Friday, March 11, 2011

Publishers have a Right to Protect their Territory: 2(m) – Parallel Importation, Copyright Law, and More

The proposed copyright amendment bill, 2010, contains a proviso  2(m) stating that ‘a copy of a work published in any country outside India with the permission of the author of the work and imported from that country into India shall not be deemed to be an infringing copy’. 

The proposal has thrown the publishing industry in India out of gear, giving rise to heated debates between publishers and a coterie of  IPR lawyers (in favour of an abstract theory of what they think copyright should rightfully be) on various forums – newspapers and online, turning them into blog warriors overnight.

Though they were not consulted in detail, towards the later stages publishers have made representations to the powers that be. However, they have seen neither engagement nor any detailing of the reasoning. Ironically, it seems to be the lPR lawyers generating the debates, but discount everything their interlocutors have to say, with remarkable callousness and no verification.

True they are not the lawmakers; and true too that they have no concrete evidence to buttress the claims they’ve been making. The publishers don’t really need to counter them, but are doing so only so that people will not be misled by warped ideas and theories.

This inherent ‘because-we-say-so’ attitude from these lawyers in any conversation so far has been rather irksome, especially since they are so blatantly blind to facts and deaf to logic. Some gross misconceptions:

  • The authors will benefit (because we say so)
  • The remainders will not flood the market (because we say so)
  • Exports will not be affected (because we say so)
  • Publishers are resistant to competition (because we say so)
  • Publishers are being protectionist (because we say so)
  • All publishers are villains; they offer a raw deal to their authors  (because we say so)
  • Parallel importation will bring down the prices of books (because we say so)
  • This must be about foreign publishers gaining (because we say so)
These men are ‘not convinced’ by the publishers’ arguments simply because they refuse to be convinced. We seem to be pitted against legal jargonauts and amazing new levels of jargonautery every day. And, ironically, it’s the publishers who’re accused of being ‘sanctimonious’.  

There are two levels where 2m poses a problem: parallel imports, and parallel exports. The way the clause has been worded, the meaning is ambiguous. One set of lawyers believes allowing parallel importation does not imply allowing parallel exportation as well. The other set of lawyers believes it does.

And, if that happens, it’ll be a huge blow to educational textbooks, most of which are marked down by 70-90% especially for India, while trade books are marked down by 30-35%. At the moment there is an illegal trickle of low-priced-editions (LPEs) to the US and the UK (the countries that license these special editions to Indian companies).

Abroad, educational textbooks are sold by a more scattered network ranging from campus stores to wholesalers, to jobbers, to a large chunk online. The huge price differential (cost arbitrage) incites leakage – both here and there. It’s against the law in the UK and US, so the original publishers can sue the people infringing, once they find them.

If this law is passed, the trickle will become a flood because it’ll legalise this activity. A catastrophe really, because those countries will certainly not welcome LPEs of their own titles into their own territories. And, even if they find the infringing editions, they wouldn’t be able to do anything about it because it would be legal in India.

So – they’ll do the easiest thing. They’ll simply cancel the licences to India.

Who’s the loser here?

No, they will not make the effort to do an edition for India directly, simply because it’s not worth the effort. The Indian market on an average is still only 2-3% of any major foreign educational publisher. Why would they jeopardise their home market for the sake of a 2-3% Indian market? Pearson UK is already threatening to do that if this law takes effect.

And, oh, we know what the lawyers will say – yet again!

‘It will not happen (because we say so).’

The fact is it will, in spite of all their claims.

There is a certain difference between protection and protectionism. The publishers are well within their rights to protect their territory. All the ‘competition’ is already here. Infringing editions do not qualify as ‘competition’.

A jaundiced view is a travesty of justice, fairness, and democracy the lawyers and policymakers claim to uphold.