Intellectual property rights: challenges for publishing industry

World Book Day or World Book and Copyright Day is a yearly event on April 23rd, organized by the United Nations Educational, Scientific and Cultural Organization (UNESCO), to promote reading, publishing and copyright. On this day, GS Jolly looks at the intellectual property rights and challenges for Indian publishing industry.

In 1995, UNESCO decided that the World Book and Copyright Day would be celebrated on 23 April, as the date is also the anniversary of the death of William Shakespeare and as well as that of the birth or death of several other prominent authors.

Intellectual Property Rights

It is generally said that necessity is the mother of invention. In the case of Intellectual Property rights, it is the invention which became mother of necessity. Since ancient times, wise people, sages and seers used to give important ideas and philosophy to the people completely free as part of their calling and they never expected any remunerations for that.

Copyright

Copyright laws were not created to restrict information. The main aim of copyright laws in the words of Paul Gleason, former Assistant Editor, International Monetary fund, these were created to (1) “guarantee an author a monopoly right to control, for a specified period, the uses made of his or her own work, including its sale to the publisher;(2) to guarantee a publisher a monopoly right to print(or arrange to print) and sell a work within national boundaries for a specific period;(3) to provide financial compensation to authors’ royalties and to reward their creative work; and (4) to foster development of country’s arts and science and indirectly its economy….”

Various international conventions and treaties for the protection of related and neighbouring rights were signed to develop international uniform rules for safeguarding the rights of owners of copyright.

The World Intellectual Property Organisation (WIPO) also lays down provisions for contracting parties to protect computer programmes, whatever may be the mode of their expression and compilation of data or other material in any form which by reason of the selection or arrangement of their contents constitute intellectual creations.

What is IPR (Intellectual Property Rights)?

Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.

The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of specified years (60 in case of India) after the death of the author. The copyright protection varies in various countries.

Intellectual property is recognised as an important tool for economic growth. The copyright system is based on the belief that creators of intellectual work need an incentive to be creative. This can only be done by protecting his/her creation from infringement or imitation.

Objectives

The purpose of IPR is “absolute protection.” The thinking is that“creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions.”

The WIPO treaty and several related international agreements are premised on the notion that the protection of intellectual property rights is essential to maintaining economic growth. Currently, particularly in the United States, the objective of intellectual property legislators and those who support its implementation is “absolute protection”. These exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property.

The TRIPS Agreement, (Trade Related aspects of Intellectual Property Rights) which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property. The areas of intellectual property that it covers are: copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.

The three main features of the Agreement are:

Standards: In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member.

Enforcement: The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.

Dispute settlement: The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO’s dispute settlement procedures.

In simple words, copyright is a right given by the law to the creators of literary, dramatic, musical, and artistic works and produces cinematic films and sound recordings. Copyright law protects the owner of the copyright in a work from unlawful reproduction or exploitation of his work by others.

Indian Copyright Act of 1957

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea. Almost all copyright acts passed by various countries emulate the spirit of Human Rights Declaration Article 27(1948), which says that (I) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits, and (II) Everyone has the right freely to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

As publisher or as editor or even as author, you have both rights and duties. Right to claim what is yours and get due recognition and credit and duties to protect those whose interests you would be looking after. That a publisher has a social responsibility to provide what is needed in the society and to protect the interests of those who provide for this information. This has become more difficult these days with the digital revolution.

The survival of a document is not dependent on how long medium carrying it will last, but on the capacity of that document to be transferred from one medium to another as often as possible. This is like protecting contents and not the container. This has given a new dimension to preservation and protection of intellectual property rights for a publisher.

Infringement of copyright

Publishers as well as authors face the challenge of infringement of intellectual property rights inmany situations. The most common among these are;

• Making infringing copiers for sale or hire;
• Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interests of the owners of intellectual property rights;
• Public exhibition of infringing copies by way of trade, and
• Importation of infringing copies into the country of origin.

Fair dealing

We should understand that some of the acts may not be considered an infringement of intellectual property rights. These include:

• Research
• Criticism or review
• Backup copies on a computer
• Reporting current events
• Report of judicial proceedings
• Use by teacher in course of instructions
• Answer in an examinations

Challenges for the publishing industry

The digital environment has posed many challenges for copyright owners by upsetting the balance between various interest groups in terms of accessing and reproducing copyright material. This disruption takes place in a number of ways:

• Digital technology has made copying and reproduction of the copyright material much easy and faster.
• The quality of the copied material can be matched with the original.
• Internet has facilitated the access and reproduction easier.

For the policy makers, it is prudent to strike a balance between the copyright and the demand of those consumers for access to those works.However, it is now evident that copyright will be asimportant to developing solutions appropriate to thenew digital environment, as it has been to the print and publishing industry.

Technological advances and advent of photocopying, pages from creative works, both scientific and creative are copied with immunity, with no control of anykind whatsoever, putting the creator and the publisher of the work at great loss.

In order to safeguard the reproduction rights of the creators reprographic rights organizations were formed in many countries, called Reprographic Rights Organizations (RROs). Indian Reprographic Rights Organisation (IRRO) was established in and registered under the Societies Registration Act 1860, in the year 2000.

The objectives of RROs include:

• Encouragibg respect for copyright and make people aware of their obligations to authors and copyright holders.
• To give licences under various rules and regulations to users for copying pages from books.
• To initiate legal proceedings whenever called upon to do so for the enforcement of the rightsentrusted to IRRO, etc.

Plagiarism

When an author or creator of literary or artistic work submits his/her work purporting to be his/her own, but which in any way borrows ideas, organization, wording or anything else from another source without appropriate acknowledgment of the fact, the author or creator is guilty of plagiarism. Blatant intellectual property infringements are more of a problem in some countries than in others. Yet it is the most persistent drain on publishing resources and energies. Piracy prevents the growth of the indigenous publishing industry

The importance of the publishing industry

The publishing and printing industries are extremely significant to the national development and growth. The publishing industry is one of the core copyright industries.It is imperative for the national growth to develop a publishing industry because it contributes to the education system and skills development within communities. This is true both for traditional hard copy publishing activities and digital dissemination of intellectual property.

Another further benefit is that groups of authors, illustrators and publishers and professional organizations are important for the sharing of knowledge, skills development and for fostering cultural interchanges between creators and the wider communities. They also influence government and society to generate improvements to the copyright system for the benefit of creators.

Remedies for infringement or violation of intellectual property rights

Inspite of all the national and international treaties and protocols, violation of intellectual property rights do happen. The worst sufferer in such a case is the publisher who has put substantial amount of money in the creation of the authors work in any tangible form. What remedies do we have? The Indian Copyright Act (1957) provides certain remedies in event of infringement of these rights. These can be classified as civil, administrative and criminal.

The civil remedies include Interlocutory Injunctio through an order or judgement of court restraining some person from doing certain things which are detrimental to the interests of another or the others.

Mareva Injunction is granted to restrain the defendant from disposing off assets which may be required to satisfy the plaintiff’s claim or removing the assets from the jurisdiction of the court.

Permanent injunction: When in a suit for infringement of copyright, the plaintiff succeeds in establishing infringement of copyright; he is entitled to a permanent injunction to restrain the defendant from infringing the copyright in future.

Damage: It means the money claimed by, or ordered to be paid to a person as compensation for the loss or injury.

Account of profit: A successful plaintiff in an action for infringement of copyright is entitled to the account of profit and thereby the defendant is ordered to account to the plaintiff for profit made by infringing the plaintiff’s copyright.

Similarly criminal remedies like imprisonment, fine, seizure of the stocks etc. are also available to the holder of copyright for any infringement. Administrative remedies like moving the Copyright Board of professional bodies is also open to the publishers’ whose works have been infringed.

But as you all know that the legal proceedings are slow and it is like putting good money after bad.

The state also has a responsibility to support its publishing industry with intellectual Property awareness campaigns in the interests of cultural advancement and diversity. The threat of legal action by publishers is a disincentive. However, a disincentive is insufficient to turn around a culture of copying and the goal of aneffective campaign should go beyond educating the general public to convincingthem that unauthorized use of intellectual property is not only illegal and morally objectionable, but above all, is counter-productive to their nation’s economic, social and cultural development objectives.

Conclusion

Thus, publishing is difficult business. It is more difficult than any other business. If you can make mpney in publishing, you can make more money in other business. Publishing is an integral part of the intellectual and cultural system of any country. Most simply, the publisher is a coordinator of the process by which a book is produced. In the words of Philip G Altbach, “A publisher is, therefore, a businessman, an intellectual, a publicity agent, a grammarian and hopefully in the long run a teacher.”

In order to keep the torch bearers of creativity afloat, the interests of the creative community of authors, artists, and of course, the publishers, and society must learn to respect their intellectual property.