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.

26 December 2016

Liability for Others' Content (Case Notes)

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.]

3 December 2016

The National Anthem Case (Note)

An interim order by  a Bench of the Supreme Court comprising Dipak Misra and Amitava Roy, JJ, in the case of Shyam Narayan Chouksey v. Union of India, Writ Petition(s)(Civil) No(s). 855/2016, garnered a great deal of attention recently for having issued directions requiring the National Anthem to be played with the National Flag on the screen and with entry/exit doors closed in all cinema halls in India before the start of feature films, and for stating that 'all present in the hall are obliged to stand up to show respect to the National Anthem'.

Unsurprisingly, this gave rise to security concerns, as well concerns about the free choice and state imposition. Largely lost were content law concerns: in its directions, the court also stated:

"Having heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is directed that the following directions shall be scrupulously followed:-
(a) There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.
(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.
(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which 3 may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.
(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed."

As such, the Order has raised questions about how and if at all the the National Anthem may be depicted in content such as films and books. It states, for example, that the 'National Anthem or a part of it shall not be printed on any object' without seeming to include any caveats or to limit the prohibition with reference to the intention of the printing. The result, arguably, is that, per the Order, it may not be legitimate to print the National Anthem in books even if they are, perhaps, textbooks.

In fact, whether in relation to content law or other law, there seem to be no caveats worth mentioning in the Order. Quite apart from not restricting printing in only specific circumstances, the Order also, for example, contains no exceptions for the benefit of persons with disabilities or the infirm who may not be able to stand for the National Anthem (or anything else, for that matter). As such, it is difficult not to conclude that in its enthusiasm for the collective good, the Order seems to ignore the individual, his rights and disabilities.

The prohibitions in and requirements of the Order are sweeping, nuance seems to be all but alien to it, and the legal basis of the Order is unclear. It refers to the Constitution and to the Prevention of Insults to National Honour Act, 1971, as well as to 'Constitutional Patriotism' which appears to be a newly-minted concept in the Indian corpus juris. With reference to statute alone, the Order appears to go beyond the scope of the 1971 Act and, in doing so, seems to engage in not just statutory interpretation but in statutory construction which is not ordinarily the remit of the judiciary (although there are plenty of exceptions to this general understanding). The legal justification for its engaging with the law in such a manner is, unfortunately, not entirely clear from the text of the Order. Without more nuance and without the rationale underlying the Order being made clearer, it now becomes extremely difficult to determine how the National Anthem may be engaged with in print, film, and other content.

(This post is by Nandita Saikia and was first published at IN Content Law. It is based on tweets posted at @INContentLaw earlier this evening.)

28 November 2016

Copyright Law, Balance, and the Expression of Non-Partisanship

[Note (added on December 26, 2016): In the T-Series/MySpace case, a Division Bench of the Delhi High Court indicated its enthusiasm for a balanced approach to copyright; Para. 67 of its decision dated December 23, 2016, included 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 of ineffective or under-protection, of IP rights: both of which chill and kill creativity, in the final analysis, harmful to society." This is one of (at least) two recent decisions in which the Delhi High Court has displayed a progressive approach to techno-legal issues, and attempted to ensure that persons do not necessarily become liable for illegal content posted by others. While the T-Series/MySpace matter dealt with intermediary liability and copyright, the other matter, Ashish Bhalla, dealt with the liability of WhatsApp group administrators and defamation.]

The Indian copyright statute has, from the time of its earliest avatar in 1847, been a balancing act in and of itself. While it ostensibly articulates an author’s right, the right has always been suspiciously amenable to being exploited by commercial, if not corporate, interests acting in ways that do not necessarily align with the best interest of authors (which inequity, in no small measure, was the impetus for the passing of the 2012 amendment to the Indian Copyright Act, 1957, which governs the subject in India).

However, apart from the tension between authors and publishers which, it must be said, has more to do with realpolitik than with the letter of the law, there is also a separate clash of interests which the copyright statute attempts to address head on: that between ‘creators’ and consumers. Alliterative though it may be, the clash is not so much between creators and consumers per se, but between copyright owners, who may be the creators of copyrighted works, and the consumers of those works.

Indian copyright law protects specific kinds of works listed in Section 14 of its Copyright Act, and grants to the owners of those works the almost exclusive right to exploit them for a long but limited period of time. The works protected by the law include literary, dramatic, musical, and artistic works, as well as cinematograph films and sound recordings, provided they satisfy the statutory criteria for protectability. As a general rule, copyright subsists in protectable works from the moment of their creation, and it vests in the creators or authors of the works (although this general rule is subject to a virtual deluge of exceptions particularly in relation to commissioned works and works created by persons in their capacity as employees).

Copyright too is not an amorphous mass but is delineated into specific rights which have increased in number over time: the earliest copyright laws concerned themselves with reproduction alone although, over time, they have also come to contemplate rights as disparate as the rights to adapt and translate works. Not all rights are recognised by statute in relation to each kind of work, and the specific exclusive rights of owners associated with the various kinds of protected works are listed in Section 14 of the Indian Copyright Act which explains the meaning of copyright.

The exclusive rights of owners are, however, not absolute even during the subsistence of copyright: the law recognises that works and the public interest may not be best served by being left solely to the whims of copyright owners and, as such, it includes within the copyright statute itself mechanisms through which the hold of copyright owners on the works they own may be loosened.

Amongst the provisions which derogate from the exclusive rights of copyright owners are compulsory and statutory licences, as well as exceptions to copyright infringement. It is the latter which are probably of most interest to the average consumer of copyrighted works: in effect, the exceptions allow consumers to exploit copyrighted works without the consent of copyright owners within the circumstances which they (that is, the exceptions) contemplate. Technically, they do so not by allowing the unauthorised use of copyrighted works outright but by providing consumers who act within the limits contemplated by the exceptions a valid defence to copyright infringement which enables them to avoid having to shoulder legal liability for infringement.

These exceptions to copyright infringement are listed in Section 52 of the Copyright Act which deals with issues such as access to law (amongst other things, in the form of statutes and judgments), access to copyrighted works for the purpose of education, access to culture, and the facilitation of business (by attempting to ensure that neither copyright nor the exceptions to copyright infringement impede the flow of trade and commerce). The exceptions were significantly amended through the 2012 amendment to the statute through both a change in syntax and, crucially, through substantive amendment which, in many cases, broadened them especially where there were clear public policy imperatives to do so.

Although Indian case law refers to both US law and international law for interpretive purposes, Section 52 of the Copyright Act begins by allowing fair dealing (distinct from the ‘fair use’ of US copyright law) in arguably vague terms, and then goes on, in effect, to allow specific acts in relation to specific works for specified purposes. The degree of specificity is so high in the later acts enumerated in the Section 52 exceptions to copyright infringement that fairness, although not explicitly mentioned, is manifest in the structure of the law itself. Considering that Section 52 lists specific acts and circumstances in which liability for copyright infringement may be avoided (instead of listing broad fair use principles as US law does in 17 USC § 107), it could be said that Indian law is relatively uncompromising in its determination of whether or not liability for copyright infringement is attracted with reference to Section 52 of its Copyright Act. Alternatively, it could be argued that Indian law relatively clear given the high degree of specificity in most of its exceptions to copyright infringement.

There have been a number of judgments in which Indian courts have recognised that there exists a statutory shield to protect third parties from legal liability for the unauthorised use of copyrighted content in certain specified circumstances. The latest such matter which the Supreme Court has disposed of appears to be Civil Appeal 10245/2014 in which the Court reiterated that the raw text of judgments may be published, sold or distributed; it had earlier said so in EBC v. DB Modak. This, of course, is in keeping with the public policy aim of attempting to ensure that the law is publicly accessible. The aim is supported by mechanisms in Section 52 of the Copyright Act which lay down how it may be realised, and it has been upheld by the judiciary.

In broader terms, however, Section 52 is an expression of the legislative attempt to the balance rights and liabilities of those who engage with copyrightable content in whatever capacity; it attempts to ensure that the creators of content are not taken for granted, and that consumers are not unfairly kept from accessing content. As such, Section 52 is one of the key provisions in the Indian copyright statute: it is primarily through this Section that the legislature has expressed its desire to have copyright be a ‘balanced’ non-partisan right which, with a hand intended to be even, encourages scholarship, creativity, and access to law. And does not impede trade, reportage, or research. All of which, put together, helps constitute a liberal and progressive society (or, at any rate, a society which is not forced to stagnate due to insurmountable legal restrictions which prevent access to contemporary content).

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


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