India: Legal Read For The Publishing Sector

Publishing sector in India is considered as a promoter of a creative division, as the publishing industry helps in transferring knowledge, creative fictions, information and data etc. The publishing sector in India is third largest English Language market in the world, and one of the most valued sectors for advancement of Indian community. However, this sector faces challenges of plagiarism, fabrication / falsification of data, low research quality etc. which are prevalent due to lack of guidance on publication ethics to guide as check points for publication. 1 Before delving into understanding the protection and limitations on publishers under the Indian laws, a few basic concepts can be addressed as under:

  1. What are the rights conferred upon a publisher?

Under the Copyright Act 1957, publisher is accepted as a copyright holder of a work, either through employment or through assignment where the exclusive rights are transferred in his/her favour. These rights may extend to:

a. to reproduce the work in any material form including the storing of it in any medium by electronic means;

b. to issue copies of the work to the public not being copies already in circulation;

c. to make any translation of the work;

d. to make any adaptation of the work; 2

The above rights are subject to the arrangement between the author and publisher, when the work is created independently by the author, whereas in case of work created under employment, the rights extend to all exclusive rights provided under the Copyright Act 1957.

2. What are the necessities under law that needs to be met by a publisher?

The publishing industry is subject to various legislations under the Indian laws. Each one of them lays down some procedural aspect that need to be adhered to by publishers. Some of these aspects with relevant legislations are given as under;

  1. Under The Press and Registration of Books Act, 1867:
  • Particulars to be printed on books and papers, such as name of publisher and printer, along with place of printing and publication. 3
  • Declaration to be made by the owner of any press for the printing of books or publications before the specified authority within whose local jurisdiction such press is operative 4
  • Rules regarding publication of newspapers, including a mandatory declaration by the printer/ publisher of every newspaper before a District, Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published 5
  1. Under Delivery of Books and Newspapers (Public Libraries) Act, 1954
  • Publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government.
  1. Under Copyright Act, 1957
  • Publishers enjoy 'related rights', i.e. they have the right over the edition they publish. The soft copy of layouts, films, plates, stocks and publicity material are the publisher's property. The author is not allowed to produce a competing work that could harm the sale of the book while it is in print. 6

Needless to say that all the above legislations mentioned also provide for penalty clauses in cases where procedural requirements are not met. Apart from the above mentioned, there are legal risks associated with publishing sectors, and few of such major risks are:

Infringement – Before publishing a work, it is mandatory for the publisher to ensure that the publication, to the best of his knowledge, will not lead to any infringement especially that of copyright and trademark. An instance, where the publishers has derived the contents from an earlier work and have used the same in his work without proper authorization from the owner/ proprietor of original work, then in such cases the publisher may end up causing infringement of an exclusive right of the owner/ proprietor of the original work.

Case: Penguin Books Ltd. vs India Book Distributors And Ors. 7

This case deals with the protection of the publisher's related rights from infringement. In this case the right of distribution (a related right vested with the publisher) was infringed upon by India Book Distributors. The plaintiff had the right of distribution over a work that was imported from a foreign country. These rights were infringed, and the Hon'ble Delhi High Court observed that without distributing license pertaining to a work no distributor can indulge in the business of distribution by infringing upon the rights of the entity holding such license.

Another area of concern is possible claim of defamation. Contents of publication which can harm or damage the reputation of any person, may lead to defamation unless such contents are protected by the exceptions of defamation such as truth, public conduct, content of public concern, proceedings of court, merits of a matter, good faith etc., as provided under section 499 of the Indian Penal Code 1860.

Case: Selvi. J. Jayalalithaa Vs. Penguin Books India 8

This case gained a lot of momentum owing to the fact that a political figure was involved. The publisher was asked to refrain from publishing the books (a biography on the plaintiff) on account of it containing defamatory content about her personal life. The Hon'ble Court had passed an interim injunction in this case that was turned into an absolute injunction against the publications which contained the contents defamatory to the plaintiff.

Obscenity is another challenge that has recently gained a lot of attention in the Indian community. Even though the issue of obscenity, as on date, is specific to the online streaming platform wherein the parties have raised issue of bringing online streaming within the purview of the Censor Board in order to stop obscene contents from the online platform. The publishing industry representing magazines, books, periodicals, novels, short stories etc., have escaped the eyes of the protestors over the use of sexual and/ or pornographic contents. With our move towards progressive society, the content market in India today majorly rely on hot, sexual and/ or pornographic contents to attract the attention of audience. Under the Indian Penal Code 1860, section 292 to 294 deals with obscenity, and section 292 specifically makes sale, hire, import, export, business, advertising of obscene books. Pursuant to the existing provisions against obscenity, it is important to also balance right to expression.

Case: (1) Ranjit D. Udeshi vs State Of Maharashtra 9 and (2) Aveek Sarkar & Anr. vs State Of West Bengal And Anr. 10

In both the cases given above the publication of 'Obscene' content was brought to court. These landmark judgments set out the test for obscenity and though the matter was resolved in the favour of the publisher in the latter case, it is still advisable to avoid publication of any obscene content as the Indian Courts have indicated that the concept of obscenity would change with the passage of time, and what might have been "obscene" at one point of time would not be considered as obscene at a later period.

Outraging religious beliefs/ sentiments – India is a secular country, diversity of religious beliefs and practices. By virtue of being a secular state, the constitution of India values and respects all religions equally and also protects religious sentiments of its citizen. Under the Indian Penal Code 1860, Chapter XV (section 295 to 298) deals specifically with the offences relating to religion. The provisions of Indian penal code especially with respect to religious sentiments is very stringent to protect the sentiments of its citizen. Further, religion as a topic is very critical and delicate, and therefore any statement or publication which may hurt the religious sentiment may not only lead to disregard the reputation of the author and also end the career of the author in terms of publications. Such critical contents may also cause public nuisance and in worst case scenario may lead to riots on religions.

Case: R.V Bhasin vs 2 Marine Drive Police Station, 11

In this case, the Hon'ble Bombay High Court mainly dealt with the Author of the work, but the order also extended to the publishers and all circulation of the books was called off. The Hon'ble Court observed that:

"The author has gone on to pass insulting comments on Islam, Muslim community with particular reference to Indian Muslims. It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims."

Conclusion

As a general practice, the publishing house or publishing agencies, ensure a legal read of work before processing it for publication. The legal read of work must be a primary concern, since any dispute that may arise on account of publication may not only ruin the reputation of the publishing house/ agency but may also lead criminal charges which will not only destroy the goodwill of the publishing agency but may also end the market value of the publishing house/ agency.

Under Section 95 of the Criminal Procedure Code, the State Government has been entrusted with the Power to declare a book or publication as forfeited to Government. Further Section153A of the Indian Penal Code 1860 provides for punishment for acts between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

In light of these serious concerns, it is important for all publishing houses/ agencies to ensure legal read of works before publications.

Footnotes

1 Federation of Indian Chambers of Commerce & Industry, FICCI Booklet on Publishing Ethics, available at http://ficci.in/study-page.asp?spid=23081§orid=86

2 Section 14, Indian Copyright Act, 1957

3 Section 3, Press and Registration of Books Act, 1867

4 Section 4, Press and Registration of Books Act, 1867

5 Section 5, Press and Registration of Books Act, 1867

6 Section 56, Indian Copyright Act, 1957

7 AIR 1985 Delhi 29, 26 (1984) DLT 316.

8 O.A. No. 417 of 2011 and Application No. 2570 of 2011 in C.S. No. 326 of 2011(Madras High Court); Shilpa S. Shetty vs. Magna Publications Co. Ltd. & ors. AIR 2001 Bom 176 held that "...the principle that whenever defamatory articles are likely to be published they cannot be permitted to go ahead to print and to cause damages."; R Rajgopal alias R.R. Gopal and Another vs. State of Tamil Nadu and Others Writ Petition (C) No. 422 of 1994; Swami Ramdev VS. Juggernaut Books Pvt Ltd & Ors. as decided on September 29,2018.

9 1965 AIR 881, 1965 SCR (1) 65

10 (2014) 4 SCC 257

11 Pronounced on January 06, 2010 by Hon'ble Bombay High Court.

For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions