India's Copyright Policy, Which Favours Users Over Owners, Needs a Rethink

The country's international copyright policy should be aimed at striking a balance between the need for facilitating access to knowledge and to harness copyright’s economic potential.

Even though India has a dominant stake in some of the major copyright-oriented industries – media and entertainment, the software sector and the telecommunications industry – it is not a signatory to the major copyright treaties affecting them.

For example, it is not a signatory to the WIPO Internet Treaties (the Treaties) which protects the rights of authors, phonogram producers and performers in the digital era despite its rich repository of arts, culture and music.

Similarly, it is not a signatory to the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) even though research indicates that national industries of culturally rich developing countries have much to gain from it. It has not even acceded to the Beijing Treaty on the Audiovisual Performances (BTAP), the most recent international copyright treaty aimed at protecting the audio visual services industry despite the fact that India has the largest audio visual industry in the world.

However, it was the first country to accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, an international treaty which facilitates the creation of accessible versions of books and other copyrighted works for visually impaired persons (not that India should not have acceded to this treaty).

Recently, India has been an ardent supporter of the proposed treaty on limitations and exceptions, another pro-copyright user oriented treaty while being dismissive of the proposed broadcasting treaty, an international treaty aimed at protecting the rights of broadcasting organisations in the current digital era.

Even historically, India has actively supported treaty provisions aimed at protecting the rights of copyright users while ignoring the interests of copyright owners. For example, at the Stockholm Revision Conference of the Berne Convention, India on behalf of a group of developing countries demanded the lowering of copyright standards at the cost of a stand-off with its coterie of public intellectuals. At a time when India’s creative economy is projected to reach $34.8 billion by 2021, is a blanket ideological prejudice against the rights of copyright owners vis-à-vis the rights of copyright users in sync with its commercial interests?

Research indicates otherwise. Notable international intellectual property scholar professor Peter Yu in his seminal paper ‘Intellectual Property and the Information Ecosystem‘ has opined that an ideological prejudice against heightened intellectual property standards in isolation from the sector/industry is an unwise policy decision. This begs the question – what is the rationale behind this structural ideology of the Indian government which favours the rights of copyright users over owners?

Ideally, one would have expected the National Intellectual Property Rights policy to rationalise this ideological prejudice but unfortunately, it does not go beyond truism. Cloaked in vagueness, all it states is that the government will undertake steps to engage constructively in the negotiation of international treaties and agreements in consultation with the stakeholders concerned and consider acceding to some multilateral treaties which are in India’s interest.

Despite this positive assurance, India is yet to accede to rights owners-oriented copyright treaties such as the Treaties and the BTAP. As far as back in 2008, the Copyright Law Division of the World Intellectual Property Organization (WIPO) had persuaded India to accede to the Treaties for its own benefit. However, no holistic empirical study has been taken till date to assess the potential benefits that India could gain by acceding to the Treaties or for that matter the BTAP.

Similarly, India has opposed the proposed broadcasting treaty even though as per a 2011 study conducted by the Cable & Satellite Association of Asia, it was the biggest loser in the Asia-Pacific region due to signal piracy with a total accumulated loss of $1.4 billion, which represented 64% of the total cost of the piracy in the Asia-Pacific region.

India’s cautionary approach towards rights-oriented copyright treaties finds its roots in neo-colonialism, where international IP laws are viewed as West’s imposition upon the developing world. This has so far dominated IP policymaking in India, a reaction spurred more by emotion rather than logic. However, unless a rational assessment of the benefits to be gained by ratifying to the rights holders-oriented copyright treaties such as the Treaties and the BTAP is not undertaken, adopting emotive positions will do more harm than good.

India has opposed the proposed broadcasting treaty even though as per a 2011 study, it was the biggest loser in the Asia-Pacific region due to signal piracy with a total accumulated loss of $1.4 billion. Credit: Reuters

This becomes especially relevant as the leaked IP chapter of the Regional Comprehensive Economic Partnership (RCEP) indicates that acceding to the Treaties and the Rome Convention was a prerequisite for signing the RCEP. The RCEP is a proposed mega-regional free trade agreement between the ten member states of the Association of Southeast Asian Nations (ASEAN) and six other countries with which ASEAN has free trade agreements. The RCEP is decisive for India to execute its Act East Policy, a strategic initiative to boost its hegemony in Southeast Asia. Therefore, it is imperative for the Indian policymakers to urgently undertake a comprehensive empirical study on the benefits to be gained by acceding to the Treaties and other rights owners oriented treaties keeping in mind the delicate balance between the rights of copyright owners and users.

This is especially because in 2002, when the Treaties entered into force, it was arguably of less relevance to India as its internet penetration rate stood an abysmal 1.5%. However, as of 2016, 34.8 % of India’s population has access to digital works. Therefore, technological backwardness as a reason for not acceding to the Treaties is plausibly irrelevant in today’s time.

Most importantly, an advantage of ratifying to the Treaties and the BTAP is that it allows domestic creators to compete on a fair level. At a time when India’s audiovisual industry faces stiff competition from Hollywood due to the free availability of pirated movies, the government should contemplate creating a level playing field for its domestic industry. This becomes extremely important for reviving its regional audiovisual industry, which is on the brink of extinction.

Most importantly, an independent study commissioned by WIPO on the state of the audiovisual industry in selected African countries concluded in the specific context of Kenya that acceding to the Treaties had the potential to boost its domestic audiovisual sector industry. This may address any concerns of the government on the Treaties being ill-suited for developing countries.

Nevertheless, India’s position in the international copyright community is very different from other developing countries, a fact conceded by none other than India’s chief negotiator for the copyright provisions of the TRIPS agreement. In a leading memoir on the negotiating history of the TRIPS agreement, without mincing any words on India’s incompatible position on international copyright issues, the chief negotiator has lucidly stated, “We had (and still have) the world’s largest film industry, which is closely tied to a very large music industry; our software industry held out great promise at the time, which has since been realised. Whatever the politics of our relationship with other developing countries in regard to other and broader issues, we did not then, and certainly do not now, have common interests with many of them in the sphere of copyright. At the same time, there is an influential section of opinion in India which, on the strength of ideological prejudices (though these are widely prevalent and have very little to do with any overtly political considerations) favours a much more relaxed copyright regime.”

Therefore, even assuming that there is some merit in the argument that the rights owners-oriented copyright treaties are ill-suited for developing countries, that argument holds little ground for India given its peculiar circumstances.

Further, a study found that a reliable copyright system was instrumental for transforming Nashville (the capital city of US state Tennessee) into a Music City. Nashville’s case study is relevant due to its historical context as well. Nashville was once a poor US city, where just like Sub-Saharan Africa, policymakers had pinned much hope on its economic development on access to raw materials and large government-funded public works projects.

While these expectations were never realised, Nashville nevertheless found success from its popular creative industries due to a reliable copyright system combined with regional talent and local entrepreneurs. Though India and Nashville cannot be compared in economic terms, this example demonstrates that copyright is possibly the best institutional design for supporting the development of a commercial creative industry even in developing countries. For this reason, copyright’s role in unleashing India’s creative economy cannot be underestimated, a fact conceded by none other than the Department of Industrial Policy and Promotion (DIPP), the government department responsible for IP policy in India.

India has recurrently fared poorly in the US Chambers of Commerce’s International IP Index (the International IP Index) and has always been listed as a priority watch list country by the United States Trade Representative (USTR) under the Special 301 Report. The International IP Index and the Special 301 Report can best be described as partisan as they are mouth pieces of the US corporate interests which fail to take into account the developmental aspects of India’s IP regime. Due to their unilateral approach, India should not pay any heed to it.

However, India’s non-accession to the Treaties merits special attention. The Copyright Act, 1957 was amended in 2012 to comply with the Treaties even though strangely India never acceded to them. Speculation suggests that DIPP is plausibly studying the implications of acceding to the Treaties. If this is true and if India does decide to accede to the Treaties, it would be spared of the needless ignominy by the USTR and the USCC’s International IP Index, which has since 2012 lashed out at India for not ratifying to the Treaties.

Even the recently released 2018 Special Report urges India to join the Treaties in order to improve its copyright law. Given these international developments, it is in India’s best interest to revisit its international copyright policy which should be aimed at striking a delicate balance between the need for facilitating access to knowledge and to harness copyright’s economic potential.

Seemantani Sharma is an international copyright lawyer at the Asia-Pacific Broadcasting Union where she works on international copyright issues affecting broadcasters.