The Heart of Copyright Policy: Fair Dealing, an Indian Perspective

By Akshat Agrawal, Legal Researcher, Delhi High Court

“Knowledge must be allowed to be disseminated” stated the Indian Supreme Court, in Entertainment Network (India) Ltd. and Ors. v. Super Cassettes. Harping upon the idea of Anglo-Saxan Copyright, justified by the tenets of utilitarianism, the SC clearly emphasized upon the need to balance exclusivity-based incentives as against concerns of access, especially when concerned with knowledge resources. This was nothing new. Long back, prior to the partition of India, when the Imperial Copyright Act of 1914 was in force, during and due to the shackles of colonialism, the Lahore High Court (erstwhile India) harped upon the coloniality of the copyright doctrine, realizing the needs of the Indian citizens to be able to develop indigenous knowledge through access, more than anything else. The Lahore High Court, in 1934, in the judgment of Kartar Singh v. Ladha Singh, very convincingly determined the limits of incentives and the utilitarian purposes of the free market statutory intervention that is copyright, by stating that “Under the guise of Copyright, a Plaintiff cannot ask the court to close all the avenues of research and scholarship, and all frontiers of human knowledge.” What a remarkable decision!

Over time, India in its Copyright Act of 1957, subsequently amended in 1994 and 2012, has emphasized the importance of these limitations on the exclusive rights granted under section 14 of the Act. Not that one must romanticize this exclusivity, given its non-empirically proven utilitarian justification, (see Mark Lemley, “Faith Based IP”). It has long been implicitly realized in Indian jurisprudence that but for section 52—i.e., the provision of the Act which provides for these limitations/user’s rights—the Copyright Act must be rendered unconstitutional and against the spirit which the Indian Constitution abides by (that is, one seeking to promote development of knowledge and liberty and fraternity, both in the practice of and exposure to culture). I say implicit, because the Delhi High Court in Wiley Eastern v. IIM, clearly states the genesis of section 52 limitations to be within Article 19 of the Constitution- Freedom of Speech and Expression. This is precisely why I refer to this provision, the equivalent of the “fair use” principle in the United States, to be the heart, which pumps the existence of the copyright doctrine in the first place, and without which, the Act, the statutory conception shall fall flat to the test of constitutionality.

Some refer to Section 52 as comprising exceptions to the Copyright Doctrine. The semantic use of the word “exception” hides behind the ulterior conception of copyright maximalism, clearly reducing the limit of this section as being mere “exceptions” to the “godly” concept of copyright. On the other hand, section 14 of the Act, which provides for certain exclusivities is in fact, as interpreted in Academy of General Edu v. B. Malini and as visible in the provision, “subject to” the limitations mentioned under section 52, meaning thereby that these exclusivities automatically cease to exist once the use falls within section 52 of the Act. Interesting isn’t it? Given the constitutional genesis of this provision, and its nature of being a limitation on the right, one can clearly capture it to be the rights of users, and not mere exceptions, which are explicitly granted in the copyright act, on the exercise of which, copyright owners cannot object or bring any claim to. Although, I (borrowing from the work of Prof. Carys Craig—oh wait! Am I a user or a creator?) am skeptical of the idea of user’s rights doing any good due to its categorization of something good for the creator being bad for the user and vice versa.

The creator and the user are often non-distinct entities and portraying them to be distinct somewhat imposes the idea of the author being individualistically entitled to the fruits of their labour, rather than authoring in the public interest and the authorship itself in fact being derived from a multitude of experiences and materials in the public domain. The idea of copyright is not to reward labour, but rather to ensure cultural environmentalism, where people dialogically enter into cultural and knowledge exchanges for the prosperity of each of these elements in the society. To allow for the existence of this end, copyright, as a means, seeks to provide for limited incentives (rather than the broadest possible rights/natural rights) to help authors to sustain in the society—a society which is governed by capitalist and socially discriminatory forces, and where money is essential to survive—and not shift to marginal sources of revenue. The policy behind the existence of this statute is not to bestow windfalls, but rather to ensure sustenance and prevent authors from being de-incentivized, thereby hampering the idea of cultural environmentalism and dialogue. No wonder fair dealing and use based clauses, justifying limitations to this doctrine of copyright, ought to be interpreted in the broadest possible manner where public interest triumphs the entitlements that are present to sustain the author. This is essential for a relational and dialogic culture to be sustainable.

One question which I would like to leave the readers with, especifically with respect to research based uses under section 52 of the Act, is that section 52 recognizes the need for protecting researchers, who are barely funded well in India, to be able to access copyrighted works. It allows for a fair dealing for research, as a limitation to copyright under the act. Although, the question is, is this a theoretical limitation? Consider this:

A wants to access B’s paper on substantive equality and racial capitalism, which is owned/copyrighted by the catalogue of XYZ publications. This “want” is to research and use B’s writing in his work on principles of Rawlsian equality. The use is completely for non-commercial research-based purposes. Therefore, he clearly can use the work without seeking B’s or XYZ publication’s permission, given his use is protected under section 52 and is a limitation upon XYZ’s copyright under section 14. In other words, XYZ’s copyright is subject to such use. Now, A goes on to a webpage which has B’s paper on it. A seeks to access it, to be able to use it. However, wait, it shows $57 to access. A does not have that kind of money, and A’s use is protected under section 52. How does A access it? Does he have to honor the paywall? What purpose do section 52 based limitations fulfill then, if he has to honor the paywall? What is the alternative? Aren’t access paywalls like these shields for copyright enforcement, even in the context of section 52 based permissible uses?

This is an essential question for us to think about and address this week and year, to make the dialogue around fairness in use and public interest practical rather than merely a theoretical conception. Knowledge needs to be accessible, and its essence has been revealed more than anything during this COVID-19 pandemic. We better learn and stop romanticizing and normalizing broad exclusivities.

Akshat Agrawal