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.

15 July 2011

101: The ‘Public Domain’

Information available to the public need not necessarily be in the public domain — not from the point of view of copyright law at any rate. Despite this, the terms ‘publicly available content’ and ‘public domain content’ are often used interchangeably to describe any content to which the public has access.

Copyright law protects certain kinds of content: primarily, literary, dramatic, musical, artistic and architectural works as well as films and sound recordings. Pertinently, Indian copyright law defines ‘literary works’ so as to include books, computer programmes, compilations and tables within the scope of the term.

However, the law does not use the factor of whether or not content is available to the general public (or some section of the general public) as the criterion to determine whether or not that content is in the public domain. On the contrary, a determination of whether or not content is in the public domain is based on whether or not it is protected by copyright. (The term ‘public domain’ itself does not appear in the copyright statute.)

It is only when copyright ceases to subsist in protected content that the content enters the public domain. The most common way in which this happens is by the expiry of the term of copyright subsisting in the content. In India, depending on the nature of the content, copyright would generally subsist in it for a term of either sixty years after its author’s death or sixty years after its publication. As such, once this term is at an end, the content enters the public domain. (If public domain content is edited though, the edited version may not belong to the public domain in certain cases. Also, if a public domain work is translated, the translation may not be in the public domain.)

Alternatively, content protected by copyright may enter the public domain if the copyright owner relinquishes copyright — the Indian Copyright Act, 1957, makes provision for the relinquishment of copyright in Section 21.

Finally, there are certain kinds of content in which copyright does not subsist at all or which are subject to copyright exceptions and limitations as a result of statutory provisions (primarily contained in Section 52 of the Copyright Act), judicial decisions, or copyright doctrine. For example, the judgments of courts are generally not protected by copyright by virtue of Section 52(q)(iv) in the Copyright Act. This means that any person can usually collect and reprint the raw text of the judgments without obtaining a licence (although he would have to obtain a licence if he also reproduced another person’s layout and summaries). Such content which (but for Section 52) would have fallen squarely within the scope of the definition of a protectable work under the Copyright Act may also, in a manner, be considered to be in the public domain, if one were to use the term loosely.

Public information or publicly available content is not in the public domain simply by virtue of being public, publicly available or accessible. The reproduction of public information / publicly available information would ordinarily require a licence unless (a) the public information was in the public domain from the point of view of copyright law, or (b) the relevant statute explicitly exempted unauthorised reproduction from allegations of infringement, or (c) copyright doctrine allowed for unauthorised reproduction through principles such as fair use (although Indian recognition of the doctrine is questionable), scènes à faire or merger, which potentially either deny copyrightability or act as defences against claims of infringement.

Further, it could be argued, relying on Section 14 of the Indian Copyright Act and the use of the word 'substantial' in its first line, that the exploitation of copyright in an insubstantial part of a protected work would not amount to copyright infringement. This is not to say that an insubstantial part of a work would be in the 'public domain' but merely that a licence would not be required to exploit it since Section 14 begins as follows:
14. Meaning of copyright. For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely: [....]
That said, relying on 'insubstantial use' to protect one, should one be accused of having infringed copyright is not especially prudent since determinations of substantiality are made not just quantitatively but qualitatively, and it is difficult to predict their outcomes.

As such, merely because certain information/content is publicly available, it does not automatically follow that the information/content is in the public domain, regardless of who may have originally owned the copyright in it or authored it.

n.b.: Sections 22 to 29 of the 1957 Indian Copyright Act deal with the term of copyright in published works.

(This post is by Nandita Saikia and was first published at Indian Copyright; updated in 2015.)

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