Round 3 of Thomas Abraham’s rebuttal to Parallel Importation, specifically, ‘In praise of folly: The parallel imports amendment’. (copyright law)

[Thomas Abraham is MD, Hachette India; and former CEO, Penguin India]

Link: http://originalfakes.wordpress.com/2011/02/07/in-praise-of-folly/  

Published February 7, 2011 books , Piracy 2 Comments

Tags: copyright, hindustan times, Mark Rose, parallel import, thomas Abraham


[Ref: proviso 2m of the copyright act.]

-- TA: This is about the third rebuttal I’ve written in response to a couple of IPR lawyers views on the copyright amendment. Irkingly none of these (arguments in defence of the amendment) cover any new ground. I will not be writing in anymore unless there are some new points to be made not covered so far.

There are essentially two views—according to us, we as publishers have a certain viewpoint founded in experience, knowledge of the markets while the lawyers (or more specifically this group of three cited here) have a viewpoint founded mainly in abstract theory—an ideal construct (ideal in their notion of a harmonious statement of law—which however has no engagement with practicalities, and chooses to ignore fundamental questions).

Each iteration has put forward a fresh round of erroneous assumptions—it started with this being just something foreign publishers wanted (that notion amazingly still persists below despite statements by all to the contrary), then the boldly stated fact that author royalties will not be impacted…and the persistent delusion that the consumer will benefit. No direct data or credible evidence anywhere. As my earlier interactions with them will show, I have repeatedly asked the basic questions:

--What was wrong with existing law?

--What gaps were seen that made the lawmakers think that this amendment was needed?

--What current price patterns need to be addressed, given that India is already the lowest priced market in the world?

--Why do other mature markets (the case studies cited by these lawyers are most often from these same mature markets) still prefer territorial copyright?

--Why has there been no in-depth engagement with publishers, and why has there been no substantiation of any theory made by the ministry (as reason for the amendment) or these defenders of this retrograde law?

Since the dawn of copyright, publishing empires and their advocates have been boringly consistent in their responses to any changes in copyright law that they choose to disfavour.

They respond every time by simply and simplistically predicting the ruin of the starving creator and the publishing industry, and along with these, the imminent end of Culture, learning and everything nice. Examples are legion. In the publishing empire’s impoverished imagination, with every amendment that has loosened the stranglehold of copyright law, and enlarged the rights of the reading public, the Wheels of Civilization, no less, have ground creakingly to a Final Halt. In over 400 years, this iron template hasn’t altered even marginally, and still continues to plague us to this day with its oppressive banality.

--TA: Not quite. It is clearly our view that authors should be anything but starving. The alternative seems to be this view that sees the author as NGO—functioning only in society to discharge the tools of their trade to write. If they do well, writing, they must be fat cats with no rights. This view seems to ignore the author in favour of the consumer but with absolutely no substantiation how the consumer will benefit (leaving aside the basic fact for now that the consumer wasn’t losing out anyway). 

And this still doesn’t answer the fundamental question. How does one see the author, the creator of the work? How should a just society see the author of the work? Is s/he to have any say in what happens to his/her work? My contention is clear that the author’s consent is paramount as long as the consumer is getting his fair price and the right to availability’. The more publicly debated ‘Bollywood amendments’ that this same bill seeks to redress takes up cudgels for authors. Why then in the realm of books is a reverse view taken? Talk about rhetoric—“ this iron template hasn’t altered even marginally, and still continues to plague us to this day with its oppressive banality”! this sounds like a crusade against slavery. One, this isn’t true for any country that follows territorial copyright and certainly not India where freedom of choice in reading is abundant, supply is unrestricted (yes, anybody can get any book they want), and pricing is the lowest in the world.

The occasion for this outburst on my part is some of the writing that has surfaced in the ongoing debate over the “parallel import” amendments sought to be introduced into the Copyright Act. For instance, Thomas Abraham’s darkly titled piece “The death of books” in the Hindustan Times which begins bluntly with a prophesy that the new amendment will “dismantle the very fabric of Indian writing in English”. There goes my entire library. Thomas then proceeds to issue some disinformation about how the Indian publishing industry “is just about coming into its own in the past few ten years or so”. (As any serious student of Indian publishing would know, India has been, at least since the late 19th century, home to the most thriving, profitable low-cost print publishing industries anywhere in the world.)

-- TA: I’ve always believed after over 20 years in the business, I knew a bit about publishing. But am always willing to learn new things—however this is one of the most absurd claims I’ve ever come across—but is par for the course for this group —put the theory out there with no facts; if this is not misinformation, what is!.

Please do not confuse writing with publishing, interlinked as they both are. India has had writing and literature since time immemorial. 

This amendment affects creative English writing directly. From Rajmohan’s Wife in the nineteenth century, please go down decade by decade listing total trade publishing, and measure it as industry output and revenue. There have always been great works in English down the 20th century—from Tagore, the political essayists of the freedom struggle to the pioneers of Indian English fiction like Narayan, Malgaonkar. Barring the biography and the political essay, most other narrative forms were experimental—these were true pioneers. It was in the second half of the 20th century that trade publishing began to see some presence outside being a distribution hub. 

The fact that there was not a single solely trade publishing house (yes there were distributors who published the odd book, yes there were educational publishers who published the odd book but not one company set up solely to publish general/consumer books) until 1987 or that the first modern format store also came into being the same year (something like Bookscan, has just started in India last October 2010). It has been a long haul. 1992 was a watershed year with Suitable Boy transforming the way trade publishing functioned and ’97 saw Arundhati Roy’s Booker taking trade publishing to the next level. There was then what the world called the “renaissance in Indian writing—in English and in translation”—resulting in a writing boom that was seeing more and more authors emerging as author ‘brands’. Here endeth the capsule history lesson. There is of course a lot more to the way trade publishing has evolved (this is not the space to cover that) but the point is –and I repeat--that it has only been in the last decade or so that one is seeing the trade industry come into its own. It is still a relatively small industry, but one that punches far above its weight in contribution.

Next, with all the freshness of a 400 year old argument, he informs us that because of the new amendment, authors will be bereft of their “economic right.. to profit from their copyright” and consequently will lose all their “incentive” to create. There is the classic, sly conflation of the author’s interest with the big publisher – you are with us or against the struggling author.

-- TA: Again the classic, sly conflation of the amendment being only against the ‘big publisher’. What will it take to convince these people that every publisher, big and small are against this. And that yes, as I have demonstrated by computing export royalty vs domestic sales that the economic rights of authors are indeed impacted.

There are, however, some novelties in Thomas’ argument. Chiefly the gratuitous disparagement of intellectual production in Malaysia, Singapore and Hong Kong, (allegedly these countries cannot claim even a single “literary or commercial author brand” between them!) and the chastisement of India on account of the fact that “mature markets” don’t have analogous provisions on parallel import as we are trying to introduce. In this latter assertion, India is deftly transformed into the errant schoolboy of global lawmaking! No doubts plague this Thomas!

-- TA: No they actually don’t;  just as calm thought and expression eludes this Prashant! The same wrong facts are repeated in every blog variation, with new vehemence, and now with new levels of ludicrousness—with actual advocacy for piracy!

Rumours of the death of books, fortunately, have always been greatly exaggerated. Unfortunately, so have the rumours about the demise of big publishing.

-- TA: Authors may soon have nothing but their genius to declare. But yes once we’re done with the literary quips, coming to the issue at hand-- it may not quite be the death of books (please read comment about title of my article), but the death of publishing and writing as we know it—and ironically by a surfeit of books.

As I have written elsewhere, I owe my education in English entirely to low-cost editions of books bought from pirate street vendors or less-frequently at second hand bookstores (who typically would stock books imported from overseas library sales). So I’m eagerly anticipating the changes this new amendment promises to unleash – more of the same. (Aside, officially sold English books in India have always been much more highly priced than vernacular books of identical print quality – prompting us to speculate who pockets the difference. And why. The interests of the reading public or the author are very far removed in this calculus.)

-- TA: I have nothing to say to somebody who encourages piracy. We are not even on the same page anymore. So go ahead and continue buying your low cost pirated books—there are plenty around. I have also explained how prices will not come down (outside spoiler pricing) long term. There will be always be a difference in pricing based on production costs, overhead, and target audience, even between English publishers—so let’s not go down the garden path here. The point is simple: are books being priced right as per audience affordability? The answer we say is yes. Each segment gets right priced books already.

Contrary to the fantasies of big publishing empires, it is not their own largesse, but the unwitting generosity of small printers and pirates and book importers that is the cause of India being home to such a huge mass of regularly consuming readers in English. Let nobody be fooled. If street piracy and second-hand sales had been killed off twenty years ago in India, the market for English books in India would not have expanded at all. How else does one explain the irony that despite rampant piracy, despite having the laxest copyright regime in the world (by the publisher’s own accounts), despite the most permissive fair dealing regime in the world, the Indian publishing industry today is a global behemoth.

-- TA: This is too ridiculous to even merit a rebuttal. Let us then have no copyright or patents or trademarks—let there be anarchy. Let fake books, fake drugs, fake products of all kind be unleashed into the market. And this is supposed to be an intellectual property debate?

In the past few years alone, India has been invited as the “guest of honour” at multiple book fairs including the ones at London, Frankfurt and Beijing – a testament to the robustness of our indigenous industry. Contrast this with the situation in Hong Kong and Singapore who, in addition to not having any “literary or commercial author brands” between them, have also little to no street piracy in books. The other thing they lack is a thriving indigenous publishing industry. Perhaps the three are interrelated.

-- TA: It is not Indian publishing that is the guest of honour, but India—primarily for its writing and then publishing as the vehicle of dissemination. And if we want that cachet—of being a thriving industry that fosters good writing; then again it is our contention that parallel importation is not the way to go. And Indian publishing is still not the behemoth that is assumed by this writer. It is fast growing and ‘coming into its own” but whether you compare it to other industries in India, or publishing industries in mature markets, it still has a long way to go. The biggest companies would still rank in the SME category even in India. The point being made by all publishers, is that we were getting there, and this amendment will prove a serious setback.

In Mr. Thomas’ completely book-hating utopia, these “remaindered” books would have to languish in disuse or be destroyed – they would gather dust in warehouses or be turned to pulp rather than circulate in the hands of caring readers who would otherwise be denied access to them. I’m sure this is the stuff every author’s dreams are built of. As a bibliophile who treasures every article on his bookshelf, I am astonished by the hatefulness of this vision – which could only have been issued from the pen of a big-publishing-empire advocate. I think it is one of the most painful ironies of our times that the custodians and owners of our most cherished cultural outputs happen to be copyright lawyers and CEOs of big publishing empires – the dullest, most misanthropic people on the planet.

-- TA: The bibliophile who does not recognize the author, the author’s rights, and wants to foster piracy, is no bibliophile in my book. This is rather a dystopian vision that sees it as every author’s dream to be pirated!!! You’ll find that the custodians and owners of the cherished cultural output are the authors. Dull and misanthropic we might be in your vision (h’mm were we talking  of hateful visions??!!!), but let’s confine this debate to the amendment, and the need for it.

Although this debate on parallel imports is new, it is in some senses as old as copyright itself. As Mark Rose informs us in his seminal article The Author as Proprietor, Copyright Law itself originates as a move against “parallel import” :

In 1694 the Licensing Act, the statute that regulated the British press, had been allowed to lapse because it was apparent that it was operating primarily as a restraint on trade. Most affected negatively were the small group of powerful London booksellers who under the ancient rules of the Stationers’ Company had come to control nearly all the old copyrights of value. This group, whose dominance of the book trade was threatened by the provincial booksellers of Ireland and Scotland (who were not bound by the rules of the Stationers’ Company), petitioned Parliament for permission to bring in a bill to regulate the trade, and in 1709 the Statute of Anne, the world’s first copyright act, was passed.’ The statute was essentially a codification of long-standing practices of the Stationers’ Company, but, whereas under the guild regulations copyright was perpetual, under the statute the term was limited to fourteen years with a possible second term if the author were still living. (emphasis mine)

Then, as now, the issue was about incumbent interests in the heart of Empire – the London Booksellers – trying to preserve their dominions against upstart native enterprise in the colonies (in the 17th century, the Irish, Scots and Indians were regarded, alike, as barbarians – See Henry Maine etc) to the detriment of the reading public.

-- TA: Too ridiculous and too ill-informed to rebut. Booksellers in London have nothing to do with any amendment here!!! There are equally quotes from the former English colonies “Some books travel better than others, but if a book has a sizable audience in any given country I think it’s better served by having a local publisher who understands the market and can help it reach all the readers who might be interested in reading it,” -- Emily Williams, co-chair of the rights subcommittee of the Books Industry Study Group, an American trade association. So quotes are pointless—let us debate why India needs this with specifics pertaining to India. If one is looking outward, then let’s not forget that the biggest and most mature markets all have territorial copyright.

The proposed amendment will not kill Indian publishing (and even more ridiculously, Indian writing), any more than a century of piracy has. But defeating it *will* preserve the rights of global publishing empires, headquartered overseas, to decide which class of the Indian public gets to consume its books.

At stake are not the interests of “Indian publishing” at large, but the interests of a clutch of foreign publishers who wish to re-colonize Indian publishing and consumption through the devious means of licensing contracts.

-- TA: Methinks you do protest too much. Again the “sly conflation” to make this a foreign publishers issue. Again why then are Indian publishers like Roli, Westland, Rupa (and just in case these are seen as big bad Indian publishers), equally Zubaan or Gyaana, small indie publishers are also protesting this!

Here’s an alternate scenario – my counter-utopia to Thomas’ ungenerous one:

The parallel import clause passes into copyright law, and an entire business model is spawned which focuses on providing access to books through parallel import. Since books tend, almost as a rule, to be much more expensive abroad, it would not make economic sense (there would be no incentive!) to import books where low-priced editions are already published in India. This will force more foreign publishers to aggressively publish low-priced editions in India – thus leading to a further expansion of the Indian publishing industry, and benefiting the Indian reader with access to wider material.

-- TA: Have answered earlier how the incentive will still be there—and not just through remainders. And the same statement, again leaving unanswered, which books are too high priced, what expansion would actually happen? How would the reader benefit?

Meanwhile importers would concentrate on books where editions are not available in India – opening up access to a hitherto unavailable richness of literature. As more second hand book stores open up, the general levels of readership will increase – leading to the production of more author-aspirants, and a larger consuming public. The new authors will in turn greatly expand the markets for Indian publishing, who will reap more enormous profits (since that’s what it all seems to come down to anyway) from the expanded Indian readership. India will greedily lap up the “remaindered” books of the world – a thought I find absolutely alluring.

And all of this because of parallel imports.

-- TA: We have many times gone over the fact there is no book that is not available here and at a special price. What are these hitherto unavailable literary riches? If not available instantly it can be ordered on procurement’ (the same way it would come post-amendment) and the special marked down price will still apply. Is one seriously to believe that a bunch of importers will sit down to analyse that an obscure book has not been brought in, and yes that needs to be brought in and will then make it available everywhere? That is exactly what publishers, distributors and retailers do right now (Booksellers like KD Singh or Ajit Vikram Singh can and do order the more ‘obscure’ book that their particular clientele will want to read).

As to importers concentrating on what is not available—again patently absurd. Any importer would concentrate first on the book that was a success here—that’s money for jam. So you would have spoiler sales of brand authors first, then the indiscriminate flowing in of remainders that will over time supplant shelf space. Investments and marketing done by a local publisher, and the fruits are reaped by some third party spoiler—what a just view of things.

(Ps. I’ve desisted from running through the specific legal provision implicated because I think this has already been done by many others. For a very detailed account of this provision and its various legal intricacies read Pranesh Prakash’s excellent and thoughtful post:Why Parallel Importation of Books Should Be Allowed.

I endorse everything there.

.-- TA: And that has been rebutted too on every point.

Rahul Maththan has added his voice to the debate by endorsing the amendment in his article in the Indian Express. There’s also a piece on SpicyIp by Amlan Mohanty.

As with most things in IP law, I think this battle will be won more in the realm of rhetoric than legal argument.

-- TA: yes, and that’s all one is seeing--rhetoric. A legal argument (one that deals with gamechanging laws) begins with facts, and then goes on to examine the truth and logic of those arguments, and all the possible repercussions on all the key stakeholders. Never have I seen a law formulated like this on assumption (“this will benefit consumers”), misinformation (“ India has high prices”)  and outright falsehood (”old editions “). Added to that is the hackneyed ‘foreign hand’ and ‘vested interest’ diatribe that will not come to grips with the one question—should author’s consent as creator and owner of an artistic or educational work (once balanced with societal needs) count or not? That one point with an examination of facts on pricing should decide the issue.

Just for clarity, I think that buried under the heavy jargon of “parallel import”, “territoriality”, “national exhaustion” etc, this is really a battle being waged by foreign publishers against bibliophiles and bibliophilia in India. The incumbents in the global publishing industry have always been cranky about losing their monopolies and things are no different this time. As usual they’ve dragged the specter of the struggling author to shadow-box for them. Seldom in the history of copyright law have any developments truly been about benefiting the author (for instance, why don’t we have a law that statutorily prescribes a minimum royalty of say 50% of the price of the book? Wouldn’t that benefit the struggling author? Currently, the global average royalty an author receives is rarely over a measly 8-10%.).

--TA: Incorrect on every count. Firstly somebody who patronizes pirates should stop talking about bibliophilia. (Yes Royalties average that much on cover prices --a worldwide structure-- and that’s about 25% of the payout in cost terms. There have been structures evolved over time that aren’t part of this debate. What the amendment will do is take away that “measly 8-10%”). This isn’t about rich or struggling authors—it’s about authors per se—with the big brands hit as much as the not so big ones. I don’t think the purpose of the ministry was to progress developments in copyright as an academic exercise to please IPR lawyers. The ministry’s job is to do what’s right for the country and make laws that benefit society. And when it’s in the realm of literary and artistic works, it cannot and should not remove authors.

PPs: I realize I must sound very unkind to Thomas Abraham in this piece –I don’t know him and I’m sure he’s an honourable man. As any good historian of copyright law will agree, I think his piece rehashes exactly the same arguments that have been made thousands upon thousands of times in the past by captains of big publishing industries. I’m using his piece as a prop, but it is in fact to the same hackneyed arguments that my post is addressed)

--TA: Who I am (outside perhaps the credentials I bring to the table to make the statements I do) makes no difference. The net allows engagement and interface like never before. But even here, I think there needs to be debate and argument—and hopefully civilized. You need to refute the facts with facts. Not “hackneyed theory”, and certainly not with the ideas that propagate piracy as a tool for fostering reading culture.

 Thomas Abraham


[More on the subject on Nilanjana Roy's blog too:
http://akhondofswat.blogspot.com/2011/02/parallel-imports-2-publishing-and-2m.html
http://akhondofswat.blogspot.com/2011/02/parallel-imports-3-from-publishing.html]