Copyright
law plays an important role in the complex world of modern communications.
The concept behind copyright protection is that creators of literary and
artistic works (authors, composers, artists) as well as those concerned with the
circulation and transfer of knowledge such as publishers, broadcasters,
producers of programs and films have rights to ownership in their works, and
further, that those rights should be afforded legal protection in order to
prevent unlawful reproduction of their works.
Copyright is not a sudden development.
It has resulted from a slow evolution, beginning with the discovery of
printing which revolutionalised the techniques of reproduction.
In the years that have passed science then, a whole new technology of
communication and diffusion has grown up. Copyright
law has had to follow and keep pace with this advancing technology.
The legitimacy of copyright is now recognized by all countries.
Copyright law has become an integral part of communications and
education, and is called upon to play an increasingly important role in shaping
the process and the great diversity of ways in which creative works literary,
scientific and artistic are now used.
Need
for reciprocal protection
Due to the phenomenal development and expansion of transport facilities
and communications media, there is increasingly greater circulation of
intellectual works among the countries. The
need to evolve a system of reciprocal protection was felt by the western
countries in the last century as soon as the printing techniques of multiplying
copies of a printed work posed a threat to the rights of authors.
A number of European countries entered into bilateral treaties governing
copyright protection on mutually agreed terms.
This meant that the level and extent copyright protection varied from
country to country. This created a
situation of confusion for the author. As
a result, the authors of many European countries appealed to their governments
to work out a more coordinated arrangement in the form of a convention embracing
several countries. There diplomatic
conference were held from 1884 to 1886, culminating in the adoption of the first
multilateral convention on copyright at
Berne
on
9 September 1986
, known as the
Berne
convention.
This convention has gone through six revisions since then and the terms
of reciprocal protection have been enlarged in response to the changing needs.
The other multinational convention on copyright is the universal
copyright convention (UCC) adopted under the aegis of Unesco in 1952.
The basic principle underlined in both these multilateral conventions is
`national treatment' according to which each member state has to according to
which each member state has to accord the same copyright protection to the
nationals of the other member states as it accords to its own nationals.
India
as a member of
both these conventions has provided for copyright protection on a reciprocal
basis in its copyright law. Sections
40 and 41 of the Copyright Act, 1957 (which governs copyright protection in
India
) give the same
protection to works first published in
India
and this applies
to unpublished works as well.
Developing countries and academic
publishing
When we talk of copyright
protection on a reciprocal basis among countries.
We generally find that such international usage of works is related to
use of works of authors originating in developed countries and in the developing
countries. This century has
witnessed the emergence of developing countries on the international map and
their major task on attaining independence has been to undertake academic
publishing on a big scale to achieve social, cultural and economic development
as speedily as possible. A large
scale expansion of educational facilities means that a large number of books and
educational materials of standard and quality (especially in science and
technology) produced in the industrially advanced countries are needed to meet
their educational requirements. These
needs relate directly to copyright. How
should they go about it? A large
scale import of foreign books is no solution because of the scarce foreign
exchange resources available with them and also because that would do great harm
to the national creativity and the country's publishing industry.
The only alternative available to them is to have access to such books
through reproduction or translation rights in their own languages on freely
negotiated terms between the publishers and the owners of copyright abroad.
But this is where the difficulty lies.
Publishers in industrially advanced countries are reluctant to transfer
such rights because the prospect of earning bigger profits from book exports is
more tempting.
How is this problem to be resolved? If
developing countries were to resort to unauthorized reproduction/translation of
books of foreign origin, it would create an unhealthy situation.
It was to avoid such a situation and to find a practical alternative that
the
Berne
convention were revised at
Paris
in 1971.
The revision of the two conventions was the result of a sustained effort
on the part of the developing countries in which
India
played a leading role.
The importance of this revision lies in fact that it lends a new
dimension to the exercise of copyright in the international field.
Concessions under the revised text
The main changes made in the revised text of the international
conventions was the institution of a system of non-exclusive, non-assignable
compulsory licences to translate or reproduce works protected by copyright for
educational purposes, subject to the certain conditions including the payment of
just compensation and subject also to the adoption of a prescribed procedure.
The details of this procedure both in respect of translation and
reproduction have been spelt out in the Paris Act.
According to the Paris Act, a developing country can translate into
"a language in general use" in that country any foreign work required
for the purpose of teaching, scholarship or research after a period of 3 years
from its first publication. Similarly,
in the case of translation of any foreign work in to a language of the
developing country, this time-limit is one year from its publication.
In so far as the question of reproduction of works of foreign is
concerned, the Paris Act provides for grants of a compulsory licence for
publication of works of natural and physical sciences, mathematics and
technology after 3 years; works of fiction, poetry, drama, music and art after 7
years; and all other works after 5 years of their first publication. The
reproduction of the books under the compulsory licence are, however, subject to
the following conditions:
1.
These books
should be meant for "systematic instructional activities".
2.
They are not to
be exported to other countries except for certain limited purposes.
3.
The publisher
shall have to ensure payment of compensation to the holder of copyright which is
"just and conforms to international standard".
4.
The compulsory
licences would be issued by the government after it has been satisfied that the
publisher has failed to secure right of publication from the copyright holder
himself has failed to make available copies
of the work at prices reasonably related to those normally charged in the
developing countries. (All these
conditions with the exception of (1) Shall also apply to translated versions
brought out under compulsory licence).
5.
No licence for
either translation or reproduction may be issued if the author has withdrawn the
work from circulation to the public.
The procedure further requires that after an application has been
submitted no licence may be issued until a period for negotiation with the
copyright owner has elapsed. This
period may be three months, six months or nine months depending on the type of
licence sought, the category of the work and the grounds for the application.
Indian copyright law amended
The copyright Act, 1957 was amended in August 1983 to bring it in
conformity with the revised 1971 text of the international conventions.
New provisions have been added in the parent Act, incorporating the new
regime of licences in respect of translation and reproduction rights.
Translation
Section 32 of the Indian Copyright law contains a provision on the lines
of the provision in Articles 5 of the Universal Copyright Convention (1952)
which enabled any contracting state, developing or developed, to grant a licence
for translation of any work in any language in general use in that state
(subject to the conditions and procedural requirements stipulated in that
Article) if the owner of the right of translation did not make and publish such
translation within seven years from the publication from the publication of the
work, or, if he had published such translation, it has become out of print.
There is no restriction in regard to the export of copies of translation
made under the lincence. In the
amended law, section 32 has been enlarged and under the newly added provision,
it provides for compulsory licencing for the translation of foreign works for
educational purposes after a certain period in the prescribed manner.
The waiting period is 3 years for translation " in a language in
general use in a developed country" (i.e., English, French and Spanish) and
the waiting period is 1 year for translation in a language `not in general use
in any developed country' (i.e., Indian languages).
Under this amendment, broadcasting organizations are also permitted to
translate works for broadcasting for the purposes of systematic instructional
activities. The application is to be
made to the copyright Board. The
procedure to be followed by the copyright Board and the conditions subject to
which the licence can be granted, including the provision for grant of
compensation, have all been set out in the law.
It has been specifically provided in the amending law that copies of the
translation, under the new three year or one year regime cannot be exported,
except to the limited extent of an export by the government to its own citizens
in another country, with the permission of the government of that country, for
purpose of education, scholarship or research.
Reproduction
New sections 32A and 32B have been added, providing for the compulsory
licencing of the reproduction of any foreign work for the purpose of systematic
instructional activities after the expiry of the certain periods (which will
vary depending on the subject matter of the work), provided the copies of such
works are not available in Indis at reasonable prices.
The procedure to be followed by the Copyright Board and the conditions
subject to which the licence can be granted including the provisions for `due
diligence' on the part of the application to obtain authorization from the owner
of copyright, grant of just compensation, non-export of copies, have all been
set out in the law. Such a licence
shall be non-exclusive. Section 32B
provides for termination of licence under certain conditions as stipulated in
the Paris Act.
The Copyright (amendment) Act, 1983 incorporating the provisions of the
Paris Act came into force on
9th August, 1984
.
Without doubt the
Paris
revision is a decided improvement over
the provision made in the 1952 text of the UCC and the accepted pre-1971 text of
the
Berne
convention.
Even so, a study of the conditions stipulated in the Paris Text reveals
that the restrictions imposed are irksome and would not permit free flow of
information and knowledge from the developed countries to the developing
countries. The time lag between the
first publication of a work in a developed country and its
reproduction/translation through grant of compulsory licences, would be enough
to make the knowledge contained therein obsolete in view of the fast advancing
horizons of science and technology.
It is because of these reasons that a large number of developing
countries are clamouring for further relaxation which could meet their
requirements particularly in the field of science and technology.
Both world intellectual Property Organisation and Unesco which administer
the Berne Union and the UCC respectively would have to take note of this demand
and respond to the imperative of academic publishing in the developing world.