While the Indian IP landscape continues to grow at a breakneck speed, it’s “interesting” to see how little of any discussion is rooted in facts and figures. Indeed, the ‘fact vs faith’ approach is something that Prof Basheer had written about several times in the past (eg here and here). As I’ve noted in the past, this is not limited to India, however, there’s a peculiar problem for those who want to pursue more ‘fact-based’ research on IP in India – which is that while there are opinions and conferences and policy documents galore, so little of ‘fact based’ research seems to be available! Those who’ve followed the blog over the years, of course, know of the rigorous RTI filing ways of Prashant and Sai Vinod (amongst others of course) – bringing to light a tremendous amount of ‘public’ information that hadn’t been quite so public. Of course, Prashant and Sumathi’s co-authored book on the history and politics of Indian Copyright post independence has to be mentioned here too – their free supplementary material is available on our Resources Page. More recently, through our SpicyIP Empirical Scholarship Database Series, some of us have been trying to bring together in one place, the various empirical studies that others have done, so that interested researchers, policy makers, and other stakeholders can more easily locate other empirical work that has been done. While this work and more efforts in this direction will continue, I’m also excited to announce that we will be starting some efforts towards digging out more ‘facts’ about how our IP regime reached to where it is today. That is, not just the last 1-2-3 decades but even prior to how the 1957 Act came about! After all, knowledge and understanding of the history of what led to the existing legislation and policy is crucial to figuring out what has worked, what hasn’t worked, and what type of law and policy may help, moving forward.
We will be starting with Indian Copyright history and will be taking a tiered approach. While we compile and share a database of past sources (as soon as in a reasonably ready state to share), we are also looking to simultaneously create easy entry points for anyone who may be interested, through the means of little narrations or analysis of specific issues at specific times in India’s history. With some fortuitous timing, even as we were preparing this database, Shivam Kaushik, a 2020 BHU law graduate and currently a law researcher at the Delhi High Court, asked if he could do a short series on Indian Copyright History. As I’m currently co-authoring an article with Shivam on India’s IP journey during its colonial stages, and have already seen his fantastic research skills at play, I personally am very much looking forward to this series! Along with Shivam’s series, we will have posts by other bloggers as well on different parts of India’s IP history. Starting with copyright and then hopefully moving on to patents and other IP rights. We welcome readers to join in on this endeavour, if they have particular narratives or factoids from Indian IP history that can be shared. For now though, without further ado, Shivam’s introductory post where he lays out what he’s aiming to do with his series, which will then be followed up by his first post on India’s entanglement with the Berne Convention.
What is this series about?
This series is about the intellectual history of an idea, namely, copyright, in India. While it may be intuitive to think that the word ‘intellectual’ has been added as an adjective to the boring subject of history to add an element of novelty, I assure you it has more utility than an aesthetic prop. Intellectual history as a concept refers to the study of human thoughts, beliefs and thinking patters of the past. More specifically, intellectual history studies ideas within larger contexts, such as social struggle, power relations, institutional influence, cultural and linguistic discourses. Negatively put, the discipline does not deal with formal analysis of the idea, but it rather focuses on the conditions influencing the idea’s proliferation and percolation within the society. It takes into consideration sentiments of ordinary people and, thankfully, even popular delusions fall within the ambit of study of the subject [if at any point you feel that the writer is getting delusional, now you know where to point your fingers at]. Simply put, intellectual history is the more contextual, subjective, argumentative, and fun to read cousin of history.
This series will look at instances and anecdotes from the Indian copyright history that in my view have had a substantial if not decisive influence on the development and evolution of the idea of ‘copyright’ in India but are not acknowledged due their peripheral nature. In this series, I will try to uncover some factors that had a role to play in making Macmillan, HarperCollins, Penguin, Pearson, McGraw Hill household names to an extent that their absence from an Indian bookshelf became conspicuous.
An illustration may be handy here to help you contextualize what I am trying here. It is widely known that post-independence India was a ‘ship to mouth’ economy and had to look towards American support in its war against hunger. The US gave loan to India to buy wheat under what was popularly known as “Food for peace program”. What is lesser known is the fact that under the program India had to buy American books, periodicals etc. as interest to the loan given by the US. India bought $1.4 million worth of American books putting Indian authors and its nascent publishing industry at a seriously disadvantaged position and giving a vantage point to American book publishers. During 1950s and 1960s, American publishing industry distributed 80 million copies of 9,000 titles in the third world.
Why this series?
The history of Intellectual Property (IP) in India is unique, copyright being no exception to it. While in terms of hierarchy, IP laws fall under the constitution, chronologically, they precede it. What is even more interesting is that unlike its American counterpart, the Constitution of India has no provision directly or indirectly dealing with IP. In such case, it is only logical to ask where does IP come from? What is its genealogy and pedigree?
Before we dwell into these questions you might say-so what? The whole lot of the oldest colonial legislations like the Code of Civil Procedure, 1858, Indian Penal Code, 1860, Contract, Act, 1872 and Evidence Act, 1872 predate the Indian Constitution. But what if I told you that these are not ‘the oldest’ colonial legislations even by a long shot and perhaps the first set of colonial legislations made applicable to India were IP laws. As per the Literary Copyright Act passed by the UK in 1814, a copyright owner was entitled to bring an action “in any part of the British Dominion” in respect of books ‘first published in the Britain’ which included colonial British India as well. This position was further entrenched in the Literary Copyright Act, 1842 passed by the British Parliament. However, since the 1842 Act, covered only works ‘first published in Britain’, the East India Company passed the Indian Copyright Act, 1847 providing copyright protection to works first published in the British colonial India [13 years before the IPC]. Similarly in the case of patents, Act VI of 1856 was enacted to confer exclusive privileges for a period of 14 years [4 years before the IPC].
Why were Britishers so enthusiastic to introduce IP laws in a pre-industrial agrarian economy even before much more fundamental laws such as code of civil procedure, evidence law, and penal laws were put in place? What were their motivations? Moreover, what was the nature of copyright that was envisaged therein?
Intellectual Property in India has been plagued and characterized by amnesia. Any discussion about copyright starts with the 1957 Act, and in case of patents it only goes as far back as 1911 Act. The purpose of this series is to throw light on the forgotten Indian copyright history and the brooding spirit of coloniality that still pervades the idea of copyright. However, the objective of the series is not limited to be a mere fact-finding excavation mission.
The endeavour of the series is to ask unobvious questions like- is there any cause-and-effect relationship between the nature of copyright and reading preferences/tastes of the public? As also the unsettling ones such as- was the colour of author’s skin or gender ever a consideration in the way copyright looked at literary works? Was copyright ever used as an instrument of appeasement or as a marginalizing instrument? Did we ever have any say in deciding what copyright should be? In attempting to answer these questions, I will try to deduce some general principles that may help in better understanding why copyright presently is like it is; And more importantly, could it have turned out to be any different.
History is, without an iota of doubt, based on the individual’s perspective, concerns and vision of the society. The story of copyright can be taught in multiple ways and no single narrative can serve the need of everyone. Therefore, copyright can benefit from the incorporation of newer perspectives in the narrative. This series attempts to put forth one such new perspective in the narrative of copyright and uses intellectual history to construct a different view point, a novel meaning, or even a fresh idea of copyright.
But the above ancillary reasons cannot eclipse the primary reason of the series: it is meant to be a collaborative fun exercise between the writer and the reader! Like all interpretative exercises, copyright history can be a great source of amusement and happiness. Unearthing lost facts, applying them to incompatible prevailing conceptions only to leave people scratching their head is undeniably fun. The fact that Coke still is a long way from getting a monopoly over ‘#sharing happiness’ only helps the case.