Ethics in media

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A

Dissertation on

“Ethics in Media (The Relevance of Copy Right Act in Media)”

By

Shashikant Bhagat

Nalsar Pro ID No. MLH39_09

A Project Paper Submitted in Partial fulfillment of P.G. Diploma in Media Laws for Module – II (Media – The Legal Framework)

December 2009

Nalsar University of Law (Nalsar Pro), Hyderabad

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Table of Contents

Sr. No.

Heading Page No.

01. Introduction: - 3 - 6

02 Case 7-8

03. The Relevance of Copyright Act in India

9-14

04. Term of Copyright 15-17

05. Broadcast Reproduction Right 16-16

06. Copyright Piracy 17-23

07. Conclusion 24-24

08. Bibliography 25-25

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INTRODUCTION

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Media ethics is the subdivision of applied ethics dealing with the specific ethics principles and standards of media, including broadcast media, film, theatre, the arts, print media and the internet. The field covers many varied and highly controversial topics, ranging from war journalism to Benetton advertising. Like ethics the law seeks to balance competing aims. In most countries there are laws preventing the media from doing or saying certain things when this would unduly breach another person’s rights? For instance, slander and libel are forms of defamation, a tort. Slander occurs when a person’s good name is unfairly slurred. Libel is concerned with attacks on reputation through writing. A major area of conflict is between the public’s “right to know”, or reputation through writing. A major area of conflict is between the public’s “right to know”, or freedom of the press, and individual’s right to privacy. This clash often occurs regarding reporting into the private lives of public figures. There are restrictions in most countries on the publication of obscene material, particularly where it depicts nudity, desecration of religious objects or symbols (blasphemy), human remains or violent or sexual.

Areas of Media Ethics: -

Ethics of Journalism: -

The ethics of journalism is one of the most well-defined branches of media ethics, primarily because it is frequently taught in schools of journalism. Journalistic ethics tends to dominate media ethics, sometimes almost to the exclusion of other areas.

i) News Manipulation – News can manipulate and be manipulated. Governments and corporations may attempt to manipulate news media; governments, for example, by censorship, and corporations by share ownership. The methods of manipulated may not be aware of this case.

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What we have seen in Mumbai in the last ten days is a new low in politics. A politics like this is deadly for our democracy. Regional chauvinism and parochial politics are being played out at the expense of some very poor people.

MUMBAI is in headlines for last few days and we have seen some very parochial politics being played in Mumbai and in the country over all. Maharashtra Navnirman Sena (MNS) activits are on rampage against North-India migrants in Mumbai and Maharashtra. The ‘bhaiyyas’, common pejorative for North-Indian living in Mumbai, are being targeted because MNS believes that these migrants, especially from Uttar Pradesh (UP) and Bihar are creating nuisance in the city and are taking the share of Marathi people.

Raj Thackeray is struggling to gain some political relevance and ahead of 2009 assembly polls, he has aroused regionalism to meet his vested interested. He wants to project himself as a true savior ‘ Marathi Manus’. But he has touched a new low in the politics by pitting people of one region against another. Such tactics can be very deadly and may lead to total chaos and unrest in Mumbai.

This can be well controlled if the media would have not come in the picture and manipulated the news.

ii) Truth – truth may conflict with many other values.

Public interest – revelation of military secrets and other sensitive government information may be contrary to the public interest, even if it is true. The definition of public interest is hard.

Privacy – Salacious details of the lives of public figures is a central content element in many media. Publication is not necessarily justified simple because the information is true. Privacy is also a right, and one which conflicts with free speech.

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Fantasy – fantasy is an element of entertainment, which is a legitimate goal of media content. Journalism may mix fantasy and truth, with resulting ethical dilemmas.

Taste – Photo journalists who cover war and disasters confront situations which may shock the sensitivities of their audiences. For example, human remains are rarely screened. The ethical issue is how far should one risk shocking an audience’s sensitivities in order to correctly and fully report the truth.

(iii) Conflict with the law – Journalistic ethics may conflict with the law over issues such as the protection of confidential news sources. There is also the question of the extent to which it is ethically acceptable to break the law in order to obtain news. For example, undercover reporters may be engaging in deception, trespass and similar torts and crimes.

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Case

There are some stories that simply don’t make the news, while others more than make up for it in terms of volume, even though both may be in the same zone. Let’s look at a few random examples:

Amitabh Bachchan’s house getting flooded is news, 1.3 million people in Bihar and Orissa losing their homes due to floods is not news.

Prince Stuck at the bottom of a well is news, while a Dalit boy burnt alive for daring to pull water out of a well is not new.

Gay people protesting in Australia is news, Landless marching to Delhi- in the largest march since Independence is not news.

The Sensex at 20,000 is news; companies laying off people due to the strengthening rupee is not news.

Discriminating against Shilpa Shetty is news; Discrimination against Muslims & Dalits is not news.

Bobby Jindal is welcome news, Mayawati is not.

And SRK on a high protein diet to get his six packs is news, but, millions not having any diet to speak about is not news.

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Case

From TOI:

Delhi Police on Friday detained for questioning a TV channel reporter who conducted a sting operation on a government school teacher in an attempt to show that she was running a prostitution racket. Prakash Singh, the television reporter of Live India, was asked to join investigation by the police but he refused. He was ultimately picked up for investigation on Friday”, a senior police officer said. His detention comes a day after police arrested a girl who appeared in the TV sting operation posing as a student. She was arrested on charges of “criminal conspiracy, cheating and fabricating false evidence”. All very fine, but what about the owners and promoters of “Live India TV” – what is their punishment for having systems and processes that

a) Allows for a story like this to go on, without verification. What were the editors and others doing, or is Live India TV – the bastion for unedited user generated content.

b) Allows an innocent person to be defamed, defaced, derided, and wrongly outed.

c) Through their irresponsibility and avarice, puts all our freedoms in peril.

Can we please see their broadcasting license withdrawn and heavy punitive damages for this action? There is no point in just penalizing the guy on the ground. A system that allows and encourages this sort of damages ought to face the consequences. Sting operations are needed to ensure that instead of penalizing organizations misusing ‘sting’ – we end up debating ‘sting’ itself. And, it is time that we – instead of banning techniques, look at penalizing organizations that condone poor and faulty journalism. Misuse of journalistic powers and broadcasting licenses ought to be dealt with by the industry, the government without exceptions. And as far as the victim of this sting is concerned – the poor teacher. Stuff like this never goes away. Her name, her address, her looks are plastered all over the place. The arrest of this ‘journalist’ will not make it go away.

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The relevance of Copy Right Act in Media

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Introduction

The Copyright Act, 1957 came into effect from January 1958. This Act has been amended five times since then, i.e., in 1983, 1984, 1992, 1994 and 1999, with the amendment of 1994 being the most substantial. Prior to the Act of 1957, the law of copyrights in the country was governed by the Copyright Act, 1911 to India. Even the Copyright Act, 1957 borrowed extensively from the new Copyright Act of the United Kingdom of 1956. The Copyright Act, 1957 continues with the common law traditions. Developments elsewhere have brought about certain degree of convergence in copyright regimes in the developed world. The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights. India is member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions.

Two new treaties, collectively termed as Internet Treaties, were negotiated in 1996 under the auspices of the World Intellectual Property Organization (WIPO). These treaties are called the WIPO Copyrights Treaty (WTC) and the WIPO Performances and Phonograms Treaty (WPPT). These treaties were negotiated essentially to provide for protection of the rights of copyright holders, performers and producers of phonograms in the Internet and digital era. India is not a member of these treaties as yet. The section 9 of the copyright act. The copyright office is to be under the immediate control of a registrar of copyrights to be appointed by the central government, who would act under the superintendence and directions of the central government.

Section 11 of the copyright act requires the central government to constitute a copyright board headed by a chairman with not less than two and not more than 14 other members. Registrar of copyrights is to be secretary of the copyright board. Section 12 of the copyright act also lays down the powers of

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the copyright board and deems it to be a civil court for the purposes of sections 345 and 346 of the code of criminal procedure, 1973 and also that

all the proceedings of the board would be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code.

Meaning of copyright: - (1) For the purpose of this Act, “copyright” means the exclusive right, by virtue of and subject to the provisions of, this act,

(a) In the case of a literary, dramatic or musical work, to do and authorized the doing of any of the following acts, namely: -

(i) To reproduce the work in any material form;

(ii) To publish the work;

(iii) To perform the work in public;

(iv) To produce, reproduce, perform or publish any translation of the work;

(v) To communicate the work by radio-diffusion or to communicate to the public by a loud-speaker or any other similar instrument the radio-diffusion of the work;

(vi) To make any adaptation of the work;

(vii) To do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (iv);

(b) In the case of an artistic work, to do or authorize the doing of any of the following acts, namely: -

(i) To publish the work;

(ii) To include the work in any cinematograph film;

(iii) To make any adaptation of the work;

(iv) To do in relation to an adaptation of the work any of the acts specified in relation to the work in clause (i) to (iii),

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( c) in the case of a cinematograph film, to do or authorize the doing of any of the following acts, namely: -

(i) To make a copy of the film;

(ii) To cause the film, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public;

(iii) To make any record embodying the recoding in any part of the sound track associated with the film by utilizing such sound track;

(iv) To communicate the film by radio-diffusion;

(v) In the case of a record, to do or authorize the doing of any of the following acts by utilizing the record, namely: -

(i) To make any other record embodying the same recording;

(ii) To cause the recording embodied in the record to be heard in public;

(iii) To communicate the recording embodied in the record by radio-diffusion.

(2) Any reference in sub-section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing of that act in relation to a substantial part thereof.

Special provision regarding copyright in designs registered or capable of being registered under the Indian Patents and Designs Act, 1911: - (1) Copyright shall not subsist under this act in any design which is registered under the Indian Patents and Designs Act, 1911 (5 of 1911).

(2) copyright in any design, which is capable of being registered under the Indian Patens and Designs Act, 1911 (2 of 1911), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been produced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person.

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No copyright except as provided in this Act: - No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.

Work in which copyright subsists: -(i) Subject of the provisions of this section and the other .

Moreover, Copyright is intellectual property, which is valued by all societies which believe in rewarding individual effort and enterprise.

Copyright essentially means the exclusive right of an author of a creative work to dispose of his work in return for remuneration.

Copyright seeks to achieve many objectives:

It protects the creators of artistic and literary work from being unfairly denied the fruits of their labour;

Copyright acts as an incentive for authors to create new works and thus aids cultural progress;

It promotes the cause of national prestige by giving the protection necessary to enhance the cultural heritage of a country.

Copyright performs certain important practical functions:

It ensures that the remuneration due to an author is shared equitably among the ultimate consumers, i.e. purchasers of books, etc.

It provides a simple solution to the tortuous problems of renumerating authors across national boundaries;

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It helps strike a satisfactory balance between the legitimate needs of society for access to material of importance for the enjoyment of a full life on the one hand, and the equally legitimate right of creators of such material to remuneration.

The Copyright Act 1957:

Copyright extends only to the expression of an idea, not to the idea itself. There cannot, therefore, be copyright in historical facts which form the basis of more than one book or film.

To whom is copyright available?

Authors of original literary, dramatic, musical or artistic work (including cinematograph films, videos, CDs & gramophone records).

For how long does copyright exist?

The lifetime of the author plus 50 years from the date of his death.

In the case of photographs, for a fixed term of 50 years from the beginning of the calendar year following the year of publication.

In the case of anonymous works, 50 years from the date of first publication.

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Term of CopyrightTerm of copyright in published literary, dramatic, musical and artistic works: - Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until fifty years from the beginning of the calendar year next following the year in which the author dies.

Explanation – In this section the reference to the author shall, in the case of a work of joint authorship, be construed as a reference to the author who dies last.

Term of copyright in posthumous work: -

(1) In the case of literary, dramatic or musical work or an engraving, in which copyright subsists at the date of the death of the author or, in the case of any such work of joint authorship, at or immediately before the date of the death of the author who dies last, but which, or any adaption of which, has not been published before that date, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the work is first published or, where an adaption of the work is published in any earlier year, from the beginning of the calendar year next following that year.

(2) For the purpose of this section a literary, dramatic or musical work or an adaptation of any such work shall be deemed to have been published, if it has been performed in public or if any records made in respect of the work have been sold to the public or have been offered for sale to the public.

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Terms of Copyright in Photograph: - In the case of a photograph, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the film is published.

Terms of Copyright in Cinematograph Films: - In the case of a cinematograph film, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the film is published.

Terms of Copyright in Records: - In the case of a record, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the record is published.

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Broadcast Reproduction Right: -

(i) Where any programme is broadcast by radio-diffusion by the government or any other broadcasting authority, a special right to be known as “broadcast reproduction right” shall subsist in such programme.

(ii) The Government or other broadcasting authority, as the case may be, shall be the owner of the broadcast reproduction right and such right shall subsist until twenty-fifty years from the beginning of the calendar year next following year in which the programme is first broadcast.

(iii) During the continuance of a broadcast reproduction right in relation to any programme, any person who,

(a) Without the license of the owner of the right:

(i) rebroadcasts the programme in question or any substantial part thereof; or

(ii) causes the programme in question or any substantial part thereof to be heard in public; or

(b) without the license of the owner of the right to utilize the broadcast for the purpose of making a record, recording the programme in question or any substantial part thereof, make any such record, shall be deemed to infringe that broadcast reproduction right.

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COPYRIGHT PIRACY:

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Introduction:

The world today has entered into an era of instant communication. A person sitting in the remotest corner of India can enjoy live performance taking place in the far away places like America or Africa, thanks to electronic (parallel) media. Telephone and fax have made it possible to communicate oral or written message across the globe within seconds. The computer-aided communication technologies such as e-mail and internet have added altogether a new dimension to today’s communication process by making it more speedy, informative and economical. The ways through which different types of information can be communicated have also undergone a sea change. These days a film song can be put in or accessed by a single device along with a textual message and even a painting. While all these have made communication among people more effective and efficient both in terms of time and cost, they pose the greatest threat to the copyright world. Modern communication channels, being intensively relying on a variety of copyright products, are liable to be pirated in large scale, if adequate precautions are not exercised.

Copyright is the given by law to the creators of literary, dramatic, musical and a variety of other works of mind. It ordinarily means the creator alone has the right to make copies of his or her works or alternatively, prevents all others from making such copies. The basic idea behind such protection is the premise that innovations require incentives. Copyright recognizes this need and gives it a legal sanction. Moreover, commercial exploitation of copyright yields income to the creators and thus making pecuniary rewards to individual’s creativity.

Though piracy was born by the end of the fifteenth century, it was only in 1710 the first law on copyright in the modern sense of the term came into existence in England. The law which was known as ‘Queen Anne’s Statute’ provided authors with the right to reprint their books for a certain number of years. The 1710 law was confined to the rights of authors of books only, and more particularly the right to reprint. It did not include other creative works such as paintings, drawings etc. which also by that time became targets of piracy, in addition to other aspects relating to books (e.g. translation, dramatization etc.). To overcome this problem a new enactment namely ‘Engravers Act’ came into existence in 1735. There followed

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a few more enactments in the subsequent periods and ultimately copyright act 1911 saw the light of the day.

Developments in this regard also took place in many other advanced countries, notably among them being France, Germany and the USA. In France a copyright decree was adopted in 1791 which sanctioned the performing right and another decree of 1793 established author’s exclusive right of reproduction. In Germany author’s rights were recognized by a saxon order dated February 27, 1686. In America the first federal law on copyright, the copyright law 1790 provided protection to books, maps and charts.

Copyright and National Economy:

Besides protecting creative potential of the society, copyright contributes to nation on economic-front as well. The copyright based industries together generate huge employment in the country of its origin. The national exchequer benefit from the contribution made by these industries in the form of excise duty, sales tax, income tax etc. from the production and sale of copyright products. Given the natural demand for such products from across the national boundaries exports help consolidate country’s foreign exchange reserves position.

While there is no two views on the economic importance of copyright, it is not easy to assess it properly. The first and foremost difficulty arise in defining the copyright based industries. In simplistic term copyrighted materials for their commercial success. But the range of activities that come under the subject of copyright is so wide that the task of defining the copyright industries classifications and they are also not readily identified as an industries in the usual sense. This makes the issue more complicated.

However, there is a general consensus on the activities that come under copyright industries. It include printing and publishing of books, newspapers, journals & other periodicals, production and sale of audio products (Cassettes/CDs), production & distribution of cinemas, videos and cables, creation of computer software & database and their distribution, radio and television broadcasting, advertising, photography, dramatic and musical performances etc. The list is not exhaustive. But the present study is confined to only the main segments of the copyright industry and covers cinematographic works (including video), sound recordings, literary works (main book publishing), computer software and performances.

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Copyright Piracy:

Copyright piracy is a phenomenon prevalent worldwide. Piracy means unauthorized reproduction, importing or distribution either of the whole or of a substantial part of works protected by copyright. The author of a copyright work, being the owner, enjoys certain exclusive right with respect to his or her works. These include right to reproduce, to publish, to adopt, to translate and to perform in public. The owner can also sell, assign, license or bequeath the copyright to another party if he wishes so. If any person other than the copyright owner or his authorized party undertakes any of the above mentioned activities with respect to a copyright product, it amounts to infringement of the copyright. Copyright piracy is thus like any other theft which leads to loss to the owners of the property. Besides economic loss, piracy also adversely affects the creative potential of a society as it denies creative people such as authors and artists their legitimate dues.

There are different ways through which piracy takes place. Computer software is pirated by simply copying it onto another machine not authorized for its use. Book piracy takes place when a book is reproduced by someone other than the real publisher and sold in the market. A performer’s right is violated when a live performance of an artist is recorded or telecasted live without his/her permission. In a cinematographic work piracy generally takes place through unauthorized reproduction of the film in video forms and/or displaying the video through cable networks without taking proper authorization from the film producer (the right holder). In fact, there are numerous other ways through which piracy of copyright works take place. The nature and extent of piracy also vary across the segments of the copyright industry. It is, therefore, necessary to discuss the nature and extent of piracy problems segment wise. Such an attempt is made in the following paragraphs.

Literary Works:

Piracy of literary works means illegal reproduction of books and other printed materials and distribution/selling of these for profit. In India, the journals/magazines and other periodicals are not pirated much. Here piracy of literary works generally takes place in three principal ways. :

i) wholesale reprinting of text and trade books.

ii) Unauthorized translations and

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iii) Commercial photocopying of books/journals. Many a time piracy takes the form of publishing fake books, where authors shown in books are not the real authors.

Sound Recordings:

The sound recording industry faces three types of piracy. First, there is a simple way by which songs from different legitimate cassettes/CSs (and thus different right holders) are copied and put in a single cassette/CD. These are then packaged to look different from the original products and sold in the market. Second, there is counterfeit, when songs are copied in to and packaged to look as close to the original as possible using the same label, logos etc. These products are misleading in the sense that ordinary end users think that they are buying original products. The third form of music piracy is bootlegging, where unauthorized recordings of performance by artists are made and subsequently reproduced and sold in the market. All these happen without the knowledge of the performers, composer or the recording company.

Cinematographic Work:

Copyright in cinematographic works in more complex in nature as there exists a variety of copyrights in a single work and many a times these rights are also overlapping. The first right in a film is the ‘theatrical right’ i.e. the right to exhibit films in theatres. The producer is the copyright holder. The distributors buy theatrical rights from producers and then make some arrangements with the theatre owners for actual exhibition to the public. The theatrical right are limited by territory and time. Films are also released in video cassettes. In fact, these days viewing film at home has become more popular than seeing the same at theatres. The producers sell the video rights to another party, who makes video cassettes for sale in the market. These cassettes are meant for ‘home viewing’ only i.e. one can buy a copy of it for seeing at home with family members and friends. Such cassettes can not be used for showing the film in cables or through satellite channels. Because showing films in cables or satellite channels require acquisition of separate sets of rights namely ‘cable rights’, and ‘satellite rights’.

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Computer Software:

The piracy in computer software simply means copying and distribution of computer programmes without the copyright holder’s permission. The software industry, generally, consists of creation and distribution of computer programmes. Creation of computer programme is similar to writing a novel or other literary works and it requires intellectual skill and training in software programming. Though a software can be written by individual programmer, most of the major software’s are the outcome of group efforts, where medium to large sized teams spend months or even years to write a complete programme.

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Conclusion

Piracy of copyrighted products is a problem as old as the copyright itself. Only in recent years it has received prominence, especially in the academic and policy circle. In India, no official estimate is available to indicate the extent of piracy and associated economic loss. But perceptions are that the piracy is a big problem.

The main reasons behind copyright piracy are poor enforcement and lack of awareness on copyright matters. The copyright laws of India are as good as those of many advanced countries in Europe and America, where concern for copyright is at a high level. Punishments prescribed for violators are stringent and comparable to those of many countries in the world but laws alone can do little justice unless implemented properly. The enforcement mechanism is weak in the country.

Even police personnel, who can play a major role in combating piracy, are not fully aware of various provisions of the law. There is also lack of adequate number of personnel who can fully devote to copyright crimes alone. The police are more concerned with usual law and order problems and copyright related crimes are attached least priority.

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Bibliography: -

i) www.tcp.in

ii) www.doctorndtv.com

iii) www.iglhrc.org

iv) www.christianlaw.org

v) www.davidmacd.com

vi) www.indianngos.com

vii) www.wikipedia.com

viii) www.dogpile.com

ix) www.google.com