Thursday, July 15, 2010

Institutional Failure of Atomic Energy Regulatory Board (AERB)- case study of radioactive leakage in Mayapuri, Delhi


Atomic Energy Regulatory Board (AERB) has been entrusted with the responsibility of laying down safety standards, and framing rules and regulations covering regulatory and safety functions envisaged under the Atomic Energy Act, 1962. It was constituted on November 15, 1983 by the President of India by exercising the powers conferred by the Atomic Energy Act to carry out certain regulatory and safety functions under the Act. The stated mission of AERB is to ensure that the use of ionising radiation and nuclear energy in India does not cause unacceptable damage to the health of workers handling such materials and to the environment. However, in April 2010, one of India’s top educational institutions Delhi University which operates right under the ruling establishment has been found guilty of mishandling of a highly radioactive material Cobalt-60, categorised as a radioactive source ‘that can cause permanent injury to a person handling the material even for a short time without appropriate safety measures and protection, Co-60 is used in industrial applications such as industrial radiography cameras, nucleonic gauges for thickness measurement and in well-logging operations, and in medical equipment (Blood irradiators and radiotherapy units).

In utter disregard to safety norms and regulations aforesaid university auctioned various items including the instrument containing Cobalt 60, which ultimately landed up in a metal scrapyard in Mayapuri are of Delhi on 9th April,2010. In the junkyard workers got affected by radiation poisioning from the material while dismantling the instrument resulting in death of one person and hospitalised 6 others. Since then, the Crisis Management Group in the Department of Atomic Energy (DAE) and other officers from DAE and AERB have camped in the national capital with a range of radiation monitoring and detecting equipment for prompt identification and recovery of the radioactive pieces and their safe disposal. This piece of Cobalt 60 was manufactured by Atomic Energy Canada and bought by University in 1968 and was not being used since 1985.

This sounds bizzare, but it is not something that AERB has not seen before. India’s top radiation safety regulator has probed 16 such cases across the country since 2000 in which radioactive material was either stolen or lost. Equally responsible is administration of Delhi University for this mess, the university authorities in the Chemistry Department did not think twice before sending radioactive Gamma Cell Irradiator 220 lying unused for more than 25 years in a corner to a junk dealer in the heart of the capital. Ten academic experts who were part of the committee that approved disposal of this instrument - which had a Cobalt 60 source that could emit radiation for another billion seconds - without bothering about the stringent rules that govern such radioactive wastes. Under current regulations, the university is supposed to have a designated "radiological safety officer". Apparently, the university has flouted even this most basic regulatory requirement. If such a person had been there, he/she would have had the list of all radioactive materials within the campus and the experts committee would have at least been alerted about such equipment.

The regulatory system of inspection and monitoring put in place by the AERB, though detailed and elaborate, is actually not fool-proof. There have been instances year after year of loss and theft of sources from installations, particularly industrial sites. Most of these incidents, however, are not due to the inadequacy of the AERB's regulatory system but due to non-compliance and laxity on the part of the end-users. It is quite ironic that shortly after the Mayapuri incident AERB had issued revised guidelines pertaining to safety and security of radioactive materials and announced a special meeting on regulatory aspects of safety and security of industrial radiography sources. There have been many instances of thefts and other unusual occurences reported by AERB. The number of such incidents is not large considering that thousands of radiological sources have been distributed to users all over the country. But the seriousness of the radiological accidents demands that there should be zero-tolerance to such incidents. The periodic occurrences suggests that it is well within the realm of possibility that even domestic radioactive devices, supplied by the Board of Radiation and Isotope Technology (BRIT) and registered with the AERB, could end up in a scrap market. Such instances have occurred in the past and it is the stated mission of AERB to prevent such incidents which play havoc with the lives of common people. Some cases come to light too often like, in 2004, an industrial radiography source with a relatively high activity of 2.5 Curies (Ci) of Iridium-192 was stolen from the pit room of a radiography institute (later recovered), in Mumbai in 2005 a man stole a radioactive source and threw it into the Vashi Creek, in September 2008 a technician, about to board a train from the Hazrat Nizamuddin railway station, New Delhi lost his suitcase containing an Industrial Gamma Radiography Exposure Device. Despite an exhaustive search, the device could not be found. Such instances of radioactive materials changing hands puts question mark on the sincerity and integrity of AERB’s stated mission.



The news of radiation spread fast and International Atomic Energy Agency had become aware of the possibility of a serious radiation emergency at Mayapuri in New Delhi via media reports on April 9. It had also seen media reports of a fatality caused by exposure to radiation in Indian scrap metal yards and sought information. Accordingly, AERB sent full information under Incident Reporting System (IRS) as per mandatory requirement of the global nuclear watchdog and Illicit Trafficking Data Base (ITDB) of the agency. Department of Atomic Energy had confirmed the event, and the AERB had notified the IAEA that multiple Cobalt-60 sources had been located and secured.



The Cobalt 60 radiation tragedy has unearthed many issues and has brought up many systematic problems to the fore. It has become evident that our ports are porous to all kinds of waste and there are no scanners to detect what comes in, nuclear or otherwise. There seems to be no mechanism to track the illegal movement of radioactive matter through our transport system. Scrapyard dealers too suffer from lack of knowledge about safety norms, procedures and techniques to handle such waste. Moreover it is well known that India is one of the largest waste importing country. All types of waste are imported into India. Government data reveals that India even imports prohibited wastes like clinical waste, incineration ash, municipal waste and e-waste, all of which exceeds 50 lakh tonnes annually. India with a population of nearly 1.2 billion, human life has never been a premium in India Thousands die every year due to easily avoidable causes such as stampedes at temples, willful flouting of road safety rules particularly by state-run buses, people touching live electric wires left loose by government utilities and drowning in open manholes of sewage pipelines. Unfortunately, when the Mayapuri incident was reported, everybody got involved in a blame game and buck passing as usual. Mayapuri incident and related first death in India because of radiation poisoning calls for reevaluating the tracking and monitoring of such radioactive waste and also fixing responsibility for any radiation disaster. The Mayapuri-Delhi University case is an example where even people who should be aware of the risks were callous.



Business Negotiations Related to Piracy Control in Cinematographic Work


Introduction

Business negotiations usually refer to an interactive process between two or more parties seeking to find common grounds on an issue or issues of mutual interest or dispute. In which the involved parties seek to make or find a mutually acceptable agreement that will be honoured by all the parties concerned. Negotiation is the process of two individuals or groups reaching joint agreement about differing needs. In business negotiations, negotiators jointly search for a multidimensional space and then agree to a single point in that space. Negotiation applies knowledge from the fields of communications, sales, marketing, psychology, sociology, politics, and conflict resolution. Negotiations related to tackling copyright infringement in cinematographic works are complex as there exists a variety of copyrights in a single work and many a times these are overlapping. Cinematographic work includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack. Copyright infringement surged in the entertainment industry after the advent of the Video Home System (VHS), home video equipment. In numerous countries, the lack of a minimum regulatory framework for the sector does not foster the organisation of the professional and economic environment.

According to the Lex Orbis Intellectual Property Resource Center, copyright, is a bundle of rights, which grants protection to the unique expression of ideas. Copyright is a negative right and the owner of a copyright gets the right to prevent others from copying his or her work without his or her consent towards a commercial end. However, at the same time it gives to the author an exclusive right for the commercial exploitation of his work. Copyright infringement in cinematographic work occurs when anyone who sells, acquires, copies or distributes copyrighted materials without permission. Downloading a movie without paying for it is morally and ethically no different to walking into a store and stealing a DVD (Digital Video Disk) off the shelf. Sharing it through peer-to-peer applications or posting it on a forum for downloading is akin to giving illegal copies to thousands and millions of people for free. Piracy is committed in many ways, including via the internet by downloading and swapping movies, and on the streets, where illegally duplicated VCDs (Video Compact Disk) and DVDs are sold by shopowners and street vendors. Illegal downloads of popular films are nearly as numerous as box office visits. A French anti-piracy association, The Association against Audiovisual Piracy (ALPA) analysed peer to peer traffic in France between November 2007 and June 2008 and concluded that a number of popular films had been downloaded so many times that the phenomenon could endanger the entire film industry (Cheng, 2008).

Regarding the extent of piracy in India, Indian Film Industry estimated a loss of Rs. 1700 crore ($360 million) in revenue annually and the Indian government loses Rs. 750 crore in taxes because of piracy. A report by the US-India Business Council estimates a loss of $4 billion to the Indian Entertainment Industry due to piracy (Kapoor 2009). 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. To tackle the scourge of piracy, India is actively negotiating with United States to minimise the loss suffered by Indian Film Industry.


The Issue of Piracy and the strategies of anti-piracy

In the recent years, bollywood has attracted a great deal of international interest, in terms of revenue. Indian Film Industry is still a small but gradually expanding part of the international market which churns out the largest number of films every year (an average of 800 films per year) where the gate receipts for domestic sales are to the tune of US$ 869 million. Even, the government has realised the true potential of bollywood and has formally granted it the status of an ‘industry’ in 2001 (Timm Neu, 2007). Indian expatriates and the worldwide embrace of Indian cultural products (including food, music, spirituality, and exercise method-yoga) had created a strong new market for Indian films outside India. Indian artists have had a fair amount of success abroad. Indian music director, A. R. Rehman, for example, has joined hands with Andrew Llyod Webber in his musical production, Bombay Dreams, co-produced by Shekhar Kapur. The widespread success of movies with crossover appeal such as "Monsoon Wedding" has driven a spate of film co-production and film development deals and cross-border distribution agreements between India and the United States. The natural synergies between bollywood (the world's largest film industry by volume), and Hollywood (the world's largest film industry by revenue) are finally being realised.


However, increasing levels of counterfeiting and piracy threaten these partnerships. It's been estimated that the Indian entertainment industry is losing some 80% of its revenue to counterfeiting and piracy, and this directly threatens the very viability and existence of these industries. The true cost to the Indian economy is undoubtedly much greater than that. For every rupee or dollar lost, there is less revenue to hire people in the Indian industry, fewer Indians paid to distribute films, records, and entertainment software, and money lost by a whole host of Indian industries that support entertainment (Parekh and Parikh 2001).

To counter this growing menace of copyright infringement related to cinematographic works, India is negotiating with United States through various channels. One amongst them is United States- India Business Council. US-India Business Council has launched the "Bollywood-Hollywood Initiative" with the Federation of Indian Chambers of Commerce and Industry (FICCI). The initiative includes a groundbreaking survey financed by USIBC to determine the true cost of piracy and counterfeiting to the Indian entertainment industry; a push to ensure India's adoption of Optical Disc Legislation to combat piracy; a campaign to raise public awareness of the detrimental affects of piracy to India. It is also a drive to US-India governmental cooperation in combating international, cross-border piracy - particularly of Indian films in the US and other countries as well as US films in India. USIBC has laid out an aggressive agenda for 2009 to stem the scourge of DVD piracy and strengthen U.S.-India media and entertainment collaboration (USIBC, Piracy Report 2008).


India’s policy to counter copyright infringement focused on balancing developmental concerns with the need for promoting innovations. India viewed protection of innovative material as a tool for economic development and restricted the scope and term of patents. India’s negotiating history shows that while trade threats were important in leading India to initiate changes in its policy globally, domestic level policy change took place only with the mobilisation of a domestic constituency that favoured change. United States’ position was that India could object to any aspect of the treaty, but did not need to refuse discussing the issue of IPRs altogether. This appeared at the time to be rational to Indian leaders and India revised its patent policy to confirm to TRIPs (Trade Related Intellectual Property Rights) and agreed to include IPR in the WTO (World Trade Organisation). WTO Member states are, through TRIPS, obligated to comply with the Berne Convention of 1886 as amended in 1979, which protects literary and artistic works. India is pressing hard vis-a-vis United States to establish sound and productive business practices through India-United States Business Council (Rammanna, 2002).


So far, the response from Hollywood has been sympathetic because films from Hollywood too are facing the same problem of Illegal downloads and pirated CD, DVD business proliferation. Moreover, The USIBC-FICCI (Federation of Indian Chambers of Commerce and Industry) Bollywood-Hollywood Initiative has raised expectations that the very real concerns over counterfeiting and piracy will be addressed, leading directly to the generation of additional jobs and revenue.


According to a survey on National Cinematography undertaken by UNESCO in 2000, only about 60 of a total of 102 countries producing films have a legal framework or official structures regarding this sector. The survey showed that authors’ rights are least protected in Asia. The Motion Picture Association of America (MPAA), representing the US majors whose various movie production and distribution subsidiaries command approximately 90 percent of the United States and Canadian box office namely, 20th Century Fox, Warner Bros., Paramount, Sony Pictures, Walt Disney and Universal, loses US$2.5 billion yearly in potential copyright revenues due to film piracy, mainly in Asian countries, Mexico and the Russian Federation (UNESCO 2000). The global film industry is currently losing $3bn-$3.5bn per year due to illegal piracy operations (Frater 2003). To counter copyright infringement in cinematographic works, United States enacted The Family Entertainment and Copyright Act, a federal legislative act regarding copyright that became law in the United States in 2005. The Act consists of two subparts: the Artist's Rights and Theft Prevention Act of 2005, which increases penalties for copyright infringement and the Family Home Movie Act of 2005.


Reasons for Lack of Copyright Enforcement

The Indian Copyright Act, the first Indian legislation of its kind, was passed in 1914, and was mainly based on the U.K. Copyright Act of 1911. With the development of recording, broadcasting, television and other new technologies it became essential to update the copyright laws. As a result, the Copyright Act of 1957 ("the Act") was introduced in the Parliament. This law presently governs the copyright system in India. The Act has been amended in 1983, 1984, 1992, 1994 and 1999.

The legislation which can be invoked to counter film piracy in India is the Copyright Act, 1994. India is also signatory to two major copyright conventions, namely, The Berne Convention for the Protection of Literary and Artistic Works adopted in 1886, since then revised seven times and the Universal Copyright Convention adopted in Geneva in 1952. The Omnibus Trade and Competitiveness Act of 1988 created the Special 301 mechanism, the United States Trade Representative (USTR) issues an annual Special 301 Report which "examines in detail the adequacy and effectiveness of intellectual property rights" in many countries around the world. India still remains on the Priority Watch List according to the (International Intellectual Property Alliance) IIPA Special 301 Report, 2009 (IIPA 2009). Even though the Indian Copyright Act 1994, which came into effect from May 10, 1995, provides strong enough provisions to convict a person or a group for copyright infringement but the procedural structure of the Indian system has always been a hurdle to deter piracy, because of poor policing and less number of suo moto raids. Moreover majority of police personnel and crime branch officials are not familiar with provisions of copyright act. The Police act only on a complaint by the witness in case and witness has to be available for all court hearings. This process is very time consuming as the court can take several years to decide a case. As a result the witness is not available for such a long time and the case gets dismissed. The Indian Judiciary has the onerous responsibility of interpreting the balance between private interests and public welfare. The judicial system is very slow and burdensome which makes copyright enforcement an even more difficult task. It takes a long time for the courts to bring cases to final judgment which affects not only the domestic copyright industry but also gives a reason to the international industry in not investing in India. Furthermore, public education and police education are pre-requisites for proper enforcement of copyright laws which will ultimately pave the way for healthy and innovative business strategies. Indian copyright act as amended in 1994 has now made copyright infringement a cognizable non-bailable offence (Kapoor 2009). And the situation has changed to an extent as the IIPA report, 2009 stated that, “The Indian Recording Industry, IMI, reports that relationships with the police have improved in 2008 and that 300 criminal cases were commenced. A study by the U.S.-India Business Council (USIBC), 2008 points out that India’s entertainment industry already generates more than $11 billion annually for the country, growing at a combined annual rate of over 18%. If piracy can be tackled, these industries will grow even faster and employ more Indian workers (ibid).


Effects of Piracy on Film Industry

Piracy threatens the very existence of film industry as millions of rupess are being siphoned off throgh illegal channels, by allowing thousands of people to view a film illegally, for free, at the click of a button, a pirates are damaging the revenue a film studio will receive from said film's ticket and DVD sales. By siphoning off millions of rupees piracy curbs the upcoming innovati9ons in film industry as increasingly less number of people opt for cinema as a medium of entertainment because everything is available on click of a button. Inherently the film industry, is a business and denying money to a business, therefore, amounts to its ultimate demise in the long run. Apart from physical piracy now a days stakes are especially high for entertainment companies as they sell more of their products online in the form of digital songs, movies and other intellectual property. Entertainment companies fear that internet piracy may be tougher for lawmakers to conceptualize. Movie piracy causes a total lost output for U.S. industries of $20.5 billion per year, thwarts the creation of about 140,000 jobs and accounts for more than $800 million in lost tax revenue (Ahrens 2006). Becoming a major issue for Hindi and English film industry, piracy is nowhere to stop. And to counter that, leading Bollywood studios such as Reliance Big Entertainment, Yash Raj Films, UTV Motion Pictures, Eros International and Studio 18 have joined hands with the Motion Picture Association of America (MPAA) to set up an anti-piracy coalition. It has been well recognised that Piracy is not a victimless crime, RAND report on Film Piracy, Organised Crime and Terrorism has clearly demonstrated that film piracy funds terrorist activity. There needs to be a strong legislative and enforcement response in tackling the issue of copyright theft. The enormity of the theft is perhaps not being understood and the current state of affairs of the film business is largely due to large scale consumption of pirated DVDs.