Exhausting Copyrights and Promoting Access to Education: An Empirical Take

Abstract

In what must rate as a momentous occasion in Indian copyright history, the Copyright Amendment Bill, 2012 cleared both Houses of Parliament after 12 years of intense debate, discussion and politicking. These set of amendments were particularly celebrated for fostering social justice through provisions that included a special copyright exception for the disabled and a mandatory royalty sharing arrangement for hitherto exploited Bollywood artists.

However, despite the general euphoria surrounding the passage of these highly progressive provisions, there are causes for concern. In particular, the abrupt deletion of a clause legalising parallel imports, contrary to the suggestion of an expert Parliamentary Committee, raised many an eyebrow. It would appear that publisher lobbies prevailed upon the government to effect this last minute volte-face. The main claim advanced by publishers to effectuate this change of heart was that the Indian market was well served with the latest books at affordable prices, rendering redundant the very need for a provision legalising parallel imports.

In this paper, the authors limit themselves to empirically testing this claim. The data from three different libraries demonstrate that the Indian versions sold by international publishing houses are often old and outdated editions. The latest versions are available only through imports via websites (or through mainstream distributors) and costs as much, or more than their western counterparts. Further, the legality of such imports is uncertain under the present copyright regime.

Based on this evidence, the authors argue in favour of retaining Section 2(m) of the Indian Copyright Act, 1957. They also argue that legal policy ought to favour free market competition, unless the evidence suggests that the gains from such competition are outweighed by the harm to the copyright owner and the growth of the indigenous publishing sector. As of today, no such countervailing evidence has been proffered.

Keywords: Parallel import, copyright, international exhaustion, publishing industry, India

JEL Classification: O34, K10, K33