India Introduces Draft Copyright Amendments; Some Good, Some Bad

from the a-mixed-bag dept

Michael Geist points our attention to the news that India has introduced a draft of proposed amendments to its copyright law, in an attempt to bring India's copyright laws into alignment with those ever popular "international obligations" found in various (industry dominated) treaties. There were reports late last year that the proposals were likely to be draconian, as the negotiations had mainly been between the government and the recording industry with no input from the public. However, the actual proposal (pdf) is much more of a mixed bag -- with lots of somewhat surprisingly good things included.

For example, it extends the concept of "fair dealing" to cover "private and personal use" and makes sure that anti-circumvention rules only apply when the circumvention is used to infringe on copyrights. The US anti-circumvention clause in the DMCA makes no such distinction (so even if you circumvent copy protection for a perfectly legal reason -- such as to make a personal backup -- it's still infringement just to circumvent). Also, the new proposal would allow more access to copyrighted works by "physically challenged persons." However, it appears that some feel that those provisions don't go far enough. It allows for the conversion of copyrighted works into Braille without having to pay a fee, but many visually impaired point out that it does not cover converting the works to audio formats with e-reading software or audiobooks. Some political parties are threatening to boycott the proposal if this part isn't fixed.

The part of the bill that's getting the most attention in India is that it would create an additional right for content creators, which they would hold onto, rather than having the right transferred over to the producers and record labels. In other words, it seeks to make sure that the actual content creators don't have their rights stripped from them by the industry. Not surprisingly, the record labels are up in arms about this, and find the whole thing to be terribly unfair. In their defense, it is a bit strange to set up a copyright where the rights are not transferable, even if the purpose is really to give more power to the content creators themselves.

That controversial clause does seem like a mixed bag itself. Decreasing the control the industry has over actual content creators is a good thing, but I'm not sure layering on another "right" is the way to do it. There are some other questionable aspects of the bill as well -- including (of course) extending the length of copyright, in some cases, for no good reason. It also sets up new statutory compulsory rights. While those sometimes are useful in clearing up confusion, it creates a totally arbitrary system for setting payment rates, rather than letting the market figure it out.

Overall, it sounds like this is better than many of the proposed copyright law changes out there -- and I'm sure that the entertainment industry, who had been pushing for India to put potential infringers in jail, won't like this one bit -- but it's not that great either.
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Filed Under: copyright, india, laws

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  1. identicon
    Jerry Leichter, 24 Apr 2010 @ 12:12pm

    Inalienable rights

    The notion that there might be some rights an author cannot sell seems odd only in the American context. Rights of this kind have been part of European laws for many years. For example, painters in France have special protections that allow them to prevent buyers of their paintings from destroying them or modifying them. The phrase "inalienable rights" in the US Declaration of Independence is a reference to this very concept: Certain things cannot be "alienated" from - sold by - a person.

    Inalienable rights do remove certain "things" from the marketplace, and thus do lower the value of other things in the marketplace. The fact is that we accept this: Even the most extreme believer in unregulated capitalism these days will agree that we cannot sell ourselves into slavery. Or sell our minor children's labor. Go back no so long ago and you can certainly find defenders of slavery or child labor who argued in exactly these terms: Barring these things is an interference with the right to enter freely into contracts.

    Similar debates continue on such issues as the right to sell organs for transplant - or, conversely, the right of researchers to use and profit from tissues removed from people during medical procedures. While a large majority in most of the world believe that it should be illegal to sell heroin, there are many people who argue that it should not be as a matter of economic freedom.

    The question isn't - for almost anyone - whether there *should* be things we chose to keep out of the marketplace; the question is what *kinds* of things to keep out.

    Personally, for copyright, I can see the arguments in both directions. On the one hand, sure, if I were trying to live off of selling my work, I'd like to maximize my current income. On the other, at least historically, most creators have been powerless in negotiations with the buyers who were often either monopolists or close to it. The *intent* of such regulations is to help such creators - as, on the other side, the *intent* of mandatory licenses is to help small users faced with overwhelming powerful distributers. This distorts the market - by intent. If your only measure of goodness is maximization of market efficiency, then such measures never help. If you consider other values - they sometimes do and sometimes don't. (Mandatory licensing of recordings for radio play certainly helped the US radio industry and probably the larger population for many years, but has now evolved into a pernicious force threatening Internet broadcasters.)

    There are only easy answers if you let theory trump reality.

    -- Jerry

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