Who’s Intellect? Who’s Property?

This post was first published on March 16, 2010.

Contributed by Prof . Madabhushi Sridhar

The print media comprises of newspapers, books both fiction and non-fiction. The copyright law regulating rights over economic benefits of ‘owners’ of electronic media are totally different in its impact compared to that of authors in print media. Electronic media refers to TV, radio, music album publishers, Internet, or online publishers, compute programme writing industry, etc. In electronic media, the investments are high, production process is complicated and involves rights of writers, performers, technicians, directors, helpers and producer besides distribution agents. When the property is changing hands in the print media and first owner hardly remains a ultimate owner of his own intellectual property as that concentrates in publishers, are they are getting the due protection from copyright regime? This article is an attempt to find an answer to this question.

The law of copyright is the extension of right of freedom of speech and expression, which means that if an individual has freedom of speech and expression that person will naturally get a right to protect that intellectual work as a property. The importance of copyright as an intellectual property has increased enormously in recent times due to the rapid technological development in the field of printing, music, communication, entertainment and computers. The related rights or neighbouring rights (droits voisins) means those rights which have developed parallel and related to copyright such as rights granted to protect performers, producers of phonograms and broadcasting organisations in the performance of their works.

Almost all democratic Constitutions provided a guarantee for right to freedom of speech and expression. The laws of copyright enhance the value of such speech and expression, because it gives an effective protection to the creative speeches and expressions like poetry, criticism etc, from being reproduced without a licence. Copyright Law cannot be viewed as an obstruction or restriction on the freedom of speech and expression, because the freedom is available to express his own views and views of others also, but not to express views of others as his own.

First Amendment to the US Constitution prohibits Congress from making any law abridging the freedom of speech & expression or of press. The same Article One (Section Eight) states that the Congress shall have power…to permit progress of science and useful arts by securing for limited time the authors and inventors exclusive rights to their respective writings and discoveries”. The Constitution of India, provides for right to freedom of speech and expression[1].

Copyright is the exclusive right of the author to derive economic benefits from his own writing or artistic performance or creative work. Copyright Regulation basically protects the interests of writer or creator or performer from commercial exploitation by others. As nobody can own or perpetuate perpetual vested interest in knowledge, even the copyright regime throws every creative writing or invention for the world open after certain prescribed period.

The copyright law provides an incentive to creative activity and then permits the society to benefit at large. After the invention of printing press the multiplying of any creative writing became much easier and necessity to protect the right for the creator also increased. Copyright is relatively a modern concept that came into existence with British Rule.

Intellectual property protects application of ideas and information that are of commercial value. The fund of exploitable ideas become more sophisticated and hopes for a successful economic future depends increasingly upon the superior corpus of new knowledge and fashionable conceits. Various types of ideas are now being protected all over the world, for instance, the new plant varieties, the circuit of silicon chip etc.

It is in fact, not possible to confer on the creator of an idea a perpetual property in it against imitators. The political and economic implications of such a complete protection will be remarkable. However, others accord a set of limited forms of protection against some types of exploitation. The objective is to achieve a balance appropriate to the economic needs of the country with a justifiable reason.

Origin of Copyright Law and Protection of Publisher’s interest

The origin of copyright itself is to protect the interests and their commercial of publishers. After printing was invented, a printer or publishing entrepreneur entered the risk of investing on printing such creative idea. These entrepreneurs were considered to be forefathers of present publishers. They are first to propose to acquire the exclusive copyrights over such ideas and printable creativity. The stationers first found support from the Crown. In 1534 they secured protection against the importation of foreign books and in 1556, the Queen gave powers to the stationer through a charter, to destroy the books printed in contravention of statute or proclamation. Thus a licensing system was introduced. Stationer’s company’s licensing was the origin of copyright law in England.

Ultimately it evolved into legislation providing and protecting copyright in 1709. It is called Statute of Anne, which granted recognition to limited statutory monopoly rights for the author of works. It was an attempt to achieve balancing of both the individual and public interest. Authors and assigns acquired sole right and liberty of printing books. The law is interested in protecting commercial rights and commercial exploitation. Such a right is available only up to 14 years from first publication and “no longer”. Enforcing depended upon registering the book’s title before publication with the Stationer’s company. It was enforceable by seizure and penalties. According to Section 1 the booksellers and printers were named ad falling among the author’s assigns. The right lasted for 14 years from first publication and no longer” but if the author was still living at the end, the right was returned to him for another 14 years. An author ought to have a right of protection over his creative work before it was published. But it was not covered by the Act. It is an exclusive right for limited duration. The Statute of Anne was challenged in Donaldson v. Beckett[2], where the House of Lords emphasized the need for balance between rights of individual and public interest. Lord Camben observed: “Knowledge has no value or use for the solitary owner; to be enjoyed it must be communicated. Glory is the reward of the science, and those ho deserve it scorn all meaner views”[3].

The relation between the author and exploiter offers many opportunities for tension and disagreement. In continental Europe the need to safeguard the artistic integrity of the author in the course of such relations was eloquently argued, in the latter nineteenth century. In many copy right laws the author was given moral rights which entrenched by making inoperative any surrender of the rights in advance of the time when the author might want to rely upon them. These rights typically include:

1. the right to decide to make the work public;
2. the right to be naked as author; and
3. the right to object to revisions affecting honor or reputation.

Some systems have gone to the extent of adding some more rights like:

1. right to have the work withdrawn upon payment of compensation; and
2. the right to object to destruction.

In the high age of contractual freedom, relations were left to be determined by agreement, supported by such terms as the court might imply in the name of business efficacy and subject to the torts of defamation, injurious falsehood and passing off.

Britain was a good exporter of copyright material and thus had a strong interest in reciprocal copyright arrangements with other countries. British first gave consideration to home publishers and then admitted foreign authors to copyright upon condition that the work was first published within the country. French granted protection to all authors of works published in France and to works of Frenchmen published anywhere.

According to Paul Goldstein, the traditions of copyright and author’s right rest on sharply differing premises. Copyright’s philosophical premise is utilitatian: the purpose of copyright is stimulate production of the widest possible variety of creative goods at the lowest possible price. By contrast, author’s right is rooted in the philosophy of natrual rights; an author is entitled to protection of his work as a matter of right and justice. The ideal author’s right legislator will vote to extend protection without any showing of social necessity and will reject it only if the extended protection would materially hamper socially valuable uses of protected works. Berne Convention bridges the two traditions, with the result that its extensive minimum standards have dictated substantively similar rules for countries in both camps. Similarities in economic, political, and social structures across the two systems also explain the convergence, as do local industry politics. Professor William Cornish is certainly correct to observe that “over primary issues of making the rights granted legally effective and so economically meaningful, the two approaches flow together in a single stream. Where there are divergencies, they are often more the product of low political lobbying rather than of high and disinterested thought.[4].

National laws on copyright and neighboring rights are far more similar than they are different. Widespread adherence to the Berne Convention for the Protection of Literary and Artistic Works explains much of this harmony. Around 140 countries belong to Berne Union. The TRIPS Agreement with 135 adherents, brings national laws into more immediate compliance with Berne norms as well as with norms introduced by the TRIPS agreement itself. A handful of universal principles are common in national copyright laws. One is the axiom that copyright law will protect only original expression- leaving ideas – building blocks of creativity- free for all to use. Legislation or case law in every country holds that a literary work’s themes, plots, and stock characters are unprotectable, as are discrete colours and shapes in visual art, and rhythm, notes and harmony in music[5].

The Copyright Act, 1957 and the Copyright Rules, 1958 with relevant amendments, is the law applicable in India. The underlying principle of copyright protection is that specific creative expressions are protected but not the ideas behind them. Copyright comes into existence as soon as a work is created.

The authorship of different types of works is as follows:

work	author
Literary or dramatic work	Author of the work
Musical Work	Composer
Artistic work except photography	Artist
Photograph	The person taking photograph
Cinematograph film	Owner of the film at the time of its completion
Record	Owner of the original plate from which the record is made, at the time of making of the plate.
Video programms like Tele-serials, Albums etc	Owner of the programme at the time of its completion

First Owner of the Copyright

As a general rule, the author of a work is the first owner of copyright in it, as specified in Section 2(d). However, in the absence of any agreement to the contrary, in the case of

1. a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, that proprietor shall be the first owner of copyright so far as it relates to the publication in any newspaper, magazine or periodical or to the reproduction for that purpose, but in all other respects the author shall be the first owner of copyright.
2. a photograph, painting, portrait, engraving or a Cinematograph film made for valuable consideration at the instance of any person, such person shall be the owner of copyright.
3. a work made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall be the first owner of copyright.
4. any address or speech delivered in public by any person on behalf of any other person, such other person shall be the first owner of copyright.
5. a Government work, the Government and a work made or first published under the direction and control of any Public Undertaking or International Organization, that Public Undertaking or International Organization shall be the first owner of copyright.

The author of the worker is the first owner of copyright except in case of works created during employment, commissioned work and government works. In these cases the employer will become the first owner. But the authorship remains with the creator only. In V.T. Thomas v. Malayala Manorama[6] confirmed that the author remains an author even after the economic rights were transferred. As per the law ownership is vested in the author automatically as soon as the work is created without following any formality, according to Section 48.

Copyright in Books

E.M. Forster vs. A.N. Parasuram, AIR 1964 Mad 331: The University of Madras prescribed Forster’s novel ‘A passage to India’ as a text book for B.A. Degree Students. Parasuram published “Everyman’s Guide’ for this book. The guide contained an introduction to the author’s life, works, analysis of theme, character sketches and social issues discussed in the story. Author E.M. Forster and his publisher Edward Arnold initiated action against Parasuram. The single judge found no violation of copy right as there was no substantial copying of original book, and found the guide as his independent literary effort. The Division Bench confirmed the single judge’s ruling and held that textual essay was skillfully arranged. The court concluded that, the respondent’s work was neither an abridgment nor a piece of literary criticism in itself. It was functional in character. The court clarified that verbatim quotation from an original work was permitted as essential for fair criticism. Reasonable reproduction of passages for critical review is ‘fair dealing’ and substantial reproduction would invite the penal provisions.

Secondary Board of Education v. The Standard Book Company[7]: In this case West Bengal Board of School Education published an English text book for VI Class entitled “Parijat Readers Book One”. The Standard Book Company came out with Notes on Parijat Readers Book One. Court agreed with the contention of the petitioners that the Standard Book Company with substantial reproduction of text book along with the notes was competing in sales with the original book, which was unfair.

Rupendra Kashyap v. Jiwan Publishing House[8]: In this case the Delhi High Court held that the Examination paper was a literary work, which could be a subject matter of copyright. The court held that CBSE had copyright over the examination papers it got set by the experts of the subjects on consideration.

News Media & Copyright

In [9]Indian Express Newspapers v. Dr Jagmohan Mundhara, the Court held that there is no copyright in any event which actually taken place. The Bombay High Court said that the ideas, information, natural phenomena; and events on which an author expends his skill, labour, capital, judgment and literary talents are common property and are not the subject of copyright. Hence there is no copyright in news or information itself. However, copyright may be obtained for the form in which they are expressed, because of the skill and labour which goes into the writing of stories or features and in the selection and arrangement of the material.

A free-lance journalist, who is not employed by any newspaper or magazine, retains all forms of copyright in articles sent to different papers. He has right for all forms of reproduction, unless there is a special arrangement to the contrary. A publisher cannot reproduce the article of a writer in another of his publications, without the prior permission of the author.

A letter to the editor is intended to be published only once. The author of the letter retains copyright in the contents of his letter. The newspaper cannot reproduce the letter on a second occasion. However, it can quote from parts of his letter in follow up story. Because that reproduction could be a fair dealing for the purpose of criticism, review, reporting current events etc[10].

Whether an editor can alter or delete or add to the letter written by a reader? In a case in Britain, it was held that in the absence of express or implied prohibition, the editor has the right to make reasonable alterations. If some material is sent to the Newspaper, free of cost, the newspaper cannot become the owner of copyright. For example, if an association sends its annual report, the newspaper cannot acquire copyright over it. There is no copyright for works which are not original, and which are libelous, immoral, obscene, or positively of an irreligious bearing.

There can be no copyright in works, even though they are original, if they are against morality or public policy. Works, which are of grossly immoral tendency, works that are calculated to deceive the public, works that are contrary to public policy, or works which are seditious. The Copyright is a statutory right. Hence, a writing or work banned by another law cannot secure a protected copyright under 1957 Copyright Act.

Doctrine of Fair Use:

Another area where the conflict between the right of society to know and the copyright of author or the transferee from him is the doctrine of fair use and varieties of exemptions made available for the use of copyrighted knowledge though it amounts to infringement otherwise. In the absence of fair use doctrine, the copyright law would be harsh, unreasonable and against public policy favouring dissemination of information and knowledge and plainly would have been unenforceable. The old 1909 Copyright statute of USA was stringent as it gave each copyright holder an exclusive right to ‘print, reprint, publish, copy and vend the copyrighted. As stated in that Act it was an absolute right: the wording was put in terms so absolute that even pencil-and-paper copying was a violation of the US Copyright Act. Because the 1909 statute’s terms were so stringent, if enforced to the letter, it could have prevented anyone except the copyright holder from making any copy of any copyrighted work. American courts assumed – in creating a judge-made exception to the absolute language of the 1909 copyright statute- that “the law implies the consent of the copyright owner to a fair use of his publication for the advancement of science or art[11]. The fair use doctrine, although a rather elastic yardstick, was a needed improvement.

If the violation is for fair purposes and non-commercial, non-exploitative purposes, it cannot be penalized. The author can copyright the work only when it is original. To prove or establish originality is the pre-requisite for the action for violation and secondly the defense available to the defendant is ‘fair dealing’.

Section 52 gave a detailed explanation as to what is not an infringement, and explained the doctrine of fair dealing or fair use. These provisions balance the interests of community with those of individual authors, and permits spread and dissemination of knowledge.

1. A fair dealing with a literary, dramatic, musical or artistic work for private use, including research, criticism or review, whether of that work of any other work
2. the making of copies or adaptation of computer programme to use, for back up copies, for using it for interoperability, to observe, study or test of the computer programme, or making copies for non-commercial personal use.
3. A fair dealing for reporting current events in a newspaper, magazine or similar periodical, or by broadcast or in a cinematograph film or by means of photograph.
4. reproduction for purpose of judicial proceedings or for report of a judicial proceedings
5. reproduction of work prepared by Secretariat for the use of members of that legislature
6. recitation of reasonable extract from a published literary or dramatic work in public
7. the publication in collection for the use of educational institutions.
8. reproduction by teacher in course of institutions or in question papers;
9. performance in the course of educational activities in institutions;
10. playing in public in an enclosed room or in clubs in certain circumstances.
11. performance in an amateur club given a non-paying audience or for religious institutions including a marriage procession
12. reproduction in newspaper and magazine of an article on current economic, political, social or religious topics in certain circumstances;
13. publication of report in newspaper, of a lecture delivered in public
14. making a maximum of 3 copies for the use of a public library;
15. reproduction of unpublished work kept in a museum or library for the purpose. where the author is known and publication is made 60 years after his death, it is not infringement.
16. reproduction of any matter published in Official Gazette or reports of Government Commission or other bodies and any judgement or order of court, tribunal or judicial authority not prohibited from publication.
17. production or publication of a translation of Acts of Legislature or rules:
18. publishing a painting or photograph of a work of architecture
19. publishing of a painting, drawing, photographs or engraving of sculpture which is permanently situate in public place;
20. including such things in the films.
21. the use by the author of an artistic work, where the author is not the owner of the copyright therein, provided he does not thereby repeat or imitate the main design of the work;
22. reconstruction of a building referring to original architecture, drawing or plans
23. exhibition of film after the expiration of the term of Copyright therein, etc

Exemptions:

However, in order to protect the interests of users, some exemptions have been prescribed in respect of specific uses of works enjoying copyright. Some of the exemptions are the uses of the work:

1. for the purpose of research or private study;
2. for critcism or review;
3. for reporting current events;
4. in connection with judicial proceeding; and
5. performance by an amateur club or society if the performance is given to a non-paying audience.

The Karnataka High Court justified the provisions of balance between the rights of authors and interests of society[12]. The provisions under Section 52 are intended to ensure that the monopoly rights should not be detrimental to the larger interests of general public. It is a perfect balance of the statute till the technological advances broke down this balance. The multimedia improved the quality of reproduction and speed of transmission besides converging the entire existing media into one. The Internet and digital media made the rights of individual author very vulnerable.

Changes in Doctrine of Fair Use

The doctrine of fair use has undergone several changes in India. Importing copyrighted work into India is an infringement according to Section 51 (b) (iv). Earlier importing for the private and domestic use of the importer was not an infringement. The words “(except for the private and domestic use of the importer)” omitted by Act 65 of 1984, sec 3 with effect from 8-10-1984. It was in fact originally a fair use and from 1984 onwards it became unfair. But another provision is added to this section saying that the import of one copy of any work, for the private or domestic use of the importer is not an infringement.

1995 amendment substituted clause (ii) of Sec 51 (a), with regard to communication of the work to the public, which can include even Internet, the copyrighted work. Copyright is deemed to be infringed if any person permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work. However an exception is also provided in the same clause, “unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright;”. Thus lack of knowledge about existence of copyright in the place, which he is communicating to public for profit will absolve from liability for infringement.

Section 52 deals with exceptions and fair use doctrine. Section 52 (1) (aa) specifically refers to exceptions to computer programmes’ copyright infringement. The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy in order to utilize for the purpose for which it was supplied, or to make back up copies for temporary protection is permitted. This is an obvious thing, which was restated. But here there is no element of exception which doctrine of fair use accorded to other kinds of infringements of other types of copyrights.

In Hyde Park Residence Ltd, v Yelland[13], a newspaper published still photographs taken on a security camera when Princes of Wales Diana, and her friend Dodi Fayed visited Villa Windsor in Paris, on the day prior to their deaths in a car accident. The photographs were stolen by a security guard and sold to the newspaper, which published them more than a year later. Hyde Park had sought summary judgment at the first instance relying on breach of copyright. The defendant relied on the defence of fair dealing for the purpose of reporting current events. The judge upheld it as fair use. However, it was reversed on appeal. Motives of alleged infringer, the extent and purpose of the use, whether that extent was necessary for the purpose the purpose of current events in question will decide the fairness or otherwise of the usage. In Diana case the work (photographs by security camera) had not been published or circulated to the general public. This was considered to be one of the important indicators that the use was not fair and not for the purpose of reporting current events. The Court examined the doctrine of fair use on the touchstone of a reasonable man and said: ‘A fair minded and honest person would not pay for the dishonestly taken driveway stills and publish them in a newspaper knowing that they had not been published or circulated’. Another factor was that the extent of the use was also held to be excessive.

Here is an incident, which instead of operating as an incentive to original author generating an idea and expressing in a tangible manner, helped those who copied it to make huge profits ignoring the author. In Indian Express Newspaper (Bombay) Pvt Ltd., Jagmohan,[14] the reporter of Indian Express, Mr. Ashwini Sarin investigated into the flesh trade in Madhya Pradesh and purchased in Shivpuri village, a woman “Kamala” for Rs 2,300 to establish the trafficking in women. He then wrote series of articles exposing the prostitution trade and involvement of bigwigs from politics and police department on 27th, 29th, and 30th April 1981 and 2nd May 1981.

Then Mr. Vijay Tendulkar scripted a play by name ‘Kamla’ totally based on the Indian Express exposure, and staged the play for 150 times in 32 cities and in seven languages. Jagmohan Mundhara, a film producer planned to produce a film on the same theme from the same writer Vijay Tendulkar. Journalist Ashwini Sarin and the Indian Express newspaper complained that Jagmohan and Vijay infringed their copyright. The Indian Express contended that, when serious of sensational reports resulted from sweat of brow of the journalists, and forms an effective expression of what was happening around, why not it be protected? How is that others could make capital out of it leaving the original authors of the ‘exposure’ without any protection to their writing?

The Bombay High Court held that there could not be any copyright in an event which actually taken place. The Court observed: “There is distinction between the materials upon which one claiming copyright has worked and the product of the application of his skill, judgment, labour and literary talent to these materials. The ideas, information, national phenomena and events on which an author expends his skill labour, capital, judgment and literary talent are common property and are not the subject of the copyright”.

This judgment ignored the skill, capital, talent and labour invested by the journalist besides his skilful expression in the form of investigative story and simply termed the incident as national phenomena and finally refused the copyright to journalists. The Court should have recognized the way the national phenomena or tragic happening in society was creatively reported by the journalist alerting the authorities.

The justice could be ordering Vijay Tendulkar and Jagmohan to acknowledge the efforts and risk of Journalist and secure his permission on reasonable payment of a share in their proceeds. If not it would amount to permitting a theatre and cinema person to commercially exploit an expression of idea which is not their own, which is against the spirit of copyright regulation.

John F. Kennedy case

The assassination of President John F. Kennedy gave rise to a copyright case which added luster to the defense of fair use in infringement actions. On November 22, 1963, dress manufacturer Abraham Zapruder of Dallas stationed himself along the route of the President’s motorcade, planning to take home movie pictures with his 8 millimeter camera. As the procession came into sight, Zapruder started his camera. Seconds later, the assassin’s shots fatally wounded the President and Zapruder’s color film caught the reactions of those in the President’s car. On the same day, Zapruder had his film developed and three color copies were made from the original film. He turned over two copies to the Secret Service, stipulating that these were strictly governmental use and not to be shown to newspapers or magazines because Zapruder expected to sell the film. He negotiated with Life magazine, which purchased all the rights for $150,000. Life, in its November 29, 1963 issue featured thirty of Zapruder’s frames. Subsequently, the Life ran some more pictures from Zapruders’s film. Life also permitted the investigating team to use the photographs in investigation and print them in their report. In 1967, Life registered the entire Zapruder film in the Copyright office as an unpublished motion picture other than a photo play’. Bernard Geis Associates sought permission from Life magazine to publish the pictures in Josiah Thompson’s book, “Six Seconds in Dallas”, a serious, thoughtful study of the assassination. It offered to pay Life a royalty equal to the profits from publication of the book in return for permission to use specified Zapruder frames in the book. Life refused the offer. Thompson engaged an artiste for $1,550 to make charcoal sketch copies of 22 copyrighted frames and reproduced them in the book. Court ruled that Life had a valid copyright in the Zapruder film, and added that ‘the so-called sketches in the book are in fact copies of the copyrighted film. The Court quoted copyright expert Melville B. Nimmer[15]:

It is of course, fundamental, that copyright in a work protects against unauthorized copying not only in the original medium in which the work was produced, but also in any other medium as well. Thus copyright in a photograph will preclude unauthorized copying by drawing or in any other form, as well as by photographic reproduction.

Ruling that it was infringement the court held that it was ‘fair use’ by the publisher, which is ‘the most troublesome in the whole law of copyright” The court found in favor of Bernard Geis Assopciates and author Thompson, holding that utilization of the Zapruder pictures was a fair use.

Public purpose, investigative needs, and academic exercise offer as the best grounds for fair use of the copyrighted works.

Enforcement mechanism

In India, one of the most important factors that hinder the spread of copyright awareness is the lack of enforcement mechanism. In US Copyright Clearance Center (CCC) is created to secure the rights of the copyright holder. It is a not-for-profit licenser of photocopy and electronic reproduction rights. The CCC and Publications receive complaints of unlawful photocopying and other infringements. The CCC and publications encourage the whistleblower and offer cash payments for reporting illegal activity. Even for photocopying the intending person has to obtain permission from licensing representative such as Copyright Clearance Center. If the photocopy activity exceeds the limitations of fair use, one is required a photocopy license. In most instances copyright infringement by photocopying are settled before a lawsuit is filed or the case goes to court. In these cases, undisclosed amounts (often quite substantial) are paid to the plaintiffs.

In American Geophysical Union et al. vs. Texaco Inc., a class action suit filed against Texaco on behalf of all publishers registered with CCC both the trial court and the appeals court rejected Texaco’s argument that its photocopying activity was fair use. As a result, instead of proceeding to trial, Texaco paid a seven-figure settlement and agreed to take retroactive CCC licenses. The law does not recognize ‘best efforts’ exception. The copyright owner may file a federal lawsuit against anyone who reproduces his or her works without permission, even in cases where the user claimed it was difficult, time consuming or expensive to locate the owner. The copyright owners and users of copyrighted materials developed an efficient mechanism in US for the exchange of permissions and royalties. Acting as an agent for over 9600 registered publishers and hundreds of thousands of authors and creators worldwide, CCC can authorize any company to photocopy from over 1.75 million titles included in its repertory. The International Federation of Reproduction Rights Organization IFRRO recognizes CCC as the principal photocopy permissions agency in United States.

The Association for Copyright Enforcement ACE and Association of American Publishers AAP, support the CCC program and have agreed that they well not pursue nor support copyright infringement litigation by their members against CCC licensees.

In India, the authors are not organized; their writings are not properly valued. The publishers continue to exploit the economic benefits from the writings of the author. The royalties and copyright prices are very minimal compared to profits made by the publisher. The accounts are also not sought from publishers. Writer’s society has to be formed and with the state support these societies should enforce the copyrights and regulate the licensing process.

The law of copyright in the name of intellectual property right renders strong protection for the benefit of content owning industries such as the publishing industry, the music and motion picture industries and the computer software industry which include the corporate publishers, multinational broadcasters and media giants, and work out against the individual violators. The misunderstanding that the primary purpose of copyright law is to protect authors against those who would pilfer the author’s work threatens to upset the delicate equilibrium in copyright law.

Though the doctrine of fair use offers a wide range of facility to disseminate information, there are certain strong areas, which impose harsh consequences on individual and academic users of information disseminated over the media, either electronic or print. To serve the purposes and objectives of the of the law as indicated by it’s title, the individual intellect has to be given priority and preference to the interests of multi-billion dollar entertainment industry or information industry. The writers and performing artistes should form associations and fight for securing their rights and interests as available under the present copyright regulatory regime and plead for more and more protections.

In almost all developing countries including India and more so in the States, the writers do not command publishing market, they are totally dominated by the unscrupulous publishers exploiting individual authors. Even the prominence or eminence of the writer does not yield him economic returns commensurate to his effort and popularity. While beginners or up-coming authors are totally at the mercy of the publishers, who prefer outright purchase of entire bundle of rights for a pittance, which do not equal half of 10 percent of proceeds from first print. Generally no published will honestly give the accounts and calculate royalty for the writers. Reprints and revision editions also may not yield enough gains for the author. Once the author parts with copyright, it is no more an intellectual property. Author’s intellectual produce becomes the property of unscrupulous publishers and whole gamut of law with all its rigour goes to help such a publisher gain profit without caring for original author. It is ridiculous that a book, which yields Rs 5 or 6 lakh to publisher, leaves just Rs. 15000 or so for the author, even as the publisher’s gains continue for a long duration. The experience of authors of literary works is much worse. Even popular story or novel writers have to satisfy with initial amounts only, as the publisher is generally not inclined to offer royalty on their own with honest disclosure of proceeds from that book. For poets, their intellect is not property at all. It could be even stated as liability. As none would publish them, the authors turn small publishers, invest their life time savings on publication, fail in marketing the produce and then go on distributing the copies or use their livable space for storing hundreds of copies. Their intellectual appetite has to be felt consummated with just script getting converted into a print version.

Even where the books really sell in the market, the publisher gains and the author does not know at least that his book is selling. Most of the copyright assignments in the market today is outright sale of bundle of rights to publisher for a lump sum. Law does not insist that royalty for the original author must be provided to the author. Both, the practice of outright assignment and absence of provision for royalty is unreasonable and indicates that law has ignored the real intellectual’s property rights. The lofty ideals, objectives and spirit of IPR do not come to the rescue of the deprived author. The investigative reporters, analytical writers, opinion makers in newspapers are denied the copyright en bloc as their writings are rated ‘historical or contemporary facts, events, news or mere ideas’ etc., though they are specifically expressed and such expression requires great hard work and creative analytical effort. The case of ‘Kamala’ discussed above is the apt example. Some times some well-written news stories attract the judicial attention and become writ petitions yielding positive directions and actions and also become thrilling subjects of feature films, but does not give any financial benefit to the author or even his employer.

Writers contributing to newspapers are the worst class of exploited. The employed writers lose the copy right by virtue of contract of employment as per copyright law. Their salary is their intellectual property. The employer’s permission is essential for even compiling into a book certain good pieces of writing published during the course of their employment, as the employer is the first owner of copyright. Coming to columnists, except a few top newspaper organizations, they are not even regularly paid that lowest amount of remuneration. However, the columnist holds copyright in their writing contributions, but gradually decreasing reading habit do not provide conducive atmosphere for publication.

Thus the IPR to print media, especially in domestic publication market and in regional language is not a harbinger of intellectual gains and do not help relieving them from publisher’s exploitation. If writing does not click, he ends up as an author, if it clicks, the author survives as an author but economic benefits are totally appropriated by the publisher. To make the regulation a real intellectual property regime, there must be judicious approach and fair consideration of interests of the first owner of the copyright. It is ‘intellectual property’ only when it resides in author and it ceases to be so in the hands of outright purchaser. It is just a property for publisher. The law must specifically provide for protecting the financial interest of first owner or the author, especially from the publisher. There should be a mandatory consideration of royalty of 10 per cent from the proceeds of the book with a voluntary disclosure of true accounts every year, absence of which should have penal consequences. The judiciary while dealing the cases of conflicting interests between the author and publisher, this background should be given a fair consideration. If not the IPR for author means ‘I’ for intellectual transferred, ‘P’ for poverty that remained, and ‘R’ for responsibility that prevails.

Thus IPR has to be understood in a different perspective in the backdrop of ground realities prevalent in third world countries and regional language print media (books and newspapers). The factor that print-media is under a virulent attack from electronic media as the latter is reducing the books market by killing the reading habits needs to be considered.

The purpose of copyright is understandable when it comes down heavily on mechanical copying and satellite level infringements affecting the business. But the law must be liberal when it comes to the use of the information for individual or academic purposes; the scope of doctrine of fair use as an exemption from copyright liability must be as enhanced as possible. The individual authors must be protected from exploiting publishers.

The courts and the law should allow the expansion of the scope of fair use and thus enlarge the need for dissemination of information freely through out the world without any barriers at any stage. It is the duty of the state and society to see that the dissemination is permitted by the wider practice of doctrine of fair use. The fine balance between the rigour of copyright and flexibility of fair use has to be maintained. The great advantages must be in tune with avoiding the great disadvantages of this global regulation.

The strict enforcement of stricter law of copyright should not result in loss of general storehouse of knowledge, because copyright seeks to stock the knowledge and not to lock it. Too long and broad monopoly for copyright will not help promotion of knowledge and learning, which is the real purpose of copyright regulation. The copyright law should not be viewed solely as an economic regulation, and its priority should not be the protection of economic rights alone. The public interest in public dissemination as the basic purpose of law must always be kept in mind while dealing with questions and disputes over this regulation, whether global or local.

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* Author is MHRD Chair Professor of Intellectual Property Rights and Coordinator NALSAR Proximate Education at National Academy of Legal Studies and Research, NALSAR University of Law, Hyderabad and a columnist.

[1] Article 19 (1) (a) of Constitution of India

[2] (1774) 4 Burr 2407; 98 ER 257

[3] ibid.

[4] Paul Goldstein, International Copyright, Principles, Law and Practice, OUP, 2001, p 3

[5] ibid, page vii of Preface.

[6] AIR 1989 Ker. 49

[7] Calcutta Weekly Notes, CWN (1966) 1130

[8] 1996 PTC 16

[9] AIR 1985 Bom 229

[10] Bakshi, P.M., Press Law, An Introduction, 1986, p 171

[11] This is the statement of Wittenberg who offered a good non-technical description of fair use before it was expanded in 1967 as quoted by Dwight L. Teeter and Bill Loving in Law of Mass Communications, Freedom and Control of Print and Broadcast Media, NewYork Foundation Press, 2001, p 854

[12] Gramaphone Co. of India v. Mars Recording Pvt Ltd 2000 PTC 117 (Kar)

[13] [2001] Ch. 143

[14] AIR 1985 Bom 229

[15] Nimmer on Copyright, p 98 quoted in judgement in Time Inc v Bernard Geis Associates, 293 F. Supp. 130, 131-134 (S.D.N.Y. 1968)