Needless pressure to change copyright laws
RCEP’s
position should be resisted. India must take a tough stand on digital rights
else internet users will find the going rough
The
recently leaked Intellectual Property chapter of the Regional Comprehensive
Economic Partnership has garnered much attention worldwide. Given the imminent
negotiations over the free-trade agreement between India and 15 other
Asia-Pacific countries, the leaked draft gives a direct insight into the stand
that participating countries would be taking over IP protection, one of the
major concerns of the FTA. The provisions relating to copyright protection are
particularly worrisome, since they call for stringent measures, in excess of
India’s current IP law obligations under the WTO.
Under
the RCEP, each party must ratify or accede to the WIPO Copyright Treaty (WCT)
and the WIPO Performances and Phonograms Treaty (WPPT). The WCT and the WPPT
(together known as WIPO Internet Treaties) protect the rights of authors and
performers/producers of phonograms respectively.
A
unique feature of the WIPO Internet Treaties is that they provide effective
legal remedies against the circumvention of technological measures taken by
authors and performers/producers of phonograms to protect their works on the
internet (also known as Digital Rights Management or DRM measures). For
instance, certain apps enable internet users in India to watch shows on
video-streaming website Netflix even though the content is not available in
India. They achieve this by circumventing technological measures put in place
by Netflix to restrict the downloading of its content in a particular region.
Overarching
measures
Under
the WIPO Internet Treaties, the internet user who circumvents the technological
measure would be liable for circumventing the DRM measures irrespective of
whether the internet user downloaded the content for their personal enjoyment
(without the intention to make the content available commercially).
The
WIPO Internet Treaties have been criticised by internet activists for imposing
substantial costs on the public without any real benefits to the artists.
Additionally, the DRM measures threaten free speech and access to information
online.
The
RCEP itself contains many provisions of the WIPO Internet Treaties, including
the DRM measures.
While
India is not a signatory to the WIPO Internet Treaties and is as such not
obligated to conform to them, India incorporated many of the provisions of the
WIPO Internet Treaties including DRM measures when it amended its copyright
legislation in 2012. Since India is not bound by the WIPO Internet Treaties at
present, it can repeal the over-arching provisions anytime it wishes on the
ground of public policy. However, this would be impossible if the RCEP in its
current form becomes a reality.
No
obligation
The
DRM measures are a TRIPS-plus measure which means that under the WTO, India is
not obliged to abide by them. If India agrees to the current copyright law
provisions in the RCEP and accedes to the WIPO Internet Treaties, India would
necessarily have to honour its obligations under the FTA. If this happens, it
is likely that India would pass a law similar to the Digital Millennium
Copyright Act (DMCA) in the US to strictly enforce measures against the
circumvention of digital rights management. The DMCA, which criminalises
production/dissemination of technology, devices and services intended to
circumvent DRM measures, has been widely criticised for chilling scientific
research and freedom of speech and expression online.
The
WIPO Internet Treaties also lack a fair-use exception for circumvention of
technological measures. While the Indian law does not expressly provide for
fair-use exception in the protection of technological measures, it allows acts
committed to circumvent the technological measures if they are “not expressly
prohibited” under the Indian law. Unless the RCEP allows for fair-use
exceptions (for private or personal use, including research), the freedom of
the internet in India stands to be threatened due to the RCEP.
Given
that the DRM provisions in RCEP will negatively impact internet users in the
country, India must take a hard stand when negotiating the IP chapter of the
RCEP.
Source | Business Line | 5 May 2016
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