Copyright

Guest Post: Shouldn’t we liberate laws from the clutches of copyright law?


ScariaWe’re delighted to bring our readers a very pertinent guest post by a dear friend of the blog, Dr Arul George Scaria, assistant professor at National Law University, Delhi – discussing a very basic issue that, if memory serves me right, has somehow escaped our attention on this blog! While we have earlier discussed whether “standards” can/should be copyrighted (see post here), the current post deals with the issue of the very text of our laws being copyrighted. We’d love to hear from readers on this topic as well. Read on for more:

Shouldn’t we liberate laws from the clutches of copyright law?

By: Dr Arul George Scaria

One of the most frustrating moments in the life of anyone researching a point of law (be it a practitioner, judge, student, academician or any other person seeking answers to simple questions of law she encounters in life) is the inability to get a copy of the applicable legislation on the subject. Most readers of this blog, particularly those from India, must have encountered those frustrating moments countless number of times! One of the interesting examples in this regard is the current version of copyright law in India (particularly appropriate, as this short post is about the possible role of Indian copyright law in preventing access to law!). If one searches for a consolidated version of the current copyright legislation in India (Copyright Act 1957, as amended by the Copyright (Amendment) Act 2012), one will soon realise that it is extremely difficult to find an official consolidated version on the web!

Those who have visited the website of the Indian Copyright office for a current version of copyright legislation may have also noticed that the legislation available for download under the banner ‘Acts and Rules’ (as of today!) is the pre-amendment version of the Copyright legislation. Even the unofficial versions are hard to find! While the Copyright (Amendment) Act 2012 and the Copyright Act 1957 are separately available, I don’t think it needs to be explained to the readers of this blog why the consolidated digital version of the Act is important in ensuring access to law. But the Copyright Act is not an exception in this regard and the question of access is as bad for most other statutes in the country.

As Prashant Iyengar has noted in his excellent 2010 report titled Free Access to Law in India: Is it here to stay, the Courts in India have recognised access to information as integral to exercising freedom of speech and expression guaranteed under the Constitution. The Courts in India have also recognised that both in the case of parliamentary legislation as well as the secondary legislation, reasonable publication is necessary for the operation of law. But as Prashant correctly notes in the report, while publication in the gazette is mandatory, it is hard to find a strong legislative mandate in India to make laws “accessible and known to the public” in India and the only solace has been the decisions from different courts that have mandated publication of laws.

But is Copyright law playing at least a part role in blocking access to law and legal information? This is the wider question I would like to ponder on in this post (thanks to my colleague Dr. Anup Surendranath for asking this question during a casual conversation!) and I would certainly like to hear the comments of the readers of this blog! Three questions need answers :–

  1. Does copyright exist in Acts passed by different legislatures?;
  2. If yes, who owns the copyright in those Acts?; and
  3. If if yes, whether reproduction or publication of an Act can be considered as an exception to copyright infringement?

With regard to the first question, Acts passed by the legislature can be considered literary works under copyright law and to the best of my knowledge, they have not been specifically excluded from protection under Indian copyright law.

This would lead us to the second question of who owns the copyright in Acts passed by the legislatures? Sec. 2(k) of the Copyright Act defines a ‘government work’ and according to this provision, ‘government work’ means a work which is made or published by or under the direction or control of- (i) the Government or any department of the Government; (ii) any Legislature in India; (iii) any court, tribunal or other judicial authority in India. So ‘government works’ could include laws passed by the parliament and the state legislatures.

The duration of protection provided for government works is 60 years from the beginning of the calendar year in which it is first published (Sec. 28 of the Copyright Act). As one could imagine, verbatim reproduction or publication of a literary work during the term of copyright can constitute infringement in that work and this also forces ones to look at Sec. 52 of the Copyright Act which deals with exceptions to infringement. As one may notice from Sec. 52, verbatim reproduction of a legislation is not considered as an exception to copyright infringement. Even more specifically, when one looks at Sec. 52(1)(q)(i), it can be seen that while reproduction or publication of any matter which has been published in any Official Gazette has been exempted from copyright infringement, the provision specifically mentions that it doesn’t apply to “an Act of a Legislature”. According to Sec. 52(1)(q)(ii), any Act of a Legislature can be reproduced or published only under the condition that such Act is reproduced or published “together with any commentary thereon or any other original matter”, which in turn reflects the intention of the legislature not to include verbatim reproductions or publications of legislation within the framework of exceptions to infringement provided under the Copyright Act.

While it is understandable that the government might have included this provision to avoid erroneous reproduction or publication of statutes, the same could have been easily achieved by adding a condition that any reproduction or publication of a statute should contain a statement that it is not the official copy of the legislation In fact, a similar, but more rigorous condition can be seen with regard to reproduction or publication of translations of statutes in the proviso to Sec. 52(1)(r) and it reads as follows: “Provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorised or accepted as authentic by the Government.”

Each and every member of the public has the right to access law and Indian Copyright law as it stands today is clearly negating this right by denying reproduction or publication of statutes by the public. Even more worryingly, the Copyright Act is doing this without any appropriate legal/ theoretical justifications and the only beneficiaries are a few private publishers who are engaged in the business of printing bare acts. If we are to continue as a true and participatory democracy, access to law is integral and the Parliament should consider amending Sec. 52(1)(q) to enable better access to law and legal information. Reproduction or publication of an Act of a legislature should be considered as an exception to copyright infringement. Till the time the Parliament makes the necessary amendments, the government should also provide an open license for all “government works”, including statutes.

Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

7 comments.

  1. Achille Forler

    Instead of approaching this issue from the point of view of the user – legitimate perhaps but the user is not the owner so he/she cannot solve the question raised – , let’s just ask the question: who is the author, and therefore owner, of copyright in laws? Laws are made by the people of a country through their elected representatives, in other words: the people are the authors, and therefore owners through the State, of the copyright in the laws drafted by them.

    If no updated, ‘clean’ text of a law is available online, it is not the fault of copyright but due to the lack of diligence of the State.

    If a private entrepreneur publishes the new version of a text of law, he cannot claim a copyright unless he peppers it with an original commentary so that he can claim copyright for the commentary. Eastern Book Company has done such a job for the Copyright Act. But nothing prevents another publisher – or the State himself! – from copying EBC’s ‘cleaned up’ version of the earlier publisher and publishing it himself.

    It is certainly scandalous that the State doesn’t put out ‘clean’ versions of its laws. PIL anybody?

    Reply
  2. Achille Forler

    Error:

    Should read: “from copying EBC’s ‘cleaned up’ version and publishing it himself!”

    Reply
  3. Prashant Iyengar

    Hi Arul,
    Interesting set of posers on an area that is crying for more analysis. As you know this is an area I had touched upon in my report, and I’m glad to see newer writing on it. My two cents worth:
    1) Your account of 52(1)(q)(ii) made me realize that I’d prossibly been wrongly interpreting the clause all this while. In your reading, the provision mandates the addition of original commentary to the text of the statute in order to be eligible for immunity from charges of infringement. In my reading, what the provision requires is the faithful reproduction of statutes along with any commentary and other original matter that came embedded with the original statute. My reading seems truer to the larger public dissemination intent of the original Copyright Act, and also responds to the strong legislative concern that the original be retransmitted without corruption. My reading would also explain the legality of the crowd of publishers who print and peddle bare acts in India – I don’t think they approach the government for permission to print these copies. Your reading is however entirely plausible on a bare textual reading.
    2) On the question of whether statutes are Government ‘literary’ works (as opposed to artistic or musical), there are several routes that one can take in exploring this question. However I think the Act itself forestalls such inquiry by specifically deeming Acts of legislature to be “government works” for the purpose of immunity under 52(1)(q). The fact that this clause regards them as works for the purpose of immunity should attest to the legislative intent of regarding them as objects of copyright protection in the first place.
    3) I don’t think government assertion of copyright has played the villain in the mission to disseminate law in India. There’s virtually no case to be found where the government has sued a publisher for the publication of a statute. There doesn’t appear to be a department of the central government (or state legislatures) whose mandate extends to asserting ownership over government works and policing copyright violations. Eg. See for instance the law ministry’s mandate http://lawmin.nic.in/legalcon.htm#LITIGATION which contains no references to copyright . The absence of a bureacuracy of copyright enforcement in India (in contrast to the Publishing and Depository Services in Canada or the Controller of Her Majesty’s Stationery Office in the UK for exampe) is in fact what secures their public domain status more than anything contained in the language of Sec 52. (The mandate of the Department of Publications which administers the Gazette in India only extends to the publication and sale of government books. Not a word about enforcement).
    So its not so much in the “clutches”, but in the teddy-bear hug of copyright that the Law in India stands. 🙂

    Reply
  4. Owais Shaikh

    Hi Arul,

    Interesting post. Something that I have been thinking about for some time now but more from the perspective of Pakistani case law which I found inaccessible for anyone not residing in the country. Pakistani statutes are mostly available on the departmental websites in the original Gazette scans and in other cases in other digital formats. However, the reported cases in Pakistan are published in different law digests. Similarly, if one wants to access them online, they are only available (to the best of my knowledge) from the law digest publisher’s website upon payment of a subscription fee. What is the status of copyright in reported cases in India? In distinction to Forler’s comment above, the argument that legislation is written and owned by people of a country may not be applicable in the case I have mentioned.

    Reply
  5. arul

    Thank you all for those excellent remarks. As I have not been able to post replies separately (due to some technical problems), let me try to put the replies together as a new comment.

    @ Achille: I agree with you completely on the idea that it is the people of the country who should be considered as the authors and owners of statutes in a democratic nation. But the question is whether that’s the way the current copyright legislation is seeing it?
    ….

    @Prashanth:
    Excellent remarks! Your IDRC report was a very insightful one and it certainly deserves far more attention on discussions in this area! I hope this post also leads to more people reading that excellent work!
    1. Yes, it is possible to take a reading of 52(1)(q)(ii) in the lines you are suggesting. But just to get a bit more clarity, is there any other supporting provisions in the Copyright Act (or any precedent) to suggest that reading (faithful reproduction of statutes will be immune from infringement)? Am I missing something here? It’s true that there was hardly any litigation for violation of copyright infringement in this area. But isn’t the absence of production of bare acts without commentaries indicating that the publishers are also reading the provision as I read (I feel that even if we don’t care about the infringement related issues, most publishers would take a cautionary approach! And also, once they add commentaries, why should they bother about taking permission from the government?).
    Yes, it is possible that the present provision may have been inserted also with the larger public dissemination intent of CR law (incentivising production of more derivative works!). But again, would a clear exception for reproduction of statutes defeat that wider objective? In my view, it would only be supporting those broader objectives of CR law.
    2. With regard to the second issue, could you please elaborate a bit on the statement “the Act itself forestalls such inquiry by specifically deeming Acts of legislature to be “government works” for the purpose of immunity under 52(1)(q)”?
    3. As mentioned above, I too haven’t come across any litigation in this regard. But does that justify the absence of a proper exception or at least an open license from the side of the government for reproduction or distribution of statutes. Isn’t the absence of consolidated versions of many of our statutes and the absence of “good” open access repositories of statutes kind of indicating that the present legislation is having a chilling effect in this area [For example, I personally know that some of the librarians in our country are pointing towards these provisions when the possibilities of building a good open access repository of statutes is discussed!].
    Thanks again for those excellent remarks and they certainly indicate that we need to discuss more about this provision.

    @Owais: In the case of judgments, the position under the Indian copyright law is very clear – Reproduction of any judgment or order of a court, tribunal or other judicial authority is an exception to infringement under Sec. 52(1)(q)(iv) [except in cases where the publication of the judgement or order is prohibited by the court, tribunal or the other judicial authority]. That also explains why we now have good databases like indiankanoon. Is the position under the Copyright law of Pakistan different?

    Reply
  6. Owais Shaikh

    I just checked the Pak CR law. According to section 57(q)(ii) it is not an infringement to reproduce or publish “any judgment or order of a court, tribunal or other judicial
    authority, unless the reproduction or publication of such judgment
    or order is prohibited by the court, tribunal or other judicial
    authority, as the case may be”. So its pretty much the same under the Indian law. However, will it still be possible for someone to digitalize the cases the pages from the and law digest and disseminate them? Does there exist a copyright in the compilation of the reported cases in such law digests even though there does not subsist any copyright in the judgments themselves? Is there any discussion/precedent in India regarding this issue?

    Reply
  7. arul

    @Owais: While it is clear that reproduction or distribution of raw judgments is an exception to infringement, the same need not be true with respect to all digests, headnotes or even compilations. It all depends on whether those works meet the originality requirements under CR law. One of the Supreme Court decisions, which can provide you some insights on the current Indian position in this regard is Eastern Book Company v. D. B. Modak, (2008) 1 SCC 1. I shall email you that judgment. cheers,

    Reply

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