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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"...since freedom itself cannot flourish without the free flow and exchange of ideas, opinions and information. This is a principle central to democracy and vital to the defence of individual liberty."
http://www.cbc.radio-canada.ca/docs/policies/journalistic/preamble.shtml
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indias polititions
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But that's only because piracy undermines the humanitarian efforts in Haiti. Think of all those in Haiti, if you are going to undermine their humanitarian efforts by participating in piracy then you deserve to be jailed.
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Re:
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So...what exactly is this additional right? That seems rather pertinent as to whether this right is "good" or "bad".
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Missing stuff
“After the commencement of the Copyright Amendment Act, 2010, the producer and the principal director shall be treated jointly as the first owner of copyright,” according to the draft.
That is huge!
Also:
The Bill also seeks to introduce statutory licensing to broadcasting organizations to access literary and musical works and sound recordings. A statutory licence or compulsory licence is a copyright licence to use content under reasonable and non-discriminatory terms. For example, radio companies don’t need to obtain permission from the copyright holders to play a song, but must pay usage fees to the copyright holders based on how often a particular song is played. Intellectual property rights lawyer Saikrishna Rajagopal said the provision of licensing was welcome from the point of view of the broadcasting industry.
FYI, the music industry is pretty weak in India and has little clout. Most of the popular songs are from movies and movie industry has a lot of say.
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Forcing Rights on Authors actually removes Rights
I've never been against the ability for an author to sell the rights to their creative works to someone else or to some mega-corp. That's just a deal between consenting adults in a free market.
It also makes things more confusing for anyone trying to use or license the works, and possibly more expensive, too.
So the above part of the new draft would actually remove author's rights - that is, the right to sell what they've produced and their interests in it.
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Inalienable rights
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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Re Jerry Leichter comments
Statutory rights create compulsory membership collection societies , the payment made to management/operating costs of these compulsory collection societies can often be one of the biggest single payments made by the society. Thus these societies can develop real conflicts of interest between : maximizing benefit to all and maximizing benefits to management.
Because the services of these organisations are compulsory, creatives who are not happy with the management style and costs can not opt out and make their own arrangements.
Thus effectively these societies are also in a position of Moral hazard.
The example of SoundExchange and exactly who's interests it actually represents is one of the more extreme examples of these sorts of problems.
At a less extreme end is the Australian- 'Copyright Collection Agency' ( CAL). As has been reported in this site CAL has for decades been paid a lot of money to do little more 'work' than pass the individual 'authors' payments on to publishers to 'distribute' to individual authors.
A conflating of the collection society as an management entity , with the interests of the thousands of individual creatives over which it has a compulsory management right , is common.
It is common for very well paid senior management figures to self-describe themselves as "authors" " artists" "musicians" and so on when advocating for extensions of 'rights' that are in effect, rights to compulsory management fees.
Statutory rights (because they are not opt-in by personal choice) can also create arbitrary discriminatory treatments of individual citizens , based on State imposed 'labels'. For example; Many many people use words as a way of earning a living, under a statutory rights regime if these individual users of words are not labeled by the state as 'authors' they retain economic rights to opt for a complete first sale price on the results of their labour, a choice that is denied to those citizens labeled by the state as as 'authors'.
Statutory rights also blur the boundary between the very opposite intentions of tax and royalty in a way that that can result in effects that are counter to both community and individual benefit .
Great Success in writing / music /art is very rare, the book or recording that gets re-read/re-payed often is a 'classic' : a rarity. Rights on re-play, re-reading, re-sales, inevitably act as in effect ; anti-progressive taxes , most of the money collected (after management fees and costs are extracted) is paid to the top 100 of the past few decades. And what is left over is often either- "uneconomic to deliver" or( because these systems are not opt-in ) impossible to deliver; the whereabouts of the individual right holder is unknown.
These undeliverable royalties are generally - absorbed to underwrite the costs of management or redistributed to known members or awarded as grants and prizes to suitable peers.
Statutory royalties because they are compulsory monopolies also involve the "restraint of terms of traded of unrelated third parties", this has significant opportunity costs for the whole community and also for some individual creatives.
The only justification for compulsory statutory secondaries is wide community 'group' benefit that is large enough to outweighs the costs . The licenses over public lending and copying for educational purposes exist purely to encourage-facilitate public education , a public good. They are not primarily aimed at the benefit of either publishers or Authors as groups.
The film and IT industries of india have been extraordinary successes in part because (being fairly young industries) they were not burdened by the bureaucratic over-management that is otherwise such a pervasive legacy of the old command economy of india of the 50s-60s. Hopefully this is not about to change.
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re re Jerry Leichter
Moral panic seems to be a permanent state in some sections of the copyright industry.
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Non-Transferable Rights
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Re: Non-Transferable Rights
E-Petitions, signed by thousands of mysterious people, calling for my management rights over my own economic life, to be compulsorily handed over to that collective management group ( personally- a group that I would not touch with a twenty foot pole) , for my own good, were speaking personally, all too familiar.
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No work of government clause
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