The basis of copyright law is the dichotomy of 'idea' and 'expression' –it is only the expression of an idea that is copyrightable and not the idea itself. Giving the gist of a work is never violation of copyright, while reproduction without permission may be. As such, copyright law is not a restriction on free speech per se, but by regulating the usage of information, it does have a bearing on discursive forms.
The copyright bill
which is, in many ways, a comprehensive amendment of copyright law in India, does not change this basic structure of the copyright act. Regarding the impact of copyright law on discursive freedoms, the new Bill makes two important changes -one, it brings in a change with relation to films insofar as it now includes cinematograph films within the 'fair dealing' clause and two, it legitimises the making of electronic copies for personal research and for use by non-commercial libraries.
While these are positives in the development of the copyright holder-consumer relationship, the new bill also introduces a new and onerous criminal offence - that of removing technological measures intended to secure copyright. This is an offence which many have been and will be guilty of and has the potential to have a dramatic effect on the distribution of digital media in India by making the criminal prosecution of the intermediary, the small time pirate or the DVD ripper, fairly easy.
Fair dealing, referred to as fair use in the United States, is an exception to general copyright law wherein works are considered exempted from the restrictions of copyright when used for certain purposes. In India, as the law stands today, fair dealing does not extend to films, although copyright in a film is not held to be infringed for anything less than 'substantial' copying. What this means is that, as of now, films cannot be screened publicly in any circumstances apart from when they are screened in educational institutions for students. So, while one can make photocopies for research from copyright protected books and journals, one cannot legally make a copy of a film for research.
The new bill will change this position allowing for copies of cinematograph films (and all other works) for “private or personal use, including research.” However, the current position under law that nothing short of 'substantial' copying will be considered infringement, for any work and not only cinematograph films, has also been retained in the new bill. So, copying of works of any kind, be they literary, artistic, musical or cinematographical will be protected by the 'substantiality' requirement as well as by fair dealing.
Substantiality has not been defined under the Act or the new Bill, terrorising both copyright holders and consumers for fear of malicious copying by competitiors and inadvertent infringement, respectively. However, there have been some judicial pronouncements as to what quantum of copying would be considered substantial or not. As per the courts, the ‘central enquiry’ regarding copying of a work is about the ‘transformative’ nature of the new work and whether it merely supplants the original work instead of adding something new.
As per the Delhi High Court in Chancellor, University of Oxford v. Narendera Publishing House:
“The subsequent work must be different in character; it must not be a mere substitute, in that, it not sufficient that only superficial changes are made, the basic character remaining the same, to be called transformative. This determination, according to the Court is closely knit with the other three factors, and therefore, central to the determination of fair use. If the work is transformative, then it might not matter that the copying is whole or substantial. Again, if it is transformative, it may not act as a market substitute and consequently, will not affect the market share of the prior work.”
The second way in which the new bill will have a clear and discernible impact on consumers is the fact that it now allows electronic copies to be made by consumers under the fair dealing clause, as long as such copying is for non-commercial purposes and not intended for transmission to the general public. This allows people to change formats, and to utilise the book in different ways, for instance through text-to-speech technologies.
Thirdly, the new bill also makes punishable, with imprisonment of upto two years the act of circumventing technological measures that protect copyright as well as removal of 'rights management information' from any work. Under the bill, ‘Rights Management Information’ (xa), means, —
(a) the title or other information identifying the work or performance;
(b) the name of the author or performer;
(c) the name and address of the owner of rights;
(d) terms and conditions regarding the use of the rights; and
(e) any number or code that represents the above information;
but does not include any device or procedure intended to identify the user;
This means that using any software to 'rip' a copy-protected audio or video disc will be a criminal offence. Further, even the fact of packaging a copied dvd, or a locally produced copy of a book into a new package, i.e. one not provided or authorised by the copyright holder, will also be considered a criminal offence.
This is a measure clearly aimed at checking piracy. Does it hinder free speech? Not necessarily. It does not stop one from conveying the idea of what a work contains, it just protects the language and expression. To circumvent this provision, pirates will have to transform from being plagiarists to 'para-phrasers' and to then publish the new work under a new name.
Apart from these changes which will directly affect consumers, the Bill also proposes that both the producer and the director (instead of just the producer as is the case now) of a film will be considered to be joint authors of the film and consequently both will be copyright holders. This is a measure that is not widely known in copyright law and is rather unique and could throw up interesting results with directors now having a proprietary interest in their films.
As consumption of information or aesthetic arrangements have become more common, so has unauthorised copying or piracy of these works. Publishing of books, journals, films and music have become big business and pirates have sought to share in the pie of this massive industry. The interaction between regulation and the regulated (including the stubbornly unregulatable) is a constant process which is going to manifest itself differently at different times. As protective mechanisms became more complicated, so did the mechanisms to bypass such protections.
The law was, for a long time, lagging behind technology. This new bill seems to be an attempt to keep the law up to date with technology and seeks to strike a balance between the interests of authors and consumers. Copyright violations and condonation of such violations are very common in India so it is debatable how much a change in the law can affect the way copyright law functions on the ground. It may well turn out, and in my opinion probably will, that copyright law will keep on functioning in the same way it has ordinarily been, as an arena of contestation between commercial interests, leaving individual consumers (including infringers) to their own devices.
(Sarim Naved is a lawyer currently working with the Alternative Law Forum on Intellectual Property Rights and Media Laws).