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.

8 June 2012

Indian Copyright Amendments and the Notion of 'Balance'

Indian copyright law has had an interesting history. It is, like many other Indian laws, a law which way imported from England. However, — unlike most other imported Indian laws — it was not a ‘necessary’ import. Indeed, Indian society (and human civilisation itself) survived and, in fact, thrived for millennia completely oblivious to the modern notion of copyright.
What created the version of modern copyright which India accepted from England wasn’t quite so much ‘necessity’ but ‘corporate interest’ which was born in the eighteenth century of the peculiar political and economic circumstances which England found itself in at the time.

The monopoly of the Company of Stationers had all but disappeared — the English Civil War had resulted in censorship no longer being of particular interest to the very government (which had previously used the Company to impose de facto censorship by granting it a monopoly on printing books). And the imminent loss of its monopoly (as a result of decreased governmental interest in censorship) propelled the Company to create the notion of a right which was ostensibly an author’s right — a transferable right which not only granted an author the exclusive right to print his books, but which, in pre-Internet times, also had to be transferred to a printer (to be meaningful as most authors did not have the resources to print and distribute their own books).

It was this right which effectively protected corporate interests that was first introduced into India via an 1847 statute which has now been relegated to footnotes in academic texts. Pertinently, though, despite the fact that the introduction of copyright into India occurred over 160 years ago, its introduction was still almost a century and a half after the 1709/1710 introduction of the Statute of Anne in England. This meant that by the time copyright was introduced into India, it was a well-developed law, and not one which was being extensively debated. Its introduction into India was unquestioned, and it was not specifically suited to Indian circumstances.

In time, the apparently unconsidered importation of the law into India would highlight that it was not especially well suited to the country, and in fact, the British Government in India went so far as to exploit a loophole in the 1911 English Copyright Act to ensure that a full translation right was not recognised under Indian copyright law. As such, in India, apparently, to encourage translations of works into various domestic languages (presumably for the benefit of consumers), authors were only accorded a limited right of translation — thus balancing their right with the right of consumers to be able to access books.

This balance of rights, was said — in Parliamentary debates following India’s independence — to have led some of India’s most well-known writers into penury as translations of their books were sold without their receiving any royalties. And it was considerations such as this which resulted in the reframing of Indian copyright law after the end of the Raj in a manner which, inter alia, granted a full translation right to author-owners (although attempts have been made to ensure access to copyrighted works by consumers through the passing of a number compulsory licences at various times since 1957 — the year in which the reframed version of Indian law was first seen.

This reframed version of Indian law, referred to as the Indian Copyright Act, 1957, is the statute which is still in force. Although it finds its roots in the copyright tradition of England, it is a home-grown law. Unfortunately, it is anything but a model of clarity, and has also often proved to be extremely time-sensitive as far as its virtually complete inability to specifically deal with new technologies is concerned.

Over the years, the Indian Copyright Act has been amended several times to effect a variety of changes ranging from the incorporation of compulsory licences (in consumer interest) to the extension of copyright terms (which is ostensibly in the interest of authors but which could also be considered to be in furtherance of corporate interests). As such, given that the law attempts to cater to every available interest, it could be argued that one of the main driving forces underlying the various amendments to the Indian copyright statute has been to ensure that it is a balanced law which protects the interests of all the stakeholders associated with the creative industries — authors, consumers, and corporate distributors who take works from authors to consumers.

This certainly seems to be the intention underlying the amendments which were made to the Indian copyright statute in May 2012. These amendments include:
  • The creation of a safe harbour, and the accordance of protection to digital rights management systems (mainly for the benefit of corporate entities);
  • Provisions to ensure access to copyrighted works by persons with disabilities, and expansions to ‘fair dealing’ allowing for the use of copyrighted works without a licence (mainly for the benefit of consumers); and
  • A prohibition on assignments of the right to exploit copyrighted works using ‘future technologies’ (for the benefit of authors).

In addition to this, the 2012 amendments contain provisions which have the potential to completely change the copyright contract landscape of the film and music industries (and make them more easily navigable by those who are perceived to be treated unjustly) by not only protecting the rights of certain authors to royalty, but also by ensuring fairness in music licensing via the introduction of a statutory licence for broadcasting.

The thrust towards creating a balance in the rights of the interested parties can also be seen in the new provisions in the Copyright Act which deal with technology. For example:
  • Although, under the 2012 amendments, intermediaries do have a safe harbour in relation to acts of infringement committed by users on their websites, they lose the safe harbour if they continue to make accessible content which they have good reason to believe is infringing — thus, intermediary concerns have been addressed and owners’ rights protected; and
  • In the provisions making the circumvention of effective technological measures illegal, the statute clearly states that for illegality to kick in, the technological protection measures must have been applied to protect rights granted by the Act, and their circumvention must have been for the purpose of infringing rights — thus, by not making circumvention per se illegal, consumer rights are protected as are legitimate digital rights management systems implemented by copyright owners.

Thus, in conclusion, it would appear possible to convincingly argue that the underlying rationale of the Indian Copyright Act, and the various amendments which have been made to it over the years, is to attempt to ensure that there be as level a playing field as possible for the various stakeholders involved in the creative industries whether they be authors, distributors, or consumers.

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

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