National Conference on “Copyright Law: Limitations and Exceptions”
May 14-15, 2009

Sponsored by
Ministry of Human Resources Development
Department of Higher Education
Government of India

Organized by
HRD Chair on IPR, Centre for IPR Studies
Cochin University of Science and Technology
Cochin, Kerala

About the conference: Technological changes always created tension in balancing the interests of the creators and public. Unprecedented concern emerged in the context of digital technology. The speed in which information could be generated and distributed and the quality of copies that could be produced compelled owners of protected works to use different means including technology to regulate access. This  raises serious issues on access to information for the promotion of art, education, science and culture. There is increasing tendency to limit the scope of limitations and exceptions to copyright resulting in narrowing the public space to promote creativity. Internationally TRIPS Agreement introduced common standards for determining limitations and exceptions permissible under copyright law. The pressure on countries to narrow the scope of limitations while implementing TRIPS obligations make the developing countries to introduce the discussions on the scope of limitations and exceptions to copyright in the Standing Committee on Copyright and Related Rights in the WIPO. India is seriously involved in these discussions demanding balanced provisions so as to enhance access to information to promote growth of knowledge in digital world.

Indian copyright law recognizes different types of limitations and exceptions keeping in mind the special needs of our society. Though in compliance with the international mandates, in the context of digital technology these provisions need careful study and critical examination. The national conference was designed to facilitate this. The focus of the two day conference was entirely on different provisions available in the Indian copyright law and its consistency with the TRIPS Agreement. The provisions are clubbed under different topics to ensure focused discussions and debate. We have identified experts to prepare research papers and also comments on these papers. The papers from the experts brought different perspectives on the identified areas to encourage debate.

About the paper: Fair Dealing of Computer Programs in India: Working through the Interoperability Fair Play Yogesh A. Pai, Associate Fellow, Centad, New Delhi

The central argument in the paper is that since computer programs (which are functional in nature) are protected as literary works under copyright, some uses which are fair uses, as allowed for other literary works, may be implicated. The Indian Copyright Act, 1957 through Section 52(1) (aa), (ab), (ac) and (ad), does take care of such situations to a larger extent. However, due to definitional ambiguity concerning the scope of the section, it may be prone to vulnerable interpretations. Keeping in mind the essential balance that the copyright system needs to strike as a matter of law and policy between right holders and fair use, this article has flagged different concerns, primarily focusing on interoperability analysis. Interoperability is central to software development and consumer choice in a networked software market, but at the same time valuable for copyright owners.

The article has argued for adopting novel interpretations from a legal perspective and has attempted to fill-in the lacuna or gaps in the current law and policy framework on fair use of computer programs. It also argues that the Indian copyright amendment Bill that provides for exceptions to protection of technical measures allows such broad interpretation as existing under current law and as proposed. Although controversial, it is also argued that contractual restraints on fair use and specifically fair dealing of computer programs is not provided for under the current legal scheme of Copyright Act, 1957. The paper further argues that the current wording and the proposed broader interpretation with some exceptions do well qualify the three-step step under the Berne Convention and the TRIPS Agreement.