The Delhi High Court recently rejected the demand of publishers’ to ban coursepacks on the grounds of violation of copyright, thus making educational content more accessible and affordable for students.
The Delhi High Court’s recent ruling, sanctioning the preparation and dissemination of coursepacks as a substitute for expensive textbooks, shows how the law can act as a force for good, not just in theory, but also in practice. The Court’s verdict is likely to play an instrumental role in making educational material more accessible and affordable for students, many of whom are unable to utilize such material at present because of its prohibitive cost.
This verdict breathes meaning and life into the right to education, which was recognized as a constitutionally guaranteed fundamental right by the Indian Parliament in 2002.
In August 2012, three of the biggest players in the Indian publishing industry, Oxford University Press, Cambridge University Press, and Taylor and Francis, instituted a lawsuit against Rameshwari Photocopy Services and Delhi University for preparing and disseminating coursepacks, which are miniature versions of textbooks that contain key excerpts from such books. The publishers argued that this amounted to copyright infringement. In October 2012, the Court passed an interim order in the publishers’ favour, restraining Rameshwari from making or selling coursepacks until the final determination of the interim application.
The grant of this temporary relief by the Court practically sounded the death knell for students from poorer communities at Delhi University, as it had the practical impact of depriving them of access to their principal means of absorbing academic content in an affordable fashion, for almost 4 years.
The move of the publishers came in for heavy criticism, with more than 300 authors and academicians urging them to withdraw the lawsuit.
The amount of public attention that this issue received is best evidenced by the fact that Nobel laureate, Amartya Sen also wrote a letter to the publishers, urging them:
“Not to draw on the full force of the law to make these ‘coursepacks’ impossible to generate and use,” because “the cause of education must surely be a very important one.”
At the outset, the Court noted that it is a well settled principle that copyright is merely a statutory right, in contradistinction to a natural right, meaning that no copyright owner can claim to have the unfettered and exclusive right to exploit her creations. This being the case, the Court held, the publishers could not hold the photocopier or the university liable, unless they were able to demonstrate how the latter’s conduct amounted to copyright infringement within the meaning of the Copyright Act, 1957.
The determination of the case turned on what is commonly referred to as the ‘educational exception.’ The exception, forming a part of Section 52 of the Act which delineates a list of activities that do not constitute copyright infringement, shields from liability the reproduction of any work by a teacher or a pupil, among other things, in the course of instruction. To this end, the publishers argued that the phrase ‘in the course of instruction’ would only include the reproduction of copyrighted content for lectures and tutorials, and would not include the photocopying of the entire syllabus in the form of coursepacks.
Rejecting the argument of the publishers, the Court held that the exception does not merely cover the imparting of education in a traditional classroom setting, but must be construed in a capacious manner, including within its fold, all the steps involved in the absorption of knowledge at the college level. Further, since the exception envisages students taking notes from textbooks for educational purposes, the Court held, its intention cannot be frustrated by construing it in such a way as to make it inapplicable to the photocopying of textbooks which is nothing but a modern-day substitute for the arduous task of manual note taking.
On this basis, the Court came to the conclusion that the University or the photocopier could not be held liable for copyright infringement.
Image Source: SpicyIPWhile at first glance, it may appear that this case has little relevance for the general public, in light of the fact that it turns on a technical construction of a statutory exception, this could not be farther from the truth. At its root, this judgment recognizes, as the Court eloquently notes, the principle that:
“[c]opyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations… Copyright is intended to increase, and not to impede, the harvest of knowledge.”
For the cynics who think that intellectual property law is increasingly being used as a tool to promote commercial interests and erect barriers to access to transformative creations for those who would benefit from them the most, this judgment offers an alternative vision.
It offers a vision of a society in which intellectual property law, creatively and purposively interpreted, can bridge gaps as opposed to widening them; can generate opportunities, as opposed to impediments, for intellectual growth and progress; and can, in the final analysis, make our society more, and not less, equal.
The judgment recognizes the principle that education is a public good, which must be made available to all on equal terms. By giving precedence to the social goals that education helps promote, as opposed to the narrow interests of authors and publishers, the Delhi High Court has made it clear that India’s copyright law will be interpreted in a manner consonant with its sui generis needs.
If faithfully implemented, this judgment has the potential of reversing the trend of more than 80 million children dropping out of schools and colleges before completing their education.
“I may not agree with what you say, but will defend to the death, your right to say it”, said the author Voltaire (Attributed to Voltaire by S.G. Tallentyre in “The Friends of Voltaire”, 1907).
India has the benefit of one of the most modern and liberal Constitutions which seeks to safeguard its rich and diverse heritage while also fostering the growth of a democratic culture.
One of the most cherished rights under our Constitution is to speak one’s mind and write what one thinks. No doubt, this is subject to reasonable restrictions, but then the ambit of what one can do is wide. The very heart of democracy is the freedom to think and act differently. Implicit therein is a freedom to react and respond to same situations differently and distinctly. As the Indian Supreme Court once pithily put it, “in a democracy, it is not necessary that everyone should sing the same song.”
While no one would cavil at the proposition that the freedom of speech and expression is a cherished constitutional value in theory, India cannot hope that its commitment to uphold this value will carry much meaning if it is not able to stay true to this commitment when the speech in question is offensive, unpalatable and disturbing.
Nowhere has this commitment been put to the test more than it has in the manner in which regulatory authorities deal with the phenomenon of the emergence of a new breed of actors and producers who are not afraid of expressing unconventional views and opinions.
Believing that their predecessors sold dreams and seldom dared to portray reality, the filmmakers of today want to tap into the transformative potential of the film to shape people’s opinions, break deeply entrenched stereotypes and start difficult conversations.
We cannot expect that they will present current and live issues and problems in the same manner as the generation which came before them. They want to chart a course of their own, uninfluenced by earlier works. A certain degree of freshness, a change of attitude and a different way of looking at the same medium by itself and without anything more should not result in bringing about disruptions or creating hurdles and obstacles in their way. To stop them abruptly and by extreme responses will not only discourage them but may kill creativity. If they are allowed to go ahead in their own way but with timely cautioning and warning, they may respond positively and take the same in proper spirit. However, to interfere with their work again and again, mindlessly will only invite extreme reactions. That would not be conducive to the growth of the medium. Eventually, it must march with the times and compete with the best of the works made locally and globally. That apart, the appeal of the social media coupled with the advent of television which operates on a multi channel basis 24X7 resulting in large scale production and distribution of teleserials, teledramas, telefilms presents an enormous challenge which is threatening the existence or efficacy of a celluloid film. A full length feature film needs to hold the audience to the seat for certain hours. Its story line, theme, script and the overall content should have that capacity and potency. Else, the audience interest will wane and vanish. Hence, filmmakers, producers, directors of today have changed their strategies.
The filmmakers of today are direct, forthright, attacking, aggressive and even brutal in their presentation. Just because they are not soft, subtle in their approach, censor board cannot be unduly strict and harsh. Holding up clearance certificates by censor board or suggesting cuts and excisions in virtually every alternate scene would be counter productive. Not for nothing did finance minister Arun Jaitley recentlystate that he was “not satisfied” with the existing system of film certification.
Therefore, in view of the above, the need to protect freedom of speech and expression of filmmakers/artists assumes added importance.
It is also high time the Government constituted an expert body to deal with situations arising from such conflicts of views, as opposed to following an ad hoc, unprincipled and reactionary approach. At the same time, it is imperative that such a body be manned by experts from the film industry and different spheres of society so as to ensure maximum objectivity and independence.
In such matters of art and culture, the issue cannot be left to the police authorities or the local administration alone, especially when there is a spurt in such conflicts. The State has to ensure proper police protection where such authors and artistes come under attack from a section of the society. Regular programmes need to be conducted for sensitizing officials over matters dealing with such conflicts of artistic and literary appreciation.
In conclusion, censorship authorities in India would do well to remember J.S. Mill’s admonition: “The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
‘Laws on marital rape cannot be “suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.”
Remember when Women and Child Development Minister, Maneka Gandhi had written this to the Rajya Sabha when asked about Centre’s plans to criminalise marital rape? She had then faced the wrath of many human rights activists. However, she later did a complete U-turn, saying that the Centre was contemplating criminalizing marital rape.
Marital rape is non-consensual sex where the perpetrator is the victim’s spouse. Typically, this should be considered as one of the gravest forms of crime as the victim is married to an abuser who can take advantage of the relationship and sexually abuse her repeatedly.
Yet, successive governments have been indifferent towards marital rape and the need to criminalise it. This despite a number of progressive recommendations from expert bodies created to study the subject, most notably the Justice J.S Verma Committee, which was set up in the aftermath of the Delhi Gang Rape Case, 2012. The Committee delineated three points:
That marriage or relationship between the accused and the victim (parties):
(a) cannot be used as a defence to the crime of rape or sexual violation.
(b) is not relevant in an inquiry into whether the victim consented to the sexual activity.
(c) cannot be a factor that justifies mitigated sentences for the offense of rape.
Yet, India has consistently turned a blind eye towards the evils of marital rape.
The Law on Marital Rape at Present:
The Indian Penal Code, the principal legal instrument setting forth the key criminal offences in India, penalises a person for rape when he has sexual intercourse with a woman less than 16 years of age, with or without her consent. However, sexual intercourse by a man with his own wife is not rape unless the wife is under 15 years of age.
Though the legal age to marry for boys is 21 years and 18 years for girls, if a girl marries before attaining the age of 18 years and is sexually abused by her husband, then it is not considered to be rape as she is not under 15 years of age
This anomaly, absurd though it doubtless is, is emblematic of the state of confusion and internal inconsistency that has come to characterize Indian rape law.
Pam Rajput Committee’s Report on Marital Rape:
Pam Rajput Committee in its report named ‘Status of Women in India,’ has come down heavily on the legislature for failing to recognize marital rape as an offense. It also criticized the Criminal Law (Amendment) Act, 2013 for ignoring J.S.Verma Committee’s Report on recognising marital rape as an offense irrespective of the age of the woman.
Protection of Children from Sexual Offences (POCSO) Act, 2012 on Marital Rape:
One Act that recognises marital rape (at least till the age of 18 years), is POCSO Act. The Act penalises sexual intercourse with a person under 18 years of age irrespective of their gender, age, marital status or even consent.
Criticism Against POCSO:
POCSO does not recognise consensual sex with a person below 18 years of age. Many experts have criticized this new age of consent as too high. It is in total disregard to the social reality as the law intends to assume that all adolescents in the country are sexually inactive and in any case of an adolescent sexual activity, the law would disregard the consent given by an individual.
This would lead to draconian and regressive effects. Moreover, the Act states that where the victim is below the age of 16, then it would be presumed that the accused has committed the offence.
A few instances of consensual sex involving individuals below 18 years:
(i) A 15-year-old girl eloped and married a 22-year-old man. Her mother filed a case of kidnap and sexual assault against the man. The girl admitted in the court that she had willingly gone with him and had sexual intercourse. In such a case, under POCSO, the man would be held guilty, as it does not recognise consensual sex with anyone below the age of 18 years.
However, the judge held that strict interpretation of the provisions of POCSO would mean that ‘an individual below 18 years of age has no choice over his/her body and cannot be allowed to have pleasures associated with one’s body.’ Hence, the man was acquitted.
(ii) In another instance, a pregnant girl aged 14 years admitted before the court that the only reason she and her mother filed a case against the man she had sexual intercourse is because he refused to marry her. The man was acquitted when he offered to marry her and provided shelter to her mother.
Criminalising Marital Rape Suits in All Contexts, Whether Indian or Not:
Extant laws in India have contrasting provisions on marital rape, thereby giving rise to unfettered discretion in the hands of judges to interpret the law in whatever way they deem fit. This has resulted in inconsistent verdicts being delivered by different judges while interpreting the self-same provisions – an ominous sign for a legal system that is founded upon the ideals of certainty and predictability.
A study conducted by International Centre for Women and United Nations Population Fund reveals that a vast majority of sexual violence faced by women was within marriage itself. Only 2.3% of the rape cases were committed by other men.
This study should have been more than enough to meet the government’s requirement of data showing enough number of marital rape cases in India. It should be noted that the survey was only conducted in a few states, the number would have significantly gone up had it covered all states.
Therefore, it is high time that India enacted a law that specifically covered marital rape as an offense. Marriage does not mean forgoing one’s dignity. Any law which presumes this to be the case should have no place in the statute book in a liberal and progressive democracy.
“I see start-ups, technology and innovation as exciting and effective instruments for India’s transformation, and for creating jobs for our youth.”
– Shri Narendra Modi, Hon’ble Prime Minister of India
One can say without a doubt that India has become a “start-up nation”. With an exponential rise in the number of start-ups, it is ranked third (after USA and UK) among the global start-up ecosystems. From booking a cab or an affordable hotel online and renting houses to purchasing groceries using mobile apps and facilitating banking transactions through partnership with banks, technology-driven start-ups are everywhere. It is estimated that India’s start-up sector has received a total funding of nearly $5 billion by the end of 2015. Some of the factors which have contributed significantly towards this massive growth in the start-up space are an increasing number of venture capitalists, private equity firms, angel investors, incubators and support networks, a large population and a high mobile penetration, among other things. In a recent report published by NASSCOM in association with Zinnov, this scenario is driving the Indian economy towards momentous growth; global investors are bringing FDI through investments in young innovative companies and new employment opportunities are being generated every day. Start-ups are now able to hire exceptional talent from the industry and offer them fairly good compensation and flexible work environment. Women entrepreneurs, too, are taking advantage of the innovation economy.
2016 has been the year of strategic and synergistic acquisitions by larger start-ups such as Flipkart and Snapdeal, and this is indicative of the vibrancy in the ecosystem. The money is well spent as the acquiring start-up stands to gain from the technology it otherwise would have to work towards. Some acquisitions have helped start-ups enter newer areas as in the case of online fashion marketplace Voonik Technologies. Its acquisition of Zohraa, Styl and Picksilk has enabled it to set foot in the ecommerce segment, and the acquired start-ups have gained from the transaction as they were not able to scale up. There are yet other cases where buyouts have helped the acquirer gain employee skills and expertise. In all, the deals with a total size of $534.9 million have generated entities that can cater to a larger number of consumers and may also deal in the global marketplace.
While we would want to look at the bright side, we must be cognizant of and responsive to the various challenges ahead. Some of the hurdles include lack of proper infrastructure as well as complexity of the market coupled with stiff competition. While there are several funding options available, many start-ups need the requisite mentoring to avail of proper finance. There have been some great business ideas which failed at the execution stage. India also faces some cultural challenges. Very few businessmen are prepared to take risks, something that is crucial to enter in the start-up sector. Moreover, India ranks 130 out of 189 countries in the Ease of Doing Business index, and Indian businesses still face issues as regards access to credit and ease of paying taxes. The said challenges have been underscored by other authors as well.
Some stakeholders of the start-up ecosystem have voiced their concerns over the fact that most of the top 200 start-ups are headquartered outside India so as to enjoy greater autonomy in operating their businesses. In this regard, think-tank Indian Software Product Industry Roundtable (iSPIRT) has campaigned for the Stay-in-India initiative and has argued that a number of changes at different levels such as faster incorporation and liquidation process, favourable IP-tax regime and relaxed external commercial borrowing norms must be brought about in order that start-ups flourish in a conducive environment. The government is responding to some of these concerns. On January 16, 2016, the government kicked off the much-awaited Start-up India Action Plan, wherein start-up on fulfilling certain eligibility conditions shall be entitled to benefits such as fast-track examination of patent applications, tax exemption on capital gains and funding support. More recently, the Ministry of Corporate Affairs released a notification facilitating easier access of funds by start-ups via the convertible note route by introducing several relaxations therein. On its part, the Reserve Bank of India too has resolved to ease regulations to enable start-ups raise foreign funding.
While the several policy initiatives are sending positive signals to young aspiring entrepreneurs, India must look at the entire scenario from a broader perspective. For instance, our education system, which focuses on rote learning rather than creative and analytical thinking, requires a complete revamp. The existing vocational training institutes offer outdated courses that are ill-suited to the start-up economy. India certainly cannot have a piecemeal approach towards start-up growth.
Third Year Law Student, Alliance School of Law, Alliance University, Bangalore.
There are several determined and undetermined functionalities and responsibilities of the police force, from managing the traffic, investigating petty crimes like theft to inspecting heinous crimes like murder etc. Though sometimes these responsibilities are considered underrated by the public, the police force is needed all 365 days of the year. They have been vested with various powers to fulfill these vital responsibilities. But today, we see that the police are misusing these powers. In essence, the duty of the police is to serve the public, but off late the public has been subjected to ill-treatment and terror by the police. Instead of protecting the people, they have been terrorizing them. The resentment against the police force is growing day by day in our country.
However, there are innumerable difficulties they face while in the line of duty. This fully accounts for the sorry state of the police force of our country. ‘Police’ is a State subject as per the VIIth Schedule of the Constitution of India, but the State Governments are doing almost nothing to provide the police force with even the pre-requisites required for their day to day functioning. Firstly, around 20,000 police stations in our country are located in temporary buildings, sheds and tents. The police officials who are expected to protect the public do not even have the bare minimum working conditions. This immensely affects their mindsets. Most of the police officials are found lacking in dedication and honesty, which is expected of them. Secondly, the resources which they require to fulfill their duties are inadequate and insufficient. They aren’t provided with enough vehicles and fuel for it, not enough manpower is available and the arms and ammunitions provided are also obsolete. Several times, the police stations are unable to pay their telephone and electricity bills and the contingency funds, which are a pre-requisite for every police station, are allocated only to the bigger states.
It’s an inevitable fact that the police force is compelled to work for the people in power, because they are threatened and controlled by the use of such instruments as postings, transfers, promotions etc. This severely affects the discipline and morale of the officials whereby they are forced to toe the line of their political masters rather than serve the public at large.
The police constables are at the lowest end in hierarchy. However, they constitute almost 94.6% of the police force. They are the ones who carry out the basic work. Lack of legal education has further exacerbated their situation. In fact, police constables who constitute the major chunk of the police force are the ones who work/interact at the grassroots level. They are the ones who can revolutionize policing in general. They are however deprived of any power and are under constant pressure to oblige their superiors.
The job profile of a constable has a condition that he has to be available for duty throughout the 24 hours of the day. But even after that let alone a leave, they aren’t even granted basic facilities such as clean drinking water and toilets. And, regardless of all these difficulties, they are expected to work diligently. The newly recruited constables are made to perform petty chores in the houses of their superiors which has no link to their job profiles, which in turn harms their morale. Also, meager salary, lack of proper habitation and other inhumane conditions have compelled the police force to go the wrong way.
Thus, now the system has eventually become a hollow structure. It needs to change, and should be such where the police force is empowered enough to serve and protect the people, where the rule of law is given utmost importance. This is possible through the following measures. firstly by formulating a structure where maximum complaint resolution is made possible, for this garnering the trust of the public is necessary. Secondly, providing them with better conditions which will improve their ability to operate. Thirdly, by devolution of powers amongst the lower ranks which would usher significant change thus leading to their empowerment as well. Also, more women must be employed as constables, who can then work with the women and children in their respective places of functioning. Fourthly, the police force must be insulated from the control of the politicians. Lastly fellowship, respect, compassion and understanding must be cultivated among the public for the police, which will help the latter serve the former in a more effective and fruitful way.
The need of the hour for our democracy is a modern police force which works for the people and are accountable to them, who are well-trained, well-equipped and who uphold the law at all times.
 http://mahapolice.gov.in/mahapolice/jsp/temp/html/lo060111.pdf, (visited November, 09 2016).
 http://www.preservearticles.com/2012050131670/what-is-the-police-strength-in-india.html, (visited November, 09 2016).
Winternship is ED’s flagship one month blogging and digital marketing internship program, aiming to provide enthusiastic learners a platform to observe and report, write and blog. Winterns can work from the comfort of their homes, wrapped in a cozy blanket with a mug of piping hot tea. The Super 30 (30 selected interns) have a shot at covering anything within the span of 10 articles over the period of one month and live the life of an ED Blogger.
Apply now if you think your wit deserves to be paid! https://goo.gl/forms/GxmwEjSXfcqdkU063
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Compared with several developed countries our IPRs are ‘weak’ as they do not comply with stringent US regulations. India, along with China, Russia and 8 other countries, is therefore, on priority watch list of US’ Special 301 report.
Earlier this February, the US Chamber of Commerce came out with a report that ranked India 43rd out of 45 countries in Intellectual property friendliness. In fact India has continued to languish at the bottom of the list ever since this exercise was started by the US. The people behind these reports are rich business lobby groups, led by PhRMA –the U.S. pharmaceutical lobby, looking to increase their profit margins at the expense of poor people.
The Situation Earlier
Before India joined WTO, Indian Patent law did not allow a product to be patented, only the process could be patented in case of food, drugs and other chemical substances. This was deliberately done by Indian lawmakers to protect public health as majority of patents were held by western companies who would have kept the prices high.
In those days reverse engineering to create the same drugs that western MNCs held patents to were common. Cipla was one such company, it provided generic AIDS and other drugs to the developing world at fraction of the cost thus making its use viable in poor countries. USA was meanwhile campaigning to stop India from exporting the AIDS drugs to Africa and other developing nations at a cheaper cost, a move which drew flak from the public and media.
After Joining WTO
After becoming a WTO member, Indian Patent Act was amended in 2005, to comply with TRIPS agreement which sets the minimum standard of IPR. Most notably patents for drugs were allowed with a few safeguards in place for public health in developing countries, as allowed in the agreement.
India’s IPR regime is now compliant with the Trade Related Aspects of Intellectual Property rights (TRIPS) agreement of World Trade Organisation; but the pressure from developed countries to align the IPR to the standards of developed countries is imminent.
The PhRMA (U.S. pharmaceutical lobby) and western countries still make hue and cry of the following provisios of Indian Patent Act:
- Section 3(d): mentions that patents would not be granted in case of only incremental changes in an existing patent.
This prevents pharmaceutical companies from ‘evergreening’ their patents i.e. extending the life of an already patented drug with a minor tinkering in its chemical composition. This is how pharma companies retain monopoly of a drug and keep its price high.
In the landmark judgement of Novartis v. Union of India – a victory of public health, Supreme Court ruled that Novartis, a Swiss pharmaceutical giant cannot patent Glivec as the drug did not exhibit enhanced efficacy compared with a pre-existing drug.
While India is one of the few countries with a law against evergreening, in US the problem is prevalent as patents are granted even for ‘new and useful improvements’ to already patented inventions.
- Compulsory licensing (CL) allows the government to grant manufacturing rights of a patented drug to a third party if its prices are unaffordable or in case of non-availability of drug in India.
This helps in reducing the prices of life saving drugs and increasing the availability. Under the Doha Declaration on the TRIPS Agreement Public Health, each WTO member has the right to grant CLs and the freedom to determine the grounds upon which they are granted.
While US has less number of stated conditions to grant CLs, it is ironical that US government backed by PhRMA is trying to stop India from issuing CLs when it leads the world in issuing them.
- Software patents are not allowed in India without an accompanying computer related invention/hardware.
This too has drawn the ire of Western Software companies. Software Patents are very complex as they are not really inventions but the amount of time and money spent on lawsuits is huge, benefitting only major players. This is demonstrated by the sheer number of disputes the US courts receive regarding software patents.
Gary Becker, a Nobel Prize winning economist has said that “Disputes over software patents are among the most common, expensive, and counterproductive. Their exclusion from the patent system would discourage some software innovations, but the saving from litigation costs over disputed patent rights would more than compensate the economy for that cost.” Indian judicial system is far from coping with it.
Indian or International?
In 2015 Martin Shkreli was dubbed America’s most hated man for raising an AIDS drug’s price by over 5000% after acquiring its rights. He maybe a scapegoat but is not the lone pharma boss in trying to make huge money off diseased people.
When America cannot afford American drugs, how can India- with largest number of people below poverty line? Moreover, India still lacks basic healthcare insurance. Aligning India’s IPR to that of the developed world would be a disaster especially for public health. In this view the ongoing backlash of India’s IPR by the USA is not justified.