The key assumption that sustains copyright law is that authors have a natural right over their works of intellectual labour, and copyright protection is required to provide an incentive to create intellectual works while maintaining a balance by a limited term of protection and the option of fair use. However, with the increasing usage of online medium, copyright is facing its greatest challenge. Determining the border between private and public usage, issue of distribution and reproduction and enforcement of liability are the key challenges of copyrightable works in cyberspace.
Currently, Indian copyright laws are under scrutiny with several amendments being proposed including, mandating users to pay a royalty to the creator every time his work is used, doing away with the ISP intermediary liability, and re-interpreting the doctrine of fair use. Concurrent to this process of change, protest over the Google Book Search project (“GBS”) have erupted that has raised serious concern over copyright issues in India as it violates the copyrights of Indian authors and publishers by scanning their books, creating an electronic database and displaying them without their permission. At this juncture, this bulletin attempts to examine the scope of copyright violation by GBS under Indian laws, and explore if the rights of the affected Indian parties can be safeguarded under the existing copyright regulations or should be addressed in the enduring amendment.
1.0 GBS – Settlement & controversy
Google initiated the ambitious GBS to digitize all books around the world and create a mammoth online library that could be scanned and searched for from anywhere across the globe. Since 2004, Google has scanned over 7 million books now accessible at Google Books.1 However, GBS received its first jolt when in 2005, Authors Guild, the Association of American Publishers, and a handful of authors and publishers filed a class action lawsuit2 against GBS claiming that Google had violated their copyrights which Google denied. The meddling of the court led to a preliminary settlement in November 2008 that was binding on almost all authors and publishers. But soon objections arose in countries like France and Germany as well as the US Department of Justice as the scope of the Settlement stated that any book that is registered with US Copyright Act and is published in the US, Canada, UK, or Australia comes within the ambit of settlement. Therefore, the court asked Google to file a revised settlement which the court approved on November 19, 2009, as Google Book Settlement (“Settlement”), which among others specifically mentioned that the authors will have to expressly “opt” out, if they do not wish their books to be part of Google’s online library. This stirred a controversy as the Settlement was a blatant violation of copyright laws that permits Google to scan and sell any book online, while shifting the onus of backing out of the settlement on copyright owners through the “opt out” clause. Now, additional concerns are also raised against Settlement3 regarding the monopoly on digital books that Google will have, Google’s claims regarding the unclaimed works which are misleading, the lack of consumer privacy in GBS, and the reduced access of books for academic libraries and independent researchers.
2.0 Settlement unsettling for Indian copyright holders
Settlement is also likely to bind Indian authors qua their copyrights in the US, UK, Canada and Australia. Also, a book published in the US or any other country which is signatory to the Bern Convention can own a copyright under the US law. This has compelled the Indian Reprographic Rights Organization (“IRRO”) and Federation of Indian Publishers (“FIP”), which represents Indian publishers, to file objections4 with the New York court against GBS “blatant violation” of Indian and international copyright laws and allege that what Google has done is contrary to the principles of fundamental fairness and natural justice, as the settlement had been arrived at without adequate notice to affected parties. IRRO is also expected to sue Google in India.
Typically, in India books are published in numerous regional languages and most of the authors/publishers are not aware of the Settlement which was published in few English dailies. Hence, the vernacular copyright holders may not be aware that their copyright has either been violated or is under a threat of violation. This is, in particular, a violation of the principles of “natural justice”, as the rights of the authors will be violated without their knowledge. Moreover, the Settlement neither authorizes Google to make certain uses of these books nor does it prohibit Google from doing so.
Settlement is in direct violation of the Indian Copyright Act, 1957 (“Act”) which specifically provides that online version is an act of “reproduction” by scanning of books and reproduction of any work without the consent of the copyright owner is prohibited with the exception of “fair use”. After publication of a work in which copyright subsists, in determining the question of whether there has been a fair use, the court verifies whether there has been any substantial taking, and whether there has been any use that might amount to plagiarism. Fair use depends upon the circumstances of each particular case, the nature, & object of the selection made, the quantity & value of the materials used, and the degree in which the use may prejudice the sale, diminish the profit, or supersede the objects of the original work. If the copies diminish the value of the copyright work or appropriates the labours of the author to a substantial extent, it defines the limits of fair use.
Certainly, GBS cannot be an instance of fair use even under the existing copyright law of India. Alternatively, copyright issues are manifested in terms of licenses in digital world which is an agreement between the publisher and the user wherein the publisher transfers the non-exclusive and non transferable right to use materials to the user or licensee. In fact, licenses are used by the publishers as legal method for controlling the use of their e- resources. Per Settlement, unless Indian publishers or authors specifically opt out, Google will not even consider taking any license for copyrightable works.
The arguments made in favor of GBS suggests that Google provides mere query related snippets and not the entire content of the book which are unlikely to harm the sales of the books and instead will lead to increased sales to the benefit of the publishers.5 However, in absence of any fair use or the requisite license to display, these claims are hogwash. Google can definitely face legal issues over GBS also in India. It will be crucial for IRRO and FIP to sue Google in India apart from successfully contesting the validity of Settlement, especially the unfair “opt out” provision in US.
3.0 Settling unattended issues in the proposed amendment Act
In light of Settlement controversy, it is pertinent that the issues related to infringement, fair use, and online reproduction of copyright work is given due consideration in the ongoing amendment process. Though several amendments6 were proposed in the Act in 2006,7 so far no change has been introduced.
The first major change proposed is that any circumvention of effective technological measures i.e., unauthorized accessing or copying the work by breaking the password, which is applied for the purpose of protection of rights is liable with 2 years’ punishment. However, some exceptions have been allowed to suit the interest of students, researchers, and learners in the technological sector which conforms to the Copyright Treaty (“WCT”) and Performances and Phonograms Treaty (“WPPT”) of World Intellectual Property Organization (“WIPO”).
Secondly, the increased usage of third party data has enhanced the relevance of liability as provided under the Information Technology Act (“IT Act”). It is insisted that “intermediary” exemption as under the IT Act be extended to copyright infringements as well. By virtue of the 2008 amendment in the IT Act, an ISP can claim immunity from
liability or criminal liability under the Indian Penal Code.8 Any ISP or intermediary can be exempt from liability, provided such intermediary does not initiate the transmission, select the receiver of the transmission, and select or modify the information contained in the transmission.9 Interestingly, section 81 of the IT Act provides that “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any rights conferred under the Copyright Act, 1957 or the Patents Act, 1970.” Other forms of IP infringement have been excluded, therefore, in so far as these infringements are concerned, an intermediary can claim an exemption under section 79, but not specifically in copyright and patents.
Further, proposal to include protection of “Rights Management Information” i.e. names of the author/performer, name and address of the owner of rights, terms and conditions of use of works and any number or code which identifies the work such as ISBN and any attempt to remove this without authority or by distributing the work, fixed performance or phonogram is liable with 2 years punishment and fine is also made.
Though the current Act is supposedly adequate to safeguard the interest of copyright holders in India, against the controversy raised by Settlement, it can further be amended (apart from the above proposals) to further strengthen and include ‘the element of acting without any intention to defraud’ as a part of section 6310 of the Act, and like section 63, the offences under section 65 and 68A11 should also be made cognizable. The present section 53 of the Copyright Act (as well as the proposed amendment to section 53) only envisages importation of infringing copies. Export of infringing copies is outside the scope of the section which should be included therein. When copyright protection is key to the continued growth of the software industry and a critical factor in attracting direct foreign investment, changes that safeguard the best interest of copyright holders should be given due consideration.
While copyright has shown flexibility in accommodating new forms of creation, it still fails to protect ideas, methods, and functional characteristics. Also, the existence of alternatives to copyright, such as Copyleft, the Open Source Movement, Fairshare, and Open Street Protocols contradict the very foundation of the notion of Copyright. Shifting to sui generis system of protection or reliance on the basic concept of what is fair and equitable to determine the copyright issues in the modern electronic age is yet to be determined. Interestingly, India is also contemplating an IP policy which will surely give a definite shape to the IP facet in the country.
1 This can be done in three ways – (a) view in-copyright and in-print books through book search wherein one may preview the books and purchase them (here publishers actively sell), (b) in-copyright but out-of-print books which are not free as being still under copyright, and (c) out-of-copyright which are assumingly free and can be downloaded as well.
2 The Authors Guild, Inc., et al. v. Google Inc., Case No. 05 CV 8136 (S.D.N.Y.).
3 Also pointed by the Open Book Alliance whose members include the American Society of Journalists and Authors, the National Writers Union, the New York Library Association and the US Council of Literary Magazines and Presses.
4 Publishers like Star Publications Private Ltd, Abhinav Publications, Daya Publication House, and Pustak Mahal have also collaborated in this effort of IRRO and FIP.
5 Google introduces access to books through “preview”, “Consumer purchase”, “Institutional Subscription”, “Free Public Library Access”, and “Future Services” as Print-On-Demand, Consumer Subscription and others, to be agreed in the future.
6 The pertinent proposals are related to giving independent rights to authors of literary and musical works in cinematograph films, which were previously denied, to provide royalties to performers, authors, and composers in non-film music and sound recordings and to further enhance the existing Performers’ Rights (as contained in section 38 of the Act) by introducing exclusive rights to performers to make it compatible with WPPT, and to introduce “Moral Rights of Performers” in conformity with WPPT to enable performers to register a copyright-collecting society and receive royalties as well.
7 In 2005, the Ministry of Human Resource Development, assisted by WIPO set up a 30-member core group headed by the education secretary to extend copyright protection to digital media which came up with the first draft in 2006.
8 By virtue of section 79 of the IT Act.
9 See section 79 of the IT Act. The IT Act, however, cannot absolve an intermediary of liability, if that intermediary is otherwise found liable under the IT Act. In case of secondary liability under sections 51 (a) (ii) and 63 of the IT Act, no recourse is available under section 79.
10 Section 63 of the Act – “Offence of infringement of copyright or other rights conferred by this Act – Any person who knowingly infringes or abets the infringement of – (a) The copyright in a work, or (b) any other right conferred by this Act, except the right conferred by section 53A; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.”
11 Possession of plates for purpose of making infringing copies and Penalty for contravention of section 52A (Particulars to be included in sound recording and video films), respectively.