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A few weeks ago, NASSCOM had informed its members that the Copyright Office is seeking comments as to whether there was a need for amendments to be carried out to the Copyright Act. Subsequently, Medianama reported that the consultation process seeking opinions on whether to amend the Act seems to only include industry stakeholders. The updated deadline for sending in comments is November 30. It would seem that some law firms also have been invited to this process (for eg, see here). There does not however appear to be any public notice of such consultation process on the website of the Copyright Office. In this two-part post, I shall dissect the implications of this opaque closed-door consultative process adopted by the government in light of larger ramifications of copyright law. I shall then highlight some of the prominent subject areas that need special consideration while discussing any amendments to the Act.
Copyright as a Public Right
As Landes and Posner aptly explain, “[s]triking the correct balance between access and incentives is the central problem in copyright law”. The limited monopoly granted by virtue of copyright law is justified only to ensure access to certain works that would otherwise not be made available to the public due to high costs of expression. Thus, as the welfare theory of copyright law emphasises, it is the broader interests of the society that underpin the essence of copyright law. The focus, therefore, in determining the form of regulatory framework that should govern the regime of copyrights has to be on the benefits accruing to the public at large.. Excessive protection to the rights holders would be against this focus, negatively affecting not just access but also creativity, culture, and freedom of expression, among other aspects.
Closing the Door on a Public Right
The effectively ‘back-door’ consultations currently being carried out by the government are antithetical to the above highlighted aim of copyright law. They are, in effect, also opening a (further) slippery slope towards the privatisation of copyright law. Due to vested interests, private entities are incentivised against any amendments reducing their stronghold on the monopolistic rights that they hold and unreasonably exercise at times. There is instead a possibility of suggestions for further concretising and maximising their existing rights. This, in turn, reduces access to creative works (and related freedoms) and at times access to works already in the public domain, thereby causing a disservice to the purpose of copyright law in the first place.
This could be contrasted with the last major amending exercise to the Copyright Act that was carried out in 2012 (see here for discussions on it on the blog). The same involved an elaborate consultation with varied stakeholders bringing forth their perspectives on the various aspects assessed during the process. Admittedly, the amendments faced several legal challenges, predominantly from large corporate entities whose profit share would have been impacted by the same. Particularly, the amendments concerning statutory licensing of works and grant of ownership and royalty shares to lyricists and composers were hotly contested. The greater emphasis, however, for the purposes of this post has to be made upon the legislative intent behind certain major amendments. The extension of fair dealing exception to all works, broader library exceptions including digital storage, and the introduction of the disability exception, served to increase access to works in the society. At the same time, fairer ownership and compensation model for lyricists and composers sought to incentivise the true creators of new works, as against the earlier regime benefiting merely the producers. It thus served an important exercise furthering the right incentives and greater access. Although there might be certain uncertainties in their interpretation and ineffectiveness of some changes, the same do not take away from their public interest focus, and the deficiencies could be plugged in future amendments.
Implications of Leaving Out the Public
Even if it is (very optimistically) assumed that the industry bodies adopt a neutral stance as against the apprehensions noted above, it is imperative to open doors for the consultation to the public. This is because without multi-stakeholder perspective, large sections of stakeholders will go unheard who are best placed to lay down their interests based on their own practical experiences. This is especially true for those having no representation amongst industry bodies, particularly those with interests contrary to these private entities. Placing it in the context of the 2012 amendments, for instance, without the involvement of civil society and affected persons, the exceptions for the print disabled and digitisation of library works could never have come into being, and without engaging lyricists and composers the changes to their payment structures would never have come into picture given their lesser bargaining power.
There also remain several important considerations that will almost certainly remain unaddressed sans broad public consultation. For instance, the concerns surrounding the appropriation of works of minority communities by dominant cultures that are already suppressed in the mainstream discourse would be further subjugated. Similarly, the everyday consumers and their online activities that are aggressively targeted by rights holders by claiming copyright infringement will remain unaddressed. A recent example in point are the claims that copyright is being used as a tool to silence dissent by WhiteHat Jr and Byju’s. Several such examples exist and these are an affront to free speech in the garb of untenable copyright claims without entailing any responsibility on the part of the claimant. This, however, becomes a non-issue from an industry perspective.
On the same lines, the challenges faced by open access initiatives (see, for instance, here) due to the fallibilities of the copyright law that would not be given particular focus by private entities given their non-importance or negative importance for them. It, thus, requires greater civil society participation to ensure greater access to works. Finally, others like classical and indie artists, and traditional artisans, hold an altogether different position as they often may be largely unaware of their already existing rights under the law, thereby either waiving away or not enforcing a large share of their rights, or simply bulldozed over. In this sense, their experiences bring insights entirely opposite to what the mainstream industry could imagine. Therefore, in light of these considerations, restricted industry consultations at this stage are unacceptable. In any case, if the government does consider bringing forth a draft amendment bill, it is absolutely necessary to conduct wide public consultations regarding the same.
With this context and an emphasis on the need for an open, transparent, and public consultation on amending the Copyright Act, I shall highlight the main themes that such a process should consider in Part II of this post.