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Are Copyright Laws hindering accessibility to Government Knowledge?

Are Copyright Laws hindering accessibility to Government Knowledge?
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Books lose their commercial value quickly. Most copyrighted books are out of print. Of the 10,000 US books published in 1930, only 174 were still in print in 2001. Of the 63 books that won Australia’s Miles Franklin prize over the past half-century, ten are unavailable in any format. Most sound recordings’ value is used up within a decade and the sales of most fiction dissipate after a year. In the era when copyright terms had to be renewed, very few authors bothered. What was the point for works with no market? Sometimes, the original publisher has gone out of business or been absorbed by a competitor. The authors may have died, and their estates and heirs are often unaware of their rights. The resulting orphaned works are still technically protected, yet they usually have little commercial value.
- Extract from "Athena Unbound: Why and How Scholarly Knowledge Be Free For All" by Peter Baldwin

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The Historical Context of Copyright in Government Work

The concept of copyright in government work can be traced back to the Imperial Copyright Act of 1911, which laid the groundwork for copyright laws in many former British colonies, including India. These laws were designed to protect the economic interests of authors and publishers by granting them exclusive rights to reproduce, distribute, and perform their works. However, government works, created with public funds, were often caught in a legal grey area. The rationale for protecting government works under copyright law was to maintain control over their distribution and ensure their accuracy and authenticity.

In India, the Copyright Act of 1957 currently governs the copyright of government works. Section 17(d) designates the government as the owner of works created or published by it, granting it economic rights under Section 14. The unauthorised use of these works constitutes infringement under Section 51. However, Section 52(1)(q)(ii) exempts liability if the legislative act is reproduced with commentary or original matter. This complex legal landscape often limits the public’s ability to access and use government publications freely.

The Need for Open Access/ Easy Accessibility to Government Publications

Government works are frequently produced using public funds and are intended for public consumption. These works include legislative texts, court judgments, committee reports, and publications by various government bodies. Despite initiatives like the National Data Sharing and Accessibility Policy (NDSAP) and the Right to Information Act (RTI), the strategy for making government publications accessible remains insufficient.

The lack of a coherent national policy defining the responsibilities of government agencies concerning the availability of copyrighted works exacerbates the problem. A national policy is required to precisely define these responsibilities. Government works could be licensed under Creative Commons licenses, enabling unrestricted, public access and reuse for both non-commercial and commercial purposes. This approach would ensure that government works, are available for public use and can be leveraged to foster innovation and creativity. 

The Economic Impact of Stringent Copyright Laws

Stringent copyright laws can negatively impact the economy, as demonstrated by financial data from various government agencies showing the revenues and expenses related to publishing, as discussed in the research article "Reimagining Copyright in Government Works”. The poor sales of government publications highlight the limitations imposed by restrictive copyright laws. Open licensing, on the other hand, could improve the visibility and distribution of public works. By adopting Creative Commons licenses, government publications could reach a wider audience, enhancing their utility and impact. The economic benefits of open licensing are clear, it can reduce costs associated with enforcement, increase revenues through wider distribution, and foster a culture of sharing and collaboration.

Accessibility and E-Governance

Website inaccessibility is a significant barrier to effective e-governance. In a country like India, with a substantial population that includes disabled individuals, the elderly, the illiterate, rural inhabitants, those with limited bandwidth, vernacular language speakers, and mobile phone users, ensuring accessible websites is crucial. Accessible websites guarantee that government information and services available online can be utilised by all these groups.

A comprehensive “Accessibility of Government Websites in India: A Report” by the Center for Internet and Society measured the accessibility of 7,800 websites belonging to the Government of India and its affiliated agencies and revealed significant accessibility barriers. These websites were evaluated against the Web Content Accessibility Guidelines (WCAG) 2.0, the universally accepted standard for web accessibility. The key findings reveal that 1,985 websites failed to open, most of the remaining 5,815 have accessibility barriers, with an average of 63 errors per homepage, and some pages exceeding 1,000 errors. Furthermore, 6% of home pages have over 500 errors, 33% of websites lack alternate text for non-text objects, 58% lack navigation markup, only 52 websites offer a colour change option, 42% of web pages have form links, and 21 websites have inaccessible forms. These findings underscore the urgent need to improve the accessibility of government websites to ensure inclusive access to e-governance services for all citizens.

The Rise of Remix Culture and Its Implications for Copyright

The internet has exponentially increased user’s appetite for content, making it impossible for mainstream creators to meet all the demands. This gap has been bridged by "remix culture," a phenomenon fueled by the widespread availability of basic editing software on devices even on smartphones. Remix culture celebrates the enormous creative potential among amateur creators, who are driven by innovation rather than profit. However, these creators face significant obstacles due to copyright laws, which often restrict the use of available content.

 Although not all original creators wish to fully restrict their works, the "all rights reserved" nature of copyright law stifles creativity. Creative Commons offers a solution with its "some rights reserved" approach, allowing creators to grant various levels of permission for use, ranging from free and unlimited use to sharing with proper attribution. In India, where monopolisation is generally frowned upon, especially in creative fields, Creative Commons presents a fitting alternative.

The Case for Re-Evaluating Government Work Copyright

The theoretical justifications for copyright protection such as the incentive theory and the natural reward theory offer little support for government works. Government works are created not for commercial gain but for public governance and societal benefit. Providing economic incentives for their creation is unnecessary, as they are produced as a matter of governmental duty.

Internationally, approaches to government copyright vary widely. In the United States, federal government works are not protected by copyright, reflecting a strong commitment to public access. European countries like France, Germany, and Spain also exclude official texts from copyright protection. In contrast, countries influenced by the UK’s Crown Copyright, such as Australia, Canada, and India, have historically maintained stricter control over government works.

In India, the current copyright regime grants the government exclusive rights over its works for 60 years, including legislative acts. This approach raises several issues. The requirement that legislative acts must be accompanied by commentary or original matter to be reproduced without infringing copyright complicates access for non-commercial purposes. This restriction can hinder efforts to disseminate information widely, which is vital for public awareness and education.

Government Work and Copyright: Legal Lens

The Supreme Court of India has sought the Central government's response on whether private entities publishing bare Acts “the exact texts of specific laws” infringe on government copyright. This inquiry stems from an appeal against a Delhi High Court ruling in the case of Arpit Bhargava vs. Union of India and Anr. The petitioner underscored the necessity for accurate, authentic, and affordable hard copies of central Acts, rules, notifications, regulations, and similar legal texts.

In November 2019, the Delhi High Court determined that any violation of the Copyright Act 1957, particularly Sections 52 and 2(k) alongside Section 17(d), would lead to legal action against offenders. The current appeal highlights several issues, including the public's right to know and the accessibility of government works.

In India, the concept of originality is judged based on skill, judgment, and a minimal degree of creativity, as established in the DB Modak case. The court acknowledged the editor's creativity in organising the text, which includes paragraph numbering, internal referencing, editorial notes, footnotes, and headnotes. The court asserted that substantive variation, not trivial alterations, supports copyright.

In the case of Reed Elsevier Pvt. Ltd, the court ruled that court judgments could not be copyrighted, emphasising that creativity must be contextually determined. The market features various types of bare acts: some include case laws and comments, others brief descriptions of provisions and amendments, while some are mere reproductions of legislative acts. The former may qualify as original work under Section 52(1)(q)(ii), whereas the latter constitutes copyright infringement.

Reproducing government work is crucial for public awareness of laws, aligning with the doctrine Ignorantia Juris Non Excusat (ignorance of the law is no excuse). However, legislative acts necessitate commentary or original work under Section 52(1)(q)(ii), complicating reproduction even for non-commercial purposes. This raises questions about the necessity and fairness of such copyright protection.

Towards a Balanced Approach

There is a need to adopt a more nuanced approach that balances the need for public access with the government's interest in maintaining control over its works. One potential model is the Canadian approach, which allows for the reproduction of government works for non-commercial purposes while retaining the ability to enforce copyright against commercial exploitation. This model ensures that the public can freely access and share important legal information, while the government can still generate revenue from commercial uses.

The government can use digital platforms to provide free, official versions of laws, regulations, and judicial decisions. This will make legal information more accessible and ensure that citizens have the most up-to-date and accurate information.

The COVID-19 pandemic has made the digital divide in India worse, especially for marginalised and rural communities. Many student suicides have been linked to a lack of access to education. Only a quarter of Indian families have internet access, dropping to 15% in rural areas. This shows how important it is to make education more inclusive, both online and offline. It's crucial for everyone to have access to learning materials and textbooks, but there have been challenges in distributing textbooks in India, especially during the pandemic.

To address these issues, it's important to change strict copyright policies so that educational materials can be shared more widely. The Karnataka model, which allows free reproduction with attribution, is a more inclusive approach. Digital platforms like DIKSHA and SWAYAM can also help bridge access gaps. However, relying on private entities like Telegram, and YouTube for educational content raises concerns. Encouraging the commercial reuse of textbook materials in new formats can also make learning materials more accessible and encourage creativity.

Ensuring the accuracy and authenticity of reproduced government works is another critical aspect of this debate. Unauthorised reproductions without proper oversight can lead to the dissemination of inaccurate or outdated legal information. By allowing non-commercial reproduction but retaining control over commercial uses, the government can provide high-quality, authentic versions of its works while still promoting widespread public access.

The Open Data Movement in India

The concept of open data, which promotes making data freely available for use, remixing, and distribution, has gained global traction. Open data typically comes with minimal requirements. Many institutions worldwide have committed to open data access, with governments increasingly joining this movement. India, too, is legally obliged to adhere to open data guidelines. According to the Open Knowledge Foundation’s "State of Open Government Data Index 2018", India ranks 32nd, with a score of 47% while Taiwan ranks first, followed by Australia, the United Kingdom, and France.

The National Data Sharing and Accessibility Policy (NDSAP) of 2012 mandates all public authorities to regularly share their data under Section 4(2) of the RTI Act. The NDSAP applies to all non-personal, non-sensitive data produced with public funds by various government levels and departments. The policy emphasises openness, transparency, quality, privacy, and machine readability.

Despite these efforts, obtaining a good open data set in India remains challenging. Many data-rich departments have not provided significant data contributions, and some have regressed in their data-sharing practices. For instance, the Central Board of Indirect Taxes and Customs (CBITC) stopped publishing import and export data sets in November 2016, adversely impacting businesses relying on this data for market intelligence.

The Role of Voluntary Organisations

Voluntary organisations have played a significant role in promoting open data in India. Organisations like DataMeet, WikiData, lawresource.org, and OpenStreetMap have been instrumental in filling the gap left by government efforts. For example, DataMeet digitised and geo referenced PDF and image maps of parliamentary constituencies in 2014, creating one of the few openly licensed geographical data sets available.

The OpenStreetMap Foundation provides freely available geospatial data, significantly contributing to the open data movement in India. Volunteer contributions to OpenStreetMap have created a comprehensive geographical database, although challenges remain in accessing government-held data.

Reimagining Copyright and Embracing Open Access

Reimagining copyright in government work is not merely a legal or technical issue but a crucial step towards fostering a more inclusive, innovative, and transparent society. The current copyright regime in India, which grants exclusive rights to the government over its works, often hinders public access to vital information and restricts opportunities for creativity and innovation. This situation stands in contrast to global trends favouring open access and open data initiatives that promote unrestricted use, remixing, and distribution of government-produced knowledge.

To address these challenges effectively, India could benefit from adopting a balanced approach that preserves the government's ability to manage and authenticate its works while ensuring broad public access for educational, research, and commercial purposes. Models such as Creative Commons licensing provide a flexible framework that allows governments to retain control over commercial exploitation while encouraging non-commercial use and dissemination.

Moreover, the implementation of comprehensive open data policies, like the National Data Sharing and Accessibility Policy (NDSAP), should be strengthened and enforced across all government agencies. This would promote transparency, accountability, and efficiency in governance while empowering citizens, researchers, and innovators with valuable data resources.

Additionally, enhancing the accessibility of government websites and digital services is crucial for inclusive e-governance. By adhering to universal web accessibility standards, governments can ensure that all citizens, including those with disabilities and limited internet access, can access and benefit from online information and services.

Lastly, the evolution of copyright in government work must be viewed within the broader context of global copyright reform and technological advancements. In the digital age, where information flows freely and creativity is boundless, rethinking copyright laws to better serve public interests is not only a legal necessity but also a moral and ethical responsibility.

In essence, by embracing openness, transparency, and collaboration, India can pave the way for a more equitable and prosperous future where government knowledge serves as a catalyst for innovation, education, and societal progress. This transformative journey requires concerted efforts from policymakers, legal experts, technologists, civil society, and the public at large to ensure that our collective knowledge and creativity thrive in the digital era.

Efforts to promote open data in India have encountered significant challenges despite initiatives like the National Data Sharing and Accessibility Policy (NDSAP) of 2012, which mandates public authorities to share non-sensitive data. While platforms such as data.gov.in host numerous datasets, many are incomplete and infrequently updated. Key agencies like ISRO and NSSO have been hesitant to contribute, citing concerns over data security and accessibility. Moreover, some departments have regressed in data-sharing practices, exemplified by the Central Board of Indirect Taxes and Customs (CBITC) discontinuing import and export data sets, adversely affecting market intelligence and small-scale industries. Despite these setbacks, volunteer-driven organisations like DataMeet have played a crucial role in bridging data gaps, emphasising the need for a more cohesive and transparent approach from government bodies to fully leverage the economic and societal benefits of open data.

Moving forward, enhancing the transparency and accessibility of government data in India is pivotal. This requires robust enforcement of NDSAP guidelines, addressing departmental reluctance to share data, and eliminating restrictive practices such as those seen with the Bureau of Indian Standards (BIS). Supporting volunteer initiatives and ensuring comprehensive, regularly updated datasets are available will not only stimulate innovation but also aid disaster relief efforts and bolster economic growth. By fostering a more open data ecosystem, India can harness the full potential of its digital resources for the benefit of governance, industry, and society at large.


IP Round-up

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  1. "The 2024 Global Startup Ecosystem Index" by StartupBlink, released on May 30, 2024, evaluates 1,240 cities and 119 countries, uncovering key trends in global startup ecosystems. Developed with partners like Crunchbase and Statista, and in collaboration with over 100 government entities, the report offers deep insights into factors driving startup growth worldwide.

    The United States maintains its lead as the top country for startups, followed closely by the United Kingdom and Israel. Canada holds the 4th position, with Singapore making significant strides. India has surged back into the top 20, claiming the 19th spot, up from 21st in 2023.

    San Francisco retains its dominant position in city rankings, with New York following closely in 2nd place. London, Los Angeles, Boston, and Beijing also hold stable positions. India boasts three cities in the global top 20: Bangalore (8th), New Delhi (11th), and Mumbai (20th). Hyderabad climbed 24 spots to 65th, and Chennai rose 21 spots to 81st globally.

    India shows robust diversification in its startup ecosystem, with a record 46 cities ranked in 2024, up from 38 last year. Notably, 9 cities made their debut, highlighting India's expanding footprint. Six Indian cities are among Asia's top 10 for Agtech, with New Delhi leading the pack.

    Despite its challenges, including brain drain and digital infrastructure gaps, India's startup growth is fueled by a large domestic market and a burgeoning IT industry. Government initiatives like Startup India and favourable budget allocations aim to bolster the ecosystem further.

    Global trends indicate a shift towards regionalisation amidst rising geopolitical risks, though maintaining a global strategy remains crucial. Emerging sectors like AI, health tech, and blockchain are driving innovation, influencing startup dynamics worldwide. (Source:
    The 2024 Global Startup Ecosystem Index)
Trends in Top 20 Countries Image Source: 2024 Global Startup Ecosystem Index
  1. Pine Labs Pvt, an Asian digital payments provider supported by Peak XV Partners and Mastercard Inc., is exploring plans to raise approximately $1 billion through an initial public offering (IPO) in India, according to sources familiar with the matter. These plans come amidst a growing interest from investors in India's stock market. The company aims to achieve a valuation exceeding $6 billion in the IPO, potentially issuing a combination of new and existing shares. Pine Labs' IPO would be the largest by an Indian fintech firm since Paytm's operator, One97 Communications Ltd., raised $2.5 billion in 2021. In 2024 alone, India has witnessed IPOs raising approximately $7 billion, marking a significant surge from the previous year and solidifying its position as a key global market for share sales. (Source: moneycontrol)
POS Machine Image Source: Pine Labs
  1. The conflict between the music industry and artificial intelligence has reached a critical point as major record labels, led by the Recording Industry Association of America (RIAA), have filed copyright infringement lawsuits against AI music companies Suno and Udio. These lawsuits, filed in federal courts in Boston and New York, allege extensive unauthorised use of copyrighted sound recordings for training AI models. The plaintiffs seek significant damages of up to $150,000 per infringed work, along with legal fees. The lawsuits claim that both Suno and Udio utilised copyrighted works across various genres and time periods without authorisation, despite previous confrontations by record labels. (Source: Business Times)
Logo of Udio and Suno Image Source: Tom's Guide
  1. Shark Tank India”, faces fresh controversy. Pathik Patel, founder of Fit & Flex, accuses the channel of unjustly targeting his brand for alleged trademark violations. Patel has issued a legal notice claiming that Sony suspended Fit & Flex's ad account and restricted its social media presence without prior warning, following their appearance on the show. Expressing frustration on LinkedIn, Patel highlighted the impact on their direct-to-consumer business, describing the situation as a "nightmare" despite initial joy at being featured nationally. Attempts to resolve the issue with Sony and Meta have reportedly been unsuccessful, affecting over 70 brands similarly involved. (Source: Mint)
Shark Tank India Image Source: Business Standards
  1. Bharat Biotech International Limited (BBIL) has taken steps to include the Indian Council of Medical Research (ICMR) as a co-owner in the patent application for Covaxin, following an initial omission that was described as unintentional. This move comes after reports highlighted that patent filings in India, the US, and Europe did not originally mention ICMR, prompting BBIL to clarify that in the haste to develop and patent the COVID-19 vaccine, the inclusion was overlooked. (Source: Business Standard)
Covaxin Vaccine Image Source: Bharat Biotech

References:

Baldwin, P. (2023). Athena Unbound: Why and how scholarly knowledge should be free for all (Chapter 2, p. 44). MIT Press.

Barooah, S. P. (2013, November 14). Creative Commons India relaunched. SpicyIP. Retrieved June 21, 2024, from https://spicyip.com/2013/11/creative-commons-india-relaunched.html

Bloomberg. (2024, June 21). Fintech firm Pine Labs weighs $1 billion IPO in India: Report. Moneycontrol. Retrieved June 25, 2024, from https://www.moneycontrol.com/news/business/ipo/fintech-firm-pine-labs-weighs-1-billion-ipo-in-india-report-12753751.html

Centre for Internet and Society. (n.d.). Accessibility of Govt Websites: a report. Retrieved June 23, 2024, from https://cis-india.org/accessibility/accessibility-of-govt-websites.pdf

Creative Commons. (n.d.). Creative Commons Attribution 2.5 India License. Retrieved June 25, 2024, from https://creativecommons.org/licenses/by/2.5/in/

Creative Commons. (n.d.). Government use of Creative Commons. Creative Commons Wiki. Retrieved June 23, 2024, from https://wiki.creativecommons.org/wiki/Government_use_of_Creative_Commons

Das, S. (2024, June 23). Bharat Biotech moves to add ICMR as co-owner in Covaxin patent filings. Business Standard. Retrieved June 25, 2024, from https://www.business-standard.com/companies/news/bharat-biotech-moves-to-add-icmr-as-co-owner-in-covaxin-patent-filings-124062200827_1.html

Dhonchak, A. (2021, July 1). Copyright ownership in state board textbooks: Impediments to accessibility. SpicyIP. Retrieved June 22, 2024, from https://spicyip.com/2021/07/copyright-ownership-in-state-board-textbooks-impediments-to-accessibility.html

Dixit, P. (2024, June 25). Music industry giants sue AI music companies Suno and Udio for copyright infringement. Business Today. Retrieved June 25, 2024, from https://www.businesstoday.in/technology/news/story/music-industry-giants-sue-ai-music-companies-suno-and-udio-for-copyright-infringement-434547-2024-06-25

Dwivedi, P. (2013, November 13). History of Creative Commons in India. Centre for Internet and Society. Retrieved June 20, 2024, from https://cis-india.org/a2k/blogs/history-of-creative-commons-in-india

Livemint. (2024, June 25). Sony Entertainment Television's Shark Tank India faces legal trouble over alleged trademark violations. Livemint. Retrieved June 25, 2024, from https://www.livemint.com/companies/news/sony-entertainment-television-s-shark-tank-india-faces-legal-trouble-over-alleged-trademark-violations-11719282090270.html

Panigrahi, S. (2018, August 20). As Creative Commons restructures globally, what should its future in India look like? The Wire. Retrieved June 21, 2024, from https://thewire.in/tech/as-creative-commons-restructures-globally-what-should-its-future-in-india-look-like

StartupBlink. (2024). Global Startup Ecosystem Report. Retrieved June 21, 2024, from https://www.startupblink.com/startupecosystemreport

Thejesh G N. (2020, June 6). Voluntary organisations in India to counteract the state's copyright regime on open data. Economic and Political Weekly, 55(23). https://www.epw.in/engage/article/voluntary-organisations-india-counteract-states-copyright-regime-open-data

Vyas, L. (2020, June 8). Copyrightability of a bare act: The need for a legislative shift. IPRMENTLAW. Retrieved June 25, 2024, from https://iprmentlaw.com/2020/06/08/copyrightability-of-a-bare-act-the-need-for-a-legislative-shift/

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Written By Shivani and Abhilasha. Technical assistance for audio generation by Khushi Kesari


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