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.

14 May 2016

Comments on the National IPR Policy 2016

The Union Cabinet approved the National IPR Policy on May 12, 2016. Described as a 'vision document' by the Press Information Bureau, the policy seems extraordinary in its almost single-minded focus on the monetisation of intellectual property. Almost every suggestion made in the document seems to be in aid of monetisation to the extent that a prĂ©cis of it could easily read: Spread IP awareness, increase efficiency, make money.

Unfortunately, in its pursuit of monetisation, the policy seems not to deeply consider the public interest: there is little mention of how intellectual property rights could or should be balanced against, for example, the public's right of fair use, or what should be the public's right to access research funded by taxpayers. Intellectual property rights discourse in the country has, of course, not considered the public interest in any depth except perhaps in relation to pharmaceuticals, and this is reflected in the policy which expresses an intention to: 'Take strong measures against attempts to treat generic drugs as spurious or counterfeit; Undertake stringent measures to curb manufacture and sale of misbranded, adulterated and spurious drugs,' but says little apart from this which could speak to public interest.

Further, although the policy repeatedly speaks of commercialisation, it fails to address modes of commercialisation in a manner which would privilege the rights and requirements of authors and inventors: it isn't at all clear from the policy that monetisation is intended to be structured in a manner which does not have the effect of privileging assorted middlemen. This is of particular concern since even in instances where the express intention of a text has been to benefit authors (such as in the case of the 2012 amendments to the Copyright Act), it has not automatically followed that the intended beneficiaries have actually benefitted in any tangible sense.

In fact, when it comes to specifics, the policy seems to fall short: it clearly envisages increased efficiency at intellectual property offices, and such things as the incentivisation of IP generation at universities and research institutions. It is far from clear that the mechanisms through which it plans to achieve this have been well thought out though. For example, it plans to 'encourage researchers in public funded academic and R&D institutions in IPR creation by linking it with research funding & career progression'; this arguably echoes suggestions which are intermittently made to link teacher pay to students' test results, and does not appear to have any certainty of efficacy.

In terms of IP protection too, the policy seems to lack a sensible and implementable plan of action. Amongst the steps it intends to take, oddly enough, 'to have strong and effective IPR laws, which balance the interests of rights owners with larger public interest', is one which states: 'Indian Cinematography Act, 1952 may be suitably amended to provide for penal provisions for illegal duplication of films,' despite the fact that the Copyright Act already contains provisions to counter the illegal duplication of films, and, even more oddly, despite the fact that almost immediately after, the policy speaks of the removal of ambiguities and inconsistencies, if any, between IP laws and other laws.

There's a great deal in the policy which one can't argue with: it would be fantastic to streamline processes to acquire intellectual property rights, to have disputes adjudicated more efficiently, and to have grants of rights be both digitised and searchable. Monetisation, too, is no bad thing. That said, there are areas of concern: going by the policy, the government appears to intend to 'become signatory to those treaties which India has de facto implemented to enable it to participate in their decision making process'. There is no indication within the policy of which treaties the government has in mind or explanation of why the provided reason, by itself, might be good enough to accede to the treaties in question.

The policy is neither perfect nor all that's terrible. Perhaps the fact that it's a 'vision document' and not a plan of action set in stone is enough reason to hope that what's less than ideal in it doesn't come to be.

(This post is by Nandita Saikia. It was first published at Indian Copyright and is based on tweets first published at twitter.com/nsaikia)

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