The copyrightability of databases has been settled by the Supreme Court in Eastern Book Company v. DB Modak. Here, the question was whether the petitioner, a company which created databases of Supreme Court cases (which are in the public domain) could claim copyright protection for their databases. It was held by the Court that the petitioner’s input of independent skill, labour and capital, in editing and arranging the information as well as adding inferences from it in the form of headnotes, resulted in the database being a copyrightable work.
Trends in Copyright Infringement and Enforcement in India
The World Intellectual Property Organisation describes copyright (or author’s right) as the rights that creators have over their literary or artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films to computer programmes, databases, advertisements, maps, and technical drawings. In the first report in the series, we explored the changing role of IP rights globally, shaped by advancements in the digital era. We discussed how copyright has been elevated from being an ‘economic vehicle’ to ‘a communications instrument relevant to cultural policy.’ And how, therefore, copyright laws influence free expression, shape innovations in the digital cultural space, govern information flows, regulate the production and exchange of digital cultural products, and shape social relations of communication. Copyright law gives control to authors and subsequent owners. Thus, writers, artists, musicians, performers, software programmers, publishers, students, researchers, librarians, teachers, readers, movie-goers, and music fans amongst others, exist in a web of cultural and economic relations subject to copyright law. Copyright impacts the information and communication markets as well as culture around the world, its infringement can be seen as both a moral and an economic violation. With the proliferation of the Internet and internet devices, infringement has become seamless and at scale. This report explores the contours of digital copyright piracy and how it affects all kinds of expressions of ideas.
Industry Growth and Piracy
The debate over piracy, and whether it promotes or harms cultural consumption, remains unsettled. The rise of the digital medium for consuming content has added to industry growth but has also aided digital piracy. For instance, online streaming has emerged as the biggest contributor to music consumption. In india, as of December 2018, the value of the audio ott market was USD 250 million, and music consumption per week stood at 21.5 Hours versus a global average of 17.8 Hours..
Using music as a proxy for the content industries would demonstrate the potential of the digital market. Piracy has affected other digital media as well. Illegal streaming reportedly accounted for:
The Indian Context
The Indian creative industry (largely comprising the media and entertainment industry) is poised to be worth USD 31 billion by 20209 and is expected to create 1.3 million jobs by 2022.10 Although the Indian Government has identified the audiovisual sector as a ‘champion services sector’, much remains to be done to protect and promote investment and innovation in India’s creative economy. The growth of an innovative content ecosystem depends on a clear understanding of the market, the legislative and enforcement framework, and piracy’s technological underpinnings.
The first critical step is identifying why piracy takes place, and what makes India a particularly challenging market in this regard. A recent meta-study of the existing literature found that a predisposition towards digital piracy is influenced by several aspects: personality factors (self-control), personal or psychological factors (neutralisation techniques, attitudes and beliefs), and social and cultural factors (social learning, collectivistic/ individualistic factors). Other determinants included legislation, and efforts by industry, the judiciary, and policymakers to curb digital piracy.
The drivers of digital piracy in India specifically remain unaddressed in recent academic literature. There is no recent and reliable data on the total size or scope of the cultural economy in India, nor the scale and nature of copyright infringement. For instance, while WIPO has calculated the revenue, employment and net exports generated by the creative industries in a number of countries, such a study is yet to be conducted for India.
India presents a number of challenges in combating online piracy for multiple reasons: lack of uniform enforcement mechanisms, the fragmentation of supply chains in cultural industries, emerging business models, the rapid development of the OTT space requiring increased technological investments in media encryption and piracy monitoring, an overburdened judicial system lacking in specialised IP courts, and the absence of a widespread understanding of copyright, among other factors. Content owners thus need to additionally invest in media encryption and piracy monitoring services. Local industry continues to be dominated by promoters and family owned companies, therefore, governance structures tend to be informal, making industry organisation and policy advocacy more difficult.
Centralised and uniform enforcement strategies are difficult to implement in India. ‘Law and order’ is a state subject under the Seventh Schedule to the Constitution, so enforcement initiatives that rely on the police are organised at the state level rather than through any centralised agency with national jurisdiction, making it difficult for enforcement strategies to be implemented uniformly throughout.
In conversations with industry experts we discovered some unconventional factors (beyond pricing and availability) that shape the piracy industry in India. For instance, the factor of time or the ‘windowing’ period is critical to controlling piracy. The less time it takes for a theatrical release to find its way to a legal, more accessible digital medium like OTT, the less users’ predisposition to consume pirated content. In this context, a recent report mentioned that due to the threat of digital piracy across and between windows has prompted many TV copyright owners to shorten delays between releases to different segments of the market. In certain cases where there is a high risk of widespread piracy (e.g. the Game of Thrones series), some content suppliers have moved to a day-and-date approach in which material is released simultaneously across differing outlets and platforms worldwide.
Indeed, the use of OTT platforms has emerged as a strong anti-piracy measure, and with local and international content now available at lower prices on various OTT services, the piracy market in India is bound to undergo certain changes, given the variety of content (international and regional) offered by several legal online content platforms at affordable price points.
Method
This report combines desk-based analysis with semistructured interviews and discussions with practitioners and academic experts. It focuses primarily on the media and entertainment industries, given the availability of previously conducted research and data. It is also rooted in current and future trends, a review of global literature, and specific case studies. In its working paper format, the report was valuably informed by a focus group discussion among experts.
Attribution: Dr. Megha Patnaik, Shohini Sengupta and Aishwarya Giridhar. “Trends in Copyright Infringement and Enforcement in India,” Report No. 002, December 2019, Esya Centre.
Associated Videos:
Contemporary Culture and IP: Establishing the Conceptual Framework
i. Context and Relevance
Successful digital transformation has been explained as “a caterpillar turning into a butterfly. It’s still the same organism, but it now has superpowers.” This is perhaps the most apt way to contextualise the ongoing digital transformations in the formal and natural sciences, social sciences, art, and culture, enabled by new technologies.
Across the world, technological innovations are constantly creating new knowledge, improving access to information, and helping cultures evolve, with digital traces marking every human interaction in the digital space. Coupled with this is the fact that in the last five years, more than one billion people have become new Internet users, and digital connectivity has gone from being confined to economically prosperous parts of the globe, to reaching a majority of the world’s population.
In India, the digital transformation in the past few decades has upended the cultural space in a dramatic manner, engendering the need for new legal, economic, and technological responses. This churn has resulted in businesses investing in cultures of collaboration, in capturing volumes of data and enabling collaborative data sharing. It has also added to a more vibrant and mature ecosystem of customers and partners, and made agility and innovation the key goals of a new ‘digital culture’. In fact, new research suggests that by the year 2021, digital transformation will contribute an estimated US$154 billion to India’s GDP, and increase the growth rate by one percent annually. Interestingly, responses to an evolving digital culture are themselves in a state of flux, mandating reinvention and reimagination of existing frameworks of law, economics, and technology.
The evolution of culture has always been a product of constant borrowing and diffusion. Therefore, cultural systems are not discrete but a continuum, with cultural boundaries being fluid, and constantly shifting. As such, much of the predominant legal discourse reflects assumptions about cultural systems that are no longer accepted in disciplines such as anthropology and folklore. For instance, much of the IP discourse around the world is still struggling to deal with the legal concepts around cultural evolutions that have emerged as a result of creolisation. This is because conclusive legal discourses are unable to form around cultural products that are not “finished” products. Therefore, cultural boundaries blur and disappear, with native cultural entities combining, recombining, re-emerging, and creating cultural expressions that defy strict IP or legal concepts.
The challenges of a new digital environment make it imperative for scholarship in India to develop around new legal, economic, and technological frameworks. These frameworks must evolve to bring the fruits of the digital cultural space to people, while fostering innovation, competition, diversity and choice. Figure 1 gives a visual representation of the interactions between culture and IP.
Further, the role of cultural evolution and the correspondent development of IP doctrine and practice have long been shaped by evolutionary perspectives on human society. Much of the international IP frameworks that developed in the 19th century reflected the national systems of the countries at the negotiating table, and the values that they sought to advance or considered important. For instance, since this was the age of the industrial revolution, cultural production contained in local knowledge like folk music was treated as entirely appropriable knowledge, but not as valid systems in and of themselves. Therefore, local knowledge was not thought to be comparable to the products of industrialization. This is reflected in the way IP systems developed in many countries. For instance, although IP protection in many countries was extended to Geographical Indications, no protection was otherwise given to other forms of local knowledge, reflecting prevailing views concerning the devolution of folklore. Further, international IP frameworks also reflected the role of commercial interests of the countries that were deciding the international legal order.
Conversely, today, the identification of cultural evolution and its elements is fundamental to not just IP, but also other attendant policy choices and questions of economic and business value. This is especially since the operation of cultural resources as valuable assets cannot be denied in the contemporary context, given the business models of creative industries, even though there is still a gap between the development in culture and IP. The gap between culture and IP exists in India as well. For instance, because of copyright law being written with pre-digital technology in mind, artefacts of these assumptions continue in the law regardless of attempts to modernize it. In the EU, there have been significant debates over the new Copyright Directive, the ostensible purpose of which is to modernise copyright rules for the digital age across the region, including increased protections of digital works. In India, similar advances to modernise the Copyright Act, 1957 (Copyright Act) with a view to resolving the debates over increased protection of digital works, intermediary liabilities, and discourses over different approaches to dealing with infringements in the digital space are still evolving.
Further, there is a vacuum in multi-disciplinary research on culture and IP in developing countries as a whole. Most existing research has been focussed on the countries that are part of the Organisation for Economic Cooperation and Development or the global ‘North’. As a result, there is little contextual development in the global south, and particularly in India, over how digital culture and IP interact with each other.
As such, this series will focus on the peculiarities of the Indian digital cultural ecosystem, primarily centred on three relevant stakeholders – users, businesses, and the Government, as detailed in Section 3. We believe that research focussed on the digital culture and IP in India will help all stakeholders in understanding and exploiting digital transformation more efficaciously. More importantly, understanding varying incentives can help stakeholders such as creators, producers, distributors, publishers, users, and policymakers identify common values, which in turn can define future standards in the digital space. To this extent, this series on ‘Contemporary Culture and IP’ will attempt to fill gaps in scholarship and raise foundational questions on law, economics, and policy issues of the future. This foundational paper aims to lay the foundations for future research and undertakes two interrelated tasks: (i) developing the taxonomy and foundational ideas for the series; and (ii) building the foundational frameworks on law and economics for the series to explore in depth, prospectively.
ii. Understanding what Contemporary Culture means for India
a. Understanding digital culture, and who shapes digital culture
Contemporary culture is rooted in the development of digital technologies, making these technologies both powerful catalysts, and sometimes the focal points of cultural change. The local digital ecosystem in India has burgeoned, leading to more virtualisation of group networks and social identities, and convergence of text and audio-visual media. The evolution of technology is in itself a reflexive process that responds to the evolving digital ecosystem consisting of creators, publishers, distributors, innovators, consumers and other stakeholders. While technology has always allowed stakeholders to respond to changes, the digital ecosystem has allowed the response time to decrease, such that stakeholders can now give their feedback almost immediately. For example, digital platforms and social media platforms like Twitter and Facebook now allow citizens to communicate directly with politicians and Government institutions, as well as offering policymakers new channels to listen to and respond to the wider electorate.
Thus, technological and cultural evolution have become interdependent to the point where correlations between the two, and the boundaries between people and technological artefacts have become difficult to establish. Therefore, in the context of India, this series explores the local meaning and impact of digital culture on the three most prominent stakeholders - the users, the businesses, and the Government; and the relationship between new technologies and cultural innovation, and the latent possibilities for such stakeholders to gain from the digital cultural space. Section 3 will chart the reasons for selecting these three stakeholders, and their relationship with each other.
Therefore, a primary focus in this series will be to view these different incentives from an evolving lens, in an attempt to understand why incentives vary, the role of each stakeholder, and the future opportunities and challenges. The series will also explore new roles, and responsibilities for new stakeholders such as intermediary platforms.
b. Identifying relevant digital cultural norms and contexts for defining digital culture
The role of IP rights has gained significance in the digital era, shaping both cultural life, and the conditions of communication and information sharing. For instance, in the case of copyright, scholars have argued that it is not merely an “economic vehicle, but a communications instrument relevant to cultural policy.” Copyright laws of a particular country influence democratic expressions of free speech, shaping innovations in the digital cultural space, governing flows of information in the economy, regulating the production and exchange of digital cultural products like books, music, art, and movies; and shaping social relations of communication. Copyright law gives powers of control to authors and subsequent owners, and regulates the production and exchange of meaning and information. Thus, writers, artists, musicians, performers, software programmers, publishers, students, researchers, librarians, teachers, readers, movie-goers, and music fans among others, exist in a web of cultural relations subject to copyright law. However, in the digital world, copyright laws have also generated a new public idea of communication, participation and production, which favours a collaborative model of shared and cumulative cultural dialogue over a proprietary model of cultural production.
The development of digital cultural norms along with IP values play a critical role in defining each other’s scope. A key part of this series, therefore, will be to explore the relationship between digital cultural norms and IP, particularly in areas where there is significant public debate, and a lack of clear policy. For example, the series will explore public and cultural space occupied by intangible goods that currently lack IP protection, that is, ‘cultural commons’, particularly in the Indian context.
Today, due to commercial-technologies permeating citizens’ lives, including the way we access and consume information, we are far more familiar with the technological contexts of our culture. This familiarity with technology, for instance, in the use of smartphones and television screens, allows us to navigate evolving cultural norms even though the digital cultural space itself is constantly changing due to this participation. However, since the digital cultural space only started evolving a few decades ago, stakeholders cannot rely on any long-standing norms and rules for digital interactions of different kinds. Therefore, stakeholders will now have to develop new cultural norms and commonly shared values, collectively developing rules, depending on the role they play, and their incentives. An example where stakeholders have come together to do so effectively has been in addressing the issue of child pornography on the Internet, by developing a universally accepted norm of restricting child pornography in a digital cultural context.
The varying perspectives on the evolution of contemporary culture brings us to the understanding that there are two schools of thought in this regard - one that argues that the existing cultures might find themselves essentially recreated in digital form as more and more life experiences play out in digital spaces; and the other that argues that dominant digital culture emerging now is a separate culture unto itself. For this series, we understand the term ‘digital culture’ to mean an uncertain combination of both of these perspectives. We will attempt to capture a multi-dimensional, and context-specific understanding of digital culture in this series.
For the purpose of illustration, we present some of the relevant contexts in which digital culture can be understood:
a. The cultural influence of new media environments and the digitisation process that has aided in the development of new digital cultures in media;
b. The development of common values, agreements, and interactions of different stakeholders in the digital society, and the ways in which people, businesses and the Government communicate with each other;
c. The importance of using IP systems creatively and effectively to increase access, innovation and value generation in the digital ecosystem;
d. The values of building a cooperative shared economy, to own and govern the Internet differently in the digital age, to improve income distribution in cultural supply chains, and address the legacy of an informal workforce.
Attribution: Shohini Sengupta and Aishwarya Giridhar.“Contemporary Culture and IP: Establishing the Conceptual Framework,” Report No. 001, March 2019, Esya Centre.
Response to the Draft Information Technology [Intermediary Guidelines (Amendment) Rules], 2018
We at the Esya Centre, greatly appreciate the opportunity given to us by the Ministry of Electronics and Information Technology (MEITy) to respond to the draft ‘Information Technology [Intermediary Guidelines (Amendment) Rules], 2018’ (“Draft Rules”), which seek to replace the rules notified in 2011. We appreciate that MEITy has undertaken to reform and clarify issues on Internet governance through these rules. However, after a thorough analysis of these rules, we believe a more holistic understanding of evolving technologies, and global trends in Internet governance may be instructive for MEITy to take this discussion forward. As such, we have approached this analysis from a broad, technological perspective, highlighting the major thematic areas under each proposed rule, rooting our arguments in broader discourses on internet governance and the attendant rights and obligations of stakeholders. Therefore, Part I of this response will provide a brief snapshot of some of the proposed Rules, and how they can be revised to comply with prior legislative jurisprudence, and best practices. Part II will delve into a more detailed discussion on the broader principles of regulatory governance. We hope that these thematic discussions will prove instructive in a larger discourse about the growing Internet ecosystem in India.