Sunday, January 4, 2015

Copyright Extremism: Denying Access to Information


Can you be threatened with criminal charges and consequent jail term for sharing a research paper online? ‘Hell, no!’, would most likely be your answer. You are wrong, as per the law in many countries!

One of the widely discussed copyright cases in 2014 was that of Diego Gomez, 26, researcher in Columbia working on biodiversity and the conservation of reptiles and amphibians in the South American region. A couple of years ago, he shared a research paper that he wanted to bring to the notice of other researchers in his field on Scribd. And this cost him a price! He is now facing a lawsuit filed by the author of the paper for violation of copyright. Under the Columbian copyright law, Gomez could be sent to prison for up to eight years and face crippling monetary fines. The case of Gomez brings to focus the issue of access to knowledge and information. You may read more about this case here.

This is an extreme case. But it is at the extremes where the real test of the law lies.

The Provisions of the Law

At the core of copyright protection is the balance between the economic rights of the author and the need of the public to access information. The most basic copyright treaty, the Berne Convention recognizes this. Therefore, while granting rights to the authors, the law provides for limitations and exceptions to the rights. These are generally known as fair use provisions.

The basic principle is as follows. The authors of literary works (research paper in this case) have the exclusive right of reproduction and distribution of such works in all media, including online. The law places limitations on this right of the author. Since the laws of different countries may vary the basic provision in Berne Convention is reproduced below:

Article 9: Right of Reproduction:
 (1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
Article 9 (2) permits countries to frame laws to allow reproduction of works under the three step rule, namely:
(1)   Such reproduction occurs in special cases;
(2)   such reproduction does not conflict with a normal exploitation of the work;
(3)    and does not unreasonably prejudice the legitimate interests of the author

The copyright law of most countries provides research use of copyrighted material as fair use. This is because research use is regarded as a special case, which does not affect normal exploitation of the work. TRIPS follow similar provisions.

Columbian Double Whammy

Columbia, a civil law jurisdiction, has some peculiarities in its copyright law. The copyright violations are treated as criminal violations, unlike many other jurisdictions including US where it is a civil offence. Columbia modified its law and tightened the copyright regime following the conclusion of the US trade agreement with Columbia in 2006.
The exceptions available under the Columbia's copyright law were outdated. While tightening the law to meet the bilateral agreement with US, Columbia failed to extend the exceptions permitting fair use of its work. Therefore, just one side of the law got stringent. Columbia failed to adopt the fair use provisions which US permits in its copyright law, while the rights were tightened. Some, like EFF has ascribed the restrictive provisions of the trade agreements as the reason limiting the nation’s ability to make changes to the fair use provisions.

Bilateral Trade Deals, Beware!

Copyright laws are municipal laws. International treaties provide only certain minimum standards. These will have to be legislated into law (except in jurisdictions where treaties have the force of law). This gives the freedom to nation states to craft its policies. Also, the treaties prescribe only minimum standards and nation states are free to provide stronger protection. Therefore the tougher law of Columbia does not violate any conventions. It only limits the ability of its citizens to access works.

The national laws are normally passed after a legislative process. International treaties are adopted after extensive studies and negotiations. Such processes ensure a balance in approach in such instruments. However, trade agreements are concluded for protecting commercial interest and are not subjected to any such process and often lack balance. It is therefore in the interest of the countries entering into such bilateral agreements to modify their laws to protect the interest of its people. This EFF post states that the copyright law of Colombia has a closed list of fair dealing exceptions that must be passed legislatively, rather than the open-ended, flexible exceptions permitted by other fair use systems (like in the US).
It is estimated that there are about a dozen bilateral US trade deals that contain copyright provisions that echo US copyright law. But the trade treaties are without the public interest protections that are built into US law, such as fair use. Therefore the countries that adopt such trade treaties need to take appropriate remedial measures.


The Indian Law

Indian copyright law provides for fair dealing of copyright works under Section 52 of the Copyright Act 1957. Section 52 (1) (a) provides that fair dealing with any work for private or personal use, including research shall not constitute infringement of copyright. The Explanation to this clause clarifies that the provision has been extended to digital environment. Therefore Indian law provides for fair use on the internet. The key words to be noted are ‘private or personal use, including research’. The key question is whether sharing online is private or not. While sharing copyright works with a limited private group is permitted, sharing online publicly seems to fall afoul of the law.

Fight for Fair Use:

Copyright laws are designed to protect the rights of the author and provide reasonable access to the public for works. The provisions of the law are restrictive. The rightholder’s always try to push the envelope to expand the right. It is for the users to assert their right as well. Unless the users fight for the fair use rights, they will lose their precious freedoms. If users are not alert about their rights, they might face Diego Gomez’s fate.

Open Access:


It is due to the restrictive conditions of access to copyright works that Open Access movement has attracted the attention of researchers. Open access (OA) means unrestricted online access to peer-reviewed scholarly research. Those researchers who believe in access to knowledge as the cornerstone of progress, should opt for publishing in Open Access format.