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Legal issues, copyright & intellectual property rights in the entertainment industry

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The session was inaugurated by Jorgen Blomqvist, director of Copyright Law Division of the World Intellectual Property Organisation (WIPO). While putting forth the need for India to follow WIPO regulations, he came out with the salient features of the organisation.

Government support, inexpensive nature, lack of formalities and the automatic global protection in 145 countries were among the special advantages WIPO had, according to Blomqvist.

The media market is divided into few Gigaplayers (read huge) and innumerable small and medium size enterprises. The big players know and have the capabilities to protect their interests as far as copyrights are concerned but it is the smaller player who is the victim of copyright violations.

"It is the private individual's rights that have to be taken care off, as this section is not protected and there is nobody except the person himself who has to manage the rights. Copyright protection is more dependent on self-determination, where the management cost in terms of the cost of monitoring, enforcement, legal support, etc is very high and at times may be more than the damages awarded," says Blomqvist.

"The solution can be the collective management of the rights. In this case the associations of the respective fields will play a major role," opined Blomqvist. "This will provide some kind of system and additional bargaining power/collective pricing."

"Even the Insurance sector can play a major role by insuring the work as individuals and medium size enterprises can opt for that at a comparatively cheaper rate and can at least be guaranteed some compensation." He gave the example of Hindi films that are shown in many parts of the world from Africa to Latin America, which is the best example of copyright violation. When asked about what kind of action could be taken by WIPO, he replied that WIPO itself could not take any action, but it intimates the government in that country to take action.

Talking about copyright violations due to the new technologies, specifically the Internet, he said the Internet has given a new global outlet for violation. This medium is fast and comparatively inexpensive but at the same time high piracy and high cost of monitoring discount the benefits. "The contributory liability of the Internet Service Providers needs to be fixed if piracy is to be controlled."

Sanjay Tandon, director-general of Indian Performing Rights Society, while talking about "Challenges of Internet & Cyberlaws & Enforcement of copyright laws", said the recent explosion in piracy cases is due to the high quality and cheaper reproduction facilities which make the pirated version easily available and at a much cheaper rate than the original. Technology can also play a major role. Like one can have his work in encrypted or digital form, which to some extent will reduce violations.

The most obvious challenge in fighting against it is enforcement. IPRS has done good work in the last few years. From recoveries of Rs 2 million five years ago they collected Rs 60 million in the year ending 31 march 2001 as penalties for violations. Out of this, more that 86 per cent has been distributed as compensation to concerned parties.

As far as Internet piracy is concerned, he was of the opinion that the point at which a person can have control over it is the ISP provider. Efforts are being made to make ISPs responsible. They should be aware of any such activity and they have carry out due diligence. They can have electronic filters, which will check the matter.

There are five ways in which music is disseminated on the Internet

1) E-Music - No prior permission required

2) Internet radio - Similar to normal radio broadcasting. Same norms applicable.

3) Music Magazine - Moral rights of the authors has to be taken.

4) Talent - Copyright applicable. Prior licensing required.

5) MP3-Clearance of reproduction, distribution, etc rights to be acquired.

Sharad Abhyankar of Little and Co. highlighted technical requirements like encryption, electronic copyright management systems, digital objects, proprietary viewers, watermarks (digital coding on the software which allows the owner to trace the reproduction) and real time audio and video which could play a major role in preventing piracy.

Further, he gave more weightage to the written contract saying that it is more important to note the "what if not performed" clause. Proper documentation including all the terms and conditions is very important in case any controversy arises, as in a court of law only written proofs are considered valid.

He dwelt at length on assignment versus licensing rights as each right can be identified and sold separately. The onus is on the owner of the work to find out various licensing rights that can be created and sold. In his opinion the set top box would prove to be a better surveillance instrument as it will record all the data that is transferred which will play a major role in future to control piracy.

Andre Chaubeau, director-general of the Paris based global copyrights organisation FIAPF (International Federation of Film Producers Associations) that works closely with WIPO and the World Customs Organisation. They are also evolving the global standard for all audio-visual properties called ISAN (International Standard Audiovisual Number). ISAN will be a 16-digit number, which will identify any audiovisual work.

The purpose of any such effort is to make an ISO standard identification database, which will be available publicly and can be used by broadcasters. This will make it easier to identify the work anywhere in the world, which will help to control piracy.

ISAN has already registered 600,000 works. "It is quite similar to a watermark except that it applies to both analogue and digital intellectual properties. Based on this number the product can be identifiable as well as the rights attached to the product will also be taken care of," says Chaubeau. There are a number of other things that have to prepared and the backend has to be made active before it becomes really effective, but the effort is definitely towards that direction.

"The project is nearly complete and we will be setting up five regional offices by December 2001 and functioning will start from Jan 2002," Chaubeau said, when asked when ISAN would start functioning.

KC Low, vice-president of Warner Chappel Music Publishing, explained the business of music publishing, which is a comparatively new concept in India. While talking about the large-scale violation of copyright, he illustrated it by playing an original song in Tamil recorded in Indonesia in 1996 and its direct lift in Mann, a Hindi film released in 1999.

Session:Legal issues, copyright & intellectual property rights in the entertainment industry

Moderator:Raj Tilak, Film Federation of India

Speakers:

Jorgen Blomqvist, director of Copyright Law Division of the World Intellectual Property Organisation (WIPO) - New technology copyright and small and medium sized enterprises

Sanjay Tandon, director-general of Indian Performing Rights Society-Challenges of Internet & cyber laws & enforcement of copyright laws

Sharad Abhyankar, Little and Co - Uniform commercial & legal practices in relation to copyright

Andre Chaubeau, director-general, FIAPF, Paris - New Tech. and the identification and management of rights in films

KC Low, vice-president, Warner Chappel Music Publishing

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