DPIIT’s website nor has there been any mention of stakeholder meetings happening already. Some whispers had been doing the rounds of a ‘comprehensive’ set of amendments but I didn’t place much attention to it, having seen nothing official mentioned anywhere. However, there is now a letter to the DPIIT from a group of IP professors including Prof N.S. Gopalakrishnan, who as many of our readers would know, has earlier been an expert advisor to the Indian delegations at WIPO and on many IP committees over the last few decades now.
The letter is available here and its focus areas are both interesting and concerning. I do not have knowledge of facts – as there is nothing publicly available on this – and the rest of this post is based on this letter along with my own thoughts or speculations about what a possible amendment could focus on. It would in fact be difficult to understand how DPIIT would proceed with any urgent movement on any amendments, as its own Working Paper 2 on Copyright and AI is yet to be released for comments. Readers may recall that their Working Paper 1 received much criticism both off and on the blog. AI and Copyright is of course an extremely complex and convulated area. So, on one hand, it would make no sense in my mind, to assume DPIIT would think it safe to rush through amendments even when their own working papers in this (one) area are not finalised. On the other hand, it would be extremely worrying if amendments were being rushed through despite this!
To be clear at the outset, I do think we need amendments to our copyright laws, not only to clarify / improve existing provisions, but also to update our laws with the amount of digital embeddedness we now live with/in. However, based on what is said in the letter, it would appear that the government already has decided what it wants to amend, without any transparency around this process. If it is true that the DPIIT “is at an advanced stage of finalising an Amendment to the Copyright Act”, then the complete absence of public notifications about consultations or process is deeply concerning as a process matter, but also as a substantive matter. So, we need amendments – that happen after due consultation and consideration from all stakeholders, in a public and transparent manner! Let me expand.
Education, Education, Education!
Copyright was under the purview of the Human Resources Development (HRD) Ministry till 2016. The HRD Ministry was earlier known as the Ministry of Education, and in 2016, was renamed back to the Ministry of Education. It was at this time, for unclear reasons, that Copyright was moved from the HRD Ministry, to the Ministry of Commerce, to the Department of Industrial Policy and Promotion (DIPP), which has since been converted to the Department for Promotion of Industry and Internal Trade (DPIIT), where it now lays. As Prashant has neatly explained here, the reasons for copyright being with the Ministry of Education earlier on was closely tied to the role that Copyright played vis-a-vis education in the country. As he describes, “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.” Do read the full post for details but more directly relevant right now is that these educational communities (Students, Academics, Universities) have apparently not been consulted with in any meaningful manner, even as foreign academic publishers still play a strong role in materials used in Indian higher education.
At the same time, it should be kept in mind that the DPIIT and Ministry of Commerce more generally, are very actively engaged in India’s positions in various Free Trade Agreements. Is it unreasonable to question the extent to which those discussions and consultations with industry bodies, have played any role in domestic policy? I would imagine these concerns are stronger in patent law contexts but they can surely exist in the copyright contexts as well. In any case, I’m not aware if these minutes or even summaries of stakeholder meetings are published anywhere – I have not been able to find them.
If Indian academic communities have been consulted, one can still not just assume the consultations were meaningful, as there are no public information about what views were presented, who were invited (if any), etc. And so there’s no way of knowing what, if anything, was eventually taken into consideration. While “You should have nothing to worry about if you have nothing to hide” doesn’t work in the privacy context, it certainly does apply in the governmental accountability context.
This would also sadly be divergent from how amendments to India’s Copyright laws have taken place earlier. The last set of major amendments were the 2012 amendments that had at least 4 years of discussions and consultations before they were passed, including 2 years after it was tabled!
Coming back to the letter, there is also a clear concern about access to education in the digital context, taken together with the development goals set by the Government’s own National Education Policy 2020. One wonders whether the mandated Inter-Ministerial Consultations with the Ministry of Education have taken place yet, should these areas be under consideration for amendment.
Regardless of the specifics, it is perhaps an interesting exercise to start thinking of amendments which may be necessary to help improve our Copyright landscape and make it more streamlined with our country’s actual needs, regardless of international pressure in this or that direction.
The letter ends with three requests, all of which seems pretty basic requirements for any amendment process, so one can only hope that they are taken on board, whether the inevitable amendments are in the process of happening, or happen later:
(a) public disclosure of the draft Bill, sufficiently in advance of introduction to Parliament
to allow for informed comments;
(b) a structured open consultation process that specifically invites participation from
universities, faculty associations, student bodies, and library and archival professionals, and
not only from industry associations and rights-holder bodies; and
(c) adequate time for such stakeholders to respond, commensurate with the scope and
complexity of the changes proposed.
