Subramanian Swamy and the Constitutionality of Copyright Criminalisation – Part I

(Summary: Lessons from Subramanian Swamy v. UoI -> constitutional validity of Goonda Acts -> interplay between freedom of speech and copyright law -> addressing the argument that copyright law contains built-in safeguards that shields it from constitutional scrutiny -> idea-expression dichotomy is too weak to be of use -> fair use does not align with free speech interests -> independent constitutional scrutiny of the balancing of proprietary and free speech interests is justified)

Last month brought us the Supreme Court’s judgement in Subramanian Swamy v. Union of India (WP 184/2014), in which a two-judge bench held that Sections 499 and 500 of the Indian Penal Code, which criminalise defamation, were constitutionally valid. The competing claims that characterise defamation actions bear a close resemblance to those in several copyright infringement cases: a private right to prevent the dissemination of particular content can be defended via the constitutionally guaranteed freedom of expression. Further, with legislatures increasingly choosing to bring the guns of the criminal justice system to bear upon copyright infringers (the latest in this trend comes from the recent National IP Policy, as Prof. Basheer notes here and here), the parallels between arguments against the constitutional validity of legislative interventions in defamation and copyright infringement become even starker. Over this series of posts, I seek to build on arguments challenging the constitutional validity of several state laws that purport to clamp down on copyright infringement, especially in film and music.

First, however, we must establish that there exists scope for constitutional scrutiny in the first place. While the venerable duo of Prashant Reddy and Sai Vinod argued against the validity of these state laws when they were first passed, their central point of attack was the lack of competence for states to legislate on copyright infringement, given that copyright law was in the Union’s domain. In questioning these laws on more contentious grounds such as proportionality, we must examine the argument that copyright law enjoys some amount of immunity from independent constitutional scrutiny due to its own built-in safeguards.

“It’s complicated”: the relationship between copyright and the freedom of speech

At first glance, it appears that copyright’s place vis-à-vis constitutional guarantees of free speech is well-established as a carefully carved out exception that seeks to promote the generation of literary and artistic work, thereby facilitating creative expression rather than suppressing it. While the US Constitution contains an explicit exception for copyright law in Article 1 Section 8, the Indian Constitution does not. For this reason, I look at other mechanisms that define the dynamic between copyright law and the Constitution. Way back in 1970, Nimmer asked, “Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?” (paywall) and pointed to the claim that the idea-expression dichotomy and the fair use doctrine were two internal safeguards that keep copyright law well clear of the freedom of expression.

Are ideas really bulletproof?

Are they really, V?

The idea-expression dichotomy attempts to achieve a balance between incentivising creativity and safeguarding public discourse by allowing concrete, individuated expressions to be copyrightable but not abstract, polymorphic ideas. However, this distinction is notoriously ethereal. The line between copyright-protected expression and the “free” idea that underlies any work is hard to pinpoint – in some cases, the very presence of an “idea” or an “expression” that exists distinctly from the work as a whole is doubtful.

Richard Jones, writing a quarter of a century ago, challenged the dichotomy in depth. Among his more hard-hitting examples are literary characters, who are generally treated as “ideas”, while their cartoon cousins usually qualify as expressions and receive the benefit of copyright protection; musical compositions, in which the underlying idea seems to be inseparable from its particular expression; art, which generally portrays a subject as opposed to expressing an idea. The counter to this comes in the form of another strand of American jurisprudence: cases such as Morrissey v. Procter & Gamble, which concerned ideas that could only be expressed in limited ways. In Morrissey, the plaintiff was denied copyright protection in a set of instructions for a sweepstakes on the ground that the extension of such protection would necessarily entail the grant of a monopoly over an idea by copyrighting the entire range of its expression. Despite this, the idea-expression dichotomy remains a gossamer-thin bulkhead that seems far too weak to separate copyright law from the freedom of expression, especially in amorphous cases such as art and film, a weakness that was exposed in the original Garcia v. Google holding in which Judge Kozinski allowed a copyright claim to prevail over a First Amendment claim despite a glaring lack of fixation (Garcia was admittedly not responsible for “fixing” her performance in the cinematographic medium). The fixation of an idea into a tangible medium is a necessary but not sufficient condition for a work to be treated as a copyrightable expression, rather than a mere idea. The Ninth Circuit later sat en banc to vacate Kozinski’s ruling, one of its grounds being Garcia’s lack of fixation, but the dissonance goes to show the strength of the dichotomy as a bulwark of free speech.

Freedom through fairness?

The other pillar upon which copyright law’s relative immunity from constitutional scrutiny stands is fair use, and it admittedly fares much better as a safeguard of free speech interests than the idea-expression divide. In arguably its most celebrated outing, fair use was invoked in Time, Inc. v. Bernard Geis to hold that the reproduction of frames from the Zapruder footage in a book about the Kennedy assassination would be saved from infringement. The President of the US was assassinated, the public was clamouring for accurate information, and folks in tinfoil hats had already kicked off what remains one of history’s everlasting conspiracy theories. The footage represented the most compelling record of the event, and was vital to the public debate in a way that required nothing short of its reproduction – no amount of description or narration could have the effect of reproducing the actual images. At first glance, Geis appears to be conclusive evidence that fair use is informed by free speech values, holding as it did that there was “a public interest in having the fullest information available on the murder of President Kennedy”. A closer reading of the judgement, however, betrays its true basis: the defendant is not directly in competition with the plaintiff in disseminating the content, and therefore poses no risk of financial injury. The application of fair use as envisioned in Geis, therefore, would fall flat when raised as a defence between competing newspapers, or television channels reporting on found footage that pertains to a matter of nationwide debate.

American courts subsequently de-emphasized the lack of commercial injury to the rights-holder when deciding fair use claims, most notably in Campbell v. Acuff-Rose Music, where the commercial nature of the use was held not to disqualify it from protection. However, Campbell’s reliance (along with subsequent fair use jurisprudence) is still on markedly non-free speech values (such as transformativity), undermining the claim that fair use somehow embodies or is even substantially aligned with the freedom of expression. While it has found some success in achieving ends that promote free speech, any argument that it (either alone or in tandem with the idea-expression dichotomy) exhaustively reconciles the conflict between copyright law and freedom of expression cannot hold water.

The role of fair use as a square peg in a round hole assumes even greater importance when you consider that Indian courts possess significantly diminished flexibility in applying the doctrine than their American counterparts. This is because the Indian analogue of fair use, “fair dealing”, originates from English law and requires the pigeon-holing of the use into one or more statutorily defined exceptions in order to succeed. An alleged infringer in Indian law must surpass two hurdles, a requirement that reduces the ability of judges to incorporate “external” considerations such as freedom of expression when adjudicating a fair dealing claim.

In summary, it is clear that the “in-built safeguards” of copyright law do not balance the free speech interests of the alleged infringer and the proprietary interest of the rights-holder in a manner that would make proportionality analyses in adjudicating copyright claims immune from constitutional scrutiny. In the next post, I argue that most current legislation against copyright infringement would not survive such constitutional scrutiny.

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