Posted on October 1, 2008 in India by Brian RoweView Comments

Icommons posted a great short article on the history of copyright in India. It is even under a CC-BY license enjoy: mp3 music download

A (very) brief history of Copyright Development in India

by Prashant

Modern copyright law developed in India gradually, in what we may identify roughly as three distinct phases spanning more than 150 years. This article attempts to briefly navigate through the major changes brought in by each successive wave of copyright amendment which have cumulatively resulted in the way Indian Copyright law stands today.

Phase I: East India Company Statute
Copyright law entered India in 1847 through an enactment during the East India Company’s regime. According to the 1847 enactment, the term of copyright was for the lifetime of the author plus seven years post-mortem. But in no case could the total term of copyright exceed a period of forty-two years. The government could grant a compulsory licence to publish a book if the owner of copyright, upon the death of the author, refused to allow its publication. The act of infringement comprised in a person’s unauthorized printing of a copyright work for (or as a part of attempt of) “sale hire, or exportation”, or “for selling, publishing or exposing to sale or hire”. Suit or action for infringement was to be instituted in the “highest local court exercising original civil jurisdiction.” The Act provided specifically that under a contract of service copyright in “any encyclopaedia, review, magazine, periodical work or work published in a series of books or parts” shall vest in the “proprietor, projector, publisher or conductor.” Infringing copies were deemed to be copies of the proprietor of copyrighted work. Importantly, unlike today, copyright in a work was not automatic. Registration of copyright with the Home Office was mandatory for the enforcement of rights under the Act. However, the Act also specifically reserved the subsistence of copyright in the author, and his right to sue for its infringement to the extent available in law other than the 1847 Act. As we shall see, this reservation of other “copyright-type” laws was done away with in later legislations.

At the time of its introduction in India, copyright law had already been under development in Britain for over a century and the provisions of the 1847 enactment reflected the learnings from deliberations during this period. Thus, in it’s very first avatar, copyright had arrived in India as a modern law that was both abstract (encompassing “all works” of literature and art) and forward looking (in the way that it sought to accommodate both existing and new forms of subject matter). As a result, many of the philosophical debates over the nature of ‘literary property’ that had animated the initial years of copyright development in Britain were conspicuous by their absence in the sub-continent.

On the precise manner that the 1847 enactment operated, very little is known. However this enactment created the conceptual milieu that eased the passage of succeeding legislations.

Phase II – Copyright Act 1914
In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most portions of the United Kingdom Copyright Act of 1911 to India. It did, however, make a few minor modifications. Baxi identifies two of the major changes. First, it introduced criminal sanctions for copyright infringement (sections 7 to 12). Second, it modified the scope of the term of copyright; under section 4 the “sole right” of the author to “produce, reproduce, perform or publish a translation of the work shall subsist only for a period of ten years from the date of the first publication of the work.” The author, however, retained her “sole rights” if within the period of ten years she published or authorised publication of her work a translation in any language in respect of that language.

Vesting violations or property rights with criminal sanctions can probably be understood as a part of general colonial legal and political policies which sought to protect the right to property over rights to personal freedom.

The modification of term of copyright for translation rights however cannot be explained by any reference to dominant characteristics of colonial policy. The language of the Act might suggest a laudable policy objective of promoting wider diffusion of Indian works in one language into other Indian languages, a consideration which might have appeared distinctive to India as compared with UK. There might also have been the desire to promote the growth of publication industry in numerous Indian languages. But whatever be the intention, the impact was disadvantageous to the authors and a boon to publishers. This can be seen from the following observations in a note of dissent when the continuation of the same provision was urged by the Joint Select Committee of the Indian Parliament in 1956 (a recommendation which did not ultimately prevail). R.D. Sinha “Dinker” argued that this provision has “worked to the utter detriment of the authors.” Referring to the plight of two distinguished Bengali authors he observed:

“Most of the novels by Sarat Chandra Chatterjee were translated in Hindi, while the author was yet alive. The author’s novels, in translation sold thousand of copies, but the author did not get a pie out of the sale-proceeds Something like this happened in the case of Gurudeva (Tagore). Publishers in Hindi and other languages were making good money out of the translations of his works, but the poet, revered by the nation, was in his extremely old age touring the country for money to support the Shanti-Niketan.”

The 1914 Act was continued with minor adaptations and modifications till the 1957 Act was brought into force on 24 January 1958 – very shortly after the attainment of independence.

This phase of copyright law generated some important “classical” decisions on the law of copyright. Simultaneously, however, it also sowed the seeds of a trend that Baxi terms as “a juristic dependencia” – the tendency of Indian judicial decisions as well as forensic styles relying excessively on United Kingdom (UK) precedents. On the impact of this trend, he notes:

“The heavy hand of UK law still lies on Indian creative works despite the reformulation of the law in 1957. Judicial interpretation is perhaps most heavily influenced by UK precedents in the area of copyright law than in any other. The slavish imitation of foreign precedents has occasionally led intrepid Indian justices to remind the Bar and the Bench that the 1957 Act is made by “a sovereign legislature of this land” and its interpretation “must be based upon the object of the legislation and the language used” and that the “historical roots” of the Indian law in the UK law of copyright should have no higher function than that of providing an “aid to thinking.”

Phase III – Post Independence
Independent India accorded high priority to formulation of her own law on copyright. The Indian Copyright Act 1957 (“the 1957 Act”) repealed the Indian Copyright Act 1914 (“the 1914 Act”) which had virtually incorporated the whole of the Imperial Copyright Act 1911. The revision of the 1914 Act occurred within a mere seven years of Independence.

A number of factors, according to Baxi, impelled this early revision. First, it was clear that continued existence of the 1911 Act through the 1914 Act was unbecoming to “the changed constitutional status of India.” Second, the 1914 Act did not accord with the 1948 Brussels Act of the Berne Convention and the 1952 Universal Copyright Convention – chiefly in the much longer terms that the Berne Convention mandated. Third, new “and advanced method of communications” rendered modernisation of the law necessary. Fourth, the need for an “independent self-contained law” was also felt in the light of the experience of the “working” of the 1911 Act, and more important, of “the growing public consciousness of the rights and obligations of the authors.”

To aid them in this task of indigenisation, the Indian legislators appointed a “Select Committee” to propose a model Copyright Act. The Committee appears to have consulted “the report of the English Copyright Committee, the models provided by the relevant international conventions; they received evidence from twelve organisations, including the International Confederation of Societies of Authors and Composers (Paris), the Performing Right Society (London), British Copyright Council and the Columbia Gramophone Company Ltd. The Report of the Select Committee, says Baxi “appears to be among the briefest in the annals of the Indian Parliament but, in many senses, it made major innovations which were ultimately enacted.” One of the key legacies of the Committee’s Report, for instance, was the abolition of registration as a pre-condition for infringement proceedings. Another significant area where the new Indian Copyright Act parted ways from the UK Act was in its omission of sections contained in the latter providing for “gratuitous” supply of books to designated libraries.

In his evaluation of the new Copyright Act, Baxi notes:

“it was as not in any sense a replication of the English legislative proposals. In this sense, the 1957 Act was the first truly Indian legislation after well over two centuries of the subjection to the ‘imperial’ law. The Act was not sufficiently far-sighted; it, for example, does not protect the right of the performers adequately. In many respects (as demonstrated later) it is drafted in ways which make it meaningful only to judges and lawyers and sometimes not even to them. But the fact remains that the country had its own law of copyright for the first time in contemporary history; and, for weal or woe, it represented the law-policy choices made by its independent legislature.”

Three sets of ancillary amendments succeeded the 1957 Act. In 1983, several new sections were introduced into the act. Sections 32A and 32B provided for ‘compulsory licences’ for publication of copyrighted foreign works in any Indian language for the purposes of systematic instructional activities at a “low price” with the permission of the Copyright Board on certain conditions. The other crucial change was the insertion of section 19A, relating to the conferral of power in the Copyright Board, upon a due complaint to it, to order revocation of the assigned copyright where either the terms are ‘harsh’ or where the publication of the work is unduly delayed. In addition the 1983 Amendment provides for power in the Copyright Board to publish unpublished Indian works, and for the protection of ‘oral works.’ The amendment made it mandatory for the copyright office to publish details of all copyright registrations in the Gazettte of India. Lastly, the disallowed the importation of an ‘infringing copy’ of a copyright work for ‘private and domestic use’ which had been permissible prior to the amendment.

Subsequently, after a gap of a decade, sweeping changes were introduced through an amendment in 1994. These included:
1) The increase of the term of copyright from fifty years post mortem to sixty years;
2) The extension of copyright to new types of works including computer programmes and performances;
3) The redefinition of “communication to the public” so that a work is communicated “regardless of whether any member of the public actually sees, hears or otherwise enjoys the work”.
4) An overhaul of the vocabulary employed in the Act, for instance – substituting ‘broadcast’ for ‘radio diffusion’, ‘work of architecture’ in the place of ‘architectural work’, ‘sound recording’ in the place of ‘record’
5) Clarification of the ownership of copyrights over public speeches and works by public undertakings.

In 1999, certain sections relating to international broadcasting rights were inserted into the Act, along with stipulations enhancing the fair dealing rights of users of computer programmes – these permitted the “doing of any act necessary” to obtain information essential for the interoperability of computer programmes, and also permitting the making of personal copies and adaptations of computer programmes if they were legally obtained.

Thus the history of the Indian Copyright act is characterised by a tendency to expand commodification of culture while at the same time constricting access to it.

MuellerJ

SU Law Talk: The Evolution of India‘s Patent System: Implications for Public Health and Pharmaceutical Innovation

Date: Tuesday April 15th

Time: Noon – 1PM

Place: Room 109

India developed a world-class generic drug manufacturing industry by excluding pharmaceutical products from patent protection in 1972. In 2005, India reintroduced pharmaceutical patenting in order to comply with its obligations as a WTO member. For an emerging superpower still mired in poverty and public health crises, the change did not come quickly or without controversy. Multiple influences shape India‘s “mosaic view” of patents: a huge population, widespread poverty, lack of health insurance, wariness towards foreign influences, a developed but fragmented pharmaceutical sector, a fledgling entrepreneurial culture of innovation among indigenous pharmaceutical and biotechnology firms, a fragile coalition government, and a vocal citizenry remarkably aware of esoteric patent law developments. Professor Mueller’s research included a sabbatical visit to India in late 2005 to interview experts and gather data on the ground. Concluding that the new patents regime is neither the fully-Westernized panacea hoped for by its pro-TRIPS advocates nor the unmitigated disaster for the Indian public predicted by its fiercest critics, Professor Mueller will offer recommendations for the future of India‘s evolving patent system.

Papers By Professor Mueller on India’s patent System:

J. Mueller, The Tiger Awakens: The Tumultuous Transformation of India‘s Patent System and the Rise of Indian Pharmaceutical Innovation, 68 University of Pittsburgh L. Rev. 491 (2008), available at SSRN: http://ssrn.com/abstract=923538.

J. Mueller, Taking TRIPS to India-Novartis, Patent Law, and Access to Medicines, New Eng. J. Med. (Feb. 8, 2007), at 541-43, available at http://content.nejm.org/cgi/reprint/356/6/541.pdf.

J. Mueller, Biotechnology Patenting in India: Will Bio-Generics Lead a “Sunrise” Industry to Bio-Innovation?, 76 UMKC L. Rev. 437 (forthcoming 2008), available at SSRN: http://ssrn.com/abstract=1087131.

PS: I will be live blogging the talk for FFIP tomorrow.