Proposed Amendment to “The Copyright Act 1957” -- Clause (m) of Section 2 of the Act, which defines the expression "infringing copy" as a reproduction of a literary, dramatic, musical or artistic work or a copy of a cinematograph film made on any medium by any means or any other recording embodying the same sound recording, made by any means or the sound recording or a cinematographic film of broadcasting of a programme or performance if reproduction of sound recording is made or imported in contravention of the provisions of the Act.
It is proposed to insert a proviso (add NOT) to the aforesaid clause so as to provide that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country into India shall not be deemed to be an infringing copy.
Few commercial institutions and industrial organizations are likely to submit their objections against this proposed amendment to meet their commercial gains. Presently, import of Copyright material in India without permission of the owner/licensor amount to infringement.
My personal views in favour of amending the Section 2(m) are as follows:
1. The issue of Parallel import is not at all the subject matter of Copyright. It should be provided in other statutes like Trademark Act, Customs Act, Competition Act or by enacting new legislation for the same etc.
2. Custom Authorities in India are not custodian/record keepers of the Copyright Licenses granted by owners. Customs authority cannot decide whether the license is appropriate or whether the imported product is genuine or counterfeit. If any infringing/counterfeit Copyright work is being imported in India the exclusive licensee or the owner or his representatives’ licensee can approach the Registrar of Copyright with the complaint of infringement under Section 53. It is correctly provided under the new proposed amendment to Section 52 that the copyright Owner should obtain order of the court within fourteen days of such detention by Customs.
3. Needless to mention that the “Copyright” is owners’ right and it comes into existence the moment it is created. Its registration with any particular country is optional and has only evidentiary value. Copyright has acquired wider recognization, acceptance and protection from the Convention countries.
4. Copyright is only the universal right which is well protected and recognized by all convention countries of the world without registration. Such recognization is available to the owner of copyright so that he can exploit his work to the maximum possible extent in the interest of society/country in which it is published / communicated.
5. Exploitation of Copyright enriches society in the form of knowledge, art, literature; music, innovations etc. It also influences culture of the society. It is the owner, who decides his reward/consideration and the extent of commercial exploitation of his Copyright by way of assignment or licenses with its territorial jurisdictions.
In view of the above, owners of Copyright should be liberal in granting as many as licenses as possible in India for effective exploitation of his work so as to earn royalty revenue by providing social benefits in returns to the society. Such rights should not be withheld by the owner for any commercial gains.
What if the owner fails to exploit his work effectively why should any society or country like India suffer?
Why should state/restrain fair dealing with the Copyright material produced by the Owner of the work in foreign country?
Why the work published in foreign country should have any entry barrier in our county when it does not amount to infringement in the foreign country?
Why should the original Copyright work be considered as infringed material even if it is imported without the permission of the owner?
Under the provisions of the Act, the permission of the owner is required for reproduction and publication of the work and not for selling the published work.
For instance, if there is any need/demand for any music, novel, text, (e.g Harry Potter) or any research book of prime importance, what should consumer do? If the same work is not available in market. What if the foreign licensor does not want to grant any licenses in India or he choose to exploit the same in selective countries with higher premium? If at all the license is granted and the monopolistic licensee intentionally does not exploit the Copyright work nor he is capable with his limited resources to exploit it. What is the option available to the Indian public? I feel the available option is to legally import it by paying the Cost for the work or purchase the pirated versions of the same work.
6. The Infringement issue will arise only if substantial reproduction of the work is done by any person without the consent of the owner or exclusive licensee. Infringement is statutorily covers only creation/reproduction and not selling. Selling genuine work/product will not amount to infringement.
7. Section 31 of the Copyright Act provides Compulsory licenses only in respect of any Indian work withheld from the Public. The copyright board has no jurisdiction or power to decide about any published foreign work and withheld from public by the owner or the exclusive licensee. Why can’t Copyright Board decide appropriate license fee and grants license for publication of the foreign work? as it does for Indian work?
8. The only exception to this is Section 32(1A) and 32A which allows publication of translations of the work (other than Indian) only for teaching, scholarship or research purpose and only after period of three years of its first publication. However such work is not available for export. Why there is no such restriction on export of Indian work published in India?
9. The principle of reciprocity is provided in Section 40 and 42 of the Act, however this principal is not implemented in respect of the foreign work.
In view of the above, I feel that the amendment to Section 2 (m) referred above is in the interest of our country so should not be opposed. The Parallel Import / Counterfeiting is effect of in-equilibrium between Demand and Supply. If the Demand exceeds supply then vacuum is created wherein counterfeit products find its way.
In such situation, the owner/licensor should meet demand of its original products by effective licensing /imports and managing sufficient supply with appropriate product cost. This would act positive anti-counterfeiting tool
Regards
Santosh Mane
23/08/2010
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