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Published : December 09, 2011 | Author : mini.anshuman
Category : Intellectual Property | Total Views : 6895 | Rating :

Mini Gautam, B.S.L LL.B from ILS Law College and currently pursuing LLM in International Financial Law from Kings College London. Anshuman Chanda, B.S.L LL.B from ILS Law College and currently pursuing LLM in Tax Law from Kings College London.

 Reprography Regulatory Mechanisms

Today’s world is being confronted by a phenomenon which has the potential of taking away the incentives of many authors and publishers to write and distribute good quality literature. Welcome to the age of reprography. The copyright law of India describes reprography as “the making of copies of a work, by photocopying or similar means” Although a standard definition has not been arrived at; the WIPO (World Intellectual Property Organization) has described reprography as “the nonmanual and nontypographc reproduction of tangible copies on which one perceives a work.” Therefore, making of photocopies of articles of a journal or recording our favourite program for later viewing would constitute reprography. However, it does not cover uses of tangible specimen, as in retransmitting the picture by cable.

The Present Problem:
Reprography may have serious repercussions in protecting copyright works and thus hampering the dissemination of knowledge.

The new means of reproduction; photocopying, downloading and optical scanning present special challenges to intellectual property right enforcement. Article 9 of the Berne Convention (Paris Act l971) stipulates that “authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form,” and all contemporary copyright laws contain provisions implementing this principle. Paragraph (2) of Article 9, however, empowers national copyright laws to permit the reproduction of works in certain special cases, subject to two conditions:

- the permitted reproduction must not conflict with the normal exploitation of the work;
- the reproduction must not unreasonably prejudice the legitimate interests of the author.

We may rejoice at the vastly enhanced access these technologies afford to an enormous, and ever-growing, diversity of materials. Not only will computers, scanners and facsimile machines make it easier and faster to copy, but they will facilitate the dispersal of copies to all points of the globe. Consider the computer storage of an optically scanned book. Once the work is in digital form, it is very easy to excerpt, and use out of context. This is particularly true if a portion of the scanned work is sent to a recipient who is unable to consult the full text of the work.

In addition, unless digitized excerpts are carefully labeled, they risk incorporation in the user's work without attribution. Put more blatantly, copying in digital media creates new opportunities for plagiarism. Hence, a potential danger to another moral right, that of Attribution. Partial reproduction always carries the danger of distorting the author’s message.

Turning to economic rights, it is obvious that the potential of these technologies to cause economic damage is substantial. Thanks to these technologies, it is not necessary to buy the book or to subscribe to the journal causing substantial economic losses to the authors and publishers.

In practice, given the enormously wide dispersal of the means of copying, the anonymous fashion in which much of the copying is accomplished, and the vast number of individual copies made, the problem is not so much identifying a legal violation, as devising the means to enforce the copyright. Photocopiers and newer technologies deny publishers the exclusive control over contents and organization of these works. As a result the market for original works is fast diminishing and the market created through reprographic techniques is fast gaining ground.

Vicious circle: The wide dissemination of reprographic technologies has an impact on the price of authorized copies. A publisher, particularly for a journal, is likely to set a very high price, in part at least because it anticipates that some number of copies will be made of the journal. In effect, the subscriber is buying the original, plus an indeterminate number of additional copies to make on his photocopier. This pricing tends to have a vicious circle effect. Users, due to the high price, will copy even more, and so on. The inevitable result of indiscriminate copying will be that one day, only one copy will be published and that copy will cost a million dollars.

Need for Reprography:
In spite of its glaring defects, there are many positives of reprography which make its regulation more reasonable than its outright prohibition.

Reprography has made research work easier and more convenient. A researcher can now copy relevant extracts from as many books he wants. Reprography has also helped researchers to save time. The most important outcome of reprography is affordability. Many a times, journals or books are too expensive to be within the reach of common students and researchers. By means of reprography, users can extract the relevant portion of the journal or the book without actually buying it.

Regulation of reprography:
Keeping the above mentioned benefits in mind and questioning the harmful impact of reprography, it seems ludicrous to prohibit reprography altogether. The correct approach would be to regulate reprography in such a way that the interests of the authors and that of the public are served at the same time.

The Berne convention lays down that members can take steps necessary to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, and provided such utilization is compatible with fair practice. The convention also authorizes the member states to permit the reproduction of works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

The various ways of regulating reprography can be studied under the following heads:
1. Subject Matter Exemptions:
If a work is in the public domain, there is no subsisting copyright to constrain reproduction for research, teaching, or indeed any other purpose. Many works of potential classroom or research value may be in the public domain due to expiration of their duration of copyright protection. The Berne Convention removes from the treaty's scope of coverage "news of the day or . . . miscellaneous facts having the character of mere items of press information." That Convention also authorizes member countries to exclude "political speeches and speeches delivered in the course of legal proceedings." In addition, many countries generally deny copyright protection to legislative, judicial, and administrative texts and decisions.

2. Private Copying:
Although the Berne Convention contains no specific provision authorizing member states to exempt private copying, many member states do permit individuals to make copies for private use. There had been general agreement that copying for genuine private use is consistent with the Berne Convention standards.

It seems clear that few, if any, would permit the creation of multiple copies of works for distribution to students for classroom use.

3. Fair Use/Fair Dealing:
Fair use/fair dealing tolerates a reasonable amount of unauthorized reproduction when the purpose of the copying is socially beneficent and the effect of the copying does not damage the author's economic interests.Traditionally, fair use has excused moderate use of quotations from prior works for purposes of criticism, comment, and scholarship. These kinds of highly limited reproductions for productive purposes are also authorized in many civil law systems' copyright regimes as well. The United States Copyright Act of 1976 lists "multiple copies for classroom use" among the uses apparently entitled to assert the fair use exception. Moreover, in conjunction with the 1976 Act's passage, publishers and educators elaborated guidelines to fair use photocopying. These guidelines permit copying of the entirety of certain short works and excerpts up to 1000 words, subject to various restrictions. These include limits on the number of authors and works that may be copied, as well as a "spontaneity" criterion

4. Teaching Exemptions:
The copyright legislation of several countries provides for outright exemptions from the reproduction right when the copying is done for purposes of teaching. Some Berne members simply echo Art. 10.2 of the Berne Convention, leaving to local interests or authorities the interpretation of such terms as "to the extent justified by the purpose" and "fair practice." Other national laws provide more specific exemptions. For example, several countries permit inclusion (without payment) of portions of protected works in collections designed for teaching.

5. Library Photocopying
In addition to providing exceptions or licenses for reprography for teaching and research, several countries have devised a variety of exemptions benefiting libraries. In general, these exemptions permit unauthorized copying (typically in single copies) by libraries for purposes of replacement, preservation, loans to other libraries or to researchers.

The U.S. library photocopying exemption also includes an unusual, perhaps anomalous, exemption focusing on the consumers of library services. If a library makes available to users a photocopy machine bearing a proper copyright warning notice, the library incurs no liability, no matter how many copies of protected works unsupervised users make on the machine. Individual users are as a practical matter insulated from liability as well.

6. Legal License Regimes
Some countries have revised their copyright laws to depart from the exclusive (but too often unenforceable) rights model to a system of legal licenses, authorizing the copying, but ensuring compensation to the copyright owner.

Reproduction Rights Organizations (RRO):
RROs began in the 1980’s in response to the need to license wide-scale photocopying providing access to scientific and cultural works. They help in collective management of reprography. RRO’s have been established in all the major countries of the world and have helped immensely in curbing the menace of reprography.

The main functions of a RRO can be summed as:
a) License the reproduction rights on behalf of the author
b) Monitoring when, where, and by whom works are being used
c) Negotiating and collecting the revenue with users
d) Distributing the collected revenue among the right holders
e) Suing for infringements

Some examples of RROs and their method of functioning are:
1. Copyright Clearance Center and Voluntary Collective Licensing:
Copyright Clearance Center (CCC) is a not-for-profit U.S. company based in Danvers, Massachusetts that provides collective copyright licensing services for corporate and academic users of copyrighted materials. CCC procures agreements with rightholders, primarily text publishers and authors, both for print and online, and acts as agent for them. This "collective agent" status allows CCC to represent thousands of publishers and hundreds of thousands of authors and other creators. Collective Licensing is a means through which a user (licensee) can pay one annual fee for the use of all the covered materials of CCC’s publishers and authors. This arrangement provides one-stop shopping for the user, and obviates the need for users to track down many rights holders, many times, for many uses of copyrighted content.

The CCC works on the principle of Voluntary Collective Licensing. Under this principle, CCC, derive their licensing authority from mandates given by individual rightholders. The Authors and the Publishers determine which works are to be included in different licensing programs.

However under this state of affairs, only those authors and publishers who were members of RRO would be entitled to protection.

2. Nordic countries and Extended Collective Licensing:
In Nordic countries, national legislation has extended support to those right holders who had not been represented in the RRO. In Finland and Sweden, the Copyright Acts provide for Extended Collective Licensing. When a RRO representing a substantial portion of national authors within a particular field enters into an agreement on photocopying with a user of copyrighted material, the agreement will be deemed to cover all works within the same field regardless of the author’s membership to the organization. The overall purpose of the extended license is to create favorable conditions for the use of protected materials from the viewpoint of the right owners, the users, and the public at large. One essential feature of the extended license system is that represented right owners and outsiders, as well as all users, are treated on equal terms and conditions. Further, in Denmark, an agreement between users and Copy-Dan (Danish RRO) gives the user the right to exploit the works of represented and non-represented rights holders.

3. Copyright Agency limited and Compulsory Licensing:
Copyright Agency Limited (CAL) is an Australian copyright management company whose role is to provide a bridge between creators and users of copyright material. CAL represents authors, journalists, visual artists, surveyors, photographers and newspaper, magazine and book publishers as their non-exclusive agent to license the copying of their works to the general community.

The copyright laws of Australia also provide for Compulsory Licensing of reproduction rights in favor of educational institutions. Part V (b) of the Copyright Amendment Act, 1989 sets forth a statutory license for multiple copying by educational institutes. The beneficiaries of the license may copy all or part of the copyrighted works, subject to statutory remunerations to the copyright owners.

In France, law has made it compulsory for rightholders to stake claims to their works only when they are members of their RRO which is Centre Français d'exploitation du droit de Copie (CFC)

Therefore we see that, Compulsory Licensing and Extended Collective Licensing address to authors and publishers irrespective of their being members of RRO.

4. Copyright Licensing Agency:
The Copyright Licensing Agency Ltd. (CLA) is the UK's RRO. Formed in 1982, it is a non-profit making company owned by its members, the Authors' Licensing and Collecting Society (ALCS) and the Publishers Licensing Society (PLS), to encourage and promote respect for copyright. CLA is responsible for looking after the interests of rights owners over the copying of books, journals, magazines and periodicals. CLA licenses business, education and government to copy extracts from books, journals, magazines and periodicals. CLA's licenses also include artistic works through its agency agreement with the Design and Artists Copyright Society (DALS). CLA pays artists, authors and publishers (via ALCS, DACS and PLS) their shares of the fees for such copying. If necessary, CLA can also institute legal proceedings for the enforcement of the rights entrusted to it.

The Copyright statute of U.K. also encourages agreements between persons engaged in educational reprography and license groups. The Copyright Design and Patent Act of 1988 lays down elaborate provisions governing copyright licensing and include special provisions governing reprography by or on behalf of educational institutes.

5. Reprobel and the system of Levy:
Collecting remuneration from large scale copiers like libraries, business houses, institutions, companies, etc. can be done by RROs via means of license fee collected. This is known as operator levy. There can be also a levy on photocopying equipment which is known as equipment levy. An example of such a RRO is the Reprobel of Belgium.

In India also, there was a Copyright Cess Bill was introduced in 1992 which would have provided for cess on photocopying machines. However, this bill has not been passed.

Situation in India:
The Indian Copyright Act provides for the formation of copyright societies. In pursuance to this, the Federation of Indian Publishers (FIP) and President of Authors Guild of India (AGI) formed the Indian Reproduction Rights Organization (IRRO) in the year 2000. The IRRO is a society dedicated to the promotion and protection of the interest of copyright holders in India and abroad in respect of the works of its members. It is based on the principle of voluntary collective licensing. However not much attention is being paid in this regard and is lagging.

International Federation of Reproduction Rights Organization:
The International Federation of Reproduction Rights Organizations (IFRRO) is an independent organization established to foster the fundamental international copyright principles embodied in the Berne and Universal Copyright Conventions. Its purpose is to facilitate, on an international basis, the collective management of reproduction and other rights relevant to copyrighted works through the co-operation of national Reproduction Rights Organizations (RROs). IFRRO works to develop and increase public awareness of the need for effective RROs and to support joint attempts by publishers, authors and other rightholders to create and develop rights management systems world-wide.

The main objectives of IFRRO can be summarized as follows:
1. To serve the membership by providing relevant information.
2. To provide a forum for members and to facilitate exchanges of ideas and information.
3. To foster multilateral, bilateral and reciprocal agreements between RROs.
4. To publicize the activities of IFRRO and the work of RROs
5. To support and encourage the formation of RROs in countries where none exist.
6. To provide a voice for members at the regional and international level.
7. To provide the membership with information and tools to develop strategies in a changing environment

Therefore, we see that regulation of reprography is a far more plausible solution than its total abolition. The system of RROs has been a phenomenal success. Whatever be the mode of operation, the RROs have accumulated enormous sums as licensing fees which would have otherwise gone down the drain. The figures of the amount collected as license fees speak for themselves; U.S.A Copyright Clearance Center $168,600,000; U.K Copyright Licensing Agency 47,910,000 GBP; Australia Copyright Agency Limited 94,558,400 Dollars (Aus.); France Centre Français d'exploitation du droit de Copie 30,890,000 Euros and Denmark Copy-Dan 22,794,620 Euros.

Therefore, the balance that scholars of intellectual property have been trying to achieve can be attained only by giving maximum importance towards the growth of national RROs. This will not only safeguard the interests of the authors and publishers but also interest of the public will be realized.

As far as India is concerned, system similar to that of the Nordic countries should be followed so that all those rightholders who are not represented by IRRO also get a chance to address their grievances.

Further, the Copyright Cess Bill of 1992 (which called for imposing a cess on photocopying instruments) should be enacted.

# Section 2(x) of the Copyright Act, 1957
# See WIPO, GLOSSARY OF THE LAW OF COPYRIGHT AND NEIGHBOURING RIGHTS 228(1980);Spoor, Copies in Continental Copyright, in COPIES IN COPYRIGHT1, 16-21(H.Cohen Jehoramed.1980)
# Ibid
# Art. 10.2 of the Berne Convention
# Art. 9.2 of the Convention
# Art. 2.8 of the Convention
# Art. 2bis.1of the Convention.
# See, e.g., U.S. Copyright Act of 1976
# See, e.g., C. Masouye, Guide De La Convention De Berne 63-64 (1978) (private copying consistent with Berne Article 9.2).
# See generally U.S. Copyright Act of 1976(elements of fair use defense).
# See, e.g., Belgium copyright law of March 22, 1886, as amended to March 11, 1958, art. 13; France, art. 41.3.1; Italy, copyright law of April 22, 1941, art. 70.1; Luxembourg, copyright law of March 29, 1972, art. 13.1; Spain, copyright law of November 11, 1987, art. 32. See also Berne Convention, art. 10.1
# Preamble of the U.S. copyright act
# See Appendix A.
# See, e.g., Austria, copyright law as amended to Feb. 19, 1982, art. 45.1 ("to the extent justified by their purpose"); Luxembourg, art. 13.2 ("to the extent justified by their purpose" and "fair practice").

# See Ireland, 1963 copyright Act, art. 12.5 ("short passages" from works "not published for use in schools"); Switzerland, copyright law of Dec. 7, 1922, as amended June 24, 1955, art. 27(d) ("provided [the copied works] are of limited extent or that the reproduction is restricted to isolated portions"); Liechtenstein, copyright law of Oct. 26, 1928, as amended August 8, 1959, art. 27(d) (same).

# See, e.g., Spain, copyright law of Nov. 11, 1987, art. 37; U.K Copyright Design and Patent Act, 1988 arts. 37-43; The Copyright (Copyright by Librarians and Archivists) Regulations 1989, Copyright Feb. 1990, text 8-01; U.S. Copyright Act of 1976; See also Karnell, The Legal Situation Concerning Reprography in the Nordic Countries, 15 IIC 685 (1984) (discussing, inter alia, library photocopying)

# In the U.S. and the U.K., authors and publishers are not remunerated for library copying conducted pursuant to the statute or regulations. In the Nordic Countries, local reproduction rights organizations have entered into compensation agreements with libraries; under the text of art. 37 of the 1987 Spanish law, it appears that library copying is unremunerated, but Antonio Delgado has argued that such an interpretation would affect an unconstitutional taking of property. See Delgado, Private Copying in Spain, 145 RIDA 2, 42-44 (July 1990)

# Karnell, Extended collective license clause and agreements in Nordic Copyright laws, 10 column VLA
# International Federation of Reproduction rights organization (IFRRO) Newsletter Vol.2, No.6
# Copyright Agency Limited(Australia) IFRRO Status Report, August1989, pp15-17
# Ibid
# Ch. VII of the Act
# Section 33(3) of the Act
# By – Mini Gautam and Anshuman Chanda, King’s College, London

Authors contact info - articles The  author can be reached at: mini.anshuman@legalserviceindia.com

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