NISCAIR Online Periodicals Repository Collection: JIPR Vol.17(4) [July 2012]

Exhausting Copyrights and Promoting Access to Education: An Empirical Take

Title: Exhausting Copyrights and Promoting Access to Education: An Empirical Take

Authors: Basheer, Shamnad; Khettry, Debanshu; Nandy, Shambo; Mitra, Sree

Abstract: In what must rate as a momentous occasion in Indian copyright history, the Copyright Amendment Bill, 2012 cleared both Houses of Parliament after 12 years of intense debate, discussion and politicking. These set of amendments were particularly celebrated for fostering social justice through provisions that included a special copyright exception for the disabled and a mandatory royalty sharing arrangement for hitherto exploited Bollywood artists.

However, despite the general euphoria surrounding the passage of these highly progressive provisions, there are causes for concern. In particular, the abrupt deletion of a clause legalising parallel imports, contrary to the suggestion of an expert Parliamentary Committee, raised many an eyebrow. It would appear that publisher lobbies prevailed upon the government to effect this last minute volte-face. The main claim advanced by publishers to effectuate this change of heart was that the Indian market was well served with the latest books at affordable prices, rendering redundant the very need for a provision legalising parallel imports.

In this paper, the authors limit themselves to empirically testing this claim. The data from three different libraries demonstrate that the Indian versions sold by international publishing houses are often old and outdated editions. The latest versions are available only through imports via websites (or through mainstream distributors) and costs as much, or more than their western counterparts. Further, the legality of such imports is uncertain under the present copyright regime.

Based on this evidence, the authors argue in favour of retaining Section 2(m) of the Indian Copyright Act, 1957. They also argue that legal policy ought to favour free market competition, unless the evidence suggests that the gains from such competition are outweighed by the harm to the copyright owner and the growth of the indigenous publishing sector. As of today, no such countervailing evidence has been proffered.

Page(s): 335-347

Overview of Changes to the Indian Copyright Law

Title: Overview of Changes to the Indian Copyright Law

Authors: Thomas, Zakir

Abstract: The Copyright Amendment Act, 2012 has been enacted by the Government of India bringing changes to the Copyright Act, 1957. The amendments make Indian copyright law compliant with the Internet Treaties, WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). The amendments grant performers’ rights to performers. While introducing technological protection measures, the law ensures that fair use survives in the digital era by providing special fair use provisions. The amendments have gone beyond the limited mandate of WCT and WPPT and made many author friendly amendments to streamline business practices, special provisions for disabled, amendments facilitating access to works and other amendments to streamline copyright administration. The purpose of this paper is to narrate the changes made in the Copyright Amendment Act. Wherever possible a brief rationale for the amendment as culled out from the Notes on Clauses of the Copyright Amendment Bill and from the Report of the Standing Committee of Parliament, is provided.

Page(s): 324-334

Marks and Brands: Conceptual, Operational and Methodological Comparisons

Title: Marks and Brands: Conceptual, Operational and Methodological Comparisons

Authors: Yang, Deli

Abstract: People tend to use brands and marks interchangeably due to their similarities. However, they are often non-substitutable to each other. This paper systematically examines the similarities and differences of these two terms in conceptual, operational and methodological manners taking account of history and international dimensions. Such clarification is important given the increasing significance of marks and brands for all stakeholders (rather than consumers only). The paper starts with the definitional understanding about the two terms. It then focuses on the history of these two terms to reveal how their evolvement has been. Next, it discusses their similarities and differences, including the concepts, operations and measurements. The paper concludes with the implications of these clarifications for research and education, and for relevant stakeholders, such as managers, policy makers and consumers.

Page(s): 315-323

TRIPS and Access to Affordable Drugs

Title: TRIPS and Access to Affordable Drugs

Authors: Nair, M D

Abstract: It is a well-recognised fact that many modern medicines, largely discovered and developed by the pharmaceutical industry are in general unaffordable to the majority of patients in economically backward, developing countries. Since they constitute around 75 per cent of the world’s population, it is a matter of great concern for the future of healthcare itself, if for the majority of world’s population, access to medicines, which are patent protected, is denied. Problems of access to medicines are related to the problems of non-availability of disposable income among the population to meet their medical needs as well as the high and unaffordable prices of drugs.

The issue that is now being debated is the impact of the TRIPS Agreement on the availability and affordability of much needed medicines for the poorer populations of the world and if there is indeed a negative impact, what are the possible modalities to reduce that impact and make drugs cheaper for deserving populations and developing countries?

Between the flexibilities available in TRIPS Agreement and the Doha Declaration on Public Health, can Member Countries through appropriate legislative and administrative measures, safeguard the interests of their poor populations? Can governments in developing countries bring in appropriate legislations to ensure equitable access to medicines much like the Patient Protection and Affordable Care Act of Barack Obama approved by the US Congress in March 2010?

Page(s): 305-314