The Pulp of the Penguin and Compulsory Licensing?

pulp fictiondoniger

Two years ago, the piece below was emailed out to our subscribers who are part of the SpicyIP google group. Unfortunately, it was never posted on the blog; am therefore doing the honours now, so that it can be accessed for posterity (or the end of the world, whichever comes earlier).

(ps: In order to subscribe to SpicyIP and receive emails the moment we post on our website/blog, all you need to do is to go to the home page of our website and enter your email ID in the box titled “Subscribe” that shows up on the right hand corner of the website).

Here goes:

As many of you know, Penguins’ decision to pulp Donigers’ book on Hinduism (owing to a pending law suit and threat of violence) has created quite the stir in India, with free speech advocates lambasting Penguin. In the meantime, Deepak Raju, a former student of mine posed this very interesting query:

“I am no expert in copy right law. But can a situation like the withdrawal of ‘the Hindus’ be tackled through compulsory licensing? Can a more liberal and bold publisher seek CL on the ground that the current right holder is withholding the work from the public? Taking the idea a step further, how about an online publisher who seeks a CL and makes the work available to public for free whenever a publisher caves to the book burner brigade?”

He’s absolutely right that if a publisher decides to stop publication, one could apply for a compulsory license. The relevant provision is extracted as under:

“31. Compulsory licence in works withheld from public. (1) If at any time during the term of copyright in any work which has been published or performed in public, a complaint is made to the Copyright Board that the owner of copyright in the work— (a) has refused to republish or allow the republication of the work or has refused to allow the performance in public of the work, and by reason of such refusal the work is withheld from the public,….. the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the public by broadcast, as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine; and thereupon the Registrar of Copyrights shall grant the licence to  such person or persons who, in the opinion of the Copyright Board, is or are qualified to do so  in accordance with the directions of the Copyright Board, on payment of such fee as may be prescribed.”

Unfortunately, CL (compulsory license) is not a practical option today since there is no “copyright board” in existence as of today. The HRD Ministry is having a tough time finding a good person to take charge as the Chairman of the Board. And there are two pending writs in the Delhi high court asking that the board be constituted immediately. Apparently, the Ministry (and the copyright office) sent letters to the CJI asking him to nominate someone for the position of Chairman, but have not heard back from him. 

Interestingly, the inimitable Lawrence Liang sent a delectable legal notice asking that work be donated to public domain and that “pulping” be left to grinders…a far better option, given that Penguin is not interested in the Indian copyright (economically speaking of course) anymore.

Liangs’ option is a feasible one, if Penguin bites. Though I would personally urge any publisher with the courage to publish this to go ahead and publish. If sued for copyright infringement, they could always ask the court to deny an injunction on the ground of “public interest” (free speech and non availability of the book). And ask the court to grant ongoing damages for infringement instead: which would operate pretty much like a compulsory license. That is, if Penguin decides to sue someone who publishes this book in India. It will be a slight paradox for them to sue on copyright when they themselves have taken a public stand that they do not wish to publish this book anymore. 

Lastly, could Doniger take the “moral rights” route, arguing that Penguin’s decision to withhold her book from the public contravenes her moral rights?

In Amarnath Sehgal, the Delhi High Court ruled that destroying a copyrighted work (by putting it away in a shabby godown) amounts to a moral rights infraction actionable by the artist. Could that logic apply to this case? And the court be asked to remedy the situation by forcing Penguin to publish or vesting the Indian copyright back in Doniger (assuming she had assigned it away to penguin in the first place).

ps: images from here and here

Shamnad Basheer

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.

One comment.

  1. AvatarRamu

    All these arguments could apply to the Satanic Verses, too. And, to Charlie Hebdo cartoons as well.

    Government’s apprehension of maintaining public order when a literary or artistic work is calculated to incite disaffection is very real.

    Author’s rights are not absolute.


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