The draft copyright guidelines launched for the public remark in advance this week constitute a remarkable first in Indian copyright policy: a specific articulation, although very quick, of the needs of the digital era. The Department for Promotion of Internal Investment and Trade (DPI) has rightly stated they want “to make certain easy and perfect compliance of the Copyright Act inside the mild of technological development.” Refreshing as this may sound, it is also a tad too late and disappointing, thinking about that the most substantial modification to the Indian Copyright Act, 1957 (“ICA”) become made in 2012, unlike within the US and the EU wherein copyright responses to the “net risk” have been formed inside the past due to the 90s.
The 2012 Amendment added fixed intermediary secure harbors for net service vendors and user-generated content material platforms; however, without a holistic discussion of what the virtual generation realistically required to incentivize content production. I could characterize this amendment as an opportunity misplaced within the din of distributing the sales pie among content creators and producers. At the same time, the real attention has to be on growing the content pie in a virtual placing.
In this regard, reviews over the past decade or so monitor the transition of the content financial system right into a content material plus enjoy economy. What is truly powering Spotify and Netflix these days is as plenty the behavioral and experiential information factors on customers as the unique content material they provide. These content material gamers are not the best working “over the top” of net pipes and legacy content material. Therefore, to propel more innovation in this domain, unlimited content is vital, even though laced with equity and remunerative fairness among numerous stakeholders. This direction raises deeper questions regarding the belongings structure of copyright exclusions and their relevance in virtual placing.
Mindful of those dimensions, the proposed regulations seek to remove the judicial basis of a current verdict of the Bombay High Court and decorate the licensing opportunities for content access. This is a good policy circulate, and one steady with the legislative desire made through the insertion of Section 31D of the ICA in 2012 — a provision that permits the Intellectual Property Appellate Board (IPAB) to fix rates of royalty and allows broadcasting organizations to avail statutory licenses from content material owners at these pre-fixed fees in preference to leaving topics to the vagaries of negotiation.
To recognize the recent circulate — substituting the explicit reference to radio and television broadcast with the more normally worded “each mode of broadcast” in Rule 31, the rule of thumb that operationalizes Section 31D — we should revisit the unmarried decide the order of the Bombay High Court in Tips Industries Ltd. V. Wynk Music Ltd. This selection, which got here out in April 2019, has arguably upended the enterprise version and scale-up opportunities of on-call for track streaming platforms.
The principal controversy on this enterprise-defining litigation became simple sufficient: does Section 31D observe net broadcasting? Tips Industries, the proprietor of sound recordings with a giant repertoire of Bollywood songs, argued that it’s no longer, while Wynk music, a digital streaming platform, contended that it’d. The single choose agreed with the former, rejecting the latter’s reliance on the apparent textual content of Section 31D and the intervening rationalization from the Department of Industrial Policy and Promotion (DPIIT’s predecessor) via a workplace memorandum in 2016 that net broadcasting agencies could come within the purview of this provision.
Two key arguments raised through Tips resulted in these final results. The first became heavily mired in belongings rhetoric, branding Section 31D an “expropriatory legislation” that deprived rights owners of their property. This becomes wrong at many tiers, most significantly at the extent of drawing a tenuous parallel between copyright and actual/tangible belongings. The concept of expropriation derives sustenance from the natural rights concept. It became every day that a person is entitled to the fruits of their labor, consisting of tangible property.
This underlying foundation for asset rights intangible belongings is far eliminated from the philosophical foundations of intangible rights, one that is drawn from the utilitarian principle and a careful balancing of property and social dreams. Indeed, several instances in India’s highbrow assets jurisprudence provide this change just for protective intangible property in place of a natural rights justification. Hence, a right that includes copyright, completely created for instrumental motives underneath statute, may want to be extinguished or confined by the equal statute without fear of it being termed an act of expropriation. Otherwise, even the honest use doctrine and the Delhi High Court verdict at the photocopying of books, predicated on this doctrine, would similarly qualify as comparable acts of expropriation.
