Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

18 April 2018

[Link] The (In)Effectiveness of Our Responses to Rape

We've developed a set of unchanging go-to responses we turn to whenever we're faced with a well-publicised case of rape. We ask for the death penalty to be meted out to rapists. We discuss the rape in intrusive detail claiming that doing so "raises awareness" against rape and awakens our social consciences. And we decide that we want sex offenders to be listed in a registry. Unfortunately, not one of these responses is guaranteed to enhance women's safety. To do that, "...we need the law to be enforced as a matter of course. This means focusing on improving the processes that could lead to the increased conviction of rapists instead."

15 April 2018

[Note] On Revealing the ID of the Child Raped in Kathua

The Delhi High Court, to the chagrin of some, seems to have come down quite strongly against the media disclosing the identity of the child who was raped and killed in Kathua.

Just to reiterate: we're talking of homicidal child rape in Kathua. Surely, we can't claim to 'need' to know the girl's identity or to 'need' to see pictures seemingly of her corpse in disarray before outrightly condemning the crime. If we do, and we further violate her privacy, what does that say of us?

The Delhi High Court's actions aren't a disaster for press freedom, and it's a challenge to see how such limited regulation could jeopardize future legal reportage. The court is only upholding the law, and trying to safeguard the privacy of a child as required by the law. 

Kathua aside, it's worth remembering that this isn't the first time when those allegedly raped have had their identities as well as images of themselves in disarray be revealed. Photographs of the women in Badaun who were allegedly raped, for example, were shared in a cavalier manner; their corpses hanging from trees, their faces not even always blurred.

This is an issue of both law and ethics, especially since the images of raped upper claste women tend not to be thus shared to 'awaken' our supposed social consciences. It doesn't make sense to claim one must reveal victim identity or explicit details of rape to convey the gravity of the crime: crimes against upper claste women are highlighted without such intrusive violations of privacy. In fact, a rape in 2012, where the Indian media did not go out of its way to reveal the identity of the woman raped, resulted in legislative change.

Perhaps we should focus on alleged perpetrators & their defenders instead. Instead of insisting that violating the privacy of some of those who have been raped is legitimate.

(An old piece on the law protecting the ID of women & girls who have been raped: here and, 'raising awareness' shouldn't need this or, IMO, explicit detail, as argued in Equity and the Reportage of Human Rights.)

(Edited & cross-posted from Twitter.)

Update on 19 April 2018: The case number in the Delhi High Court is W.P.(C) 3725/2018; Court on its own motion v. Union of India and Ors.  

14 April 2018

Copyright: Content, Carriage, and Creation

Copyright law regulates ownership of and trade in works it deems protectable via the 1957 Copyright Act which contains both substantive and procedural provisions. In doing so, it establishes criteria which potentially protectable works (such as literature, music, art, film, and drama) must satisfy in order to be protected.

Although the statute came to India as a developed law, the Copyright Act isn't always entirely clear, and debates about what should be protectable can involve issues of content, its carriage, and its creation. In some cases, it is not the statute which presents legal ambiguity. Instead, it is moral anxieties relating to whether specific content should be protectable that gives rise to debate and uncertainty.

Content, of course, is little more than an umbrella term which may be used to describe any contrivance through which the right to free speech can be exercised in a way that can not only be appreciated by an audience face-to-face but can also be accessed remotely by those to whom the speech is not addressed in real time. In terms of the substance of speech (or the contents of content), copyright law has very little say. It denies protection to some works on account of their not being original or their being infringing. It may also refuse to protect works because they lack the requisites which it demands: the non-artistic features of architectural works, for example, cannot be protected by copyright.

The bulk of regulations which impact content, however, come not from either copyright theory or its governing statute but from a vast array of legal instruments which make various forms of speech illegal whether they be defamatory or seditious or illegal on some other account; copyrighted content is not free of such regulations regardless of how it has been created or transmitted. Nonetheless, there are arguments to the effect that copyright should not protect certain forms of content on account of the nature of the speech encapsulated within them. Such arguments usually find a basis, however unstable, in morality, and tend to manifest as demands that copyright not protect explicit or otherwise supposedly immoral content.

In recent times, there have been occasions when content has not been protected by copyright due to its substance. It has been held at least once (though not in India) that porn cannot be protected by copyright if it were not considered a 'personal intellectual creation' in terms of the applicable law. Such events, however, tend to be a result of purported works not meeting statutory criteria for copyrightability. Doctrines such as those of scènes à faire (which deals with content that is all but obligatory in a specific kind of work) and merger (which applies where ideas and their expression are inseparable) may also reinforce statute and deny copyright protection to some content. These restrictions on copyrightability, however, do not regulate what the permissible subject-matter of a copyrightable work may be, and there is no convincing argument that speech regulation per se is a territory into which copyright should tread. If not anything else, it would be all but impossible to determine the legality of speech in content for every purportedly protectable work before actually granting protection to it, especially since copyright subsists in a work from the moment that it is created.

Apart from concerns about the substance of speech, there are concerns about carriage. This stems not least from ambiguities within the copyright statute which sometimes appears to be workable only by happy accident. For example, questions have arisen about what the word ‘broadcast’ relates to. Although one might ordinarily understand a broadcast with reference to content, the definition contained in Section 2(dd) of the Copyright Act treats ‘broadcast’ not as content but as an act of transmission. It is, under this definition, a subset of communication to the public which is itself an act which may be executed in respect of copyrighted works. This, unsurprisingly, can give rise to questions about what it is that the broadcast reproduction right described in the copyright statute intends to protect: content or carriage. Luckily, a close reading of Section 37 which defines the broadcast reproduction right reveals that each reference to ‘broadcast’ alone in it refers to content, and that it cannot be construed as granting rights in broadcast technologies. The only time that carriage is referred to is with reference to a re-broadcast in terms analogous to the right to communicate works to the public which the owners and, possibly, the licensees of copyright in works enjoy.

The lack of differentiation between content and acts of commission is not limited to broadcasts, and can straddle the territory between carriage and creation . The 1957 Copyright Act defines a cinematograph film in Section 2(f) as ‘any work of visual recording’ which allows such works to be intangible, and betrays no requirement that the word ‘work’ be treated as a noun that must be interpreted with reference to Section 2(y) of the statute which defines the term merely by listing various kinds of works. That, however, is likely exactly what would have happened (rendering the definition circular and meaningless) if a cinematograph film had been defined as a ‘visually-recorded work’; the statute contains no indication that it was cognizant of such a possibility or that it actively sought to avoid such an eventuality. Luckily, as things stand, with some amount of interpretation, a cinematograph film can easily be understood with reference to ‘work’ being an act of commission in addition to being a noun, and this enables films including live broadcasts which have never been recorded on a tangible medium to fall squarely within the scope of content which copyright law considers protectable.

Looking at modes of creation alone too, copyright law does not accord or deny protection to content on account of the manner in which it is created. The statute is usually silent on the issue of tangibility, and it does not consider whether an author was acting legally in the creation of a work. This means that there is no statutory provision against the accordance of copyright protection to illegally created street art, for example. There are questions about whether such content should be protected though, and why, for instance, a property owner who believes a surface he owns has been vandalised should be obliged to respect the moral rights of an author, and not destroy or whitewash the work. At times, the ethical case is reasonably clear: it is unlikely that street artists who acted illegally would find a sympathetic court were they to attempt to complain of their works being whitewashed despite possibly being protected by copyright. At other times, however, the issues are not as clear and moral certainties break down. Why, for example, should street artists, even if the mode of creation of their works is illegal, not be able to complain of copyright infringement in relation to the appropriation of their works by corporate entities who print them on to t-shirts? After all, there is little connection between an artist’s illegal act in this context and a corporation’s making money off their work.

These, however, are not issues which Indian law has dealt with in any depth. The 1957 Copyright Act continues to comprise a medley of indistinct provisions which deal with content, carriage, and creation, and it is not always easy to determine what is or should be protected by law.

(This post is by Nandita Saikia and was first published at IN Content Law.)

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