Globalisation and post-globalisation have brought us ever closer to each other. This intricate journey was only made possible by a vast network of information and communication technologies (ICTs). As a result, we all have experienced a slew of modernisation, standardisation and deterritorialisation drives all around the world. At the heart of this colossal process lies a “superior and never seen before “brand new upheaval called “information revolution”. As this information is gone in the great internet machine, it has witnessed another global movement called the digital revolution. The information revolution accompanied by the digital revolution has pushed knowledge beyond the control of the sovereign nation-states.
Before moving into the problems and prospects of safeguarding the copyright laws, let us see what copyright is all about. Copyright is regarded as “author’s right”. In legal terms, it is meant to describe the set of rights that the creators or the owners have over their literary and artistic works. The very word “works” refer to books, music, paintings, sculptures, films, computer programmes, databases, advertisements, maps and technical drawings as specified by the World Intellectual Property Organisation (WIPO). Regardless of the WIPO conventions and other relevant global covenants, the copyright law is territorial and national in scope. Therefore, wherever an author or a creator resides or his work is first published, the applicability of the copyright protection depends on the national laws of the country in which the particular author demands protection. The term of a copyright law depends on several factors such as whether the work has been published or if so, the date of its first publication. Once it is published, the copyright lasts for the life of the author and additional 70 years after his/her death. Under the US Copyright legislation, an anonymous work, a pseudonymous work or a work made for hire, the copyright is guaranteed for a period of 95 years from the year of its first publication or a period of 120 years from the year of its creation, whichever expires first.
Precisely, there is nothing like international copyright law applicable to all the nations. Therefore, no single copyright law can protect an author’s work throughout the world with a single registration like the Patent Cooperation Treaty (PCT) that allows patent filing in a multinational context. Nevertheless, nearly 180 nations have already ratified the historic Berne Convention for the Protection of Literary and Artistic Works of 1886, administered by the WIPO. This convention sets a minimum standard for the protection of the rights of the creators of the copyrighted works across the nations. Besides, there have been serious efforts to bring copyright legislations under one single umbrella among the members of the European Union (EU). However, the biggest challenge to this harmonisation effort is emerging from a host of numerous national copyright laws currently existing in the EU nations. The Berne Convention, apart from calling for establishing minimum standards of protection, has two unique principles: “National Treatment” and “Automatic Protection”. The first principle of “National Treatment” underlines that works originating in one signatory nation are given the same protection in other signatory nations as each grant to works of its creators. The second principle of “Automatic Protection” refers to the idea that copyright inheres automatically in a qualifying work upon its fixation in a tangible medium and without any required prior formality.
Indeed, the origin of the global copyright governance system is very much linked to the invention of the printing machine by Johannes Gutenberg in Germany around 1440. By 1483, when printing machines reached England, various monarchs starting from King Richard III to King Henry in 1553 shaped a new regime of copyright that later defined the international copyright governance. Then, the era from 1661 to 1911 witnessed the evolution of a detailed copyright law in Britain.
Now in India, we have a defined copyright regime, and its roots lie in the long British colonial regime. The copyright legislation was first introduced in India in 1874 during the time of East India Company. This act was replaced by the Copyright Act of 1914 which was just a replica of the then existing Copyright Act of 1911 in Britain. When India became independent, we got our first Copyright Act in the year 1957 which came into practice in 1958. The new Act immediately replaced the colonial copyright laws thereafter. The same Copyright Act was subsequently amended in 1983, 1984, 1992, 1994 and 1999. Again, the Copyright Act was amended in 2012. It was done to bring the Copyright law into compliance with the WIPO treaties such as the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). Further it must be highlighted that the obligation under Article 11 of Trade Related Aspects of Intellectual Property Rights (TRIPS) which came into effect under the World Trade Organization (WTO) in 1995, Article 7 of the WCT and Article 9 of the WPPT are to provide for commercial rental rights for computer programmes and cinematograph films. This right was introduced in India by using the word “hire” in Section 14 of the current Copyright Act. Thus, the Indian Copyright Law is now capable of addressing both national and global concerns under the new global governance regime brought by the WTO-TRIPS.
In spite of having a globally effective IPR regime, the information revolution and digital revolution have pushed knowledge maintenance to the brink of a serious danger. We receive information so very easily that we don’t even realise the worth of the creator or the owner. Information superhighway is widely perceived as a modern-day colonial tool both to subjugate and exploit the massive resources from the Global South by the rich and technologically advanced nations from the Global North.
With connectivity growing at an unimaginable speed, people are increasingly becoming restless. Once powerful nation-states seem to surrender to market forces. What Karl Marx, the legendary German socialist thinker, prophesised in the 19th century about the “withering away of the state” (capitalist) is now turning right at the very heart of the capitalist nations. Nonetheless the bitter truth is that today the mighty western liberal nation-state is facing challenges from several points, and they are all multinational forces. These counterforces are not only transnational corporations and the gigantic markets controlled by them but also from civil and human rights movements, global civil society and international non-governmental organisations and at times from international terrorist organisations consistently backed by very strong radical religious movements. It is all spearheaded by the availability of knowledge networks accompanied by advancements in communication and technology networks. Super knowledge owners like Google, Microsoft, Facebook and a host of other electronic platforms have made learning available to all. And it is both a boon and bane. The information superhighway is now dominated by a large network of MNCs mostly based in advanced nations like the US, Japan, the UK, Germany, France, Canada, etc. The global flow is in their hands. The poor and developing nations are at the mercy of these gigantic corporations controlled by the developed countries.
The world is now at a crossroads. Knowledge has exploded. The owners of knowledge are finding it too difficult to protect their creations. The intriguing part of the TRIPS and post-TRIPS global IP regime is that they all have failed to address the pitfalls of the huge information revolution. Today no single person or enterprise is the sole owner of knowledge or any other technical knowhow. It is fully diffused. It is there everywhere. Then how to safeguard it and how the creators will be benefitted from their long hard work? The solution to this problem is too complex.
The global and national copyright legislations are facing an uphill task today. Nowhere the knowledge is safe. And there is no place to hide. Of course, there are stringent punishments awarded to law breakers, but then there is no end to predators till date. Frankly, the wide network of the transnational forces has weakened the long hand of the copyright law that used to be there much before the advent of the mighty Internet. Today the global knowledge economy is beyond the reach of the nation-state. Therefore, the knowledge networks that are supposed to aid all and share the benefits of innovations do not accord equal power to all. It further leads to a great digital divide between the countries of the North and the South. And this is creating an uneven world of knowledge. There is a large gap between access to knowledge and exploiting the benefits of the same in both sides of the globe. Today the global knowledge economy has gone beyond the arms of the copyright laws. It has long been Microsoftified. Thus the owners of knowledge are solely in the hands of the big corporations of the advanced nations.
(Dr Makhan Saikia has taught political science and international relations for over a decade in institutions of national and international repute after specialisation in globalisation and governance from Tata Institute of Social Sciences, Mumbai. He is the chief editor of the Journal of Global Studies, an international journal.)