21 June 2020

Copyright Crimes in Colonial and Contemporary Times

Copyright law, in its modern avatar, was introduced in India not because Indians themselves felt a dire for it but simply as one of the laws brought into the country by the British who had colonised the land. As in other parts of the colonised world, the 'natives' had little say in shaping the law they would come to be subject to. They watched, largely as mute and often ignorant spectators, while intellectual property regimes foist upon them contributed to the development of capitalism which, in turn, led to the vastly inequitable distribution of global wealth that persists to this day.

Colonial copyright was, unsurprisingly, often an instrument of power which did not so much encourage universal learning as it held back democratisation through learning. There were controls on procedural issues adjacent to the enjoyment of copyright which included restrictions on who could register copyright, and in what sort of works copyright could be registered. Needless to say, the priority of colonial copyright was not to protect indigenous works or traditional knowledge in subjugated lands. Many indigenous works simply did not qualify as being eligible for copyright protection on account of not meeting the criteria for copyrightability due to their modes of creation or to their manifest authorship being incompatible with understandings of attributable authorship in imported copyright statutes modelled along the lines of the foundational 1709 English Copyright Act.

Alongside creating hierarchies which cut 'natives' out of the sphere in which copyright could be enjoyed, colonial copyright also laid the groundwork to levy high penalties for the infringement of copyright. In fact, turning infringement into a criminal offence and keeping it so could be considered to be one of the vestiges of colonialism in copyright law. Stringent punishments once ensured that 'natives' could be subject to unconscionably high penalties were they to attempt to partake of or participate in systems of knowledge on any terms but those which colonisers imposed on them. And, in contemporary times, not executing a clean break with the past has resulted in the development of a penal law (relating to almost all the wrongs contemplated by copyright law) that can boast of little nuance and few procedural safeguards.

Thus, under Indian law, penal provisions exist in respect of not just copyright itself but also, to varying extents, in respect of allied subjects such as the performer's right, the broadcast reproduction right, moral rights, technological protection measures, and rights management information in both analogue and digital forms. Focusing on copyright infringement for the purpose of this discussion: a violation of copyright is both a civil wrong and as a criminal offence which means that it could be addressed using civil, criminal, or administrative remedies. In the realm of criminal law: individuals who infringe copyright in their private lives without a view to profit and without committing large-scale infringement can potentially be imprisoned. Police seizures of infringing copies may occur without a warrant in some circumstances, and where plates are seized, the definition of 'plates' in the Indian Copyright Act, 1957, is so broad that it could potentially result in an alleged infringer's entire communications infrastructure being seized. To make matters even more concerning, there is no firm deadline within which seizures must necessarily be brought before a magistrate.

Appallingly, Sections 65, 67(a) and 67(b) of the 1957 Copyright Act could be interpreted to mean that the Indian statute does not always need an offence to actually have been committed prior to the possibility of imprisonment arising or, for that matter, the intention to commit a crime to be established in order for an individual to be held guilty of committing an offence. In some circumstances, it is possible to commit a crime merely by possessing plates which could be used for infringement or by providing incorrect information about protected content. Such an error is all too easy to inadvertently make especially when one is dealing with composite content that contains a number of underlying components whose authorship and ownership are always open to challenge (such as broadcasts or recorded songs).

From a statutory perspective, sorting out the mess that is criminal copyright law requires a reconsideration of the legitimate extent of police powers, a rehaul of definitional issues so that the targets of criminal copyright law are specific and limited whether they are inanimate 'plates' or animate human beings, and the development of a gradation of punishments and offences which goes beyond the levy of enhanced punishments for the commission of second and subsequent offences, or diminished punishments for special reasons.

At the moment, the law almost entirely limits itself to differentiating between offenders for the purpose of sentencing, if at all. A re-categorisation of offenders (so that individuals acting privately could not be treated as being akin to economic offenders whose businesses dealt in infringing products), of infringing acts (so that the reproduction of protected content for personal or limited interpersonal use would not be considered comparable to sustained public communication), and of content (so that the owners of rights in composite content could not be held liable for actions executed in good faith that had the potential to impact disputed underlying components regardless of when the dispute were to arise) would be necessary to develop a matrix in which offences, offenders, and punishments could be simultaneously addressed in a coherent manner. As such, recognising an infringement hierarchy, so to speak, could ultimately help to ensure that no punishment levied was disproportionate to the offence committed by coupling the hierarchy with a gradation of punishments (that could range from soft fines to imprisonment).

Global consensus regarding copyright crimes is not a particularly useful aid to develop copyright norms for the future. Instead, the existence of a global consensus leaning towards validating the criminalisation of copyright infringement is merely a useful aid to study how powerful states have leveraged intellectual property rights to secure their own power over the last few hundred years. What we now most need is to have the rationale underlying the copyright crime regime shred its colonial past and view the future with an eye to actually encouraging learning and to supporting legitimate business.

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