The recently leaked Intellectual Property chapter of the Regional Comprehensive Economic Partnership has garnered much attention worldwide. Given the imminent negotiations over the free-trade agreement between India and 15 other Asia-Pacific countries, the leaked draft gives a direct insight into the stand that participating countries would be taking over IP protection, one of the major concerns of the FTA. The provisions relating to copyright protection are particularly worrisome, since they call for stringent measures, in excess of India’s current IP law obligations under the WTO.
Under the RCEP, each party must ratify or accede to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The WCT and the WPPT (together known as WIPO Internet Treaties) protect the rights of authors and performers/producers of phonograms respectively.
A unique feature of the WIPO Internet Treaties is that they provide effective legal remedies against the circumvention of technological measures taken by authors and performers/producers of phonograms to protect their works on the internet (also known as Digital Rights Management or DRM measures). For instance, certain apps enable internet users in India to watch shows on video-streaming website Netflix even though the content is not available in India. They achieve this by circumventing technological measures put in place by Netflix to restrict the downloading of its content in a particular region.
Under the WIPO Internet Treaties, the internet user who circumvents the technological measure would be liable for circumventing the DRM measures irrespective of whether the internet user downloaded the content for their personal enjoyment (without the intention to make the content available commercially).
The WIPO Internet Treaties have been criticised by internet activists for imposing substantial costs on the public without any real benefits to the artists. Additionally, the DRM measures threaten free speech and access to information online.
The RCEP itself contains many provisions of the WIPO Internet Treaties, including the DRM measures.
While India is not a signatory to the WIPO Internet Treaties and is as such not obligated to conform to them, India incorporated many of the provisions of the WIPO Internet Treaties including DRM measures when it amended its copyright legislation in 2012. Since India is not bound by the WIPO Internet Treaties at present, it can repeal the over-arching provisions anytime it wishes on the ground of public policy. However, this would be impossible if the RCEP in its current form becomes a reality.
The DRM measures are a TRIPS-plus measure which means that under the WTO, India is not obliged to abide by them. If India agrees to the current copyright law provisions in the RCEP and accedes to the WIPO Internet Treaties, India would necessarily have to honour its obligations under the FTA. If this happens, it is likely that India would pass a law similar to the Digital Millennium Copyright Act (DMCA) in the US to strictly enforce measures against the circumvention of digital rights management. The DMCA, which criminalises production/dissemination of technology, devices and services intended to circumvent DRM measures, has been widely criticised for chilling scientific research and freedom of speech and expression online.
The WIPO Internet Treaties also lack a fair-use exception for circumvention of technological measures. While the Indian law does not expressly provide for fair-use exception in the protection of technological measures, it allows acts committed to circumvent the technological measures if they are “not expressly prohibited” under the Indian law. Unless the RCEP allows for fair-use exceptions (for private or personal use, including research), the freedom of the internet in India stands to be threatened due to the RCEP.
Given that the DRM provisions in RCEP will negatively impact internet users in the country, India must take a hard stand when negotiating the IP chapter of the RCEP.
– Written by Radhika Agarwal & Devika Agarwal
[This op-ed was originally published in The Hindu Business Line on 4th May, 2016.]