Is Copyright a Hindrance for Open Access in India?

On the occasion of International Open Access Week, we’re delighted to bring to our readers an insightful post by Dr. Arul George Scaria, discussing whether the process of relinquishment of rights granted to authors under the Indian copyright law may cause copyright to be a hindrance for open access in India.

Dr. Scaria is an Associate Professor of Law and Co-Director of the Centre for Innovation, Intellectual Property and Competition (CIIPC) at National Law University, Delhi. He did his doctoral research (2008 – 2011) at the International Max Planck Research School for Competition and Innovation, Germany, and post-doctoral research (2012 to 2014) at the Catholic University of Louvain (UCL), Belgium. His key areas of interest and specialisation are science and technology policies, open movements, intellectual property law, and competition law. He has two single authored books to his credit, Ambush Marketing: Game within a Game (2008) and Piracy in the Indian Film Industry: Copyright and Cultural Consonance (2014). Dr. Scaria has previously written guest posts for us here, here, here and here.

Is Copyright a Hindrance for Open Access in India?

Dr. Arul George Scaria

The world is celebrating the open access week from October 19 to 25 and the theme for this year is Open with Purpose: Taking Action to Build Structural Equity and Inclusion.  I was fortunate to be a part of seminar series organised by the DST Centre for Policy Research at IISc to celebrate the open access week. When the moderator of the panel, Mr. Madhan Muthu (Librarian, Azim Premji University), suggested that the topic of our panel discussion can be ‘Is copyright a hindrance for open access in India?’, the immediate answer that came to my mind was “No, it’s not a hindrance”. Many factors might have influenced my quick response and this includes the fact that major open movements like the Creative Commons licenses are built on the existing copyright framework. But a deeper reflection of the question in the context of some of the provisions in the Indian copyright law made me change my answer from “No, it’s not a hindrance” to “May be, it is”. This post is intended to discuss one of those provisions that compelled me to change my answer.

Is it easy to waive off rights under Indian copyright law?

A question that hasn’t received due attention in the context of open access in India is whether it is easy for authors to relinquish the rights granted to them under copyright law. As most readers of this blog are aware of, copyright protection is automatic in nature. In other words, the moment an author creates a work that qualifies as a subject matter of copyright protection, it gets protected under copyright law, provided it can meet the minimal standards of originality, as defined by the Supreme Court decision in Eastern Book Company v. D. B. Modak.

But many authors may not want to retain all their rights and some may even want to waive off their rights completely. Section 21 of the Copyright Act, 1957 discusses the possibility of relinquishment of all or some of the rights granted under copyright law and it reads as follows:

“21. Right of author to relinquish copyright – (1) The author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed form to the Registrar of Copyrights or by way of public notice and thereupon such rights shall, subject to the provisions of sub-section (3), cease to exist from the date of the notice.

(2) On receipt of a notice under sub-section (1), the Registrar of Copyrights shall cause it to be published in the Official Gazette and in such other manner as he may deem fit.

(2A) The Registrar of Copyright shall, within fourteen days from the publication of the notice in the Official Gazette, post the notice on the official website of the Copyright Office so as to remain in the public domain for a period of not less than three years.

(3) The relinquishment of all or any of the rights comprised in the copyright in a work shall not affect any rights subsisting in favour of any person on the date of the notice referred to in sub-section (1).”

As at least some of the readers of this blog may recall, it was the 2012 amendments to Copyright Act, 1957 that tried to make the relinquishment process easier by also adding the possibility of relinquishment through a public notice. So most people are under the presumption that any public notice (say for example, the use of CC0 symbol and/ or a link to associated text) is sufficient to meet the requirements of relinquishment of rights under Indian copyright law.

However, to get a complete picture, one has to also look at the manner in which the Copyright Rules, 2013 tried to implement Section 21. Chapter III of Copyright Rules, 2013 deals with relinquishment of copyright. As per Rule 4 of the Copyright Rules, 2013, an author who wants to relinquish all or any of the rights as per Section 21 has two options: (i) give a notice to the Registrar of Copyrights in Form 1 or (ii) give a public notice, as per Rule 5(2) of Copyright Rules, 2013. While the first path is non-ambiguous (but certainly not the easiest path in the digital era!), it is the second one that warrants more attention, as the option for relinquishment through public notice was introduced to ease the process of relinquishment. But if one looks at Rule 5(2), it can be seen that such a public notice should mandatorily include the following information:

(a) Class of the work;

(b) Title of the work;

(c) Full name, address and nationality of the author;

(d) Language of the work;

(e) Name, address and nationality of the publisher, if published, with year of publication and country of first publication;

(f) If copyright in the work is registered under section 45, the Registration number;

(g) The right or rights to be relinquished; and

(h) The date of relinquishment of the rights.

Rule 5(3) says that the author may forward a copy of the public notice, along with proof of his identity, to the Registrar and on receiving such notice, the Registrar shall post the same on the website of the Copyright Office.

Copyright Rules, 2013 has also defined the term ‘public notice’ for the purpose of the chapter on relinquishment and as per that definition, the term ‘public notice’ means-

• mentioning of notice on the work or cover of the work; or
• publication in one issue of a daily newspaper in the English language having circulation in the major part of the country and also in one issue of any daily newspaper in the same language of the work; or
• Posting the notice on the web site of the Copyright Office at the request of the author by giving the details as required under sub-rule (2).

While the option for relinquishment through a public notice was introduced in Section 21 primarily to enrich the public domain through easier relinquishment of rights, a combined reading of Section 21 of the Copyright Act and Chapter III of Copyright Rules, 2013 make one wonder whether this objective has been more or less completely defeated. As one can imagine, not many authors would be willing to spend so much of time and efforts in compiling and sharing all the mentioned mandatory information, even if they intrinsically wish to relinquish all or some of the rights in their works for the broader social benefit. It is also doubtful how many authors would be able to identify precisely the class of work. Even identification of the nationality of the publisher could be difficult at times, particularly when the work was published in an online media. One should also try to view these challenges in the digital context, wherein millions of works are created every second and ask how much time the authors can spend on compiling the information required for relinquishment of rights in all their copyrighted works. A quick search on the Copyright Office website also did not show any public notices published under Rule 5(3). If any readers of the post have seen any such notices on the Copyright Office website, they may provide the links to such notices through the comments section of this post.

Are there practical consequences?

The cumbersome procedure envisaged under Chapter III of Copyright Rules, 2013 may also raise some practical questions. The most important among them is whether the attempts for relinquishment of rights through tools like CC0 of the Creative Commons would be valid relinquishments under Indian copyright law. As one may notice from the procedural requirements mentioned in the previous section, the answer may be negative. Most people who are currently using tools like CC0 fail to follow all the requirements of a public notice under Chapter III of Copyright Rules, 2013, even though the intention of using such tools is to convey clearly to the public the relinquishment of all rights in the work.

While it can be reasonably presumed that our legislators did not intend to outlaw relinquishments through tools like CC0, Copyright Rules, 2013 may in effect be making relinquishment through such easy tools in the digital world meaningless in India. From a policy perspective, it might also be important to ask ourselves what additional benefits we as a society are gaining by imposing such procedural hurdles for relinquishment of rights under copyright law. If copyright protection doesn’t demand formalities, we have hardly any justification in demanding formalities for relinquishment of rights granted under copyright law. Specific requirements regarding the notice are bringing in unnecessary uncertainties regarding the validity of waivers through user-friendly tools and it is desirable to make necessary changes in the copyright rules for easier relinquishment of rights.

Way forward

As the world celebrates the open access week, we as a nation may critically examine whether we have done enough to ease sharing of knowledge resources within the framework of our copyright law or whether we are defeating the objectives of enriching the public domain by putting in bureaucratic hurdles for waiver of rights. This is particularly important in view of the increasing recognition of the value of sharing knowledge resources for promoting innovation and creativity. The current Covid-19 crisis has further highlighted diverse dimensions of the importance of sharing knowledge sources. Let the current open access week celebrations be a good reminder to us on the value of sharing and the need for fine-tuning our copyright law to promote sharing.