Update: We subsequently submitted updated comments: the text below has been edited to cover our final submission

Earlier: We submitted our comments on the amendments proposed in the Copyright (Amendment) Bill 2010 late last night, and given that we are transparent on our take on policy, we’re publishing them here for you to critique. Wish we’d had more time, though, since there must be much more that we should have included in this (we’re open to suggestions, included at our discretion). But these are our views, and not those of an industry body that would have a wider consultation with its members. We’ve requested the IAMAI for a copy of their submission to the government, and if you’re a member, you probably have a copy. Please do send it across to nikhil@medianama.com. If you’d like to make your comments public, please do share a copy with us as well, we’d gladly share it with our readers.

Our comments below. Please note that, in interest of fairness, in case of points 4 and 6, we have a vested interest as a publication. Also, feedback would be appreciated since these have not been whetted by a lawyer. 

1) Request for more time: On the outset, we would request the standing committee on Human Resource Development for more time to deliberate on suggestions. For a bill of this nature and magnitude, wherein it influences all forms of public and personal communication, especially on the Mobile and the Internet, it is important that we receive more time to look into the digital implications of the proposed amendments. The digital space is an evolving one, and the bill must also take into consideration possible changes in the future. For the act in its current form, we have received only a short time period of 15 days to submit comments, and we would request for more time, particularly for public debate on its implications, since it impacts not only music and film companies, but all citizens.

2) Against Introduction of the ‘Hot News’ concept: We believe that there might be an attempt in comments by vested Media conglomerates to introduce the concept of ‘Hot News’. According to the Hot News doctrine, facts related to events that have occurred in the public domain have value for a short duration, and it is only after a certain period of time that it moves into the public realm. In this age of instant communication, it is impossible to determine the time frame within which an important piece of information no longer remains hot. Also, it is impossible to prevent citizens from communicating the news via mobile and Internet websites, SMS and instant messaging. These would be under unicast, narrowcast or broadcast, and we believe that it is in public interest that news be made public and widespread as soon as it occurs. For citizens to be held liable under the Hot News concept as violating a media entity’s copyright would restrict their freedom of speech and expression. Particularly in case of emergencies, Hot News is not the mandate of any specific media entity. We would request the committee to not accept recommendations for the inclusion of the Hot News concept in the proposed amendments to the Copyright Act.

3. Works of Criticism, Parody: The Copyright (Amendment) Bill does not appear specifically to take into account works of criticism and parody. Information and knowledge once in the public domain should be available to be added to or built upon, or critiqued for enhancing the knowledge of citizens on current affairs and developments. These lead to wider debate and consultation on matters, and the usage of work under copyright for purpose of critique and parody should explicitly not be deemed a case of copyright violation. In it in the interest of free speech, and the interest of the nation, that on digital platforms like the Internet and the Mobile Internet, news developments be free for discussion, debate and even parody. Please take into account that according to figures published by the Telecom Regulatory Authority of India, there were 149 million mobile subscribers in India that were subscribed to data (Mobile Internet) services. With time, this number will increase, and more and more citizens will share their views online. It is important for a democracy to not curtain criticism and the freedom of speech: India is not China, which Google had to quit because its search was forced to be “sanitized”. India is also not Pakistan or Turkey, where Facebook, Twitter and YouTube were recently banned. Free Speech and open debate are the backbone of a democracy.

4) Inclusion of the concepts ‘Unicast’ and ‘Narrowcast’: With the advent of digital technologies, the ability for copyright holders, licensees and individuals to communicate and share content not only increases, but also allows content owners/licensees to service the specific demands of individual customers. Digital technologies enable the sale and sharing of content not just in a broadcast mode (from one source to many) but also in a unicast (one to one) and narrowcast (one to a specific list of recipients).

Following the launch 3G and Broadband Wireless technologies, it will be possible for digital transmission of copyright content to individual, and select individual customers via TV over mobile networks (Mobile TV), Video on Demand, Internet Protocol Television (IPTV). Communication or content delivery using Internet and Mobile technologies (Webcasting, Interactive Voice Portals, SMS/Short Messaging Services, email, Instant Messaging) are also forms of communication and content delivery between two individuals or a service provider and an individual. In most cases, this may include private and personal communication on email or Instant messaging between two individuals, and is not the same as broadcast, which is communication to the public at large.

The definition of Broadcast 2(dd)(i) and 2(dd)(ii) while encompassing narrowcast and unicast, does not differentiate between a communication to the public in general (which can be accessed by anyone), and communication to specific individual or set of individuals (which may be private).

Currently, a broadcast can be treated as being synonymous to communication to the public. A narrowcast, much less a unicast, would be considered to be on the same footing given that they address much lower numbers of persons. In fact, a unicast is directed at just one person. Therefore, neither a narrowcast nor a unicast should be treated in the same manner a broadcast or as being communication to the public. This is, however, not a difference which the law currently recognizes.

We would request the inclusion of the terms Unicast and Narrowcast in section 2 so as to differentiate them from broadcast. This differentiation is likely to become more important as usage of digital technologies becomes more widespread, with the advent of services over 3G and Broadband Wireless networks, reaching 1 billion Indian citizens.

5) Introduction of Creative Commons, and for certain software to not be under copyright in public interest: Content and computer software technologies created with funding from the Government have been created with funding from the people of India. Yet much of this content remains treated as being owned and for commercial exploitation by the Government. The intellectual property created by the government is the intellectual property of its people, and all citizens of India should have the right to access it, having already paid for it. In many cases, especially research work done related to digital technologies, the society at large would benefit if these would be available for further development by citizens of the county, and are either open sourced or, at least, made available for further development under licences such as Creative Commons.

Take, for specific example, work done by C-DAC on Indian language fonts, which are still treated as proprietary, and are available only for purchase to citizens, and not for creating improved software. There is a clear digital divide being created because the tools and software for creating Indian language content on the Internet and mobile, whether for education, communication or information, are not more widely available. There is also precedence in the Linux Operating System, a collaborative community used as a base for creating free and open source computer operating systems, thus creating an alternative to expensive, proprietary software.

As we move towards 1 billion mobile customers, please keep in mind that a significant majority of it will not be able to SMS or communicate in Indian language fonts. It is pertinent to note that works created by the judiciary i.e. judgments are not subject to copyright. We believe that ideally, works created by the government should not be subject to copyright either. Such a provision would not make Indian law an aberration. For example, it is the law in the US for works created by the employees of the federal government in the course of employment not to be protected by copyright.

As a second best alternative, government works should at least be made easily available to citizens to create (and use!) enhancements and other derivative works possibly through licences such as share-alike Creative Commons licences. This would encourage the collaborative development of tools which will benefit Indian society as digital technologies become more pervasive.

5. Definition of Fair Dealing: We would request an explicit definition of Fair Dealing, as opposed to Fair Use, which is applicable under the DMCA and US Copyright laws. At the same time, we endorse allowing users to make backups of copyright material for private and personal use.

6. Protection of Technological Measures:

The committee must take into consideration that when purchasing a song or a music album, he purchases the song, not the medium it is delivered in. Given the advent of the digital medium, music companies often limit content under a digital rights management (DRM) system which doesn’t allow users who have purchased a song on a mobile phone or an MP3 device, to also listen to it on a computer, or a CD player, since it cannot be transferred without removing the DRM. The inclusion of DRM is thus harmful for the consumer, and allows music companies to limit the rights of the consumer who has lawfully purchased the copyright work.

The amendments proposed in the Copyright (Amendment) Bill 2010 also appear to make it criminal for a user to remove the rights management information of a song that he has purchased. We would request you to allow users to remove DRM for personal or private use, and explicitly allow format changes i.e. changes from, say, .wav to MP3. On the whole, we consider the inclusion of section 65A to be unnecessary, and request that it be removed.

8. Criminal vs Civil Offence: According to the Bill, copyright violatin appears to still be treated as a criminal offence. We would request that only copyright violation on a commercial scale be treated as a criminal offence, and individual instances be treated as civil offences. For example, on mobile and the Internet, there will be cases of sharing with their friends and family, videos of themselves singing songs, not realizing that it is an act of copyright violation. From their perspective, this is a case of personally singing a song to their friends or family, and is a case of narrowcast or unicast (explained earlier), and not necessarily communication to the public. Ideally citizens should not be held liable in these cases, or in the least, this should not be considered a criminal offence.

9. User Generated Content and Intermediary Liability: With the advent of digital technologies, it is possible for copyright infringement to take place on a mass scale. Often, Mobile and Internet websites or portals do not have control over users uploading copyright content on their domain, in the same way that a marketplace does not have control over what is being sold or shared in the market. Thus storage is not transient and incidental, but not in the control of the intermediary.

We would request that Section 52(c) be modified to state ‘transient or incidental’ instead of ‘transient and incidental’.

Secondly, the same clause also makes it necessary for a complainant to procure an order from the competent court within 14 days. Please take into account that on Internet and mobile platforms such as these, copyright violation can take place on a mass scale, and at a very fast pace. For a copyright holder to procure a court order for each instance or each complaint becomes tedious and expensive, because several more instances of copyright violation might arise within those 14 days. This would end up punishing the copyright holder with expensive legal costs, and discourage legitimate complaints, while at the same time, allowing copyright violation to proliferate. We would request that there be an opportunity for complaints to be acted upon on the basis of take-down notices, and for illegitimate complaints to be deemed perjury, if proven otherwise by the publisher of the content. This will take care of both concerns – of copyright owners and infringement.

As we’ve mentioned previously, instances of copyright violation by individuals on the digital space should be deemed illegal, but not a criminal offence.

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MediaNama thanks the Center for Internet and Society (@pranesh_prakash and @sunil_abraham) and Google India for hosting the discussion last week that help us understand the implications of the Bill better.

We’d also like to thank @NSaikia for two thought-provoking papers on the Bill:

1. Disability and the Indian Copyright Amendment Bill, 2010
2. Films and the Copyright Amendment Bill, 2010

Note: Your feedback and criticism would be greatly appreciated. Also in case you have any more suggestions, please do share. We don’t mind trying our luck sending an updated version, if there’s something we believe should be included.