India

Wed, 11/02/2009 - 12:53 — Pranesh Prakash

Legal background

Copyright legislation	Copyright Act, 1957 ("ICA") From http://www.copyright.gov.in/CprAct.pdf
Other relevant laws	Copyright Rules, 1958 ("ICR") From http://copyright.gov.in/Documents/CopyrightRules1957.pdf
	Information Technology Act, 2000 ("ITA") From http://www.commonlii.org/in/legis/num_act/ita2000258/
	Constitution of India, 1950 ("Constitution") From http://www.commonlii.org/in/legis/const/2004/index.html
	Civic Chandran v Ammini Amma (1996 PTR 142 (Kerala High Court)) ("Civic Chandran") From http://mail.sarai.net/pipermail/commons-law/2004-September/000824.html
	Penguin Books v India Book Distributors (1984) ("Penguin Books")
	Warner Bros. v. V.G. Santosh (2009) ("Warner Bros.")
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties	Universal Copyright Convention From http://portal.unesco.org/en/ev.php-URL_ID=15241&URL_DO=DO_TOPIC&URL_SECTION=201....
	Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of Their Phonograms From http://www.wipo.int/treaties/en/ip/phonograms/trtdocs_wo023.html
	Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties (and Additional Protocol) From http://portal.unesco.org/en/ev.php-URL_ID=15218&URL_DO=DO_TOPIC&URL_SECTION=201....
	Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations From http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention?	NO In case of literary, dramatic, musical or artistic works (other than a photograph) India provides protection for 60 years from the beginning of the calendar year next following the year in which the author dies (if published within the lifetime of the author). In case of photographs, India provides protection for 50 years from the next calendar year after. For cinematographic works, India provides protection for 60 years from the beginning of the calendar year after publication. For sound recordings (a separate and additional category to the "musical works" described in the Berne Convention, and equivalent to "phonograms" in TRIPS), India provides protection for 60 years from publication - .	ICA ss.22-29, TRIPS
Must a work be fixed in some material form before copyright attaches?	YES There is no single provision requiring this, but by implication, as the definition of literary, dramatic, musical and artistic works; cinematograph films; sound recordings; and computer programmes are all such that fixation is implicit. Also, such a requirement has been read in through case law.	ICA s.2(f), (ffc), (h), (o), (p), (xx)
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power?	YES While not directly subject to a statute of "competition law", there are two provisions in the Copyright Act, ss. 31 and 31A, that provide for compulsory licences in works withheld from the public and in unpublished Indian works, if the Copyright Board so deems, after hearing both sides.	ICA ss.31, 31A
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	LIMITED While the Freedom of Speech and Expression is guaranteed by Article 19(1)(a) of the Indian Constitution, the interface between copyright and the Constitutional right to free speech has not been tested in court, nor are there any authoritative pronouncements on it.	Constitution Arts. 19(1)(a), 19(2)
Does the compilation of a database of non-original material fall outside the scope of copyright?	YES Or rather, a non-original compilation of a database of materials falls outside the scope of copyright, even though a "literary database" (which satisfies the requirement of originality) is within the scope of copyright.	ICA s.2(o)
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	YES There is no such ruling directly on copyright law, but there are cases which state that statutory rights may not be limited by contract, unless the statute indicates otherwise.

Freedoms to access and use

By Home Users	Is there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria?	YES While a "fair use" with a set of balancing criteria is not present in the Act, there is a broad exception covering fair dealing of literary, dramatic, musical or artistic work for the purposes of private use, including research. This exception doesn't cover sound recordings or cinematograph films.	ICA ss.52(1)(a)
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	LIMITED There is a broad exception which states that fair dealing of literary, dramatic, musical or artistic work for the purposes of private use, including research, is not copyright infringement. This doesn't cover sound recordings and cinematograph films. If format shifting is taken to be an adaptation of format, then sound recordings and cinematograph films will be considered as allowed, since the right of adaptation is not a right vested in the copyright holder of sound recordings and cinematograph films. Further, in other areas of law (like tax), the authorities have accepted time-shifting equipment, and in everyday life time/space/format-shifting continues unabated.	ICA s.52(1)(a), 14(d), 14(e)
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	LIMITED There is a broad exception which states that fair dealing of literary, dramatic, musical or artistic work for the purposes of private use, including research, is not copyright infringement. It may be argued that reproduction is included in "fair dealing" as long as it is for purposes such as back-up, etc. This is explicitly stated in case of computer programs. One is allowed to "make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer programme for the purpose for which it was supplied", and to make"copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use".	ICA ss.52(1)(a) and 52(1)(ab)
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	LIMITED While no such broad exception is mentioned in the statute, a number of different provisions exist. The statute includes all of these as fair dealing: "the reading or recitation in public of any reasonable extract from a published literary or dramatic work; the causing of a recording to be heard in public by utilising it, in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or as part of the activities of a club or similar organisation which is not established or conducted for profit; as part of the activities of a club, society or other organisation which is not established or conducted for profit." It doesn't cover cinematograph films. But friends and family may possibly not be considered "public".	ICA ss.52(1)(f) and 52(1)(k)
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	NO
For Education	Is reproduction permitted for the purposes of research or study?	YES If such activity comes within the judicial reading of the phrase "fair dealing in. . .", and that would depend on the facts of the case. Multiple copies would be more difficult to substantiate as fair dealings.	ICA s.52(1)(a), s.52(1)(aa), and s.52(1)(p)
	Does any such research and study provision cover distance and online education?	LIMITED Literary, dramatic, musical or artistic work may be reproduced by a teacher or a pupil in the course of instruction. "Course of instruction" doesn't seem to be limited statutorily. But for cinematograph films and sound recordings, "the audience [must be] limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution".	ICA s.52(1)(a)
	May translations of works be made for educational purposes?	LIMITED Not under the education fair dealings provision, since that only sanctions "reproduction" and not adaptation/translation. But if the translation is for educational or scholarly purposes, an application may be made to the Copyright Board after three years from the date of publication of the source material. If the language is not one in general use in "developed countries", the application may be made in one year from the date of publication.	ICA s.32, s.52(1)(h)
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	LIMITED Only to a limited extent. Literary, dramatic, musical or artistic works (though not sound recordings or cinematograph films) may be reproduced by a teacher or a pupil in the course of instruction. However, publication would come under a separate provision, which requires that the matter to be included in the publication be primarily "non-copyright matter" and "bona fide intended for the use of educational institutions". In such a case, "short passages from published literary or dramatic works, not themselves published for the use of educational institutions" may be use fairly, "provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years".	ICA s.52(1)(g) and 52(1)(h)
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES No provision in the Copyright Act covers this within rights of the copyright holder, so it is presumably allowed.
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	YES This would presumably be covered by the "fair dealing for private use" exception and the temporary back-up copy of software exception.	ICA ss.52(1)(a), 52(1)(aa)
	Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances?	YES This is a very complex issue. While the Information Technology Act has a provision for exemption of intermediary liability under specific circumstances, it excepts that provision from restricting any person from exercising any right conferred under the Copyright Act. That having been said, India's copyright law itself does not impose liability on third parties, unless they infringe wilfully or with reasonable reasons to believe that they are infringing. Given the number of contradictory viewpoints, for the time being it may be presumed that ISPs are protected from liability.	ITA s.79, 81; ICA s.50
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	YES
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	NO
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	LIMITED In the case of literary, artistic and musical works, only if it is for "private use", since adaptation rights belong exclusively to the copyright holder. For sound recordings and cinematograph films, "adaptation" is not one of the rights granted to the rights-holder.	ICA ss.52(1)(a)(i), 14(d), 14(e)
	May computer software be reverse engineered for the purpose of creating interoperable software?	YES The requirements are that: a) the person be legally in possession of such software; b) such information is not otherwise readily available.	ICA ss.52(1)(ab), 52(1)(ac)
	Is the incidental inclusion of a work in other material permitted?	YES Since copyright is defined as meaning certain exclusive rights "in respect of a work or any substantial part thereof", it follows that incidental (non-substantial) inclusion of one work in any other would be permitted. Further, the statute explicitly mentions such a permission in the making of a cinematograph film by allowing "the inclusion in a cinematograph film of any artistic work permanently situate in a public place or any premises to which the public has access; or any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film". However, courts would be reluctant to include incidental inclusion as "infringement" where in the context of the entirety of the impugned work, the "infringed" part is small.	ICA s.14, s.52(1)(u)
	Is there are copyright exception for parody or satire?	YES While there is no exception directly for "parody" or "satire", case law reveals that the fair dealing provision for criticism is read widely by the courts to enable it to encompass parody also.	ICA s.52(1)(a), Civic Chandran
	Do creators who license their work retain the moral right of attribution?	YES	ICA s.57(1)(a)
By the press	Is there a copyright exception for the news of the day?	YES	ICA ss.52(1)(b), 52(1)(m), 52(1)(n)
	May copyright material be reproduced for the purposes of review and criticism?	YES "Fair dealing" for the purposes of review and criticism is permitted. The extent of reproduction allowed is not specified in the statute, thus stress is given by courts to the dealing being "fair".	ICA s.52(1)(a)(ii)
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	YES While speeches in judicial proceedings may be freely reproduced, only fair dealings are allowed of other public speeches.	ICA ss.17(cc), 39, 52(1)(b), 52(1)(n), 52(1)(q)(iv)
	May quotations be used for any purpose?	LIMITED Only for purposes laid down in the extensive fair dealings provision.	ICA s.52
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	LIMITED Only public libraries may do so, and may make up to three copies of such works, only if "such book is not available for sale in India".	ICA s.52(1)(o)
	May libraries copy works for users for the purpose of research or study?	LIMITED While no explicit rule exists for this, this would probably fall under the fair dealings for private-use/research exception.	ICA s.52(1)(a)
	Are libraries allowed to make preservation or archive copies of materials in their collections?	LIMITED The unpublished work must be kept in a library, museum, or other public institution, and only after sixty years from the death of any known author. Libraries may also apply for a compulsory licence of the unpublished work under s.31A.	ICA ss.52(1)(p), 31A
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	YES Technological Protection Measures are not yet sanctified by the Copyright Act, though this is likely to change (see the 'conclusion' section below).	ICA s.52(1)(a)
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	LIMITED If it is for private use, yes, as it would be fair dealing. But generally persons with disabilities are not in a position to copy or adapt a work by themselves. Amendments that have been proposed will (perhaps only to a limited extent, with a requirement of "special formats") change the law in this regard.	ICA s.52(1)(a)
In public affairs	Are laws excluded from copyright?	LIMITED They are under copyright of the Government of India, but they may be freely reproduced, provided some original commentary is added.	ICA s.52(1)(q)(ii)
	Are other governmental works excluded from copyright?	LIMITED No, they are not excluded from copyright, but wide fair dealings rights are granted with respect to some varieties of governmental works.	ICA s.52(1)(q)
	Is there a copyright exception for use of material in judicial proceedings?	YES	ICA s.52(1)(c)
	Are the results of publicly funded research required to be published under an open access license?	NO Some public organizations that fund research may have such requirements, though.

Freedoms to share and transfer

May copyright works be freely offered for commercial rental?	LIMITED While literary, musical, and artistic works may freely be rented out, the copyright owners of cinematographic films and sound recordings have the sole right to commercial rental of the works they own. Copies of a computer program may not be commercially rented either.	ICA ss.14(a)(ii), 14(b)(ii), 14(c)(iii), 14(d)(ii), 14(e)(ii)
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment?	NO A notice has to be given to the Registrar of Copyright in a prescribed manner.	ICA s.21
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain?	NO Sections 31 read with 31A of the Copyright Act allow for compulsory licensing of works that aren't currently in publication, even if they aren't orphan works. Also, the prescribed procedure (under s.31A) must be followed to establish that the copyright owner cannot be found.	ICA ss.31, 31A
Is parallel importation permitted?	YES Importation of "copies made out of India of the work which if made in India would infringe copyright" is not permitted. Thus, by a plain reading of the statute, only infringing copies are prohibited from being imported. Since parallel imports are non-infringing copies, they are perfectly legal. There is no exclusive right given in India to sell copies of a literary, dramatic or artistic work - only one to issue copies (not already in circulation) to the public. That said, a single-judge bench of the Delhi High Court ruled in 1984 that only licensees have the right to import copyrighted material into India. This decision has binding value only in Delhi. Further, a Delhi High Court case in 2009 ruled that importation of a DVD and subsequent rental of that DVD was not permitted by the Act because cinematograph films and sound recordings are not covered by the principle of first sale/exhaustion as per s.14 of the ICA.	ICA ss.51(b)(iv), 53, 14(a)(ii), Penguin Books, and Warner Bros.
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy?	NO There have been some initiatives at the level of various states, including Tamil Nadu, Kerala, and a few others. There are also some FOSS research centres that have been funded by the Central government. Some projects (such as the e-Courts project) also promote the usage of FOSS. However, there is no national-level law/policy on the usage of FOSS. See http://kvtrust.blogspot.com/2007/07/new-chapter-in-judiciary-and.html and http://itforum.kerala.gov.in/site/modules/content/?id=1.
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy?	NO There are some Central government-funded universities and other institutions that are currently using/exploring Open Educational Resources (IGNOU, NCERT, NIOS, etc.) and that have open access recommendations (such as the Council for Scientific and Industrial Research). The University Grants Commission has mandated a policy under which masters and doctorate theses must be published online in an e-repository. However, there is no national law/policy that promotes open access material.
Are there specifications or incentives in national law/policy for the use of open document formats?	LIMITED There is a draft 'National Policy on Open Standards in e-Governance', as well as a draft e-Government Interoperability Framework. But it is unclear when these will come into operation.

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	Rs.200000 (around USD 4000), and a maximum imprisonment of 6 months (for first offence) and 3 years (for second and subsequent offences)	ICA ss.63, 63A
What is the maximum penalty for copyright infringement for a corporation?	Same as above. Rs.200000 (around USD 4000), and a maximum imprisonment of 6 months (for first offence) and 3 years (for second and subsequent offences).	ICA ss.69, 63, 63A
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	YES Fair dealings for the purposes of private use are not treated as copyright infringement. Furthermore, the proviso to s.63(b) allows for a jail term of less than six months and a fine of less than INR 50,000 in cases where the wilful infringement was not for gain in the course of trade or business.	ICA ss.52(1)(a), 63(b) proviso
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright?	YES There is no statutory bar on the creation or distribution circumvention devices. However, this is subject to change depending on the proposed amendments to the copyright law.
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	YES There is no statutory bar on circumvention devices. However, this is subject to change depending on the proposed amendments to the copyright law.
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material?	YES Since there is no bar, it is presumably allowed. However, this is subject to change depending on the proposed amendments to the copyright law.
Are the operations of copyright collectives subject to public oversight?	YES The Central Government has to judge whether the interests of copyright owners is being served by the collectives, and it may cancel the registration of that copyright society after an inquiry. The societies are required to periodically submit financial returns and reports to the Registrar of Copyrights.	ICA ss.33(4), 33(5), 36, 52B, and ICR rules 14A-P
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online?	YES Intermediaries such as ISPs are not formally involved in the enforcement of Indian copyright law.
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO	ICA ss.63, 63A
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	LIMITED While for civil proceedings, damages are on the basis of loss, and in criminal proceedings there is a statutory cap on the fine that may be imposed.	ICA ss.63, 63A
Is there provision to penalise the wrongful allegation of copyright infringement?	YES	ICA s.60

Conclusions

India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies.

While India has not acceded to the WIPOⁱ Copyright Treaty or the WIPO Performers and Phonograms Treaty, yet a set of amendments have been proposed which would bring the Indian law in compliance with both the WCTⁱ and the WPPTⁱ. These amendments would expose India's consumers to the same problems experienced in other jurisdictions which have prohibited the use of circumvention devices to gain access to legally-acquired copyrightⁱ material. These amendments also propose a substantial increase in the copyright term for photographs (from 50 years to life plus 60 years), and a conditional increase of ten years for cinematograph films to 70 years if a special agreement is entered into by the producer with the director.

It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Physically challenged persons have no option but to disobey the law that does not grant them equal access to copyrighted works. Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated softwareⁱ. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works in a suitable format.

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