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.

19 May 2018

The Regulation of Online Content

For years now, there's been talk of how "online content must be regulated" as if content online isn't already regulated; it is. By over thirty statutes and reams of subordinate legislation.

The most recent formal attempt to regulate content online has probably been manifested through a decision of the Ministry of Information and Broadcasting to constitute a committee to suggest a regulatory framework for online media and news portals. The minister in charge has since been divested of the portfolio, and what progress, if any, was made isn't clear. In fact, it isn't even entirely clear that the MIB had the jurisdiction to step on to such a path without the Ministry of Electronics and Information Technology clearly being on board.

Whatever does or doesn't come of this attempt to regulate online content, what's all but certain is that it isn't the last we'll hear of the subject. After all, the regulation of free speech with its potential to (re)shape socio-political discourse, is often a priority for governments and it is not constitutionally impermissible.

There are several problems with the current approach that seems to have been adopted though: the plan appears to be to create an additional layer of law governing the substance of online content over and above existing laws rather than examining the dynamics between the stakeholders who create, disseminate, and consume it.

Amongst the concerns this limited approach presents are definitional Issues. Despite the enthusiasm to regulate online content, it isn't at all clear who or what specifically would be regulated by yet another layer of substantive content law. After all, the lines between a group blog and "the press" can be blurred. Neither is it easy to separate information, misinformation, and disinformation into watertight categories.

Making matters worse is the fact that Indian laws do not always clearly differentiate between content and carriage issues which has, at times, resulted in parallel legal processes dealing with virtually the same subject matter. For example, it isn't always immediately clear how to separate the jurisdiction of TRAI, the telecom authority, from that of judicial processes to deal with copyright when it comes to, say, IPTV especially if it involves the broadcast of live content where a copyrightable work may be contained in an ephemeral signal however briefly.

In addition to this, while there are provisions in both copyright law and information technology law which can be used to protect intermediaries from liability for content which their users post, there is little in the way of regulation to protect users from intermediaries. What we require is rights-based regulation which requires companies adhere to minimum standards to protect the public, and that cannot be achieved through additional regulation which merely defines what the substance of legitimate content may be.

When MNCs use templates across international borders, we also need to question how they ensure that the templates comply with Indian law. And, in the few cases where intermediaries, MNCs or not, are required to conduct some form of due diligence or self regulation, particularly to avail of the protections afforded to them by law in relation to user-generated content, it is worth asking what exactly is required by the law of them and at precisely what point legal liability will kick in should due diligence or self-regulation fail.

Apart from self-regulation is the question of judicial regulation. Even within that realm, we should be asking what constitute legitimate modes of content regulation. Thus far, attempts to regulate content law by and through the courts have not always resulted in solutions which are ideal as, for example, the well-intentioned misadventure with the auto-block theory (that sought to block specific words found online without reference to their context) demonstrated.

It is clear that PILs should not be a tool for personal fame or one which could damage the separation of powers. Perhaps, at the very least, one could require that decisions made in PILs are limited to interpretating law without straying into the field of creating law. And perhaps one could also demand that a clear nexus be established between the subject matter of a PIL and the party filing it. This is one step lower than the legal concept of "nexus" contemplates but the intended social purpose of PILs may justify not adhering to a higher standard.

None of these are issues which have been dealt with in any depth in the context of online content regulation in India. However, they are issues which deserve to be considered. An additional layer of purely content-based regulation would be superfluous but that does not mean that there is no room for improvement in the current legal framework. We just need to ask the right questions.

18 May 2018

Jaleel and Indian Street Art

The street artist Jaleel whose work adorned Kochi for several years died on May 16, 2018. By all accounts, he was unostentatious and understated as an individual. His work focused on current affairs, social issues, and landscape. Some of it was literally wiped out when Bastion Bungalow, his canvas, was renovated.

Jaleel appeared to be resistant to being incorporated under a banner. During the Kochi Biennale, he is reported to have written, “This is not part of the Biennale,” under his works. Despite this, he was cognisant of issues relating to the valuation of art and artists. A 2012 piece reported that he also painted on canvas in the hope of selling his work, and that he had lamented saying: "The main difficulty painters in South India face is the unwillingness of people to buy paintings by street artists. But in places like Goa, Calcutta and Delhi, street painters are given equal importance."

From afar, it would appear that many facets of his work raise issues which affect a large number of Indian street artists. His street art appears to have often been executed in the frame of mind of an activist interested in documenting social issues and, possibly, advocating change. In consonance with many other Indian street artists, although he was deeply invested in his art, he didn't seem to see art as being for art's sake alone.

There is little clarity about whether he created art with the permission of the owners of the surfaces upon which he worked. That said, there is no indication that at all that he derived any thrill from engaging in the illegal by painting without permission. This is, of course, a line of thought which repeatedly arises in Western contexts but it does not appear to find an echo in the practices of Indian street artists whose work is, however tenuously, linked to the traditions of their counterparts in the West. 

On the contrary, Indian street artists seem to focus on self-expression and social activism, picking up what commissions they can along the way. Illegality for its own sake does not appear to motivate a sizable fraction of Indian artists.

Jaleel used chalk to execute his street art and later began to mix it with enamel so that it would last for a few days. He presumably painted some street art too; there are reports of works having taken him months to complete. Nonetheless, he appeared to harbour no expectation of permanence. And when some of his art was wiped out at the time Bastion Bungalow was renovated, there seem to have been no outraged cries about the infringement of his moral rights; what sadness he felt seems to have been expressed in non-legal terms.

Indian street artists, like their counterparts in the West, function largely beyond copyright although that is not necessarily because copyright law would not protect them and their works. For the accordance of copyright protection, the governing statute does not require works to be permanent in any sense of the word, it does not require works to have been created legally, and it does not expect artists to be acclaimed.

There have been times when corporates have been known to figuratively lift the works of street artists, reprint them on memorabilia, and monetise them. At other times, street art has been literally lifted, decontextualised, and displayed in contexts other than those intended by their creators.

It is likely that, along with concerns about being accused of vandalism where they've created works without permission, a lack of resources coupled with a lack of awareness has kept street artists from invoking copyright law. The situation has not been aided by street artists not really being revered by the public (which is, of course, demonstrated by its rarely being willing to pay fairly for works created by street artists). 

This leaves street artists susceptible to exploitation and, in particular, to having their works being used without fair recompense. In the circumstances, for all its flaws, copyright law could potentially provide a legal framework to protect street art to an extent. For that reason alone, it is worth taking a closer look at how it interacts with street art, and if it can routinely be used to challenge the misappropriation and unwarranted destruction of street art.

30 April 2018

Legal Reportage and Contempt of Court

First unedited draft

The reportage of legal affairs and proceedings involves the risk of committing contempt of court. The subject is governed in India by the 1971 Contempt of Courts Act which repealed the 1952 Contempt of Courts Act, and which deals with two forms of contempt: criminal and civil. The statute, however, does not consolidate the law of contempt, and Section 22 indicates that it merely supplements other laws relating to contempt without derogating from them. Its applicability is also limited: under Section 21, it does not apply to Nyaya Panchayats or other villages courts, and, even where it does apply, Section 20 requires proceedings of contempt to be initiated within one year after the contempt is alleged to have been committed. Under Section 11, each High Court has jurisdiction to inquire into or try contempt of itself or of any court subordinate to it.

Civil contempt is defined in Section 2(b) to mean ‘willful disobedience to any judgement, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court’ and has become increasingly relevant in an age when courts sometimes issue orders relating to what may legitimately be published.

In contrast, criminal contempt is defined in Section 2(c) of the statute; it can be committed by doing anything or publishing any content which tends to scandalize or to lower the authority of any court, interfere with the due course of any judicial proceeding or with the administration of justice, or to obstruct the latter, or which actually results in any of these consequences. Section 13(a), however, indicates that interference must be substantial for a sentence to be imposed – in other words, a sentence would generally not be imposed for contempt which is trivial.

In the cases of interference and obstruction of justice in relation to proceedings pending at that time of publication, Sections 3(1) and (3) clarify that those who publish assailable content without having reasonable grounds to believe that proceedings were pending shall not be held guilty of contempt of court, and neither shall those who distribute such content as long as they have no reasonable grounds to believe it contains problematic matter and the content is legitimately published in terms of the statute. Further, under Section 3(2), if there are no pending proceedings, there is no contempt committed in relation to obstruction or interference. Criminal contempt may, however, also be committed by prejudicing judicial proceedings, and it isn’t entirely clear how these exceptions to contempt would apply to it.

Thus, publishing any matter relating to courts or legal proceedings which is unfair, or unsubstantiated, or which a court has specifically ordered not be published could potentially result in one’s committing contempt of court. The statute, however, is not intended to act as a censorship tool and, under Section 13(b), a court may permit justification by truth as a valid defence in any proceeding for contempt of court if it is satisfied that it is in public interest and the request for invoking the defence is made is good faith.

The 1971 Contempt of Courts Act also states in Section 7(2) that a person shall not be guilty of contempt of court for publishing the text or a fair and accurate summary of the whole or any part, of an order made by a court sitting in chambers or in camera, unless the court has expressly (and legitimately) prohibited publication. This provision effectively reiterates and builds on the theme of Section 7(1) which, as a general rule, exempts publishers from liability if they publish ‘a fair and accurate report of a judicial proceeding before any court sitting in chambers or in camera’– exceptions to this general rule come into play if there is already a statutory provision prohibiting publication, if a court has expressly prohibited publication of specific information, if the information relates to proceedings where the court sits in chambers or in camera for reason connected with public order or the security of the State, or if the information relates to a secret process, discovery or invention which is an issue in proceedings.

Section 7 of the statute in its entirety also carves out a limited restriction to the aphorism contained in Section 4 which blandly states: “Subject to the provisions contained in section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.” In addition to the provision which deals with reports of judicial proceedings, the statute also contains a broad-spectrum exception to contempt in Section 5 which ensures that a person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. Thus, it repeatedly attempts to ensure that the provisions of the Contempt of Courts Act cannot be used indiscriminately.

Harkening to the law of contempt at it stood before the passing of the 1971 Contempt of Courts Act, Section 9 clarifies that the statute is not intended to enlarge the of scope of contempt by stating that nothing contained in it ‘shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable apart from this Act’ while Section 8 says that nothing in the statute ‘shall be construed as implying that any other defence which would have been a valid defence in any proceedings for contempt of court has ceased to be available’ merely because of its provisions.

It contains a multitude of procedural provisions and those found to have committed contempt may, under Section 12, be fined up to two thousand rupees and possibly also punished with simple imprisonment or by being detained in a civil prison for up to six months depending on the nature of the contempt and the facts and circumstances of the case. The accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. The statute mandates that an apology shall not be rejected merely because it is that it is qualified or conditional as long as it is made in good faith.

As such, although the 1971 Contempt of Courts Act limits the publication of some content, it is rife with exceptions that protect free speech. Its aim merely seems to be to restrain reportage which is knowingly reckless and damaging to the judiciary and to the administration of justice. It does not seem to set up a framework in which the courts and their judgments are above all legitimate criticism.

(nb: This post deals with the non-procedural provisions relating to contempt from the point of view of the 1971 contempt statute alone, and nuance has been sacrificed for brevity. It's worth reading the 274th Report of the Law Commission, A Review of the Contempt of Court Act 1971 Limited to Section 2, for an overview of the law of contempt in India and its history.) 

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

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