ACCESS TO PROTECTED WORKS: LIMITS OF PARALLEL IMPORTS By Nisha C. Vishnu Sankar P.

COPYRIGHT AND PARALLEL IMPORTS Copyright is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. exclusive rightsexclusive rights Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. A parallel importation means transportation of legitimate works which are available at a cheaper rate in one country by independent buyers for sale in another country.

TRIPS and LEGAL IMPORTATION.   The TRIPS Agreement permits Members to enact special or limited exceptions to the exclusive rights granted to the right holder (Articles 13 and 30).   The above TRIPS exception flexibilities have had a tremendous impact on the national intellectual property policies of many developing countries.   Developing countries can very well utilise these flexibilities to effectively make available copyrighted works at a reduced rate.T

 Generally it could be said that TRIPS has accepted the international exhaustion principle.  This should be well appreciated as the agreement enables countries of different economic status to implement the kind of exhaustion of their choice.  Art.6 of the TRIPS agreement deals with the exhaustion principle.

Exhaustion principle-:  Exhaustion principle says that the first sale of a copy of a copyrighted work exhausts the rights of the owner of the copyright in the work to control the resale of that copy, assuming that the first sale was a legal sale of a legal copy. The exhaustion of rights may be international, regional or national.  Exhaustion principle may be divided into national exhaustion and international exhaustion.  National exhaustion means once sold within the country exhausts the right of the copyright owner.  International exhaustion means the first sale of a copy of a copyrighted work anywhere in the world results in the exhaustion of rights in that copy everywhere in the world.

WHETHER THERE IS RIGHT TO IMPORT AVAILABLE TO OWNER OF COPYRIGHT UNDER INDIAN COPYRIGHT ACT.? RIGHT TO REPRODUCE,PERFORM, ADAPT AND TRANSLATE THESE RIGHTS DOES NOT INCLUDE RIGHT TO IMPORT

IMPORTATION RIGHT UNDER INDIAN COPYRIGHT ACT,1957  Section 53 prohibits importation of infringing copies  This implies importation of legitimate works is allowed.  Parallel imports involves importation of legitimate works.  Thus the Indian Copyright Act,1957 itself recognizes the concept of parallel imports.  The Act does not expressly grant the right to import to the owner.  It only grants the right to the owner to object to the importation of infringing copies  Legally sold copies (first sale) will not come under “infringing copies” defined in Section 2(m).

Penguin case FACTS  Penguin Books Ltd., England filed a suit for perpetual injunction against India Books Distributors, Bombay.  The suit was for restraining them from infringing Penguin’s territorial copyright/licence in 23 books.  India Book Distributors, Bombay, were importing, distributing and offering for sale in India 13 books.  But the injunction was refused by the lower Court.  Aggrieved by this decision, Penguin went on appeal to Delhi High Court.

 The Delhi High Court examined whether the rights recognized under the Indian Copyright Act include right of importation also.  It was held that infringement of copyright knowingly to import to India for sale or hire infringing copies of work without the consent of the owner of the copyright, though they may have been made by or with the consent of the owner of the copyright in the place they were made.

CRITICISM  International Exhaustion Principle is most acceptable to a country like India. But the Court failed to appreciate this fact.  The Court has considered Parallel Import as an import of infringing copies.  The interpretation of s. 53(1) cannot be supported.

Limitations and exceptions to rights of the owner.  “Limitations and exceptions" refers to situations in which the exclusive rights granted to authors, or their assignees under copyright law do not apply or are limited for public interest reasons exclusive rightscopyright lawpublic interestexclusive rightscopyright lawpublic interest  Exclusive rights stimulate investment and the production of creative works and simultaneously, exceptions to those rights create a balance that allows for the use of creative works to support innovation, creation, competition and the public interest.

FLEXIBILITY PROVIDED BY TRIPS AGREEMENT  Thus every country is granted freedom to utilize either national or international exhaustion as they would find suitable for their country.  Art.6 of the TRIPS agreement deals with the exhaustion principle.  It says that “For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.”

 This implies that concept of parallel import will be imbibed into the copyright Act.  The rationale is a legally sound one — to align Indian copyright law with Indian patent and trademark law, both of which follow the principle of “international exhaustion”:

HAS INDIA UTILISED THIS FLEXIBILITY?  Even though TRIPs allows for choosing its own domestic principle, India has not effectively utilized this provision.  S.14 (d) of the Indian Copyright Act,1957 reads as follows- “In the case of cinematograph film, - (i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public;”

 The restriction placed by the s.14(d) is unnecessary.  The Parallel Importation provision should be imbibed into the Act.  The Act protects rights of the owners while public access is largely curtailed.

Parallel Imports and Benefits to Public  It increases competition which is essential for the access of quality products to the consumers  Allows the consumers to obtain works at a lower rate.  It keeps a check on any kind of monopoly that is being enjoyed by the owner of copyright.  Would help in reducing the use of pirated works by the public.

POSITION OF PARALLEL IMPORT IN VARIOUS COUNTRIES NATION- AL EXHAUST ION HUNGARY,TURKEY REGIONAL EXHAUSTI ON EUROPIA N UNION INTERNAT IONAL EXHAUSTI ON AUSTRALI A,CANAD A

The proposed amendment to the Act……  CURRENT PROVISION: Clause 2 (m) of the Act defines the expression 'infringing copy' as a (a) reproduction of a literary, dramatic, musical or artistic work ; (b) a copy of a cinematograph film made on any medium by any means or (c) any other recording embodying the same sound recording, made by any means or the sound recording or a cinematographic film or (d) broadcasting of a programme or performance if reproduction of sound recording is made or imported in contravention of the provisions of the Act.  When amended-:The proposed amendment to this definition involves an addition of a proviso to the Act, stating: "provided 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".

HOW THE AMENDMENT IS GOING TO AFFECT INDIAN SCENARIO…..  Warm welcome should be extended to this amendment as it could revolutionise the copyright law in India.  Students who purchase books at a higher price would be benifitted when they receive the books at a cheaper rate.  Public access to the copyrighted works would increase.