We’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 :–
- Does copyright exist in Acts passed by different legislatures?;
- If yes, who owns the copyright in those Acts?; and
- 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.