The draft copyright regulations released for public comment in advance this week constitute a first-rate first in Indian copyright coverage: an explicit articulation, although very short, of the demands of digital technology. The Department for Promotion of Internal Investment and Trade (DDPI has rightly noted the need “to ensure easy and flawless compliance of the Copyright Act in the mild of technological advancement.” Refreshing as this could sound, it is also a tad too overdue and disappointing, thinking about that the enormous change to the Indian Copyright Act, 1957 (“ICA”) become made in 2012 in contrast to within the US and the EU wherein copyright responses to the “internet hazard” had been shaped in the late 90s.
The 2012 Amendment introduced hard and fast intermediary safe harbors for net service carriers and person-generated content platforms without a holistic dialogue of what the digital generation realistically required to incentivize content production. I might characterize this change as an opportunity lost in the din of dispensing the sales pie among content material creators and producers. At the same time, the real attention needs to have been on developing the content pie in a digital placing.
In this regard, stories during the last decade reveal the transition of the content economic system right into a content material plus experience economy. What is genuinely powering Spotify and Netflix today is as much the behavioral and experiential facts points on customers because of the specific content material they offer. These content gamers aren’t most effective operating “over the pinnacle” of net pipes, but additionally of legacy content material.
Therefore, to propel more innovation in this area, unlimited content get entry to, though laced with fairness and remunerative equity amongst various stakeholders, is critical. This route increases more profound questions regarding the asset’s shape of copyright exclusions and their relevance in virtual putting. Mindful of these dimensions, the proposed guidelines seek to put off the statutory basis of the latest verdict of the Bombay High Court and enhance the licensing possibilities for content entry.
This is a superb coverage flow, and one regular with the legislative choice made via the insertion of Section 31D of the ICA in 2012 — a provision that allows the Intellectual Property Appellate Board (IPAB) to restoration quotes of royalty and permits broadcasting establishments to avail statutory licenses from content material owners at those pre-fixed rates rather than leaving topics to the vagaries of negotiation.
To recognize the latest pass — substituting the explicit connection with radio and tv broadcast with the extra frequently worded “every mode of broadcast” in Rule 31, the rule that operationalizes Section 31D — we must revisit the unmarried decide the order of the Bombay High Court in Tips Industries Ltd. V. Wynk Music Ltd. This selection, which came out within April 2019, has arguably upended the business model and scale-up possibilities of on-call for song streaming platforms.
The vital controversy on this enterprise-defining litigation becomes simple sufficient: does Section 31D practice to internet broadcasting? Tips Industries, the proprietor of sound recordings with a good-sized repertoire of Bollywood tune, argued that it would now not, even as Wynk tune, a virtual streaming platform, contended that it would. The single decide agreed with the former, rejecting the latter’s reliance on the apparent text of Section 31D and the intervening explanation from the Department of Industrial Policy and Promotion (DPIIT’s predecessor) through a workplace memorandum in 2016 that net broadcasting agencies could come within the purview of this provision.
Two key arguments raised by using Tips resulted in these final results. The first was heavily mired in assets rhetoric; branding Section 31D an “expropriatory legislation” that disadvantaged rights proprietors of their belongings. This became mistaken at many degrees, most significantly at the level of drawing a tenuous parallel between copyright and real/tangible belongings. The concept of expropriation derives sustenance from the idea of the natural right. It changed into conventional that someone is entitled to the result in their labor, inclusive of tangible assets. This underlying basis for assets rights intangible assets is some distance eliminated from the philosophical foundations of intangible rights, drawn from practical concepts and a careful balancing of belongings and social desires.
Indeed, numerous instances in India’s highbrow assets jurisprudence provide this exchange justification for shielding intangible belongings rather than a herbal rights justification. Hence, a right such as copyright, solely created for instrumental motives beneath statute, could well be extinguished or constrained by using the identical statute with no worry of it being termed an act of expropriation. Otherwise, even the truthful use doctrine and the Delhi High Court verdict at the photocopying of books, predicated on this doctrine, might similarly qualify as similar acts of expropriation.