Anything that stems out of the human mind, based on an original thought process or an individual expression of skills acquired, can be classified as 'Intellectual Property' of said person. In a legal ambit, such a production of the mind can be protected, to limit the ownership to the person responsible for its proffering, by encasing it within 'Copyright Law'. In essence, it imparts a right, given by law for any such expression, creation or publication.
In India, The Copyright Act, 1957 strives to provide protection to the original expression of ideas, rather than ideas themselves by conferring it on literary, dramatic, artistic and musical works, not only limited to traditional modes of production, distribution and/or reproduction.
While this classification of what qualifies for the protection granted by the Copyright Act is clear, there is some dichotomy that arises, on the face of it, within the circulation of legislations, acts, judicial pronouncements and other such publications of the sort, both in physical and digital form.
STATUTORY PROVISIONS IN INDIA
As far as accessibility of law is concerned, statutorily, Section 2(k)1 of the Copyright Act states that a work, which is made accessible on publication by a direction or order of any judicial authority of the country is a Government Work. As per Section 17(d)2, the ownership of such 'Government Works' lies first with the Government itself, unless stated otherwise. Extensively, the Indian fair dealing doctrine as enshrined in S.52 (1) (q) of the Copyright Act, 1957 specifically deals with reproduction or publication of Acts of the legislatures, any matter published in the Official Gazette, committee reports, court orders or judgements3 and excludes the reproduction or publication of any such material from copyright infringement.4 By an overview of the above, it can be inferred that although anything published or produced by the Government, in the form of Government Works, is under the ownership of the Government, it is available to the public to reproduce or publish the same, as a right, without instituting copyright infringement issues.
LEGAL ISSUE IN QUESTION
The issue that arises in this regard is, with respect to additions done, in line with interpretation and comments added by publishers, licensed or not, to the original Work, including the specific style of page formatting, citation mode, summaries and headnotes: will all the alterations done, including the additives, be covered under copyright, subject to the author, or will they be available to open access, in line with exemption from copyright infringement, as extended to Government Works?5
A sub-issue of copyright in reporting a judgment of a court, a comparatively neglected area till then, in line with the above question raised was decided in the largely read judicial ruling in Eastern Book Company v. D. B, Modak&Navin J. Desai6. The judgement by the Division Bench, in this case, rendered the understanding and applicability of skills and incorporation of original material, based on extensive research, careful consideration of material and stemming from rational perception of self, which provides copyright protection to any additional information included in the publication of a Government Work. Further, the Court also held that the claim of copyright is not available on grounds of publishing the material before anyone else, since the Works are available for public access, on an equal footing. Any trivial annotations or changes to the original work7, will not amount to qualification for copyright protection.
In another case, the Hon'ble High Court of Delhi, in its decision in Union of India v. Vansh Sharad Gupta8had held that the RTI Act mandates the government to place the text of enactments in the legal domain. The Court was hearing a writ petition by the Government against an order passed by the Central Information Commission which had directed it to upload all amended bare Acts online so that the public knows its laws and private publishers do not gain a monopoly by publishing the same as copyrighted works.
In a Public Interest Litigation, Arpit Bhargava v. Union of India9, a division bench of the High Court of Delhi passed an order directing the Government to take action against any erring publishers that contravene the provisions of S. 5210 of the Copyright Act.
In light of the same, coupled with the fact that the Government has recently been pro-active on uploading updated laws on India Code (the digital repository of all central and state acts), It is unlikely that a situation similar to that in United State of America shall arise, where the Supreme Court recently ruled that the annotated versions of state codes cannot be copyrighted, in the case Georgia et al. v. Public Resources.org11, with similar arguments and strong but minority dissent otherwise. This presents itself as a step in the progression made by US Supreme Court in ensuring free access to legal material. The dissent was based primarily on the free access of information, taking away the opportunity to private organisations, playing as publishers, to garner profits.
Although there is statutory and precedential relief in case of ambit of copyright in the accessibility of law, as understood above, there still exists ambiguity with respect to its extension on a digital platform. The technological era that we presently live in, facilitates easy reproduction and publication of anything, not just restricted to Government Works, which renders the area of copyright not concretized or structured fully, leaving space for enactment of effective legislation. However, in essence, when it comes to the accessibility of law by the Government, being the primary owner of materials, the argument favouring the existence of copyright provisions for the purpose of benefitting the society as against the personal benefit of the author12 takes precedence and facilitates all arguments presented here, keeping in mind the role of Government in serving its populace.
Author: Prishita Chadha, a 4th-year student of Symbiosis Law School, NOIDA, intern at IP and Legal Filings and can be reached at email@example.com
1 "Government work" refers to a work which is created or published by, including under direction or control of, the Government or any related department, any Indian Legislature or any Court, Tribunal or Judicial authority in the country.
2 In the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
3 Unless explicitly ordered by the Government to restrict publication, reproduction or circulation of any such document, order or information.
4 However, this exception also includes the condition that such reproduction or publication is with any commentary thereon or any other original matter.
5 For purpose of proper understanding, it is essential to consider the same legal applicability of legislations and case precedents, as qualifying for Government Works being available for public access.
6 101 (2002) DLT 205
7 In the form of commas, quotations, change in spelling or grammatical or typographical corrections.
8 W.P. (c) 4761/2016
9 W.P. (c) 10941/2017
10 Acts exempted from constituting a copyright infringement.
11 No. 18-1150, 590 U.S. ___ (2020)
12 Which further branches off into doing so for the upkeep of notions of natural justice or as providing incentive to maintain individuality.
13 prietary Rights or Common Property? – The Dilemmas of Copyright Protection of Case- Law Reporters , Anu Tiwari &Shruti S. Rajan, Journal of Intellectual Property Rights, Vol. 11, January 2006.
14 yrights and Copywrongs: Why the Government Should Embrace the Public Domain, Pranesh Prakash, August, 2013, http://www.cis-india.org.
Originally published 07 July, 2020
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