The draft copyright policies launched for the public remark in advance this week constitute a high-quality first in Indian copyright policy: an explicit articulation, even though very short, of the needs of the virtual technology. The Department for Promotion of Internal Investment and Trade (DPI) has rightly cited the need “to make certain easy and perfect compliance of the Copyright Act inside the light of technological advancement.” Refreshing as this could sound, it is also a tad too overdue and disappointing, thinking about that the tremendous modification to the Indian Copyright Act, 1957 (“ICA”) changed into made in 2012 not like in the US and the EU in which copyright responses to the “internet threat” were fashioned inside the past due nineties.
The 2012 Amendment introduced a set of intermediary safe harbors for internet carrier companies and user-generated content platforms; however, without a holistic dialogue of what the virtual era realistically required to incentivize content material production. I could characterize this change as an opportunity misplaced in the din of dispensing the revenue pie among content creators and producers, while the real consciousness should be on growing the content material pie in a digital placing.
In this regard, reviews over the past decade reveal the transition of the content economy into a content material plus revel in the financial system. What is genuinely powering Spotify and Netflix nowadays is as many the behavioral and experiential statistics factors on customers because of the unique content material they offer. These content players are not the best working “over the top” of net pipes and legacy content material. Therefore, to propel greater innovation in this domain, limitless content access, though laced with fairness and remunerative fairness amongst numerous stakeholders, is crucial.
This direction raises deeper questions regarding the asset’s shape of copyright exclusions and their relevance in digital putting. Mindful of these dimensions, the proposed rules are looking to take away the judicial basis of a current verdict of the Bombay High Court and beautify the licensing possibilities for content get right of entry to. This is a superb policy pass, and one constant with the legislative choice made via the insertion of Section 31D of the ICA in 2012 — a provision that permits the Intellectual Property Appellate Board (IPAB) to fix fees of royalty and lets in broadcasting enterprises to avail statutory licenses from content proprietors at those pre-constant fees instead of leaving matters to the vagaries of negotiation.
To recognize the recent circulate — substituting the specific reference to radio and television broadcast with the more commonly worded “every mode of broadcast” in Rule 31, the guideline that operationalizes Section 31D — we have to revisit the unmarried choose order of the Bombay High Court in Tips Industries Ltd. V. Wynk Music Ltd. This decision, which came out in April 2019, has arguably upended the commercial enterprise model and scale-up possibilities of on-demand tune streaming systems. The crucial controversy in this industry-defining litigation was simple enough: does Section 31D follow internet broadcasting?
Tips Industries, the proprietor of sound recordings with a wide repertoire of Bollywood tunes, argued that it would now not, while Wynk music, a virtual streaming platform contended that it would. The unmarried judge agreed with the previous, rejecting the latter’s reliance on the plain text of Section 31D and the intervening clarification from the Department of Industrial Policy and Promotion (DPIIT’s predecessor) thru an office memorandum in 2016 that net broadcasting businesses would come inside the purview of this provision.
Two key arguments raised by way of Tips resulted in these final results. The first became closely mired in property rhetoric, branding Section 31D an “expropriation rules” that deprived rights owners of their assets. This becomes fallacious at many stages, most significantly at the extent of drawing a tenuous parallel between copyright and actual/tangible assets. The idea of expropriation derives sustenance from the herbal rights idea, in which it turned into commonplace that someone is entitled to the culmination of their labor, including tangible assets. This underlying foundation for property rights intangible property is a way eliminated from the philosophical foundations of intangible rights, one this is drawn from the utilitarian principle and a careful balancing of belongings and social desires.
Indeed, several cases in India’s intellectual assets jurisprudence provide this trade justification for the protective intangible property instead of a herbal rights justification. Hence, a proper which include copyright, totally created for instrumental motives below statute, should nicely be extinguished or restrained via the equal statute with none fear of it being termed an act of expropriation. Otherwise, even the honest use doctrine and the Delhi High Court verdict on the photocopying of books, predicated in this doctrine, would similarly qualify as similar acts of expropriation.
Unfortunately, the unmarried choose disagreed, keeping that a strict production should be positioned on Section 31D as it changed into expropriation in person. Lost on this characterization, are several social dreams advanced thru this mechanism. Here, it might be useful to forget that the Parliamentary Standing Committee, which deliberated in this provision, saw its utility within a far broader context: one in which the obligatory licensing mechanism below Section 31 had not labored too properly in the case of the radio industry. Apart from years spent in litigation, the radio enterprise did not have a whole lot to expose in terms of ease of obtaining licenses thru the complaint mechanism envisaged under Section 31.
Hence, the need was felt for a simpler mechanism that helped override the transaction costs problem. In this regard, the Committee had mentioned that phase 31D “would paintings in favor of users of copyright works who would then not be difficult to prolong, pricey and monopolistic negotiations by way of the owners of the work.” Behavioral theory scholarship, maximum considerably from Christopher Buccafusco and Christopher Sprigman at the endowment outcomes of intellectual property rights, wherein people generally tend to price items greater quite once they were very own or create them than after they do not, lends additional electricity to this subject in the shape of unwanted holdout consequences. In truth, Spotify’s behind-schedule access to the Indian market became induced partly due to comparable behavior on the part of some dominant tune labels.