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 2011

Copyright and Censorship

The Competing Laws governing Copyright and Content

Copyright includes the right to publish; there’s no doubt about that — Section 14 of the Copyright Act, 1957, clearly grants copyright owners the exclusive right to publish works whose copyright they own, and to authorise others to do so. As such, any publication of a substantial part of a work protected by copyright, which publication is carried out neither by nor with the permission of its copyright owner, is likely to amount to copyright infringement.

Having the right to publish a work under copyright law though isn’t the same as actually being able to publish a work without having undesirable legal consequences ensue.

Copyright law is just one of the many laws which govern the publication of creative works. In fact, copyright law is limited to dealing with the publication of creative works in which copyright subsists — just a small fraction of all creative works. It does little more than enable one to identify and specify who owns the relevant copyright, who has the right to publish a protected work, and who has the right to profit from its publication.

The publication of creative works, however, needs to pass the test of legality under a variety of laws other than the Copyright Act. These laws include “procedural laws” such as, depending on the kind of work, the Press and Registration of Books Act, 1867, the Cinematograph Act, 1952, and, in the case of retail sales, the Legal Metrology Act, 2009. In addition to this, there exists an entire gamut of content laws with which one has to contend.

Content laws relating to creative works are laws which come into play upon publication, independently of whether or not the published work is protected by copyright. These laws deal with whether the substance of the works are legal, and not with who has the right to publish them. In other words, they apply to both copyrighted and unprotected works. Also, all content laws are not incorporated in one statute. On the contrary, there are over twenty different statutes which contain provisions dealing with the content of creative works, and in addition to this, various kinds of creative works may also be governed by Rules associated with statutes, case law, and by self-regulatory guidelines issued by professional bodies.

While content laws generally do not impact the right to publish a work under copyright law, publication could result in their being invoked. For example, if the copyright owner of an obscene work were to publish it, while the publication of the work would not fall foul of the provisions of copyright law, there is a high chance that, depending on the nature of the work, the publication would be against the provisions of a number of other laws including:
  1. The Information Technology Act, 2000;
  2. The Young Persons (Harmful Publications) Act, 1956;
  3. The Indian Penal Code, 1860;
  4. The Cable Television Networks Act, 1995 and Rules, 1994;
  5. The Indecent Representation of Women (Prohibition) Act, 1986;
  6. The Cinematograph Act, 1952 (including the Film Certification Guidelines);
  7. Tort law dealing with privacy; and
  8. The Advertising Standards Council of India Guidelines (which have the force of law despite not being law).
Indian copyright jurisprudence has not gone into the issue of the tension between copyright and the freedom of expression in much depth — primarily, possibly, because the two are generally seen as different issues in the Indian context. Nonetheless, there is an increasing degree of awareness arising in regard to content issues, and in relation to what may and may not be published. With this rise, it is likely that there will be a corresponding increase in the friction between the laws governing content and copyright, possibly with one being used to subvert the other.

Pertinently, many content laws may lend themselves to camouflaged use given that they are extremely vague. For example, television programmes are required not to offend good taste or decency under Rule 6(1)(a) of the Cable Television Network Rules, 1994. “Good taste”, obviously, is neither defined nor susceptible to being defined, and as such, whether or not a programme conforms to this Rule is entirely subjective.

Thus, the laws governing copyright and content may find themselves not working in tandem — while copyright law may grant the right to publish creative works, content laws may penalise publication (or, at least, make it illegal). The result is that when restraining the publication of a creative work through the copyright route is not feasible, it may be possible to restrain publication through the creative application of content laws.

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

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