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.

28 November 2016

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

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 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 made 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.)

14 October 2016

The Enhanced Scope of the 31D Statutory Licence for Broadcasters

On the applicability of Section 31D to Internet broadcasters:

The scope of Section 31D of the Copyright Act, 1957, which allows broadcasters to obtain statutory licences to communicate content (in the form of literary and musical works) to the public has steadily broadened. In its early avatars, seen in the bills which proposed what ultimately became the 2012 amendment to the Copyright Act, 1957, there were times when only radio broadcasters would have been able to obtain the licences contemplated by the then-proposed Section. However, by the time the amendment act was actually passed, the words of Section 31D had changed, and there was no doubt that both television and radio broadcasters could avail of the statutory licences contemplated by the provision.

Section 31D was roughly divided into two different parts with the former, articulated in its first sub-clause, capable of being considered a substantive provision, and the latter, comprising seven sub-clauses, amenable to being considered the procedural provisions intended to support the realisation of the former.

The first sub-clause simply did not limit the kinds of broadcasting organisations which could potentially obtain statutory licences under Section 31D. It stated:

(1) Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section. 

It was only in the procedural part of Section 31D that one sub-clause mentioned television and radio broadcasters alone, and arguably conveyed the impression that Section 31D was intended to benefit only those two kinds of broadcasters by stating:

(3) The rates of royalty for radio broadcasting shall be different from television broadcasting and the copyright Board shall fix separate rates for radio broadcasting and television broadcasting.

Apart from Section 31D(3), however, which has, in any case, only been a supporting procedural provision, none of the clauses of Section 31D have limited the range of broadcasters which could potentially obtain 31D statutory licences. Taking this into consideration, along with the definition of communication to the public in Section 2(ff) of the Copyright Act, 1957, and stakeholder representations, in September 2016, the Copyright Section of the Department of Industrial Policy and Promotion issued an office memorandum in which it explicitly clarified that the online broadcasters were included within the meaning of 'broadcasting organisations' in Section 31D(1). In relevant part, the memorandum read:

3. In view of the above, the words "any broadcasting organization desirous of communicating to the public..." may not be restrictively interpreted to be covering only radio and TV broadcasting as definition of 'broadcast' read with 'communication to the public', appears to be including all kind of broadcast including internet broadcasting. Thus, the provisions of section 31D are not restricted to radio and television broadcasting organizations only, but cover internet broadcasting organizations also.

The memorandum did not so much change the law as it clarified the law by explicitly allowing internet broadcasters (using a newer technology more widely used than it was at the time the 2012 amendment came into force) to avail of a provision of the copyright statute, Section 31D, which could facilitate their operations.

Excerpts from the Copyright Act, 1957:

31D. Statutory licence for broadcasting of literary and musical works and sound recording.
(1) Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section.
(2) The broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Copyright Board.
(3) The rates of royalty for radio broadcasting shall be different from television broadcasting and the copyright Board shall fix separate rates for radio broadcasting and television broadcasting.
(4) In fixing the manner and the rate of royalty under sub-section (2), the Copyright Board may require the broadcasting organisation to pay an advance to the owners of rights.
(5) The names of the authors and the principal performers of the work shall, except in case of the broadcasting organisation communicating such work by way of performance, be announced with the broadcast.
(6) No fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of the owners of rights.
(7) The broadcasting organisation shall— (a) maintain such records and books of account, and render to the owners of rights such reports and accounts; and (b) allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast, in such manner as may be prescribed.
(8) Nothing in this section shall affect the operation of any licence issued or any agreement entered into before the commencement of the Copyright (Amendment) Act, 2012.

2. Interpretation. In this Act, unless the context otherwise requires, — (ff) “communication to the public” means making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available. Explanation.—For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public;

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

5 October 2016

The Constraints Governing (My) SocMed Use

#privacy, #identity, #abuse

The question of what one should share online is almost inescapable these days; everyone seems to have an opinion, and with the ostensibly democratic nature of some SocMed platforms, everyone’s opinion is sometimes touted as being equally valid. What there probably exists, however, is not a set of equally valid options relating to one’s SocMed use available to one but, instead, a set of options available to be tailored to one’s own requirements which are often shaped not just by intended use but also, however subtly, by class and gender.

The three platforms I've been using with any degree of frequency worth mentioning are Twitter, Facebook, and, most recently, Instagram. This post isn’t so much a general piece about how SocMed could be used as it is an attempt at trying to explore how my own use of SocMed sites has been shaped in the context of both the law and what are, for me, social considerations. Facebook and Instagram I find myself uncomfortable with: not only do I not see reason to give my entire acquaintance a running commentary of what happens in my life, I also suspect that it would be all too easy to have my posts and updates contribute to turning my life into a work of performance art exhausting for me and exclusionary for some of the people I value. Twitter I’m more comfortable with since the way I use it is information-heavy. That said, I spent a long time not using it at all after I got myself an account: making the shift from having an argument be contained in some 300 odd pages to seeing an argument being made in as little as 140 characters isn’t a change that’s made overnight, and it took me a while to get used to what I initially perceived as being a great deal of noise and nothing but noise.

One of the charges most consistently levelled against tweets, entirely independent of the ideological position underlying them, seems to be that not only are they devoid of nuance but also that, given their brevity, they are incapable of nuance. While it’s certainly true, to an extent, that it isn’t realistic to expect to be able to fit half a dozen lawyer-like caveats into a single tweet, it’s also true that a lack of nuance may be intricately tied one’s (in)ability to craft a meaningful tweet in 140 characters, and to one’s (un)willingness to treat one’s followers as people who can deal in and with nuance.

In the arena of policy, for example, I’ve heard it claimed far too often that nuance isn’t appreciated, and I can’t help but suspect that the lack of appreciation for nuance is often caused by the failure of those who make the claim to express nuance intelligibly. True, all of us jump to conclusions on Twitter, and not all of us engage with those who tweet in good faith: there is no shortage of trolls who will troll one solely for the pleasure that brings them, and, short of muting or blocking them, there is often very little that one can do to keep from having one’s peace of mind impaired and one’s time wasted by them.

Which brings one to the issue of abuse online, an issue which affects users of not just Twitter but of all SocMed sites including Facebook and LinkedIn. None of these sites architect to promote abuse. Unfortunately, their mechanisms to curb abuse can feel extraordinarily inadequate when one is targeted with abuse of whatever nature especially since it can seem almost impossible to keep abusers from creating new accounts once one of their accounts is shut down. I’ve been lucky myself in not having received a great deal of abuse sent my way although I can’t help but notice that the amount of abuse I face tends to vary depending on what my profile biography says: when it includes the word ‘Lawyer’, the quantum of abuse directed at me seems to drop dramatically.

That said, I’ve still had people – both men and women, both from the so-called ‘left’ and ‘right’, and both using ostensibly real names and not – direct abuse at me. Much of the abuse is gendered, and I’ve routinely dealt with explicit pictures being sent to me by men, with men propositioning me, with men who upon being told not to send me pictures of themselves send me pictures of unsolicited flowers instead. Up to a point, it’s been difficult for me not to be amused, but that’s just my own reaction. After that point, for me, there’s been frustration and sometimes fear: the man who stalks one and seems to know far more about one than he should. The man who not only stalks one online, but also stalks those whom one interacts with online solely to confront one with their words.

SocMed contact lists can often easily morph into accessible and stalker-friendly lists of one’s friends and contacts. On some sites like Facebook and LinkedIn, it’s possible to keep the lists private but on a site like Twitter, the list of people one follows is accessible by anyone. Quite apart from enjoying a very particular sort of tweets, for me, the inability to cloak whom I follow on Twitter has led me to follow only strangers or friends with whom I wouldn’t feel uncomfortable were they to be dragged into some strange gratuitous drama with a stalker. It’s meant that many of my acquaintances have been put off by my not following them but the truth is that I’d rather feel safe than be polite in this regard.

Protecting one’s privacy online is never easy. There is, of course, the obvious and easy-to-follow option of limiting or not posting information oneself although that doesn’t address the issue of curtailing information posted about oneself by others. It doesn’t necessarily occur to people whom one interacts with not to post one’s pictures or information about one online without taking one’s permission. For someone like me, who lives in what’s far from the safest city around, having information posted, say, in an identifiable location which is specified as being near my home is potentially problematic: I simply do not want my home address, or even my neighbourhood, to be public information. It would make me feel unsafe. Which is one of the ways class comes in: I can't afford what I would perceive to be adequate real life protection from people who could be malevolent and who've come across me online. And, so, I'd simply prefer not to aid public access to myself even if that means not talking about a meal with friends online or about attending an event. If at all I do talk about myself what I do online, the content I share is almost always time-shifted at the very least to protect my privacy.

That said, not all steps to protect oneself online are obvious or immediately occur to one. For example, SocMed aside for a moment, while uploading one’s picture online it could be well worth not naming the file using one’s own name. That way, should the file, name and all, be picked up either by a bot or a human being and placed on another site which happens to be full of content of a nature one would prefer not to be associated with, one’s name would at least be far less likely to pop up during a routine online search for it in conjunction with the latter site.

Coming back to SocMed though, one of the problems with it, in general, is that although there is no dearth of laws which govern it, and although the entities which run SocMed themselves have mechanisms to address abuse, a user’s obtaining relief either through the law or within the framework of SocMed reportage systems is not guaranteed. And the costs for someone who is the target of abuse can be extremely high both with reference to their social, and possibly professional, standing and with reference to their own peace of mind. One of the proposed solutions has been to verify SocMed accounts (and users) so that one can choose to interact only with those who have verified accounts.

The form SocMed verification would have to take for such a proposal to be viable and fair is, however, unclear. There is absolutely no doubt that real-name policies can be unfair and privilege those already empowered. Apart from anecdata which suggests that such policies are susceptible to simply failing to recognise non-mainstream names, they also pose risks to all those (ranging from whistle-blowers to those who are being subject to abuse) who need or would prefer anonymity for either professional or personal reasons. One possible solution would be to make verification optional not only for people who use their real names on SocMed but also for those who chose not to make their real names publicly visible. The drawback, of course, would be that this could place users in a position where they would have to rely on SocMed companies to protect their identities, and, in a country like India which lacks a comprehensive and cohesive privacy law, an attempt to hold companies to any commitment they might make to users in this regard may have to rely primarily on contract law, likely inadequate in the circumstances, for its enforcement.

The issue of control over what one says on SocMed manifests in other ways too. One’s Twitter timeline, if it is public and associated with one’s name, has recently begun to make an appearance when one’s name is searched for on Google. While tweets are public in such cases, they are not necessarily the first thing one wants to have a person seeking information about one to see. Apart from this, journalists routinely pick up tweets and insert them into their stories or turn one’s tweets into a story without necessarily seeking permission from one. Twitter’s terms of service and the possibility that the unauthorised reproduction and republication of tweets could amount to copyright infringement aside, there are in addition to possible legal issues also concerns about the ethics of essentially removing the control of a user’s words from their own hands, and making available those words to an audience likely far wider than the individual user acting alone would have had access to. Although determinations of what is acceptable may differ based on the nature of the content and whether or not the SocMed user is a public figure, these are issues which have so far not been considered in much depth. While it is clear that a minister making a statement about his portfolio, say, on Twitter should have no claim to any sort of privacy regarding that statement, it is far less clear that the same standard should be applicable to a person who is not a public figure but who makes a publicly-accessible statement about a non-public or personal issue.

As a rule of thumb, it may be prudent to not say anything on SocMed which one would hesitate to have thrown back at one possibly out of context years later, or which one would not want to have be widely publicised. That rule, however, does not change the fact that at some point in the foreseeable future, we will have to grapple with the issues which our use of SocMed have given rise to, not least in relation to the law, in a far less superficial manner than that in which we have dealt with them thus far.

(The description of the functioning of the SocMed platforms mentioned in the piece is based on my experience and is only to the best of my knowledge. It may not be entirely accurate.)

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


This site is supported by FrontierNxt.