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#FOEIndiaSeries | 4. Creative Content and Trade

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India. Part I of this series considers the socio-legal basis of free speech law in India, Part II explores what regulation, both legal and social, says and, in some cases, what it should perhaps say while Part III, finally, looks at the processes through which free speech regulation is implemented in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Mechanics of Regulation

Part II. Regulating the Substance of Speech

4. Creative Content and Trade

Content in which speech is embodied is almost always capable of being owned by someone even if that someone is ‘the general public’, for all practical purposes. And, more often than not, unless it ‘belongs’ to everyone, content cannot be used without the permission of its owner(s). With reference to creative content which is directly implicated in free speech concerns, such content regulation usually involves either trade-marks or copyrights.

Trade-marks, as their name suggests, are marks including words and images which identify traders and their products or services. They can be registered, although they may also be used without registration. In theory, their ‘lifetime’ can be forever and a day although, in practice, they may cease to be recognised or recognisable by law as trade-marks if they become so well-known as to turn into a common noun or a generic description of a product or service. This was, in fact, the fate suffered by linoleum which is now known as the name of a material, and not as the trade-mark it once was.

There are specific criteria which trade-marks must satisfy in order to be registered — they cannot be descriptive, for example — so ‘washing soap’ would not be a registrable trade-mark for washing soap. The aim of trade-mark law is, for the most part, to avoid having unscrupulous traders profit off the reputation of established traders by passing off their own (often inferior) goods or services as those of established traders or their brands. This is why actions can be initiated both for misleadingly ‘passing off’ one’s own goods and services as those of another, and for simple trade-mark infringement.

In terms of free speech, the control which a trade-mark owner has over the use of his mark can become an issue in a range of circumstances where persons — companies, in particular — make questionable trade-mark complaints in order to suppress the dissemination of negative news about themselves. Should uncomplimentary speech be made, and should that speech include the trade-mark of the company, it isn’t at all inconceivable that apart from making claims in the nature of commercial disparagement or defamation, a company would also make a trade-mark claim. Making itself available as a tool to suppress negative publicity is, of course, not the primary purpose of trade-mark law but companies have been known to put the law to such an ‘off-label use’ in order to protect their reputations.

In fact, there have been so many law suits using so many legal tools that have been filed around the world by companies to discourage free speech in relation to themselves, and to restrict public participation in relation to issues where they don’t appear at their best, that such law suits now have their own acronym. They’re called SLAPP suits: Strategic Law Suits Against Public Participation.

It is often possible to challenge the claims which are made in SLAPP suits, or when such suits are threatened, given that they do not necessarily have a sound legal basis. However, challenging claims can be expensive, and when a matter involves a company with deep pockets acting against an individual possibly without pro bono legal support, it wouldn’t be at all surprising to see the individual ‘cave’ and give in, as they say. This is hardly a reflection of the individual’s lack of commitment to free speech as many enthusiastic online commenters might have one believe. It is far more likely to simply be a reflection of the fact that the individual’s resources in relation to time, money, and energy are all limited.

Not running the risk of turning oneself into a sacrificial lamb at the altar of free speech, possibly with no significant gains to be made, does not turn one into a ‘traitor’ to ‘the cause’ of free speech.

Trade-marks are not the only form of intellectual property but they are amongst the instruments which are the most effective in the IPR quiver at quelling other people’s speech, and probably rank second only to copyright.

Copyright is, of course, quite heatedly contested. It is the grant of a bundle of rights (such as the rights of reproduction, adaptation, and communication to the public) through statute in specific works: literary, dramatic, musical, and artistic works, as well as sound recordings and films, provided they meet certain criteria. The exact rights which the law accords to works depends on their nature, as do the criteria which must be met for copyright to subsist in works in the first place.

Literary works must be original to have copyright subsist in them, for example, while films are expected to not violate or infringe the copyright in other pre-existing protected works. Although copyright can be registered, registration is not essential as copyright subsists in a protectable work from the moment it is created, and usually lasts for sixty years after the first publication of the work or for sixty years after the death of its author. It is generally owned by its author, although it is freely transferable. In fact, it is so freely transferable that although it is framed as an author’s right in theory — that is to say, a bundle of rights which authors have in their own work — it is criticised as often being a publisher’s right in reality.

Despite the dynamics of the publishing industry changing with self-publishing becoming more and more easy for the individual author to engage in, there still hasn’t been a dramatic change from the traditional scenario in which authors would have to rely on publishers to print and distribute copies of their works. Many authors would (and do) simply not have either the money to have their own work printed or the access to distribution networks to make their works widely available to the public. In exchange for the publication of their works, publishers would, and still do, often demand (from authors) the copyright in their works, and become the exclusive owners of all rights in authors' works, which is what lends credence to the claim that copyright is a publisher’s right.

Whether it is the authors or publishers who own the copyright in a work, however, does not necessarily make a great deal of difference to anyone else. Either way, third parties have an extremely limited amount of freedom to use protected content without the permission of the copyright owner, whoever the owner may be.

The copyright statute is structured so that copyright owners almost monopolise the control and use of the works in which they have rights; they have a hard-to-breach right to restrict others from using their works. Should anyone use a work without the permission of its copyright owner, that person would almost certainly be committing copyright infringement for which he could be held liable unless his use was permitted by the law.

In India, copyright is governed entirely by a statute which additionally deals with allied rights — the so-called ‘neighbouring rights’ in broadcasts and performances, as well as with moral rights and the artist’s resale right. Moral rights, or ‘special rights’ in the terminology of the statute, are rights which grant authors the ability to have their works attributed to them and, if their honour or reputation would be prejudiced as a result, to legally address the destruction, modification, or mutilation of their works. As opposed to this, the artist’s resale right is a right primarily economic right which allows artists a share of the resale price of their works in some circumstances.

Despite the formidable rights which the law grants to copyright owners, it also allows others to deal with their works without their permission in a limited manner. The 1957 Copyright Act contains a list of exceptions and limitations to copyright infringement which enable works to be used without authorisation for the purposes of education, research, reporting, and cultural activities in the manner it contemplates. It also creates exceptions to infringement to facilitate the realisation of public policy objectives such as access to law, enabling business activities to run smoothly, enabling persons with disabilities to access copyrighted works, and attempting to ensure that creativity isn’t impeded by copyright claims.

So, if a person were making a film, and the film happened to incidentally include a copyrighted work in the background of a scene, the person who owned the work would not be able to validly claim that the film had infringed the copyright in his work. What pervades Indian copyright law is the notion of fairness which is manifested in an attempt to balance the rights between copyright owners and the general public.

Thus, in its attempts to be fair, the statute allows unauthorised uses of copyrighted works in specific ways to achieve specific aims. However, simply because one copyrighted work may sometimes be portrayed in another, that does not mean that the law would consider any unauthorised use of a copyrighted work fair or permissible. Broadcasting a news bulletin to the accompaniment of unrelated film music would not be considered to be a fair use of the music. And it would be almost impossible to claim that such a curtailment of one’s speech involved an unwarranted attack on one’s fundamental right to free speech. After all, there would be no connection between the music and the news. The use of the music without permission in such a case would likely simply be the result of wanting to avoid paying licence fees. Consequently, it may be possible to argue that allowing the unauthorised use of music would simply unjustly enrich the broadcaster (who would almost certainly make money off the broadcast) to the detriment of all those who would otherwise have had a right to royalties through a music licence including musicians, and lyricists.

As opposed to cases where prohibiting the unauthorised use of content simply restrains unjust enrichment, there are times when not allowing the use of a work without authorisation impedes the creativity. There are strong arguments to be made to the effect that, in such cases, prohibiting the unauthorised use of content inhibits cultural activity from flourishing. For example, publishing a spin-off featuring a character a pre-existing work might — despite the law on character copyrights not being crystal clear — warrant the acquisition of a content licence. This is because a copyright claim could potentially be made accusing the spin-off of infringement. Even if the claim were not ultimately upheld, the process of dealing with it would likely be so excruciating and expensive that it would be prudent to obtain permission for use through a licence at the outset itself. Obtaining a licence would mitigate the possibility of future exposure to legal liability, expense, and stress.

There are times when obtaining a licence to use a protected work is, however, not possible because the copyright owner refuses to grant one, or perhaps refuses to grant one at a reasonable price, and the person who wants a licence cannot avail of the mechanisms in the statute through which licences may be granted without the acquiescence of owners.

In such circumstances, it is likely that copyright would effectively (and perhaps illegitimately) suppress free speech. Although the law is cognisant of the fact that there are situations where it should be possible to use a work without authorisation, it doesn’t always make provision for specific uses, and this can create a great deal of tension between copyright and free speech. Additionally, even where copyright law allows for the unauthorised use of protected works, it rarely gets into specifics. The result is that even if, in general terms, it is possible to use a specific work without permission, it isn’t always clear how much of the work can be used or how exactly it can be used.

If one were to ‘review’ a book and include in one’s review 90% of the text of the book without permission, it would clearly not be a fair or permissible use of the text, and one would almost certainly be held to have committed copyright infringement. On the other hand, if one were to extract a few sentences from a book for the express purpose of critiquing them or the book as a whole in a review, is likely that one’s act would not be considered to amount to copyright infringement. There are, however, a number of ‘inbetween’ uses which are possible.

A question which is asked commonly enough is: “How much of a song can I use in my film without a licence?” The answer is rarely clear: there is no ‘four-second rule’ which one can universally apply — that is largely the material of Internet myth. It is true that the law would not consider a very small extract of a work to amount to copyright infringement. However, the ‘smallness’ of an extract would be determined not just with reference to its length but also with reference to how important it was to the work. So, a quantifiably small extract may be judged by qualitative standards, and its unauthorised use could be considered to be infringement. Consequently, it is possible that using even a few notes, if they were to define a song in its entirety, would not be permissible without authorisation. Determining whether those few notes would in fact be considered to so define the song would, in practice, no easy matter.

And this only takes into account standard uses of copyrighted content without reference to such forms of expression as appropriation art which, it could be claimed, invariably relies on copyright infringement for its very existence. After all, a person creating appropriation art could pick up a protected work, change its context, and, in doing so, give it a new meaning and cause the re-contextualisation to be considered ‘art’.

There may be good reasons to not to consider appropriation art to amount to copyright infringement. However, the rationale for doing so has not been dealt with judicially in India through the lens of copyright theory in any manner that is worth mentioning, and it is an issue which will probably have to be engaged with at some point.

Of course, not all content is protected: non-copyrighted content is generally considered to be in the public domain. A work may enter the public domain in a variety of ways, the most common amongst which is when the term of copyright in it expires. Additionally, a work may enter the public domain if its copyright owner relinquishes copyright. Or it may simply not be protectable in the first place perhaps because it is not original or does not satisfy the criteria for protectability.

If a work belongs to the public domain, it can generally be used for any purpose by anyone without permission from anyone. This is, of course, conducive to free speech although it is far from the realm of the impossible to see attempts being made to remove works from the public domain, and to claim proprietary rights over them. For example, a piece of ancient classical music would almost certainly be in the public domain. If one were to sing it and record one’s performance oneself, one would likely own the copyright in the sound recording of the performance. However, one’s copyright would not extend to the underlying musical work which one had sung.

Nonetheless, if one were unscrupulous or negligent or simply unaware of the mechanisms of copyright law, one might either inadvertently or intentionally claim copyright in the underlying music, and not just in one’s own recording. The problem is, of course, compounded when artificial intelligence is used to detect copyright infringement in recordings without having the ability to recognise when the underlying music is not protected.

Considering how easy it is for mistakes to be made, it is important to be vigilant and to challenge any claim which could potentially chip away at the public domain, and at what should be our shared cultural heritage. Locking public domain content out of the public domain through questionable copyright claims affects all of us, and impedes our ability to engage with our shared histories and our collective cultural output.

While there is often little one can do to nip the (mis)use of public domain content in the bud, the situation is quite different when it comes to content protected by copyright which one may, in principle, want to make available to everyone to use and access. It is possible to structure licence agreements in a manner which treats the content as being de facto public domain content while asserting its protected status at law. For example, as the copyright owner of a work, one may publish it under an extremely permissive licence with both contains ‘share-alike’ terms and which allows the general public to use the work without without approaching one for authorisation. Taking the example further and considering a few more possibilities, owners could permit their works to be used by anyone without adaptation for non-commercial purposes as long as the users credited the original authors, and shared the works on the same terms as they themselves had used the works. These are the kind of terms which often make an appearance in so-called copyleft licences.

Copyleft licences tend to contain various permutations of possible licensing terms and a copyright owner may pick the one they find suitable for their works and themselves. In doing so, owners often effectively contribute or relinquish their works to the public domain although they do so without giving up their copyrights, and while retaining the right to dictate how their works may be (or may not be) used by others.

Ensuring that content is widely available and that it is possible to build upon it generally supports creativity: creatio ex nihilo or creation out of nothing at all is not common, assuming that it exists at all. By and large, our culture is a derivative one, and works of art, whatever form they might take, reference, and occasionally resurrect, older artistic traditions if not specific works. Art does not emerge out of nothing.

Unfortunately, with the restrictions that copyright places on the unauthorised use of works, it is extremely difficult to build upon contemporary works to create new works.

Also, although copyright is almost never perpetual, when it expires, it may be possible to lock the general public out of using a work through trade-mark law. Take the case of a book with a beloved character. Sixty years after the first publication of the book, or sixty years after its author’s death, whichever is earlier, the book would enter the copyright public domain. Nonetheless, it would be possible to create products featuring the character even long before the expiry of copyright, and possibly turn the image of the character into a trade-mark which could be valid forever. If that were done, it might be possible to keep a form of proprietary intellectual property protection alive long after the expiry of copyright.

In theory, trade-marks, like copyright, can be fairly used by anyone without their owners’ permission but all the fears about such use being challenged in the context of copyright law could come into play in the context of trade mark law too, and inhibit those who might wish to, say, use a trade-marked character in a story of their own even long after the copyright in the original work had expired. If this were to happen, trade-marks could inhibit free speech in non-traditional ways; copyright protection and trade-mark protection are not intended to be fungible or otherwise interchangeable.

The stated aims of recognising intellectual property are laudable enough: they attempt to protect the finances and reputations authors and traders by prohibiting others from using their works, or the marks which identify their goods and services without permission. However, in the process, they sometimes, likely inadvertently, wind up being or becoming tools through which free speech can be stifled since they essentially restrain the untrammelled use of products and content in which speech is embedded. The laws which grant intellectual property rights recognise this possibility and envisage ameliorative provisions, sometimes spelt out in statutes, which attempt to keep owners from having draconian rights over their property that do not necessarily serve the public good.

These provisions of the law which aim to protect those who are not rights owners when they use protected content are not always crystal clear and the lack of clarity in itself stifles free speech — it may be prudent not to engage in the expression of speech at all in order to be certain of not having a legal claim, however shaky, be made against one.

There really is no reason why any individual should feel obliged to test the contours of permissible ‘fair use’ or the boundaries of the law, especially since such an exercise is likely to take an enormous toll on the individual. It is therefore up to the law to create mechanisms to facilitate free speech — after all, free speech is a fundamental right.

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