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.

7 July 2016

Art, Acclaim, and Legal Protection

Unedited first draft.

If one were to look through Indian case law protecting the right of artists and authors to express themselves and to have their works protected, what would emerge is a clear judicial tendency to acknowledge the reputation of the artist or the author in question: M F Hussain, Amarnath Sehgal, and, most recently, Perumal Murugan. This is a tendency which not only expresses itself in the realm of free speech law simpliciter but also in relation to the moral rights component of copyright law which is, it could conceivably be argued, a subset of free speech law.

The question which arises looking at precedent is whether a work by an unknown and unacknowledged creator would be treated in the same manner as one by an established and renowned creator: thus far, there doesn’t seem to be a great deal of so-called ‘landmark’ case law which might help to answer that question definitively one way or the other. The dearth of case law is, of course, utterly unsurprising: invoking the legal system or defending oneself through it is usually expensive and difficult. The unestablished creator is likely far more susceptible to having his works suppressed extra-judicially for lack of legal support than the established creator.

There appear to be no statistics available to determine just how widespread the extra-judicial suppression of works of art and literature is. However, going by anecdata, considering how wide the spectrum of Indian content laws which can potentially be used to assail content is, and factoring in the knowledge that even the well-established and much-moneyed may engage in pre-publication self-censorship to try to avoid having content laws invoked against themselves, it isn’t entirely absurd to suspect that it is unestablished creators who probably bear the brunt of questionable attempts to suppress their work. And that, of course, doesn’t even take into consideration entirely illegal threats which creators may face: vandalism of their work and property, or assault of their person, amongst others.

State protection to a besieged creator from sections of a disgruntled populace may not always be ideal as, for example, a reading of the Madras High Court judgment in Perumal Murugan appears to indicate. What happens in entirely undocumented cases which the state may not even be aware of is anyone’s guess.

It is in this context that the repeated recognition of the reputation of the creator who comes to judicial attention is somewhat troubling. If it is only intended to be a recognition of how acclaimed the relevant creator is, that is not problematic. However, if case law is read by others to mean that a creator needs must be acclaimed to have his rights and works protected, it could potentially put the unestablished creator at a distinct disadvantage. Further, it is not just the individual creator who could suffer but entire genres of unestablished or disdained art and literature: the baroque, it is worth remembering, was once disdained as the absurd. As for mere disdain: it is often a class-informed and subjective opinion that renders a creative work or, perhaps, the entire genre to which it belongs worthy of disdain.

No law says that acclaim is a prerequisite for a creator or his works to be eligible for legal protection. In fact, such a position would be legally unsupportable. However, the laws which by which the legality of content is determined are capable to being subjectively interpreted, and unfortunately this means that there exists scope for acclaim being a factor which is, perhaps subconsciously, taken into consideration whilst according or considering the accordance of legal protection to creators and their works.

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

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