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INTELLECTUAL PROPERTY RIGHTS - COPYRIGHTS

1.      “Copyright, especially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.” Elaborate in context of recent judicial ruling.

http://www.thehindu.com/opinion/editorial/delhi-hc-verdict-on-university-photocopying-case-copyright-and-copymaking/article9128736.ece

http://www.thehindu.com/opinion/lead/judgment-in-the-delhi-university-photocopying-case-a-blow-for-the-right-to-knowledge/article9121260.ece

 In News:

 

  • In its much awaited judgment in the Delhi University photocopying case (The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court has dismissed the copyright infringement petition initiated in August 2012 by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University.
  • This case, which was being closely tracked by students, teachers and the publishing industry alike, was seen as one with immense significance for questions of access to knowledge.
  • While initially involving only the publishers, the photocopier and the university, the case also saw intervention petitions being filed by a student group (Association of Students for Equitable Access to Knowledge) as well as by teachers and academics (Society for Promoting Educational Access and Knowledge).
  • While the publishers made the argument that the creation of course packs and the photocopying of academic material for the same amounted to an infringement of the exclusive copyright of the authors and publishers, the defendants argued that the reproduction of materials for educational purposes fell within the exceptions to copyright under Section 52(1)(i) of the Copyright Act.

 

 

Interpreting Section 52 of the Copyright Act:

 

  • In his considered and sharply reasoned judgment, Justice Rajiv Sahai Endlaw examines the gamut of arguments made by both sides and arrives at the conclusion that copyright is a statutory right and not a natural right, and hence any right that is granted to owners is also limited by exceptions carved out by law.
  • The nature of Section 52 of the Copyright Act is such that any act falling within its scope will not constitute infringement.
  • Section 52(1)(i) allows for the reproduction of any work

 

i)        by a teacher or a pupil in the course of instruction; or

ii)      as part of the questions to be answered in an examination; or

iii)    in answers to such questions.

 

  • The crux of the dispute was about whether course packs fall within this exception. The petitioners tried to provide a narrow reading of the section, claiming that at best what the section allows for is the provision of materials in the course of a lecture and spatially restricted to a classroom.
  • The court, while rejecting this claim, argues that “instruction” cannot be narrowly understood and, through a historically informed reading of the phrase “in the course of”, concludes that instruction includes the entire ambit of pedagogy from the creation of syllabus to teaching and provision of reading materials.
  • It then locates the question of education within a changing technological environment, and argues that “when an action, if onerously done, is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified” (paragraph 75).
  • To make this point, Justice Endlaw contrasts his own experiences as a law student where photocopying was very limited and studying entailed students copying by hand, scribe like, pages after pages of books.
  • Photocopiers have just made the task simpler and faster, but if the act of copying for a particular purpose is itself not illegal, and “the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence”.
  • In a clear statement of the philosophical basis of copyright law, Justice Endlaw rejects the populist and unidimensional assumption that copyright is about the protection of the property rights of owners. He notes instead: “Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”
  • If copyright was always about maintaining a balance between competing ideas of private and public interest, the Delhi High Court has restored to copyright jurisprudence a clear mandate for the future, one which is cognisant that the end goal of technology is the improvement of our lives (material and intellectual) and “no law can be interpreted so as to result in any regression of the evolvement of the human being for the better”.
  • In a radical move, the Delhi High Court has concluded that if Indian law makers have allowed through statute for the reproduction of a copyrighted work in the course of instruction, it has done so on the basis of purpose (teaching) and with the conviction that this does not unreasonably prejudice the legitimate interest of the author.
  • Further, it said that it is not the place of courts to impose artificial restrictions by way of quantitative limits. Justice Endlaw, while arriving at this conclusion, is acutely aware of the specific needs of countries like India where libraries and universities have to cope with the needs of thousands of students simultaneously, and it would be naïve to expect every student to buy copies of every book.

 

 

Internationally:

 

  • The judgment has immense consequences beyond India and is a bold articulation of the principles of equitable access to knowledge — and one that deserves to be emulated globally.
  • For a while now, the globalisation of copyright norms through international law (Berne Convention, TRIPS Agreement) has been accompanied by the globalisation of copyright standards that have primarily emerged from the global north.
  • Aggressively pushed by the copyright lobby, such as Hollywood, the music industry and the publishing cartels, copyright law had effectively been hijacked by narrow commercial interests (albeit always speaking in the name of authors and creators).
  • Thus even when it came to discussing fair use and exceptions and limitations, countries have found themselves constrained by judicial precedents from the U.S. and elsewhere that have defined quantitative restrictions on photocopying.

 

 

  • Interestingly, the judge sees the ‘no infringement’ clauses as being consistent with articles in the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights, which provide for domestic legislation to permit reproductions for specific purposes, as long as they do not conflict with normal exploitation of the works or unreasonably prejudice the rights-holder.

 

 

 

How will publishers respond?

 

  • While this judgment delivers a terrible blow to the publishers, the crucial question is, how will they respond?
  • The publishers have argued, in vain, that universities should not allow unrestricted photocopying, but instead apply for licences through the Indian Reprographic Rights Organisation, a registered copyright society.
  • The publishers may pursue this aspect in their appeal, if there is one.
  • The verdict may justly raise the concern whether conferring unrestricted reprographic rights on academic institutions will drive reputed publishers out of the field of education.
  • It is true that academic publications, especially international ones, are expensive, putting them beyond the reach of many students.
  • But the question is whether the balance between the competing interests has been fully preserved in the law. If reputed publishers feel that there is insufficient copyright protection and back out of educational publishing in the country, it will be equally injurious to the public interest.

 

 

 

 

 

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PROWLING DRAGON MAY BECOME UNFRIENDLY – SOON!

Despite the present show of bonhomie, it should not be forgotten that China has not slowed its aggressive strategies. The military budget in China is huge, even considering only the known size. The liberal support to Pakistan and the high priority China Pakistan Economic Corridor is part of a grand design to have access around India. The friendly overtones to Nepal and offers to build first class transport link with Kathmandu are indicators of the grand design.

 Within the next 5 to 10 years the Chinese economic and military might will be unparallel, barring only the USA. It would be palpable for China to encourage Pakistan to provoke a war to keep India busy and at the same time invade and overrun Arunachal Pradesh.  Obviously, it is very unlikely in such a scenario that India will be able to retain all its limbs.   China is also now giving high priority to diverting Brahmaputra river water by building a dam at the ‘bend’ just before the ‘tsangpo’ or Brahmaputra enters India. North east India will be in crisis in the near future arising from river water diversion and potentially from planned flooding as part of a military action.  India is in a weaker bargaining position in almost every way. It is running huge current account deficit with China and this trend will continue as there is no way India can compensate by exporting more to China at the coming years.  

Chinese agenda of dominating not only South or South East Asia but entire Asia will not change. India is the only potential obstacle in this Chinese vision. Chinese investment everywhere in the world is a component of its political strategy and is therefore state supported.  No wonder, in spite of so much hype since last one year on Chinese investment promises, nothing much has materialized on the ground.  

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IMAGE PROMOTION BAN BY SUPREME COURT

It was never a secret that the tax payers’ money was rampantly used by those in power to promote and glorify their images. Those placed in power by the people are expected to run the states and the country efficiently.  The Supreme Court has very rightly clamped down on the practice of government departments, PSUs and ministries resorting to boss pleasing campaign through release of massive advertisements – finding the occasion being never a difficulty for the creative loyal. Personality cult is at the root of the malaise.

Hopefully, this ban will dampen somewhat the VVIP promotion culture in the country. Many worthy persons have been recorded by TV channel reporters expressing their anguish at this ban.

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TROUBLED TIMES LIKELY AHEAD FOR THE INDIAN GDP

The financial market is in a bad mood. Investor confidence is declining and foreign investments are moving towards China in spite of its slowed growth rates. The industrial revival is not as projected as the recent IIP survey indicates. The pace of reforms seems not enough and is short of the expectations.  Agriculture will be showing poor performance because of the projected below average monsoon activity. Global depressed crop prices will be discouraging for agro based product exports (sugar for example).

 Land, instead of a factor of production, is now a hot item on the political dinner plate.

The private sector participation in infrastructure enticed with the various versions of PPP is still hesitant.

Many forecasts are there placing Indian growth rate exceeding 7% in the current year but all these are based on the ‘potential’.  Yes! But mere ‘potential’ is not enough by itself.

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UPSC CHIEF PROPOSES STRUCTURAL CHANGES IN CIVIL SERVICES PAPER

UPSC Chairman Deepak Gupta has mooted a proposal for structural changes in the number of papers to be made part of the selection process, even as he favoured revolving a “foolproof online system of examinations. He was addressing a three-day conference of chairpersons of Public Service Commissions (PSC) in India that began in Shimla on Saturday.

 “There is a huge increase in applications, which is becoming a logistical challenge. Last year, the civil services preliminary applicants numbered 9.5 lakh, which is expected to rise to 12 lakh this year. Perhaps,it may need structural change in the manner and number of papers that are to be part of examinations,” said Gupta.

Gupta termed the system of online examinations and web-based examinations as efficient, credible and  helpful in handling increased workload. The computer-based examination system is more secure and transparent as a mode of conducting examinations/recruitment tests as it compresses the time between conduct of examinations and declaration of results, he said, while adding that some challenges such as security of data and related infrastructure constraints need to be addressed.

Gupta shared his experience of successfully conducting 22 online computer-based tests in nine cities.

 The UPSC chairman said that in the last three years the commission had introduced innovativeInformation Communication Technological initiatives such as online receipt of examination applications, generation of e-admit cards and interactive websites to cut down delays and reduce manual workload.

Gupta admitted that the tasks being handled by state commissions had become challenging when it came to maintaining transparency and accountability, besides the integrity of the selection process and the objectivity that will remain to be the test to measure the commission’s performance.

Quoting Dr B R Ambedkar, Gupta suggested the need for improvement in universityand technical education. “Our country requires upgradation of skills, knowledge and competency. Only then will we be able to reap the demographic dividends, else it may become a nightmare and time is of the essence.”

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END OF INDUSTRIAL LICENSING

The government has taken out several items on 13.04.2015 from the list of items reserved for small scale sector under the Industries (Development and Regulation) Act 1951 and subsequent amendments.  Earlier proviso was that any item on the reserved list which was desired to be manufactured by a large scale industry, then it had to obtain a licence and the licence was granted on the condition of 50% output to be exported.  The government has also decided to take out from the reserved list the remaining 20 items which means there will be not item left for exclusively manufacture by SSI units which are now re-christened MSE or Medium and Small Sector (sometimes also referred to as MSME or Micro, Small and Medium Enterprises).

 

The objective of this total deregulation obviously is to allow for efficiency in manufacturing by way of economies of scale and introduction of new technology.

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