Importance of Copyright Flexibility in Indian Information Policy

Shishir K Jha, Shailesh J Mehta School of Management


India is poised to take considerable advantage of the global information revolution in addressing and leapfrogging many traditional developmental concerns. In this age of rapid increase in the volume and speed of information flow across the world, it is important to develop a national information-access policy that is resilient.

         Most of the discussion in India relating to the information revolution [IR] and information access by common people has been framed either in terms of the development of low cost technological gadgets or through various channels of information delivery. These are important and crucial. However there is little serious discourse on precisely who or what will act as the gatekeepers for controlling the content layer of the information revolution. The role of intellectual property safeguards, in particular copyright, cannot be underestimated in its impact on the varied contents.

         Traditional copyright, which is code for "all rights reserved" with the author, has the potential to intervene in the flow of information. From the end user’s perspective, it is legally essential to always go back to the author for permission for further use of her creative work. This could range from copying for commercial use to making any adaptation for use in theater, film, music or text. The "fair use" exception allows users some freedom but its scope is increasingly being narrowed as we enter the digital domain.

         In particular, it is the increasing length of the copyright term which now includes copyright protection for life of the author plus sixty years that is posing problems for the new generation of authors. For instance, in a common situation, a deceased author of an out-of-print text [an orphan work] written in 1960, has its publisher either bankrupt or untraceable; one cannot therefore legally use any substantive part of the text, even if one genuinely sought copyright clearance. Inability to get copyright permission translates into locked up creativity.

Protecting Developing Country Interests
The need for arguing that India should widen its IP policy options rests on growing evidence that global IP, as mandated through TRIPS/WTO, is being upwardly harmonized and increasingly aligned to the interests of western countries. The IP policy of North American and Western European nations are deeply influenced by the lobbying juggernaut of their very large knowledge-based industries, in particular, software, entertainment and pharmaceuticals. In their books Ha-Joon Chang (“Kicking Away The Ladder”, 2002) and Ben-Atar (“Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power”, 2004) clearly show that developed western countries are consciously or unconsciously resorting to blocking or knocking away the development strategies of developing countries; the very same strategies that were themselves used by the former in moving up the developmental ladder.

         In addressing their development concerns, developing economies like India or China can take the lead in using and building intermediate, open-content or public domain oriented information access models, without attracting high institutional resistance from inside their respective countries. To some extent this could help pre-empt the possibility of their development paths being "blocked" by foreign nations.........more on next page