The Problem of Piracy

A Perspective From the Issue of Access

By Smarika Kumar
“World Book Day is a celebration! It’s a celebration of authors, illustrators,
books and (most importantly) it’s a celebration of reading. In fact, it’s the
biggest celebration of its kind, designated by UNESCO as a worldwide
celebration of books and reading, and marked in over 100 countries all
over the world.”
-World Book Day website

How many in India are actually reading?
▪ The literacy rates in the country still remain below desired levels.
Most parts of the country have still not been able to achieve the
objective of 80% literacy level by 2012 and the gap between male
and female literacy continues to remain more than the targeted 10
percentage points.
▪ Of those who can read, access to books and reading materials
remains just a dream.
▪ Prices of books remain high and many people are unable to afford
them.
▪ All this, when the Right to Education is a Fundamental Right!
What Is Piracy?

▪ The word ‘piracy’ has not been defined anywhere in law.
▪ Piracy is commonly understood as reproduction of text, media and
other creative works without permission from the copyright holder.
▪ The legality of piracy is often ambiguous.

Some Popular Notions About Piracy
▪ The word ‘piracy’ often has negative connotations because it is
deemed to be harmful to society.
▪ ‘Piracy’ is supposed to discourage authors from creating their work.
▪ ‘Piracy’ is supposed to have a bad effect on national economy.

The Delhi University Photocopy Case
▪ Case culminated when a group of three publishers - Oxford University
Press, Cambridge University Press, and Taylor, Francis and Routledge
filed a Rs. 6 million suit for alleged unauthorised distribution of
course packs.
▪ Suit filed against Delhi University and a photocopy shop on its
premises, Rameshwari Photocopiers.
▪ DU faculty prescribed course material in form of academic texts for
students. Relevant texts were taken from the library or other sources
and submitted to the Rameshwari by the students.
▪ Rameshwari photocopied these texts and circulated the combined
course material to the students at the paltry rate of Rs 0.40 per page.

The Suit Has Enraged People Across the Country


What Are They Enraged About?
▪ Photocopying by Rameshwari
Photocopiers allowed people
to access books they could not
afford earlier.
▪ Photocopying by Rameshwari
Photocopiers increased
circulation of academic texts
among students.
▪ Photocopying by Rameshwari
Photocopiers popularised
those books among a larger
section of the society.
IT SEEMS TO ENABLE ACCESS TO BOOKS
(…AND LOADS OF OTHER MEDIA!)

Why Are Books Inaccessible?
A popular belief:
That books in the subcontinent are in fact, priced much lower than their
counterparts elsewhere. Therefore, prices of books in India does not
pose a significant barrier to readers.

Mandela’s Long Walk to Freedom costs more in India than in USA.

Source: L. Liang & A. Prabhala, Reconsidering the Pirate Nation,
available at: http://www.infochangeindia.org/IPR_ article14.jsp
Low Affordability of Books in India
U.S.A.:
• Price of book: $20
• Average income: $700
India:
• Price of book: $12
• Average income: $10
Upshot:
• Absolute price of book less in India,
but book more affordable to
Americans.

▪ Affordability cannot be measured
only in terms of absolute price of
books.

▪ Need to consider price of books in
relation to the income of people to
measure actual affordability.
For example, if in:
The figures quoted above are fictitious and are meant only for explanatory purposes.
Indians have to spend a much greater percentage of
their incomes to acquire books.
Source: L. Liang & A. Prabhala, Reconsidering the Pirate Nation,
available at: http://www.infochangeindia.org/IPR_ article14.jsp
How much would an American pay for a book if he had to pay the same
percentage of his income that an Indian does?
In India In USA
Percentage of income paid 0.0273 0.0273

Payment in USD $15.40 $1027.50

In India In USA
Percentage of income paid

0.0117 0.0117
Payment in USD $6.60 $440.50

For Long Walk to Freedom by Nelson Mandela
For The God of Small Things by Arundhati Roy
Accessibility Of Some Books Impugned in DU Photocopy Case
Details of Book Price/Availability
Levi-Strauss, Claude, The Savage
Mind, London, Weidenfeld and
Nicholson, 1966 Selected Chapters.
Rs. 3031/-
Luckmann, Thomas ed.,
Phenomenology and Sociology,
Selected Readings, Middlesex:
Penguin Books, 1978, (Chap.12).
Unavailable in market
Schutz, Alfred, On Phenomenology
and Social Relations, Selected
Writings, Chicago: University of
Chicago Press, 1970, (72-78).
Rs. 6610/- (only one volume
of his collected works
available)
Parsons, Talcott, On Institutions and
Social Evolution, Chicago: University
of Chicago Press, 1982, (Selected
Chapters).
Rs. 1799/-
Levi-Strauss, Claude Structural
Anthropology, Harmondsworth:
Penguin, 1963, Selected chapters.
Rs. 1562/-
▪ The accessibility of 20 books
prescribed as syllabus for course
in M.A. Sociological theory at DU
was studied.
▪ Of prescribed books, only 17 were
available in India. So price is not
the only factor hindering
accessibility, unavailability of
book in market also matters.
▪ The price of these 17 books adds
up to an exorbitant figure of Rs.
83,000 ($1700).
▪ Compared with GDP per capita of
India at $1514 this is absurd!
Accessibility Of Books Essential To Spread Literacy
• History shows us that literacy rate and accessibility to books are two issues that
are closely related.

• The expansion of literacy and rise in popularity of books in the US during the
19
th
century, for example, has been attributed mainly to the throwaway prices
at which books were sold there.

• Siva Vaidyanathan, in his account, tells us: “Till the middle of the 20th century, the
United States of America was amongst the most aggressive opponents of any international system
of copyright. As a result, while a copy of Charles Dickens’ Christmas Carol in London cost $2.50 in
1843, American readers could buy it at a cost of merely six cents. The American resistance to
copyright was owing, in a great measure, to a shrewd consideration among Congressmen towards
expanding literacy of the American public which demanded “especially at the frontiers, cheap yet
excellent books”
Busting Some Common Myths About Piracy
▪ Piracy allows access to books by
making them more affordable.
▪ But several allegations are made
against the pirate in how he
brings harm to the society:
That piracy means thieving from
the author.
That piracy causes huge losses to
the economy.
Is Piracy An Assault on Rights of Author?
Whose interests does copyright protect?
▪ Whenever a work is deemed to have been made, ‘for hire’, the
copyright holder is the person on whose behalf the work was made,
and not the individual who actually created it.
▪ If I write an article, as part of the course of my employment in an
institution, copyright in that article would lie with my employer, and
not with me.
▪ In such cases, the employer does not hold copyright because of a
contract with the actual author, but by default due to his mere status
as the employer.

When copyright does lie with author, he nevertheless falls prey to the
disproportionate bargaining power exercised by publishing houses.




Yay! I’ve
written the
best book
in the
world!
I would like to retain
translation and
adaptation rights and
receive 30% royalty
please..
We get all rights
and you get only
10% of royalty.
Either take it or
leave it.
Happy Author Negotiating Author Sad Author
Author is unable to negotiate favourable contracts
with publisher.
Several Authors Have Spoken in Favour of Piracy
▪ A conglomerate of 309 authors, including renowned academics like
Professors Thomas Blom Hansen, Partha Chatterjee, Ayesha Jalal,
Christophe Jaffrelot, Veena Das, Pratap Bhanu Mehta, Marc Galanter and
Professors Richard Falk, Arjun Appadurai, Jonathan Parry, Ramachandra
Guha, Farid Esack, TN Madan, Ian Copland, Tanika Sarkar and Uma
Chakravarty have told the publishers who filed the suit in DU Photocopy
Case:
“ Since the law suit filed by you claims that you are acting on behalf of authors
and representing the interest of authors, we hope you will take seriously this
strong statement by authors and academics that you do not speak in their
name.”
▪ These academics and authors have further requested the publishers to
withdraw the lawsuit against photocopying expensive books to create
course packs.
Piracy Can Increase Legal Sales
▪ The renowned British author Neil Gaiman, says:
“Then I started to notice that two things that seemed much more significant. One of which was that places
where I was being pirated -- particularly Russia (where people were translating my stuff into Russian and
spreading it out into the world) I was selling more and more books. People were discovering me through
being pirated. And then they were going out and buying the real books, and when a new book would come
out in Russia it would sell more and more copies."
▪ When Gaiman persuaded his publisher to release a free digital copy of American Gods, sales of the
book went up by 300%, even though he had been selling well before that.
▪ Gaiman, has spoken about how good piracy is for authors:
“That's really all this is. It's people lending books. And you can't look on that as a lost sale.... What you're
actually doing is advertising. You're reaching more people. You're raising awareness. And understanding that
gave me a whole new idea of the shape of copyright and what the web was doing. Because the biggest thing
the web was doing is allowing people to hear things, allowing people to read things, allowing people to see
things they might never have otherwise seen. And I think, basically, that's an incredibly good thing.
Piracy Helps Popularise New Talent
▪ During the initial days of T-Series, the company was often
approached by various small-time ghazal singers.
▪ Big publishers like HMV, who would own copyright in their work were
unable or uninterested in publishing their work.
▪ These singers would request T-Series that it release their works
through the pirated circuit to ensure that the works were available to
the consuming public.
Does Piracy Undermine National Economic Health?
Publishers in the DU Photocopy Case calculated their losses to the tune
of Rs. 6 million and imposed it as damages on the defendants.
But how are such losses from piracy actually calculated?
▪ Sale of 1 pirated copy is counted as loss of sale of 1 legal copy in
industry reports on piracy.



Because substitution rate for a legal copy with a pirated copy is always <1.
What is Substitution Rate and Why Is It Important?
Substitution rate is a number which tells us how many sales of legal
copies would be lost in lieu of sale of 1 pirated copy.




Income: Rs. 100
Rent: Rs. 50
Food: Rs. 40
Leftover: Rs.10
 Because it costs less, I am much more likely to buy the pirated version, and not the legal copy.
 Because a legal copy costs more, I am much more likely to spend my Rs. 10 on
something else altogether when I do not buy a pirated copy.
Legal Copy Cost: Rs.9 Pirated Copy Cost: Rs.3
Access To A Pirated Copy Is Sometimes The Only Option




Income: Rs. 100
Rent: Rs. 50
Food: Rs. 40
Leftover: Rs.10
Because a legal copy costs more than the money I have left, I will not even be able to access
a copy of the book if I forgo the pirated copy.
Legal Copy Cost: Rs.15 Pirated Copy Cost: Rs.5
Losses Due To Piracy Are Less Than Perceived
▪ NOT true that every time I buy a pirated copy, I cause loss of sale of a
legal copy.
▪ I can buy more than 1 pirated copies for cost of 1 legal copy.
Therefore, substitution rate is less than 1.
▪ But most reports on losses due to piracy assume substitution rate of
1, and show figures for lost sales more than actual sales lost.
▪ Market for piracy does not totally coincide market for legal goods: It
has different sellers and different consumers.



Money not earned by sale of legal copies is NOT money “lost” for
the economy, but is simply spent on other things.
Leftover: Rs.10
Legal Copy Cost: Rs.15
Pirated Copy Cost: Rs.5
Transportation Cost: Rs. 5
Not Just This, Piracy Also Has Countervailing Benefits
Pirated Copy Cost: Rs.5
Transportation Cost: Rs. 5
AND take the
bus to work,
instead of
walking!
All for LESS
than the cost of
buying a legal
copy!
Law Allows Unauthorised Reproduction In Many Circumstances
Educational Exceptions under Sec. 52
Section 52(1)(a)
• allows reproduction for fair dealing
with any work (except computer
programs) for the purposes of
private or personal use, including
research.
Section 52(1)(i)
• allows reproduction of any work by a
teacher or a pupil in the course of
instruction’ or as a part of questions
or answers to questions."

▪ Section 52 of the Copyright Act in
India allows for many exceptions
to copyright infringement.
▪ Works can be reproduced under
these exceptions without
permission from the copyright
holder.
▪ Exceptions provided in light of
public interest to allow easy
access and discussion of works.
What Is Fair Dealing?
▪ “Fair dealing” is NOT “fair use”, which is a concept from American copyright
jurisprudence.
▪ “Fair dealing” is a concept from the British copyright jurisprudence, most
succinctly outlined in the British case of Hubbard v. Vosper [1972] 1 All ER
1023, where Lord Denning said:
“You must consider first the number and extent of quotations and extracts. Are they altogether
too many and too long to be fair? Then you must consider the use made of them. If they are
used as a basis for comment, criticism, or review, that may be a fair dealing.”
▪ Indian courts have widely relied on Hubbard v. Vosper to outline what
constitutes fair dealing. They have ruled that the standard of impression as
to whether a reproduction is fair dealing or not has to be the standard of a
fair-minded and honest person.
Evolution Of Criteria By Indian Courts For “Fair Dealing”
Fair
Dealing
Purpose of
reproduction
Substantiality
of
reproduction
Harm caused
to copyright
holder due to
reproduction
No one criterion is determining for what constitutes fair dealing.
Need To Interpret Copyright Law Liberally To
Balance Public And Private Interests
▪ A survey by the National Book Trust states that one-fourth of the youth
population (nearly 83 million in 2010) identify themselves as “readers of
books” and the number is growing. At books being available at such
exorbitant prices, where is this growing reading population to get its stories
from?
▪ In Eastern Book Company and Others v. D.B. Modak and Anr. AIR 2008
SC809, the Supreme Court of India said:
“A copyright law presents a balance between the interests and rights of the
author and that of the public in protecting the public domain, or to claim the
copyright and protect it under the copyright statute.”
▪ In a country of limited capital resources like India, sharing, reproduction and
wide dissemination of text and other media at the lowest of profit margins
should not necessarily be looked down upon.
Notes:
▪ Social Science Research Council, Media Piracy in Emerging Economies (2011),
available at: http://www.ssrc.org/features/view/media-piracy-in-emerging-
economies/
▪ Lawrence Liang, Exceptions and Limitations in Indian Copyright Law for Education,
The Law and Development Review, Vol. 3 [2010], Iss. 2, Art. 7
▪ Shamnad Basheer, Debanshu Khettry, Shambo Nandy and Sree Mitra, Exhausting
Copyrights and Promoting Access to Education: An Empirical Take (2012), available
at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203437
▪ Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property
and How It Threatens Creativity. New York: New York University Press, 2003.
▪ Lawrence Liang, Atrayee Muzmdar and Mayur Suresh, Copyright/Copyleft: Myths
About Copyright (2005), available at: http://www.countercurrents.org/hr-
suresh010205.htm

 High prices + Unavailability = Low Access to Books in India.
To measure actual affordability, we need to consider price of books in relation to the
income of people.
Accessibility of books is essential to spread literacy and realise the Right to Education, a
Constitutionally-protected fundamental right in India.
Piracy is NOT an assault on rights of the author: Piracy can promote authors, reading, and
even increase legal sales.
Economic losses due to piracy are LESS than as perceived: The substitution rate for pirated
copies is <1, and piracy has countervailing benefits for economy.
Law allows unauthorised reproduction in many circumstances, including fair dealing for
private and personal use like research, and during the course of instruction. There is a need
to interpret such provisions in light of public interest concerning access to books and media.

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