7 January 2019

[Link] State Intervention in the Development of Digital India

Sidharth Chopra and I write about the role of the State in shaping how eCommerce and communications via new technologies operate:

Controlling people or ideas or goods is no longer as easy as it once was. That does not mean that control is not required: we know all too well that people can organise themselves into a lynch mob using modern technology just as easily as they can organise themselves into a friendly neighbourhood yoga club. Technology tends to be agnostic to the motivations of its users, and once it is publicly available, to try to suppress its use is a fool’s errand. 
[....] 
This is not a question of one’s political affiliations but a question of what one wants the structure of the state to look like. The modern nation-state has, since its inception, been geared to control flows of people, ideas, goods, and capital. Technology challenges state control. Nonetheless, if the aim is to facilitate the emergence of Digital India, we would do well to focus on arresting the potential problems technology creates without erecting regulatory barriers which would hamper the development of technology and the progress attendant to it.

The entire article has been published over at Bar and Bench.


5 January 2019

The Tensions Between Indian Art and Indian Law

The Indian art scene tends to be market-oriented only at its periphery, and is differentiable from Western scenes in relation to visibility, participation, marketability, and motivations.

Much Indian art is both created and consumed in private by those who remain anonymous to the public — just as their art may well remain publicly invisible — and it is not remunerated. Indigenous art is often created for socio-religious purposes, and, even where that is not the case, it is not generally created for anything but artistic or, perhaps, commercial purposes.

The possibility of publicly-accessible art being created, in no small measure, for the thrill of committing an illegal act without being caught — as, for example, is not unknown in the case of street art in the West — is not generally known in India. Neither is the propensity to create art which is inclined to generate shock simply for its shock value.

It is not impossible that, the letter of the law aside, the spectre of rampaging mobs through art galleries and other fora limit what could have become art. There have, after all, been no shortage of reports over the years of protests against various works of art being anything but genteel, to put it mildly.

If, indeed, the prospect of having to deal with violent or unsafe protests against works of art narrows the range of subjects which artists might choose, societal mores aside, this appears to be indicative of a state failure to which both the structure of free speech law, which determines if the substance of a work of art is legal, and law enforcement have contributed.

A mob being formed is not a legitimate response to a work of art being disliked. Not limiting what artists say is only one side of the coin though. Ensuring that they can claim fair remuneration, if they choose to be remunerated, is the other. This involves another series of laws impacting art: property laws which, further divided into real and intellectual property laws, impact reputation, modes of creation, mechanisms of ownership, and, ultimately, financial consideration.

Both real and intellectual property law can operate simultaneously on the same piece of art and the rights associated with each can be, and are, traded separately. So, even if one were to own a physical painting, for example, it is possible that one would not have the right to reproduce and disseminate images of it unless one also owned the copyright in the work assuming, of course, that the work in question was copyrighted.

Copyright comprises a bundle of rights in certain specified kinds of works like paintings and sculptures. These rights include the right as to reproduce the works, adapt them, and communicate them to the public. Copyright can also be further subdivided not just with reference to the rights themselves, but also in terms of time, and territory.

Unfortunately, Indian copyright law is not always in synchrony with Indian art. It tends to be geared towards Western modes of creation and dissemination by privileging discernible authorship and demonstrable creativity, erecting tests for the grant of protection which traditional Indian art may fail on account of alternative modes of creation largely unfamiliar to the West.

To cut a long story short: Indian copyright law is more geared towards protecting the lone genius in the attic than shared, social works of art. And, unfortunately, the impression one forms is that it is often deemed desirable to have the Indian art scene change to become more in tune with Western practices than to have Indian law change to become more in tune with Indian art.

Being protected is important because copyright allows non-owners to be prevented from exploiting the copyright in a work without authorisation except in a few circumstances. This is what helps to ensure that artists are remunerated not just in respect of copyright but, potentially, in respect of the physical resale of their works. It also helps to ensure that artists can enjoy ‘moral rights’ allied to works they have created; these rights enable them to claim credit and, to the extent that their reputations could be harmed by certain acts in relation to their works, to have their reputations protected.

The allied rights, resale and moral, are where real and intangible property rights interact even within the copyright statute. These laws which apply to art, however, often appear to be inadequate to protect artists, not least because copyright law may not even apply depending on the form that a work of art takes, and there are times when works of art are best protected through contractual arrangements agnostic to modes of creation. Thus far, however, transactional law in India has not evolved to the point where it can be relied on to protect artists not least because of the power dynamics involved.

In 2012, the Indian Copyright Act was amended in rather innovative ways to help protect the rights of film musicians and scriptwriters. Unfortunately, those amendments do not immediately aid artists and there remains a great deal of work to be done.
(This post is by Nandita Saikia and was first published at IN Content Law.)

2 December 2018

[Link] Cross-Sectoral Conceptions of Public Interest

My colleague, Sidharth Chopra, and I write about the differences between ostensible and actual public interest taking into account commercial dealings and the trajectory of legislative action and judicial interpretation (with reference to case law including two cases in which we've been involved on behalf of publishers and a broadcaster).

Extracts:
...what appears to be in the public interest in theory can diverge from what is actually in public interest in practice. Ultimately, exercises in advancing the public interest cannot be divorced from capitalism where commercially available products are involved in the equation. Supply and demand chains are often impervious to utopian conceptions of public interest. [....]
...the statutory regime protects both the public and creators (who are often the first owners of rights). Living in a time of capitalism has obviously ensured that creators, whether they are scientists or poets, cannot sustain themselves or their work without adequate reward. And, so, risking the dilution of the reward by limiting intellectual property rights is almost certain to adversely affect their work. It is therefore critical that the balance of rights envisaged by the statute be respected. [....]
To all appearances, public interest is being increasingly broadly interpreted by the various arms of the State, one suspects, at times perhaps without a detailed investigation into market economics. Case law certainly appears to suggest that public interest concerns have led to the dilution of private proprietary rights,  and we cannot be certain of what the effect of such dilution will be in the long run.

The entire piece is available here at MedianamaCross-Sectoral Conceptions of ‘Public Interest’: Sidharth Chopra and Nandita Saikia where it was first published. It has also been re-published at Bar and Bench

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