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Copyright Law, Balance, and the Expression of Non-Partisanship

[Note (added on December 26, 2016): In the T-Series/MySpace case, a Division Bench of the Delhi High Court indicated its enthusiasm for a balanced approach to copyright; Para. 67 of its decision dated December 23, 2016, included the following text: "The court has – as always to tread a delicate balance between the Scylla of over protection (of intellectual property and privileging it in an overbearing manner) and the Charybdis of ineffective or under-protection, of IP rights: both of which chill and kill creativity, in the final analysis, harmful to society." This is one of (at least) two recent decisions in which the Delhi High Court has displayed a progressive approach to techno-legal issues, and attempted to ensure that persons do not necessarily become liable for illegal content posted by others. While the T-Series/MySpace matter dealt with intermediary liability and copyright, the other matter, Ashish Bhalla, dealt with the liability of WhatsApp group administrators and defamation.]

The Indian copyright statute has, from the time of its earliest avatar in 1847, been a balancing act in and of itself. While it ostensibly articulates an author’s right, the right has always been suspiciously amenable to being exploited by commercial, if not corporate, interests acting in ways that do not necessarily align with the best interest of authors (which inequity, in no small measure, was the impetus for the passing of the 2012 amendment to the Indian Copyright Act, 1957, which governs the subject in India).

However, apart from the tension between authors and publishers which, it must be said, has more to do with realpolitik than with the letter of the law, there is also a separate clash of interests which the copyright statute attempts to address head on: that between ‘creators’ and consumers. Alliterative though it may be, the clash is not so much between creators and consumers per se, but between copyright owners, who may be the creators of copyrighted works, and the consumers of those works.

Indian copyright law protects specific kinds of works listed in Section 14 of its Copyright Act, and grants to the owners of those works the almost exclusive right to exploit them for a long but limited period of time. The works protected by the law include literary, dramatic, musical, and artistic works, as well as cinematograph films and sound recordings, provided they satisfy the statutory criteria for protectability. As a general rule, copyright subsists in protectable works from the moment of their creation, and it vests in the creators or authors of the works (although this general rule is subject to a virtual deluge of exceptions particularly in relation to commissioned works and works created by persons in their capacity as employees).

Copyright too is not an amorphous mass but is delineated into specific rights which have increased in number over time: the earliest copyright laws concerned themselves with reproduction alone although, over time, they have also come to contemplate rights as disparate as the rights to adapt and translate works. Not all rights are recognised by statute in relation to each kind of work, and the specific exclusive rights of owners associated with the various kinds of protected works are listed in Section 14 of the Indian Copyright Act which explains the meaning of copyright.

The exclusive rights of owners are, however, not absolute even during the subsistence of copyright: the law recognises that works and the public interest may not be best served by being left solely to the whims of copyright owners and, as such, it includes within the copyright statute itself mechanisms through which the hold of copyright owners on the works they own may be loosened.

Amongst the provisions which derogate from the exclusive rights of copyright owners are compulsory and statutory licences, as well as exceptions to copyright infringement. It is the latter which are probably of most interest to the average consumer of copyrighted works: in effect, the exceptions allow consumers to exploit copyrighted works without the consent of copyright owners within the circumstances which they (that is, the exceptions) contemplate. Technically, they do so not by allowing the unauthorised use of copyrighted works outright but by providing consumers who act within the limits contemplated by the exceptions a valid defence to copyright infringement which enables them to avoid having to shoulder legal liability for infringement.

These exceptions to copyright infringement are listed in Section 52 of the Copyright Act which deals with issues such as access to law (amongst other things, in the form of statutes and judgments), access to copyrighted works for the purpose of education, access to culture, and the facilitation of business (by attempting to ensure that neither copyright nor the exceptions to copyright infringement impede the flow of trade and commerce). The exceptions were significantly amended through the 2012 amendment to the statute through both a change in syntax and, crucially, through substantive amendment which, in many cases, broadened them especially where there were clear public policy imperatives to do so.

Although Indian case law refers to both US law and international law for interpretive purposes, Section 52 of the Copyright Act begins by allowing fair dealing (distinct from the ‘fair use’ of US copyright law) in arguably vague terms, and then goes on, in effect, to allow specific acts in relation to specific works for specified purposes. The degree of specificity is so high in the later acts enumerated in the Section 52 exceptions to copyright infringement that fairness, although not explicitly mentioned, is manifest in the structure of the law itself. Considering that Section 52 lists specific acts and circumstances in which liability for copyright infringement may be avoided (instead of listing broad fair use principles as US law does in 17 USC § 107), it could be said that Indian law is relatively uncompromising in its determination of whether or not liability for copyright infringement is attracted with reference to Section 52 of its Copyright Act. Alternatively, it could be argued that Indian law relatively clear given the high degree of specificity in most of its exceptions to copyright infringement.

There have been a number of judgments in which Indian courts have recognised that there exists a statutory shield to protect third parties from legal liability for the unauthorised use of copyrighted content in certain specified circumstances. The latest such matter which the Supreme Court has disposed of appears to be Civil Appeal 10245/2014 in which the Court reiterated that the raw text of judgments may be published, sold or distributed; it had earlier said so in EBC v. DB Modak. This, of course, is in keeping with the public policy aim of attempting to ensure that the law is publicly accessible. The aim is supported by mechanisms in Section 52 of the Copyright Act which lay down how it may be realised, and it has been upheld by the judiciary.

In broader terms, however, Section 52 is an expression of the legislative attempt to the balance rights and liabilities of those who engage with copyrightable content in whatever capacity; it attempts to ensure that the creators of content are not taken for granted, and that consumers are not unfairly kept from accessing content. As such, Section 52 is one of the key provisions in the Indian copyright statute: it is primarily through this Section that the legislature has expressed its desire to have copyright be a ‘balanced’ non-partisan right which, with a hand intended to be even, encourages scholarship, creativity, and access to law. And does not impede trade, reportage, or research. All of which, put together, helps constitute a liberal and progressive society (or, at any rate, a society which is not forced to stagnate due to insurmountable legal restrictions which prevent access to contemporary content).

(This post is by Nandita Saikia and was first published at IN Content Law.)