CII-DIIP IPR awaireness seminar 28th January 2009

1. Dr. Tabrez Ahmad
Professor of Law
Dr. Tabrez Ahmad 1

2.  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

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

4.  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

5.  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

6.  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

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

8.  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

9.  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

10.  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

11.  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

12.  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

13.  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

14.  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

15.  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

16.  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

17.  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

18.  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

19.  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

20.  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

21.  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

22.  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

23.  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

24.  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

25.  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

26.  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

27.  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

28.  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

29.  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

30.  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

31.  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

32.  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

33.  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

34.  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

35.  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

36.  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

37.  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

38.  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

39.  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

40. 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 not
only 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

41.  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

42.  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

43.  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

44. Thanks
Dr. Tabrez Ahmad 44