When the US entertainment industry looks at India, it sees one gigantic copyright problem. That's why it wants India to remain on the US government's "Priority Watch List" for intellectual property issues in 2010, and that's why it blasted the country's new copyright proposals for (among other things) having too many legal reasons to bypass DRM.
But what happens when you look at India from the perspective of culture and consumers? The country comes out number one.
Finding your balance
That's the result of the recent Consumers International "IP Watchlist 2010," a document that hopes to balance the perspective of the entertainment industry by looking at the same issues around the world from the point of view of citizens' rights and access to knowledge.
Unfortunately for consumers, the study "is unable to report any overall improvement in the global state of access to knowledge for consumers in 2010. Rather, we see consumers' interests still being sidelined as lawmakers rushed to meet the never-ending demands of lobbyists for the entertainment and media conglomerates, who shaped domestic and international laws with their hyperbolic talk of piracy, theft, and organized crime."
The document doesn't make a plea to get rid of copyright, but instead to "see more balance [brought] into the equation." Although rightsholder lobbying groups often portray their concerns as a mere matter of living up to "international standards," Consumers International contends that these "standards" are often illusory.
For example, the IIPA (which represents the RIAA, MPAA, and many others) recently complained to the US government that many countries around the world lack a dedicated anti-camcorder law. This is clearly high on Hollywood's agenda, and has in fact been written into the Anti-Counterfeiting Trade Agreement (ACTA) draft already.
But it's not in the existing treaties that define "international standards," and Consumers International points out that using a camcorder in a movie theater is "already an infringement of copyright" in most countries. While the industry might like to see specific criminal penalties in such cases, such claims "bear no relation to standards set in international law" and should certainly not be grounds for the US to put a country on some industry-driven "watch list."
When countries are ranked for consumer-friendly copyright regimes by Consumers International, India, Lebanon, Israel, the United States, and Indonesia topped the list. In the bottom 10 are countries as diverse as the United Kingdom, Kenya, and Japan. The rankings don't correlate with national wealth, but the best-ranked countries all have "copyright exceptions that are broad and general" (like US fair use law) rather than limited and specific exemptions.
The drafters of the study aren't naive about piracy, but they clearly don't see its effect through the same lens used by the big copyright holders.
"It is true that copyright infringement, particularly in the form of physical media, is widespread in India," says the India country report. "However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture.
"Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Physically challenged persons have no option but to disobey the law that does not grant them equal access to copyrighted works. Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works in a suitable format."
Similarly, when it comes to problems created by the free sharing of copyrighted works over the Internet, Consumers International recommends new business models such as a voluntary blanket license for music, sales of physical merchandise, public or corporate patronage, or licensing works for use in TV shows, movies, etc.
All such alternative business models are terrific ideas and absolutely need to be explored, though the report does feel at times too dismissive of the real challenges brought about by online infringement and the general effect that such infringement has on eroding support for the very idea of "copyright."
Still, as a corrective to the entertainment industry that wants India watched closely by the US for even thinking about mandating open source software or Indian-produced code in government computers, it's quite a helpful piece of work.
And it nicely illustrates that point that many times, what you look for determines what you find. When the IIPA looked it India this year, it saw one of the worst copyright offenders on the planet, one that needs the corrective help of the US government to do things the right way. When India is considered from another perspective, it comes out of top for entirely different reasons.
Common ground (seriously!)
It's not all disagreement, though; both the entertainment industry and Consumers International agree that the US has one of the best intellectual property systems on the planet. That finding bolsters the Special 301 idea that the US really should encourage other countries to adopt many parts of our system; but it also means that, unlike in ACTA, the US needs to be exporting all parts of that system.
In other words, the US Trade Representative should not be concerned only with mandating DRM anticircumvention, but with encouraging more robust fair use laws. Done in this way, there might be more agreement between the two sides than is sometimes visible in their writings. But the general industry attempt to export restrictions and enforcement, not exceptions and robust fair use, has produced something one-sided and rather monstrous when it comes to international IP policy.
No wonder, then, that when the US wanted even stronger enforcement mechanisms and a new set of international norms with which to bludgeon the world, it ignored WIPO and the WTO and formed an entirely new organization. As recent events at WIPO (see: copyright exceptions for the blind) have shown, the rest of the world is no longer content to talk only about enforcement—they want to talk exceptions, too.
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