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 July 2016

Free Speech and Women's Rights in India

Unedited note, first draft.

Free speech and women's rights have, for some time now, been on a collision course in India in no small measure, it would appear, because the manner in which the discourse relating to free speech in India has been set up by its proponents has been largely devoid of much nuance with a sledgehammer often being used to craft arguments where a chisel would have done better.

Amongst the many instances, in conversations both public and private, where the friction between free speech and women's rights (or, more specifically, the right against violence) has manifested itself are those:
  • in relation to pornography where free speech has, unfortunately, often found itself being pitted against women's rights simply because of the sheer length of time it took for any acknowledgement worth mentioning to be made in public discourse that a purported normative free speech right to access pornography can (or at least, should) only exist where that pornography is both made and disseminated with the consent of those who feature in it;
  • in relation to verbal abuse where it has been argued that, for example, verbal street harassment constitutes an exercise of free speech which should not be a legal offence despite the fact that it is targetted at a specific individual and could not possibly qualify as a general misogynistic rant which doesn't necessarily target anyone;
  • in relation to the posting of online advertisements, games, and tools such as the so-called 'dowry calculators' (For fun! it's said) and foetal sex-determination aids even though, bearing in mind that an intermediary would have limited protection through the IT Act, there are compelling arguments to be made for the illegality of such online content;
  • in relation to the blocking of advertisements made for escort services without, it would appear, any research having been done to ascertain who exactly the posters are and whether the legality of such advertisements could potentially differ depending on whether they were posted by persons providing services themselves or others possibly coercing them into providing the services; both trafficking and pimping are illegal in India.
There are areas in which the law is beginning to be clarified (albeit not really in India). On July 14, 2016, for example, the FBI released a statement on distinguishing between Free Speech and Threatening Speech. It read in relevant part: 
"Free speech, however, cannot be misconstrued to include directed threats toward another individual, group, or location. Once threatening speech is directed toward a specific person; a group of people, including law enforcement agencies or ethnic communities; or specific locations in a community, it can be viewed as a credible threat. Individuals who communicate threats may be subject to prosecution."
The fact of the matter is that free speech does not exist in a vacuum and, at some point, a balance will have to be found in India weighing free speech against the provisions of the law and with women's rights. There is no case, ethical or Constitutional, for absolute free speech. In fact, the Constitution clearly envisages circumstances in which free speech can be legitimately curtailed. Further, given both the prevalence of violence against women in India and the horrendously skewed sex ratio of the country, perhaps there is also a case to be made for not attempting to challenge legal restrictions to free speech which help protect women's rights. Free speech is critical. It is not sacrosanct though and should not take precedence over a woman's right to remain alive and to be able to live an abuse-free life.

(This post is by Nandita Saikia and was first published at Indian Copyright.)


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