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.
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