The proposed amendments to the Copyright Act have been frontpaged thanks to the celebrated spats between Bollywood producers and lyricists. Lesser known is that a proviso to one of the sections (notorious now as ‘2m’, rather portentous after 2G!) threatens to dismantle the very fabric of Indian writing in English. The ministry seems ready to pass this bill which could go down in history as the one act that will set India back a hundred years.
So what exactly is proviso 2m and why are writers-publishers so incensed about it? Simply put, the proviso seeks to remove the protection that India had as a copyright territory. Any book published anywhere in the world can now be sold here infringing an exclusive Indian edition — published or imported. To understand this, one needs to realise that authors own copyright to their works and then assign publishing rights to different territories, so that the book and readers are best served. Vikram Seth, for example, is published in Britain by Hachette, in the US by HarperCollins, in Canada by McArthur, and by Penguin in India. Each territory is protected by law to best publish the work. Without this legal shield, any of the four editions could infringe on each other.
So why is the HRD ministry doing this? Baffling as it is, (since it demonstrates no due diligence and a complete lack of understanding of the dynamics of the publishing) let’s look at possible reasons:
The ‘It benefits the end consumer because open market competition will bring prices down’ argument: This is rubbish because India is the lowest priced market in the world, and no benefit outside short-term spoiler pricing can accrue to the customer. Quoth jesting Pilate,“If India is the lowest priced market surely publishers have nothing to worry about!” Not true! Here one needs to understand how business is done around the world. Almost all world markets practise what’s known as ‘remainder’ sales. Essentially surplus stock is cleared-off at ‘raddi’ prices. (I kid you not.—Books are sold by the roomful or by weight!) These stocks, if not prohibited by law, will just flow in and wipe out local editions and eventually industry.
Will the end customer get this any cheaper? No, not really, because we have the occasional remainder trickle now and know pricing patterns. Remainder merchants still sell these just below existing price points to maximise their own profits. In any case that can’t surely be the rationale in a country that prides itself on culture and learning — that we turn India into a remainder bin?
The ministry mandarins also seem to have the absurd belief that publishers don’t bring in current editions. Every single major book — whether a medical textbook or the latest blockbuster like a Harry Potter or Stephanie Meyer — is available the same day as its release worldwide and 35% cheaper, with textbooks being 80-90% cheaper. Further, the only record of the ministry having consulted authors is via a body called the authors’ guild, not a representative body, it seems. There is no evidence in the depositions that any author who stands to lose by this amendment — and they are over 50,000 in India and at least three times that internationally — was consulted.
Weighing in against all this is a host of reasons why territoriality should be protected:
First, the legal position of the author’s rights being paramount. A creator should have the right to decide what s/he wants to do with his/her creation and should benefit from it. The ministry itself espouses this in the ‘Bollywood amendments’. The ‘edition right’ is thus an extension of the prime right of the artists to protect and share their property without infringement. If we regard the contractually established edition rights as having no territorial exclusivity, then they become solely a right to distribute a printed object in a given territory. What the law will do is erode the economic right of the authors to profit from their copyright as much as it will erode that of the edition rights buyer and will give the reader or bookseller no certainty that they have paid the best price for a product. (What if a remainder comes in and lowers the price again!)
One certain fallout of this is that the author who was planning to get designated royalties by territory will hardly get an income stream. Because royalties on remainders are near zero. Which also means we are placing authors in competition with a third-party non-holder of copyright — the remainder merchant who brings the book in against the author’s wishes because the law permits him to do so — a completely unjust intellectual property system.
The Indian publishing industry is just about coming into its own in the past few ten years or so. It’s bad
enough that one has to cope with rampant piracy. This will be an even unkinder cut. A publisher takes enormous risks and invests. And with no significant investment available to back them what incentive do authors have to write?
In a completely anarchic scenario, why would any overseas publisher grant licensing rights to India? One may actually now see old editions dumped in here undercutting new ones. Low priced editions would vanish, further fostering piracy.
When no other mature market has this, why does India need it? And look at the history of creativity in any of the existing open markets — Malaysia, Singapore, Hong Kong. How many literary or commercial author brands can you name out of these countries?
India has its own laws and ‘religious sentiments’. An Indian rights holder ensures these are conformed to; indiscriminate ‘export dumpers’ do not.
The existing law was created presumably after some thought. We’ve had five amendments of the 1957 Act. The present exercise began with trying to redress the rights of authors in the music and film business. It will end up killing book authors. Publishers, authors, academics are mounting a signature and awareness campaign being kicked off at the Jaipur lit fest. Hoping that sense will prevail and the ministry will ask themselves that classic question: if it ain’t broke, why fix it?
Thomas Abraham has worked in the books business for the past 20 years with Oxford University Press, Dorling Kindersley and Penguin. He is currently Managing Director, Hachette India, the Indian arm of British publishing house Hachette Book Group
The views expressed by the author are personal