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.

18 January 2012

A Brief Compilation of Indian Content Law

    This post is from a series of posts dealing with basic Indian content laws. Other posts from the series can be accessed at Content101.

Content law is a field of law unto itself, and the Indian corpus juris contains over twenty statutes governing content. In addition to statutory law, case law and tort law also govern content – for example, the right to privacy (and the corresponding prohibition on the publication of content invasive of privacy) finds its roots not only in constitutional law but also in tort law.

Most Indian content laws are not directed specifically at online content. However, they are, for the most part, applicable to online content (even though recent debates may lead one to believe that the legal regulation of content in India is non-existent). These laws, however, do not focus on 'pre-screening'; as with most laws, they prescribe sanctions upon the publication etc. of illegal content.

A compilation of some of India’s content laws which affect free speech has been appended below; it is only intended to superficially (and non-authoritatively) look at the field:

1. The Advertising Standards Council of India Guidelines
a. An ASCI letter requires print ad Supers (communicating disclaimers, qualifications etc. in an advertisement) to be a minimum 6 and 7 points for 100 cc or less and more than 100 column centimetre or equivalent size ads respectively.
b. The ASCI Self-Regulation Code is an exhaustive code dealing with the content of advertisements, requiring them, among other things, to be truthful, etc.. Although it is not a law, it has been granted the force of law through case law.

2. The Cable Television Networks (Regulation) Act, 1995
The CTN Act applies to cable services defined in Section 2(b) as ‘the transmission by cables of programmes including re-transmission by cables of any broadcast television signals’. Although it has not thus far been tested in the context of IPTV, there appears to be no reason why it cannot apply to IPTV.
The Act requires all programmes to conform to the Programme Code in Rule 6 of the Cable Television Networks Rules, 1994, while all advertisements must conform to the Advertising Code in Rule 7 of the same Rules. Both these codes cover the entire spectrum of potentially objectionable content, and, among other prohibitions, state that content must not be offensive.

3. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003
The CTP Act prohibits any person controlling a medium may cause cigarettes/tobacco products to be advertised through the medium, and disallows all persons from participating in any advertisement promoting CTP use/consumption. Doing so is a criminal offence.

4. The Cinematograph Act, 1952
The Guidelines for Certification of Films for Public Exhibition under this Act prohibit the portrayals of gratuitous violence, abuse, defamatory content, children being subjected to any form of child abuse, modus operandi of criminals, content likely to incite the commission of offences, gratuitous violence, any double entendre, the degradation of women, sexual perversions, etc..

5. The Civil Defence Act, 1968
This Act prohibits the printing/publication of any newspaper, news-sheet, book/other document containing matters prejudicial to civil defence. Doing so is a criminal offence.

6. The Commission of Sati (Prevention) Act, 1987
This Act prohibits any act for the glorification of sati.

7. The Constitution of India
Although Article 19(2) does not directly limit the right to freedom of speech and expression of citizens, it recognises that the fact that the right to freedom of speech and expression being a fundamental right does not mean that it can be used to hold invalid laws which may be passed restricting the right where those laws are passed in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to an offence.

8. The Consumer Protection Act, 1986
This Act prohibits the making of false or misleading facts disparaging the goods, services or trade of another person, etc., or permitting publication of advertisements, for the sale or supply at a bargain price of goods or services that are not intended to be offered for sale or supply at the bargain price, or allowing a false impression that something is free to be created, or allowing contest/lottery etc. to be conducted to promote a product/business interest.

9. The Contempt of Courts Act, 1971
Under this Act, criminal contempt is the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise – and which is untruthful or does not fall within the scope of fair reporting) of any matter or the doing of any other act whatsoever which:
(i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

10. The Copyright Act, 1957
This Act makes the unauthorised exercise of copyright (i.e. copyright infringement) both a criminal and a civil offence. In addition to this, the Act prohibits the violation of the performers’ right, the broadcast reproduction right, and the moral rights of authors.
Further, a sound recording/video films, when published, must display the name and the address of the person who has made the sound record, the owner of the copyright, and the year of its first publication (under Section 52A of the Act); failure to mention these items is a criminal offence.

11. The Dowry Prohibition Act, 1961
This Act prohibits advertisements relating to dowry.

12. The Drugs and Cosmetics Act, 1940
This Act prohibits the use of a test or analysis made by the Central Drugs Laboratory or by a Government Analyst, or any extract from such report, to advertise any drug. Doing so is a criminal offence.

13. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954
This Act, inter alia, prohibits:
i. the advertisement of certain drugs for treatment of certain diseases and disorders;
ii. misleading advertisements relating to drugs; and
iii. the advertisement of magic remedies for treatment of certain diseases and disorders.

14. The Emblems and Names (Prevention of Improper Use) Act, 1950
This Act prohibits the unauthorised use of specified national emblems for the purpose of any trade, business, calling/profession/in the title of any patent/in any trade mark/design.

15. The Geneva Convention Act, 1960
This Act prohibits the unauthorised use of the Red Cross / Geneva Cross, the Red Crescent, the Red Lion and Sun, the heraldic emblem of the Swiss Confederation (comprising a white or silver cross with vertical and horizontal arms of the same length against a red background), as well as any design or wording which could be mistaken for these emblems or which could be construed as a reference to them.

16. The Human Rights Act, 1993
The Human Rights Commissions under this Act have a mandate to perform those functions they consider necessary to protect human rights – this may be interpreted to include sending Notices to entities whose content allegedly violates human rights, or where the making of content violates human rights.

17. The Indecent Representation of Women (Prohibition) Act, 1986
As its name suggests, this Act prohibits the depiction and distribution/sale of the figure of a woman so as to be indecent/derogatory, which or denigrates women, or is likely to deprave, corrupt or injure public morality. The indecent representation of women is a criminal offence.

18. The Indian Penal Code, 1860
The IPC contains provisions dealing with sedition, obscenity, blasphemy, protecting rape victims' identities, and defamation, (among other provisions), which may be used to sanction those who generate and circulate objectionable content. These provisions include Sections 124A, 153A, 153B, 228A, 292, 293, 295A, 499, 500, 501, 505 and 509 of the IPC.

19. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992
This Act prohibits advertisements for the distribution, sale or supply of infant milk substitutes, feeding bottles or infant foods, as specified under the Act. It also contains requirements dealing with packaging and distribution of the relevant products.

20a. The Information Technology Act, 2000
This Act, inter alia, prohibits:
i. The transmission of obscene electronic content including sexually explicit material and child pornography;
ii. Sending false information to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will;
iii. Sending spam/phishing, etc.: Sending messages/information to cause annoyance inconvenience;
iv. The transmission of image of a private area of any person without their consent, under circumstances violating the privacy of that person.

20b. The Information Technology (Intermediaries Guidelines) Rules, 2011, also prohibits content which is harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of others' privacy, hateful, ethnically objectionable, disparaging, encouraging money laundering/gambling, or unlawful in any manner/opposed to any law for the time being in force – or which is threatening to the unity, integrity, defence security, sovereignty of the country – or which infringes any IP right.

21. The Insurance Regulatory and Development Authority (Insurance Advertisements and Disclosure) Regulations, 2000
These regulations require insurance companies to disclose in advertisements: the full particulars of the insurance company, along with the benefits, the form number of the policy and the type of coverage. Further, every insurer's web site or portal must disclose the site’s specific policies, the privacy of personal information for the protection of both its own businesses and its consumers, along with the their registration/license numbers.

22. The Juvenile Justice Act, 2000
This Act prohibits publishing a report with the name, picture, or particulars which could lead to the identification of any juvenile involved in any proceeding under the Juvenile Justice Act (subject to certain exceptions).

23. The Lotteries (Regulation) Act, 1998
This Act prohibits the promotion of lotteries which are considered to be ‘illegal’ lotteries in terms of the Act.

24. The Official Secrets Act, 1923
This Act prohibits the publication or communication to any person any secret official code or pass word/any sketch, plan, model, article/note/document/information which is calculated to be/might be/is intended to be, directly or indirectly, useful to an enemy – which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States.

The provisions of the Official Secrets Act are supported by various statutes which prohibit certain persons from speaking to the press, contributing to books etc. except in the course of official duty. These supporting statutes include: the Army Act, 1950 [Section 21], the Intelligence Organisations (Restriction of Rights) Act, 1985 [Sections 3(1)(c) and (d)], the National Security Guard Act, 1986 [Section 12(1)(c)], the Navy Act, 1957 [Section 19(3)], the Police Forces (Restriction Of Rights) Act, 1966 [Section 3(1)(c)].

25. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
This Act prohibits advertisements relating to pre-conception and pre-natal determination of sex in any form.

26. The Prevention of Insults to National Honour Act, 1971
This Act, inter alia, prohibits bringing into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof. Doing so is a criminal offence.

27. The Protection of Children from Sexual Offences Act, 2012
Section 23, inter alia, prohibits the disclosure of the identities of children.

28. The Prize Competition Act, 1955
This Act generally requires that a licence be obtained to conduct a prize competition, depending on the value of the prize. Naturally, this affects the publication of any material relating to the competition. It prohibits advertising any prize competition in contravention of the provisions of the Act .

29. The Representation of the People Act, 1951
This Act prohibits the public display/propagation of election matters in a polling area during the 48 hours before the election (by means of cinematograph, television or other similar apparatus).

30. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
This Act prohibits intentional insult or intimidation with intent to humiliate a member of
a Scheduled Caste or a Scheduled Tribe in any place within public view.

31. The Transplantation of Human Organs Act, 1994
This Act prohibits commercial dealings in human organs including any advertisement therefor.

32. The Trade Marks Act, 1999
This Act not only prohibits the infringement of a trademark, but also infringement by way of advertisement including a comparative advertisement, in certain circumstances.

33. The Young Persons (Harmful Publications) Act, 1956
This Act, inter alia, prohibits the printing, advertising, sale, hire, distribution or public exhibition of a harmful publications in certain circumstances – a ‘harmful publication’ means any book, magazine, pamphlet, etc. which consists of stories, whether or not illustrated, portraying offences, cruel/violent acts, repulsive/horrible incidents as may corrupt a young person in any way.


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

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