In his independence day speech, the Indian P.M. Modi urged people to focus more on ‘duties’. Earlier, he said that a focus on “rights” has made India weak. Previously, President Droupadi Murmu also spoke of duties and Justice N.V. Ramana highlighted the importance of knowing our constitutional rights and duties. While I may share some sentiments with this ‘right-duty’ talk, such focus on rights-duties language makes me wonder if we are becoming dependent on “Right” in the sense of ‘right-izing’ everything and whether right-duty is the only legal relationship and way to look at (legal) problems.
Appositely, while the ‘property’ image of IP has become a part of our legal consciousness, the nature of user interests is unclear. Some courts and academics describe them as (Human/Fundamental) ‘rights’ (e.g. see 2021’s draft on Permitted Uses and its notes), at the international level they are called/negotiated/lobbied as limitations or/and exceptions (L&Es) (e.g. here), some call them freedoms or privileges (e.g. see). Each of these terms can have a different understanding and scope. Generally, limitations possess a broader scope than exceptions but nowadays are mentioned together and sometimes used interchangeably. Nonetheless, in our legal imagination, they remain inferior to/narrower than the concerned norm or statute. Rights prima facie provide a stronger force and create a legal relationship of duty with others. But in the era of right-inflation where everything is understood as ‘right’, they appear conflicting, and ultimately are balanced out by each other!
On the other hand, freedom, privileges, or liberties are broader legal concepts than rights and L&Es but largely remain absent from popular legal vocabulary. Owing to their broader and usually more vague in scope, they don’t accurately fit in the ‘balance’ framework and remain out of the (balancing) box, unless brought within the box as a ‘right’.
Given these terms shape our legal thinking and arguments, which in turn, influence the outcomes of court judgment and policies, this post attempts to highlight the extant confusion revolving around the relationship between copyright and user interests. This also intends to make us hark back and ask – whether we are truly independent in our thinking of knowledge governance or just nurturing some narratives. Please note that I will use “user interests” as a catch-all, for whatever the chosen definition of it may be.
Section 52: A Multi-monikered Provision?
Recently, in India today vs Newslaundry, the Delhi Court, relying on Super Cassettes v. Hamar Television, regarded Section 52 of the Copyright Act, 1957 as a ‘right’ i.e. “right to make fair use or to deal fairly”, stemming from the fundamental right to free speech. Likewise, the Wiley Eastern case justified Section 52 for the protection of Article 19(a) i.e. right to free speech of the Indian Constitution. The Narendera Publishing House case provided a more interesting view by regarding copyright as a “privilege” and user interests as the “competing interest of enriching the public domain”.
The Rameshwari Photocopy judgment is interesting as it used differing descriptions for Section 52. While the single judge bench described Section 52 as a user ‘right’, the lawyers provided different terminologies: the Plaintiffs argued Section 52 in the sense of ‘immunity’ (para 14); one counsel considered it as an independent user ‘right’, and the student body (ASEAK) supporting DU contended that for interpretation of Section 52 whether it is an ‘exception’ or a ‘right’ is immaterial (para 17). The division bench judgments conveyed a similar confusion, it first i.) uses ‘limitation’ and ‘exceptions’ interchangeably, see para 73-74 wherein it reiterates a para from the B.D.Bhandari case focusing on the term ‘exception’ and then summarises it as a ‘limitation’, ii) then uses ‘right’ while giving music analogy (para 76), and iii) then uses the phrase “permissible activity” to ask what photocopying would be (para 79). The counsels for the appellants define Section 52 as a ‘privilege’ (para 25).
With so many terms defining the same provision, there arises a question as to what is the accurate term to define user interests, and whether the legal problems are correctly framed since the concept itself is in confusion. Since the Courts also did not categorically enumerate or engage with these terms, my dubiety gets doubled.
Keeping this confusion aside for a moment, it is also important to check whether the ‘user rights’ terminology which is getting strong support worldwide, is accurate. User interests as ‘rights’ focus on the presence of negative duty on the copyright holders to not intervene with their fair use, however, they show an incomplete picture of ‘right’. As a user ‘right’, if correctly conceptualised, it may also cast a positive positive duty (i.e. create works and make them available). But since such a positive duty would intrude into the other interests of copyright holders or/and authors such as privacy, trade, speech, etc., this would be non-justiciable. The common law principle ‘ubi jus ibi remedium’ i.e. “a right without a remedy is no right” also corroborates this incongruity. Since users can’t go to court to enforce these rights, it shows that the copyright system doesn’t conceptualise such enforcement.
With this ‘rights’ talk in mind and around us, we simply get to see a practical-looking and politically correct image of “conflicts of rights” awaiting ‘balance’. Thus, an (un/auto)defined relationship between copyright and user interests automatically becomes that of two equally positioned legal rights, and the questions on the nature of those self/auto-named ‘rights’ get invisible. Once this happens, a ‘zero-sum’ mindset kicks in where the loss of one is a win for the other. Consequently, something which appears more concrete gets an upper hand. Since copyrights possess a proprietary nature, they appear more concrete than undefined/abstract user interests. Is it not likely then, that there would be a tilt towards the ‘known’ rather than the vague – leading to ‘more’ copyright while trying to find a balance?
Confusion Since (Atleast) 1884!
The confusion around which terminology to use and what it means exactly, has, at minimum, existed for around 150 years since the Berne Convention came in 1886. “India” joined the Convention as a British colony (Read: Article XIX, of the Berne Convention, 1886). Although the relationship between copyright and user interests has never been clearly conceptualized, the official negotiations (see here and here) show that they were understood more as “universal interests” and not exceptions to copyright law. Translated documents suggest that the discussion on user interests started with a German proposal in 1884 seeking a “reciprocal right” of the public to use copyrighted works (page 91, here). This later became a part of the convention Article 8 in the 1886 draft.
As the initial revision texts (till 1948) were in French, the interpretations of Article 8 (which later became Article 10) differ. E.g. Sam Ricketson and Jane Ginsberg interpret Art. 8 as “liberty of. . .” whereas Tanya Aplin and Lionel Bentley define it as “freedom of …” in their book (page 7). To add to the medley, a literal translation of the French text available at WIPO shows it as “ability to …”. While all these words (liberty, freedom, and ability) can have different meanings and scopes, they certainly have a broader scope than a mere (statutory) ‘right’ stemming from or equated to copyright.
With every revision, the scope of legal protection for interest of copyright holders broadened (read KEI’s note), and user interests dwindled. In the 1948 revision, the word ‘liberty/freedom/ability’ was replaced with ‘right’. Today, after the revision of 1971, it is neither a ‘right’ nor a ‘liberty/freedom’ but a state’s power subject to certain limitations. Thus, now, it is upon nations to decide what their users’ interests are.
And this brings me to Stockholm (de)feat!
In the 1960s, India and African nations heavily harped on the revision of the International copyright system, as per their special needs. While the Stockholm revision sank, the role of India and African nations left an indelible mark in breaking the chain of maximizing copyrights and minimizing user interests from 1886-1948. The 1967 revision highlighted the importance of user interests, especially their importance for the educational, scientific, and cultural development of countries. However, it did not discuss the nature of user interests and how they should interact with copyrights. Many call this the International Copyright Crisis. Today, it won’t be a gaffe to call it the first ‘Access to Knowledge’ (A2K) movement, as Prashant Reddy has often remarked.
Through current international treaties like WCT and TRIPS, this confusion about the nature of user interests got carried on (or left behind?) and we have got stuck with ‘rights or L&Es’ based understanding. Now, this is further getting embedded into the concepts (or magic-solving words as Cohen says) like ‘public interest’. But since concepts like public interest appear more abstract, lacking force in individual cases, the force is ultimately exerted on “human rights” language. Again, ‘balance’ appears as a solution (but see).
With so many trade relations and geopolitics hovering over us today, these questions appear too theoretical to have a practical implementation, otherwise, we (as a nation) can be railed as infringers/non-compliant in some reports. But if this is so . . . here’s another question to ask ourselves: should we call ourselves ‘independent’ if our IP policies depend upon other countries’ policies and interests, historical and present?
I think user interests should be defined more carefully keeping in mind the idea that a word (i.e. right) cannot have the same meaning in every context. One existing solution can be to understand them as privileges or liberties in the Hohfeldian sense which do not have any corresponding rights nor do they create a duty in privilege holders. This can help us delineate clearer boundaries between copyrights and user interests, and tune them accordingly. Ultimately, the countries and their needs should decide what their users’ interests are and how copyright should be adjusted within/according to them, as some Countries claimed in 1967. With this Thomas Pynchon’s quote from Gravity’s Rainbow: “If they can get you asking the wrong questions, they don’t have to worry about the answers.”, I wish you a belated Happy Independence Day from the SpicyIP team.
Thanks to Swaraj Barooah for his important comments on the drafts and for helping me nuance the issue and Shivam Kaushik for his comments on the first draft. I’d also thank Prof. Sean Flynn for his valuable comments on the topic.