Copyright Others

Right to Research (“R2R”): An Independent Right with an Imposed Dependence in Copyright Law?


book cover of Dworkin's "Taking Rights Seriously"Lokesh Vyas writes in with a post pondering the existence of a ‘right to research’ (r2r) in India. The query around r2r in general is not a new one – see for example Appadurai’s widely cited 2006 paper by the same name, or SPARC’s Coalition formed back in 2009. Lokesh attempts to find grounding for it in Indian law through the current post. He is an LLM Candidate (IP and Technology) at American University Washington College of Law (AUWCL), InfoJustice Fellow at PIJIP, and Arodhum Scholar, 2021. He graduated from the Institute of Law Nirma University, Ahmedabad in 2021. You can find his earlier posts for us here.

 

Right to Research (“R2R”): An Independent Right with an Imposed Dependence in Copyright Law?

Lokesh Vyas

Several academics and activists in some other parts of the world are discussing a ‘Right to Research’ (“R2R”) (American University’s PIJIP – my current institution is doing one such plethoric project in the light of international copyright laws) which is indeed needed to combat covid-created calamities (e.g. read Prof Sean Flynn’s paper). However, I wonder whether India is witnessing similar discussions. Undoubtedly, issues around research (including access, inequitable participation, excessive pricing) are not novel in India. In recent times, we’ve seen it come up during the DU Photocopy battle as well as in the Sci-Hub controversy (read Nikhil’s three-part post (Part I, Part II, Part III). However, a full-fledged discussion around whether a ‘Right to Research’ exists in India, whether it be internal, or external to Copyright laws seems largely absent.

If we imagine what an R2R could be, it need not necessarily stem from copyright law, nor does it appear to be only limited to people’s right to access research material. Scope-wise, it’s not necessarily limited to researchers, even if they are the ones who are obviously affected by it. Rather, I will attempt to frame it as a constitutional right with a strong footing in international human rights law. I argue that R2R can have four possible premises – 1.) a right under the constitution 2.) a user right under copyright law. 3.) privilege under copyright law. 4.) an exception under copyright law. I specifically support the first (constitutional right) and the third (privilege under copyright, in terms of Hohfeld taxonomy) premises. (Per Hohfeld Taxonomy, if ‘right’ to research is regarded as a privilege, no duty will lie in the users and no-right will exist in copyright holders.)

I divide the post into two main parts – the first part argues that ‘research’, although provided for in Indian Copyright law, runs on the premise of a baseless assumption of access by users, making it an incomplete and impractical user right. The second part highlights the constitutional and international law framework of R2R and attempts to establish its existence outside copyright law. 

(Note: 1. This post is limited to ‘research’, but it may be an interesting thought exercise to consider other fair dealing activities as a privilege. 2. Since the topic requires a full-fledged research paper with detailed arguments, the post only touches upon the constitutional and international law aspects to show that there is a strong logico-legal case worth investigating, for the R2R in India.) 

India’s Presumed-Access Research Right!

Section 14 of Indian Copyright law provides an exhaustive list of rights owned by the copyright holders, with a disclaimer that they are “subject to the provisions of this Act”. One relevant provision in this regard is Section 52 which reads ‘​​Certain acts not to be an infringement of copyright’. Specifically, Section 52(1)(a)(i) that reads “a fair dealing with a literary, .. for the purposes of— 1[(i) Private use including research”, is relevant for researchers. A conjoint reading of Section 14 and Section 52(1)(a)(i) suggests that copyrights cannot be an impediment for private research (although there is an arguable case for its expansion to public research, see comments here). However, this does not happen in reality, because access, which is a prerequisite for research, is controlled by copyright owners. It is worth noting that although copyright holders control the access of the works’, this control of access does not come from Section 14. Given Section 16 which restricts the interpretation of copyrights to the statute, Section 14’s interpretation cannot be expanded beyond the literal framings within the statute. 

[Separately, if rights conferred under the Copyright Act ARE SUBJECT to other provisions including Section 52 which lays down non-infringing activities, then why should research be regarded as an exception to copyright (for e.g. See Para 19, here) and not vice versa!]

One way to control access, (though not as a right) comes from Section 65A (read more here), dealing with technological protection measures (TPM), which are covered by the concept of paracopyright (see also here). But as per the statute, TPMs can be circumvented for ‘a purpose not expressly prohibited by the Act’, taking us back to Section 52(1)(a)(i). Regardless of how benign the idea was to make it adaptable to Section 52, circumventing a TPM demands technical expertise which cannot be always expected from a researcher. In simple words, Copyright Act, 1957 permission allowing access  to research works protected by TPMs works only if one is a technically able researcher.

Doesn’t this look like a scenario where access is either assumed or overlooked? Worse, if research is a right under copyright law, regardless of how impractical it is, it would most likely be shown (and seen) to be pitted against copyright holders because rights/interests in the same statute are often thought to require a ‘balance’, i.e. treated as opposing forces (though indirectly, it speaks of IP Internalism, see here). Thus, when the question reaches the court, the Judge would apply a balancing test (the balance between author rights and users’ rights) to ensure that both parties’ interests are protected. But it runs with a presumption that protecting parties’ interests would automatically (or ultimately) endorse the public policy goals of copyright law (see the relevant discussions of Parliamentary Debates on Copyright law at pages (of the uploaded file) 124, 136, 196, 351 especially the statements of Mr. Kishan Chand). 

‘Balance’ is nothing but a mystical metaphor of (over)simplifying issues with an assumption that all the background work has been done (see for e.g. here). Moreover, from whose perspective, is the balance seen? This ballad of balance makes a bizarre impression that users and copyright holders have antagonistic interests, like a zero-sum game. But doesn’t this contradict the fundamental goal of copyright law which hinges on the harmony between users and creators​​ (where users and creators are not necessarily different) with an aim to foster knowledge and enhance it by maximizing people’s participation in a creative activity? I think, yes, it does.

Tellingly, giving people a right to research which presumes access, is equivalent to expecting every researcher to have institutional access to research, as well as assuming that institutions actually have the necessary subscriptions to all journals. This is in essence making research contingent on the economic capability of an individual. Further, if access is available, the accessor can anyways make use of the work and the researcher would be treated like any other consumer. In its current form, it is just a theoretical right, playing the role of a paper tiger with no real-life benefits

Right to Research (R2R) – An Independent Right?

As per the OHCHR, states have a duty of respecting, protecting, and promoting the rights of people to undertake and access research, and this is core to actualizing many fundamental human rights. These rights include the right to science and culture (Art. 27, UDHR & Art. 15, ICESCR), right to expressions (Art 19 UDHR & Art 19, ICCPR), and right to development (declaration and supporting treaties), right to education (Art. 23, UDHR & Article 13, ICESCR). Further, there are rights that are derived and deciphered from the above rights such as the right to read, right to knowledge, right to information, right to think/learn, right to academic freedom, right to be creative. Hence, an R2R is just a derivative of these extant rights (especially the right to science and culture) which does not owe any recognition in copyright law. Interestingly, these rights have later  found a place in the Indian Constitution. 

‘Research’ literally suggests a close intellectual engagement with something, thus, it necessarily involves the faculties of reading, thinking, examining, which ultimately adds value to the personality of an individual. Given such a relationship of research with overall individual development, R2R draws credence from Part III and Part IV of the Indian Constitution. Under part III, R2R gains support from Article 21 [Right to Life] and Article 19(1)(a) [freedom of expression]. 

In 1966, in Rabinder Nath Malik v The Regional Passport Officer, the Delhi High Court noted that the scope of Article 21 includes “a right to acquire useful knowledge,”. Similarly, in 1980, the Supreme Court of India in Francis Coralie Mullin v The Administrator, Union Territory of Delhi, (dealing with a right of a detenu under COFEPOSA Act) noted that “… the right to life includes the right to live with human dignity and all that goes along with it, namely, … facilities for reading, writing and expressing one-self in diverse forms…”. Highlighting the importance of giving a broad interpretation to fundamental rights especially Art 21, the Court went on to say that “Every limb or faculty through which life is enjoyed is thus protected by Article 21 … include the faculties of thinking and feeling. Further, in Samatha v State of UP, while mentioning the right to development as a fundamental right, the Supreme Court included the fulfillment of the “social, cultural and intellectual” needs under Art. 21. I would argue that this can be used to bolster the premise for a right to research as well. 

Similarly, in Wiley Eastern Ltd. vs IIM,  the Delhi High Court found the purpose of Section 52 of Copyright Act (specifically mentioning ‘research’ at Para 19) in protecting Article 19(1). Thus, it could be argued that R2R is potentially backed by both Articles 21 and 19 – with Copyright law seeing it as a part of freedom of expression, and the Constitution justifying it as a part of living with human dignity.

Under part IV, a duty is imposed upon the state under Article 39(b) to effectuate that “the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. The term “material resources” is interpreted so broadly that it includes both public and privately owned materials, and a premise for an R2R could be found within this understanding. The inclusion of data under material resources by the Srikrishna Committee (e.g. here) further lends support to the argument that it can include informational goods such as research material within its ambit.

Notably, it can be observed that R2R under the Constitution, if it exists, would tend to focus on overall well-being and the holistic development of an individual. Conversely, Indian Copyright law’s R2R/research exception/limitation appears (at least semantically) to be only concerned with the availability of research material as it seems to already assume (/ignore) access.

Final thoughts – Importance of (Re)Contextualization/Revision 

The framing of R2R within Copyright is not a problematic premise per se. However, it does not do much, and rather limits R2R’s scope and impacts to merely being called a right of the user who (often) is willing to research and needs access to copyrighted content. Such scenarios, by the very policy narrative of balance between private and public interests, are sought to be adjusted with(in) copyrights. Conversely, a constitutional framing of R2R backed by human rights logic would break this binary of ‘copyright owner–users’, making research a right of everyone which can include access to research, contribute to it, and make it available.

This framing can revamp its functioning and simultaneously foster the public interest goals of copyright laws. Such revision/contextualization of R2R would also help courts manifest and understand the (hidden) interrelationships, tensions, and contradictions between various legal concepts, legal problems, and legal arguments such as liberty, economic and social inequalities, property, knowledge governance, contract, free will, which though may be connected with copyright law but do not really stem from or exist within it. As noted in the beginning, this is a very surface level beginning to this conversation. I would welcome readers to write in with their thoughts and critiques. 

Some notable readings – InfoJustice (PIJIP), R2R – Bibliography; Carys Craig, Users rights Rhetoric; M. P. Ram Mohan and Aditya Gupta, Right to Research in India, Jessica Litman, Readers’ Copyright; Julie E. Cohen, Place of users; Jane C Ginsburg, Authors and Users in Copyright law (paywalled); Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” and “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (paywalled); J. M. Balkin’s “The Hohfeldian Approach to Law and Semiotics” and “The Promise of Legal Semiotics”.

I would like to thank Prof Sean Flynn and Swaraj Barooah for their inputs on the topic. Thanks to Akshat Agrawal for his comments on the draft.

11 comments.

  1. Murti Poolla

    1. I would pray where is the word “Research” defined in any of our Indian Acts. Also, in any Acts of Foreign Countries like US, UK and EU

    2 How to interpret the Common Law meaning of the Word “Research” ?

    Reply
    1. Lokesh Vyas

      Hi Mr. Murti,

      Sorry for my delayed response. Thanks for reading the post and giving comments. My responses are as follows:-

      1. Research per se is not defined under the Indian Copyright Act and unfortunately, I am not aware of any other statute which defines the same, please let me know if you have any idea. Having said that, as anon. pointed out, the ‘purpose of research’ is defined in Section 32 and gives a broad idea about what research can and cannot be under the Act. Interestingly, it bears noting that this definition is limited for the purpose of Section 32, and cannot be applied to Section 52 (which, in my opinion, should be broader than section 32).

      2. Nice question – to understand and interpret the term research, we need to first look at the act and see if any definition is provided. Since the same is absent, we have to go to external sources which can be case laws, dictionaries, etc. I have relied on case law that justifies the use of the dictionary (though I couldn’t mention it in my post – sincere apologies for that).

      In Blackwood And Sons Ltd. And Ors. vs A.N. Parasuraman And Ors. (see here – https://indiankanoon.org/doc/1685540/), an issue involving copyright law, noted that “There is no definition of the word “research” in the Act, and, therefore its meaning has to be ascertained from ordinary English usage.” Similarly, in Balram Kumawat vs Union Of India & Ors (not on copyright law), the Supreme Court relied on dictionary meaning.

      However, in case the dictionary meaning causes contrarieties, the context of the Act and purpose become important. This was noted in “Pyarali K. Tejani vs Mahadeo Ramchandra Dange” (not an IP case) where the SC noted “In the field of legal interpretation, dictionary scholarship and precedent-based connotations cannot become a universal guide or semantic tyrant, oblivious of the social context, subject of legislation, and object of the law. The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the commonsense understanding of the word”
      But in the present case, dictionary meaning is not only valid but also coincides with the purpose of the Act [and surely with Section 52(1)(a)(i)].

      In sum, the way I argued ‘research’ in this post (inspired by Phillip Bobbit’s The Modalities of Constitutional Argument) keeping the following points in mind – “historical (Copyright debates); textual (dictionary meaning + context/purpose of statute); structural, doctrinal (applying rules generated by precedent); ethical; and prudential (seeking to optimally weigh the costs and benefits of a particular rule).”

      Separately, there are a few more points that need to be underscored which may not directly answer your comment but are important for the purpose of the issue – Copyright Act, 1957 mentions the word “research” thirteen times, giving a basic idea about the scope of the same under the act. If we look at these mentionings in the act, it is clear that research is definitely different from the personal study [see Section 52(p)] and can be as broad as “all other types of organized educational activity​​”. It can even be argued to cover any type of research whether commercial or not. Since ‘research’ is a justified non-infringement, it won’t be a gaffe to say that copyright does not cover research at any point (if we think of it in van diagram, copyright is just an exception to freedom of expression and it can only cover certain part which the statue recognizes). I hope it answers your query.

      Reply
    2. Lokesh Vyas

      Hi Mr. Murti,

      Sorry for my delayed response. Thanks for reading the post and giving comments. My responses are as follows:-

      Research per se is not defined under the Indian Copyright Act and unfortunately, I am not aware of any other statute which defines the same, please let me know if you have any idea. Having said that, as anon. pointed out, the ‘purpose of research’ is defined in Section 32 and gives a broad idea about what research can and cannot be under the Act. Interestingly, it bears noting that this definition is limited for the purpose of Section 32, and cannot be applied to Section 52 (which, in my opinion, should be broader than section 32).

      Nice question – to understand and interpret the term research, we need to first look at the act and see if any definition is provided. Since the same is absent, we have to go to external sources which can be case laws, dictionaries, etc. I have relied on case law that justifies the use of the dictionary (though I couldn’t mention it in my post – sincere apologies for that).

      In Blackwood And Sons Ltd. And Ors. vs A.N. Parasuraman And Ors. (see here – https://indiankanoon.org/doc/1685540/), an issue involving copyright law, noted that “There is no definition of the word “research” in the Act, and, therefore its meaning has to be ascertained from ordinary English usage.” Similarly, in Balram Kumawat vs Union Of India & Ors (not on copyright law), the Supreme Court relied on dictionary meaning.

      However, in case the dictionary meaning causes contrarieties, the context of the Act and purpose become important. This was noted in “Pyarali K. Tejani vs Mahadeo Ramchandra Dange” (not an IP case) where the SC noted “In the field of legal interpretation, dictionary scholarship and precedent-based connotations cannot become a universal guide or semantic tyrant, oblivious of the social context, subject of legislation, and object of the law. The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the commonsense understanding of the word”
      But in the present case, dictionary meaning is not only valid but also coincides with the purpose of the Act [and surely with Section 52(1)(a)(i)].

      In sum, the way I argued ‘research’ in this post (inspired by Phillip Bobbit’s The Modalities of Constitutional Argument) keeping the following points in mind – “historical (Copyright debates); textual (dictionary meaning + context/purpose of statute); structural, doctrinal (applying rules generated by precedent); ethical; and prudential (seeking to optimally weigh the costs and benefits of a particular rule).”

      Separately, there are a few more points that need to be underscored which may not directly answer your comment but are important for the purpose of the issue – Copyright Act, 1957 mentions the word “research” thirteen times, giving a basic idea about the scope of the same under the act. If we look at these mentionings in the act, it is clear that research is definitely different from the personal study [see Section 52(p)] and can be as broad as “all other types of organized educational activity​​”. It can even be argued to cover any type of research whether commercial or not. Since ‘research’ is a justified non-infringement, it won’t be a gaffe to say that copyright does not cover research at any point (if we think of it in van diagram, copyright is just an exception to freedom of expression and it can only cover certain part which the statue recognizes). I hope it answers your query.

      Reply
  2. Anonymous

    Research is defined within the copyright act itself- please carefully peruse it. Section 32. Also the Blackwood judgment (although in ignorance of section 32) has also derived external definitions of the word research.

    Reply
  3. Jagdish Sagar

    A real problem, but I feel the basic issue is access, since there is no copyright in facts or ideas, which is surely what an honest researcher is looking for. (The statute could be amended–with enough thinking through–to make this clear. Certainly the researcher must organise the content in an “original” way.) Such a researcher should acknowledge his or her sources (of information, which is what the researcher is limited to) which is a matter of ethical academic practice and, in the case of statistics etc also advisable to establish credibilty, but not usually a matter of copyright.
    That is why I feel the real issue
    is of access. That is really problematic, but it is the problem that really needs to be addressed; any attempted solution will need to be really bold, yet circumscribed to conform with our international obligations under the three-step test; I believe this is possible and should be done, but the legislative draftsmen would need to be more competent than they have hitherto shown themselves to be in amending the Copyright Act.

    Reply
    1. Anonymous

      The problem of access is squarely addressed by 65A(2) of the Act- which specifically allows for circumvention (of paywalls) if it is done for the purposes mentioned in section 52 ( fair dealing for the purpose of research use- the dealer and the user being differently conceptualised). This is even clear if you see the 2012 parliamentary standing committee report of 2012- it’s section on 65A. The issue is it requires too much litigation to be allowed- and the lobbies which dominate litigation would never allow for it to happen. Section 52 is squarely compliant with Berne and TRIPS, and so is 65A and its sub sections (para copyright as generally known). So there seems to be no reason as to why access has to be restricted. The issue crops in capability to hack. Not everyone can hack. The ones who hack and the ones of fairly deal and the ones who use for research can all be different people and can also be the same individual. That’s precisely why – the proviso to 65A(2) provides that the hacker (who is not covered by the dealing purpose nor the user purpose in 52) needs to maintain a record of for whom they are hacking. If the hacker and the fair dealer is the same then it does not really matter. So tbh the issue of access is sorted, the issue of ethics is also seen by moral rights- so the real issue that subsists is breaking publisher lobbies who try and evade these provisions by fielding the biggest lawyers to if not cancel out, them at least stall the actual application of the intended provision in the Act.

      Reply
      1. Jagdish Sagar

        I think section 65A is ill-drafted, imprecise, and not really very practicable. But that would be a subject for another post.

        Reply
      2. Lokesh Vyas

        Dear Anon,
        Thanks for your comment and sorry for my dilatory response. I agree with most of what you said about the ill/weak interpretation of Sectio 65A but giving full access with no restriction can be problematic for the IP owners. So the fun part is – what if they lose IP powers completely or partially? If we can limit them or dilute this august “IP Owner” title with respect to research (and other fair use/dealing concepts), we have a better chance of claiming research as the norm to which IP is an exception. Now, it seems paper tiger in my comment, and I agree that strong Users’ lobbying is the need of the hour. This scares me even more, given the recent parliamentary report where there are claims of India’s tarnished reputation because of the DU photocopy case (don’t know who is the reigning the real ‘reputation’ then, those who issue Special reports? Perhaps). Hope there will be questions. Meanwhile, keep highlighting it here and everywhere.
        Thanks again for your thoughtful comment.

        Reply
    2. Lokesh Vyas

      Dear Mr. Sagar,
      Thanks for reading the post and commenting. My sincere apologies for the tardy revert. While this seems correct to a large extent that the issue is of ‘access’, it is important to clarify that it is not really because of a lack of law (needing any amendment!). Rather, it is because of the ill interpretation of the law. In Section 65A, I fail to see the logic in mandating recording keeping, so much so that it overshadows whether the use is fair. This shift in focus from ‘fair use’ to ‘fair access’ (meaning: use is only fair when access is fair) is something that needs good highlighting and revamping. As Anon appositely averred the issues of strong publishers’ lobbying (I agreed), IMO, it is also important to admit that it is weak(er) institutional lobbying from the users’ side. The issues of ‘ethics’ or “real researcher/user who just want to use works ‘fairly'” are easier to sideline than to be taken care of (e.g. if I give access, it can be misused, hence, it will limit it altogether). And for Berne Convention, I don’t have any say, in my opinion, is a caustic colonial construct that is hard to undo now. Just a tidbit regarding R2R, even in the Berne Convention when the issue of research was first envisaged (In 1884, in the German Questionnaire), research/scientific/education use was conceptualized as a reciprocal right (*Not an L&E*) of people and I hope the issue will be taken care of soon. Again, thanks for your comment.

      Reply
      1. Jagdish Sagar

        I made a brief comment that I should elaborate. Section 65A, the scope of which anyway is so loosely defined that it will lead to interpretory litigation, is of little practical use for the reason already mentioned. It is, of course a non-cognisable criminal remedy, but still capable of being used for harassment by a resource-rich party. I am not sure it is practicable to do much about the three-step test in light of the WTO Dispute Resolution mechanism’s interpretation of it, which is binding on us and is more effective than anything in a WIPO convention. Nevertheless, I believe that the terms of WCT are sufficiently broad for a well-crafted piece of legislation, in place of Section 65A, to work.

        As for section 52(p) which has been mentioned, the reference to research is arguably, but not certainly, a little wider than section 52(a), but it is limited to unpublished works.

        But thanks for mentioning unpublished works: another probem for researchers is the indefinite subsistence of copyright in unpublished works. Firstly, this is true at least in every case where the author of was alive in 1911, if the author was a British subject (which meant about one-fourth to the world.) Worse, I haven’t studied the implications of the Indian Copyright Act, 1847 in this regard. Further, presumably, unpublished works which were attributable to member countries of the Berne Convention would enjoy copyright in India after the Berne Convention (1886) was first ratified by Great Britain: there was a colonial clause extending the obligations created by the Convention to the entire British Empire (and other colonial empires). I can think of other questions this gives rise to, but enough.

        Sorry for that hypertechnical digression. The main point is important: there is no limitation on the subsistence of copyright in most unpublished works created at least in the last hundred years or so, until such time as they are published, which might be never since it is only the copyright owner (including his successors) that can allow publication. This will also to be the position in respect of all works being created from now on, forever. This lacuna surely needs to be addressed by legislation.

        Reply

Leave a Reply

Your email address will not be published.