The Indian Copyright Act laws have been formulated on the basis of several of the International laws, conventions and agreements. Despite this, several differences exist within the scope of each of these laws. Also, the intensity of copyright law enforcement in India is not as effective as in the other countries. For this purpose, a comparison of the copyrights situation in India with the copyrights situations in other countries, will give a better view of the advantages, differences and the shortcomings, in the existing legal system in India. An overview and a subsequent analysis, is being made with respect to: The copyrights situation in India and the copyrights situations in the three countries namely USA, Canada & Australia; The societies involved in protection of copyrights in India and also other countries; The findings from the analysis, has been presented in the form of evaluations of the copyright statutes in other countries and the existing drawbacks in India. Before going into the comparative analysis, a brief overview of the history of copyrights in the world, and subsequent developments in copyrights in the international scenario, will be able to offer a better understanding and perspective of the analysis presented thereof.
V.2. Origin & Growth of Copyrights 1
The concept Copyrights was introduced after the invention of the printing press and the growth of public awareness. It has its origins in Britain in the 17th Century, in order to bring about a transformation to the monopolies of printers.
V.2.1. Licensing Act 1962
The King of England passed the Licensing Act of 1662 which necessitated a register of licensed books and required a copy to be deposited with the Stationers Company, for the benefit of printers.
V.2.2. Statute of Anne
In 1709, ‘The Statute of Anne’ was the first real copyright act, which gave rights for a fixed period, to the authors in the new state of Britain, after which the copyright expired. Ever since, Copyright has grown from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly every modern industry covering items such as sound recordings, films, photographs, software, and architectural works. Internationally, the first ever Copyright convention called the ‘Berne Convention’ was held on the 9 September 1886, at Switzerland, which set out the scope of copyright protection, and is still in force to this day.
V.3. Berne Convention for the Protection of Literary and Artistic Works – 1886 2
‘The Berne Convention for the Protection of Literary and Artistic Works’ is an international agreement about copyright, which was first adopted in Berne, Switzerland in 1886. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation, i.e., an author need not ‘register’ or ‘apply’ for a copyright. As soon as a work written, its author is automatically entitled to all copyrights in the work and to any derivative works, unless and until the author explicitly disclaims them, or until the copyright expires. The Berne Convention also resulted in foreign authors being treated equivalently to domestic authors, in any country signed onto the Convention. Prior to the adoption of the Berne Convention, national copyright laws would only apply for works created within each country. For ex: A work published in Paris by a French national would be covered by copyright in France, but could be copied and sold by anyone in the United Kingdom. Similar to the Paris Convention of 1883 for the protection of Industrial Property, the Berne Convention set up a bureau to handle the administrative tasks. In 1893, these two small bureaus merged and became the United International Bureaus for the Protection of Intellectual Property (BIRPI), situated in Berne. In 1967 BIRPI became WIPO, the World Intellectual Property Organization, which, since 1974, is an organization within the United Nations.
V.3.1. Berne Convention was revised in the following years:
1896 (Paris), 1908 (Berlin), 1914 (Berne), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm), 1971 (Paris), Amended in 1979 (Paris)
V.3.2. Countries which became parties to the Berne Convention
United Kingdom signed the Berne Convention in 1887 but did not implement it until 100 years later, when the ‘Copyright, Designs and Patents Act of 1988’ was passed. The United States refused initially to become a party to the Convention. However, on March 1, 1989, the US ‘Berne Convention Implementation Act of 1988’ came into force. Since almost all nations are members of the World Trade Organization, the Trade Related Intellectual Property Rights (TRIPS) Agreement requires non-members to accept the conditions of the Berne Convention.
As of April 2007, 163 countries, including India, are parties to the Berne Convention.
The following requirements were mentioned under the Berne Convention: All works except photographic and cinematographic shall be copyrighted for at least 50 years after the author’s death (but the concerned parties are free to provide longer terms). Photography – a minimum term of 25 years from the year the photograph was created Cinematography – a minimum is 50 years after first showing, or 50 years after creation if it hasn’t been shown within 50 years after the creation. Countries under the older revisions of the treaty may choose to provide their own protection terms, and certain types of works (such as phonorecords and motion pictures) may be provided shorter terms. Although the Berne Convention states that the copyright law of the country where copyright is claimed shall be applied, article 7.8 states that ‘unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work i.e. an author is normally not entitled a longer copyright abroad than at home, even if the laws abroad give a longer term. This is known as ‘the rule of the shorter term’. It can be stated that the Berne convention has inspired several countries like India to frame their own legislations on Intellectual property rights protection and also enter into a global agreement such as TRIPS.
V.4. World Intellectual Property Organization (WIPO) 3
The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland. The members of the Berne Union are required to recognize the copyright of works of authors from other member countries, in the same way it recognizes the copyright of its own nationals. For instance, French copyright law applies to anything published or performed in France, regardless of where it was originally created. A system of equal treatment was established, which internationalized copyright amongst its members. The agreement also required member states to provide strong minimum standards for copyright law. Aspects related to Performers, which were not included in Berne Convention, were covered under the Rome Convention, which can be viewed as follows.
V.5. Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations – 1961 4
The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations was accepted by members of the World Intellectual Property Organization on October 26, 1961. The agreement extended copyright protection for the first time from the author of a work to the creators and owners of particular, physical manifestations of intellectual property, such as audiocassettes or DVDs. The Convention secures protection in performances of performers, phonograms of producers of phonograms and broadcasts of broadcasting organizations, and the provisions are:
Actors, singers, musicians, dancers and other persons who perform literary or artistic works are protected against certain acts they have not consented to. Such acts are: the broadcasting and the communication to the public of their live performance; the fixation of their live performance; the reproduction of such a fixation if the original fixation was made without their consent or if the reproduction is made for purposes different from those for which they gave their consent.
V.5.2. Producers of phonograms
Producers of phonograms enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms. Phonograms are defined in the Rome Convention as meaning any exclusively aural fixation of sounds of a performance or of other sounds. When a phonogram published for commercial purposes gives rise to secondary uses (such as broadcasting or communication to the public in any form), a single equitable remuneration must be paid by the user to the performers, or to the producers of phonograms, or to both; contracting States are free, however, not to apply this rule or to limit its application.
V.5.3. Broadcasting organizations
Broadcasting organizations enjoy the right to authorize or prohibit certain acts, namely: the rebroadcast of their broadcasts; the fixation of their broadcasts; the reproduction of such fixations; the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee. The Rome Convention allows exceptions in national laws to the above-mentioned rights as regards private use, use of short excerpts in connection with the reporting of current events, ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts, use solely for the purpose of teaching or scientific research and in any other cases. Also, once a performer has consented to the incorporation of his performance in a visual or audiovisual fixation, the provisions on performers’ rights have no further application. Protection must last at least until the end of a period of 20 years computed from the end of the year in which: (a) The fixation was made, for phonograms and for performances; (b) The performance took place, for performances not incorporated in phonograms;A (c) The broadcast took place, for broadcasts. However, national laws ever more frequently provide for a 50-year term of protection, at least for phonograms and for performances. WIPO is responsible, jointly with the ILO and UNESCO, for the administration of the Rome Convention. These three organizations constitute the Secretariat of the Intergovernmental Committee set up under the Convention and consisting of the representatives of 12 Contracting States. The Convention does not provide for the institution of a Union or a budget. It establishes an Intergovernmental Committee composed of Contracting States, which considers questions concerning the Convention. This Convention is open to all states that are party to the Berne Convention of 1886 or to the Universal Copyright Convention. Instruments of ratification or accession must be deposited with the Secretary-General of the United Nations. States may make reservations with regard to the application of certain provisions.
V.6. WTO Agreement on TRIPS 5
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of Intellectual Property regulation. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. The TRIPS agreement is an attempt to narrow the gaps in the way these rights are protected around the world, and to bring them under common international rules. It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. When there are trade disputes over intellectual property rights, the WTO dispute settlement system is now available. Similar to the GATT & GATS, non-discrimination was described as: (a) National treatment i.e., treating one’s own nationals and foreigners equally; (b) Most-favored-nation treatment i.e., equal treatment for nationals of all trading partners in the WTO); (c) Intellectual property protection should contribute to technical innovation and the transfer of technology. The second part of the TRIPS agreement looks at different kinds of intellectual property rights and how to protect them. The purpose is to ensure that adequate standards of protection exist in all member countries. Areas not covered under the Paris Convention and the Berne Convention was covered under the TRIPS agreement. It is observed that most of the items listed in the GATT are highly relevant to performing artists.
Provisions under the TRIPS agreement
Copyright terms must extend to 50 years after the death of the author, although films and photographs are only required to have 50 and 25 year terms, respectively.(Art.A 7(2),(4)) Copyright must be granted automatically, and not based upon any “formality”, such as registrations or systems of renewal. Computer programs must be regarded as “literary works” under copyright law and receive the same terms of protection. National exceptions to copyright (such as “fair use” in the United States) are constrained by the Berne three-step test Patents must be granted in all “fields of technology,” although exceptions for certain public interests are allowed (Art.A 27.2 and 27.3) and must be enforceable for at least 20 years (Art 33). Exceptions to the exclusive rights must be limited, provided that a normal exploitation of the work (Art.A 13) and normal exploitation of the patent (ArtA 30) is not in conflict. No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed. Legitimate interests of third parties have to be taken into account by patent rights (ArtA 30).
V.7. Relevance of International conventions & treaties to India
The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights.A India is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995.A Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions. Two new treaties, collectively termed as Internet Treaties, were negotiated in 1996 under the auspices of the World Intellectual Property Organization (WIPO).A These treaties are called the ‘WIPO Copyrights Treaty (WCT)’ and the ‘WIPO Performances and Phonograms Treaty (WPPT)’.A These treaties were negotiated essentially to provide for protection of the rights of copyright holders, performers and producers of phonograms in the Internet and digital era.A India is not a member of these treaties as yet. The onus of the execution of the Copyright Act in India falls on the Copyright office. The issue of licenses and collecting royalties is taken care of by the registered copyright societies. In this respect, an overview of the registered copyright societies in India will give a clearer picture of the actual Copyrights in India.
V.8. Overview of Registered Copyright Societies in India 6
A copyright society is a registered collective administration society. Such a society is formed by copyright owners. The minimum membership required for registration of a society is seven. Ordinarily, only one society is registered to do business in respect of the same class of work. A copyright society can issue or grant licenses in respect of any work in which copyright subsists or in respect of any other right given by the Copyright Act. There are five well known copyright societies in India, which include:
V.8.1. IPRS 7
The Indian Performing Right Society Limited came into existence on 23rd August 1969. The IPRS is a representative body of Owners of Music, viz. The Composers, Lyricists (or Authors) and the Publishers of Music and is also the sole authorized body to issue Licenses, permitting usage of Music within India by any person. The society is a non-profit making organization and is a Company Limited by Guarantee and Registered under the Companies Act, 1956. It is also registered under Section 33 of the Copyright Act, 1957 as a Copyright Society in India, to issue licenses for usage of music. IPRS is presently the only national copyright society in the country which is permitted to commence and carry on copyright business in musical works and any words or any action intended to be sung, spoken or performed with the music. It has received the certificate of registration from the registrar of copyrights on 27th of March, 1996. IPRS collects royalties and distribute this amongst copyright owners, after deducting its administrative costs.
Members of IPRS
As according to the available information on membership, Dr.M.Balamuralikrishna, Sri.K.J.Yesudas, Pt.Ramnarayan, Smt.Shubha Mudgal, Pt.Hariprasad Chaurasia, Sri.L.Krishnan, are the only few classical musicians who are registered as members of IPRS. No classical musician or classical dancer, arts organization, arts institution or other audio broadcasting company from Hyderabad & Secunderabad has taken membership with IPRS.
V.8.2. PPL 8
The Indian Phonographic Industry (IPI), the Association of Phonogram Producers, was established in 1936, and it was Instrumental in finalizing the broadcasting license arrangement in India. Subsequently, IPI members decided to form a specialized body to administer their Public Performance and broadcasting rights, and PPL came into being in 1941. The IPI changed its name to The Indian Music Industry (IMI) in 1994. PPL has been functioning as the Performing Rights Society for Sound Recordings. After the recent amendments in copyright law, PPL was registered with the registrar of copyrights in 1996, as a copyright society, permitted to carry on business in sound recordings. The functions of PPL include – (a) Issue of Licenses for usage of sound recordings; (b) Music reporting which requires the licensees to provide data on their works; (c) Documentation of members’ sound recordings; and (d) Distribution of royalties to members.
Members of PPL
The only member of PPL from Hyderabad: Aditya Music (India) Pvt. Ltd. No classical musician or classical dancer, arts organization, arts institution or other audio broadcasting company from Hyderabad & Secunderabad has taken membership PPL, nor are any music or dance related documents registered with the society.
V.8.3. IMI 9
Indian Music Industry was established on 28th Feb 1936 as the Indian Phonographic Industry (IPI), and is second oldest music companies’ associations in the world engaged in defending, preserving and developing the rights of phonogram producers, and actively promoting and encouraging advancement of creativity and culture, through sound recordings. Rechristened Indian Music Industry (IMI) in 1994, it is a non-commercial and not for profit making organization affiliated to the International Federation of Phonographic Industry (IFPI) and is registered under the West Bengal Societies Registration Act. IMI members includes major record companies in India, which represent over 75% of the output in legitimate recordings and a wide range of musical repertoire. In spite of the fact that IMI has been instrumental in conducting hundreds of anti-piracy raids spanning the length and breadth of the country, the Indian music industry has lost of over Rs.1800 crores in the past three years. IMI plays an increasingly vital role in activities such as Anti-piracy Campaign, Promoting copyright law and its enforcement, Supporting International Copyright conventions, promoting new technologies mainly for assisting right owners, Liaising with the Government in industry matters, and helping public awareness about copyright.
Members of IMI
Aditya Music (India) Pvt Ltd Hyderabad & Sohan Music Secunderabad are the only two members from Hyderabad, for this organization. Dr.K.J.Yesudas is the only classical musician cum movie singer whose company is a member of this organization. No audio company or broadcasting organization, or individuals from Hyderabad & Secunderabad are members of IMI. Since IMI is a movie industry based copyright society, there are no members from the classical music and classical dance fraternity.
V.8.4. IRRO 10
The Indian Reprographic Rights Organization (IRRO) is a non-profit making organization. Its members are Indian and International authors and publishers. The IRRO was incorporated in the year of 2000 with the active participation of ‘Authors Guilds of India’ and ‘The Federation of Indian Publishers’. The society has been registered by the Ministry of Human Resources Development, Government of India, vide Registration No. CS/04/reprographic rights in the field of literary works/2002 dated 28th June 2002, as a Copyright Society under sub-section (3) of section 33 of the Copyright Act, 1957. IRRO is exclusively permitted to commence and carry on the Copyright business of “reprographic rights in the field of literary works” in India. IRRO is a member of the International Federation Reprographic Rights Organization (IFRRO). IRRO is the sole licensing authority in India, to issue licenses to users of copyrighted literary works of its members, and collect the royalties on their behalf, and distribute them. The society represents numerous authors and publishers of India, as well as foreign authors and publishers.
Members of IRRO
There is no membership information given for this organization, hence it needs to be verified, whether any of the authors or publishers in India, who are into publishing literary works for classical music and classical dance, have either registered or taken the support of this organization in copyright protection, so far. There are no registered members of IRRO, amongst those who have undertaken literary works in classic music and classical dance, in Hyderabad & Secunderabad.
V.8.5. SIMCA 11
South India Music Companies’ Association was set up in 1996, as an Association of Music Producers to look after the common problems faced by the Industry in South India. The membership of the association included those who belonged to IMI and/or PPL. SIMCA undertook some spectacular work in anti-piracy action and conducted raids all over the four States. It also represented to the State Governments regarding the need to contain piracy. In its limited way the association played a leading role in protecting the interests of the Producers of Music in South India. Activities of SIMCA include: Anti-Piracy, Regulating for the new economy, Radio, Ringtones, Digital Downloads, and Acting as a clearing house for music industry.
Members of SIMCA
Madhura Entertainment and Twenty Four Frames Factory Pvt. Ltd are the only two companies from Hyderabad, who are members of SIMCA. Since this is a copyright society for the purpose of the activities of the Film Music Industry in India, there are no classical musicians or dancers associated with this society. Despite such systematic regulations and legislations, the copyrights situation in India has not gained much momentum as compared to other countries. Though the provisions appear to be are similar, it is observed that the enforcement of Copyright laws is much more stringent in other countries as compared to India. An overview of the Copyrights situation in other countries, will give a clearer view.
V.9. Copyrights situations in other countries 12
For the purpose of comparison and analysis, an overview of the legal provisions with respect to copyrights protection in three different countries has been observed. The copyrights situation in USA, Canada & Australia can be viewed as under:
V.10. Copyrights in the USA and Canada 13
It is a principle of American law that an author of a work may reap the fruits of his or her intellectual creativity for a limited period of time. Copyright is a form of protection provided by the laws of the United States for original works of authorship, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. ‘Copyright’ literally means the right to copy. The term has come to mean that body of exclusive rights granted by law to authors for protection of their work. The owner of copyright has the exclusive right: to reproduce, distribute, and, in the case of certain works, publicly perform or display the work; to prepare derivative works; in the case of sound recordings, to perform the work publicly by means of a digital audio transmission; or to license others to engage in the same acts under specific terms and conditions. Copyright protection does not extend to any idea, procedure, process, slogan, principle, or discovery. Copyright requires a certain amount of intellectual labor; consequently, short dance phrases are not copyrightable, much the same as individual words or short verbal phrases are not. Ideas in someone’s head is not copyrightable, neither are improvised speeches or performances that have not been written down or recorded. Such works are automatically protected by copyright the moment they are fixed in a ‘tangible form of expression’ – even if they are never registered with the U.S. Copyright Office. The US Copyright Law provides for the acquisition of copyright for Dramatic works, including any accompanying music and Choreographic works and Pantomimes. For dance works, copyright protection is available for pieces captured on film or videotape, or through Notation (e.g., Labanotation or Benesh). A live performance is not copyrightable unless it is somehow recorded and, thereby, made tangible. Copyright of a videotape or film covers all original elements of the picture, including any original script or music, and any audio and visual elements that are subject to copyright. A set or costume design is not copyrightable, unless it constitutes a pictorial, graphic, or sculptural work. A performed but unfixed choreography will not be entitled to copyright protection under the Act. Section 2 of the Canadian Copyright Act specifically provides that ‘dramatic work’ includes choreographic work, and the choreographic work can be described as the scenic arrangement or acting form of which is fixed in writing or otherwise”. According to the Berne Convention, such crystallization or reduction or the choreography shall be in writing or otherwise. Canadian law also introduced the ‘Private Copying Levies’ in 1997 as part of its copyright provision. A private copying levy (also known as blank media tax or levy) is a government-mandated scheme in which a special tax or levy which is additional to any general sales tax, is charged on purchases of recordable media. Such taxes are in place in various countries and the income is typically allocated to the developers of ‘content’. USA relaxes this rule of private copying levy, with respect to home audio recording. All countries in the European Union (EU), except Luxemburg, are all implementing the private copying levy system, with respective rates applicable in each country.
V.11. Concept of ‘COPYLEFT’ in USA & other countries 14
Copyleft is a form of licensing and can be used to maintain copyright conditions for works such as computer software, documents, music and art. In general, copyright law is used by an author to prohibit others from reproducing, adapting, or distributing copies of the author’s work. On the other hand, giving permission to others to reproduce, adapt or distribute it is called Copyleft. Copyleft licenses are a novel use of existing copyright law to ensure a work remains freely available.
V.11.1. Application of Copyleft
Freedom to use the work. Freedom to study the work Freedom to copy and share the work with others Freedom to modify the work and freedom to distribute modified and derivative works. The GNU General Public License was the first Copyleft license to see extensive use. Creative Commons, a non-profit organization founded by Lawrence Lessig, provides a similar license called Share-Alike.
V.12. CREATIVE COMMONS – Copyleft Society in USA, Canada & other countries 15
Creative Commons (CC) is a nonprofit organization that issues licenses to any copyrighted work, in such a way that the works is available to the public for free and legal sharing, use, repurposing, and remixing. CC licenses enable people to easily change their copyright terms from the default of ‘all rights reserved’ to ‘some rights reserved’. The types of licenses issued by CC include: Some Rights Reserved Attribution Attribution Share-Alike Attribution No Derivatives Attribution Non-Commercial Attribution Non-Commercial No Derivatives
V.13. Copyrights Situation in Australia 16
Australian law recognizes that individuals have the right to protect the moral and economic interests arising from their creative works. In Australia, copyright law is governed by the Copyright Act 1968 (the Act), and in court decisions that have interpreted the provisions of the Act. The Act is amended from time to time to keep the law up to date.
V.13.1. Requirements for protection
In Australia there is no requirement to register to protect copyright works. Copyright protection is free and automatic, i.e., it does not depend on publication, a copyright notice, or any other procedure. Copyright material is protected from the time it is first written down or recorded in some way, provided it is the result of the creator’s skill and effort and is not merely copied from another work. The right to reproduce or copy a work is controlled by the copyright owner for the following types of material: Literary, dramatic, musical and artistic works, cinematograph films, sound recordings, television and radio broadcasts, published editions.
V.13.2. Duration of copyright
Depending on the type of material the length of protection varies. In most cases, copyright lasts from the time of creation for the life of the creator plus 70 years. After that time, the material enters what is known as the ‘public domain’ where it can be freely used without permission.
V.13.3. Exclusive rights of copyright owners
Owners of copyright have exclusive rights to deal with their works in certain ways. Anyone who wants to use their works in these ways will need the owner’s permission, although some exceptions to this rule apply. There are a number of exclusive rights depending on the genre of literary or artistic endeavor. For example copyright owners of literary, artistic, dramatic and musical works control the right to copy or reproduce, as well as the right to publish, perform in public, communicate to the public and adapt their works.
V.13.4. Assigning and licensing rights
Copyright owners may assign or license these rights to others. Assignment of copyright and licenses can include a number of limitations and conditions. These can include limitations on the type of use that can be made of the work, the period of time for which a license applies and requirements for payment.
V.14. APRA & AMCOS – Copyright societies in AUSTRALIA 17
APRA – AMCOS’ joint objective is to ensure composers/songwriters and publishers are rewarded whenever, and wherever, their musical works are played, performed or reproduced and help Australian & New Zealand music consumers get access to the world’s musical repertoire. The Australasian Performing Right Association Limited (APRA) was established in 1926 and now administers the performing and communication rights of over 60,000 composers, songwriters and music publisher members in Australia and New Zealand. Public performances of music include music used in pubs, clubs, fitness centres, shops, cinemas, festivals, whether performed live, on CDs or played on the radio or television. Communication of music covers music used for music on hold, music accessed over the internet or used by television or radio broadcasters. The Australasian Mechanical Copyright Owners Society (AMCOS) collects and distributes mechanical royalties for the reproduction of its members’ musical works for many different purposes. These include the manufacture of CDs, music videos and DVDs, the sale of mobile phone ring-tones and digital downloads the use of production music and the making of radio and television programs. Since 1997, APRA has managed the day-to-day operations of the AMCOS business.
V.15. Digital rights management (DRM) 18
Digital technology that inhibits uses of digital content not desired or intended by the content provider is called DRM. It is a systematic approach to copyright protection for digital media. The purpose of DRM is to prevent unauthorized redistribution of digital media and restrict the ways consumers can copy content they’ve purchased. DRM products were developed in response to the rapid increase in online piracy of commercially marketed material. An embedded code prevents copying, by specifying a time period of access or by limiting the type of devices on which the content can be accessed. Though the digital content is protected by copyright laws, catching the law-breakers is not easy. The use of DRM may also be a barrier to future historians, since technologies designed to permit data to be read only on particular machines with particular keys for fixed time periods, might severely affect data recovery. DRM received legal backing from the WIPO International Treaty of 1996 and the Digital Millennium Copyright Act of 1998.
V.15.1. DRM Users (Copyrights in Music)
Apple I-Tunes, Napster, Wal-Mart, Sony, Kazaa, MSN Music, Yahoo Music, Microsoft Zune etc.
V.15.2. Shortcomings of DRM
DRM faces several shortcomings such as: Ability to Rip CDs into DRM-Free Files Duplicating DRM files using Analog loophole Infringement by avoiding general computing platforms Failure due to improperly encrypted hardware Easy removal of Watermarks & growth of Mass piracy by bit-perfect copying.
V.16. Copyrights on Religious Works & Ancient Texts 19
For copyright on religious works it is difficult to establish as to who could be the real rights’ holder. Under the provisions of the Berne convention, copyright is granted to the author on creation of the work. Several religions claim that their works were authored by their god or gods. For instance, many editions of the Bible are under copyright due to their unique edition or translation, though the Bible itself is believed to be the ‘Word of God’.
V.17. Open Source Music 20
The recent concept of Open Source Music was introduced to provide access to public domain sheet music to musicians and music lovers.A Any music or work of art, which is not under the purview of copyright, comes to be known as ‘art in the public domain’. When such works are made freely available on the internet or other sources, they are known as open source artistic works. Open source music lists the works and recordings as also audio mp3s of all those artists, composers and music producers who want their works to be made known to the world, without being hindered by copyright protection. This concept has been propagated by people who were of the opinion that copyrights should not exist in art and music. Open source issues licenses which allow the users to freely share or redistribute any original works or derived works. All these aspects give rise to the following analysis of the copyrights situation in India, as compared to the copyrights situations in other countries such as USA, Canada, and Australia:
V.18. Comparison of Copyrights Situations in India & Abroad
Copyright law enforcement is very strict in USA, Canada & Australia. The government takes special measures to ensure that these statues are very effective implemented. Whereas in India, though the strict written laws and rules have been stated effectively, the actual copyright protection has not been accorded significant importance in the practical usage. There are very specific rules for choreographic works, dance works, pantomimes and other such works in the US & Canadian copyright law. The words ‘Dance Work’ and ‘Pantomime’ are not listed in the Copyright Act 1957 of India. There is a necessity to include these definitions and practical applications and / or modify and amend any of the existing definitions in order to be able to protect the intellectual property and choreographic works of dance artists and dance teachers. The copyright enforcement in India is far from the standards established in the actual law. This is because the legal enforcement forces such as copyright agencies and the police are themselves not completely informed about the legalities involved with copyright protection. Even otherwise, the awareness level is not comprehensive and exhaustive with respect to all the aspects related to copyrights and related rights. Hence, whenever any copyrights issues arise, the enforcement agencies or officials are not able to tackle them effectively. Whereas, in USA & other countries, there are several special and active copyright enforcement cells that are always vigilant about infringers, violators and piracies. There are few copyright societies in India, which are involved in the protection of copyrights. Though these societies are working very effectively to bring in copyright enforcement, there is not much co-operation from the general public. The reasons for these could be that there is no awareness among the public as to why copyrights are required, and even if so, the main question that arises in India, is that what could be the benefit of such copyright protection to the common man. Whereas in the other countries, the government as well as private agencies make it a specific point to impart copyright education, right from the secondary school level. Though the copyright societies and enforcement cells available in India, the actual execution of the law is very slow and these cells are not as active as the enforcement cells in USA & other countries. As a result, the enforcement of copyrights and other rights are much stronger in those countries as compared to India. Concepts like DRM, Open access, Copyleft, Open source, Share-Alike etc. are not yet recognized in most regions in India, and hence may not hold much relevance unless awareness is created about the basic aspects of copyrights to everyone. Only when there is awareness of the basic concepts, there is scope for the general public to be updated on the latest trends in intellectual property protection. On the other hand, these concepts are already very much in practice and administration in other countries. In a country like India, where rampant piracy is in vogue, concepts like Copyleft, Share-Alike, Open source etc., may not be of much significance because such aspects would only worsen the problem of infringement and piracy, and also give open access to further malpractices in copyright infringement. Except India and a few others, several countries are following the system of Private Copying Levy. Through this method, it can be identified as to how many blank audio/video media is being purchased, and by whom and if so, for what purpose. Such a system does not exist in India. Problems like high population, unemployment, recession, and poverty are all causes for high rate of copyright piracy and infringement in India. Illegal copying and sharing provides quick and easy income to several people in the country. Unless the country is able to tackle these issues, the concept of copyrights may not hold much relevance. On the other hand, copyright protection has accorded very good income, growth and encouragement to the creators of original artistic works in other countries and several new measures are being introduced every now and then, at international levels, to help the growth of copyright awareness. Compared to other countries, there are no special provisions specified in the existing Copyright Act, with respect to religious and ancient works. Hence, it remains to be established as to what could be the status in India such as ancient scriptures, religious texts, translations, adaptations etc. The creators and owners of intellectual properties are themselves not aware of the legal procedures related to protection of their works in India. Whereas, every person involved in the creation of intellectual properties in other countries are imparted at least bare minimum awareness of copyright protection, due to the educational system existing in those countries.
The enforcement of Copyright laws is much more stringent in USA as compared to India. Uses of services like youtube, google videos etc is highly restricted. There is no download facility available in such public video forums, in USA. In India, such downloads can be easily attempted, by using certain types of software. Even the usage of downloaded videos or buffered videos is not allowed in many instances in USA, unless and until proper referrals are provided by the user. Pirated and hacking softwares are easily available in India, which is proving to be an added tool for the copyright infringers and offenders. In USA and other countries, one cannot easily find websites hosting illegal music or downloads, because such things are immediately brought to the notice of the federal authorities. Copyright violation is considered to be a very serious offence in this country. As a consequence, it is also observed that there is a bit of reticence amongst artists and the audience, with respect to the progress and growth of the music industry in USA. Hence, the need for relaxation of certain rules has been identified by the lawmakers in USA. Forums such as Creative Commons have been instituted in order to make the copyright laws more people friendly. This is because there are heavy fluctuations in the already recession prone economy, when it comes to the music and art industries. These forums are issuing special licenses where works of other people can be used based on certain clauses which have been specifically included into such licenses. Copyright is a major issue in a country like USA, whereas in India, the awareness level is catching up only. Whether it would lead to a positive or negative impact on the economy and the overall music, dance and artistic communities, cannot be stated as of now.