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Copyright and Access to the Law

A PIL in the Delhi High Court has reportedly brought up access to law and copyright. Indian law is, of course, not blind to the issue and lists a number of exceptions to copyright infringement in Section 52 of the 1957 Indian Copyright Act which, in their implementation, allow both for the functioning of the law and for access to law.

    Access to Case Law
    Any work may be reproduced for either a judicial proceeding or a report of a judicial proceeding per Section 52(1)(d), or in a legally-made or supplied certified copy per Section 52(1)(f). The latter clause doesn’t explicitly mention publication but hints at its permissibility by mentioning ‘supply’ where there exists a law beyond the clause itself that allows for it.
    This is in consonance with Section 52(1)(q)(iv) which allows for the reproduction or publication of ‘any judgment or order of a court, Tribunal or other judicial authority’ unless prohibited (presumably, given drafting ambiguity) by the authority which issues it. Reading these clauses together, the permissible reproduction or publication of a judgment or order would probably not violate the copyright of any work quoted in it. And, of course, unless expressly prohibited, judgments or judicial orders may be reproduced or published without the copyright in them being infringed.

    Access to Statutory Law
    Section 52(1)(q)(ii) allows the reproduction or publication of any Act of a legislature not by itself but along with ‘any commentary thereon or any other original matter’. Although this Section does not explicitly allow subordinate legislation to be published or reproduced, Section 52(1)(q)(i) allows any matter which has been published in any Official Gazette except a statute to be published or reproduced. As such, the Rules or Orders under an Act may be made publicly available without additional matter published along with them.
    Further, Section 52(1)(r) deals with facilitating access to statutory law in translation. It allows the production and publication of Acts of legislatures and the Rules or Orders made thereunder in any Indian language in two circumstances, with a prominent statement (presumably in both cases) that the translation is not authorised or accepted as authentic by the government: (i) if translations in that language have not been produced and published by the government, or (ii) if translations in that language have been produced and published by the government but are not available for sale to the public.

    The Functioning of Law-Making Bodies
    Section 52(1)(e) explicitly allows both reproduction and publication in clearly defined circumstances for the benefit of a limited class of people: it allows any work by the Secretariat of any legislature to be reproduced or published exclusively for the use of the members of that legislature.
    Other than Acts of legislatures, as mentioned earlier, any matter which has been published in any Official Gazette may also be reproduced or published by virtue of Section 52(1)(q)(i) without restriction as to audience, as may ‘the report of any committee, commission, council, board or other like body appointed by the Legislature, unless the reproduction or publication of such report is prohibited by the Government’ by virtue of Section 52(1)(q)(iii).

Together, these provisions constitute a reasonably robust framework through which it is possible to ensure that copyright claims do not impede access to law. However, in practical terms, there arguably remain concerns about such issues as distribution, and the price points at which copies of laws are available to the general public. It is possible that these are issues which the court may address through the reported PIL.

(Note: A quick search reveals that the PIL which has been filed may be WP (C)10941/2017, Arpit Bhargava v. Inion of India and Anr..)

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