Cii diip ipr awaireness seminar 28th january 2009

Dr. Tabrez Ahmad Professor of LawDr. Tabrez Ahmad 1

 To give statutory expression to the moral and economic rights of creators in their creations and such rights of public in access to those creations To promote creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development Dr. Tabrez Ahmad 2

 Statutory rights Limited in time Territorial In application Dr. Tabrez Ahmad 3

 Rights granted are essentially negative The right owner does not need the right in order to exploit a market for its goods or services The right gives no liberty to ignore the rights of other individuals ( including their intellectual property ) or to override public liabilities Does not confer on right owners products any privileged position in international trade Dr. Tabrez Ahmad 4

 Regulated by conventions/Treaties Principal Treaties ◦ Berne Convention for the Protection of Literary and Artistic Works ◦ Rome Convention ◦ Universal Copyright Convention ◦ WIPO- created in 1967 governs WCT and WPPT India is not yet party to these treaties TRIPS Agreement- outside the purview of the WIPO Dr. Tabrez Ahmad 5

 Ratified the WTO Agreement in December 1994 and thus became a party to the TRIPS Obliged to make its IP laws TRIPS compliant IP laws amended/new legislations enacted in certain areas Dr. Tabrez Ahmad 6

 Subsists in Expression Not in ◦ Ideas ◦ Procedure ◦ Methods of operation ◦ Mathematical concepts Dr. Tabrez Ahmad 7

 Writings, including scientific and technical texts and computer programmes Databases that are original due to the selection or arrangement of their contents Musical works Audiovisual works Works of fine arts, including drawings, paintings and photographs Dr. Tabrez Ahmad 8

 Contributions of others who add value in the presentation of literary and artistic works to the public: performing artists, such as actors, dancers, singers and musicians; the producers of phonograms, including CDs; and broadcasting organizations Dr. Tabrez Ahmad 9

 TRIPS require compliance with the provisions of Berne Convention India is a party to the Berne Convention , (1885) since 1923 and also the Universal Copyright Convention, 1952 Law on copyright in India in accordance with the international standards as laid down in copyright conventions Dr. Tabrez Ahmad 10

 Copyright Act, 1957 is totally TRIPS compliant after the 1999 Amendment Accords protection to computer programs (since 1984) With the advancement of technology, Copyright laws in India have also been changing to keep pace with the times. The Copyright Act, 1957 was enacted and came into force on the 21st of January 1958. Dr. Tabrez Ahmad 11

 In its Objects and Reasons the legislature recognized that "new and advanced means of communications like broadcasting, litho-photography, etc." call for certain amendments in the existing laws (Copyright Act, 1911). The legislature also commented that "adequate provisions have to be made for fulfillment of international obligations in the field of copyright which India must accept". It is in this year (1957) that cinematograph films derived separate copyrights apart from its various components, namely, story, music etc. Dr. Tabrez Ahmad 12

 The Indian judiciary has also come forward to protect copyrights. The importance of copyright laws was aptly enunciated by Hon’ble Fazal Ali, J. of the Supreme Court of India in R.G.Anand Vs Delux Films. (1978) 4 SCC 118, The court held : “it seems to us that the fundamental idea of violation of copyright or imitation is the violation of the Eighth Commandment : "Thou shall not steal " which forms the moral basis of the protective provisions of The Copyright Act." Dr. Tabrez Ahmad 13

 The Supreme Court, recognised that copyrighted materials are prepared after expending a great deal of labour, energy, time and ability. If any other person is allowed to appropriate the labours of the copyrighted work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour. Dr. Tabrez Ahmad 14

 The laws have thereafter been subjected to certain changes. It was Amended in1984, which specifically addressed the issue of piracy. The Statement of Objects and Reasons to the amendment acknowledged piracy as a "global problem due to the rapid advances in technology". Besides addressing the loss in the form of royalties to the legitimate copyright owners, the legislature also realized the losses to the exchequer by way of tax evasion. Dr. Tabrez Ahmad 15

 Commenting specifically on motion pictures and sound recordings, K Ramaswamy & G.B.Patnaik JJ, of the Supreme Court in State of Andhra Pradesh v Nagoti Venkataramana, while commenting upon the 1984 amendments in The Copyright Act held : "The object of amending The Copyright Act by Act amendment 65 of 1984 was to prevent piracy which became a global problem due to rapid advances in technology. The legislature intended to prevent piracy and punish the pirates protecting copyrights. The law, therefore, came to be amended introducing Section 52-A. Thereafter, the piracy of cinematograph films and of sound recordings etc. could be satisfactorily prevented. Moreover, the object of the pirate is to make quick money and avoid payment of legitimate taxes and royalties. The uncertified films are being exhibited on a large scale. Mushrooming growth of video parlours has sprung up all over the country exhibiting such films recorded on video tapes by charging admission fee from the visitors. Therefore, apart from increasing the penalty of punishment under law it also provides the declaration on the offence of infringement and video films to display certain information on the recorded video films and containers thereof." Dr. Tabrez Ahmad 16

 Certain relevant portions from the Object and Reasons for the amendment are reproduced below : "….recorded music and video cassettes of films and TV programmes are reproduced, distributed and sold on a massive scale in many parts of the world without any remuneration to the authors, artistes, publishers and producers concerned. The emergence of new techniques of recordings, fixation and reproduction of audio programmes, combined with the advent of video technology have greatly helped the pirates. It is estimated that the losses to the film producers and other owners of copyright amount to several crores of rupees. The loss to Government in terms of tax evasion also amounts to crores of rupees. In addition, because of the recent video boom in the country, there are reports that uncertified video films are being exhibited on a large scale. A large number of video parlours have also sprung up all over the country and they exhibit such films recorded on video tapes by charging admission fees from their clients. In view of these circumstances, it is proposed to amend the Copyright Act, 1957, suitably to combat effectively the piracy that is prevalent in the country" Dr. Tabrez Ahmad 17

 In its effort to address the above issues, by way of the amendments, the following changes were incorporated in the Act, namely . :-- ◦ i. the punishment provided for the infringement of the copyright was enhanced to a maximum of three years, with a minimum punishment of imprisonment of six months, and a fine upto to Rs. 2 lakhs, with a minimum of Rs. 50,000/-.; An enhanced punishment in the case of second and subsequent convictions was also provided for; ◦ ii. The provisions of the Act were now specifically made applicable to video films and compute programes; ◦ iii. The producers of records and video films were now under a statutory obligation to display certain information in the records, video films and containers thereof, which included the name of the copyright owner, year of first publication etc. Dr. Tabrez Ahmad 18

 Copyright law, amended in June 1994, became effective on May 10, 1995 and established an entirely new potential for reducing piracy in India. According to the Statement of Object and Reasons, the legislature recognized that "effective copyright protection promotes and rewards human creativity and is, in modern society, an indispensable support for intellectual, cultural and economic activity. The legislature further recognized that copyright law promotes the creation of literary, artistic, dramatic and musical works, cinematograph films and sound recordings by providing certain exclusive rights to their authors and creators Dr. Tabrez Ahmad 19

 It was felt that the present Act needs revamping on the following grounds : ◦ to extend more effective protection to owners of copyright and related rights in the context of technological developments affecting the reproduction of words by, inter alia, bringing within the scope of copyright the subsequent hire or sale of copies of cinematograph films, computer programmes and sound recordings. ◦ to further clarify the law in respect of cable, satellite and other means of simultaneous communication of works to more than one household or private place of residence, including the residential rooms of a hotel or a hostel. Dr. Tabrez Ahmad 20

 To make provisions for licenses whereby the reproduction of works by reprographic equipment or by means of devices such as tape recorders and video cassette recorders, where such reproduction would not under the existing law be infringement of copyright, shall be subject to payment or remuneration to copyright owners by means of a levy on such equipment.  The law protects cinematograph films as a distinct work, giving the producer of the film the exclusive rights ◦ i. to make a copy of the film, including a photograph of any image forming part thereof; ◦ ii. to sell or give on hire, or offer for sale or hire, any copy of the film regardless of whether such copy has been sold or given on hire on earlier occasions; ◦ iii. to communicate the film to the public Dr. Tabrez Ahmad 21

 India, being a member of two of the major copyright conventions of the world (The Berne Convention and The Universal Copyright Convention), Indian works and works of Indian authors are accorded copyright protection in all major countries of the world. Likewise, foreign works and works of foreign authors are accorded the same protection as Indian works. In addition to the law bringing India newly into compliance with its substantive TRIPS obligations in the copyright area, the law provides for new minimum criminal penalties including a mandatory minimum jail term which, if implemented, will go far to controlling piracy. Dr. Tabrez Ahmad 22

 The Cable Televisions Networks (Regulation) Act was enacted in 1995 to control the "cultural invasion" by transmittal of signals of foreign televisions. The statement of Objects and Reasons of the Act proceeds on the presumption that subscribers and cable operators are not aware of their rights, responsibilities and obligations in respect of exhibition of uncertified films and the protection of subscribers from anti-national broadcasts (It says so in so many words). Use of material protected by copyright also finds a mention. Under the Act, a procedure for registration of cable operators was provided for the first time. Running a cable network without registration now invites imprisonment and penalties. Dr. Tabrez Ahmad 23

 The Act amended in the year 2000 to strengthen enforcement against piracy on cable networks. Additional “authorized officers” were empowered to supervise these networks.  The 2000 Amendment for the first time recognized the fact that cable operators also require copyright licenses for exhibiting software on their networks and exhibition of any program without the express license of the copyright owner was for the first time made an offence under this legislation. The affect of these legislative changes is still to be seen on the ground level. Civil and criminal enforcement actions at present are the only form of effective control of this form of piracy. Dr. Tabrez Ahmad 24

 Copyright Act does not contain provisions to face the challenges posed by the Internet. In 1996, WIPO adopted Internet Treaties: WCT and WPPT India is not party to these treaties Dr. Tabrez Ahmad 25

 Copyright in Blogs Music Piracy- Napster, KAZA, Gnutella, to Grokster Copyright and open source license Software Piracy File sharing- Bulletin board system, orkut, face book etc. Dr. Tabrez Ahmad 26

 The government has initiated some measures for better enforcement of copyright laws. A summary of some of these measures is given below : The Department of Education, Ministry of Human resource Development, Government of India has constituted a Copyright Enforcement Advisory Council (CEAC). The CEAC is reconstituted from time to time to review periodically the progress of enforcement of the Copyright Act and to advise the government on measures for improving the enforcement. Dr. Tabrez Ahmad 27

 Creation of separate cells in state police headquarters. States have also been advised to designate a nodal officer for copyright enforcement to facilitate easy interaction by copyright industry organizations and copyright owners. Dr. Tabrez Ahmad 28

 Encouraging setting up of collective administration societies and organization of seminars and workshops to create greater awareness about copyright law among the enforcement personnel and the general public. For collective administration of copyright, copyright societies are set up for different classes of works. At present there are three registered copyright societies. These are the Society for Copyright Regulations of Indian Producers of Films & Television (SCRIPT) for cinematographic films, Indian Performing Rights Society Limited (IPRS) for musical works and Phonographic Performance Limited (PPL) for sound recordings. There is now an urgent need for all the constituent parts, i.e. the rights owners, the government, the enforcement agencies and the judiciary, to work jointly in eradicating the menace of piracy. Dr. Tabrez Ahmad 29

 Let us take then the example from the United States. The story is from the period when it had just obtained its independence and was in the stage of establishing its own economic, social and legal system. As far as copyright was concerned the first idea – which, at the first sight, perhaps seemed to be attractive and clever – was to promote local culture and creativity through granting copyright protection for the works of domestic authors, leaving, however, foreign works – first of all works published in England – unprotected. The results proved to be catastrophic from the viewpoint of what the isolationist approach to copyright was believed to serve; from the viewpoint of national culture and creativity.. Dr. Tabrez Ahmad 30

 Those publishers – according to our present comparative scale, certainly small or, at least, medium-sized ones – that had chosen to invest in the publication of some still less well-known American authors were unable to compete with the others which achieved easy and safe success by publishing unprotected works of famous and popular English writers and poets without any need whatsoever for bothering with obtaining authorization and paying remuneration to them Dr. Tabrez Ahmad 31

 The then “SME” publishers supporting local creativity either went bankrupt or changed publishing policy in abandoning their patriotic extravaganza. This negative effect of the introverted copyright policy was recognized quite early. Copyright legislation was changed, updated and – through appropriate agreements – extended to English works. The result of this step is well known: the dying “SME” publishers specialized in publishing works of domestic authors received a huge doze of new opportunities for competing in the market and succeed. This wise decision to change copyright policy might even be regarded as the beginning leading to the enormous success story of the U.S. cultural industries (about which, of course, it would be difficult to say that they are now dominated by SMEs). Dr. Tabrez Ahmad 32

 The breakthrough towards copyright as a generally accepted option took place in February 1985, at a meeting organized in Geneva at the WIPO headquarters. It was due to the excellent working paper, to the thorough discussion at the meeting, but also to the existing positive examples to which the working paper had been able to refer. At that time, in addition to some positive developments in the case law of some countries, there were already five countries where statutory law explicitly recognized the copyright protection of computer programs. Dr. Tabrez Ahmad 33

 This evolving scenario was recognized and duly taken into account in the European Community in the framework of the preparation and adoption of the directive on the legal protection of computer programs. The directive (Council Directive No. 91/250/EEC of 14 May 1991) contains certain provisions to protect users of computer programs against the dangers of overprotection in favor of software developers: such as the ones guaranteeing for the lawful owners of copies of computer programs to be able to use it for the intended purpose, including error protection (Article 5(1)), to make back-up copies (Article 5(2)) and to observe, study or test the functioning of the program in order to determine the ideas and principles underlining any element of the program (Article 5(3)). Dr. Tabrez Ahmad 34

 The latter provision has already quite a substantial relevance also for the possible competitors – among them many SMEs -- in the software markets. However, what is particularly important for them – especially for the more vulnerable SMEs of the field – is the regulation of the issue of “reverse engineering” or “decompilation” of programs in Article 6 of the directive. Dr. Tabrez Ahmad 35

 This regulation became necessary in order to eliminate the possibility of some anticompetitive practices of owners of certain widely used computer programs based on the exclusive right of reproduction and/or the exclusive right of adaptation (and translation) granted to them by Article 4 of the directive. In the absence of an appropriate regulation, owners of rights in such programs would have been able to prohibit the transformation of the programs (only made available by them in object code form) into source code form (this transformation is called “decompilation” – or “reverse engineering” of the program). And without such decompilation, the potential competitors would not have been able to develop and make any computer programs that would have been able to function together – “interoperate” -- with the existing and widely used, quasi standard programs. Such a consequence would have been, of course, particularly disastrous for SMEs of the software development sector. Dr. Tabrez Ahmad 36

 The regulation was not easy. There was quite an important resistance against any specific rules authorizing decompilation, since some major software houses were afraid that the new norms may be used also for simple piratical activities. It seems, however, that the provisions in Article 6 of the directive have established an appropriate balance between conflicting legitimate interests and eliminated the possible dangers as much as possible. The said Article of the directive provides that the authorization of the rightholder is not required where reproduction of the code and “translation” of its form are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that certain conditions are met. Dr. Tabrez Ahmad 37

 These conditions serve as guarantees that the limited freedom granted in this field does not prejudice the legitimate interests of owners of rights. (The conditions are as follows: (a) these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorized to do so; (b) the information necessary to achieve interoperability has not previously been readily available; (c) these acts are confined to the parts of the original program which are necessary to achieve interoperability; (d) the information obtained must not be used for goals other than to achieve the interoperability of the independently created computer program; (e) it must not be given to others except when necessary for the interoperability of the independently created computer program; and (f) must not be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.) Dr. Tabrez Ahmad 38

 This well-balanced and precise regulation has made it possible – not only in the European Community but also in other countries where this model has been taken over and applied – for software-developer SMEs to continue and extend their creative activities with a chance to succeed, and many of them have used this opportunity with great efficiency. Dangers of piracy: SMEs as candidates to become the first victims Dr. Tabrez Ahmad 39

Piracy may have a number of possible negative and even disastrous consequences: such as completely neglecting copyright and related rights which, if not duly countered, may notonly deny rights to creators and producers, but now, with the teeth these rights have obtained through the TRIPS Agreement, eventually may also lead to serious trade sanctions against the country concerned, or such as the distribution of low-level quality products without any follow-up service whatsoever, tax evasion and contribution to financing other forms of organized crime or subversive activities. Dr. Tabrez Ahmad 40

 A further – and, from the viewpoint of national culture, the most detrimental – consequence is that the commercial activities of pirates undermine the chance on the market for those who publish and distribute works in a legitimate way, and take the risk to invest into the promotion of new, still less known talents, mainly national authors. They have no real chance to succeed since the market is inundated with cheap pirated publications (cheaper for at least three reasons: first, because pirates do not take any risk; they simply publish those works and recordings which have turned out to be great success; second, because they do not have administrative costs emerging in connection with obtaining authorization from the right owners; and, third, of course, because they do not pay remuneration) with which they are unable to compete. In general, SMEs operating in copyright-related fields are among the first enterprises to lose and go bankrupt as a result of wide- spread piracy. Dr. Tabrez Ahmad 41

 The great problem from the viewpoint of national culture is that pirates tend to publish and distribute foreign works having proved to be successful and gotten famous on the ever more globalized world market. National creativity and local authors are promoted by lawful publishers – many of them in the SMEs category – and it is just that category which is on the losing side. This may very much result in poorer and stagnant national culture and the fading away of the diversity of national identities. Dr. Tabrez Ahmad 42

 Balancing of interest of various stake holders ◦ Right holders and fair use India’s greatest potential lies in its copyright related industries. India is the largest film-producing nation in the world. It has given the world the largest number of computer software engineers and its music is enjoyed all over, in particular in South and South East Asia. It has a vibrant publishing industry with publications in over 26 official languages. All these industries crave protection of the laws. If these laws and their enforcement are strengthened, it is only India which will benefit. Dr. Tabrez Ahmad 43

Thanks Dr. Tabrez Ahmad 44

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Cii diip ipr awaireness seminar 28th january 2009

by Dr Tabrez Ahmad

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