Sunday 3 May 2009

A crime to buy pirate DVDs -- does Maharashtra have the power?

In a post on the excellent Spicy IP weblog, Prashant Reddy ("Beware Mumbaikars: The Slumlord's Act could detain you for a year for simply buying a pirated DVD") discusses provisions enacted by the Western Indian state of Maharashtra  -- which includes copyright-rich Mumbai -- that render not only the sale of pirate product a criminal offence but also the purchase of those items. After discussing whether the amended Copyright Act 1957 as amended already makes provision to the same effect, given the generous definition of "computer programme" under s.2 of that Act which may well cover the sophisticated modern DVD, he then asks whether India's states have power to legislate over copyright:
"...   the law related to copyright and other intellectual property is a subject of the Union List which means that only [India's] Parliament is competent to pass such a legislation in regards pirated DVDs. The State may try to argue that the pith and substance of the legislation is actually in regards 'law and order' which falls under the State List but I think that will be quite a weak argument ...".
This recalls distant memories of the Federal preemption rulings of the US Supreme Court in Sears, Roebuck v Stiffel and Compco v Day-Brite-- but those rulings dealt with the preemption of state power to prevent the copying of subject matter that Congress chose not to protect under Federal IP laws. Here, the "weak argument" of legislation to enforce law and order may carry the day on grounds of efficacy, whatever the merits of the pure legality of the situation.

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