Caste(ing) out Copyright Conundrums: Ambedkar, Arundhati and Compulsory Licensing

ambedkar annihilation

Carrying on from our earlier post on the Doniger vs Penguin (Pulp) Controversy (again the below post had only been emailed out to SpicyIP subscribers two years ago: so reproducing it in full below, so that it’s publicly accessible):

It turns out that the compulsory licensing provisions were invoked in the more recent Ambedkar controversy. I’ve put together a piece reflecting on both the Ambedkar and Doniger disputes and how compulsory licensing and at risk infringement may be one of the strategies to help ensure circulate books sought to be banned by those that easily take offence. As Prashant Reddy pointed out to me, the Ambedkar dispute also raises issues around orphan works and the need to reform Indian law to ensure that works whose owners cannot be easily identified ought to be usable by third parties, without running the risk of copyright infringement, if an owner shows up finally. 

Here is a link to the Firstpost piece reflecting on all of this. Am reproducing the piece in full below:

The Annihilation of Caste created a stir. Well, at least the refurbished version of it, prefaced by an insightful introduction by Arundhati Roy; an introduction that stirred more debate than the provocative Ambedkar speech itself.

In the midst of this controversy, many may have missed the underlying copyright issue. Roy’s publisher Navayana first moved the Delhi High court to secure legal clearance for the publication of the book, since the copyright owner could not be traced.

Copyright law ordinarily vests copyright ownership with the author and then on his/her passing, with the legal heirs, unless the right has been assigned away to a third party. Navayana and her publisher first approached Dr Ambedkars’ family who claimed they didn’t own the copyright and pointed them to the Maharashtra government.

Navayana then wrote to the Maharashtra government, but received no response. After waiting a while, they filed an application before the Delhi High court asking that they be granted a compulsory license to publish the book upon the payment of a reasonable royalty rate.

They pointed the court to section 31 of the copyright act which provides that if a copyright owner fails to make her works available to the general public, a compulsory license could be issued in favour of a third party by the copyright registrar. However, the third party publisher would then have to pay a royalty to the copyright owner, as determined by the copyright board.

Unfortunately, as of today, there is no copyright board in India! A pending writ petition before the Delhi High court asks that the government be ordered to constitute a Board at the earliest. Given the lack of a board, Navayana requested the Delhi high court to issue them a license directly.

For a long time, there was no response from the Maharastra government, which was arraigned as a party. When an irate judge finally expressed his displeasure at the lack of a response, they came back stating that they did not own copyright for the work. In short, much like the fated Malaysian airline, the copyright owner of this fiery speech by Dr Ambedkar cannot be traced. Having failed to locate the copyright owner despite a long drawn out effort, Navayana withdrew it’s court petition. Ambedkar’s speech therefore qualifies as an “orphan work”, a term in copyright parlance to refer to works whose owners cannot be traced, making them eligible for reproduction and dissemination by third parties upon the payment of a fee to the government.

All of this throws into sharp focus an issue of deep concern for free speech: assume the Maharastra government was indeed the copyright owner. Owing to the political sensitivities involved (including anticipated pressure from a very right wing Shiv Sena), they could have capitulated and stalled the publication of this book, by refusing to give permission to Navayana. And the public would have been denied the right to access a very thoughtful essay from one of the founding fathers of independent India. This is where the compulsory licensing provision mentioned above (section 31 of the copyright act) comes in handy.

In fact, the recent Doniger dispute also throws the issue of compulsory licensing into sharp focus. Penguin’s caving in to a religious group and refusing to publish Doniger’s book (The Hindus) in India paves the way for a third party publisher to ask for a compulsory license in order to make the book available to the general public. However, in view of the copyright board not being functional, it would have to approach the court for a license, in much the same way as Navayana.

Better still, it could simply go ahead and publish the book. Despite a proliferation of online links pointing to websites housing full text versions of the book, Penguin has not commenced any legal action as yet. Indeed, it will be deeply ironical, if Penguin sues on a book that it has effectively relinquished economic interest in, at least in so far as India is concerned.

Even if Penguin decides to play dog in the manger and sue, the downside may not be that grave; courts are unlikely to restrain the allegedly infringing publisher. Rather, given the exceptional public interest concerns that permeate this case, courts will likely deny the injunction and grant damages instead, with the infringing publisher being asked to pay a percentage of their sales/revenues to the copyright owner. These damages are essentially in the nature of “royalties” to the copyright owner, making this a defacto compulsory license. This logic has prevailed in pharmaceutical patent cases where courts refused to restrain allegedly infringing drugs, on public interest grounds i.e. that consumers were dependent on cheaper and more affordable life saving drugs. In Doniger’s case, the public interest argument is highly compelling, given that Penguin’s pulping has effectively divested the public of an important scholarly work.

The fact that the copyright board is currently not operational offers more ground for publishers to go ahead and publish and then claim a de-facto compulsory license from the court, when sued. Given that Penguin has virtually waived its economic interest in the book qua India, the rate of royalty pegged by the curt is likely to be a very nominal one.

In the end, the Ambedkar and Doniger disputes offer us scope to re-examine copyright law and the myriad ways in which proprietary control over literature and art have stymied free speech and other important human rights and constitutional values.

It also helps us appreciate that copyright law is not only about “private” interest, where a set of exclusive legal rights are vested with copyright owners. Rather, it is about balancing this interest against a larger public interest in accessing these works at affordable rates, such that there is overall societal benefit. And this is where compulsory licensing merits attention; it ensures that even if intellectual property owners abuse their legal monopolies and deny affordable access to their works, third parities could step in and promote such access. It is therefore imperative that the government constitute the copyright board at the earliest.

Thus far, compulsory licensing has attracted mainstream attention in the patent context, with the government granting a highly controversial licence two years ago to an Indian generic company to manufacture a cheaper version of an exorbitantly priced anticancer drug. With the present set of controversies around free speech, compulsory licensing is all set to take centre stage in copyright law as well.

ps: image from here.

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

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