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.

12 December 2017

Copyright and Access to the Law

A PIL in the Delhi High Court has reportedly brought up access to law and copyright. Indian law is, of course, not blind to the issue and lists a number of exceptions to copyright infringement in Section 52 of the 1957 Indian Copyright Act which, in their implementation, allow both for the functioning of the law and for access to law.

    Access to Case Law
    Any work may be reproduced for either a judicial proceeding or a report of a judicial proceeding per Section 52(1)(d), or in a legally-made or supplied certified copy per Section 52(1)(f). The latter clause doesn’t explicitly mention publication but hints at its permissibility by mentioning ‘supply’ where there exists a law beyond the clause itself that allows for it.
    This is in consonance with Section 52(1)(q)(iv) which allows for the reproduction or publication of ‘any judgment or order of a court, Tribunal or other judicial authority’ unless prohibited (presumably, given drafting ambiguity) by the authority which issues it. Reading these clauses together, the permissible reproduction or publication of a judgment or order would probably not violate the copyright of any work quoted in it. And, of course, unless expressly prohibited, judgments or judicial orders may be reproduced or published without the copyright in them being infringed.

    Access to Statutory Law
    Section 52(1)(q)(ii) allows the reproduction or publication of any Act of a legislature not by itself but along with ‘any commentary thereon or any other original matter’. Although this Section does not explicitly allow subordinate legislation to be published or reproduced, Section 52(1)(q)(i) allows any matter which has been published in any Official Gazette except a statute to be published or reproduced. As such, the Rules or Orders under an Act may be made publicly available without additional matter published along with them.
    Further, Section 52(1)(r) deals with facilitating access to statutory law in translation. It allows the production and publication of Acts of legislatures and the Rules or Orders made thereunder in any Indian language in two circumstances, with a prominent statement (presumably in both cases) that the translation is not authorised or accepted as authentic by the government: (i) if translations in that language have not been produced and published by the government, or (ii) if translations in that language have been produced and published by the government but are not available for sale to the public.

    The Functioning of Law-Making Bodies
    Section 52(1)(e) explicitly allows both reproduction and publication in clearly defined circumstances for the benefit of a limited class of people: it allows any work by the Secretariat of any legislature to be reproduced or published exclusively for the use of the members of that legislature.
    Other than Acts of legislatures, as mentioned earlier, any matter which has been published in any Official Gazette may also be reproduced or published by virtue of Section 52(1)(q)(i) without restriction as to audience, as may ‘the report of any committee, commission, council, board or other like body appointed by the Legislature, unless the reproduction or publication of such report is prohibited by the Government’ by virtue of Section 52(1)(q)(iii).

Together, these provisions constitute a reasonably robust framework through which it is possible to ensure that copyright claims do not impede access to law. However, in practical terms, there arguably remain concerns about such issues as distribution, and the price points at which copies of laws are available to the general public. It is possible that these are issues which the court may address through the reported PIL.

(Note: A quick search reveals that the PIL which has been filed may be WP (C)10941/2017, Arpit Bhargava v. Inion of India and Anr..)

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

27 October 2017

Links: On the Publication of a List of Alleged Abusers in Academia

My first response to seeing a call for the withdrawal of a list of alleged abusers by several well-known feminists was:

"For now, the question shouldn’t be 'How do we shut down the allegations?' but 'How do we ensure that the allegations are taken seriously, as all allegations should be, and are fairly investigated?' The latter, if successful, would also have the effect of weeding out baseless allegations, if any," I wrote in a series of quick comments by C Christine Fair, who wrote wrote #HimToo , me and others on the publication of a list of alleged sexual harassers in academia (published at ThePrint: Talk Point: Is crowdsourcing and publishing names of alleged sexual predators fair?)

It is up to those who can support victims to do so with concrete commitments, I think, if victims want to invoke a formal redressal mechanism. A longer piece I wrote over at Scroll: Sexual abusers list is problematic – but gives victims a sense of regaining control 

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

31 August 2017

Data Protection, Financial Privacy, and Domestic Violence

(A quick note based on old tweets, some of them here.)

Wanting privacy is not about having 'things to hide'— it's about protection against malignant totalitarianism some day, maybe years later. It's about protection from data leakage, maybe not today but decades later, to malignant entities or groups or even individuals. In private life, amongst other issues, it's about protection against abusers, in the present or future. Once data is collected and collated, it's probably not going to disappear. And it makes all those whose data is collected vulnerable to abuse unless there are adequate, well-enforced safeguards. And data collection without safeguards, without privacy is a potential disaster.

Privacy is not illegal per se. Even assuming the state is and always will be benign, even assuming there's no fear of sectarian violence, etc., and totalitarian surveillance states pose no concerns,  there's still a problem. If your data were with umpteen people, many whom you'd struggle to hold accountable should they disclose it for the asking to a third person without authorisation, it'd likely be but one step for anyone a vendetta against you to find out a great deal about your life and to them use that information to act against you. That means that abusers would potentially be able to access their target's data -- much of what there is to know about that person: where they eat, shop, visit.

There's no argument to be made against tracking tax evasion and terrorists but there is also no argument to be made to the effect that the apparatus and process of data collection and retention may legitimately be susceptible to being used to endanger ordinary citizens acting legally. Surely, individuals have the right to have private information about themselves be subject to robust, transparent, workable safeguards that don't make their lives even more unsafe than they already are, and which are actually enforced?

Many women rely on mechanisms that would fall flat without a basic degree of privacy to circumvent patriarchal and conservative expectations of them, and to protect themselves sometimes by hiding the truth which is often an entirely legal act. Anecdotally, women often hide alcohol consumption, pretend boyfriends are cousins, use IUDs to avoid forced pregnancy. Privately saving some money from household expenses without telling husbands is almost cultural practice in India; it isn't illegal and many women secret money because they know it's what works best to protect themselves and sometimes to feed themselves and their children.

Sans ensuring financial privacy, forcing legal but secret money out into the open can destroy women's financial security not to mention endanger their physical safety. For example, it was completely unsurprisingly reported that demonetization caused domestic violence to rise: abusive men weren't pleased to discover that their wives had secreted money.

In the absence of data protection and privacy, tonnes of smart phones and cards are not useful for many people, especially women. We don't have meaningful laws protecting privacy. We do have a social set up where a man can, amongst other things, easily access a woman relative's bank accounts. And, so, unless clear mechanisms protecting financial privacy and data are set up, we are likely to be left with stalker-friendly policies. Props to patriarchy as always.

What's sad about this is that is isn't difficult to anticipate, and it shouldn't be impossible to attempt to mitigate the damage which could be done. Without financial privacy, unless she's lucky, a woman will always be one beating away from signing away all of her money. There is no reason at all why that should be acceptable or why the law shouldn't consider how to decrease the risks involved for women acting legally.


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