Tuesday, April 22, 2008

Indian Judiciary has the onerous responsibility of interpreting the balance between Private Interests and Public Welfare – D. Purandeswari [India]

Smt. D. Purandeswari, Minister of State for Human Resource Development has said that the Indian judiciary, as the defender of the majesty of law, has the onerous responsibility of interpreting the balance between private interests and public welfare.

She was speaking at the National Judicial Seminar on the Role of Judiciary in enforcement of the Copyright Law. Following is the full text of the speech of Smt. D.Purandeswari, Minister of State for Human Resource Development:

“I am happy to be here at the inaugural session of the National Judicial Seminar on the Role of Judiciary in Enforcement of the Copyright law. The importance of this Seminar is underlined by the inspiring presence of Shri JusticeV.S.Sirpurkar, Judge, Supreme Court of India, on this occasion. India has a strong parliamentary democracy and constitutional government and is committed to the principles of equity, social justice, secularism and above all, we pride ourselves in the rule of law which dictates the way we conduct our society. Obviously, rule of law is our strength when compared to so many other developing societies; and it is this strength which ranks India so high in the comity of nations, makes our economy a highly desirable destination for investments, gives stability and continuity to our polity, provides strong foundation to our institutions of governance, and makes the State accountable. Even though our present copyright legislation has been in force since 1957, dealing with the law of copyrights is nothing new to the judicial system in India, having been enforced in India since at least the year 1914, when the then Indian Copyrights Act was brought into force by the colonial power. Just as no one judicial decision can resolve al difficulties, similarly no law can for all times to come, lay down all the boundaries of action – technological advances, changing societal preferences and values, call for review and relook at the existing law from time to time. Any law, in the ultimate analysis, ought to provide a level playing field to all stake holders, which is a continuing legislative quest. The present copyright law itself has undergone a number of amendments, the last being those made in 1994 to make the provisions compliant with our commitments under the Trade Related Intellectual Property Rights (TRIPS). The need to review its existing provisions continues to exercise us, particularly in the light of the developments in digital technologies. This is yet another aspect that we need to bear in mind, that India, as a responsible member nation of the world community, respects global sensitivities, irrespective of whether we are signatories to formal agreements or not. A case in point is the Rome Convention, of which India is not a signatory; however, our copyright law is fully compliant with that Convention. Indeed, the process of law making in open democracies like our depends, not merely on treaty obligations or obligations towards the rest of the world, but perhaps even more on social, economic or political preferences from within the Indian society, which is sensitive to mankind’s common destiny and morality. This is also what needs to be appreciated by the outside world, when dealing with a large mature democracy like India, where the legislative intent factors in emerging concerns of humanity and the rule of law ensures justice to all. In its most simple understanding, the Copyright law, like all other intellectual property laws, is a compromise drawn up by society between the necessity of encouraging creativity on one side, and the desirability of society’s access to new knowledge or creative expressions, on the other. The rewards to the creators come from the value that they are permitted by law to derive from consumers in consonance with the rights and protection that the law accords to them from any infringement of exercising such rights. This balance between public welfare, as defined through the exemptions provided by “fair use” by society, and the private interest defined as copyright for a limited period of time is laid down under the copyright law. Infringements by illegal means and abuse of ‘fair use’ require enforcement by the copyright authorities and intervention by the appropriate courts when the occasion so demands. While action is called for against those who infringe copyrights of owners of such rights, those who induce infringement by others are also proceeded against, without affecting the legitimate rights of the public for “fair use” allowed under the law. It is obvious that without the concept of “fair use”, it would be impossible for any society to advance its knowledge for the many as knowledge would then confine itself to the few. Copyright is an intangible property right and the rationale for an entirely market driven approach is to my mind, some what suspect. We in India acknowledge the need to balance the rights of authors and the larger public interest of enriching education, research and access to information. I am aware that the judicial organ of the State cannot play its role effectively, unless copyright administration is made more efficient. Modernisation of the copyrights offices is a task that we have set for ourselves under the 11th Five Year Plan, so that copyright administration is more effective and facilitative for the users. At the same time there is a need for the industry and the copyright owners themselves to be alert to the exercise of the rights under the law. Conflicts among rights-holders put them against one another, thereby affecting all. The body of rights holders owes itself sincere, efforts to dialogue with each other, and also to productively negotiate agreements that make it possible for consumers to access copyrighted materials legitimately. This means a responsibility on rights holders also to ensure affordability for users of copyrighted materials easy accessibility, education of public to respect copyrights, and above all not putting up barriers for the exercise of the copyrights of others. As we all know enforcement of copyright law in India would not be effective of efficient unless the state governments are also co-opted in these efforts. The copyright Enforcement Advisory Council constituted by the Ministry of Human Resource Development with the participation of the rights holders representative bodies and the state governments advised the Central Government in improving enforcement measures. We have managed to persuade almost all our states to establish special cells for enforcement of the copyright law. A number of seminars and other events are held to sensitize public opinion and also to familiarize all concerned about the need for effective enforcement. Courts have an important role in protecting the copyrights and in ensuring a check on the legality and constitutionality of executive action. At the lower levels of the judiciary in particular, awareness building would lead to a more effective and timely execution of its functions. There are those who feel that we need to have special courts to handle copyrights and intellectual property rights matter; perhaps the opportunity provided by this Seminar could be utilized to debate and test the validity of such an idea. I need hardly reiterate before this august audience that the Indian judiciary, as the defender of the majesty of law, has the onerous responsibility of interpreting the balance between private interests and public welfare. In the context of the copyright law, this balance is even more delicate, and I am sure the present Seminar would help guide in particular, the lower judiciary in playing its effective role in the enforcement of copyright law with speed and alacrity. I wish this endeavor all success, and would look forward to the outcome.”

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