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Copyright Law of India and the Academic Community†

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Copyright Law of India and the Academic Community† Journal of Intellectual Property Rights Vol. 9, May 2004, pp 207-225 Copyright Law of India and the Academic Community† T C James* Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Udyog Bhavan New Delhi 110011 Received 3 March 2004 Copyright plays a crucial role in academic institutions. Although, copyright protection has been in existence in India for more than 150 years, copyright issues in academic institutions have not received enough attention. This paper attempts to look at the issues in the background of the philosophical justification for copyright protection. After a bird’s eye view of the basics of copyright, the paper looks at the traditional issues relating to scope, ownership and use of copyrighted works in educational institutions, in the light of case laws. Then the possible issues that Indian educational institutions may have to face in the context of the emergence of digital technologies and widespread use of information technology are examined. The paper concludes with certain suggestions for the consideration of the educational institutions. Keywords: Copyright law, Moral rights, Economic rights, Legal rights, Exclusive rights, Copyright ownership, Copyright regime, Digital technologies, Educational institutions India has one of the oldest academic tra- and institutional structures emerged. ditions with formal education finding a Western style universities and schools place in its ancient history. The universi- came into existence2. Approach to prod- ties of Taksila and Nalanda were great ucts of mind that formed the content of centres of learning in the ancient world,1 educational institutions also got changed brimming with students and teachers over the centuries. Concept of copyright from different parts of the world, not to in literary works found a place in India by say about the great Gurukul tradition in the nineteenth century. the hoary past. However, those were the India had its first copyright law en- days when learning was considered as gift acted on 18th December 1847 much ear- of God, freely received and freely given. lier than many other countries. It is inter- Over the centuries, approach to education esting to read the title of that legislation: and learning changed. Old traditions gave “An Act for the encouragement of learn- way to new ones. New economic models ing in the Territories subject to the Gov- ______________ †The ideas in this paper are of the author that was presented at the PAN-IIT Workshop on Management of Intellectual Property in Academia organized by the Indian Institute of Technology, Mumbai, during 26-27 February 2004 *Email: [email protected] 208 J INTELLEC PROP RIGHTS, MAY 2004 ernment of the East India Company, by not have such a right. The current law of defining and providing for the enforce- copyright in India is the 1957 Act, but it ment of the right called Copyright has been amended a number of times, last therein3” .The scope of that Act covered being in 1999, to keep it abreast with the books only4 and not other kinds of crea- socio-economic and technological devel- tive expressions. It is, however, remark- opments able that the Act provided for compulsory Although India has been providing licence to publish a book, which the copyright protection since the nineteenth original publisher had refused to repub- century, copyright issues had not exer- lish so that books in demand were not cised the academic community in a scale withheld from the public.5 Although such commensurate with their role in academic legislation existed, the Bombay High activities. There could be various reasons Court in a judgement towards the end of for the same. First, the traditional Indian the 19th century held the British Copy- attitude to knowledge dissemination and right Act, 1842 as the one applicable to cultural efforts has been non-commercial. India6. In 1911 “An Act to amend and the Secondly, most considered, the income law relating to copyright” was enacted by derivable from copyright is not very sig- the British Parliament. That Act had ex- nificant and, therefore, a lax attitude to tended application to all the British do- the enforcement of the copyrights existed. minions including India. It, however, had Thirdly, educational institutions did not a provision enabling the legislatures of look upon intellectual property effort as a the dominions to alter or modify the pro- wealth creation activity. In fact, copy- visions of the Act in its application to that rightable works such as course material or dominion. Accordingly, the Government textbooks were not looked upon as of India enacted the Copyright Act, 1914. ‘commodities’ in the market place but as That Act remained in force till 1958 when instruments for achieving the primary the new Copyright Act, 1957 passed by objective of such institutions, that is, im- the parliament of independent India was parting of education. However, with the brought into force.7 An interesting feature development of new technologies in stor- of the British phase of copyright protec- age and dissemination of information the tion in the country is that while in Britain, situation has changed and now academic the universities of Cambridge and Ox- community cannot be a silent spectator. ford, the four universities in Scotland8, The issues need to be addressed properly. and the several colleges of Eton, West- In order to get a clear picture of the prob- minster and Winchester as well as Trinity lems, we may first look at the basics of College, Dublin , had the right “to hold in copyright protection, then the traditional perpetuity their copyright in books given copyright issues in education and finally or bequeathed to them for the advance- at the new emerging challenges. ment of useful learning and other pur- Basics of Copyright 9 poses of education,” universities in India The most important argument advanced such as Kolkata, Bombay and Madras did for copyright protection is the need to JAMES: COPYRIGHT LAW OF INDIA AND THE ACADEMIC COMMUNITY 209 shield the author’s personality from distor- should be possible for an author to earn tions and also to ensure economic returns to from his works if there is a popular de- him for his creative efforts. mand for them. In the absence of any The concept of protection of author’s regulation, any unscrupulous enterpriser personality emerges from the view that or carpetbagger may publish the work of every creative work is an extension of the an author and make money out of it with- self of the creator. This protection in- out giving any penny to the author. volves right to claim authorship of the Therefore, copyright provides exclusive work and to restrain or claim damages in rights to the author to reproduce or adapt respect of any distortion, mutilation, or communicate to the public his work.13 modification or other act in relation to the These rights are referred to as economic work, which would be prejudicial to the rights as they enable an author to make honour or reputation of the author10. pecuniary gains by controlling those These rights are generally known as rights, i.e., he can negotiate financial re- moral rights (droit moral). In some coun- turns for licensing the use or for assign- tries the right to publish the work is also ment of any of those rights. This brings considered as a moral right. copyright to the stable of property rights, While moral rights may ensure creative as one kind of intellectual property rights. satisfaction for an author, they do not There are major differences between guarantee economic gains for him. It is intellectual property rights (IPR) and argued that the possibility of fair eco- other property rights. IPR are rights over nomic returns from the work is a neces- intangible property or property incorpo- sary incentive for creation of original real. Physical property gets exhausted works. After all, an author spends time when consumed whereas the use of intel- and energy in creating a new work and lectual property does not exhaust the like any other individual he also has to same; rather it enhances the value of the earn his daily bread by the sweat of his property. Consequently intellectual prop- brow unless he was born with a silver erty is one, which can be concomitantly spoon in his mouth. Even if he has other used by many. means of livelihood, he still has a right to There is a public interest angle to be economic returns for his effort. Just as a taken care of while providing legal rights manual labourer gets paid by the benefi- to authors in the use or exploitation of ciary (exploiter) of his labour, an author their creative efforts. This is because has a basic human right to get paid for the these rights are in essence a right to con- labour, skill and energy that he has spent trol access to cultural, educational and over his work by the user (exploiter) of scientific material. Control over these is, that work11. This is the traditional eco- in effect, control over the intellectual life nomic rationale of copyright law. It is of the community. It is control over na- natural justice that the product of the la- tional, if not universal, cultural patri- bour, skill and capital of one man must mony. While in the realm of physics it not be appropriated by another.12 It may be a fact that the quantum of matter 210 J INTELLEC PROP RIGHTS, MAY 2004 plus energy is constant and there can be (1) Everyone has the right freely to par- no addition, in the intellectual property ticipate in the cultural life of the domain there is always new creations and community, to enjoy the arts and to additions to the existing ones.
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