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.[1] 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.
[1] 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).
It should be no surprise that copyright content should matter, if one goes by history and by comparison to related grants of exclusive rights — i.e., patent law. The common law as codified in the English Statute of Monopolies placed restraints on the royal prerogative to grant exclusive rights before the Statute of Anne. The Statute of Monopolies restraints included “so as also they be not contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient.” In the United States and elsewhere, these restraints sometimes took on the character of prohibitions based on their lack of “moral utility” (actually the presence of dis-utility), precluding things such as patents on gambling machines. (The moral “utility” concerns remain current in the version of failures to work the invention for public benefit.) Thus, the moral “content” of the exclusive rights matters, and not just in regard to the difficult and continuing debates on what kind and degree of creative advance reflected in what kind and degree of physical object or process qualifies for the statutory right to exclude (i.e., the difficult continuing questions of patent eligiblity, which themselves — in regard to discoveries of science — were based on religious moral content concerns that I have detailed elsewhere — and which continue to this day in regard to such issues as genetic materials, diagnostic devices, stem cells, cloned sheep, and even algorithms). See http://dev.hastingslawjournal.org/wp-content/uploads/Sarnoff-63.1.pdf, at page 90 et seq.
Turning back to copyrights and expression (rather than patents and invention), the censorship concerns noted above by his Honor may raise very difficult and troubling issues regarding the treatment of the morality (content) of the work within constitutional systems, particularly in jurisdictions strongly prohibiting speech restrictions (such as the U.S. First Amendment prohibition). However, whether the failure to grant incentives for speech promotion in the form of third-party speech restrictions of copyright, through content-based debatably “unconstitutional” conditions placed on who can receive those incentives, is a deeply contested issue) . In any event, that question really goes only to the nature of the particular constitutional system and the actual statutory authorization and conditions for the grant of rights, and thus whether the legislature has decided to impose morality-based restrictions on the grant of such rights. Similarly, the “automatic” nature of the grant based on fixation may merely suggest that the legislature has chosen not to make such distinctions.
The ultimate question thus is whether the legislature has chosen to prohibit the coordinate branches of government from restricting the grant or enforcement of rights based on morality of the content when not expressly conditioning such rights in the authorizing legislation, and whether it would be constitutional for courts to do so. If the administrative copyright offices were to refuse registration on such grounds, arguably that might be within their delegated authority (as either legislative or administrative powers, depending on how one views administrative delegations) as a matter either of policy-making or as a matter of interpretation. (Each jurisdictions practices in regard to statutory interpretations and administrative governance may vary.) But absent copyright registration as a requirement for enforcement of exclusive rights, and particularly if recourse could be had to other forms of protections such as unfair competition based on unregistered content, the denial of registration would have little effect. Thus, the key question is whether the judiciary believes that the legislature has disabled them from making such moral content judgments (to the extent such authority is permitted by the constitutional system in regard to expression regulation). Even assuming that the legislature has done so as a matter of law, judges might then decide they retained equitable authority to prohibit lending judicial power to enforce such morally objectionable grants, or even to equitably invalidate such rights ex-post, through granting writs such as scire facias.
In short, I encourage judges (in egregious cases, where the immorality of the content and the morality of the judicial action cannot easily contested) to engage the legislature by taking such action — and then see whether the legislature believes that such power should be denied to their coordinate branch of government. Of course, given other areas of conflict within separated powers of government, perhaps this is not the most important area to assert judicial prerogatives and to enforce social morality, even if only by denying subsidies (in the form of exclusive rights) that support and encourage immoral content?
The blog raises some very interesting questions on the relationship between illegality/obscenity and copyright by a highly esteemed judge. While this has profound implications on the nature of copyright it would also do well to consider the art in relation to copy right. I would attempt to answer this not as a legal paper but as a blog for general reading. Copyright has moved from the sweat of brow doctrine to originality. For copyright to be accorded there must be a modicum of originality. Per J Peterson (University of London Press v. University Tutorial Press Ltd), it was held that it neednot be an expression of original thought, but it is the way of expression of thought onto some medium.
What I would like to point out is the dichotomy of the illegality/obscenity and copyright. What is obscene for one society maynot be obscene in another. Take for example Shungo art of Japan. These are explicit drawings/paintings, highly erotic and with a huge demand by collectors and mind you they are copyrighted.
The temple sculptures of Khajuraho is highly erotic and comprises an orginal thought and expression, but still is not considered to be obscene, since it is attached to the spiritual lobe of human creativity, but it has no copyright due to eflux of time.
Similar symbols of fertility in various civilizations are original works but would not have copyright due to efflux of time. A visit to Bhutan one would find most dwellings have huge phallic symbols/ phalluses either painted on walls or sculpted in wood, hung on doorways. Probably this would have raised obscenity issue in India. When eroticism is attached to religion it is sanctified and becomes part of the culture, but when it is cut from religion/morality, it becomes obscene in isolation.
Let us also consider the photographs of some of the well known photographers of the 20th/21st century, like Helmut Newton, Edward Weston,Henrich Kuhn, Paul Outerbridge Jr, Kikulji Kawada, Tom Wesselmann, Will Barndt,Fransesca Woodman,Erwin Blumenfeld, Henri Cartier Bresson, Man Ray etc., Most of these photographs depicting the human body particularly the female form is under copyright of the photographers themselves.Would one dare exhibit them in India as it would draw ire of the public? It would have been hailed as the most obscene. It would be diffcult for the courts to balance the delicate nuances between Article 19 of the Constitution, Copyright Act and the IPC sec 292 of IPC. But the question remains if it is copyrightable? After the recent judgment of the Rajasthan High Court….. who would dare balance and answer the question as to where art starts and obscenity ends,(sic) if peahens would conceive peachicks by drinking tears of peacock? In the uncertain state of hypernationalism, law is likely to fall to wayside in matters of art/obscenity/copyrightability.
But the question is, is it original and protectable under copyright? To understand the nuances anything expressed as part of originality and creativity is original ie conceived by the mind and expressed. So the first question is answered that is it is original. Second question is it copyrightable? If the work is not obscene though depicting nudity, but not appealing to prurient senses, it is copyrightable and legal under the statutes. But a work though original, if founded on illegality/obscenity, doesnot stand and therefore no copyright. Article 19(4) and Sec 292 IPC would come into play. They remain mere (original) works with no copyright, left in public domain, as the law stands and is interpreted today.
Very interesting take both by Justice Patel and Prof. Sarnoff.
Even if the word “work” is given an expanded meaning by considering what the statutory provision do not say in context of the present case, would it be possible to discount the threshold standard of copyrightability (degree of originality) in such work to construct that expanded meaning? One wonders as to what degree of originality can be attached to a recorded tape conversation (audio or video footage) exhibiting connection between two individual or questioning an asserted plea of alibi! It should be interesting to see as to how such recorded tapes are different from a recordal of fact when such records are created solely for the purpose of news reporting. The records couldn’t possibly be treated to the level of “compilation of facts” for which certain level of selection, creativity and judgment gets exercised and incorporated into the creation of such compilation. Fact captured in the work was not created as fact was unfolding already and someone sneaked merely to capture the event. Originality coalesces with facts. Evidently, it is the captured fact/event that drives the entire value/utility and nothing else additional would have enhanced utility/appeal of such work. There would be many difficulties to treat such plain recording as “sound recording” or such footage as “cinematograph film?” Would such tapes be promotive of useful arts?
In another count, an “obscene” work as meant in the discussion is obscene or illegal/immoral to the extent it is published in violation of certain relevant laws or moral standards, and the right of photographer to create (fix) such work is still beyond question or that the very act of creation is not illegal. Issue of obscenity or morality enters post publication and much after the copyright become settled. Obviously, for a work of a hidden camera record, the right of the photographer to make such record is questionable. Can one claim copyright on a photograph taken out of a place or event where photography is prohibited? In other words, can the photographer be able to enforce copyright against the owner of such place/event who issued such prohibition? Again most importantly, would such tapes be promotive of useful arts?
Another expanded interpretation may be needed to see what all can go into the meaning of “copy right shall not subsists…”
Dear Mathew,
Article 19 of the Constitution and Section 292 of IPC states that the right will be curtailed to a certain extent. It does not state that there won’t be any right at all. Even though the difference is practically the same, i doubt whether we can argue that there exists no copyright.
Let me brief, very brief and start on the premise that an illegality is a nullity, unless a contrarian view is subscribed, even if the second premise is scribed even then illegality doesnot become true or valid.
The esteemed justice(one of the Justices whom I consider to be luminary and hold a great deal of respect) mentioned Courts have moved away from the Hicklin test. The Hicklin case was abandoned and then came in the Ruth test in the US. Thereafter the US started following the steps laid down in Miller’s case, which became the standard- the Miller test.
The Millers test lays down that :
(a) If and when a person applying contemporary community standards, the work taken as whole appeals to prurient interest.
(b) If the work describes in an openly offensive way sexual conduct or ….
(c) If the work lacks any artistic, literary, scientific or political value
Here the standard person is the average person found in any applicable society, and not the sensitive ones belonging to a community.
See the following cases- Roth v United States 354 US 476 (1957)
Miller v. California 413 US 15(1973)
Memoirs v. Massachusetts 383 US 413(1966)
Now coming to the reasonble restriction stated, test and and see the case Gujarat v. Mirzapur Moti Kureshi Kassab Jamat(2005) 8 SCC 534, though it is not directly related to copyright.
See Chandrakant Kalyandas Kakodkar v. State of Maharastra AIR 1970 SC1390
Dr Ramesh Prabhoo v. Prabhakar Kashinath Kunte AIR 1996 SC 1113
What is based on an illegality will not become copyrightable-only the claim that it is original.
I donot know if the readers know that there existed a book which was banned upteem times, ‘The Life and Adventures of Miss Fanny Hill’, salacious and prurient to a very extent and is apt to corrupt a formative mind; a favourite with teenagers and young bachelors. The author is ‘Anonymous’ . Now consider this anonyomus work and for minute consider it is published -say in the year 2000 and author is anonymous(for now lets say unkown) , (Sec 31A) do you think the Copyright Board would grant you license to publish the work in India to be translated, “…… Fanny Hill” in Hindi??? Test this fiction and see!
See what mischief is to be curtailed and probably you will have an answer
( Permit me this-in the age of Google, relative anonymity is sanctum)
pardon my typos, single finger typing both in the comment and rejoinder
A thought-provoking article by Justice Patel! I wonder if he would also consider applying the legitimacy-copyright conflict from a different perspective, namely misappropriation of Traditional Cultural Expressions through copyright or whether the same would help in understanding the scope of the debate. In fact TCE is one such area where the legitimacy and legality of content are most at loggerheads.
Dear Mathew,
I may be way off the mark, but your example pertaining to the ‘Adventures of Fanny Hill’ may not be appropriate in the confines of the debate. Applying for a translation of the said work under Sec 31A (assuming the author is Indian) is based on the assumption that the book has already been determined to be obscene (rightly or wrongly). In that sense, the copyright sought to be created by the applicant (translated work) would come into existence only post the determination of obscenity.
I don’t know if it leads us anywhere in the present debate, where as Justice Patel has stated, copyright is conferred once work is created and moral issue of obscenity is determined post publication.