We are extremely pleased to bring to you a guest post by Justice Gautam Patel. Justice Patel needs no introduction. One of the finest IP judges to have walked the hallowed halls of the Indian legal firmament, he’s given us one insightful decision after another. He was rated as one of the top 50 IP personalities in 2014-15. In fact most of the decisions covered on this blog in the last year or so are from his stable. We are therefore extremely honoured to receive this guest post from him. And much in line with his foundational philosophy of justice as dialogue (which he articulated thoughtfully in this Quint piece), he is not attempting to offer a legal answer or comment on the merits of the Goswami vs Times dispute. Rather, he is simply focusing on an academic issue and raising a series of questions around it. Socractic style! So please do read, mull and then engage with the queries he raises in the comments section. Thanks!
Content Legitimacy and Copyright
Justice G.S. Patel
Prof Shamnad Basheer raises an interesting question in his piece of 29th May 2017 on the Arnab Goswami v Times Now litigation. In what follows, I am not responding in any sense to Prof Basheer’s piece, and of course I cannot comment on the litigation itself. I propose instead to take the question or issue he highlights and pose some questions of my own. Again, for reasons that are self-evident, I must leave the debate open. Before anything else, though, my thanks to SpicyIP for this opportunity. I do not know if any other sitting judge has engaged with an online community — I suspect not — and this is, therefore, a very real privilege.
The question, at its simplest, is this: is copyright content-agnostic? To explain: does the legitimacy or legality of the actual content have any impact at all on whether it should or should not receive copyright protection?
First, to the hypothesis and, of course, the best place to start, simply because it is invariably controversial, is obscenity. Assume for the purposes of this construct that the work in question is said (we’ll come back to the said-by-whom question presently) ‘obscene’, and that the work fits some accepted definition of ‘obscenity’. That, of course, is an entirely separate debate, but bear with me on the assumption. Does the fact that the work is held or viewed to be ‘obscene’ have the slightest relevance to whether or not it should enjoy copyright protection?
Copyright is an ancient concept. It is a right of exclusivity, for a defined term, and given to the creator of an original work to print, publish and sell copies of that original work of his own creation. The statute broadens the protection. In Gramophone Co of India Ltd v Birendra Bahadur Pandey and Ors, Chinappa Reddy J gave us this definition
“An artistic, literary or musical work is the brainchild of the author, the fruit of his labour and so considered to be his property. So highly is it prized by all civilized nations that it is thought worthy of protection by national laws and international conventions.”
This is interesting not just for what it says but — and I think we would do well to look at the passage again — for what it does not say. Nowhere in this definition, or, as far as I know, in any other, is there any hint that the work must be original and ‘lawful’ (and by this I mean, not illegal, or prohibited). Copyright is essentially the creation of statute (see S.16 of the Copyright Act, 1957 for instance; no copyright or any similar right exists than as otherwise provided by the statute; common law copyright is expressly forbidden). Its purpose is plain, to reward creators with exclusivity in commercializing their original works. It has also been described as ‘negative’ right — while it confers certain rights on creators, it prohibits others from unauthorised copying. We need not, in this discussion, travel to the limits of this protection.
But there are statutory limits to copyright. First, it is limited to certain ‘works’: Sections 13 and 2 read together. It is worth reproducing both these Sections in full:
2(y) “work” means any of the following works, namely:—
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a sound recording;
Section 13 — Works in which copyright subsists
(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say—
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording,
(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 40 or section 41 apply, unless,—
(i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India;
(ii) in the case of an unpublished work other than work of architecture, the author is at the date of the making of the work a citizen of India or domiciled in India; and
(iii) in the case of work of architecture, the work is located in India.
Explanation.—In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work.
(3) Copyright shall not subsist—
(a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
(b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.
(4) The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the sound recording is made.
(5) In the case of work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.
Again, these statutory provisions are interesting not only for what they say, but in the context of this discussion, for what they do not: neither the definition of ‘works’ nor anything in Section 13 speaks of anything more than the originality of the work. Section 2(y) does not speak of a lawful or legal or not illegal or not unlawful literary, dramatic, musical or artistic work; and the prohibitions we find in Section 13 — those to which no copyright attaches — are in regard only to infringing works.
So with this statutory framework, let us return to our hypothesis; and let us now test it against established examples. A good place to start might be the works of Robert Mapplethorpe, an American artist and photographer. The controversy surrounding his works is well-known: his works were exhibited, then taken off and more than one museum said they were obscene. If these works were found to be ‘illicit’ (they were not), would that detract from their ‘originality’, the only requirement of the copyright-protection statute? Or take, closer home, the case of Lady Chatterley’s Lover, the subject of the Supreme Court decision in Ranjit Udeshi v State of Maharashtra. The Court applied the Hicklin test, and found the work to be obscene; penalties for distribution would then follow. This was not a copyright case, and no issue of copyright arose. My question is, however, this: if the work was obscene, and therefore illegal, does it automatically follow that DH Lawrence or his estate would have no copyright in the work? The issue gets even more complicated when we look at works that were banned for other reasons — religious or communal sentiments, for instance, as in the case of Rushdie’s Satanic Verses, Wendy Doniger’s book on Hinduism or James Laine’s work on Shivaji. Whether or not these works should or should not be allowed in print, or whether the bans on them should continue is not in issue. The only question is whether, because of the ‘illegitimization’ or these works, their creators and authors, those whose labour and effort brought into being entirely original works, would stand denuded of copyright protection.
The real difficulty in answering this might have, I believe, something to do with time. Copyright attaches to original works on their being brought into existence (and let us leave aside for now the nice distinctions between copyright in published and unpublished works). The ‘illegitimization’ — the declaration of a work as being illegal, unlawful, obscene etc. — always follows publication, i.e., it comes at a point in time well after copyright has attached. As far as I can tell, copyright is removed, so to speak, only in defined circumstances: when it is wholly assigned, or when the term of copyright expires. Is there an in-between situation where copyright, though it subsists, the work being original, is stripped from the author and the work if the work is found to be unworthy of being allowed to continue in circulation and publication? What portion of the Copyright Act contemplates this? If copyright is entirely statute-driven and statute-created, then can copyright be lost except in a manner provided by the statute itself? We can multiply examples — for instance, cases of popular models or actors being sued for ‘obscenity’ for posing for certain types of advertisements or photographs, paintings of religious icons by famous artists and so on.
Film certification or censorship affords an even more intricate problem. In what would copyright subsist? The film as created, or the final as certified for distribution with certification-board mandated changes and cuts? We have many instances in which films are released in one version and many years later a new version with deleted material is made available. Blade Runner, Gladiator and Apocalypse Now are both examples, but in these cases, the changes or cuts were made by the studios themselves. What of Sholay? It’s original theatrical release was a far more sanitized version — the original version had far more violent scenes and Thakur Baldev Singh kills Gabbar Singh at the end. The end had to be re-shot since the Censor Board would not permit this level of violence. It was not till 15 years that the original, uncensored version was released in Britain (today, both versions are in circulation from Eros International). My question is this: it seems undeniable that even the portions ordered to be cut were original works, or part of an original work. But they were ‘prohibited’ by an act of a statutory body, albeit one unconcerned with copyright law. Would the censoring of those portions have any impact at all on copyright?
At one level, the question may seem pedestrian, but at another it has, I think, profound implications especially in the modern digital age. What might be the ‘copyright protection’ afforded to an original, but entirely illicit, wire-tap or concealed camera filming as part of a ‘sting’ operation? Is it plausible to say that since the very act is illegal, no statutory protection attaches? Copyright is equally intention-agnostic: it does not matter that the creator knew his work would risk being attacked for whatever reason when she or he set about creating it. The copyright statute does not once speak of intention, just as it does not require the ‘work’ to be anything more than originality. The question therefore is this: is there a plausible argument to say that even absent a specific prohibitory statute (which forbids copyright in illegal works), copyright cannot be claimed, or will be lost, in a work that is declared or found to be unlawful? What might be the limits of declaring that work unlawful? Must it be under a statute, or can it be under executive fiat?
These questions assume far more importance when we see the growing resistance to copyright hegemony. This manifests itself in extended copyright terms, and the expansion of copyright protection to areas not previously conceived. There is also the parallel argument that an over-indulgence in copyright protection ill-serves its avowed purpose, which is to foster and encourage creativity. The tussle between copyright and fair use is an ancient one, and it will continue in the years ahead; but that is another debate for another day. In the meantime, we should, perhaps, address ourselves more carefully to emerging issues and questions such as the ones Professor Basheer raises. In a time of a near-manic scramble for higher TRPs and attempts at pushing out the merely salacious as news, these are questions we ignore at our peril.
 See the very interesting 2:1 decision of the Ninth Circuit Court of Appeals in Leicester v Warner Bros, 232 F.3d 1212 (9th Cir. 2000), Judge Fisher dissenting. A downtown Los Angeles tower was filmed for a few seconds in the opening sequence of the 1994 film, Batman Forever. The building permissions demanded that the structure contain artistic elements, works supposedly allegories of the city’s history. They included gates, a park and architectural embellishments on the towers. Warner Bros filmed the walls on the public streets, and most of the several artistic elements in the courtyard were excluded from the shoot. A miniature model was made for filming special effects, with permission from the building owner but not from the artist responsible for the artistic features or the architect. The artist sued for copyright infringement alleging that elements of his copyrighted work were reproduced in the film ‘without permission’. The Ninth Circuit Court of Appeals had to decide whether the building enjoyed copyright protection that Warner Bros had infringed. By a 2:1 majority, the Court found for the Dark Knight (and his cinematic creators).