Publishers have right to protect their territory (Comment)

March 11th, 2011 - 12:21 pm ICT by IANS  

The proposed copyright amendment bill, 2010, contains a proviso 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 intellectual property rights (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. They have however seen neither engagement nor any detailing of the reasoning. Ironically, it seems IPR lawyers generate the debates but discount everything their interlocutors have to say, with remarkable callousness and no verification.

The publishers don’t really need to counter them but are doing so because people should not be misled by warped ideas and theories.
The inherent “because-we-say-so” attitude from the lawyers in any conversation so far has been rather irksome.

Some gross misconceptions:

The authors will benefit;
The remainders will not flood the market;
Exports will not be affected;
Publishers are resistant to competition;
Publishers are being protectionist;
All publishers are villains; they offer a raw deal to their authors;
Parallel importation will bring down the prices of books;
This must be about foreign publishers gaining.

The lawyers 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 proviso 2m in the bill 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 percent, especially for India, while trade books are marked down by 30-35 percent. At the moment there is an illegal trickle of low-priced editions (LPEs) to the US and Britain (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 Britain and the 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 two to three percent of any major foreign educational publisher. Why would they jeopardise their home market for the sake of a 2-3 percent Indian market? Pearson UK is already threatening to do that if this law takes effect.

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 the justice, fairness and democracy the lawyers and policymakers claim to uphold.

(11-03-2011- The writer is publisher, Gyaana Books, Delhi. The views expressed here are personal. She can be contacted at divya@gyaanabooks.com)

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