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.

16 November 2009

India and the Google Book Settlement

The Google Book Settlement has been widely debated. As Wikipedia explains, ‘the Google Book Search settlement agreement is the settlement agreement reached in the United States District Court for the Southern District of New York after the Authors Guild and the Association of American Publishers sued Google in 2005 citing “massive copyright infringement” related to its Google Books Library Project. The settlement will provide an avenue for copyright owners of out of print books to submit claims to Google, from the Book Rights Registry, and allow Google to sell advertisements and digital versions of these books, while paying 63 percent royalties to the copyright owners.’

The “settlement”, according to some, is an agreement which is being foisted on all publishers. It is supposed to create an online library but it has been alleged that many of the features of the “library” are similar to those of a shop. The settlement has also been the subject of debate because it appears to have an impact on competition by supposedly creating a monopoly in favour of Google. Needless to say, not everyone has been entirely thrilled with the Google Book Search Settlement Agreement.

One of the problems with the settlement, as far as India is concerned, has been that it did not adquately address the needs of vernacular (and, to an extent, English) publishers in the country. The Indian publishing industry is fragmented and extremely diverse. Books are published not only in English but also in a large number of regional languages. It is therefore entirely possible that there would be a large number of publishers (especially among those which publish books in vernacular languages) who would know nothing about the Google Book Settlement, much less its opt out provisions.

While it is true that not every book would have been automatically included under the terms of the settlement, it is possible to envisage a situation where publishers not “in the know” would have been severely disadvantaged. Prior to its amendment, the Google Book Settlement defined “Book” in the following terms:
1.16 “Book” means a written or printed work that (a) if a “United States work,” as defined in 17 U.S.C. § 101, has been registered with the United States Copyright Office as of the Notice Commencement Date, (b) on or before the Notice Commencement Date, was published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, and (c) as of the Notice Commencement Date, is subject to a Copyright Interest. The term “Book” does not include: (i) Periodicals, (ii) personal papers (e.g., unpublished diaries or bundles of notes or letters), (iii) written or printed works in which more than thirty-five percent (35%) of the pages contain more than fifty percent (50%) music notation and lyrics interspersed, if any (for purpose of this calculation, “music notation” means notes on a staff or tablature), (iv) written or printed works in, or as they become in, the public domain under the Copyright Act in the United States, or (v) Government Works. References in this Settlement Agreement to a Book include all Inserts contained in the Book, except where this Settlement Agreement provides otherwise.

Under Indian law, Indian publishers would, in all probability, anyway have been able to sue Google for copyright infringement if their rights had been violated by Google. However, suggesting that aggrieved publishers actually do initiate legal proceedings if circumstances so warrant may not be prudent or practical — legal proceedings are expensive and time-consuming, and their outcome is rarely a matter of certainty.

According to media reports, the Indian government had raised concerns about the Google Book Settlement with the US. Subsequently — and probably not consequently — the settlement was amended on November 13, 2009 to address some of the concerns which had been raised regarding it by various groups and countries. The amended version of the Google Book Settlement defines “Book” differently. It says:
1.19 “Book” means a written or printed work that as of January 5, 2009 (a) had been published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, (b) was subject to a Copyright Interest, and (c) (1) if a “United States work,” as defined in 17 U.S.C. § 101, was registered with the United States Copyright Office, and (2) if not a United States work, either (x) was registered with the United States Copyright Office, or (y) had a place of publication in Canada, the United Kingdom or Australia, as evidenced by information printed in or on a hard copy of the work. Relevant information printed in or on a hard copy of the work may include, for example, a statement that the book was “Published in [Canada] or [the UK] or [Australia],” or the location or address of the publisher in one of those three countries. The term “Book” does not include: (i) Periodicals, (ii) personal papers (e.g., unpublished diaries or bundles of notes or letters), (iii) written or printed works in which more than twenty percent (20%) of the pages of text (not including tables of contents, indices, blank pages, title pages, copyright pages and verso pages) contain more than twenty percent (20%) music notation, with or without lyrics interspersed (for purpose of this calculation, “music notation” means notes on a staff or tablature), (iv) written or printed works in, or as they become in, the public domain under the Copyright Act in the United States, (v) Government Works, or (vi) calendars. References in this Settlement Agreement to a Book include all Inserts contained in the Book, except where this Settlement Agreement provides otherwise.
As such, India’s concerns about the settlement have probably been addressed to a large extent since the amended GBS would primarily apply to American, Australian, Canadian and British books. It isn’t yet clear whether the amended settlement will actually assuage the fears and concerns of those who had issues with the earlier version of the settlement though.

(This post is by Nandita Saikia and was first published at LawMatters.in.)

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