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CONTENTS
1.  Intellectual Property Rights and Public Good

Challenges and Responses to Depleting Commons

 
2. The Internet as a Challenge for Intellectual Property Protection: An Indian Perspective 
 
3. Digital Technology and Libraries
 
4. Indian Copyright Law and Digital Technologies
 
5. Copyright Law of India
 
6. Copyright Issues in E-Publishing
 
7. Protection of Expressions of Folklore
 
87. Intellectual Property Rights and Rural Development
 
9. Basic Principles and Fundamental Concepts of Copyright Law
 
10. Human Resource Development Approach to IT

 

Intellectual Property Rights and Public Good

Challenges and Responses to Depleting Commons [1]

 

T C James

 

            Study of the history of institutions and systems reveals that the survival of social, economic, political and legal systems depends on the public good they serve.  As the Bible says, “Every tree that does not bear good fruit will be cut down and thrown into the fire.” [Matt. 7:19.] The fruits in case of institutions and systems are the benefits that they bring to humanity. Intellectual Property Rights (IPRs) are no exception.

 

2.         IPRs are creations of law. The IPR system evolved as a solution to the problem of rewarding creativity and inventiveness. These are the sources of knowledge and wisdom. Knowledge in most traditions had been held as sacred and not subject to mundane laws, for long. Appropriation of the gains of knowledge to purely one’s own personal well being was considered as against the grain of wisdom, since knowledge is that which liberates -- Sa vidya ya vimuktaye.  This has been the guiding principle of India. In the West too, knowledge was for public good and also ‘public goods’ since “non-rivalry and costly exclusion generally apply to their use”. [Pinoda].  The enclosing of the public space of knowledge into private property is a modern phenomenon.

 

3.         It is after the Middle Ages, with the Renaissance, when there was a great explosion of knowledge that intellectual property rights as private property really emerged though some evidences suggest that certain rights similar to patent were in existence in ancient Greek city states. The Venetian Patent statute of 1474 is considered the mother of all patent protection notwithstanding the awarding of a patent in the Republic of Florence in 1421. The statute of Monopolies of 1623 of England buttressed this trend. The Constitution of the United States of America included a provision of protection of IPRs in it Article I, Section 8, Clause 8 of that constitution reads,

 

the Congress shall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

4.         The regime of IPRs started with the grand objective of protecting the interests of the producers of knowledge.  The underlying philosophy, as stated in the legend on the cupola of the Headquarters building of the World Intellectual Property Organisation at Geneva is to ensure economic return for the creators of art and invention. This concept also finds reflection in Article 27 of the Universal Declaration of Human Rights:

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

This is unexceptionable.  Every individual who puts in an effort has a right to reward.  Manual workers contribute to goods and services which they or others enjoy and for which they are paid in kind or cash.  The intellectual efforts of creative minds generate ideas and expressions which are also enjoyed by humanity.  It has been easy to measure and quantify physical effort and also judge their qualitative value.  Appraisal of cerebral effort and the value of the resultant creation has always been a complex and rather difficult problem.  More importantly replication of a physical good or service required an equal effort as in the first case whereas in the case of intangible product, such as an idea or expression, in reproducing, the quality and quantity of intellectual efforts are quite incomparable.  This dichotomy created the special problems in extending the common system of paying for a person’s physical inputs through an assessed standard value per hour.  In the physical goods and services sector, replication really did not pose a major problem since the effort was more or less even in all cases whereas in the case of an idea or expression, once it is created, any one else can reproduce or use the same without the intellectual travails that the creator had undergone initially.  This creates a dilemma for the innovator or creator: if he makes his work public others may copy or use the same without paying him and if he does not make public, the purpose of creation is defeated.  IPRs have been designed as the solution to this.  They provide a mechanism that ensures that though the creator makes public his invention or creation, which, in any case it is intended to be, another does not misappropriate the same and makes a profit, which justly ought to have gone to the originator.

5.         The nature of IPRs is that of a social contract – a contract between the sovereign State and the individual. The individual agrees to reveal his creation/invention and, in return, the State agrees to give certain exclusive rights for a limited period. The conditions normally attached with the granting of a patent also stress the obligation to the public of the patentee such as commercial exploitation of the invention, making the patented product available to the general public at reasonable price, etc. The exclusive rights enable the owner to reap economic and moral returns from his intellectual work and ensure that another person does neither misappropriate the same nor make easy money out of it.  This social contract is a marriage between private good and public interest.

 

6.         In the case of patent protection, the inventor agrees to make public  his invention; in return he gets exclusive or monopolistic rights on commercialising his invention for a prescribed period such as twenty years as the case in most countries now.  The exclusive rights help him to create wealth which will recoup the investment, both physical and intellectual, that he made in creating the knowledge and also will give him profit as a reward for his effort and also as an appreciation of the contribution by the society. The revelation gives the public, access to the knowledge. Instead of re-inventing the wheel, they can build on the knowledge and improve the same. The knowledge creation contributes to the knowledge stock of humanity. The wealth creation can also be made to contribute to public weal. The common good result in both the cases occurs in an indirect manner.

 

7.         Be that as it may, the inventions could affect public health in a more direct way. Besides, the inventions should contribute to bettering of human condition. This would be possible only if the fruits of the inventiveness are accessible and available to the people in an affordable way. The system has to ensure this. The period limitation for a patent is one way of ensuring access. Further, exclusivity for the limited period also needs to be tempered with public interest concerns. Enjoyment of exclusive rights with total disregard of common weal will boomerang. Compulsory licence provisions in most patent legislations are to be viewed from this angle.

 

8.       While patents protect new ideas, copyrights protect their expressions. That could be in the form of literary, dramatic, musical and artistic works or cinematograph films. People get access to knowledge through expressions. While uninhibited right to express any idea is available, once an idea is expressed in a particular way or format, another cannot copy it. This is the essence of copyright protection. Here too, the rights ensure further creativity. If the expressions are freely copied, people will be reluctant to make them public as, then they will not be able to reap any economic return from their effort. Further, they also get disheartened if their authorship does not get recognised. The copyright system through the economic and moral rights, guarantees both. The system contributes to public interest through incentivising more creativity, which will become common heritage of humanity after a specific period. However, as in the case of patents, here too certain extra access needs to be provided to ensure better creative outputs. Generally the copyright laws provide for this in what is known as fair use provisions which permit uses in certain circumstances without any specific permission from the copyright owner.

 

9.     The tension between private right and public good always characterised Intellectual Property policy.  Resolving this tension between private interest and public good is the major challenge of IP policy. Different models have evolved over time on solving this issue.  

 

10.     The Gowers Review of Intellectual Property, a United Kingdom (UK) task force, which studied the IP laws of UK, mentions four models of tackling this issue. The US model considers knowledge as a form of property and, therefore, belonging to the individual, and consequently, public rights are exceptions.  In the second model, knowledge is an asset first and a public resource second. In this model, the rights of producers get precedence over those of the consumers or the public. According to Gower, this is the model followed by the UK. The third model is diametrically opposite to the U.S. model. In this, knowledge is first a public resource and only secondly a private asset. In this model, public interest is the basis of IP policy.  Here public interest provisions are “rights’ and not exceptions, the exclusive rights rather being the exceptions.  Gowers’ fourth model is ‘cyber-socialism’. In this model knowledge is only a public resource and not to be restricted. Examples are the case of Linux operating system and Wikipedia. However, the Report finds this model unworkable.

 

11.    The Indian model is closer to the United Kingdom model. Generally it is a balanced regime where the need for incentives for creativity and innovation is matched with the need of the society to enjoy the fruits of the same.

 

12.              The Patent law effectively balances and calibrates Intellectual Property protection with public health, national security and public interest concerns.   Section 83 of the Patents Act is a beautiful illustration of the balanced approach as it sets out the general principles applicable to the working of patented inventions.  It states upfront that while patents are granted to encourage inventions,

 

the protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of right and obligation.

 

The section goes on to stress that the patent should not impede protection of public health and nutrition and should, instead, act as instrument to promote public interest especially in sectors of vital importance for socio-economic and technological development of India. Another general principle enunciated therein is that patents granted to make the benefit of the patented inventions available at reasonably affordable prices to the public.

 

13.       A number of safeguards have been included in the Act to protect public interests.  Availability of products at reasonable price is ensured through the provision of compulsory licence.  Such a licence can also be issued to deal with circumstances of national emergency, extreme urgency or public non-commercial use.  Government has the powers to allow parallel imports to ensure availability of patented drugs at reasonable prices.  The import need not be only from a person authorised by the patentee.  Besides, with a view to making available patented drugs through government dispensaries, hospitals, etc., the government can import patented drugs without the consent of the patent holder. For a public purpose the government can compulsorily acquire patent rights.  Non-working and the patented invention not being available to the public at reasonably affordable price are grounds for revocation of a patent.  Further, a patent can be revoked in public interest if it is prejudicial to the public or exercised in mischievous manner and also in the interest of security of the country. As per the Indian law, those interested in manufacturing generic version of a patented product on expiry of the patent can make necessary preparations for a production even during the validity of the patent. This provision facilitates availability of generic version of the patented product at competitive prices immediately on expiry of the patent.  Most importantly, no patent is allowed for a new use of a known drug or substance, that is to say, mere discovery of a new form, use, property, process, etc., of a known substance which does not result in enhanced efficacy is not patentable, and salts, esters, ethers, polymorphs, etc. of known substance are to be considered to be the same substance until these differ significantly in properties with regard to efficacy. 

 

14.       The Copyright Act, similarly, contains a number of provisions which take care of the public good. It contains provisions for compulsory licence to publish works withheld from public and unpublished Indian works, licence to produce and publish translations of foreign works not made available in India, etc. It has an elaborate section which details the uses of a work which are not infringements. These include a fair dealing with a literary, dramatic, musical or artistic work, private use including research, making copies or adaptation of a computer programme by the lawful possessor of a copy as a back-up one, reverse engineering and de-compilation for operating inter-operability of an independently created computer programme with other programme, making copies of a computer programme for non-commercial personal use, fair dealing with a  work for reporting current events, reproduction for judicial proceedings, reproduction by legislatures and their secretariats, reproduction by teachers during instructional and examination process, performance by educational institutions, and so on.

 

15.   Over the decades, the IP regime extended and covered so much of the ‘commons’ that now there is a serious apprehension in the minds of many philosophers of IP that perhaps it is adversely affecting the public good.

16.       As already mentioned, knowledge was considered as a public resource or ‘goods’ in the ancient times.  In the pre-Renaissance days, this did not become a major issue with creators as reproduction was not an easy process.  Till the invention of printing press with movable types, manuscripts had to be copied manually and that necessitated employment of a mass of people for very long hours.  With the invention of   printing technology, it became possible for a book to be copied any number of times through an economical and easy process, taking literally away the control which the author had over the reproduction.  In the case of inventions also, the process of exploitation became easy. 

17.    The concept of ‘commons’ lead to certain interesting situations.  Some people, other than the creator were able to make huge profits out of the inventions or creations on which, perhaps the creator had spent his lifetime and who still lived in penury.  Also in some cases, it would create so chaotic market conditions that many publishers could simultaneously produce copies of the works resulting in unreasonably high supply against the demand.  This would make the publishers bankrupt.  Publishers, therefore, would be reluctant to take up publication of a work lest another may also do so and eat into his legitimate profit.  Resultantly, the author would have difficulty in reaching his work to the public.  In the case of inventions the apprehension of the same being reproduced or used without any return for the inventor could force them not to make public the details of the same.  This situation would deny the public access to the knowledge.  It also could be a disincentive to the commercialization of new ideas.  Consequently, the tendency of enclosing the ‘commons’ with the limited objective of ensuring a fair return to the creator and generating ‘conducive’ conditions, according to them, for making public the new ideas and expressions, increased among policy and law makers, over the years.  Result was a steady reduction of the public space.

18.   Developments in technology have created new challenges to the question of balancing of the private and public interests.  The threat increasingly is to the ‘commons’.    The emergence of digital technologies and Internet created a situation of empowerment of the individual.  Copying of a book or music or a film is now literally child’s play.  With the click of a button one can copy a massive work and distribute it to millions of users across the globe simultaneously.  Copyright laws generally permitted private individual use without specific authorizations.  In the new situation, this could be misused.  The solution devised is to introduce technological locks.  Since the locks do not distinguish between copying for private and commercial purposes, they do not allow the private copying rights which the individual had earlier enjoyed.  It also took away from him his right to informed decision making as earlier used to be there, for example, in the case of deciding to buy a book after browsing through the same, since browsing in the computer involves copying.  Thus, the fair use provisions which are available in the law become infructuous in the face of the new technologies, thereby considerably shrinking the ‘commons’, nay, rather denuding it.

19.       In the case of patents, the threat to the ‘commons’ has increased in a different way.  Patenting of a product, with minor modifications over the existing one, results in keeping that product out of public domain for periods much longer than the original patent period.  Cleverly calibrated patents of minor improvements can theoretically keep a product within the monopolistic rights of the patentee to very long stretches of time.  This both affects affordable access to the fruits of the inventions as well as restricts further progress by denying improvement on the same to be made by the others.

20.       Another kind of assault on the ‘commons’ is made by obtaining patents over traditional knowledge.  Uses of a product which are common knowledge in one country but unknown in another country are patented in the latter where, later, the import of that product from the former could be prevented.  The patents for turmeric and ‘neem’ products in the USA and Europe are examples. 

21.       Gene patenting causes a problem of a different kind.  Since the gene continues to be in the mother plant or animal, products using the mother plant could be blocked.

22.    The case of Moore vs. Regents (1984) brings out another issue posed by the ‘enclosures’.  In this case, the doctors of University of California extracted and patented the cell lines of one John Moore, who was undergoing treatment, without his permission.  The case finally led to the interesting decision of the US Supreme Court that though his body is owned by Moore, his genetic code is not his property and could be owned by the one who decodes it.

23.       Policy approaches of extremes, viz. of allowing  too vast ‘commons’ and too wide ‘enclosures’ are both dangerous.  Too large a public domain would lead to the ‘tragedy of the commons’ a phrase created by Garret Hardin, Professor of Biology in the University of California, in 1968.  It describes a potentially unsustainable  situation, in which a multiplicity of owners have the privilege to use a common resource with no one the right to exclude others.  The tragedy is in that no one is interested in or prepared to maintain the same.  It is a kind of anarchic situation.

24.       The opposite will also be a disaster or ‘tragedy of the anti-commons’ in the words of Michael A. Haller, Professor of Law, Duke University, used by him for the first time in an article in the Harvard Law Review, in 1998.  In this situation, multiple IPR owners, each armed with the right of exclusion, will see to it that no one really uses the inventions.  This phenomenon is seen in drugs, advanced machine parts, etc. New research on frontier areas of technology such as in pharmaceuticals and Information Technology hardware is often related to a multiplicity of upstream products which may be in patented regime.  It is extremely difficult to identify each small product or minor invention that may have a bearing on the final new product.   Many a time, researchers are unaware of the existence of patents in certain products which occur at intermediary stages in their research and get to know of the same only when the product enters the market.  Sometimes, a competitor denies permission to use a product, which is one of the  ingredients in the product of a company, thus stalling a new product.  Too expansive claims of patents also pose problems as they could be used to prevent the launching the new product.  All these have great bearing on public health and R&D.

25.       The right balance between IP rights and public rights could vary, depending on the contexts.  For example, in a country where common people can afford costly medicine because of availability of social security or insurance coverage, the rights of the public for a compulsory licence, when drugs are overpriced, could be narrower than in a country where the affordability is low.  The balance could also vary depending on the field of technology and their relevance for public welfare.  In a country with low computer and internet penetration, the problems of digital technology are smaller and, therefore, the fair use rights could be much wider.  The flexibilities could vary.  The balance depends upon technology, market parameters, level of R&D and so on.

26.    The concept that IPRs should take care of the public good has found reflection in the Universal Declaration of Human Rights.   Para 1 Article 27 reads,

Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

 

27.       Even in the Agreement on Trade-Related Aspects of Intellectual Property Rights (1994),  a treaty criticised vehemently by many ‘IPR – Left’ advocates, this concern is reflected.  The objectives set out in Article 7 of the Agreement are for a balanced IPR regime.  The Article reads as under: 

 

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

 

Further, Article 8 enunciates the basic principles guiding the Agreement in the following words:

 

Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 

 

Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

 

28.    Thus, the international IP regime lays down the concept of public good as basic to protection of intellectual property rights. The challenge to the policy maker is to balance the two so as to ensure that the rights stimulate innovation while access to inventions for the betterment of society and further development is not unduly blocked. They have to find a via media between the IP maximalists and the IP minimalists.

 

29.       Keith E. Maskus and Jerome H. Reichman say that those concerned about efficient provision of public goods must address three fundamental issues. These are

 

What are the optimal levels of the various goods to be supported?

How are the desired goods to be provided?

How to determine the best jurisdictional level of providing public goods?

 

30.    One approach is to leave it to the market mechanism to ensure that the balance is maintained.  This approach ignores that fact that it is the market forces guided by corporate interests that force depletion of the commons.  There is an inherent conflict between the interest of the producers and consumers in economic terms.  Apart from that, monopolization will adversely affect competition.

 

31.       The overall objective of a balanced regime, that looks upon IPs as public goods to be optimally used for public benefit, should be to ensure that creators get the optimal incentive to produce new products and new works and the public get fair access to the same.  Ensuring this, however, requires constant review and monitoring.  One time solution is as wrong as ‘one size fits all’ approach in this regard.  Policy makers have to take note of this and enlightened public should be alert to point out deviations detected at the initial stages itself. That is one of the means to make our country, a country dreamt of by Gurudev Rabindranath Tagore when he sang:

           

Where the mind is without fear and the head is held high
Where knowledge is free
                          

 Where the mind is led forward by thee
Into ever-widening thought and action
 

Thank You.



[1] Address  delivered at the convocation of the second batch of students of GNA Patent Gurukal at Mumbai on 9th September, 2007.  The views expressed in this address are personal and do not necessarily reflect those of the organisation in which the author works.

 

THE INTERNET AS A CHALLENGE FOR INTELLECTUAL PROPERTY PROTECTION -- AN INDIAN PERSPECTIVE*

- T. C. James

The Internet system is spreading fast in India. Videsh Sanchar Nigam Limited (VSNL), a public sector undertaking responsible for providing all international telecommunication services from India to other countries, introduced Internet services on a commercial scale on August 15, 1995. Before then, specific groups had the privilege of accessing Internet, but the total number of users was under 10, 000. Today the number of Internet users in India is close to 150, 000 and is growing daily. The Internet has already caught the imagination of people. The demand for Internet connections in India, as per a survey conducted by the National Association of Software Companies of India (NASSCOM), is estimated to be as follows:

Year

No. of Connections

1998

1999

2000

2001

2002

450,000

800,000

1,500,000

3,500,000

8,000,000

The present number of Internet users in India may be a small fraction of the total Internet users in the world, but, as put by the Executive Director of NASSCOM in a recent article, “if the western world is riding high on the information superhighway, India has begun its attempt to be on the Net, by at least creating its own information super footpath.”

With the growth of the Internet, issues of intellectual property rights (IPR) protection are also likely to come to the fore. As of now, the country is busy with infrastructural development for the spread of Internet so that the demand is met, and, within a few years, Internet reaches every nook and corner of the country. Development of high-speed national telecommunications backbone and provision of adequate telephone lines are priority issues. Nodes have been erected in over two dozen cities in different parts of the country to facilitate Internet services. With a view to enhancing access to this sophisticated and fast medium of communication network, the government has decided to permit private companies to provide Internet services. With the entry of private Internet service providers, very soon India should become a leading Internet user in the world, as it had happened in the case of cable television service. The increased use of Internet would mean a greater challenge to IPR protection than at present. While Internet is poised for a quantum leap in the country, it will be premature to suggest practical solutions to the intellectual property right problems of Internet, as experiential knowledge of such problems is very limited. Intellectual property rights issues are already there but they are more in the realm of theory than of praxis.

The copyright law is the most potent instrument presently available for tackling the IPR issues on the Internet. The Indian Copyright Act, originally enacted in 1957, was comprehensively amended in 1994. With these amendments, it has become a forward looking piece of legislation and the general opinion is that the amended Act is capable of facing the copyright challenges of digital technologies including those of Internet. By removing certain restrictive clauses and phrases, and by expanding the definitions of works like cinematograph films (motion pictures) and sound recordings (phonograms) to include such works in ‘any medium’ within their purview, the Act has adapted itself to the digital era. It, however, depends on how case laws develop when IPR issues of Internet are taken to the court.

One of the basic copyright issues in Internet is determining the border between private use and public use. Like all copyright laws of the world, the Indian Copyright Act also makes a distinction between reproduction for public use and private use. Reproduction for public use can be done only with the right holder’s permission, whereas a fair dealing for the purpose of private use, research, criticism or review is allowed by the law. This distinction gets eroded with the ability of an individual to transmit over the Internet any copyrightable work to myriads of users simultaneously from the privacy of his/her home and users being able to download simultaneously a perfect copy of the material transmitted, in their homes. Fading away of the thin line that divides the public and private territories, many feel, calls for a new set of norms in copyright.

The Internet has put on their heads some of the traditional concepts. A case in point is that of publishing. With the advent of the industrial revolution and the age of mass production, publishers of books and music had made their entry. They have become such a presence that writers could not think of a world without them. The Internet is a medium which, as distinct from books, removed the middleman between a writer and his/her reader. The author can put his/her work on the Internet and the reader can access it directly. If printing press had given birth to publishing industry, the Internet, by empowering every writer to be his/her publisher, has sounded a warning bell, if not the death knell, of that industry. This raises the question whether making a work available on Internet is ‘publication’ or not. According to the Indian Act, ‘publication’ for purposes of copyright means “making a work available to the public by issue of copies or by communicating the work to the public.” This definition, by virtue of its non-restrictiveness, can be construed as covering electronic publishing and, thereby, ‘publication’ on the Internet. It may, however, take a few years before electronic publishing in India really makes a big mark.

Whether communication over the Internet is ‘communication to the public’ is still an unsettled issue. The Indian Act has an exhaustive definition of ‘communication to the public.’ The Act says, “ ‘communication to the public’ means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.” This definition is considered broad enough to encompass communication over the Internet within its fold. If the courts adopt this view, the Internet service providers in India will have a hard time sorting out copyright over the content of the Internet.

Distribution right poses another problem. Like in most copyright laws, in the Indian law, the distribution right also gets exhausted with the first sale. As of now, a student can freely sell a second hand textbook or a library can circulate among its members books it purchased. In the Internet, distribution gets entangled with reproduction since no copy can be distributed without reproduction.

The right of reproduction presents certain fundamental problems over the Internet. This arises out of the basic nature of Internet transmission. Reproduction takes place at every stage of transmission. Temporary copying (known as caching) is an essential part of the transmission process through Internet without which messages cannot travel through the networks and reach their destinations. Even when a user only wants to browse through, temporary copying takes place on the user’s computer. Coverage of the temporary reproductions was a hotly debated issue in the World Intellectual Property Organization (WIPO) Diplomatic Conference of December 1996 and still remained inconclusive. When a reproduction takes place in the course of authorized use of the work and whose purpose is solely to make the work perceptible or where the reproduction is of a transient or incidental nature, should it be restricted? In the Indian law, reproduction has to be in a material form but includes “storing of it in any medium by electronic means.” Case laws are yet to clarify whether the reproductions taking place in the Internet communications come under the purview of the right of reproduction given by the law and until that is done, opinions will vary on temporary reproduction and permanent reproduction and on the legality of the temporary reproduction. It will be interesting to see whether the courts will introduce the concept of economic relevance of a reproduction to bring it within the purview of the right of reproduction granted by the Copyright Act.

Perhaps the most significant issue from the angle of copyright enforcement is that of liability. For one, there is the issue of liability for acts that take place in the course of transmission of a legal (as distinct from an infringed) copy of a work. As already mentioned, the issue depends a lot on the interpretation that the judiciary takes of various rights given by the law. In case the judiciary takes the view that reproduction, etc., that occur in transit are violation of a copyright, then questions will arise as to fixation of liability. Who is to be held responsible? The party who dispatches the work or the party who receives it or the Internet service provider? The answer will not be easy to find out. The other issue is of communication over the Internet of a clearly infringed copy of a work. The moot point in this issue is whether an Internet service provider be held liable for the copyright infringement made by a subscriber even though he is not aware of the subscriber’s action. While describing copyright offence, the Indian Copyright Act makes the stipulation that the infringement or abetment of the infringement has to be made “knowingly” by a person. It is possible that by virtue of the expression ‘knowingly’ an Internet service provider, who may not have any awareness about the copyright infringement by the subscriber, may be absolved from liability and escape punishment.

This, however, raises another question. Even if the Internet service provider is not punishable under the Indian law, he may incur liability under the national law of another country. Since Internet is truly global and is no observer of national boundaries, how are we going to regulate this? The networks are spread all over the world and a message or information travels through any number of countries before it reaches its final destination. The Internet service provider may not have any liability in the country of origin and in the country of destination but may have liability in some country in transit. This is a truly global issue. In the seamless world of Internet, the enforcement of national IPR laws which are bound by territorial jurisdictions throws up issues not easy to solve. This is an area where there is an urgency for international harmonization of laws; otherwise the threat of liability in certain countries may compel the Internet service provider to scrutinize the material being transmitted for copyright clearance, and, thereby, delaying the whole process. This could make the World Wide Web a ‘World Wide Wait,’ as one author put it humorously. The attempt should not be to hamper the flow of information but to speed it up. Each major technological development means a paradigm shift and the Internet is no exception. New norms may have to be evolved to fix liabilities on the right persons; a facilitator of Internet service may not necessarily be an abettor of copyright infringement.

There are areas where differences in cultural perspective may have a bearing on the appropriateness of the material being transmitted over the Internet. Many literary, artistic and cinematographic expressions, which are accepted in the western society, may not be acceptable in more traditional societies like the Indian society. In the case of books, music, artistic pieces and cinematographic films, a national government can exercise certain controls over them; even in the case of broadcasts and telecasts this is possible to a great extent. In the case of Internet communication how are we going to do this? It is not possible on the Net to have policing at the national boundaries. Controlling and filtering the information that flows through the Internet have many practical difficulties. The Internet is too large and amorphous for any regulation. When one seals off an infringing site, a hundred such sites may crop up in different places. The amount of information on the Internet is huge and located not in one country but all over the globe. It is not really feasible for any government to censor it. Censoring is possible when sources of information are limited. There is a major difference between the mass electronic media like television and radio, and the Internet. In the former, there is one broadcaster and several viewers or listeners, whereas in the latter, an enormous number of ‘netizens’ are inputting information and accessing it simultaneously. What kind of technical devices can regulate the complex matrix of Internet whose every user point is also a production point?

Even if it becomes technologically feasible to have control over bits and bytes traveling to and from a country, through a system of tollgates or gateways, the desirability of doing so in the Internet is open to question. It raises questions of privacy and brings us back to the issue of the distinction between public use and private use. Should governments control the cyberspace or is it a private space of the users? The Internet, as it has evolved, is the equivalent of participative democracy in the information world. In principle, every user has equal access to all material on the Net. So also, he/she can put in any material he/she wants to on the Net. It is a world that lets “hundred flowers bloom.” Should this input-access freedom be limited by government control? Will it not be a restriction on the right to freedom of speech? On the other hand, should cultural and moral traditions of a country be allowed to be swept away in the chaotic overflow of Internet? Discussion on intellectual property right issues on the Internet cannot ignore these cultural and moral questions, as IPRs cannot operate in a cultural and spiritual vacuum. “The Internet has changed from a playground for like minded libertarians to a workplace and social space for millions” (Amy Herman). This would mean the rules of the game have to change, but that change should be gradual and the new norms should evolve over time. Be that as it may, the answers to the questions raised are not easy to find.

There are other smaller but important issues also. For example, the right over the domain names. Domain names are valuable commodities as substantial business is conducted on the Internet. As of now the domain names get registered on first-come, first-served basis, without going into the legal claim of the applicant over the name. This, perhaps, is not a desirable situation as it is apt to get misused. In the case of certain cultural and educational institutions with unique characteristics, use of their names as domain names by others may lead to confusion and may deceive customers. Whether trademark law can be applied to domain names and, if so, to what extent, needs to be examined. An alternative is to have a domain number system, but that has certain inherent deficiencies, as a number does not give any clue to the nature of the site.

The range of issues that Internet poses for intellectual property right protection makes one wonder whether copyright laws would be sufficient to meet the challenge or whether we should go for a sui generis system of intellectual property right protection. In fact, there is a universal trend to think in terms of sui generis forms of protection to meet the new technological challenges. Thus there have been designer laws for intellectual property in industrial designs, plant varieties and in integrated circuits. Databases and folklore are in line for getting sui generis protection. While the copyright laws have, over the decades, shown much flexibility in accommodating new forms of creation, there still is much rigidity in them. The idea-expression dichotomy is central to the copyright doctrine and, hence, copyright does not protect the ideas, methods and functional characteristics. A sui generis form will naturally have a lot more flexibility in its scope, level and term of protection. But then it presupposes a willingness to experiment, a willingness to let the law evolve through a process of trial and error.

The Internet poses two basic challenges for an intellectual property right administrator: what to administer and how to administer. The first challenge will be met only when a general consensus is achieved over the IPR issues in the Internet. Some of the major issues are highlighted in the preceding paragraphs. The IPR administrator’s special challenge is how to balance the rights of different players on the Internet like the content providers, the service providers, the access providers and so on. This has to be done without jeopardizing the free flow of information and at the same time ensuring that the genuine economic interests of the creators of intellectual property are not adversely affected. The IPR rights on the Internet are dependent on this. Once the IPRs on the Internet are decided, then the challenge for the IPR administrator is how to enforce them in the most cost-effective manner.

While there are no two opinions about protecting intellectual property rights on the Internet in the interests of creators, the enforcement of the rights over this medium is likely to be quite cumbersome given the highly sophisticated nature of the technological device. The enforcement measures are also likely to necessitate expensive and advanced electronic devices. After all, “the answer to the machine is the machine” and every new machine tends to be costlier than the previous one. Will the cost of the measures become so prohibitive that developing countries will get pushed out of the Internet? Will the intellectual property right enforcement on the Internet lead to a division of the world into the information rich and the information poor? These kinds of questions will have to be addressed when one considers the IPR challenges of Internet.

The Internet is still in a nascent stage in India. Most of the issues raised in this paper are possibilities and have not come up in practice. It is, however, necessary to look into them in depth and find solutions in the interest of faster growth of the Information Superhighway without adversely affecting the interests of copyright owners. What we have to look for is the golden mean between the public interest and the interest of the creators and disseminators of copyright works. At the same time we have to ensure that the new IPR norms will not lead to a widening of the chasm between the developed and the developing countries.

 



* Paper presented at WIPO Seminar for Asia and the Pacific Region on the Internet and the Protection of Intellectual Property Rights at Singapore from 28 to 30 April; 1998.

Digital Technology and Libraries

A Copyright Law Approach

T. C. James*

 

Abstract

 

Digital technology gives libraries an excellent opportunity to improve their services. It also provides new ways of preservation and dissemination of library collections. But the different stages of digitisation of the materials in a library involve many copyright issues. There are legal problems and purely practical ones such as locating the owner of copyright.  Librarians need to take note of these problems and explore possible solutions. This paper attempts to focus attention on the major copyright problems involved in digitisation of library collections.

 

Introduction

 

The advent of digital technology has altered the concepts and methods of storage and dissemination of data. This has naturally affected library services. Libraries, being storehouses of data and information expressed in a fixed form such as books, have always availed of the advantages provided by technological innovations in storing and dissemination of knowledge.  The digital technology, unlike the past ones, directly affects the working of a library. 

 

Over the centuries library was a place where books and other records were preserved and made available to patrons at the premises itself. With the advent of printing technology which made possible production of multiple copies of a book with the possibility of easy replacement of a lost copy, lending of books to patrons so that they can take them out of the premises came into existence. The digital technology has now made it possible for a library to break the shackles of space and time. It can reach out to the user at his home. It can now issue any number of copies of a work to any number of users spread over the globe simultaneously provided the library is fully automated and its collections are digitised and the members/users are connected through an Intranet or Internet.

 

This transformation of a library from a building to an electronic portal is attended with many copyright issues. This paper is an attempt to look at some of the major copyright law issues connected with automation of library services and digitisation of its collection

 

The metamorphosis of a traditional library into an electronic one starts with automation of its cataloguing services. The index card boxes are replaced with computers containing electronic catalogue, making the search easier and faster.  In the second phase the collections are digitised and made available at the premises. In the third phase the digitised works are uploaded and made available through the Net. Copyright issues emerge in the second and third phases.


Copyright Law of India

 

In order to make the issues comprehensible, it is necessary to give a brief introduction to the copyright law of India.

 

Copyright is one of the important intellectual property rights and like other intellectual property rights protects contents and not containers. The properties protected by copyright are referred to as works. These include literary, dramatic, musical and artistic works, cinematograph films and sound recordings.  The definitions of the works are such that most of original expressions in the above fields, irrespective of their literary, artistic or aesthetic qualities, are covered by copyright provided they are original. Although originality of expression is a criterion for copyright protection, the degree of originality demanded is not very high. Ordinarily it means that the work should not have been a copied one and should be the result of the labour and skill of the person who claims to be the author.  Thus a political tract or a memorandum issued by a local authority can claim copyright even if they do not have any literary merit. Computer programmes are considered as literary works.

 

The person who creates the work is considered the author and the copyright ownership generally rests with the creator, i.e., author of the literary work, composer of the musical work, dramatist of the dramatic work and artist of the artistic work[1]. In the case of a cinematograph film and a sound recording the owner is the producer[2]. There are exceptions to this like when the person created the work as part of his employment, in which case the ownership passes on to the employer[3]. In the case of a government work the first owner is the government, and that of the work of a public undertaking or an international organisation it is that undertaking or the organisation as the case may be[4].  In the case of a painting done or a cinematograph film made or a photograph taken for valuable consideration the ownership goes to the person who has paid the valuable consideration.

 

Copyright is not a single right but a bundle of rights. It, inter alia, includes the rights of reproduction, issuing of copies, communication to the public, adaptation, and translation. These are transferable rights. The owner can transfer the rights through assignments or testamentary dispositions or through inheritance[5].  The assignments can be in respect of one right or more than one right or even all the rights. The owner can also licence a person to do any specific act which is his exclusive right without transferring the right. The Indian Copyright Act also enables an author to relinquish his copyright[6]. Therefore, if an author has relinquished his copyright in a work that work would be out of copyright regime.

 

Apart from the above-mentioned rights, which are referred to as economic rights, the author has certain special rights[7], generally referred to as moral rights. These are the rights over authorship and integrity. Acts prejudicial or detrimental to the personality of the author are considered an infringement of his special rights.  These special rights are inalienable.

 

Like other intellectual property rights, copyrights are also for a limited period. In the cases of literary, dramatic, musical and artistic works published during the life time of the author, the rights last until expiry of sixty years following the death of the author, the count down starting from the calendar year following the death of the author[8]. In other cases it is sixty years from the year of publication.[9] After expiry of the copyright, the works can be freely used.

 

Even when copyright exists in a work there are certain uses which are permitted. These, inter alia, include a fair dealing with a literary, dramatic, musical or artistic work for the purpose of private use, including research, criticism, or review, reporting current events, certain uses by legislature and judiciary and so on. The Copyright Act permits reproduction of the following works:[10]

 

(i)                  Matters published in any Official Gazette except an Act of a Legislature;

(ii)                Any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter;

(iii)               Report of any committee, commission, council, board or other like body appointed by the government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the government;

(iv)              Any judgement or order of a court, Tribunal or other judicial authority, unless the reproduction or publication of such judgement or order is prohibited by the court, the Tribunal or other judicial authority, as the case may be.

 

Libraries are given certain specific rights in this regard. These include the following:

 

(a) The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a public library for the use of the library if such book is not available for sale in India [11].

 

(b) The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access

Provided that where the identity of the author of any such work or, in the case of a work of joint authorship, of any of the authors is known to the library, museum or other institution, as the case may be, the provisions of this clause shall apply only if such reproduction is made at a time more than sixty years from the date of the death of the author or, in the case of a work of joint authorship, from the death of the author whose identity is known or, if the identity of more authors than one is known from the death of such of those authors who dies last.[12]

 

The first provision enables a library to procure rare books not available in the market. The second provision enables a library to make available a rare document to those who need it for study or research.

 

Library Collection

 

A library collection contains different kinds of materials.  From a copyright angle the works in a library can be broadly classified into those in the copyright regime and those outside it. Those outside are classified as in public domain. Works in copyright regime are those in which copyright subsists. These include all original works, cinematograph films and sound recordings published in India or the author of which is an Indian.[13] India also extends copyright protection to works published in countries specified in the International Copyright Order[14] or whose author is a national of any of those countries.

 

If the work is within the copyright regime permission of the owner is required for doing any of those acts, which are the exclusive right of the owner. Otherwise it would be an infringement with attendant penalties,[15] which range from imprisonment for periods between six months and three years with or without fine. The ownership of copyright being a transferable one it is necessary to ascertain who is the current owner of copyright before taking measures to obtain permission.

 

Digitisation and Copyright

 

The rights that come into play in the ordinary course in the digitisation of a work by a library are the rights of reproduction and adaptation. Reproduction includes the storing of a work in any medium by electronic means[16].  Adaptation includes rearrangement or alteration in a work[17]. During digitisation sometimes rearrangements may have to be made in a work which would attract the right of adaptation.

 

Digitisation is the process of converting a work into a binary language that can be read by a computer. Digitisation involves storage in an electronic medium such as the hard disk of a computer or a floppy disk or a CR-ROM. The Copyright Act classifies such storage as reproduction. Hence digitisation involves reproduction, which is an exclusive right of the owner of the copyright in the work if the work is still in the copyright regime. Therefore, it is a legal requirement that permission of the copyright owner is obtained before digitising a work in the library on which copyright subsists.

 

Digitisation, per se, involves certain re-arrangements and alterations because of technical reasons. Many a time it also involves such alterations for other reasons such as formatting, facility for searching and so on. If the work is in copyright regime such things can be done only with the permission of the copyright owner.

 

Exploitation of a Digitised Work

 

Apart from further reproduction or copying the most common exploitation of a work in the digital format are through issuing soft or hard copies of the work. When a library, after digitisation, issues such copies of the work to its members or others, not as lending, the right of issuing copies of the work comes into play. In that case, if done without permission of the copyright owner, it will mean infringement.

 

Uploading a Work on a Website

 

Once digitised, a work is capable of being exploited in numerous ways. Making the work available on a website is one of the common things. Putting the work on a website involves the right of communication to the public.

 

As per the Copyright Act,

 

Communication to the public means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available[18].

 

This right is so comprehensive and overwhelming in the digital environment that it covers all communications on the Internet and Intranet. It is not necessary that the work kept on a website should have been read by another. Keeping the work on a website itself becomes an act of communication to the public. Therefore, necessary permission should be obtained before putting any work on the web by a library, if the work in question is having copyright.

 

New Rights?

 

Once the work is digitised a fresh set of issues arise. Experts differ on whether the new product in a digital format acquires a copyright of its own. Some hold the view that the new format is a new expression and is entitled for copyright protection. In that case the library gets a copyright over the digital format, unless as per the conditions of the permission by the owner, this new right goes to the original owner or to some other specified person. In both the cases the copyright owner of the new product will have to take measures to protect the same.

 

While, protection of material put on website is an important issue, protection of digital copyright is a very difficult proposition, the main reason being the ease with which a digital work can be copied compared to a work in the print format. By the click of a button a whole document can be copied in a matter of seconds of even nano seconds. Therefore, copyright owners use various technological measures to protect their works in the digital format. These include measures such as encryption, watermarking, copy control flags, macro vision and so on. Libraries may have to consider using such technologies to protect their own copyright.

 

Advantages of Digitisation

 

Digitisation of documents has another dimension than uploading onto a website. It is many a time a method for preserving a document from destruction. Many old copies of documents with a library may be very brittle and crumbling. Digitisation is one way of preserving the document for posterity. In such a situation the need for a provision that would enable libraries to digitise their stocks for the purpose of preservation purely for archival purposes as an insurance against loss of the physical paper copy is worth considering. Such a provision, however, cannot be an open one. It will have to be provided with enough safeguards against misuse. Article 9 (2) of the Berne Convention for the Protection of Literary and Artistic Works (1886) provides that countries may allow for exceptions to the author’s exclusive right or reproduction “in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” The World Intellectual Property Organisation (WIPO) Copyright Treaty (WCT) 1996, which deals with copyright issues related to digital technology and Internet extends this limitation to all rights provided by that treaty as well as those in Berne Convention.

 

Digitisation is done not only for preservation or archival purposes but also, rather more, on account of the other advantages and uses of the same. A digitised work can easily be transmitted to members of a library through the Net. Transmission of images and text through the Net is a communication to the public and requires the permission of the copyright owner, if the work is in the copyright regime.

 

Loaning between libraries is a way to reduce costs and making accessible to members of one library the resources of another library. This is very important in the case of a developing country like India where resources are limited and where literacy is still a goal to be achieved. Digitisation really helps in this process. However, since this will affect the returns of the copyright owner a special licensing scheme may have to be devised for the same since obtaining individual permissions is not very practical.

 

Downloading and Libraries

 

Publication scene is undergoing a change in that digital publishing is making its appearance. In such a scenario should there be an enabling legislation that would allow libraries to take hard copies of a work in the digital format and issuing the same to its members is an issue that should engage the attention of library administrators as in such a situation, the rights over issuing copies and communication to the public will come into play.  There are major ramifications for this issue since in days to come e-published documents may not be issued in hard copies and may not be available for purchase even in e-format after some time because of the economics of market. In such a scenario, the question of how libraries can perform their historical functions as archives of published material needs to be addressed in earnest.

 

Also at issue is access control measures adopted by content providers on the Internet. New legislations like the United States Digital Millennium Copyright Act (DMCA) (1998) provides an exemption for non-profit libraries to gain access to a commercially exploited copyrighted work solely to make a good faith determination of whether to acquire such work.[19]

 

Some Special Copyright Issues in Digitisation

 

Libraries really had very little to do with copyright law in the traditional modes. The main functions of a library, such as collection and preservation of books and documents, lending them to its patrons for reading, private study or research were acts permitted by copyright laws in most countries. Some countries such as Germany have a public lending right which comes into play in the libraries lending copies of the volumes with it to the members. In such countries the libraries were required to pay a fee or royalty to the authors for exploiting the public lending right on their works. India does not have any public lending right. Hence there was no such payment or permission required for lending copies of the works to its members or to the general public for the purposes mentioned above. The instance where the libraries were involved with a copyright issue was in allowing photocopying of a book or document. Photocopying involves reproduction and reproduction is the exclusive right of the owner. Therefore, photocopying required the permission of the owner. The United States Copyright Act exempts libraries and their employees from liability for copying made by patrons on unsupervised machines where appropriate notices are posted.[20] The Copyright, Designs and Patents Act (CDPA), 1988 of the United Kingdom (U.K.) provides that a librarian can make one copy of an article in a periodical for a person who requires it for the purposes of research and private study. This is subject to the condition that not more than one copy of the article at the same time, and that not more than one article from the same issue of the periodical is supplied.  The U.K Act also enables librarians, under the same conditions, to copy part of a published edition of a literary, dramatic or musical work and supply to a patron on payment[21]. There are no such specific provisions in the Indian copyright law. Be that as it may, digitisation exposes libraries to many new issues from a copyright angle.

 

Before digitising any work in its collection a library has to satisfy itself that by doing so it is not infringing any copyright in that work or any contractual obligation on the work.  For example, certain stocks received as donations or bequeathments by a library may have conditionalities attached with the donation which stipulate, “use only for research or reference.” Ins such cases digitisation may be a violation of the contractual terms.

 

There is a clear distinction between the ownership of a copy of a work and ownership of the copyright. For example, if the library has acquired an original painting or a manuscript it does not automatically make the library the owner of the copyright in that painting or manuscript. Therefore, before digitising the painting or the manuscript the library needs to obtain the permission of the copyright owner.

 

Ticklish problems may arise if the library decides to digitise the back numbers of newspapers and journals. This is because of the dichotomy of the rights in the contents of the newspapers and journals. The Act says:

 

In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work insofar as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.[22]

 

In the absence of any specific provision in the Copyright Act on this it is a matter of opinion whether a library would be infringing the copyright of a journalist if it digitises his article in a newspaper or periodical, even as part of a project of digitising back numbers of the newspaper or journal with the permission of the proprietor of the periodical.

 

There are also special problems attached to photographs. The Act says,

 

In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.[23]

 

To find out the actual owner of the copyright in a photograph published in an old newspaper or journal taken not by the staff photographer of the periodical is a major problem.

 

Then there are the articles by freelance journalists and others. Ordinarily the copyright in them rests with the author. It is interesting to recall that in New York Times Co. vs. Tasini, the US Supreme Court held in 2001 that the New York Times, in licensing back issues of a newspaper for inclusion in electronic databases such as Nexis, could not license the works of freelance journalists contained in the newspapers. [24]

 

Obtaining copyright permission from the owners for the vast collections in the libraries is a major problem. There is no single source from where the details of all copyright owners can be obtained. This is primarily because copyright protection does not require any formality. In fact the Berne Convention for the Protection of Literary and Artistic Works prohibits formalities such as registration as a pre-condition for copyright.[25] While the Indian copyright law provides the facility of registration of a copyright with the Registrar of Copyrights, such registration is not a pre-requisite for enjoying the copyright in a work.

 

One way this problem can be addressed is through obtaining licence from societies administering copyrights. Chapter VII of the Copyright Act, 1957 provides for such societies.[26] Registration of such societies is done “having regard to the interests of the authors and other owners of copyright, the interest and convenience of the public and in particular of the groups of persons who are most likely to seek licences in respect of relevant rights.[27]” Ordinarily only one society is to be registered to do business in respect of the same class of works.  Therefore, the licence seeker will not have to search for too many societies to get a licence in a particular class of work such as literary works. Lyric writers, music composers and music publishers have such societies. There is also a society for photocopying rights. But there are no societies of literary authors. If there was a society of all literary authors it would have been easy for institutions such as libraries to negotiate and take licence for digitising the works in their collections.

 

Conclusion

 

Libraries cannot keep away from technological progress. Technology has to be harnessed for better servicing by the libraries. But while doing so, the technical problems predominate and the legal issues involved are not given adequate attention. Identification of the issues is the first step towards finding solutions. This paper has been an attempt to bring into focus the major copyright issues involved in the digitisation of library collections.  Keeping in view the great advantages that can be gained from the availing of the new technology, it is necessary to move towards finding solutions to the problems. This would mean that the library community in India needs to play a more active role than hitherto in the area of copyright legislation in the context of digital libraries as they only would be able to guide the policy and law makers in the matter of making balanced provisions in the law that will facilitate libraries performing their basic objectives in the new technological era.  This responsibility of librarians is particularly onerous since libraries in countries like India are often the only entities that provide access to the vast majority of people, including students and researchers, to copyrighted works that may not remain in market.

 

*****

[This Paper was published in the Annals of Library Science, New Delhi, March, 2005.]

* The author is a senior civil servant but the views expressed in this paper are purely personal.

[1] Section 17 of the Copyright Act, 1957

[2] Ibid

[3] Ibid.

[4] Ibid.

[5] Sections 17-20 of the Copyright Act, 1957

[6] Section 21 ibid.

[7] Section 57 ibid.

[8] Section 22of the Copyright Act.

[9] Sections 23-29 ibid.

[10] Section 52 (q) and (r) ibid

[11] Section 52 (o) ibid

[12] Section 52 (p) ibid.

[13] Section 13 (1) ibid.

[14] International Copyright Order, 1999 issued under Section 40 of the Copyright Act, 1957. This Order lists the countries the nationals of which enjoy various rights under the Copyright Act. The countries are those who are members of the Berne Convention for the Protection of Literary and Artistic Works, The Universal Copyright Convention and the Agreement on Trade Related Aspects of Intellectual property Rights besides certain treaties concerned with Related Rights.

[15] Section 51 of the Copyright Act, 1957.

[16] Section 14 (a) ibid.

[17] Section 2 (a) ibid.

[18] Section 2 (ff) of the Copyright Act, 1957.

[19] 17 USC Section 1201 (d).

[20] Section 108 (f) (1) of the Digital Millennium Copyright Act, 1998

[21] See Copyright (Librarian Archivists) (Copying of Copyright Material) Regulations 1989, SI 1989/1212 and sections 37 – 50 of the CDPA 1988.

[22] Proviso (a) of Section 17 of the Copyright Act, 1957.

[23] Proviso (b) ibid.

[24] 533 U.S. 483 (2001)

[25] Article 5 (2) of the Berne Convention.

[26] The provisions regarding copyright societies (Sections 33 – 36) were incorporated in the Act through an amendment in 1994. 

[27] Section 33 (3) of the Copyright Act 1957

Indian Copyright Law and Digital Technologies*

 

-T.C. James

 

Introduction

 

            Copyrights are a set of exclusive rights granted by law to the creators and producers  of forms of creative expressions such as literary, artistic, musical and cinematographic works. These rights bestow on the copyright owner the control over the use of his works like their reproduction and distribution for a limited duration. While the concept of copyright is very ancient, the laws granting these rights are of comparatively recent origin.  Their genesis can be traced to the chaotic market conditions in culture industries created by the advancements in technology following the Industrial Revolution.  There was a felt need to have proper norms to regulate the new business opportunities in the creative arts.[1]  Laws protecting copyright have been introduced as a response to the widespread commercial exploitation of literary works as a result of technological developments in printing methods. It was the invention of printing press in the fifteenth century and consequential publication of literary works in multiple copies that led to the enactment of laws in England first prohibiting importation of foreign books in 1534, then granting search, seizure and destruction powers to the “Stationer’s Company” over unauthorised copies in 1556 and finally during the reign of Queen Anne the Copyright Act of 1710 granting “sole right and liberty of printing books” to authors and their assigns for a period of fourteen years[2]. During the next two hundred years, a number of legislations were enacted in Britain granting different exclusive rights to authors and publishers, as the publishing industry expanded and newer technologies were introduced. Originally designed to cover printed material, the scope of copyright law progressively expanded to cover newer and newer forms of creative expression like photographic and cinematographic works and phonograms, made possible by technologies.

 

In India too modern copyright law emerged consequent to the spread of printing technology. It is true that while the history of printing of books in India goes back to 1557, that of copyright law is only little more than a hundred and fifty years old.  This was because the early printing activities were mostly non-commercial and Christian missionary driven.  But once commercial publishing picked up, need for a copyright law to protect the interests of authors and publishers was felt.  This led to the enactment of the Indian Copyright Act of 1847 on December 15, 1847[3].  This Act made the English law applicable to the areas under the control of the British East India Company.

 

Subsequently, when Britain enacted the Copyright Act, 1911, “the first British legislation to bring the various copyrights within a single text,”[4] it was considered appropriate to have a new legislation for India too.  Thus was promulgated the Indian Copyright Act of 1914[5] which was a slightly modified version of the British Copyright Act, 1911, adapting it to the requirements of India.  This law remained in force till 1958 when the present Indian Copyright Act of 1957[6] had come into force.

 

            The vagaries and compulsions of history dragged India into the legal regime of Great Britain for about a hundred years. This has had certain advantages so far as copyright protection was concerned.  Great Britain had been one of the founder members of the Berne Convention;[7] its laws on copyright had kept abreast of the international treaties and state of technologies in this area.  This naturally ensured that the Indian law was also on par with the same.  Thus at the time of its independence, India had a copyright law which was fully compatible with the international treaties on copyright and the technologies in the cultural industries at that time.

 

It is not only the compulsions of a sovereign state to have a law of its own, which is not merely an appendage or an adaptation of the law of another country, but also the felt need resulting from technological developments such as “new and advanced means of communications like broadcasting, lithography, etc.,”[8] which made enactment of a new legislation in 1957 inevitable.  This focus on the need for copyright law harmonising itself with the state of technology has never shifted.  Whenever need had arisen for suitably arming the law with provisions necessary for tackling new challenges posed by developments in the technological field, necessary amendments had been carried out in the Act.  The influence of new technologies is visible in the amendments made in 1983,[9] 1984[10] and 1994[11].  For example, the 1983 amendment law inserted new sections and definitions in the Act to take care of broadcasting technology, reprographic technologies and so on. In order to tackle the menace of increased piracy of copyrighted works due to the introduction of new techniques of printing, recording and fixation of broadcast programmes, amendments were made in the Act in 1984. The situation created by various technological developments that had taken place in the world in the 1980s and early 1990s was a prime reason for the comprehensive amendments in 1994.

 

            While the contours of copyright law has always been drawn by the developments in the technological world, the emergence of digital technologies towards the concluding decades of the twentieth century as the defining paradigms of new age communication raised a whole new set of challenges to copyright regimes.  The traditional notions of the basic concepts of copyright such as rights of reproduction and distribution have become inadequate and even irrelevant in the digital era.  A host of intangibles have arisen in the world of ‘property incorporeal’.  All works can now be digitalized whether they comprise texts, images, sound or diagrams and once digitalized   the various elements such as images are all ‘equal’ and can be merged, transformed, manipulated or mixed to create an endless variety of new works.  Earlier rights of reproduction and distribution affected tangible physical copies only of a work.  The new technologies brought in non-material reproduction and distribution.  Physical reproductions were replaced by digital reproduction. While initially the intellectual property right community got bewildered at these developments, slowly they learnt the tricks of the new game and found out ways to regulate the rights in the new media.

 

            The concerted effort of the international community to respond to the challenges of digital technologies mostly took place under the aegis of World Intellectual Property Organisation (WIPO). This special agency of the United Nations Organisation responsible for the promotion of the protection of intellectual property throughout the world[12] began in 1989 to examine the revisions needed in the multilateral conventions, specifically in the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) (1886) in the light of the new technologies[13] and concluded two new treaties in a Diplomatic Conference in December, 1996, namely, the WIPO Copyright Treaty (WCT)[14] and the WIPO Performances and Phonograms Treaty (WPPT)[15].  These treaties are popularly known as Internet treaties as they are intended to address the issues of copyright protection on the Internet, the worldwide communication system made possible by advancements in digital technologies. The WCT and WPPT addressed the issues in three ways, namely, (a) by clarifying the existing provisions in the Berne Convention and in the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention) (1961) and in some cases, reaffirming the interpretations already generally adopted, (b) giving new interpretations to the existing provisions widening their scope and (c) adding new provisions on rights and obligations. While the negotiations in WIPO had been going as, the Uruguay Round of Multilateral Trade Negotiations had concluded the Agreement on Trade Related Aspects of intellectual Property Rights (TRIPS) in 1994[16].  This Agreement though covered only two products of the new technology, namely, computer software and databases.

 

The following paragraphs look at the major challenges to copyright generated by advancements in digital technologies in the recent years, the provisions in the TRIPS Agreement and the WCT having a bearing on those issues and the position of the Indian law.

 

            The prominent copyright issues in the digital era can be classified into three groups:

(i)                                         Issues relating to a whole new set of works, namely, computer programmes, databases and multi-media works.

(ii)                                       Issues relating to reproduction, distribution and communication to the public of a work through digital media.

(iii)                                     Issues relating to the management and administration of copyright in the digital environment.

 

 

 

New Works

 

Technology had in the past given birth to new forms of creative expressions in the creative arts, which were subsequently brought under the purview of copyright protection.  Thus, the invention of photography resulted in ‘photographs’, that of analogue technology in the new class of works named ‘phonograms’ and that of ‘cinematography’ in a whole new set of works such as cinematograph films, video films and so on.  The widespread application of digital technologies has also given birth to certain identifiable new works like computer programmes, databases, and multi-media works, which initially raised many doubts about their coverage under copyright laws.

 

 

Computer Programmes

 

            Computer programmes are generally understood as

 

a set of instructions capable, when incorporated in a machine readable medium, of causing a machine having information-processing capabilities to indicate, perform or achieve a particular function, task or result[17].

 

The issue of appropriate intellectual property right regime for protecting computer programmes had exercised the international community for quite long.  Arguments were advanced in favour of and against patent regime and copyright regime and even a sui generis system to protect computer software.  Discussions at the Uruguay Round of Multilateral Trade Negotiations finally put a seal on these debates when the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) incorporated the provision, “computer programmes, whether in source or object code, shall be protected as literary works under the Berne Convention.”[18]  This was subsequently reiterated in WCT when it stated that  “protection applies to computer programmes, whatever may be the mode or form of their expression.”[19]

 

            Even though it was only in the TRIPS Agreement of 1994 that a clear position emerged about protecting computer programmes as literary works under the copyright laws, India’s was one of the early legislations, which had extended copyright protection to computer programmes much before that Agreement. This was in consonance with Berne Convention definition of literary and artistic works as including “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.”[20]   In 1984 an inclusive definition of ‘literary works’ was inserted in the Copyright Act to include computer software.  Subsequently, in 1994 the definition was further clarified to include “computer programmes, tables and compilations including computer databases.”[21]

 

            In Section 2 (ffc) of the Act ‘computer programme’ has been defined as “a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.”  In the case of ‘computer’, the Act gives an inclusive definition, namely, “computer includes any electronic or similar device having information processing capabilities.”[22]  These are technology neutral definitions and thus capable of absorbing future developments in digital technologies.

 

            Although the Act categorized ‘computer programme’ as being part of the class of literary works, in the matters of rights and infringements it made separate provisions for computer programmes.  Thus in Section 14 (b), the Act bestows upon computer programmes all the rights enjoyed by a literary work and in addition, sale and rental rights.  Through an amendment in 1999,[23] the Act provided that commercial rental rights will not apply in respect of those computer programmes where the programme itself is not the essential object of the rental[24].  This is in accordance with the Article 11 of the TRIPS Agreement. Since digital technologies are now being used in a wide spectrum of areas affecting daily life such exception is considered appropriate as, otherwise, one may end up paying for technologies that one had no intention of using in the first place.  Keeping in view the requirements of the software industry and the need for giving an impetus to development of digital technologies in the country, the 1999 amendment to the Copyright Act also permitted decompilation and reverse engineering of a computer programme in certain circumstances[25].

 

            It is also interesting to note that the Act separately defines the author of a computer-generated work “as the person who causes the work to be created.”[26]  This removes any doubts about the legal authorship of a computer programme where a number of persons are engaged, as is the normal case.

 

            The law taking into account the special features of computer programmes as distinct from other literary works, particularly the effect of its use, has made the knowing ‘use’ of an infringing copy of a computer programme an offence under the Act for which mandatory minimum punishments are prescribed[27].

 

           

Databases

 

            Another group of works which were affected in a major way by the development of the digital technologies is databases. In the digital context,

 

‘Database’ means a collection of independent works, data or other materials arranged in a systematic or methodical way and capable of being individually accessed by electronic or other means[28].

 

Manual collection and development of a database were very cumbersome and time-consuming processes.  Digital technologies made development of databases much easier and user friendly than in the past.  Traditionally databases were protected as compilations under literary works.  In a computer database there are two structural parts: the programme which is used to control and manage the data and the data itself.  The programme, no doubt, gets protected as literary work.  Doubts persisted among many about protection for the content part, despite the provisions on compilations in the Berne Convention.  Therefore, the TRIPS Agreement categorically provided that

 

compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such[29].

 

The WCT also reaffirmed this position in Article 5.  The crucial element in the above provision is the insistence on the database qualifying as an ‘intellectual creation’ which is, in fact, the fundamental principle of copyright protection.  The database should be the result of an original intellectual effort and should not have been copied from some other work or database.

 

            The norm of ‘originality’ is not prescribed in any copyright treaty and it generally depended on the case law position that is available in a country. In countries where the courts insisted upon a high level of  ‘originality’ for copyright protection, many databases were wanting in ‘originality’ although much investment had been made in the making of it. This was a major issue in the Feist Publications v. Rural Telephone Service Company case[30] in the USA.  The US Supreme Court, while reaffirming that most, although not all, commercially significant databases satisfy the ‘originality’ requirement for protection under copyright, emphasized that this protection is ‘necessarily thin.’[31]    

 

Computer databases are specifically covered by the definition of literary works in the Indian Act and thus all original computer databases enjoy protection in India.  Since the standard of originality accepted by the courts for entitlement of copyright protection is a low one almost all compilations enjoy copyright protection[32].  Expending of labour and skill in the creation is the only criterion that is applied to judge the eligibility of a work for copyright protection and based on that computer databases enjoy protection in India[33].

 

The problem posed by the Feist judgement in the USA may not be materially relevant in India because of the liberal interpretation of originality adopted by the Indian courts. Be that as it may, as more and more databases get created with massive investments and parallel databases on related topics get generated with lots of common material, questions may arise as to the use which can be made of copyright material to establish and maintain a database and on the originality of newly created and constantly changing databases.  Self perpetuating and automatically upgrading databases on computer networks may also be leaving question marks on the effectiveness of copyright protection in preventing misappropriations of such data.

 

            One problem that confronted the copyright community during the run-up to the Diplomatic Conference, which finalised the WCT, was the protection of non-original databases. Preparation of any database in a digital format involves considerable investment, both in financial and physical resources. But when a database is compiled purely or wholly of non-copyrightable material, the problem of protecting the same arises.[34] 

Multi-media Works

 

            Digital technologies have created works with much more versatility than in the past.  A work may now consist of literary, artistic, musical and dramatic elements and may also include a phonogram and a cinematographic film.  The user can ‘interact’ with the work in a way a past generation could not do.  He can make changes and alterations and even create a new work out of an existing one.  Multi-media works by their basic premises are works combining different elements, such as text, sound, still visuals and moving images, of different classes of works.  The resultant work defies existing classification.[35]  If the rights for all classes of works were the same, then perhaps, this would not have been a major issue.  But the law as it stands In India, distinguishes between different classes of works in the matter of rights.  For example, the rights in a literary work and those in a cinematographic film are different.  There is no rental right in a literary work, whereas there is such a right in cinematographic film[36].  The authorship may raise another problem, as the criterion of authorship is different between literary, dramatic, musical and artistic works on the one hand and cinematographic films and sound recordings on the other hand[37].  There is a view that multi-media works being a digital product be classified as computer programmes.  Since there are separate provisions for rights and authorship of a computer programme as distinct from literary works in the Copyright Act, this could be a possible solution.  However, issues may arise on the retention of separate copyrights in the works incorporated in the multi-media, in terms of section 13 of the Act[38] and the rights of performers[39] in the product.  At present, large number of multi-media works is created by combining pre-existing works.  The problem will get accentuated when more and more multi-media works will be created as new complex ones.  The classification of multi-media works is an issue, which needs to be looked into in depth.

 

Right of Reproduction

 

            Digital technologies have brought in a new form of transmission of copies of a work.  Traditional transmission of a work was material copy based which could be on paper or tape as in the case of a book or a tape or film as in the case of a phonogram or a motion picture.  This has now been replaced by material-less transmission, through computer bytes.

 

            Right of reproduction is the most basic of the copyrights.  It, however, was a problem to define it even in the pre-digital days.  The Berne Convention had specifically included a right of reproduction only as late as 1967.  In the Stockholm Revision of 1967 a new text of Article 9(1) was inserted, which in the words of Stuart, “is both lapidary and embracing both present and future processes.”[40] This article provides “the exclusive right of authorizing the reproduction of these works in any manner or form.”[41] It is this most basic of copyrights which has posed the maximum difficulties in the digital environment also.  The mute question was whether a digital copying is a reproduction or whether the right covers only material reproduction. This question was settled through an Agreed Statement in WCT that reproduction right fully applies in the digital environment, in particular to the use of works in digital form.  The Agreed Statement further clarified that “the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne convention.”[42]

 

            So far there is no problem in recognizing the right of reproduction in digital medium.  The problem arises, however, on the issue of transitory or incidental reproduction that takes place in Internet communication.  When a prospective buyer of a book goes to a bookstore, he can browse through the book before deciding on whether to buy or not the book.  In the case of Internet this browsing can take place only after a digital reproduction of the book in the Random Access Memory (RAM) of the buyer’s computer.  Whether such a reproduction should be covered under the scope of the right of reproduction? S The WCT did not finally resolve the issue and seem to have left it to the practices to emerge to determine the norms.

 

            In the Indian Copyright Act, digital reproductions are already covered in the cases of literary, dramatic and musical works where the expression ‘reproduction’ includes “the storing of it in any medium by electronic means.”[43]  The definitions of cinematograph film[44] and sound recording[45] to a great extent seem to take care of digital copying of those works.  However, the artistic works are not covered as the right of reproduction bestowed upon artistic work is only “in any material form”[46] There is need for law to address this lacuna and also for clarifying the position in regard to cinematograph films and sound recordings to remove any doubts about digital copying of such works being covered by the right to make copies.

 

Rights of Distribution and Communication to the Public

 

            This, again, is an area greatly affected by the digital revolution.  Here, the issues are messier than in the case of right of reproduction.  This is because the two rights really get merged in the digital world, as copies are transmitted not materially.  The Berne Convention had envisaged only traditional models of communication for these rights.  It had not bargained for the online, interactive communication and distribution models.  Therefore, need was felt to protect the interest of copyright owners in the new environment.

 

The WCT looked into these issues and decided to extend right of distribution to ‘fixed ‘copies and a wide scope right of communication to the public as a separate one.  As per the WCT, subject to certain provisions of Berne Convention,

 

authors of literary and artistic works shall enjoy exclusive right of authorising any communication of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access those works from a place and at a time individually chosen by them[47].

 

This provision is wide enough to include within its scope interactive communication as well as all kinds of Internet communication.  When works are stored in a computer memory, as at a website, accessible to the public, at their convenience, that is a communication to the public.

 

The definition of ‘communication to the public’ in the Indian Copyright Act, surprisingly, had already been compatible with the above definition in the WCT.  It reads:

 

 ‘communication to the public’ means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available[48].

 

The main thrust in both the article in WCT and in the definition quoted above is on the fact of making something available for public access, irrespective of time and place of access to the same by the public.

 

Management of Copyright in Digital Environment

 

            Another field where digital technologies have brought in revolutionary changes is that of management and administration of copyright. The new technologies have made the administration and protection of copyright quite difficult.  It has made reproduction, distribution and communication of works easier and within the competence of ordinary individual.  Now copies can be made at an amazing speed with absolute fidelity to the original and transmitted over vast distances and dispersed to millions of people in a few minutes or even seconds.  This has opened up the possibilities of widespread unauthorised copying and distribution of copyrighted works materially affecting the economic interest of the owners.  When such activities can be done from the privacy and safety of one’s home, law becomes an impotent, mute witness.  The problems created by technologies need to be tackled by technologies.  As Charles Clark put it, “the answer to the machine is the machine.”[49]  However, the solutions devised up by technologists need to be protected by law as otherwise those solutions would be modified by counter technologies, with impunity.

 

Technological solutions were found for the problems posed by the new technologies through access control or copy control mechanisms such as encryption technology or water marking incorporated into works distributed over digital networks with a view to protecting them from illegal exploitations.  However, counter-technologies were developed to defeat those protection technologies.  The copyright community, therefore, felt the need for legal mechanisms to protect against the hacking of technological protections applied to copyrighted products in the digital environment.  This resulted in the WCT making it obligatory for member states to

 

provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights[50].

 

As per the Copyright Act knowingly making or possessing any plate for the purpose of making infringing copies of a copyrighted work is a punishable offence.  The definition of ‘plate’ is very wide indeed.  It includes

 

any stereotype or other plate, store, block, mould, matrix transfer, negative duplicating equipment or other device used for or intended to be used for printing or reproducing copies of any work, and any matrix or other appliance by which sound recording for the acoustic presentations of the work are or are intended to be made[51].

 

This definition to a great extent provides protection for the technological measures adopted by a copyright owner.

 

Digital technologies will have to be used widely for administration of copyright in the digital environment.  Licensing and fee collection may have to be automated.  Efficient functioning of an automated system presupposes prompt registration of any request for or transmission of a work along with all data necessary for transfer of agreed payments to the appropriate right owners.  This will be possible only if certain data like information about rights ownership or licence terms, which are necessary for licensing and payment of licence fee, are embedded in the work.  This data is classified as “rights management information” in the WCT.  The Treaty defines rights management information as,

 

information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represents such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public[52].

 

Any kind of removal or alteration of any of the above information as well as distribution or communication to the public of copies of work with such removals or alterations will create havoc with the rights management.

 

Section 52A of the Copyright Act provides for certain information to be displayed on sound recording and cinematographic film.  The information, while definitely part of rights management information, is not adequate for the administration of the rights in the digital environment and further it is limited to two classes of works only.  Also in this case, the onus is on the copyright owner.  Provision needs to be made either in the Copyright Act or some other Act making it an offence to remove or alter any rights management information used in a copyrighted work.

 

Fair Use Provisions

 

The basis principle of copyright like other Intellectual Property Rights is the balance of the interests of the individual creator and that of the society at large.[53]  Therefore, the laws while granting exclusive rights to authors or producers of creative works limit those rights in time.  Even during the period of copyright certain special uses are allowed without any specific permission from the copyright owners such as for private, academic, educational, judicial or legislative purposes.  When new interpretations are made on existing provisions and new provisions are added to existing laws of copyright for protecting the rights of owners of copyright, it is but fair to consider the effect of such extensions on the interest of the society, and, wherever necessary to clarify the permitted acts.  The WCT provides for such limitations and exceptions subject to the three – step test, namely, only in certain special cases, that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interest of the author.  New exceptions and limitations that are appropriate in the digital network environment can also be devised[54]. 

 

            A major challenge posed by digital technologies to a user who is a member of the public is to the right to “informed decision making.” When works are to be bought through the digital network, the purchaser has a right to view, peruse or at least browse through the work before taking a decision on whether to buy the same or not.  Lawmakers may have to devise methods to ensure this.

 

Also at issue is the existing provision of the Indian Copyright Act which permits a fair dealing with a literary, dramatic, musical or artistic work for the purpose of private or academic use. The issue however, is fraught with serious, almost insurmountable, difficulties.  Most of the fair use provisions are dependent on the distinction between private use and public use. Law permits fair dealing for private non-commercial use whereas the public, commercial use can ordinarily be done only with the permission of the right holder. This distinction gets eroded in the digital environment where an individual is able to transmit over the Internet a work to millions of users scattered over the entire globe and who may download the same in the privacy of their homes. 

 

            Adequate provisions will have to be made to ensure that the expansion of rights of copyright owners to the new digital media does not result in an unreasonable curtailment of the public’s right to access and use cultural resources of humanity as otherwise that may adversely affect cultural and technological progress. 

 

 

Conclusion

 

It is evident from the above analysis that while the Indian copyright law is equipped to face a number of new challenges posed by digital technologies, it, in keeping with its own past history, needs to include new provisions also as there are still many issues left un-addressed.  Amendments in the Act to make it compatible with the WCT should be able to take care of most of these issues.  Since digital technologies have brought in a convergence of computers, telecommunication, and the copyright industries, and in the times ahead this convergence will grow stronger and stronger, a day may come when it may also become necessary to have a convergence in the laws regulating the provision of both the content and service in all these areas to ensure that copyright protection will function adequately in the networked digital environment.  It is also necessary to watch out the developments in other countries, particularly on those vexed questions for which universally acceptable solutions have not yet been evolved.  These include the issue of liability of service providers and trans-border infringement liabilities.  

 

 

*****

 



* Published in Invention Intelligence, vol. 36, No. 6, November-December 2001, New Delhi.

[1] This is true of all intellectual property rights.  In a recent book, Ruling the Waves: Cycle of Discovery, Chaos, and Wealth from the Compass to the Internet, Debora L.Spar identifies the stages of a process from innovation to law. First comes the laboratory stage of a new invention, then the commercialisation when pirates follow the pioneer investors, third, a stage of creative anarchy where lack of rules leads to disputes and finally the stage of norm setting or enactment of laws.

[2]See Cornish, W.R., Intellectual Property, 3rd ed., 1996, pp. 297-299.

[3] Act XX of 1847. See Thairani, Kala, How Copyright Works in Practice, Bombay, 1996, p.2.

[4] Cornish, supra, p. 302.  Earlier there were separate Acts governing copyright in engraving, printing, sculpture, dramatic works, lectures, fine arts, music and so on.

[5] Act III of 1914.

[6] Act XIV of 1957.

[7] See Stewart, S.M., International Copyright and Neighbouring Rights, 2nd ed., 1989, p. 100.

[8] Statement of Objects and Reasons of the Copyright Bill introduced in the Rajya Sabha on October 1, 1955.

[9] Act XXIII of 1983.

[10] Act LXV of 1984.

[11] Act XXXVIII of 1994.

[12] See WIPO General Information, WIPO Publication No. 400 (E).

[13] For a brief background of WIPO’s efforts see WIPO document No. CRNR/DC/4.

[14] WIPO Publication No. 226(E).

[15] WIPO Publication No. 227 (E).

[16] WIPO Publication No.223 (E).

[17] WIPO, Model Provisions on the Protection of Computer Software, quoted in Stewart, supra, p 305.

[18] Article 10.1 of TRIPS Agreement.

[19] Article 4 of WCT.

[20] Article 2 of Berne Convention.

[21] Section 2(o) of Copyright Act, 1957, as amended up to December 1999 (hereafter Act).

[22] Section 2(ffb) of Act.

[23] The Copyright (Amendment) Act, 1999.

[24] Proviso to Section 14(b)(ii) of Act.

[25] Section 52(1)(ab) and (ac) of Act.

[26] Section 2(d) (vi) of Act.

[27] Section 63B of Act.

[28] Definition proposed in Draft Article 2 of Basic Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect of Databases to be considered by the Diplomatic Conference, WIPO Document No.CRNR/DC/6.  This treaty has not yet been finalized.

[29] Article 10.2 of TRIPS Agreement.

[30] 499 US 340 (1991)

[31] See Statement of Objects of U.S. Congress Bill (H.R. 3531) for proposed ‘Database Investment and Intellectual Property Antipiracy Act 1996.’

[32] See Macmillan & Co. Ltd. v. K & J Cooper, A.I.R. (1924) P.C. 75; V. Govindan v. E. M. Gopalakrishnan, A. I. R. (1955) Madras 391; Shyam Lal Paharian v. Gasya Prasdad Gupta, A.I.R. (1971) All. 192

[33] See Burlington Home Shopping Pvt. V. Rajnish Chibber and Another, 1995 PTC 278

[34]In the European Union and in the United States of America attempts were made towards protecting such databases where investment of time, money and efforts were made by the maker of the database, irrespective of the innovativeness of the database itself. See European Union directive on the Legal Protection of Databases (No. 96/9/EC) and U.S. Congress Bill H.R. 3531. There was also a move in the WIPO for a treaty on intellectual property in respect of databases where the proposal was to have a sui generis system of protection of non-original databases in which “substantial investment in collection, assembly, verification, organization or presentation of contents of the database” was made. See WIPO Document CRNR/DC/6.

The issue at stake, of course, was not intellectual property but investment.  Still, it was an attempt to find a legal solution within the intellectual property right regime to a problem created by technological developments.  Though the Diplomatic Conference held in December 1996 deferred consideration of the proposal to a later date for want of consensus, with more technological advancements the problem may return to haunt the intellectual property right community.

 

[35] It is illuminating to read the following intervention by Paul Vandorea of European commission in the Second Working Session of WIPO World Forum on the Protection of Intellectual Creations in the Information Society held in Naples on October 18-20, 1995: “Now, to come back to the question of definition of multimedia products and its characterization, I am inclined to say that it is not a new type of work to the extent that a multimedia product can fall under one or several, already existing, categories.  I would like to refer to these different categories.  In the first place, there seems to be the possibility of considering and treating multimedia products as works similar to audiovisual works in the sense of Article 2(1) of the Berne Convention.  It seems possible to classify and to treat multimedia productions as collections of literary or artistic works in the sense of Article 2(5) of the Berne Convention and they might also fall under the category of compilations of data or other material in the sense of Article 10(2) of the TRIPS Agreement.  I think that the actual classification of a particular multimedia product will depend on the type of work and on the different and specific characteristics of each individual multimedia product.  Therefore, we will have to decide on a case-by-case basis.  The interpretation, of course, will then often be in the hands of the courts.  However, having referred to these different categories, what seems to be important is that we are talking about original works.” WIPO Publication No. 751 (E), pp. 58-59.

[36] See Section 14(a) and (d) of Act.

[37] Section 2(d) of Act.

[38] Section 13(4) of Act provides: “The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound recording is made.”

[39] As per Section 38(4) once a performer has consented to the incorporation of his performance in a cinematograph film, his performer’s right in that performance ceases to exist, whereas in the case of other classes of works there is no such provision.

[40] Stewart, supra, p. 121.

[41] Agreed statement concerning Article 1(4) of WCT.

[42] Ibid.

[43] Section 14(a)(i) of Act.

[44] Section 2(f) of Act.

[45] Section 2(xx) of Act.

[46] Section 14(e) of Act.

[47] Article 6 of WCT.

[48] Section 2(ff) of Act.

[49] Clark, Charles, The Publisher in the Digital World, WIPO Document No. WIPO/CR/DEL/96/5, New Delhi, 1996.

[50] Article 11 of WCT.

[51] Section 2(t) of Act.

[52] Article 12(2) of WCT.

[53] See Article 27 of Universal Declaration of Human Rights for understanding the philosophy behind such balancing.

[54] See Article 10 and Agreed Statement concerning Article 10 of WCT.

COPYRIGHT LAW OF INDIA

 

T C James

 

            Copyright is a right given by law to the creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings to do or authorize the doing of certain acts with regard to their creations.  It is a kind of protection against unauthorized use or misuse of a work, but for a limited duration. Generally the rights include the rights of authorship, reproduction, distribution, communication to the public, broadcasting, adaptation and translation.  The exact nomenclature and scope of the rights may vary from country to country and from a class of work to another class of work.  However, international treaties such as the Berne Convention for the protection of Literary and Artistic Works and the Agreement on Trade Related Aspects of Intellectual Property Rights have brought in some kind of harmonization in these rights.

 

            The basic principle on which copyright rests is that creativity in literary, dramatic, musical and artistic fields needs to be rewarded like manual work and people who produce intellectual property should be able to live by their efforts while guaranteeing certain exclusive rights to creators, the copyright laws also ensure that the public’s right to full participation in the cultural life of the community by enjoying the creative efforts of gifted members of humanity is not jeopardized.  This is ensured by two means; firstly, limiting the duration in which a work enjoys copyright protection, and secondly, allowing certain uses without specific authorization by the owner of copyrights, known as fair use provisions in copyright parlance.

 

Nature of Copyright

 

            Copyright is a property right, but the property is an intangible one. It is the right of the author in the creation of his intellect.  This means that in the case of a book of poems, the copyright of the author is not in the physical copy of the book in which the poems have been printed but in the creative expressions which are the poems.

 

            Copyright, being a property right, can be transferred or assigned to another person.  It can also be inherited during the time it exists.  Without transferring or assigning, a copyright owner can license specified uses by others.

 

            Copyrights are national in nature.  This means that your rights are recognized by your national laws and extend to the territorial limits of your country.  However, international treaties like the Berne Convention for the Protection of Literary and Artistic Works (1886) the Universal Copyright Convention (1952) and the Agreement on Trade Related Aspects of Intellectual Property Rights (1994) ensure protection of copyrights of nationals of a member country in all other member countries.  Through the principle of National Treatment it is ensured that foreigners if they are nationals of a member-country, are given the same rights enjoyed by the nationals, except in the matter of term of protection.

 

            Copyright is an intellectual property right and like all other intellectual property rights it is for a limited duration.  This limitation emanates from the basic concept of intellectual property right that while creators of intellectual property have the right to control the reproduction and other uses of their works, they being essential elements in the scientific and cultural progress of humanity, the society has the right to access and share the same so that social and cultural life of humanity gets enriched.

 

            Copyright is a bundle of exclusive rights but is not a monopoly right in that others are not prevented from making a similar work independently.  Since copyright protects only original expressions and not ideas, and the test of originality in copyright is not as rigorous as in the case of other intellectual property rights, independent creations of similar works are quite possible, although the chances of two persons expressing the same thought in identical words or ways are well nigh impossible.  For example, if ten painters paint a river scene, all the ten paintings are likely to be different from each other.  So also if ten poets describe sunrise, all the ten poems are likely to be different from each other.

 

Indian Law

 

In India copyright is governed by the Copyright Act, 1957, as amended last in 1999, the Copyright Rules, 1958 as amended last in 1995 and the International Copyright Order, 1999 as amended in 2000. The Copyright Act provides the basic law so far as copyrights are concerned, the Copyright Rules contain the rules and regulations as well as various procedures and the International Copyright Order extends copyright protection to works of nationals of specified foreign countries.

 

Classes of Works

 

The Copyright Act classifies the works in which copyright subsists in India in to the following three classes:

(a)   literary, dramatic, musical and artistic works

(b)   cinematograph films, and

(c)   sound recordings.

 

The scope of ‘literary work’ includes any “work which is expressed in print or writing, irrespective of the question whether the quality or style is high.”

It also includes computer programs and computer databases. Dramatic work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film. Musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. Artistic work means a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; a work of architecture; and any other work of artistic craftsmanship. The Copyright Act defines cinematograph film as “any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and, includes a sound recording accompanying such visual recording.  The Act also clarifies that cinematograph shall be construes as including any work produced by any process analogous to cinematography including video films. Sound recording (phonogram) is a recording of sounds from which sounds can be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.

 

Major Rights

 

The rights which form the bundle called copyrights can be broadly classified into two categories, viz. economic rights and moral rights.

 

Economic Rights

 

            Economic rights are so called because “they imply as a rule that within the limitations set by the copyright law the owner of the copyright may make all public use of the work conditional on payment of remuneration.” These rights enable the copyright owner to reap economic returns for his work.

 

            The major economic rights available in the Indian copyright Act are the following:

 

(a)               Right of Reproduction

(b)               Right to Issue Copies of a Work

(c)               Rights of Public Performance

(d)               Right of Communication to the Public

(c)        Adaptation Right

(d)       Translation Right

 

 
 
Right of Reproduction

 

            Right of reproduction is the most fundamental of all economic rights The right envisages that copyright owner has the exclusive right to authorize the making of one or more copies of a work or of a substantial part of it in any material form, including sound and visual recording.  The most common kind of reproduction is printing an edition of a book. Storing of a work in any medium by electronic means is also reproduction.  The Copyright Act gives the right of reproduction to all classes of works.

 

Right to Issue Copies of a Work

 

Obviously the right of reproduction is of no economic value if the owner of copyright cannot authorize distribution of copies made with his authorization. The Copyright Act extends this specific right to all literary, dramatic, musical and artistic works.  The right to issue copies of the work however does not extend to copies already in circulation.   This means that once a copy of a work has been sold, the purchaser can dispose of it further without any specific authorization of the copyright owner.

 

Right of Public Performance

 

The Indian Copyright Act provides public performance right to literary, dramatic, and musical works.  The main criterion so far as this right is concerned is that the performance must be in public and not private. Where the borderline between public and private performance lies is to be decided by the courts according to the circumstances but it is generally agreed that a performance before a small invited audience whether in a home or in a hired hall is not a public performance.  The general public must have access to the performance to make it a public one.

 

            The performance can be given ‘by any means or process’.  This means that the performance need not be ‘live’, but can be by means of phonograms or films.

 

Right of Communication to the Public

 

The Copyright Act of India defines communication to the public as “making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.”  An explanation to the definition states that “communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.”

 

Adaptation Right

 

This is covered by Article 12 of the Berne Convention. Effectively the right means the right of the author to authorize any alteration of his work. The Berne Convention has not defined what an alteration but speaks of “adaptations, arrangements and other alterations of the works.”  Our Act specifically provides this right to all literary, dramatic, musical and artistic works, and computer programs. The Act defines adaptation with reference to each category of works as under:

 

“Adaptation” means-

 

(i)         in relation to a dramatic work, the conversion of the work into a non-dramatic work;

 

(ii)        in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise;

 

(iii)       in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action in conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;

 

(iv)       in relation to a musical work, any arrangement or transcription of the work; and

 

(v)        in relation to any work, any use of such work involving its rearrangement or alternation.

 

In a broader sense this also includes the right to make cinematograph film or sound recording in respect of a work although in the Indian Copyright Act this right  is separately provided.

 

 

Translation Right

 

            This right is mentioned in the Article 8 of the Berne Convention.  The Indian Copyright Act recognizes this right for all literary, dramatic and musical works. Translation means the expression of a work in a language other than that of the original version.  In order to do a translation of a work protected by copyright you need the authorization of the copyright owner.  The translation also enjoys copyright without prejudice to the rights of the original author.  Therefore, in order to reproduce  and publish a translation  you need the authorization of the copyright owner in the original work as well as in the translation.

 

 

 

Right of Commercial Rental

 

Another right which is getting wider acceptance and also find mention in the Agreement on Trade Related Aspects of Intellectual Property Rights is that of commercial rental.  This right is mostly extended to computer programs, phonograms and cinematograph films in whose cases advancements in digital and other technologies have made copying easy.  This right is meant to control to some extent unauthorized reproduction. The Copyright Act extends this right to computer programs, cinematograph films and sound recordings.

 

Sale Rights

 

            The Copyright Act also provides that owners of copyright in computer programs, cinematograph films and sound recordings  have the exclusive right to sell or offer for sale any of the work, regardless of whether such copy has been sold on earlier occasion.  However, in the case of computer programs, now the principle of first sale exhaustion applies, after the 1999 amendment.

 

Resale Share Rights

           

In the case of resale for a price not exceeding ten thousand rupees, of the original copy of a painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or musical work, the author of the work, if he was the first owner of such work, or his legal heirs, have a right to share  in the resale price of such original copy or manuscript.  This right is coterminous with copyright.

 

Moral Rights

 

.           Moral Rights are generally provided with a view to assert the authorship on a work and also to uphold the right of integrity.  Moral rights ‘stem from the fact that the work is a reflection of the personality of the creator, just as much as the economic rights reflect the author’s need to keep body and soul together.’ The Indian Copyright Act provides this as special rights of authors to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.

 

            Moral rights are independent of the economic rights and remain with the author even after he has transferred his economic rights.  In the era of digital technologies, moral rights, particularly right of integrity, are very necessary to safeguard against misuse and distortion of an author’s work.

 

 

Term of Copyright

 

            Copyright is for a limited duration.  While the Berne Convention provides for a minimum period of protection which is life term of the author  plus 50 years thereafter, national governments are free to provide a longer term of protection. In Europe and USA, the period of protection for works is life term plus 70 years. In India, original literary, dramatic, musical and artistic works enjoy copyright protection for the lifetime of the author plus 60 years if they are published within the lifetime of the author. The term of protection is 60 years since publication in the case of cinematograph films, sound recordings, photography, posthumous publications, anonymous and pseudonymous publications, and works of government and international organizations.

 

Ownership of Copyright

 

            Generally the first owner of copyright in a work is the creator or author.  There are, however, some exceptions to this general rule such as,

(a)               Literary, dramatic or artistic work made by an author in the course of employment in a newspaper (in which case the proprietor of the newspaper is the owner)

(b)               Photograph, painting, portrait, engraving, and cinematograph film for valuable consideration (in which case the person who paid the valuable consideration)

(c)               Work made in the course of the author’s employment (in which case the employer)

(d)               Public speech on behalf of another persons (in which case the other person)

(e)               Government work (in which case the government), and

(f)                 Work of a public undertaking (in which case the public undertaking).

.

 

Copyright Infringement

 

            Any copying or duplication, adaptation, translation, public performance, communication to the public or broadcast done without the authorization of the copyright owner, or even where any work has been licensed or assigned, any violation of the conditions of the licence or assignment constitutes copyright infringement.  Any import of infringing copies also constitutes copyright infringement.  Even such copies made outside India cannot be imported into India without infringing copyright where such copies, if made in India, would infringe copyright, even if it may not be an infringement in the country of origin.

 

 

 

Permitted Acts

 

            To balance the rights of the owners and the society as a whole, there are exceptions in the law. Subject to certain conditions, fair deal for research, study, criticism, review and news reporting as well as use of works in library and schools and in the legislatures are permitted. There are provisions to avoid harassment of the public; for example, making copies for purely personal and private use (except in the case of computer programs) are now permitted.  Again, playing music at religious ceremonies, including marriage processions and marriage festivities, official functions of central and state governments and local bodies will not be affected by copyright. This is done in keeping with the social and cultural traditions of the country.

 

Registration of Works

 

            The Copyright Act provides for registration of works.  However, the registration under the Act is voluntary and not obligatory.  Registration does not itself confer copyright but the particulars entered in the Register of Copyright maintained in the Copyright Office constitute prima facie evidence of ownership of copyright in copyright cases.  As per the provisions of the Act, copyright subsists in any work as soon as it is created, without any formality like registration being observed.

 

Registrar of Copyrights and Copyright Office

 

The Act also provides for a Registrar of Copyrights and one or more Deputy Registrars of Copyrights and a Copyright Office to provide registration facilities. The Copyright Office of India is a part of the Department of  Secondary Education & Higher Education of the Ministry of Human Resource Development

.

The Registrar of Copyrights performs quasi-judicial functions.  He has the powers of a Civil Court like summoning witnesses, receiving evidence on oath and requisitioning public records. The Registrar of Copyrights is also empowered to order that copies made outside India shall not be imported where such copies, if made in India, would infringe the copyright of the work.

 

 Copyright Board

 

The Copyright Act provides for a quasi-judicial body called the Copyright Board consisting of a Chairman and two or more, but not exceeding fourteen, other members for adjudicating certain kinds of copyright cases. The Chairman of the Board is of the level of a judge of a High Court, the second highest rung of judiciary in the country below the Supreme Court. The Board has the power to:

 

(i)                  hear appeals against the orders of the Registrar of Copyright;

(ii)                hear applications for rectification of entries in the Register of Copyrights;

(iii)               adjudicate upon disputes on assignment of copyright;

(iv)              grant compulsory licences to publish or republish works (in certain circumstances)

(v)                grant compulsory licence to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work

(vi)              hear and decide disputes as to whether a work has been published or about the  date of publication or about the term of copyright of a work in another country;

(vii)             fix rates of royalties in respect of sound recordings of literary, dramatic or musical works under the cover-version provision

(viii)           fix the resale share right in original copies of a painting, a sculpture or a drawing and of original manuscripts of a literary or dramatic or musical work.

 

            Any person aggrieved by any final order of the Board is entitled to appeal within three months to a High Court within whose jurisdiction an appellant actually and voluntarily resides or carries on business.  Orders of the Board for payment of money are deemed to be decrees of Civil Court and are to be executed in like manner.

 

Administration of Copyright

 

            Since copyright is a proprietary right, the owner has to administer his own rights. The Copyright Act now provides for collective administration of rights through registered copyright societies. These societies have to be formed voluntarily by the copyright owners. Only the owner of copyright or the society who have the rights can institute civil and criminal proceedings against infringement of his works.

 

Civil remedies include injunction, and damages. Copyright infringement is a cognizable offence. Copyright infringement is punishable with imprisonment for a term ranging from six months to three years and with a fine ranging from Rs. 50,000 to Rs. Two lakh.  So far as computer programs are concerned there is an added provision which says that any person who knowingly makes use on a computer of an infringing copy of a computer program shall be punishable with imprisonment for a terms which shall not be less that seven days but which may extend to three years with a fine which shall not be less that fifty thousand rupees but which may extend to two lakh rupees. In India we have no separate courts for trying copyright infringement cases. Such cases are heard in the regular courts. 

 

.           Copyright law is on par with other laws of the country and are enforced through police and ordinary courts. District Courts have been given jurisdiction to try the suits relating to copyright violation within the vicinity of which the owner of the copyright resides or carries on business.  Owners can initiate civil and criminal procedures against infringers.

 

Foreign Works

 

            India is part of the international copyright regime through its membership of  Berne Convention for the Protection of Literary and Artistic Works, Convention Establishing the World Intellectual Property Organization (WIPO), Universal Copyright Convention, Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties and Additional Protocol, and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

 

            The Copyright Act gives the government powers to extend copyright to foreign works. The government has done this through a separate order, namely, the International Copyright Order. This order extends protection to the works of those countries who are members of the international conventions of which India is a member.  In extending the application of the provisions of the Act to foreign works as if they are Indian works, the principle of national treatment has been adopted except in the matter of term of protection. This is in accordance with the principles laid down in the Berne Convention.

 

***

COPYRIGHT ISSUES IN E-PUBLISHING

 

T.C. James

 

Abstract

 

Copyright law emerged and developed as a response to technological challenges to publisher’s control over his publications. The advent of e-publishing made possible by digital technologies is no exception.  An examination of various sections of the Indian Copyright Act makes it clear that e-publishing gets protected under the Act.  There, however, are a number of new issues between the author and the publisher and between the publisher and the end user.  There have been efforts by the international community to address these issues and these efforts have lead to the finalization of the World Intellectual Property Organisation (WIPO) Copyright Treaty and the WIPO Phonograms and Performances Treaty in 1996. These treaties obligate national governments to provide legal protection for the technological measures of protection used by copyright owners on their digitised works and also the rights management information put on them.  These provisions are required to be acted upon by the government in the interest of e-publishing.  Further, the industry and the government should come together to find solutions to the various unresolved copyright issues involved in e-publishing in the interest of the development of the book publishing industry in India.

 

 

Law is a legal response to a challenge; the challenge can be social, economic or technological.  Copyright law is no exception to this general rule.   The history of copyright law illustrates this. Laws granting copyright emerged as a response to technological challenges.  It is the invention of printing with movable metal type faces in the fifteenth century that lead to the emergence of publishing as an independent and sustainable economic activity.  The technology, which mothered the publishing industry, also raised the first major challenges to the profession. In olden times, books were hand-written on papyrus rolls in ancient Egypt, Greece and Rome, and on palm leaves in ancient India. With Industrial Revolution paper became the medium of literary works, but still it was as manuscripts they remained.  Gutenberg’s invention of printing press in 1455 led to the emergence of the printing and publishing industry.  While earlier, making out a copy of a book was a long and arduous work of many days and weeks, and the quantum of work and time required for the first copy and the hundredth copy were equal, and there was no economy of scale, the new technology considerably reduced the labour required in making copies of the work.  Once the plate is ready one can make any number of copies from the same and more copies meant reduced cost of production because of economy of scale. This newfound convenience as a result of the technological innovation tempted enterprising people to bring out copies of popular works that had already been published by another.  This resulted in a major economic challenge to the original publisher who had invested his capital and labour in bringing out the first edition in untested waters. In order to safeguard the interests of those who had put in their time and money in printing an edition of a book, the earliest copyright laws were enacted.  Thus a technological challenge, throwing up certain economic challenges lead to the legal response of the government in the form of copyright law.

 

Over the years the copyright law underwent a number of changes, not a small number of which were responses to technological advancements.  The law made changes in itself to adapt it to face the challenges posed by photography, sound recording and cinematographic technologies in the early part of last century and to technologies that facilitated home copying of sound and video records in the latter half of that century.  In response to social and economic development, the period of copyright protection also steadily got extended from the original seven years in the earliest copyright laws in England to the present life term plus seventy years in U.K. and life plus sixty years in India.

 

The technological development that has caused the greatest challenge to publishing industry since the invention of the printing press by Gutenberg is the emergence of the digital technologies in the second half of last century.  Apart from the possibilities that this new technology has opened up for individuals in copying and manipulation of works, it has spawned a new kind of publishing, that is, electronic publishing (e-publishing, for short) and a new kind of work, that is, multi-media-work.  Both these have raised a multitude of challenges to the copyright regimes in India and in other countries.

 

The first issue is whether electronic publishing qualifies as publishing.  As per the Indian Copyright Act, “ ‘publication’ means making a work available to the public by issue of copies or by communicating the work to the public” (Sec.3).  There are two ways of publishing as per this definition.  The first one is that of issuing copies, and the second one that of communication to the public other than by issuing copies.  E-publishing is making available to the public ‘copies of work’ through a network of computers or the Internet.  Here, the time-honoured concept of ‘copy of a work’ comes under challenge.  Ordinarily, ‘copy’ refers to a tangible material copy. In the case of a literary work in book form this is usually a copy on paper, which is bound.  When the statement, “a publisher has published 1000 copies of a book” is made it means that he has brought out 1000 material copies that people can touch, count, stack, or destroy.  In the case of e-publishing we do not see the 1000 copies stocked in one place.  We cannot touch or count them.  Even their dispatch is quite different from the usual distribution through transportation.  In e-publishing copies are distributed through signals of the binary digits zero and one.  Any number of copies can be distributed to any number of computers simultaneously and instantly.  The issue is whether this amounts to issuing copies?  To arrive at an answer one first has to find out what is a ‘copy.’  The Copyright Act does not define ‘copy.’  Dictionary meaning of ‘copy’ is a thing made to be similar or identical to another. (The New Oxford Dictionary of English, 1998) Therefore, a copy of a literary work is an identical reproduction of an original literary work.  In fact, the etymological meaning of ‘copia’, the Latin root word, is ‘transcribed.’ One has to make a conjoint reading of Section 3 and Section 14(a)(i) of the Copyright Act to get the real purport of ‘copy’ in the context of copy.  Section 14(a) defines ‘copyright’ in the case of a literary work as the exclusive right, inter alia, “to reproduce the work in any material form.”  The sub-section further clarifies that ‘reproduction’ includes  “storing” of a work in any medium by electronic means.”  Since e-publishing is issuing of copies of a work using electronic means and it involves storing of the work in a digital format, it is covered by the definition of ‘publishing’ in Section 3 of the Copyright Act.  Therefore, e-publishing gets protected under Copyright Act.

 

Section 3 of the Copyright Act further provides that communicating a work to the public is also ‘publishing.’  The Act defines the term as

 

making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display diffusion other than by issuing copies of such work regardless of whether any member of public actually sees, hears or otherwise enjoys the work so made available. [Sec 2(ff)]

 

The language of this definition is such that keeping any work in a digital format in a computer that is part of a network becomes ‘publication’.  Thus storing of works in web sites is ‘publication’ as per the Copyright Act and, therefore, e-publishing comes under the purview of the Act.

 

Internationally the major issue that e-publishers were facing was that of coverage of e-publication by the definitions of rights of reproduction and distribution. Strange as it may seem, in India the Copyright Act covers e-publication because electronic reproduction and distribution are within the scope of those rights in the Indian Copyright Act.

 

With regard to the right of distribution there is, however, the issue of ‘first sale exhaustion’.  Section 14(a)(ii) of the Act while reserving with the copyright owner, the right to issue copies of the work to the public, excludes ‘copies already in circulation’ from the purview of that right.  So far as ‘physical’ copies of a work are concerned, this does not cause a problem and is a perfectly understandable exception.  However, how this exception clause works in the case of a digital copy is a moot point.  If a person having purchased a work in digital format makes another copy for personal use and then sells the copy to another, will he not be infringing on the right of the owner? More importantly, how does a publisher or copyright owner monitor movement of a second-hand copy in the e-world?

 

The criterion of ‘originality’, the basic concept of copyright, raises certain questions in e-publishing.  This has many connotations. For example, if a publisher converts a work in the public domain to a digital format from the print format, how his investment and effort are protected? Since the work is outside copyright regime, any person can freely reproduce or distribute that work.  Therefore, if a person gets access to the digital version and makes a number of copies of the same then will he be infringing any right under the Indian Act?  If the digital copy is considered not as a ‘new’ work entitled for copyright protection, then, the original digital publisher is at a great disadvantage as his investment goes down the drain, since in the absence of protection any and all can copy his work.  How to protect his initiative and investment is a point to be probed.

 

A major issue in e-publishing is that of multi-media products.  Because of its versatility, e-publication does not limit itself to mere re-production in digital format of a literary work.  They tend to become multi-media works.  This raises some difficult questions for publishers, especially,

 

(a)               What is the ‘work’ to be protected?

(b)               Who is the author of such a ‘work’ and the owner of the rights?

 

Is the multi-media product a literary work or a cinematographic work or a sound recording? Under which ‘class’ would it go if it were a sum of many components, which form separate ‘classes’ of works under the Act?  This also poses further problems. Protection of a multimedia product as the sum of its many component parts only makes the management of rights in the multi-media product a highly complex issue because of variegated nature of rights in different works.  The application and enforcement procedures of rights such as communication to the public and rental rights differ from one class of work to another.  Therefore, there may be a need to introduce a separate class in the classification of copyrighted works as ‘multi-media works’ whose rights may differ from those of the other classes.

 

E-publishing by its very nature spans across countries and continents.  This raises a number of questions with regard to the laws applicable and territorial licences.  If a book written by an Indian author, published by a British firm, issued through a Website located in Hong Kong and made available on the Internet to a person in the USA, which country’s law would be applicable?  Can owners issue territorial licences in such publications? If so, how those territorial licences can be respected and enforced.  These are issues, which do not elicit ready answers.

 

While e-publishing generates immense possibilities, it also creates gigantic problems from the copyright angle.  These can be broadly classified into two categories: -

 

(a)               Coverage of digital works under copyright laws.

(b)               Enforcement of the copyrights.

 

So far as the first category is concerned, the Indian copyright law makes it abundantly clear that e-works/publications are covered by the copyright law.  The law has met with the technological challenges to that extent.  The grey areas are those of enforcement of the rights in the cyber space.  In this area the issues are primarily of two categories, so far as e-publishing is concerned: -

 

(a)               Contractual issues relating to assignment or licensing.

(b)               Technological and management issues.

 

The first category can be divided into the following two groups: -

 

(a)               Issues between author/owner of rights and publisher.

(b)               Issues between publisher and user.

 

The basic issue that will arise between the author and the publisher is about the scope of the licence agreement or assignment already given for publishing the book in the paper medium.  This is especially so in the case of assignments and licences when e-publishing was not conceived as a possibility.  Where the medium is not indicated it will be a matter of dispute as to whether e-publishing is covered under the agreement or licence.  If the entire rights are assigned to the publisher then again the question may arise as to whether the right of reproduction in e-format is a new right or a new use not covered by the right at the time of assignment.  It will also raise a very fundamental question as to whether a new right will go back to the original author/owner or to the owner of the other copyrights at the time of emergence of the new right as a consequence of a use not conceived or anticipated at the time of the transfer of the rights.  Even assuming that original contract covers e-publishing by interpretation, it may still lead to a number of problems between the author and the publisher such as, whether the existing licence or assignment permits alterations and changes necessary for a digital transmission. The territoriality of the e-publication may cause a serious problem.  Most publishing contracts are for specific countries or geographical regions.  How can this clause be effectively enforced in the borderless cyber world?  Another set of problems that may arise relate to the moral rights of the author.  Since the problems of manipulation were not serious in the context of paper medium, the pre-existing contracts are more likely to be silent on measures for protecting the moral rights.  How the liability of the publisher will be decided in this case? Will it be his responsibility to make the text unalterable?  There are also still unanswered questions such as, how the resale rights will be regulated, and if the licence is time-bound, what safeguards can be offered against reproduction and distribution of a legally obtained copy in a computer, after expiry of the period, and so on.

 

There are a whole host of issues between the publisher and the user that the author also has to take note of at the time of assignment or licensing.  These primarily relate to access and fair use rights. For example, in a bookstall one can browse through the pages to decide whether to buy the book or not. This is a consumer right. How this preview right can be ensured in the cyber world? Similarly, can one person lend the soft copy to a friend, through e-mail, for non-commercial personal use? . Copyright law allows fair use of copyrighted works in classrooms. Can a teacher teaching through the distance education mode send copy of the complete text of a book that he is teaching, but which is within the copyright regime, to each of his students for carrying out an assignment on review of the text? Also can the owner impose printing regulations for taking a hard copy on a person who has paid for the digital copy? Can the font size and style be altered to suit the user’s convenience? Can one side printing be taken to facilitate recording of notes on the other side? Or can double column printing with one column for notes alone be allowed?

 

The law may have to make detailed provisions to cover such issues.  Perhaps, instead of depending solely on the copyright law authors and publishers may turn more and more to contract law and there may be more and more written and detailed contracts and licences to avoid litigation later on the grey areas.  May be ultimately “the answer to the machine is the machine,” as Charles Clark once said.

 

            In e-publication the two most important aspects so far as enforcement issues are concerned are that of protection of technological measures that the author or publisher may use in the work against unauthorized uses and protection against alterations of the copyright management information.  The international copyright community after many years of discussions came out with the following formulations as these two aspects in the Internet treaties, viz., the World Intellectual Property Organizations (WIPO) Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), of 1996.

 

Article 11of WCT reads:

 

Contracting parties shall provide adequate legal protection and effective     legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercised of their right in respect of their works, which are not authorized by the authors concerned or permitted by law.

 

            On protection of rights management information, the WCT, Article 12 makes the following obligation on contracting parties:

 

…provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:

(i)         to remove or alter any electronic rights management information without authority;

(ii)        to distribute, import for distributions, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

 

Two more aspects of this issue are relevant.  The first one is the definition of ‘rights management information’.  It means

 

information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

           

The second aspect is that countries are not to rely on the article 12 to devise or implement rights management systems that would have the effect of imposing formalities which are not permitted under the Berne Convention, prohibiting the free movement of goods or impeding the enjoyment of rights.

           

While the international copyright community has arrived at these formulations to safeguard the interests of copyright owners in e-publications, national governments have to place in position appropriate legislation.  That will be the legal response to the technological challenges to copyright posed by e-publication.  While enacting such legislations, national governments should take adequate care to protect the interests of the public.  Otherwise, the rights may remain protected, but may not be contributing to further creative efforts either in the literary and artistic fields or in the technological field.  A recession in creative world is neither in the interest of publishers nor of the community.  With India having one of the large publishing industries in the world, appropriate responses to the above mentioned and other related problems in e-publishing need to come from both the industry and the government early to prevent avoidable litigation and spilling of bad blood between the authors and publishers.

 

 

 

 

 

REFERENCES

 

1. Cornish, W.R., Intellectual Property (3rd ed.) (Indian Reprint), Chapter 9, Universal Law Publishing Company Limited, New Delhi, 2001.

 

2. Mathews, Brenden, The Evolution of Copyright in Political Science Quarterly, vol. 5, Issue 4, December 1890.

 

3. Government of India, The Copyright Act, 1957 (Act 14 of 1957), New Delhi

 

4. World Intellectual Property Organisation (WIPO), Berne Convention for the Protection of Literary and Artistic Works, WIPO Publication No. 287,Geneva, 1996

5. WIPO, WIPO Copyright Treaty (WCT) 1996, WIPO Publication No. 226 Geneva, 1997

 

6. Weiner, Robert S., Copyright in a Digital Age in ONLINE, May 1997, pp. 97-102.

 

7. Strong, William S., Copyright in the New World of Electronic Publishing, presented at the Workshop Electronic Publishing Issues II at the Association of American University Presses Annual Meeting, June 17, 1994, Washington D.C.

 

8. Radcliffe, Mark, New Media Convergence: Acquiring Rights to Existing Works for the Internet under US Law in European Intellectual Property Review 2001 Issue 4 pp.172-178, Sweet and Maxwell Ltd.

 

9. Heide, Thomas, Copyright in the E.U. and U.S.: What “Access Right”? in European Intellectual Property Review 2001 Issue 10 pp. 469-477, Sweet and Maxwell Ltd.

 

***

 

Originally published in Journal of Intellectual Property Rights, New Delhi

 

 

Protection of Expressions of Folklore

 

 

T C James

 

Protection of Intellectual Property Rights (IPRs) is a modern Western concept.  There have, of course, been stories in ancient literature, both Eastern and Western, about protecting one’s knowledge or creative effort.  For example, the story of Eklavya in The Mahabharat can be interpreted as one of protecting one’s patent rights and insistence upon punishment for infringement of the same.  But the IPRs have emerged as specific justiciable rights only in the last few centuries only.  The Western origin of these rights has told upon their characteristics.  They have born as private property rights of an individual or a legal person such as a firm in the case of a trademark. Each right in a particular product or work leads back to a definite source of origin, mostly in an individual.  Consequently most of the traditional knowledge in which the East abounds has fallen outside the realm of these rights.  As Atencio Lopez, President of the Napguana Association, Panama observed, it “has been steadily marginalized simply because it has to do with the collective rights of a people and because it does not have known author or creator.” One such causality is folklore, again a rich field for the Orientals.

 

The absence of intellectual property protection for folklore did not exercise people’s mind when there was no or very little commercial exploitation of this cultural heritage.  Developments of technology and search for variety as well as conglomerisation of cultural industries have lead to increased commercial exploitation of folklore.  Technological developments resulted in commercialisation of music and other folklore without due respect for the cultural and economic interests of the communities.  The depository communities felt a need for protecting their inheritance from uncontrolled exploitation by outsiders since expressions of folklore represent an important part of the living cultural heritage of nations.  Improper exploitation of the cultural heritage of a nation could not be viewed with approval by any nation. The distortions and mutilations of sacred folklore by outsiders who did not understand the religious significance of some of this folklore added to the disenchantment of the people.  This hurt the religious and ritualistic sentiments of the people. Profiteering by individuals and companies unconnected with the preservation and development of folklore became a sore point and the preservers resented the denial of a fair share in the profits.  This has lead to international efforts for finding ways and means to protect folklore from uncontrolled exploitation for commercial purposes. 

 

International Efforts for Protecting Expressions of Folklore

 

The first major international effort in the direction of protecting folklore was made at the 1967 Stockholm Diplomatic Conference for Revision of the Berne Convention for the Protection of Literary and Artistic Works.  This Conference introduced the following as Article 15(4) in the Berne Convention:

 

4) (a)      In the case of unpublished works where the identity of the author is unknown, (emphasis added) but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.”

 

(b)          Countries of the Union which make such designation under the terms of this provision shall notify the Director General [of WIPO] by means of a written declaration giving full information concerning the authority thus designated.  The Director General shall at once communicate this declaration to all other countries of the Union.

 

Though not that specific as folklore protection advocates would have liked it to be, the above provision implies the possibility of granting protection for expressions of folklore.  However, the fond hope of the folklore community remained a dream only as no member country of World Intellectual Property Organisation deposited with the Director-General and notification concerning designation of a national authority as envisaged.[1]

 

Later, in 1976, the Tunis Model Law on Copyright for Developing Countries was adopted by the Committee of Governmental Experts convened by the Tunisian Government in Tunis from February 23 to March 2, 1976, with the assistance of World Intellectual Property Organisation (WIPO) and UNESCO. The Tunis Model Law provides specific protection for works of national folklore.  Such works need not be fixed in material form in order to receive protection, and their protection is without limitation in time.

 

            The African countries were quite vociferous in the matter of protection of folklore and also took the lead in the matter when the 1977 Bangui Text of the convention Concerning the African Intellectual Property Organisation declared folklore as part of the cultural heritage of a nation.[2]

 

In 1982, the WIPO and UNESCO jointly convened a Committee of Governmental Experts on the Intellectual Property Aspects of the Protection of Expressions of Folklore. It was agreed by this Committee that adequate legal protection of folklore was desirable and to facilitate national legislations for the same it adopted a set of Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions.

 

Several countries have since used the Model Provisions as a basis for national legal regimes for the protection of folklore.  The following developing countries have legislations to regulate the use of folklore creations and to give protection within the framework of copyright laws: Tunisia, Bolivia, Chile, Iran, Morocco, Algeria, Senegal, Kenya, Mali, Burundi, Cote d’ Ivoire, Sri Lanka, Guinea, Barbados, Cameroon, Colombia, Congo, Madagascar, Rwanda, Benin, Burkina Faso, Central African Republic, Ghana, Dominican Republic, Zaire, Indonesia, Nigeria, Lesotho, Malawi, Angola, Togo, Niger, and Panama.[3]  Many of these countries have enacted provisions for the protection of folklore within the framework of their copyright laws.

 

The impact of the Model Provisions on the legislative frameworks of countries has not been extensive as the developed countries did not pay much attention to the same in their national legislations.  Several reasons have been advanced for this, such as the limited scope of protected expressions, the nature and scope of rights grants, absence of exclusive ownership-type rights over folklore in the Model Provisions and the fast pace of technological and economic developments making the provisions obsolete.[4]

 

The adoption of the WIPO Performances and Phonograms Treaty (the WPPT), 1996 was the next stage in the matter of international protection for folklore. , This Treaty provides that the definition of “performer” for purposes of the Treaty includes the performer of an expression of folklore.[5]  This removed a major lacuna in the International Convention for the Protection of Performers, the Producers of Phonograms and Broadcasting Organizations, 1961 (the “Rome Convention”).  Under Article 3(a) of the Rome Convention, “‘performers’ means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works.” Since folk performers were often not performing any work they were not covered by the definition of ‘performer’ and thus denied the rights of performers.

 

It is true that the WPPT or its sister treaty, the WIPO Copyright Treaty (WCT), did not really envisage intellectual property protection for expressions of folklore, per se . However, the Diplomatic Conference that adopted the WPPT recommended that “provision should be made for the organization of an international forum in order to explore issues concerning the preservation and protection of expressions of folklore, intellectual property aspects of folklore, and the harmonization of the different regional interests.”[6]

 

Pursuant to the above recommendation the UNESCO-WIPO World Forum on the Protection of Folklore was held in Phuket, Thailand, in April 1997. That meeting adopted a “Plan of Action” [7] which recognized the need for a new international standard for the legal protection of folklore; and the importance of striking a balance between the community owning the folklore and the users of expressions of folklore.

 

WIPO and UNESCO are still working towards establishment of international consensus on an acceptable regime of protection for expressions of folklore.  There are, however, a number of issues to be resolved before any international convention could be agreed upon.

 

Definitional and Other Issues

 

In every move towards protecting expressions of folklore the primary issue is the definition of the term.  The term ‘folklore’ was first coined by William Thomas in 1846 to refer to the lore of the people, i.e., customs, manners observations, superstitions, ballads, proverbs and so on[8].  How hard the issue can be seen from the fact that there are 21 definitions in the Standard Dictionary of Folklore ed. by Maria Leach[9].  As Betty Mould-Iddrisu observed in the Phuket Conference, “currently the term folklore and the materials relevant to it range in scope from tradition-oriented items associated with old folks and old ways of life, to modern day artistic interaction and expressions of various types, such as jokes told at factories and other workplaces, student pranks and initiation rites, extending even to the expressive culture of drug addicts, and several other modern day phenomena.”[10]  Perhaps, still the best definition is the one given in the WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1982).  According to this,

 

‘Expressions of folklore’ means production consisting of characteristic “elements of the traditional artistic heritage developed and maintained by a community of (name of the country) or by individuals reflecting the traditional artistic expectations of such a community, in particular:

verbal expressions, such as folktales, folk poetry and riddles;

musical expressions, such as folk songs and instrumental music;

expressions by action, such as folk dances, plays and artistic forms or rituals

whether or not reduced to a material form; and

tangible expressions, such as:

productions of folk art, in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes:

musical instruments;

architectural forms.

 

            There are many other issues owing to the prevailing concept of intellectual property rights.  For example, the issue of authorship is a major one.  Presently intellectual property rights are structured in such a way as to give private ownership rights to an author.  In the case of community properties such as folklore a single author cannot be identified.  So also a definite time of creation cannot be indicated in the case of folklore.  An argument often advanced against giving intellectual property protection for expressions of folklore is that it will be privatising a public property.  The comparison many draw is that of the Commons issue of England.  But the folklore protection protagonists argue that the demand is not for exclusive rights as in the case of patent or trademark but for regulated use so as to ensure that nobody, whether individual or company, misappropriates an existing public property preventing the natural development of the cultural heritage and also to protect the sacredness associated with many folklore which is not a mere commercial product.  At the same time, they want to ensure that fair returns flow to the communities who had been preserving, nurturing and developing the folklore over the centuries from its commercial exploitation.

 

Indian Law

 

India does not have any specific law granting intellectual property protection for expressions of folklore.  However, there are Constitutional Provisions which generally protect certain features of folklore and provide for preservation of the culture protecting such folklore.  For example, Article 29 of the Constitution provides: “Any section of the citizens residing in the territory of Indian or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.” Article 51 A (f) makes it the fundamental duty of every citizen of India “to value and preserve the rich cultural heritage of our composite culture.” There are special provisions under Article 371 for tribal autonomy which facilitates preservation and protection of its culture including the folklore.

 

            The Copyright Act, 1957[11] is the one where one can see any recognition of folklore as an intellectual property.  Here too, as in many other national laws on copyright and neighbouring rights, protection of folklore comes in the form of protection of a performance.  Section 38 of the Copyright Act provides for performer’s right.  The Section reads as under:

 

(1)      Where any performer appears or engages in any performance, he shall have a special right to be known as the “performer’s right” in relation to such performance.

(2)      The performer’s right shall subsist until fifty years from the beginning of the calendar year next following the year in which the performance is made.

(3)      During the continuance of a performer’s right in relation to any performance, any person who, without the consent of the performer, does any of the following acts in respect of the performance of any substantial part thereof, namely,--

(a)   makes a sound recording or visual recording of the performance; or

(b)   reproduces a sound recording or visual recording of the performance …

(c)   broadcasts the performance ...

(d)   Or communicates the performance to the public otherwise than by broadcast …

shall, … be deemed to have infringed the performer’s right.

 

(4)      Once a performer has consented to the incorporation of his performance in a cinematograph film the provisions of sub-sections (1), (2) and (3) shall have no further application to such performance.

 

Although the Rome Convention definition of performer restricted itself to the performer of a work, the definition of ‘performer’ under the Indian Act does not have such a restrictive clause.  It reads: “Performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance[12].  The definition of performance is also an open one: “performance” in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.[13]

 

Thus, to some extent a performer of an expression of folklore can prevent recording or broadcasting of his or her live performance.  However, this alone is not sufficient for protecting the expressions of folklore from uncontrolled commercial exploitation.  Being a country rich in folklore susceptible to commercial misuse, India should take appropriate measures against misuse of the folklore and for ensuring fair returns to the communities.

 

Published in NIPPO Souvenir 2004 New Delhi

 

*****



[1] See Kutty, P. V., A Study on the Protection of Expressions of Folklore, World Intellectual Property Organization (WIPO), Geneva, 2002, p. 4.

 

[2] The Bangui Agreement is the law governing industrial property rights in each of the member states of the African Intellectual Property Organization (OAPI). Established on 13 November 1962 in Libreville, this Organization has now sixteen member States: Benin, Burkina Faso, Cameroon, Central Africa, Congo, Côte d’Ivoire, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Mauritania, Niger, Senegal, Chad, and Togo, and a population of more than 100 million inhabitants. Its headquarter is in Yaounde, Cameroon.

[3] See Ficsor, Mahaly, Attempts to Provide International Protectionfor Folklore by Intellectual PropertyRights in UNESCO-WIPO Forum on the Protection of Folklore, Phuket, Thailand, Unesco Publication No. CLT/CIC/98/1, p.215

[4] See documents WIPO-UNESCO/FOLK/AFR/99/1, WIPO-UNESCO/FOLK/ASIA/99/1, WIPO-UNESCO/FOLK/ARAB /99/1 and WIPO-UNESCO/FOLK/LAC /99/1.  See also Kutty, P. V., op.cit, pp. 42-43

[5] For the purpose of WPPT performers who are accorded protection include “‘performers’ who are actors, singers, musicians, dancers, and other persons who act, sing, deliver, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.”

[6] See BCP/CE/VI/16-INR/CE/V/14, par. 269.

[7] See WIPO Publication Number 758 (E/F/S).

[8] See Islam, Mazharul, Folklore: The Pulse of the People, New Delhi, p.2

[9] See Islam, Mazharul, op cit., p.3

[10] See UNESCO-WIPO Forum on the Protection of Folklore, Phuket, Thailand, Unesco Publication No. CLT/CIC/98/1, p.17

[11] Government of India, Act 14 of 1957

[12] Section 2 (qq) of the Copyright Act op.cit.

[13] Section 2 (q) of the Copyright Act, op.cit.

Intellectual Property Rights and Rural Development

 

T.C.James[1]

 

 

Introduction

 

The advent of globalisation and digital technologies has changed the engine of economic development from manual and mechanical force to intellectual prowess.  This has significantly increased the importance of intellectual property rights (IPRs) in the developmental process.  However, the general perception is that IPRs play a significant role only in the case of globalised industrial economy and has no worthwhile place in the area of rural development.  This paper attempts to look at the place of IPRs in rural development in the Indian context.

 

Intellectual Property Rights

 

Intellectual property is intangible unlike movable property such as a car and immovable property such as a house. It is the creation of human intellect. An example is music. The distinctive feature of Intellectual property is that it “relates to information which can be incorporated in tangible objects and reproduced in different locations and can be used by several persons at the same time, unlike immovable or movable tangible property.”[2] There are variations as to the set of rights forming the basket of Intellectual Property Rights. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)[3] includes the following within the scope of IPRs:

 

·        Copyright and Related Rights

·        Trademarks

·        Geographical Indications

·        Industrial Designs

·        Patents

·        Layout-Designs (Topographies) of Integrated Circuits

·        Protection of Undisclosed Information

·        Control of Anti-Competitive Practices in Contractual Licences.

 

India has specific legislations on the first six of the above[4].  A Competition Act has also been enacted in 2002 by which a Competition Commission replaces the old Monopolies and Restrictive Trade Practices Act[5].

 

The intellectual property rights can be broadly classified into copyright and related rights and industrial property rights. Copyright and related rights relate to the cultural field and cover all literary and artistic expressions as well as artistic performances and broadcasts.  Industrial property rights are so called because they are of great relevance to production and distribution of industrial goods.

 

Copyrights are rights given by law to the creators of literary, dramatic, musical and artistic works, and producers of cinematographic films and sound recordings. The creators and producers are called ‘authors’ and their products ‘works’. Literary work includes computer programmes. It is not necessary that a literary work should have high literary quality to be entitled for copyright protection. Even a book of arithmetic is considered a literary work. A dramatic work includes any piece for recitation, choreographic work or even entertainment in a dumb show, form of which is fixed in writing or otherwise.[6] Musical work includes any graphical notation of a musical work.[7] The expression ‘Artistic work’ includes painting, sculpture, drawing including a diagram, map charter or plan an engraving or a photograph, irrespective of their artistic quality, a work of architecture and any other work of artistic craftsmanship.[8] The rights consist of rights of reproduction, distribution, communication to the public, translation, adaptation and so on[9]. Storing of a work in any medium by electronic means comes under the purview of reproduction[10]. The authors also enjoy the rights against adaptations and alterations adversely affecting their reputation.[11] Copyrights generally last during the life term and till the end of sixty years after the death of the author.[12]

 

Related rights are rights of performers and broadcasting organisations, who communicate works of authors to the public through performance or broadcasting. During the continuance of the performer’s right which lasts for fifty years, no person without the consent of the performer can make a sound or visual recording of the performance or broadcast that performance.[13]  However, once a performer has consented to the incorporation of his performance in a cinematographic film he ceased to have performer’s right in that performance.[14] The broadcast reproduction right lasts for twenty-five years and during that period no person without the licence of the owner of the right can rebroadcast or communicate to the public or make a sound or visual recording of the broadcast.[15] In many countries rights of sound recording producers are treated as part of related rights and not as copyright, unlike the case in India.

 

Trademarks are distinctive signs which identify a particular product as the product of particular company or manufacturer. It could be an artistic label, design or mark. However, capability of the mark for being graphically represented is a condition for registration in India[16]. It may include shape of goods, their packaging and combination of colours[17]. A certification trade mark[18] can be obtained to mark the goods or services by the a proprietor as distinguishable from other products in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics. A collective mark[19] distinguishes the goods or services of members of an association from those of others. This right lasts for seven years and can be renewed any number of times[20]. A trademark gives exclusive right to the owner to use it to identify his goods or services and use by unauthorised persons is punishable.

 

A geographical indication is a sign used on goods which posses certain qualities or reputation because of their geographical origin. It identifies such goods as “agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.”[21]  A registered geographical indication can be used only by the authorised person and if any other person uses the same by any means “that indicates or suggests that such goods originate in a geographical area other than the true place of origin of such goods in a manner which misleads the persons as to the geographical origin of such goods” that will be an infringement.[22]  The registration of a geographical indication lasts for ten years and can be renewed from time to time like the trademarks.

 

Industrial designs are the external features of a product. They are the ornamental or aesthetic aspects of a product or article which make the article attractive and appealing. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features such as patterns, lines or colour or a combination of the two[23].  They are applied to industrial and handicraft products to increase their marketability. The owner of a registered design gets a copyright in the same for ten years which can be extended for five years more.[24]

 

Patents are exclusive rights in inventions. Any person who wishes to exploit the invention must obtain the authorisation of the patentee to do so. A patent can be granted to a product or a process providing a new way of doing or a technical solution to a problem. The Patents Act, 1970 defines ‘invention’ as a new product or process involving an inventive step and capable of industrial application[25].  An inventive step means a feature that makes the invention not obvious to a person skilled in the art[26]. Generally, novelty, non-obviousness and commercial/industrial application are the principles on which patents are granted.  However, countries differ on what can be patented and what cannot be patented. The Patents Act, 1970 gives a long list of inventions or discoveries which are not patentable in India.[27] These include frivolous inventions or which claims anything obviously contrary to well established natural laws, inventions the primary use of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment, mere discovery of a scientific principle or the formulation of an abstract theory, discovery of a living thing or non-living substance occurring in nature, mere discovery of any new property or new use for a known substance, a method of agriculture or horticulture, medicinal or surgical processes, plants and animals in whole or any part thereof including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals and an invention which in effect is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components. Besides, matters which get intellectual property protection under other laws such as literary works and topography of integrated circuits are not patentable in India.  Further no patent is granted in India for an invention relating to atomic energy[28]. In India as of now the method or process of manufacture and not the product per se is patentable. This right gives monopoly to the patentee to produce the patented invention[29]. The right lasts for twenty years.

 

Layout design is a layout of transistors and other circuitry elements and includes lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit.[30] Semiconductor integrated circuit means a product having transistors and other circuitry elements which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform an electronic circuitry function.[31] A registered layout design enjoys protection for ten years[32]. The registration gives to the registered proprietor of layout-design the exclusive right to the use of the layout-design.[33]

 

Although the TRIPS Agreement does not classify protection of new varieties of plant varieties as a separate intellectual property right, it obligates member countries to “provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”[34] India provides protection for new plant varieties through a separate legislation, which also provides for the rights of farmers.[35] Internationally the norm is that to be eligible for protection a plant variety must be novel, distinct, stable and uniform[36] or homogeneous.[37] India, however, provides for registration for both extant varieties and new varieties. The protection period for new varieties is fifteen years for annual crops and eighteen years for trees and vines. The farmer’s rights include the right to save, use, sow, re-sow, exchange, share or sell his farm produce including seed or a variety, with the exception that he will not be entitled to sell branded seed of a protected variety. 

 

Changing Face of Rural Economy and IPRs

 

It is axiomatic to say that IPRs play an important role in national economies today.  Industrial advancement is to a great extent dependent on IPRs. Even India is moving from brick and mortar economy to knowledge economy.  The wheels of this new economy are intellectual property rights. Howsoever one may wish otherwise, intellectual property rights are a reality and, therefore, we need to look into how best to utilise the same for development, particularly rural development. While the importance of IPRs in national and global economies has received much attention not enough focus has been given to the importance of IPRs in rural development.

 

The emergence of new technologies such as digital technologies and Information Technologies has a significant impact on rural economy.  The popular term “global village” itself is reflective of this importance.  Surprisingly, the image of the new economy presented is that of a village and not of an urban conglomerate. The imagery is indicative of the effective closeness of the players, places and goods in the market despite actual physical distances.

 

Location is no longer as important as it was in the olden times.  This has in many instances removed the handicaps of rural areas.  Now many new world industries can be started and operated from the quietness of the village or countryside provided there are strong communication channels such as telephone lines and Internet connections. Small business enterprises are now in the countryside. Enterprises for software development, printing, etc. can be set up in rural areas. These are highly IPR intensive industries. Setting up an enterprise, whether small or medium or big, has also to address issues involving intellectual property rights right from the conception stage.

 

One should look at the IPR issues in rural development from various angles in order to understand the complex web woven by IPRs in the social, cultural and economic development of the rural areas.

 

IP Law and Rural Development

 

The need and use of IPRs in the rural scenario can be viewed purely from a legal angle. Non-observance of Intellectual property laws has serious implications now that strong IPR laws and vigilant enforcement mechanisms are in place. The spread and scope of IPRs now a days is so much that a person engaged in economic activities, be he a farmer or an entrepreneur, has to take all precautions to ensure that even inadvertently he does not infringe any IPR and, thereby, incur heavy damage. This is particularly so in the case of retailers and petty shoppers which abound in the rural areas. They have to be careful about the goods they are storing for sale and watch out for pirated and counterfeited goods. Dealing in such illegal goods or even displaying them for sale can, if caught, ruin the entire business of the person nabbed.

 

While in the corporate sector creation of IPRs is a very resource intensive operation, not in all cases major capital investment is required for the same.  More often as not creation of literary, artistic and musical works do not require large-scale financial inputs.  For example, a person can take the photograph of a beautiful scenery in the countryside and thereby create a copyrighted work. Writing software need not require much financial investment. Even on the patent side, not all inventions require huge investment. Rural economy can be a creator of significant intellectual property which can gain from the protection laws.

 

Intellectual property laws could be used judiciously for drawing maximum benefits for the resources available in the rural areas.   Many times lack of awareness results in people not claiming intellectual property rights over their inventions, distinctive marks used on goods and services, handicraft designs and literary and artistic expressions thereby losing valuable financial gains for the creators.  Inadequate knowledge of the intellectual property rights and the commercial potential of traditional knowledge and folklore often lead to the holders of them giving away their cultural patrimony to shrewd business people who with very little input create commercially exploitable intellectual property from that knowledge or information.

 

Sectors of Rural Economy and IP Protection

 

The whole IPR issue in the rural context can also be looked at sector-wise as the concerns differ from one sector to another.

 

Rural economies have been and still continue to be predominantly agriculture based. Farming is a typical old economy. However, in the current globalized economies, agriculture cannot keep away from competitiveness. In order to be competitive, it has to make use of the scientific developments in the method of cultivating, in seeds, in fertilizer, insecticides, reaping, harvesting and further processing, etc. Considering the pace of scientific and technological developments in order to be competitive the agriculturist needs to use the latest cutting edge technologies. These technologies, more likely as not, will be in the patent regime or protected by some other intellectual property right such as plant varieties protection. Genetic engineering has revolutionized agriculture in many parts of the world. New varieties developed in the laboratories are now increasingly being used in agriculture. This applies to other operations such as horticulture, sericulture and so on.  Exploitation of IPRs thus becomes a key element in rural development.

 

            Rural economies also get into the process of creation of patentable inventions in various ways. Since agriculture and related operations are in the rural areas, the field tests of the new inventions with application in the agriculture sector such as insecticides, fertilizers, new varieties of seeds, new technologies in sowing, reaping and harvesting and so on have necessarily to be in the countrysides. Besides, it is not that scientists working in secluded laboratories in the cities make all inventions. People actually engaged in the operations are capable and have in the past developed new instruments and technical solutions eligible for patent. Thus rural economy becomes a partner in IP wealth creation.

 

            Manufacturing and power sectors have also their presence in rural economy. Environmental concerns are shifting many production activities from cities to rural areas. Stone quarries are mostly in the countrysides. Hydroelectric power projects and most of the alternative energy projects have necessarily to be in the villages. These industries and projects are dependent on machinery and technology in the IPR regime.

 

Increasingly rural areas are becoming home for small enterprises. Industries like timber, plywood and furniture manufacturing, handlooms, coir products, food processing industries, etc. are mostly in the village areas.  Even small-scale industries have to be intellectual property and quality conscious. They also need to be competitive and for this use of latest technologies become imperative. Small industries also use distinctive marks to distinguish their products from those of competitors and trademark law provides best intellectual property protection for such marks. Many of their products gain commercial value because of the appealing design which can best be protected by the design law.

 

            Another sector coming up in rural areas is the service sector. With increased connectivity many economic operations, particularly in the service sector, shift to rural areas because of the cost factor. Services can safeguard their distinctiveness by registering trademarks. Further, service sector now has substantial intellectual property content because of the digitisation of records and communication network. These are protected under copyright.

 

A Right-based Approach

           

The issues can also be viewed from the angle of different rights.

 

            As already mentioned patented and patentable inventions are required to be used extensively in rural economy now in order to make agriculture and the small enterprises there viable in the global market. At the same time the rural economy can also create patentable inventions particularly those requiring low economic resources. This is apart from the rural economy partnering in the generation of new intellectual property by associating with field trials and also by providing the raw materials.

 

            Trade Marks are another intellectual property that has wide use in rural areas. With the emergence of branded items as the major display products in shops and market place, petty shop keepers, grocers, retailers and other traders and small business people who dot the village markets have to be wary of unintentional trade mark infringement by stocking or displaying for sale counterfeit or pirated goods which they must have purchased for sale in good faith. Also acquisition and use of separate trademarks is the best means available to small entrepreneurs to guard against imitations and counterfeits of their own products. It is wrong notion that only large-scale products need trade mark protection. Each product has its distinctive quality. Handicrafts can be marketed profitably under trademarks, as that would be a quality assurance for the customer.

 

            Copyrights are used as well as created in very large measure in rural areas. All kinds of writings, artistic and musical works are protected under copyright. These are extensively used in rural areas also. Substantial creative literature and art pieces are created or owe their genesis to the rustic world. Writing a book need not require a city ambiance. Rather the sylvan settings of villages are more conducive to such creative efforts.  The same goes for music or any artistic work like sculpture and painting. Low marginal cost in creating software makes it an ideal product for rural economy.

 

            Geographical indications are mostly in the rural areas. Expressions such as Basmati rice (an aromatic rice), Darjeeling tea, Nagpur oranges, Agra petha (a sweet item), Alphonso mangoes, Kancheevaram silks and Aranmula Kannady (a special mirror) are few examples of geographical indications.  These have value in the market because of their distinct qualities owing to the geographical area in which they are produced. By preventing others from marketing similar or even identical goods using the traditional names such as basmati rice, the genuine manufacturers gain economically because of the premium prices the genuine goods fetch. The Indian Geographical Indications law has under its ambit handicrafts, an item produced all over India mainly by rural artisans.

 

            Performer’s right is one which can fetch dividends to the rustic performers and artists. Actors and singers are inalienable part of villages. Recording and broadcasting of shows of village artistes because of the exotic quality associated with the orient, by major television and broadcasting corporations are common. The performer’s right empowers the performers to prevent unauthorised recording of their performance, which thus gives them a bargaining advantage. The definition of ‘performer’ in the Indian law includes actors, singers, musicians and dancers but also acrobats, jugglers, conjurers and even snake charmers[38]. In short, all kinds of entertainers on the village scene have performer’s rights.

           

Areas of Concern

 

It must be admitted that the current norms of intellectual property do not admit to the intellectual property regime many of the knowledge systems prevalent in the rural areas. These are mostly in the traditional knowledge and folklore areas. Inadequate awareness levels also contribute to the rural sector not getting even the share which it could get from the existing system. Intellectual property laws of all countries attempt to keep a fine balance between the rights, which are private, and the wider public interest. With intellectual property rights playing a larger role than hitherto in rural economy this balancing of the private intellectual property rights and public interest has also to keep in mind the peculiarities of the rural scene. This is especially so when the scope of intellectual property protection is getting widened regularly in the context of the emergence of newer and newer technologies with the addition of new items, new rights and new interpretation of existing rights.

 

Rural areas are rich storehouses of traditional knowledge and folklore. As of now, the communities who have been preserving and nurturing these great cultural assets have been getting very little or, in most cases, no commercial gain from the same. So long as these remained the exclusive preserve of the communities it was not a matter of concern. But with the emergence of the digital and nano technologies, corporate firms have begun exploiting traditional knowledge and folklore commercially. These happen in many ways. There are instances where traditional knowledge was lifted as such and presented as new inventions and obtained patents.[39] These happened mostly in cases involving medicinal and curative properties of herbs and plant products. Patents for such applications could be obtained in Western countries who do not have information about the traditional knowledge of countries like India and, consequently, patent examiners there could not reject the same on the ground of existence of prior art. Another way of exploitation is developing the traditional knowledge further. While everyone has a right to develop on the existing knowledge level, in many cases involving traditional knowledge, this advancement over existing knowledge level is miniscule. Ordinarily such minor improvements should not have resulted in patents if the data on traditional knowledge were available with the concerned patent offices. However, because of non-existence of database on these knowledge systems in the patent granting agencies, the applicants were able to procure patents for such minor advancements and technical jugglery[40]. A third way of exploitation is genuine research based on traditional knowledge. This is unexceptional. However, many feel that the communities should receive an equitable share when the knowledge which they had nurtured is made use of for a commercial purpose.

 

            There have been efforts at an international level to address the misuse and wrong exploitation of traditional knowledge. The Traditional Knowledge Digital Library[41] is an effort to provide a computer database to the patent offices in languages they can understand about traditional knowledge of India so that when patent applications are received they are examined vis- a- vis such databases too. There have also been attempts to provide benefit sharing for the communities concerned. The logic behind such benefit sharing is that the communities, unlike large firms or even individuals who have patented inventions, have never commercially exploited their knowledge in any significant way.  Therefore, they have a human right for sharing in the benefits when they are commercially exploited.  The Tropical Botanical Garden and Research Institute (TBGRI) in Kerala had developed a model for benefit sharing when the traditional knowledge of the Kani tribe of southern Kerala about the refreshing property of the plant arogya pacha (Trichopus Zeylanieus Travancorieus) became the starting point of the Institute’s research, which resulted in the development of the drug ‘Jeevani’. As per this model, fifty per cent of the commercial returns were to flow to the Kani community.[42]

 

            The traditional knowledge situation is replayed in the folklore arena where copyrights replace patents. Folk literature and folk music get published among people who are not familiar with them as original works eligible for copyright protection. Many times the communities concerned do not come to know of it and in many cases even when they come to know, they do not know how to proceed in the matter. There are also problems as the folklore is really not protected by any IPR law. The complaints of the communities are generally of two kinds. First, their objection to some one privatising what they consider as public property. Second, their objection to the improper or misuse of the folklore. This applies particularly in those cases where religious significance is attached to the literature, rituals, art pieces, music and so on. There is need for proper intellectual property protection against such wrong exploitations and misuses. Properly regulated exploitation of cultural patrimony of villages will enrich the cultural and economic life of the rural areas.

 

Another area of concern on the strengthening of intellectual property laws is the farmer’s rights. Farmers have been the traditional plant breeders. This had been assumed as a regular part of agriculture which did not need any special protection. The new varieties developed by the farmers, through cross breeding or any other means, were available freely for all to use and further develop. The entry of large corporate firms into the field and enactment of legislations protecting plant varieties whether as a patent right or a sui generis right have impact on the agriculture sector which is the mainstay of rural economy. The issues to be addressed include, inter alia, “how the contribution of farmers to the conservation and development of plant genetic resources should be recognised and protected.”[43] Equally important for the farmer is the right to “reuse on their own holding harvested seeds without the permission of the right holder.”[44] This is because now intellectual property right protected seeds have come into the market.

 

An area where intellectual property right extension could be considered which would be of great relevance for the rural development is the innovations and technical improvements made by small scale entrepreneurs and technicians mostly in the rural and semi-urban areas. These take place largely to adapt the inventions and technologies to the requirements of local use. The improvements are ordinarily not of such scale as they may get patent protection. However, a sui generis kind of protection for such utility models and innovations would extend more benefits of the intellectual property regime to the rural economy.

 

Conclusion

 

What is needed is commercialisation of various operations and activities in the rural sector which have either existing or potential intellectual property content. For exploiting an intellectual property right, a user needs permission, except in certain legally permitted uses such as for education, research, etc., and such permission ordinarily does not come unless paid for. Therefore, there will be outgo from rural economy for using inventions, services, goods and works protected by any intellectual property law. At the same time, for intellectual property created within the rural area, which will be used by outsiders, rural economy can get payment and thereby there will be inflow. This exchange develops the economy and the more exchange the bigger the economy becomes and greater rural development takes place.

 

*****

tcj//My Documents/tcj/IPRS and RD 9.2.04yes



[1] Published in Kurukshetra, a Journal on Rural Development, Vol. 52 No.6 April 2004, New Delhi. The author is a government official but the views expressed in this paper are purely personal and academic.

[2] Collection of Documents on Intellectual Property compiled by World Intellectual Property Organisation (WIPO) Worldwide Academy (2002), WIPO Publication No. 456(E) p.3

[3] Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS Agreement) (1994) constitutes Annex 1C of the Marrakesh Agreement Establishing the World Trade Organisation (WTO) which was concluded on April 15, 1994, and entered into force on January 1, 1995. The TRIPS Agreement binds all Members of the WTO. Another set of intellectual property rights can be seen in the Convention Establishing the World Intellectual Property Organisation concluded in Stockholm on July 14, 1967 which states in Article 2(viii), “’intellectual property’ shall include rights relating to (1) literary, artistic and scientific works, (2) performances of performing artists, phonograms, and broadcasts, (3) inventions in all fields of human endeavour, (4) scientific discoveries, (5) industrial designs, (6) trademarks, service marks, and commercial names and designations, (7) protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”

[4] The Copyright Act, 1957; The Trade Marks Act, 1999; The Geographical Indications of Goods (Registration and Protection) Act, 1999; The Designs Act, 2000; The Patents Act, 1970;and The Semiconductor Integrated Circuits Layout Design Act, 2000.

[5] Dealing with IPRs, the Act says in Section 3(5): Nothing contained in this section shall restrict - (i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of the rights which have been or may be conferred upon him under - (a) The Copyright Act, (b) the Patents Act (c) the Trade Marks Act (d) the Geographical Indications Act (e) the Designs Act and (f) IC Lay-out Design Act

[6] Section 2(h) of the Copyright Act, 1957.

[7] Section 2 (p) ibid.

[8] Section 2 (c) ibid.

[9] Section 14 ibid.

[10] Section 14 (a) (i) ibid.

[11] Section 57 ibid.

[12] Section 22 ibid.

[13] Section 38 ibid.

[14] Section 38 (4) ibid.

[15] Section 39 ibid.

[16] Section 2(1)(zb) of the Trade Marks Act, 1999

[17] ibid.

[18] Section 2(1) (a) ibid.

[19] Section 2(1)(g) ibid.

[20] Section 25 ibid.

[21] Section 2 (1) (e) of the Geographical Indications of Goods (Registration and Protection) Act, 1999.

[22] Section 22 ibid.

[23] Section 2 (d) of the Designs Act, 2000.

[24] Section 11 ibid.

[25] Section (1) (j) of the Patents Act, 1970.

[26] Section (1) (ja) ibid.

[27] Section 3 ibid.

[28] Section 4 ibid.

[29] Section 48 ibid.

[30] Section 2(h) of the Semiconductor Integrated Circuits Layout-Design Act, 2000.

[31] Section 2 ® ibid.

[32] Section 15 ibid.

[33] Section 16 ibid.

[34] Article 27 of the TRIPS Agreement.

[35] The Protection of Plant Varieties and Farmers Rights Act, 2001.

[36] UPOV 1991

[37] UPOV 1978.

[38] Section 2(qq) of the Copyright Act, 1957.

[39] In 1959 a US patent was granted for Cytoplasmic Male Sterile Quinoa although the male sterility characteristic of the Apelawa plant was known to traditional cultivators. See Module 7 of UNCTAD’s TrainFor Trade 2000 training package on Trade, Environment and Development.

[40] Two well known cases are US patent number 5,401,504 of 1995 on ‘use of turmeric in wound healing’ granted to two Indian nationals at the University of Mississippi Medical Centre and European patent number 0436,257 of 1994 for a ‘method for controlling fungi on plants by the aid of a hydrophobic extracted neem oil’ granted to the US corporation W.R. Grace and USDA. Both these patents were later revoked on the two patent offices receiving satisfactory documentary evidence of existence of prior art, although in the traditional knowledge.

[41] A collaborative effort of the Indian National Institute of Science Communication (NISCOM) and the Department of Indian System of Medicine and Homoeopathy, following the successful but expensive Indian challenge of the turmeric and basmati patents granted by US Patent Office in 1999. The project is intended to document all traditional knowledge available in India, starting with the Ayurveda system of medicine, in digitised format and as per a structured classification to facilitate easy prior art search.

[42] A Study on the Protection of Expressions of Folklore by Mrs P.V Valsala G.Kutty done in 1999 for WIPO.

[43] See chapter 3 of the Report of the Commission on Intellectual Property Rights, London, September 2002 available at http://www.iprcommission.org.

 

[44] Ibid.



[1] The author is a government officer but the views expressed in this paper are purely personal and academic.

[2] See Sections 13 and 17 of the Copyright Act, 1957 [Act No. 14 of 1957.]

[3] Stewart, Stephern M., International Copyright and Neighbouring Rights, Butterworths, 1989, p.5.

[4] See Section 14 of Copyright Act, op.sit, pp.13-14.

[5] Stewart, op.cit.

[6] See Section 57 of the Copyright Act and Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 1971).

[7] Privy Council in Macmillan & Co. Ltd. v. Cooper (K&J) (1923) 932. J.P.C. 113.

[8] 4 Burr. 2408; see Stewart, op.cit., p. 23.

[9] Article 7 of the Berne Convention.

[10] Sections 22-29 of the Copyright Act.

[11] See Sections 31 A, 32 and 32 A of the Copyright Act for other cases of compulsory licences.

[12] Article 9 of the Berne Convention

[13] Supreme Court in R.G. Anand v. M/s Deluxe Films and Others, A.I.R. 1978 S.C. 1613.

[14] Goldstein, Paul, Copyright – Principles, Law and Practice Vol. II, Little Brown Co. (Canada), pp.512-513.

[15] Copinger, W.A., Copinger and Skone James on Copyright, Sweet & Maxwell, London, 1991, p.165.

[16] The Copyright Act, 1957 does not qualify cinematograph films and sound recordings with the adjective ‘original’. See Section 13 of the Act.

[17] Article 5 (2) of the Berne Convention.

[18] There are certain exceptions to the general principle of author being the first owner of copyright such as work produced by an author in the course of employment under a contract of service, government work and so on. See Section 17 of the Copyright Act.

[19] Sections 44-50A of the Copyright Act.

[20] Copinger, op.cit., p. 111.

[21] Article 5 (2) of the Berne Convention.

 

 

 

Basic Principle and Fundamental Concepts of Copyright Law

 

-T C James[1]

 

Introduction

 

Copyright is a right given by law to the authors of original literary, dramatic, musical and artistic works, and producers of cinematograph films and sound recordings[2].  The term ‘copyright’ refers to not a single right but a bundle of rights[3]. These rights vary from one class of works (for example ‘literary’ works) to another (for example, ‘dramatic’ works), but generally cover exclusive rights over various forms of reproduction and adaptation of a work[4].

 

Copyright as a statutorily enforceable right is of modern origin like other forms of intellectual property rights such as patents and trademarks. It emerged in the Western hemisphere as a consequence of certain technological developments such as use of movable types in printing by Gutenberg resulting in easy multiplication of copies. The Statue of Anne of 1709 in England is considered as the mother of all copyright laws. The earliest Indian copyright law is the Copyright Act of 1847, titled “an Act for the Advancement of Learning.” The first major international agreement on copyright, namely, the Berne Convention for the Protection of Literary and Artistic works is of 1886 vintage only. However, the principles that underlie the emergence of copyright can be found in ancient histories, particularly of Greece and Rome.  In Greek history we come across the instance of objections voiced against Hermodorus copying his master Plato’s works and taking them to Sicily for sale, a commercial activity. In Roman history the poet Martial expressed anguish over not getting paid for the publication of his work. In Irish history there is the story of Saint Columba who copied the Psalter of the Abbot Finnian without his permission and the abbot complaining to King Dermont who after hearing both parties declared: “To every cow her calf and consequently to every book its copy[5].” Thus the first recorded copyright case had gone in favour of the author. It also established the principle that the author has the right to control the reproduction of his work. 

 

Rationale of Copyright

 

The most important argument advanced for copyright protection is the need to shield the author’s personality from distortions and also to ensure economic returns to him for his creative efforts.

The concept of protection of author’s personality emerges from the view that every creative work is an extension of the personality of the author. This protection involves right to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the work which would be prejudicial to the honour or reputation of the author[6].  These rights are generally known as moral rights (droit moral). In some countries the right to publish the work is also included in this.

 

While moral rights may ensure creative satisfaction for an author, they do not guarantee economic gains for him. It is argued that the possibility of fair economic returns from the work is a necessary incentive for creation of original works. After all, an author also spends time and energy in creating a new work and like any other individual he also has to earn his daily bread by the sweat of his brow unless he was born with a silver spoon in his mouth. Even if he has other means of livelihood, he still has a right to economic returns for his effort. Just as a manual labourer gets paid by the beneficiary (exploiter) of his labour, an author has a basic human right to get paid for the labour, skill and energy that he has spent over his work by the user (exploiter) of that work. This is the economic rationale of copyright law.  It is natural justice that the product of the labour, skill and capital of one man must not be appropriated by another.[7]  It should be possible for an author to earn from his works if there is a popular demand for them. In the absence of any regulation, any unscrupulous enterpriser or carpetbagger may publish the work of an author and make money out of it without giving any penny to the author. Therefore, copyright provides exclusive rights to the author to reproduce or adapt or communicate to the public his work. These rights are referred to as economic rights as they enable an author to make pecuniary gains by controlling those rights, i.e., he can negotiate financial returns for licensing the use or for assignment of any of those rights.  This feature makes copyrights private property rights like other forms of intellectual property rights.

 

Basic Principle of Copyright

 

There are major differences between other intellectual property rights (IPRs) such as copyright and other property rights. IPRs are rights over intangible property or property incorporeal. Physical property gets exhausted when consumed whereas the use of intellectual property does not exhaust the same (consumption is not exhaustion); rather it enhances the value of the property. This characteristic of IPRs played an important role in the formulation and development of the basic principle of copyright.

 

The other important feature of copyrights that played a significant role in the development of the basic principle of copyright is the nature of the subject matter of these rights. These are rights over cultural, educational and scientific substance.  Control over these is, in effect, control over the intellectual life of the community.  It is control over national, if not universal, cultural patrimony. While in the realm of physics it may be a fact that the quantum of matter plus energy is constant and there can be no addition, in the intellectual property domain there is always new creations and additions to the existing ones.  This addition occurs not in a vacuum but as a result of utilization of existing substance and bringing out advancement on the same.  Total prohibition of the use of the new material by the society will adversely affect the intellectual growth of the society, as new creative efforts will be restrained.  Therefore, there is a public interest angle to be taken care of while providing legal rights to authors in the use or exploitation of their creative efforts.  This is because these legal rights are in essence a right to control access to those works. This tension between individual author’s claims (both moral and economic) to control his creative effort and the society’s interest in having access to the fruits of creativity in the larger interest of humanity emerges as the principle of balance of rights in copyright.  Every copyright law has to keep a balance between the author’s rights based on the need for protecting his personality and for ensuring fair economic returns to him for his creative efforts and the society’s interest in having access to the work in the interest of intellectual growth.

 

This principle of the balancing of the exclusive right of the author or publisher in the work with the public interest in the free dissemination of all works got ensconced In the British legal tradition with the historic judgement of the House of Lords in the case of Donaldson v. Beckett in 1774[8]. Since then, common law countries, including India, have generally adhered to this principle of balance of rights.

 

This basic principle of copyright finds its raison d'être in the Universal Declaration of Human Rights too.  Article 27 of this Declaration states:

 

(1)                             Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2)                             Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

 

The author’s interests are taken care of by the provisions relating to the exclusive rights, both moral and economic, as stated in the preceding paragraphs.  The public interest is protected in most copyright laws through limitations and exceptions to these rights. These are generally of three categories: duration of protection, compulsory licences and fair use provisions.

 

Copyright is not a right in perpetuity.  It is limited in time.  The period of protection can vary from country to country. However, as per the Berne Convention for the Protection of Literary and Artistic Works, the minimum term of protection which every country is obliged to provide is life term of the author plus fifty years.[9] In India this period is life term of the author plus sixty years.[10]  After expiry of this period the work comes into what is referred to as ‘public domain’, i.e., when any person can use the work without an authorisation from the author or right owner and also without any mandatory payment to such owner.  In other words, it becomes a common heritage of the society.  For example, currently the works of William Shakespeare and Rabindra Nath Tagore are in the public domain in India and they can be freely published and distributed by any body.

 

The other means used for ensuring the balance of rights principle is that of having limitations on the exercise of the exclusive rights. These may be through provisions relating to compulsory licences in certain circumstances, and by totally exempting certain uses from the purview of copyright. For example, Section 31 of the Copyright Act provides that the Copyright Board can grant licence on application for publication in certain cases, such as works withheld from the public, and subject to certain conditions.[11] Payment of specified royalty is normally prescribed as a condition in these cases. While the copyright owner has exclusive right over reproduction, copyright laws permit certain uses without any specific authorisation of the owner of copyright and also without any payment.  These are referred to as fair use provisions.  The Berne Convention cited earlier prescribes a three-step test for such exceptions[12].  It stipulates that such permissible reproduction should be only in certain special cases, that it should not conflict with normal exploitation of the work and that it should not unreasonably prejudice the legitimate interests of the author.  The Convention also indicates quotations and illustrations for teaching as permissible uses.  Reporting of current events is also considered as a fair use. The Indian law specifies such permissible uses in Section 52 of the Copyright Act.  The permitted acts generally are of the nature of a fair dealing with a work for private use, research, criticism, news reporting, use by legislatures and judiciary, pedagogical uses by educational institutions and so on.  These provisions enable legitimate use of new copyrighted works for the educational, scientific, and cultural advancement of the society which is the implied objective of copyright law as could be derived from the title of the first copyright law of this country.

 

Fundamental Concepts of Copyright

 

Copyright law is built upon a number of concepts. The most fundamental of them is that copyright applies only to expressions and not to ideas.  There is no copyright in ideas or scientific principles or historical facts.  “An idea, principle, theme or subject matter or historical or legendary facts being common property cannot be the subject-matter of copyright of a particular person.”[13]  Any person can pick up an idea, develop it in his own manner and express it in his own unique style.  Paul Goldstein puts the rationale for this in the following words:

 

Copyright law excludes protection for ideas because ideas, particularly good ideas, are relatively few, are rarely original and are the necessary building blocks for all literary, musical and artistic expressions.  If copyright is to promote a wide variety of expression, authors, composers and artists must be free to draw on the pool of ideas from which expression inevitably springs. Also, the production of ideas consumes few resources and thus needs few of the economic incentives required for the protection of more fully realized works[14].

 

Copyright protects the originality in the expression of a thought or information in some concrete form.[15]

Another fundamental concept of copyright law is that of originality.  Copyright protection is ordinarily extended to only original works.[16]  However, the concept of originality varies from legislation to legislation.  Civil law jurisdictions like those of France and Germany who prefer to call the right in question as author’s rights (droit d’auteur) generally insist upon a high degree of originality whereas in common law traditions as those of United Kingdom and India the level of originality insisted for getting protection is not so high. It should be the original creation of the author.  That is to say, the work should not be copied from another work.  It should be the result of the skill and labour of the author. Both traditions, however, agree, that originality does not require that the work should be the expression of original or inventive thought.

 

Another general concept in copyright is that it is to be formality-free protection[17]. While copyright, like other intellectual property rights, is a statutory right, unlike other IPRs, it is not to be acquired through a process of law. Copyright is inherent in the creation of an original work. The author gets his copyright instantly on the creation of the work without any application to or registration with any statutory or non-statutory body[18].   However, there are certain countries where facilities for voluntary registration of copyright exist. In India too copyrights can be registered with the Registrar of Copyrights in New Delhi[19].  This is not mandatory although there is the advantage of the registration certificate serving as prima facie evidence in a court of law.

 

Like any other property copyright is transferable. In fact it is ‘transferability’ which really makes it a property, a “personal and moveable property.” Transferability is necessary for proper exploitation of the rights. In copyright the transfer takes place through assignments. An assignment is in essence a transfer of ownership even if it is partial. Unlike the case with other property, in the case of copyright there can be separate and independent owners for a single work, the ownership being portioned out for doing different acts, at different times and in different areas. As Copinger puts it, “Rights of this character can be divided up horizontally and vertically so that different people can own different rights in different countries.”[20] The assignment is required to be in writing. An assignee can further assign the same to another person. A copyright owner can permit another person to do certain act without assignment. This is by licensing. In the case of licensing the ownership does not get transferred. While an assignment is in essence a transfer of ownership, even if it is partial; on the other hand a licence is a permission to do something which but for the licence would be an infringement. Copyrights can be transferred also by a testamentary disposition or by the operation of law as in the case of other properties. On the death of the owner, the right passes on to the legal heirs. 

 

Copyright laws are territorial (national) in scope.  International protection is ensured through various international Agreements and Conventions such as the Berne Convention and the TRIPS Agreement. These Agreements provide for certain minimum rights and national treatment. Consequently every copyright law of the Convention countries contains the minimum rights provided in these Agreements thereby bringing some kind of harmonisation between national laws. The clause relating to national treatment is another important instrument. This provides that the national of another Convention country is accorded the same treatment as the national of the home country.  An interesting corollary of this is that a work enjoys copyright in a Convention country independent of the existence of copyright for that work in the country of origin[21].

 

New Challenges to the Basic Principle

 

These fundamental concepts and the basic principle got etched in sharper relief over the centuries since the enactment of the Statute of Anne.  The law had also been able to cope with advancements in technologies over the last few centuries by redefining the scope of works covered and rights granted to adapt them to each emerging technological challenge. However, the recent onslaught of digital technologies and the advent of the Internet have posed unprecedented threats to the copyright regime not only to the rights of authors but also to the basic principle of balance of rights itself.

 

 Digital technologies have made copying and dissemination easier and faster. At the click of a button millions of copies can be made and disseminated over different parts of the world. This has made protection of copyright a very difficult proposition to enforce and copying an easy one. Since the problem is one created by technology, the first place sought for a solution was technology (“The answer to the machine is the machine,” says Charles Clark). The result has been introduction of technological measures of protection such as encryption. However, soon counter technology came up which could crack the keys put in place by the copyright owner. Therefore, copyright owners have been pleading for new legal means for protecting the technological measures of protection they have been using in their works. The debate on the issue has resulted in two new international treaties, (the Internet Treaties) viz., World Intellectual Property Organisation (WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty in 1996 which obligate parties to the treaties to provide adequate legal protection and effective legal remedies against circumvention of effective technological measures that are used by copyright owners to protect their rights.

 

There is, however, an unexpected fall out to technological measures of protection which impinges on the basic principle of legal balance of rights. While the technological measures of protection prevent copying, they also take away the public interest rights, as technology is not moral sensitive; it does not distinguish between legal copying and illegal copying. Public access to the works now gets barred by the use of such technologies. The already existing right of use for research, education or even for quotation purposes now gets withdrawn from the public thus tilting the legal balance against the public interest.  This, in the long run, may stunt intellectual and cultural growth.

 

Along with this, the right of the consumer to make informed choice is also getting limited or even withdrawn. In a conventional bookstall, a customer can browse and then decide whether to purchase or not. In the digital environment allowing browsing poses the problem of illegal copying to the owner. So he uses technological measures, which do not allow browsing. Therefore, the customer has to decide on buying without the benefit of browsing.

 

These are some of the current challenges to the basic principle, which all stakeholders need to sit together and tackle, perhaps using both technological innovations and legal ingenuities.

 

 

*****

[1] The author is a government officer but the views expressed in this paper are purely personal and academic.

[2] See Sections 13 and 17 of the Copyright Act, 1957 [Act No. 14 of 1957.]

[3] Stewart, Stephern M., International Copyright and Neighbouring Rights, Butterworths, 1989, p.5.

[4] See Section 14 of Copyright Act, op.sit, pp.13-14.

[5] Stewart, op.cit.

[6] See Section 57 of the Copyright Act and Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 1971).

[7] Privy Council in Macmillan & Co. Ltd. v. Cooper (K&J) (1923) 932. J.P.C. 113.

[8] 4 Burr. 2408; see Stewart, op.cit., p. 23.

[9] Article 7 of the Berne Convention.

[10] Sections 22-29 of the Copyright Act.

[11] See Sections 31 A, 32 and 32 A of the Copyright Act for other cases of compulsory licences.

[12] Article 9 of the Berne Convention

[13] Supreme Court in R.G. Anand v. M/s Deluxe Films and Others, A.I.R. 1978 S.C. 1613.

[14] Goldstein, Paul, Copyright – Principles, Law and Practice Vol. II, Little Brown Co. (Canada), pp.512-513.

[15] Copinger, W.A., Copinger and Skone James on Copyright, Sweet & Maxwell, London, 1991, p.165.

[16] The Copyright Act, 1957 does not qualify cinematograph films and sound recordings with the adjective ‘original’. See Section 13 of the Act.

[17] Article 5 (2) of the Berne Convention.

[18] There are certain exceptions to the general principle of author being the first owner of copyright such as work produced by an author in the course of employment under a contract of service, government work and so on. See Section 17 of the Copyright Act.

[19] Sections 44-50A of the Copyright Act.

[20 Copinger, op.cit., p. 111.

[21] Article 5 (2) of the Berne Convention.

HUMAN RESOURCE DEVELOPMENT APPROACH TO INFORMATION TECHNOLOGY PAPER PRESENTED AT A WIPO SEMINAR IN BEIJING IN 1999.*

 

-         T.C. JAMES

 

We are at the threshold of a new millennium.  Information technology is expected to be the major driving force of this millennium, at least at its beginning stage.  The sunrise industries of this new technology bring in a paradigm shift in concepts of both technology and human resource development.  Information technology has already brought in changes in the way people work, live, interact and even enjoy and entertain themselves.  It has reduced the hurdles of time and space.  Concept of accessibility has totally changed.  These are important aspects to be kept in view in developing a human resource development approach to information technology.

 

In order to adopt a proper human resource development approach to information technology it is necessary to understand the characteristic features of this technology.  Emergence of information technology represents a quantum jump from the Industrial Resolution technology; but it grew out of the stage of development reached by humankind through industrial and technological changes set in motion by the Revolution.  The identification of the characteristic features of the information technology, therefore, necessarily has to be in    comparison with those of the mass production based Industrial Resolution with foundation in the manufacturing sector.

 

The first feature of information technology that strikes one is the pace of its expansion.  The technology is spreading very fast, both sector wise and region wise.  The high speed of its diffusion is boggling the minds of policy makers, human resource managers, human resource developers, infrastructural developers, and intellectual property right experts.  It is, no doubt, true that the existence of certain infrastructure is a pre-requisite for the growth of information technology in a country.

 

A second feature of information technology is the high obsolescence rate.  The product and process cycles are short.  Today’s technology is becoming out of date by tomorrow.  In this fast changing scenario, only organisation and systems which have the flexibility to respond quickly, almost reflexively, to “new ideas and breakthroughs and newer demands” will be able to survive.

 

The reason for the fast diffusion and high obsolescence lies in another feature of information technology.  This is the low programme cost.  The cost-effectiveness of the technology is very high and the more it spreads the less expensive the unit cost becomes because of the economy of scale.  Research and technology development are making information technology cheaper day by day and making it affordable to more and more people.

 

Another aspect of information technology is its multi-disciplinary nature.  This, of course, is true of most, modern scientific breakthroughs.  While more and more specialised branches of sciences are emerging, technology is becoming more and more inter disciplinary also.  This is a very distinguishing feature of “post-mass production industrial society”.  Computer science, chemical engineering, bio-technology, fibre optics --  all get together to develop information technology (IT).

 

Industrial Revolution first led to colonialism and later to the emergence of nation states.  The new information technology is leading to an erasure of national boundaries.  Information flow is not a great respect or of geographical and political borders. In IT knowledge is the base unlike the case with earlier technologies where product or manufacturing process formed the base.  Since the element of intangible elements in the new technologies is high, physical objects do not bind them much.  This also leads to nation states playing a much smaller role in the new developments compared to the earlier industrial and technological revolutions.  The requirement of a high level of flexibility in adapting to changes could be a reason for the reduced role of states in the new technology.

 

Even with the low programme cost and fast diffusion, the impact of information technology can be unequal. As already mentioned, adequate infrastructural availability is a pre-requisite for the growth and spread of IT. Many developing countries may be deficient in this area and that may put them behind in the economic and technological race. Considering the pace of growth, an initial delay can multiply in its overall impact and the slow starters may lag way behind. Language seems to be another factor contributing to the inequality. Languages spoken by small groups bound in constricted geographical areas appear to have difficulty in catching up with the IT revolution.

 

A significant feature of IT differentiating it from earlier technologies is its high intellectual property rights (IPRs) content.  The term “knowledge-based” itself conveys this characteristic.  The content, the service and the product are all knowledge.  IT encompasses IPRs of all hues with patent at one end of the spectrum to copyright at the other end.

 

After having identified the characteristic features of IT, we may look at the human resource development (HRD) approach to IT from two angles.  First, we will consider development of human resources for information technology and then examine the various aspects of using IT for HRD.

 

For drawing up an effective HRD policy for IT the requirements of manpower, both qualitatively and quantitatively, need to be assessed.  Considering the number of areas which come within the ambit of IT and the challenges thrown up by the new science, the manpower requirement falls into broadly three categories.  The primary requirement is for technical people.  There would be great demand for both highly educated professionals like engineers and the ‘skilled’ personnel.  The second group of manpower required is of the management category.  Considering the wide spectrum of IPRs involved, specialists to handle IPR matters also would be needed.

 

Development of human resources for IT may be through formal education in schools, colleges and universities or through institutions and in-service education including training programmes.

 

An area which deserves special attention in the HRD for IT is the content part.  This comes out of the multi disciplinary nature of the technology.  While one person may specialize in a particular branch, he may have to have a general knowledge of a number of other subjects to be effectively participating in the IT programme.  The subject IPRs will have to form part of the curriculum for all disciplines of IT.

 

The more important angle of the HRD approach to IT is using that technology for HRD.  From a wider perspective, IT is a highly developed and sophisticated tool for HRD.  It is versatile and employable in all modes of formal and non-formal education systems.  An imaginative use of IT can make learning a very enjoyable process.  IT, because of its global reach, makes worldwide classroom a reality. It can draw upon the resources of persons and institutions spread over the whole world.  Access to documents stored in any institution anywhere can be made possible through IT.  These features of IT make it possible to provide relevant education of high quality to specific target groups.

 

In the specific area of IP system, HRD has attained great importance in the context of IT.  Since IT, both content and service wise, permeates intellectual property systems totally, without adequate HRD, effective utilisation of the system is well nigh impossible. IT based HRD, therefore, has to form a major strategy component of modernising the IP system both nationally and internationally.

 

The national IP regimes have to keep pace with the changes taking place in the globalised market place.  The quantum of IP transactions has increased manifold during the last few years. New forms of trade like electronic-commerce (e-commerce) have come into existence and their share in international economic activities is growing.  Global information systems also pose IP rights problems for the policy makers and end users.  Unless the personnel involved in these activities are adequately trained, the systems may collapse at any time.  Because of the special nature of IT, HRD has to be more focussed and directed at a broader range of beneficiaries, than at present.

 

The target groups for HRD, from an intellectual property angle, could be broadly classified into two.

 

The first category would be the policy formulators and administrators.  This category largely consists of government functionaries and personnel working in different national IP offices.  They have to be exposed to information-based practices and modernized office procedures. No doubt, they will have to get enough acquaintance with principles and practices of international IP right regimes.  They will have to be sensitised to the challenges the new technologies would be raising to the existing IP right systems and the ways of finding possible solutions to them.

 

The second category of target group would be the producers and owners and even users of intellectual property.  Collective administration societies of copyrights are a group which deserves special focus in the new HRD strategy.  They need training in various practical skills for using intellectual property information in the new technological regime.  They are to be equipped to handle IPRs in a global market situation at a high speed with confidence.

 

The special features of information technology, that we had seen earlier, make it possible to prepare demand-driven training modules tailored to the requirements of specific groups.  Preparation of the training materials should be done keeping in view end user groups’ training needs and level of education in and   exposure to the new technology.

 

An important aspect to be taken into account in using information technology for HRD in IPRs is the need for regular updating of the material and the teaching and training strategies.  While large databases would be required to be maintained to cover multifarious training requirements of divergent groups, they need to be reviewed and modified on a day to day basis so that the information preserved does remain current and really useful for the target groups.  The high obsolescence and fast diffusion of information technology make this very essential.

 

Institutional linkages are of great significance from a human resource development angle.  Without such inter connectivity the advantages of information technology cannot be tapped to their full potential.  Institutional linkages will help in sharing information and experiences.  It is almost a pre-requisite for an effective distance education system in IPRs.  While information technology makes such linkages easy, these linkages contribute to the development of national expertise.

 

As information technology gets used more and more for HRD, newer challenges and possibilities which cannot be visualized now may crop up. Efforts at HRD to meet the challenges of new technologies have to be a continuous and ongoing process.

 

HRD is perhaps the most important requirement for the growth and development of a country.  With the emergence of digital technologies and the growth of information technology the importance of the development of human resource development has come to the fore.  This is particularly so because without a large group of specially trained professionals no country will be in a position to take full control over the exploitation of the newly emerging trends in the information technology industry.  New strategies will have to be evolved as new challenges come up.       

 

* Paper presented at World Intellectual Property Organisation Asian Regional Symposium on Intellectual Property and Information
Technology,
Beijing,  March 23-25, 1999.