The Minister
of Information and Broadcasting, Government of India, Mr Jaipal Reddy recently
made a statement in Goa that the Government is considering a new legislation
in the form of "Optical Disk Protection Act" (ODPA) to safeguard the interests
of the Film industry suffering from the ill effects of "Video Piracy".
The
statement is an exact replica of the statement made last year in similar
circumstances and apparently, no progress has been achieved during the
intervening period. However the renewed interest in the subject by the
Minister indicates that there is a likelihood of some action in drafting a
legislation at least this year.
It is
necessary for the industry and professional circles to start discussing the
possible direction in which the legislation should move. Some points for
discussion are therefore presented here for comments from other IPR
specialists and industrialists.
Naavi
Scope of the
Proposed ODPA
The first
question that needs to be sorted out is whether the name given to the act
indicate that the scope of the act would be limited to "Regulation of the
CD/DVD medium"?. If so the legislation may restrict itself to
a) Registration
and Licensing of entities permitted to create content CDs/DVDs on an
industrial scale
b) Mandate
introduction of hard codes in the media identifying the production in a
licensed environment. (This would be similar to the IMEI code on a mobile
phone)
c) Mandating
introduction of soft codes in the media identifying the content owner who is
expected to be the "Publisher" and "Copyright owner".
d) Indicate
penalties of both civil and criminal nature for contraventions
e) Indicate
process of grievance redressal
...etc
It may be
recalled here that in 2000 along with ITA-2000, a legislation often referred
to as "Semi Conductor Act" and named "Semi Conductor and Integrated Circuits
Layout Designs Act" was passed by the Parliament. however the act languishes
in the achieves for lack of notification. Similarly the Ministry of
Communications and Technology is finalizing a national policy on IT hardware
manufacture which may include a policy on manufacture of CDs and DVDs.
Additionally, Indian Copyright Act covers Copyright on CDs and DVDs and
ITA-2000 covers offences and contraventions related to unauthorized access and
copying of material in electronic form.
It is therefore
necessary that the new legislation should not end up creating conflicts with
other laws and overlapping of provisions.
Further instead
of looking at the new Act as "Regulatory Provisions for CD/DVD manufacturers",
it can be envisioned as a "Comprehensive legislation for the protection and
regulation of IPR for the digital medium". This can correct some of the ill
effects of the piecemeal legislations on Digital IPR through Copyright Act,
ITA-2000 and Semi Conductor Act.
It is also to
be noted that the concerns of the Film industry as regards Video Piracy is not
limited to production and circulation of unauthorised CDs and DVDs but also to
downloads available through the Internet. Hence the Film industry may not be
fully satisfied with the ODPA as it may have now been conceived.
It is therefore
proposed that the scope of the new legislation "Optical Disk Protection Act"
be redefined to include all aspects of IPR in Digital Medium. In such an event
even the name of the Act needs to be correspondingly changed to reflect the
scope of the legislation.
In this
context, we may also draw the experiences of the US market in respect of
Digital Millennium Copyright Act which has been in existence for more than 7
years now. The experience however has not been a very pleasant one as can be
gathered from the US IPR specialists, Library Managements and other Activists.
Hence it is necessary to make the Indian DMCA a better legislation than the US
DMCA balancing the interests of the industry with the needs of the society.
(To Be Continued)
Naavi
December 16, 2005
(Comments Welcome)
