11 January 2015

The Colonial and Sexist Overtones of Indian Copyright Law

Indian copyright law does not appear to have been subjected to critical post-colonial or feminist readings. It does, however, appear to be a colonial and sexist relic which is now so deeply entrenched in the country’s corpus juris that it would be virtually impossible to overhaul the structure of the law to better suit India’s own requirements even if there was the will to do so.

There is no credible argument to be made to the effect that artist-authors of works should not be remunerated for their effort or that their rights, both economic and moral, should not be protected. Whether copyright in its current form is the best way in which Indian artist-authors could be protected is, however, questionable.

If one were to look at the kinds of works protected by copyright, it would emerge that at inception, it was books which were protected, and later, works which were primarily created by men that were accorded protection. The supposedly distinctly feminine arts such as, to a large extent, the culinary arts and arts such as knitting and tailoring did not receive copyright protection worth mentioning. Although there may be arguments to be made to the effect that this is partly because the so-called feminine arts are primarily functional and because protecting them would likely (have) involve(d) according some degree of protection to processes, the formational rationale of copyright aside, it appears that the effect of the structure of copyright law would have been — and, in fact, arguably has been — to accord precedence to creative content and the arts which are not essentially the arts of women, and to reinforce the undervalued status of what was once, and is still largely, ‘women’s work’.

The language of statutory copyright law is gender-neutral. However, formal gender neutrality in the law does not necessarily amount to substantive gender neutrality. Coverture (which, in broad strokes, could lead to married women’s legal identities being subsumed into that of their husbands’) does not appear to have been historically applied in India in a manner comparable to its application in England (which once colonised vast swathes of India). Nonetheless, it is hard to imagine anything but the existence of a situation in India where women would not only have been severely restricted (in comparison to men) from creating copyrightable works but also where a form of choice inhibition (resulting from practical considerations such as that of the limited autonomy which plagues Indian women even today) would have limited their ability to seek legal remedy for infringement in those instances where they had created copyrighted works and their rights had been violated.

Superimposed upon these gender considerations, which are arguably not entirely a thing of the past, is the seeming Western understanding of the sort of content which should be protectable by copyright. On one hand, copyright law appears to understand creative content as being the creation of specific individuals or people, that is, recognisable authors. It does not really see protectable content as content which has been created by a community relying on knowledge that has been passed down through the generations. Unsurprisingly, possibly as result of this, copyright law in India has failed spectacularly when it comes to the protection of traditional Indian creative content including Indian arts. Whether it is textiles or handicrafts — and it must be said that many of the traditional arts such as those of various forms of embroidery are essentially women’s arts — protection has now been granted (in some cases) to the arts (and not so much to their individual creators) through the comparatively new-fangled geographical indication protection. Although such protection does appear to be a viable option for the accordance of legal protection to traditional arts, it also highlights, depending on how one sees it, a failure of or lacuna in copyright law.

As far as art is concerned, embedded further within the structure of the law is, seemingly, an understanding of the division between what is ‘high’ or fine art, and what is considered ‘merely’ decorative art. While there are issues regarding commercialisation, trade, the social status of craftsmen, and functionality, from the point of view of a country like India, it is well worth noting that Indian creative content cannot be neatly categorised into decorative arts and fine arts in the manner in which Western creative content may often be categorised. While focussing on the accordance of copyright protection to high art may work in a Western context, the difficulty with which the categorisation is imposed upon Indian creative endeavour raises questions about the validity of such categorisation in the Indian context. It would appear that Indian art is, regardless of the letter of the Indian copyright statute, protected by Indian law only to the extent that such content fits into Western notions of what constitutes high (and, therefore, protectable) content.

The lack of copyright protection accorded to indigenous Indian art and other creative content may not have hampered or adversely affected it at all — Indian art, for example, did survive for centuries before the colonial introduction of copyright law into India, after all, and there has been a heated debate in recent years about the consequences of the accordance of copyright protection including its suppression of the creation of derivative works. Even so, it does appear that the copyright introduced in India by the English had far more to do with Western ideas of creativity than it had to do with the creative content being produced in India. As such, there are likely valid questions to be asked about the underlying structure of copyright law in India and its utility as far as traditional Indian art and creative content is concerned.

This post is based on ideas I've been mulling over for about a year or so, some of which about the patriarchal structure of the law, etc. I've articulated on my twitter feed (@nsaikia).

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

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