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.

22 March 2017

Reputation and Defamation: Legal Interpretation and Reform

      (nb: This post has been typed out on my phone and will probably be revisited and edited later. Comments relating to the #SpeechBill are based on my own experience and inability to find it publicly accessible online. It's possible that it has been uploaded somewhere but that despite asking and looking for it, I simply haven't found it. I have no idea of whether the draft I saw is accurate. Disclosure: I was involved in developing strategy in the SLAPP suit mentioned in this piece.)

Indian law relating to defamation and reputation has been contested and is of concern. Defamation is a criminal offence, and is considered to be a civil wrong under tort law. The elements of what constitutes defamation in each case are slightly different, as are the defences available to allegations of defamation. Under tort law, for example and in contrast to criminal law, a dead person cannot generally be defamed while under criminal law, in contrast to tort law, 'truth' is not necessarily considered to be a defence to allegations of defamation.

There is reportedly a bill which has been introduced in the Lok Sabha, the lower house of Parliament, to address the concerns which have arisen over the years in relation to defamation law. Inexplicably, however, it appears not to have been made publicly available online leading to what seems to be a rather lamentable lack of transparency. A copy of what may be the bill obtained privately indicates that it aims to consolidate and possibly supplant existing defamation law by repealing the law relating to criminal defamation and by codifying the law relating to civil defamation in statutory form. (This comment about the content of the bill, however, may not reflect the correct position since it has not been derived from an authoritative source.)

Assuming that the #SpeechBill, as its been popularly referred to does indeed aim to codify and supplant tort law relating to defamation, it isn't entirely clear what the need to do so is even though the bill appears to contain important provisions which do such things as limit the persons who may legitimately make allegations of defamation in court. If, however, the bill merely intends to supplement tort law by explicitly making such provisions part of Indian law, thus potentially keeping persons entirely unrelated to the person alleged to have been defamed from marching to court, nothing could be more welcome. Unfortunately, given that the bill doesn't seem to be publicly accessible, it isn't clear what it actually seeks to do.

Loosely speaking, tort law is based on precedent, and, given that Indian courts may be persuaded by foreign courts' determinations, this means that there literally exists centuries of history across jurisdictions one can fall back on to attempt to find viable defences to allegations of defamation which are perhaps unfamiliar to the Indian corpus juris, and which may not be contained within a statute, proposed or otherwise. This, in fact, is exactly what happened in the Tata/Greenpeace case which, drawing from literature and poetry, supported by foreign case law likely introduced 'hyperbole' as a defence to defamation in Indian civil law in what was widely believed to be the country's first SLAPP suit. Limiting the possibility of developing new defences to defamation through codification seems to hold the potential to be inconsistent with free speech, and may be far from ideal.

When it comes to criminal law, the #SpeechBill appears to seek to simply decriminalize defamation which, if it were to happen, would definitely enhance free speech since, going by anecdata, criminal defamation has a particularly potent ability to be used as a tool to harass people or to have them censor their own speech in a manner which is induced by fear and which may not be required by the law.

Criminal defamation was nonetheless held to be constitutional by the Supreme Court in 2016 in a decision which was subject to criticism. In its decision, the court linked Section 499 of the Indian Penal Code describing criminal defamation to Article 21 of the Constitution which states that 'no person shall be deprived of his life or personal liberty except according to procedure established by law'. This linkage is interesting given that it is Article 19 of the Constitution which explicitly deals with free speech by granting Indian citizens residuary rights: that speech which is not and is not capable of being proscribed by law according to the Article itself (which lists a limited number of grounds on which free speech may be restrained) is definitely permitted.

Article 21 of the Constitution, on the other hand, applies not just to citizens of India but to all persons and restrains the unlawful abrogation of their rights to life and personal liberty — the word 'personal' appears to have been inserted into the provision to circumscribe the personal liberty of Article 21 enjoyed by persons, and to distinguish it from the freedoms granted by Article 19 to citizens. As such, Article 19 could be considered to be wider than Article 21 when it comes to free speech since non-citizens do not enjoy the freedoms which citizens do to the same extent. That said, the two Articles do not necessarily detract from each other, and given the Supreme Court's recognition of the link between Article 21 and criminal defamation, it appears that an argument can be made to the effect that artificial persons cannot be criminally defamed.

Even leaving aside the fact that at least two High Courts have indicated that IPC Section 499 does not apply to the defamation of artificial persons, simply considering the history and placement of Article 21, in both Constitutional and wider historical frameworks, tends to lead to the same conclusion.

Article 21, unsurprisingly, finds itself placed between Articles 20 and 22 of the Constitution which deal with the protection of persons with regard to convictions for offences and preventive detention respectively. Although not a direct application of the principle noscitur a sociis, it would nonetheless be challenging to claim given its context, and the effective applicability of neighbouring Articles being intended to benefit natural persons, that Article 21 somehow escapes being limited and is intended to also benefit artificial persons. This is especially true since, taken to its logical conclusion, such an argument could conceivably result in an absurdity: that Article 21 is intended to protect the 'life' of companies and ensure that they remain in business forever.

The argument that Article 21 is intended to benefit natural persons and that, in consequence, IPC Section 499 is not intended to benefit artificial persons is also supported by the drafting history of the Article which finds its roots in the Magna Carta clearly which is intended to benefit natural persons. Although an early draft of the Article used the term ‘due process of law’ found in a medieval English statute (28 Edward III, Ch. III) then devoid of any of the protections which contemporary US jurisprudence has imbued the term with, it was the US experience with the term's ambiguity which seems to have convinced Indian drafters to avoid it altogether and fall back on the older formulation in the Magna Carta. Either way, however, the benefit in these old laws was intended to apply to human beings as a bare reading of their texts makes clear. And regardless of how one looks at Article 21, it is difficult to make the case that it was intended to benefit anyone but natural persons.

Challenges to this interpretation of law — of course there are challenges! — may be found within the text of IPC Section 499 itself. In the part relevant to which the first challenge may be raised, the provision reads as follows:

[Main body] Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 2
.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Thus, an explanation of the main body of IPC Section 499, Explanation 2, appears to expressly indicate that artificial persons can be criminally defamed. However, an explanation of a provision cannot derogate from the main body of the provision itself, and the provision cannot derogate from the Constitution and remain valid. As such, it would be difficult to sustain the argument that Explanation 2 truly acknowledges that artificial persons may be criminally defamed especially since there is available a formulation through which Article 21 of the Constitution and IPC Section 499 along with Explanation 2 may be read harmoniously: Biswanath Somadder, J. of the Calcutta High Court had pointed out in the 2009 case of Kiar Sehen Pvt. Ltd. that:

Constitutional guarantee under Article 21, however, is always available to any person seeking protection under it, who may be working in such juristic entities; e.g., a Chairman or a Director or any officer or an employee, provided of course, they approach the Court in their individual capacity.

Simply because IPC Section 499 refers to artificial persons in Explanation 2, that is not necessarily reason enough to conclude that companies and other artificial persons can be criminally defamed. Even more difficult would be to claim that companies can be criminally defamed simply because the definition of ‘persons’ in Section 3 of the 1897 General Clauses Act includes 'any company or association or body of individuals, whether incorporated or not'. After all, the General Clauses Act too cannot derogate from the Constitution, neither can its definitions be legitimately applied to other statutory provisions which find them repugnant. And, in the case of IPC Section 499, there is every indication that such repugnance exists.

One final intra-textual argument supporting the claim that artificial persons can be criminally defamed lies in two exceptions to IPC Section 499, the Fourth and Fifth, which deal with courts, and read as follows:

Fourth Exception.—Publication of reports of proceedings of Courts
It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned
It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a partly, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Even leaving aside public policy imperatives which may cause courts to be accorded differential treatment on account of the importance of access to law, there is a clear indication that the reference to artificial persons in the form of courts in IPC Section 499 is nothing but metonymy — the explanation to the Fourth Exception itself clarifies that the inanimate court is a substitute for an animate natural person and, although it is not repeated in the Fifth Exception, without applying the same rationale to the latter (which the basic principles of statutory interpretation allow), it would be difficult to keep the Fifth Exception from being infructuous.

What emerges from this long, often tangential, discussion is that even as things stand there are often times when Indian law is less than clear when it comes to defamation. There are a multitude of issues which we need to look at closely, and, to be able to do so in a meaningful manner, we require as much data and transparency as we can possibly garner.

    Update on March 23, 2017; 10:40 p.m.: I've just seen a copy of what I think is the Speech Bill referred to in this piece on the Lok Sabha site (pdf here). I'm not sure if its text is the same as that of the copy I had previously seen as I haven't had the chance to compare the two. Please take a look at the pdf on the Lok Sabha site and do not read this piece independently of it. Please note that it is entirely possible that the comments in this piece are not applicable to the Protection of Speech and Reputation Bill, 2016, as introduced in the Lok Sabha; I had not seen the pdf on the Lok Sabha site at the time of writing this piece.

Historical and Legendary Figures in Art

It's been a while since the tale of Rani Padmini and what was then alleged to be the cinematic portrayal (or, depending on how one saw it, distortion) of her story made waves. The Queen herself was believed to be a historical figure by some, whilst others thought of her as the creation of a medieval author's imagination. My own suspicion, based on very little given that there is a spectacular dearth of documentation, is that there was likely a real Queen based on whom the legend has been drawn.

Around the time the controversy about her being portrayed in a film arose, I'd posted a series of tweets based on what I either learnt  or believed of the Queen and the legend:

The controversy as it arose did not take long to become mired in allegations, counter-allegations, and wide-ranging denunciations of the various persons who featured in it, and, like most controversies, was extremely polarised: the Queen was either a fictional character or a revered historical personage, and one had to be either pro- or anti- free speech in relation to the film which portrayed her (never mind that, at the time, no one seemed to have seen the film). There was very little space to air the possibility that it didn't really matter what the provenance of the legend was, that it did (to whatever extent) matter how the Queen is (even today) perceived by the people who revere her, that the absence of documentary evidence proving her existence isn't necessarily evidence of absence, and that it is possible to have concerns about the portrayal of revered figures without necessarily being "against free speech" as that trite and convenient phrase goes.

Without getting into the specifics of this controversy, what it highlighted is that opinions in black and white are easy to form, and that they require very little engagement with detail or nuance. Our law, however, isn't entirely black and white. For better or for worse, it recognises and occasionally criminalises the publication or broadcast content which is incompatible with the maintenance of societal harmony, and it implicitly demands that we take a closer look at subjects without falling back on the easy accusation people are either "thought-free liberals" or "conservative sticks in the mud" when certain content makes them defensive or uncomfortable. The accusations are as easy to hurl as it appears the entirely unacceptable resort to violence and vandalism to make one's point can be. Neither approach, however, is particularly helpful, and neither one engages with the issue at hand: how to portray persons — historical, legendary, or living — in works of art in ways which are neither unlawful nor which amount to an impingement of free speech.

Looking at the broader picture, there is, likely, a case to be made for legal reform so that less content runs the risk of being considered to be unlawful but simply dismissing the concerns which many people air about content is unlikely to be the best way to achieve such reform. What is certain is that we need to find more productive ways to engage with each other which are not quite so insistent on othering and diminishing anyone who has an opinion that isn't aligned with our own. And it's high time we did that.

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

26 December 2016

Liability for Others' Content (Case Note)

Over five years ago, a Single Judge of the Delhi High Court indicated that MySpace had committed infringement against T-Series (in a decision which was not especially easy to comprehend). An interlocutory appeal was filed and on December 23, 2016, the legal position changed: a Division Bench of the Court issued a decision which drastically diverged from the findings of the earlier 2011 decision.

The Division Bench summarised its own findings in Para. 68 of its decision stating:
"  is held as follows (a)  Sections  79  and  81  of  the  IT  Act  and  Section  51(a)(ii)  of  the  Copyright  Act  have to  be  read  harmoniously.  Accordingly,  it  is  held  that  proviso  to  Section  81  does not  preclude  the  affirmative  defence  of  safe  harbor  for  an  intermediary  in  case  of copyright  actions. (b)  Section  51(a)(ii),  in  the  case  of  internet  intermediaries  contemplates  actual knowledge  and  not  general  awareness.  Additionally,  to  impose  liability  on  an intermediary,  conditions  under Section 79 of  the  IT  Act have  to be  fulfilled. (c)  In  case  of  Internet  intermediaries,  interim  relief  has  to  be  specific  and  must  point to the  actual content, which is being  infringed." 
In copyright terms, the decision of the Division Bench granted significant protection to intermediaries. What was particularly surprising and welcome about it, however, lay hidden in Para. 55: the Court clearly recognised the right to privacy and the possibility of the right being adversely impacted by certain mechanisms of protecting copyright. It stated:
"To attribute  knowledge  to the intermediary  industry  would mostly  likely  lead to its shutdown,  especially  where  content  is  of  this  magnitude  and  size.  Closure  of  website  and business  would  inevitably  follow,  for  instance,  if  messenger  services  like  Whatsapp  or social  media  portals  like  Facebook  or  Twitter,  (given  the  number  of  users  registered  with these  service  providers  as  well  as  the  volume  of  information  being  broadcasted/ “forwarded”),  were  held  liable  for  each  infringement.  The  greater  evil  is  where  a  private organization  without  authorization  would  by  requirement  be  allowed  to  view  and  police content  and  remove  that  content  which  in  its  opinion  would  invite  liability,  resulting  in  a gross violation of  the fundamental right to privacy."
This is (at least) the second time in the space of less than a month in which the Delhi High Court has articulated opinions which potentially save persons from liability for content which others post. In Ashish Bhalla v. Suresh Chawdhary, CS(OS) No.188/2016, the Delhi High Court held (on November 29, 2016) that WhatsApp group administrators are not liable for other group members' defamatory posts. In doing so, the Single Judge who issued the decision stated in Para. 17:
"...I  am  unable  to  understand  as  to  how  the  Administrator  of  a Group  can  be  held  liable  for  defamation  even  if  any,  by  the  statements  made by  a  member  of the  Group.  To  make  an  Administrator  of  an  online  platform  liable for    defamation    would    be    like making  the  manufacturer  of the  newsprint  on  which  defamatory  statements  are  published  liable  for  defamation.  When  an  online platform is  created,  the  creator  thereof  cannot  expect  any of the  members thereof to indulge in  defamation  and  defamatory  statements  made  by  any  member  of the  group  cannot  make the  Administrator  liable  therefor.  It  is  not  as  if  without  the  Administrator‟s  approval  of  each of  the  statements,  the  statements  cannot  be  posted  by  any  of  the  members  of  the  Group  on the said platform." 
While the Ashish Bhalla decision did not deal with intermediaries, these decisions appear to indicate that the Court does not intend to have technology and law be at loggerheads, or to have the rights of individuals be given short shrift.

[Note: In this matter, the Division Bench of the Delhi High Court attempted to balance rights; this is indicated by Para. 67 of the decision which contains the following text: "The court has – as always to tread a delicate balance between the Scylla of over protection (of intellectual property and privileging it in an overbearing manner) and the Charybdis 9 of ineffective or under-protection, of IP rights: both of which chill and kill creativity, in the final analysis, harmful to society." There's more, separately, on the argument that the Indian Copyright Act itself intends to have the rights of various stakeholders be balanced here: Copyright Law, Balance, and the Expression of Non-Partisanship.]


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