On July 4, the Indian government announced that India will accede to the two WIPO (World Intellectual Property Organization) Internet treaties, the WIPO Copyright Treaty (WCT), 1996 and the WIPO Performance and Phonographs Treaty (WPPT), 1996. The Press Information Bureau statement indicated that accession to the Treaties will allow India to enable creative rights holders to secure a return on investment on the production and distribution of creative works, to create a level playing field for Indian rights holders and to “contribute to the development of a vibrant creative economy and cultural landscape.”
Accession will help to achieve all these goals. This marks an important step forward for India and the Department of Industrial Policy and Promotion of the Ministry of Commerce, which brought the recommendation forward to Cabinet for consideration and approval, is to be congratulated. The Indian Music Industry has already commented favourably on the decision, calling it “excellent news for the protection of Indian music – within India and globally.” It will benefit not just the music industry but also India’s rich and creative film and television sector.
This is what the Internet treaties do and why they are important, as outlined by WIPO;
The WCT deals with protection for authors of literary and artistic works, such as writings and computer programs; original databases; musical works; audiovisual works; works of fine art and photographs; whereas the WPPT deals with protection for authors rights of performers and producers of phonograms.
The purpose of the two treaties is to update and supplement the major existing WIPO treaties on copyright and related rights, primarily in order to respond to developments in technology and in the marketplace…Among other things, both the WCT and the WPPT address the challenges posed by today’s digital technologies, in particular the dissemination of protected material over digital networks such as the Internet.
The requirements of the treaties are as follows:
Both treaties require countries to provide a framework of basic rights, allowing creators to control and/or be compensated for the various ways in which their creations are used and enjoyed by others. Most importantly, the treaties ensure that the owners of those rights will continue to be adequately and effectively protected when their works are disseminated through new technologies and communications systems such as the Internet.
The treaties also require countries to provide not only the rights themselves, but also two types of technological adjuncts to the rights. These are intended to ensure that rightholders can effectively use technology to protect their rights and to license their works online.
The first, known as the “anti-circumvention” provision, tackles the problem of “hacking”: it requires countries to provide adequate legal protection and effective remedies against the circumvention of technological measures (such as encryption) used by rightholders to protect their rights.
The second type of technological adjuncts safeguards the reliability and integrity of the online marketplace by requiring countries to prohibit the deliberate alteration or deletion of electronic “rights management information”: that is, information which accompanies any protected material, and which identifies the work, its creators, performer, or owner, and the terms and conditions for its use.
The implementation of the anti-hacking provisions in India could be controversial as noted by well-known Indian IP blog Spicy IP. While calling the decision a “huge win for copyright owners”, the blog notes that the Copyright Act does not penalize facilitation of circumvention provided the purpose of the facilitation is not a prohibited act. In other words, it is ok to circumvent technological protection methods (TPMs) to access a work provided that the purpose of circumvention is to exercise fair dealing exceptions (in the case of India, private or personal use, criticism or review, reporting of current events, and so on). This is a potential loophole that may need to be closed.
This issue has come up elsewhere (e.g. Canada). As I explained in an earlier blog, “Why Can’t I Legally Pick Digital Locks to Exercise My Fair Dealing Rights”, in the analog world you have to legally acquire access to a work (by purchase, rental, loan etc.) before exercising your rights to make copies without payment to the rightsholder. It should be no different in the digital world. There are many ways to legally access digital works; circumventing TPMs should not be one of them.
This issue will no doubt be worked out in time. In the meanwhile, with its decision to accede to these treaties India will join more than 90 other countries that have made the commitment to protect their cultural industries in the digital environment. Good news for India’s creators and for all creators who exploit their work in India.
© Hugh Stephens 2018. All Rights Reserved.