India's copyright office website is "best viewed in 1024 x 768 true colors, Internet Explorer version 6.0 or above."

That might sound a bit dated, but it has nothing on the country's copyright law, which was last overhauled completely in 1957. Although it was updated five times in the 1980s and 1990s, the law does not comply with numerous international treaties such as the WIPO Internet Treaties of 1996.

On April 19, another major set of Copyright Act amendments (PDF) was introduced with the explicit goal of bringing India into compliance "with the provisions of the two WIPO Internet Treaties, to the extent considered necessary and desirable." (Note that final clause; we'll return to it in a bit.)

This legal update has been in the works for years—it goes back to at least 2005. It also contains several things that the big content industries would seem to want, such as a ban on circumventing DRM and threatening both fines and jail time for those who do so.

So why are the copyright industries so upset at India's attempt to bring its copyright into the Internet era? Isn't that what they want?

Sort of, but they want it done in one particular way.

Our way or the highway



India has long been one of the few countries on the US Special 301 "Priority Watch List" (PDF) as one of the world's top offenders when it comes to piracy and copyright infringement. While the inclusion of Canada (yes, Canada) on this list has always seemed patently bizarre to us, the case for India is more easily made.

Here's how bad it is: "The piracy rate for music in the online space is estimated at 99%... India was among the top 10 countries in the world for illegal filesharing (P2P) activities... In one case, pamphlets were being distributed with the morning newspaper offering pirated software and referring readers to the website www.cd75dvd150.20m.com to place orders... It is estimated that India's cable companies declare only 20% of their subscribers and that the piracy level in this market is at 80% with significant losses... The sale of high-risk trade books at traffic junctions in New Delhi appears to be a lesson; last year it was at epidemic proportions."

All of those quotes come courtesy of the International Intellectual Property Alliance (IIPA) as part of its 2010 report to the US government (PDF) on the Special 301 list of IP offenders. (The IIPA is made up of groups like the RIAA, MPAA, ESA, etc.) Once again, the IIPA demands that India stay on the highest-profile "Priority Watch List, in part because the country's law is not consistent with the WIPO Internet Treaties.

This reasoning sounds a bit odd, since India hasn't even signed the WIPO treaties and so can't be considered in breach of them. But doing things a "different" way isn't really an option for the IIPA, which wants to impose a single standard on most of the world. That standard will sound familiar to US readers:

Add statutory damages in civil cases

Add an optical disc law

Comply with the WIPO Internet Treaties

Add an anti-camcording law

The US has these laws in place already, and these provisions are also being pushed as part of the Anti-Counterfeiting Trade Agreement (ACTA), which hopes to bring the wonder of $1.92 million statutory judgments against individual file-sharers to the rest of the world.

Actually, none of these ideas is bad on its own; statutory damages can serve a useful function when they are kept within appropriate bounds. Similarly, the WIPO Internet treaties are not themselves objectionable; even their DRM anti-circumvention provisions are flexible, and allow countries great freedom in lawmaking.

India's new copyright amendments take advantage of this freedom. The bill itself tells us that its anticircumvention provisions are meant to comply with the WIPO Internet Treaties, but they do so in a way that the US attempt to comply with WIPO—the Digital Millennium Copyright Act (DMCA)—never did: it would be legal to bypass DRM if the intended use is a legal one.

As India's proposed amendment puts it, bypassing DRM "with the intention of infringing" copyright is illegal, but if there's no intent to infringe, it's OK. The bill also does not appear to address devices and software (like DeCSS and other tools) that make such bypassing possible. Those would remain legal.

Commenting on a draft version of this proposal, the IIPA slammed it hard. The bill "contains an exception which would appear to permit circumvention for any purpose that would not amount to infringement under the act," says the group, "thereby almost completely eviscerating any protection."

Rather than judging actions and intentions—was that DVD DRM bypassed in order to make a home backup, or was it bypassed to make and sell copies on the street?—such a rule lays a far heavier burden on the copyright industries when it comes to policing the content. It's also arguably much fairer, since it preserves fair dealing and other exceptions and limitations to copyright that DRM can often override.

The law also does little to specifically address Internet piracy. The big content companies have settled on a basic worldwide strategy of "graduated response," preferably one that ends by booting people off the Internet. Indeed, this year's IIPA Special 301 report demands that, "before this phenomenon spins totally out of control, the Indian government should ensure that ISPs and rights holders cooperate in establishing a fair and workable 'graduated response' system."

India does not appear to agree. When the US finalizes its 2010 Special 301 list soon, we expect India to top it once again.

The Special 301 process is a certainly an odd one: where else can big entertainment companies have entire countries put on a US government blacklist over issues like graduated response—something that the US doesn't even have?

Perhaps the strangeness of the whole process can best be summed up by the very last sentences in the IIPA's 2010 report on India, where "open source software" comes in for a beating: "The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored."

Open source is bad enough, but a "buy Indian" law? That would be an outrage and surely something the US government would not itself engage in as recently as last year. Err, right?