My colleague, Sidharth Chopra, and I write about the differences between ostensible and actual public interest taking into account commercial dealings and the trajectory of legislative action and judicial interpretation (with reference to case law including two cases in which we've been involved on behalf of publishers and a broadcaster).
...what appears to be in the public interest in theory can diverge from what is actually in public interest in practice. Ultimately, exercises in advancing the public interest cannot be divorced from capitalism where commercially available products are involved in the equation. Supply and demand chains are often impervious to utopian conceptions of public interest. [....]
...the statutory regime protects both the public and creators (who are often the first owners of rights). Living in a time of capitalism has obviously ensured that creators, whether they are scientists or poets, cannot sustain themselves or their work without adequate reward. And, so, risking the dilution of the reward by limiting intellectual property rights is almost certain to adversely affect their work. It is therefore critical that the balance of rights envisaged by the statute be respected. [....]
To all appearances, public interest is being increasingly broadly interpreted by the various arms of the State, one suspects, at times perhaps without a detailed investigation into market economics. Case law certainly appears to suggest that public interest concerns have led to the dilution of private proprietary rights, and we cannot be certain of what the effect of such dilution will be in the long run.
The entire piece is available here at Medianama: Cross-Sectoral Conceptions of ‘Public Interest’: Sidharth Chopra and Nandita Saikia where it was first published. It has also been re-published at Bar and Bench.