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BW Businessworld

Are You A Corporate Pirate?

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We live in times where you need to do very little to be accused of a serious crime. For example, if you are one of the overwhelming majority of jet set corporate hot shots who cut-copy-paste to save time as they move the decision making process through the corporate jungle, the chances are pretty good that you have infringed on someone’s copyright. The real questions are these: when is this cut-copy-paste artistry illegal and what consequences flow from doing it. To get a sense of perspective into this, I will answer the second question first.

The consequence can be severe. If you cause the owner of the copyright to lose money, you have to compensate him for it. In countries where damages are awarded to make an example out of the law breaker and long prison sentences are imposed, this is a huge deal. To understand how huge, recall the case of Aaron Swartz who was arrested by MIT police because he downloaded academic articles from the JSTOR digital library and then got hit with charges carrying a cumulative maximum penalty of a million dollars in fines and 35 years in prison. Two years after his arrest, on Jan 11, 2013, he hanged himself. When you cut copy paste, you don’t know whose copyright you are infringing. What happens to you on your next trip to America may come as a surprise to you.

In India, no one cares half a rat’s hind about civil cases because courts only compensate for actual damage caused which is likely to be limited at best. The criminal law consequence is more serious. If you knowingly infringe or abet the infringement of a copyright in a work, you can be punished with jail for a period not less than six months but for as much as three years and you could also be ordered to pay a file of between Rs. 50k up to 2 lakhs.

Okay, now that I hopefully have your attention, let’s talk about what is an infringement of a copyright! Short answer is this: it is illegal to copy anyone’s copyright material at all except when it constitutes what is, in law, called “fair use”. It’s a simple principle. If you take my book and quote something in it on Facebook (please do!), clearly, you are fairly using it. If instead, you extract an entire paragraph and use it in another article you are writing, so long as you acknowledge my authorship, that is okay too. But if you photocopy entire chapters and start circulating them to your friends, you are skating on very thin ice. How many of us have photocopied entire reports from experts and used them as supporting material for presentations to boards, in training workshops, or as reference material for an upcoming event? Maybe you have done this at an event that had a participation fee: like a conference you were addressing to build your brand. Do you think that you have no problem because you are just the talking head and it’s the organiser that is collecting participation fees? Houston, do we have a problem?

Ask poor old Rameshwari Photocopy Services because he thought he had the bases covered. This guy was licensed by the Delhi School of Economics to photocopy “course packs” which included selected chapters from a number of copyrighted textbooks. The Universities Presses of Oxford and Cambridge was not amused at all because their customers were buying these packs, not their text books. Rameshwari tried to hide behind his D School license. D School in turn threw Rameshwari to the wolves, saying maybe they made a mistake but they are really good guys and never intended to violate any laws. Lost in all this was any right that students may have to get a decent education at a half decent price. Unfortunately, this kind of argument doesn’t fly for a corporate honcho projecting himself to his superiors, colleagues or community so I will kiss it goodbye right here. But there is data here you could use. This case was last heard on May 8th, 2013. The copyright owners have argued that Rameshwari needs to take out a reprographics license from the Indian Reprographic Rights Organisation (IRRO), a body of publishers, which is generally computed as a percentage of revenue. You could do this too, in which case, you can photocopy upto ten per cent of a text book. There are a bunch of other limitations attached to this license so you have to figure if you can take advantage of this or not. I would doubt that you can: the corporate environment doesn’t give you time to get licenses so it’s back to fair use for you.

I will summarise fair use law for your reference. If you are caught copying someone else’s work, the court is basically going to ask three questions: (a) what was the purpose and character of the use, (b) how much of the copyrighted work did you use? and (c) what is the impact of your activity on the potential market where this work is sells. These are subjective tests: results vary with the personality of the court hearing the case, but on one subject, we can all be clear: if you copy parts of my book to sell its chapters to someone else, the knives are out for your throat. No, I need to qualify that. There is an exception. In the 2011 decision of the Delhi High Court in Super Cassette Industries, the Delhi High Court said that commercial use of a copyrighted work does not itself make it unfair. There’s has to be more. That more is substance.

The truth is that many cases of copyright violations are what lawyers call deminimus which is gobbledygook for “the minimum”. When you make photocopies of a cartoon and distribute it to friends at the Old Boys School meet, or when you burn a DVD of “Gangs of Wassaypur” and give it to a friend, or when you take a picture of AtulBakshi’s next glass installation and use it as a wall paper on your sexy new mobile, it’s not that you are not violating the owners copyright. You are, but the law still won’t come looking for you because of the de Minimus principle. The maxim basically means that some violations are chickenfeed and the law will not resolve petty disputes.

In recent years, with the rising cases of copyright violations, this principle is acquiring huge importance. Courts nowl test the facts against five criterion to decide whether your actions are de minimus or not: (a) what was the size and type of the harm, (b) what is the cost of adjudicating it, (c) what is the purpose of the violated legal obligation, (d) what is the effect on the legal rights of third parties, and (e) what did you intend when you violated this copyright. For sure, we are back in subjective country so being careful is the smart play in town.

Rajshree Chandra, author of the seminal work ‘Knowledge as Property” and one of India’s leading conscience keeps in the IPR space has, in the context, drawn attention to the larger philosophical issue blowing in the wind. She believes that laws are always open to moral disputes but she argues that laws must serve both private interest and the purpose of social justice. In her view, when the right to private Intellectual property (and bear in mind that property is at best a very weak right in India) is used to defeat social good as in health and education, the balance every society should achieve between private and public interest is tilted too far over.   What is the social utility of IPR protection when it prevents the dissemination of knowledge? She argues that if IPR laws do not answer this basic question, they abdicate all moral responsibility. The answer seems simpler when you look at poor students thirsting for a realistically priced education. What would you say when you look instead at corporate hotshots preparing presentations?

Frankly, I don’t see the distinction too well. We have been so indoctrinated into the absolutely inviolable sanctity of IPR that we don’t stop to ask basic questions; questions about the ever greening of patents so that companies can rip of terminally ill patients; questions about movies that want five rupees fromeach impoverished farmers to provide a couple of hours of escapist fare so that producers can pay Crores to artists who star in them; questions about being forced to buy ten songs in a compact disc because you want just one.We should ask such questions, whatever our answers. India needs trained manpower. If you take someone’s course book and photocopy part of it to train up a couple of hundred youngsters so that they can contribute to a growing economy, you would be entitled to ask the law to weigh the youngsters’ right to this education against the loss to the owner instead of protecting the owner and the devil take the rest.

But that is not where the law is today. Given where the world is headed, that’s not where the law will be tomorrow either. Where does that leave you with your 'cut copy pasting'? Not in a very good place methinks. If you are making marginal use of a small proportion of material to benefit a small audience in a more or less private clubby environment, I’d say that you are pretty okay. When you take the same material and start to train up rather larger batches of kids within your organisation, I’d say you were running close to the edge. But when you take more than a little of the same material and start to hand it out at paid conferences and workshops, I’d say you had better run and take cover.

(The author is managing partner of the Gurgaon-based corporate law firm N South. He is the author of “Winning Legal Wars” and “Bullshit Quotient: Decoding India’s corporate, social and legal Fine Print”. He can be contacted at [email protected]).