Thinking, understanding, reasoning, and articulating creativity is very difficult, if not impossible. Creativity is shapeless, and any defined approach to creativity defeats its ends. It is into this unstructured, boundless, and absolutely free world that the concept of intellectual property was introduced. IP, in its unduly glorified form, seeks to give shape to certain understandable elements of creativity and endeavors to protect the same.
Copyrights seek to capture some elements of expression, Patents elements of invention, and so on. By laying down some parameters, they try to bring certainty to the uncertain, clarity to the ambiguous, and limits to the limitless. The miniscule portions of creativity protected by IP are given a stature in the eyes of the law by attaching legal validity and exclusive rights to such creativity. It is in this world of IP driven creativity I ponder about illegality of creative Endeavour. As I do so, I fall prey to generalities and specificities as the mind jumps from branch to branch.
Is creativity protected by IP free from illegality and immorality?
The answer to this question is comparatively more straight forward under the patent law than under the copyright law. In effect, patent law is relatively narrow, less ambiguous and more defined than copyright law, and contains provisions relating to immorality and public order. The said provisions exclude inventions, which are immoral, against public order, and by a bit of stretching, illegal, from the scope of patentability. Inventions that are meant for immoral/illegal purposes will most probably be excluded from protectability using the said and/or other provisions.
For illustration, a camera for taking nude pictures may not be patentable in India because its use is immoral, against public order, and/or illegal. Same might be the fate of a process for capturing private conversations of people. Any invention with a predominantly illegal use will most certainly be interpreted to fit into one of the exclusions to patentability, and illegality is an inherent element of protection analysis, albeit indirectly, or rather directly.
Copyright law is however not so straight forward, and its protection prima facie extends to all expressions, irrespective of whether they are illegal or not. But, does that really hold true? For example, can one get copyright protection over a nude photograph of another person? Would it matter whether the picture has been taken with or without consent?
By its express principles, the law may seem to grant copyright over the nude picture taken without consent, but is it so straight forward? Will that really happen? The nude picture in question may be expression on a tangible form, original and creative, and therefore, copyrightable, but is the author permitted to create the work in the first place? If he is not, isn’t his expression an invalid, illegal expression? Is an illegal expression copyrightable? Surely not. Illegality is an inherent, albeit, implicit, element of copyrightability, and will continue to be so.
The legal channels for rejection of protection may vary based on the work, but illegality subsists, and will continue to subsist under copyright law. For example, if the work in question is a sculpture of two men making love, illegality may seep in through other means. The means may be originality, creativity, or another figment of legal creation. Whatever the means might be, the end will be denial of protection in India.
A world where creativity is limitless and boundless is a Utopian World. Though some of us want to believe that we live in such a world, we do not, and creativity will continue to be subservient to public consciousness. To the extent it interacts with creativity, IP is no exception. I will be more than happy to be proved wrong as every instance I am proved wrong will take my hope a step forward.
Note: Views are personal, and I hope you will forgive my word inadequacy and departure from legal nicety. This is not meant to be a law review article any way.