Since the dawn of copyright, publishing empires and their advocates have been boringly consistent in their responses to any changes in copyright law that they choose to disfavour.
They respond every time by simply and simplistically predicting the ruin of the starving creator and the publishing industry, and along with these, the imminent end of Culture, learning and everything nice. Examples are legion. In the publishing empire’s impoverished imagination, with every amendment that has loosened the stranglehold of copyright law, and enlarged the rights of the reading public, the Wheels of Civilization, no less, have ground creakingly to a Final Halt. In over 400 years, this iron template hasn’t altered even marginally, and still continues to plague us to this day with its oppressive banality.
The occasion for this outburst on my part is some of the writing that has surfaced in the ongoing debate over the “parallel import” amendments sought to be introduced into the Copyright Act. For instance, Thomas Abraham’s darkly titled piece “The death of books” in the Hindustan Times which begins bluntly with a prophesy that the new amendment will “dismantle the very fabric of Indian writing in English”. <shudder> There goes my entire library. Thomas then proceeds to issue some misinformation about how the Indian publishing industry “is just about coming into its own in the past few ten years or so”. (As any student of Indian publishing would know, India has been, at least since the late 19th century, home to the most thriving, profitable low-cost print publishing industries anywhere in the world.) Next, with all the freshness of a 400 year old argument, he informs us that because of the new amendment, authors will be bereft of their “economic right.. to profit from their copyright” and consequently will lose all their “incentive” to create. There is the classic, sly conflation of the author’s interest with the big publisher – you are with us or against the struggling author.
There are, however, some novelties in Thomas’ argument. Chiefly the gratuitous disparagement of intellectual production in Malaysia, Singapore and Hong Kong, (allegedly these countries cannot claim even a single “literary or commercial author brand” between them!) and the chastisement of India on account of the fact that “mature markets” don’t have analogous provisions on parallel import as we are trying to introduce. In this latter assertion, India is deftly transformed into the errant schoolboy of global lawmaking!
Rumours of the death of books, fortunately, have always been greatly exaggerated. Unfortunately, so have the rumours about the demise of big publishing.
As I have written elsewhere, I owe my education in English entirely to low-cost editions of books bought from pirate street vendors or less-frequently at second hand bookstores (who typically would stock books imported from overseas library sales). So I’m eagerly anticipating the changes this new amendment promises to unleash – more of the same. (Aside, officially sold English books in India have always been much more highly priced than vernacular books of identical print quality – prompting us to speculate who pockets the difference. And why. The interests of the reading public or the author are very far removed in this calculus.)
Contrary to the fantasies of big publishing empires, it is not their own largesse, but the unwitting generosity of small printers and pirates and book importers that is the cause of India being home to such a huge mass of regularly consuming readers in English. Let nobody be fooled. If street piracy and second-hand sales had been killed off twenty years ago in India, the market for English books in India would not have expanded at all. How else does one explain the irony that despite rampant piracy, despite having the laxest copyright regime in the world (by the publisher’s own accounts), despite the most permissive fair dealing regime in the world, the Indian publishing industry today is a global behemoth. In the past few years alone, India has been invited as the “guest of honour” at multiple book fairs including the ones at London, Frankfurt and Beijing – a testament to the robustness of our indigenous industry. Contrast this with the situation in Hong Kong and Singapore who, in addition to not having any “literary or commercial author brands” between them, have also little to no street piracy in books. The other thing they lack is a thriving indigenous publishing industry. Perhaps the three are interrelated.
In big publishers’ completely book-hating utopia, these “remaindered” books would have to languish in disuse or be destroyed – they would gather dust in warehouses or be turned to pulp rather than circulate in the hands of caring readers who would otherwise be denied access to them. I’m sure this is the stuff every author’s dreams are built of. As a bibliophile who treasures every article on his bookshelf, I am astonished by the hatefulness of this vision – which could only have been issued from the pen of a big-publishing-empire advocate. I think it is one of the most painful ironies of our times that the custodians and owners of our most cherished cultural outputs happen to be copyright lawyers and CEOs of big publishing empires – the dullest, most misanthropic people on the planet.
Although this debate on parallel imports is new, it is in some senses as old as copyright itself. As Mark Rose informs us in his seminal article The Author as Proprietor, Copyright Law itself originates as a move against “parallel import” :
In 1694 the Licensing Act, the statute that regulated the British press, had been allowed to lapse because it was apparent that it was operating primarily as a restraint on trade. Most affected negatively were the small group of powerful London booksellers who under the ancient rules of the Stationers’ Company had come to control nearly all the old copyrights of value. This group, whose dominance of the book trade was threatened by the provincial booksellers of Ireland and Scotland (who were not bound by the rules of the Stationers’ Company), petitioned Parliament for permission to bring in a bill to regulate the trade, and in 1709 the Statute of Anne, the world’s first copyright act, was passed.’ The statute was essentially a codification of long-standing practices of the Stationers’ Company, but, whereas under the guild regulations copyright was perpetual, under the statute the term was limited to fourteen years with a possible second term if the author were still living. (emphasis mine)
Then, as now, the issue was about incumbent interests in the heart of Empire – the London Booksellers – trying to preserve their dominions against upstart native enterprise in the colonies (in the 17th century, the Irish, Scots and Indians were regarded, alike, as barbarians – See Henry Maine etc) to the detriment of the reading public.
The proposed amendment will not kill Indian publishing (and even more ridiculously, Indian writing), any more than a century of piracy has. But defeating it *will* preserve the rights of global publishing empires, headquartered overseas, to decide which class of the Indian public gets to consume its books.
At stake are not the interests of “Indian publishing” at large, but the interests of a clutch of foreign publishers who wish to re-colonize Indian publishing and consumption through the devious means of licensing contracts.
Here’s an alternate scenario – my counter-utopia to Thomas’ ungenerous one:
The parallel import clause passes into copyright law, and an entire business model is spawned which focuses on providing access to books through parallel import. Since books tend, almost as a rule, to be much more expensive abroad, it would not make economic sense (there would be no incentive!) to import books where low-priced editions are already published in India. This will force more foreign publishers to aggressively publish low-priced editions in India – thus leading to a further expansion of the Indian publishing industry, and benefiting the Indian reader with access to wider material. Meanwhile importers would concentrate on books where editions are not available in India – opening up access to a hitherto unavailable richness of literature. As more second hand book stores open up, the general levels of readership will increase – leading to the production of more author-aspirants, and a larger consuming public. The new authors will in turn greatly expand the markets for Indian publishing, who will reap more enormous profits (since that’s what it all seems to come down to anyway) from the expanded Indian readership. India will greedily lap up the “remaindered” books of the world – a thought I find absolutely alluring.
And all of this because of parallel imports.
(Ps. I’ve desisted from running through the specific legal provision implicated because I think this has already been done by many others. For a very detailed account of this provision and its various legal intricacies read Pranesh Prakash’s excellent and thoughtful post:Why Parallel Importation of Books Should Be Allowed
I endorse everything there.
Rahul Maththan has added his voice to the debate by endorsing the amendment in his article in the Indian Express. There’s also a piece on SpicyIp by Amlan Mohanty.
As with most things in IP law, I think this battle will be won more in the realm of rhetoric than legal argument.
Just for clarity, I think that buried under the heavy jargon of “parallel import”, “territoriality”, “national exhaustion” etc, this is really a battle being waged by foreign publishers against bibliophiles and bibliophilia in India. The incumbents in the global publishing industry have always been cranky about losing their monopolies and things are no different this time. As usual they’ve dragged the specter of the struggling author to shadow-box for them. Seldom in the history of copyright law have any developments truly been about benefiting the author (for instance, why don’t we have a law that statutorily prescribes a minimum royalty of say 50% of the price of the book? Wouldn’t that benefit the struggling author? Currently, the global average royalty an author receives is rarely over a measly 8-10%.).
PPs: I realize I must sound very unkind to Thomas Abraham in this piece –I don’t know him and I’m sure he’s an honourable man. As any good historian of copyright law will agree, I think his piece rehashes exactly the same arguments that have been made thousands upon thousands of times in the past by captains of big publishing industries. I’m using his piece as a prop, but it is in fact to the same arguments that my post is addressed)
Update +1 day: There’s an interesting rebuttal to my post by Thomas Abraham at Divya Dubey‘s blog. I’m prepared to concede the argument about “English language publishing” in India having some cause to worry. As he acknowledges, this is not the same as “Indian writing in English” – which was my main point. I also found very interesting his assertion that “Any importer would concentrate first on the book that was a success here.” – I think this is true, despite my provocation. But this leads to two conclusions – one that parallel import is an issue that will concern only large publishers and big-name authors. And second, why aren’t these books, these “low cost Indian editions” more accessibly priced to start with? As of this writing, Gyan Prakash’s tome on Bombay/Mumbai costs Rs 600 on Flipkart and is only available in hardback edition. For many of us this is an unacceptable price, and doesn’t give us a lower priced paperback option. The publishing industry’s response – that I should wait for their approved “low priced” edition to emerge a few months/years(?) from now is high-handed. Bibliophilia doesn’t wait, if it can avoid it, for the territorial fantasies of large publishers to play out. I think parallel imports will force Indian publishers to change their business model and there will be a welcome reduction in prices all round. This will benefit consumer choice, expand readership and benefit the author both in royalty payments as well as increased exposure to audiences. One only has to look at how Moser Baer has succeeded in tapping into a large market of cinephiles by dropping the rates of CDs to ‘pirate’ prices – with no drastic consequences for Indian cinema. The Moser Baer’s model was self-consciously modelled after the ‘pirate’ business model and I await a similar readjustment in the realm of English book publishing and distribution. Bibliophilia, like cinephilia, is something that industries can tap into – but it will need a re-imaginative shake up of prevailing industry shibboleths. I think parallel import may provide the occasion for such a shake up – since book piracy has largely failed.
Aside, I’ve decided that I like this Thomas Abraham! I think he’s been very patient, and informative about the industry-as-it-stands. Book publishing in India has operated largely in the shadows and I think between his posts, he’s provided a lot of grist for research. I’ve decided to tone down my jibes in this post where possible. Time to roll back the tanks, lay down the weapons and stop baring fangs! :). I hope we can meet as friends!