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.

10 March 2014

Free Speech in Shades of Grey

    Over the years, I’ve often reviewed content (in books, essays, films and television programmes) from a legal point of view to attempt to ensure their compliance with the standards laid down by India’s many content laws. I’ve never commented on any individual work (as far as I remember), and do not intend to have this post be a comment on any specific work. I do, however, find the current discussions on free speech interesting, and this post is an attempt to clarify the rather jumbled thoughts in my own mind. It’s a first, unedited draft, by the way.

When it comes to free speech, there are a number of different questions which come into play: ethical, aesthetic and legal. Questions of what the role of the media should be. How the public right to know is (or should be) balanced against an individual’s right to privacy or a person’s proprietary right to information. Who gets to determine what public discourse should be. How limitations on free speech could in fact facilitate the violation of human rights.

None of these questions are easy to grapple with, and all of them demand reasonably nuanced responses. Unfortunately, the free speech discourse in India appears to incredibly polarised —perhaps an echo of the country’s political situation— with there being very little ground for anything apart from sloganeering which leaves it almost impossible to find a middle ground.

Take the subject of religious sensitivities (allegedly) being offended by the content of assorted works: there is the religious Right, or some fraction of the religious Right, which invariably seems to (erroneously) claim to speak for all those who follow a specific religion (which it claims to represent) en masse, and which appears to find any narrative relating to that religion that does not fit in with its own line of thought offensive. On the other hand, there is the supposedly left-liberal academia which seems to find the sensitivity of the religious Right offensive in itself. Neither side seems willing to give an inch, with the each side seeming to find the other benighted. And those who cannot completely identify with either side —I don’t, especially when it comes to the Hindu Right— invariably find themselves caught in the cross-fire.

Indian ‘blasphemy’ law is reasonably clear; it does not as a general rule go out of its way to protect the sensitivities of the hyper-sensitive, and courts have, with reasonable consistency, come down in favour of free speech especially in scholarly works. That said, there doesn’t seem to be a convincing argument to be made to the effect that having the law on one’s side with regard to the right to exercise free speech automatically means that one needs to or should exercise the right to free speech in a manner which reveals old colonial prejudices or which is downright condescending.

It is usually possible to frame sentences in a manner which is not profoundly irritating to a believer of a particular religion, and there appears to be no good reason to explain why one shouldn’t make the effort not to be annoying. Country-specific editions are published the world over, even if it is just to remove slang with which the inhabitants of a specific country may be unfamiliar and replace it with familiar terms. When it comes to works such as books, it would seem that there is no good reason why a foreign edition should merely be reprinted in India without its being edited, as a norm, to turn it into an Indian-edition with content meant for Indian audiences. This is, of course, not a legal requirement, but apart from its being an act of prudence (to the extent that it would be less like waving a red flag before the hyper-sensitive who are enthusiastic about restraining free speech) it could be argued that it is simply an act of politeness.

Of course, impoliteness should not be grounds for attempting to restrain free speech, and (going by precedent) it is unlikely that Indian courts would consider it to be a valid ground upon which to restrain free speech. But a refusal to so much as acknowledge that believers have the right to be upset makes for as much rigidity that of as those who claim to be offended and seek to restrain free speech, particularly since any mention of concerns about the content of speech is often termed as being anti-free-speech.

That said, concerns about the content of speech lie not only in regard to left-liberal versions but also in regard to the versions of the religious Right — and this is seen across the spectrum of creative works. One issue which comes up with unsurprising frequency (with reference to Hinduism) is, of course, that of the portrayal of goddesses in the nude which, also unsurprisingly, the Hindu Right tends to oppose and the left supports for reasons of free speech. There is, it would appear, no room for the possibility (acknowledged by either side) that support of such nude art could be grounded in religion, that an unveiled appearance or portrayal of the divine or before the divine could be a form of worship in itself.

This polarity in world views is, of course, not limited to subjects which directly relate to religion. It finds its way into subjects which have little do with religion like the proliferation of pornography which is opposed by many on grounds of ‘despoiling religion and culture’ and supported by others on grounds of free speech. Here too, questions of legality and propriety converge. The law relating to pornography, supported as it is by a plethora of sections in various statutes, is reasonably clear. The propriety of the free speech argument is, however, not as clear, especially since the issue of violence against women has been co-opted to form part of the sloganeering against pornography.

That there is no concrete evidence to support a claim that ‘porn causes rape’ is often ignored by those who make the claim, and those against pornography seem to mesh it with other amorphous claims about religion and culture often making for the unusual spectacle of conservative sections of diverse religions all agreeing with each other. And, the claim of porn causing rape is, quite rightly, trashed by free speech advocates who often talk about pornography being a free speech issue.

What both sides to the debate in India seem to miss though is that while porn may or may not cause rape (as the jury’s still out on that one), porn itself could be rape. And while the law may not penalise adults watching other adults in porn, the fact of the matter is that, as a general rule, consumers of porn have absolutely no idea of what they are watching with regard to the circumstances under which the porn they watch has been created.

Although it is not directly a legal issue, there is the ethical question of whether watching someone possibly being raped for one’s own entertainment is acceptable — this is a question which free speech advocates seem to tend to ignore in relation to porn as does the religious right (which is, in any case, hardly known for its sensitivities towards ‘bad women’ in the sex industry).

Women’s rights do, nonetheless, make for convenient rhetoric. They tend to be pulled into discussion when anti-free-speech provisions of the law which could be considered to be draconian are opposed (such as Section 66A of the IT Act), and they make for good press — laws which restrict free speech are supposedly necessary for their ability for restrain the abuse of women. Unfortunately, women’s rights have a tendency to get short shrift when women complain about violence. There are fears about the possibility of content laws being used to silence those who complain about abuse, and here too, the discussion is polarised: in broad strokes it could be summarised as some supporting women’s right to speak and others saying, “Shut up and go to the cops if you have something to say.” While one position ignores the possibility of an alleged abuser being unfairly defamed, the other reveals a startling ignorance of the dynamics of abuse.

There are no perfect solutions when it comes to free speech issues — all of them invariably require a balancing act involving several competing and complementary issues, as the case may be, both legal and non-legal, and the current polarity in almost every discussion involving free speech is unlikely to facilitate any workable solution to any issue ever being reached. There's little doubt that Indian content laws urgently need to be overhauled but, even so, perhaps it’s time to consciously consider free speech in a multitude of shades of grey; there’s very little that is black and white.

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

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