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.

23 March 2016

Equity and the Reportage of Human Rights Violations

There’s plenty in the world that is obscene. It could be argued, however, that the popular and accepted interpretation of obscenity in the Indian Penal Code misses the point entirely: that the understanding of what’s obscene has, or should have, little to do with explicit content presumed to be ‘lascivious’ and to have the tendency to ‘deprave and corrupt’ those who are exposed to it. On the contrary, it could – and maybe should – be argued that the only obscenity which we should be concerned about is that which relates to human rights violations in whatever form, and, perhaps, far from being illegal to disseminate content reporting or featuring the truly obscene, perhaps it should be illegal not to do so.

Of course, that’s an argument which has little solid basis in law. Our understanding of obscenity is what it is, based solidly on Victorian puritanism, and now supported by both freshly-drafted statute and extensive jurisprudence correlating it with the explicit. Nonetheless, even though there are few laws which explicate how human rights violations whether of caste discrimination or violence against women should be featured in disseminated content, there are, almost unarguably, questions which arise.

Indian content laws, scattered across some thirty different statutes, and contained in remarkably similar guidelines which pertain to film, television and online content, are vague: so vague that it’s sometimes difficult to ascertain what they would and would not permit. Although they are well-intentioned enough with their prohibitions against showing indecent representations of women and prohibiting the dissemination of images which would degrade women, they offer no concrete guidance about what would not be considered to be derogatory.

Added to the morass of statutory and subordinate law is case law which, in essence, does not absolutely prohibit explicit and graphic content provided the dissemination of the content can be justified possibly by having a discernible nexus to the issue at hand and by highlighting a social ill. In and of itself, that cannot easily be found fault with (assuming, of course, one doesn’t get into a discussion of why content should be regulated at all).

The problem with law as it exists is not so much that it doesn’t recognise that content can be problematic or that it can denigrate persons but that it doesn’t do a great deal to proactively specify what sort of content would be acceptable – the law tends to be proscriptive and not prescriptive. And, as such, it isn’t entirely surprising that extremely graphic images of persons subject to human rights violations routinely appear in the media.

There are, of course, two aspects to the issue; two aspects which bear close consideration, at any rate: one of consent and the other of dignity. Consider the case of women who have been raped. In theory, their identity is protected by default under Section 228A of the Indian Penal Code although they may, if competent, consent to the disclosure of their identity. Technically, if the woman is dead or of ‘unsound mind’, her next of kin cannot consent to have her identity disclosed directly to the media; their consent is to be granted to a social welfare institution or organisation recognised by the government for the purpose. This, of course, effectively takes the narrative out of the hands of the family of the woman who has been raped.

On the other hand, when it comes to rape reportage or depiction itself, there is very little that hampers the publication of explicit and graphic images provided identities are not disclosed and there is requisite ‘justification’. And, so, one could wind up seeing images of women raped (possibly with a patch over their eyes, in token recognition of Section 228A, IPC) sometimes in positions which it is hard to argue accord them any dignity. There is, almost undeniably, the angle of class which comes into play as well: as a general rule rich women are not portrayed in particularly vulnerable positions. Rape aside, it is the images of poor women one sees most often in disarray with SocMed support invoking the need to supposedly ‘shock the public conscience’ so that action is taken – never mind that it has never been established that action is taken because of graphic images having been disseminated.

Either way, in respect of both consent and dignity, according the person who has been subject to a violation control of the narrative of their own story is not what is, in effect, most important. Between paternalistic law, and the press which does not always act sensitively, control of the narrative is easily wrested out of the hands of the person violated and, when the media steps in, conceivably moulded to best suit the gaze of a possibly voyeuristic audience.

There is no convincing justification explaining why a person who has been once violated should be subject to a secondary violation through reportage. Unfortunately, there are loopholes in the law which make it difficult to guarantee the prevention of secondary violations; perhaps it’s time to discuss how best to plug them.

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


Addendum:

May 5, 2017:


Catching up on the reportage of the issue, and, of all the legal concerns attendant to photojournalism focusing on prostituted girls, plagiarism, I'd imagine, is a non-issue.
A few quick points:

  • If there's plagiarism involved, that's not necessarily illegal. Perhaps unethical. Likely against social expectations but pales in imp compared to other actual issues/crimes.
  • Leaving ethics aside, focusing on the law alone:
    1. a If you're photographing a minor, how is consent from the minor valid? Consent to contract requires you to be competent. A minor's consent is void ab initio.
    2. b An adult buying sex cannot have a minor consent. Sex with a minor if one's an adult is almost definitely rape. There are no two ways about it.
    3. c A photographer cannot get valid consent from a minor for the purposes of a contract to photograph her. Leave aside purpose, content, and context for now: minors can't consent.
    4. d If you've seen a minor raped, you likely have a duty to report it to auth, failure may be an offence. Publicising it isn't reporting.
    5. e Publishing or publicizing explicit content featuring the rape of minors is likely illegal whether it's as porn or at an art gallery.
    6. f Not for nothing, it is possible that electronically accessing and viewing explicit images of children being raped is itself illegal.
    7. g It is almost always illegal to reveal the identities of women who've been raped. A photograph where her face is visible reveals ID. 

...I've put about two min of thought into thinking of photojournalism featuring prostituted girls. Of all the concerns there are — def more than immediately struck me — possible plagiarism doesn't rate particularly high up on the list. Perhaps worth fixing priorities.
(Edited and cross-posted from Twitter.)

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