Copyright and Free Speech – II: Constitutional arguments against OUP et al in the DU Photocopying Case

In the previous post, we discussed the background of OUP, CUP and Taylor & Francis’ lawsuit against Delhi University and the Rameshwari Photocopying Service. Let us now turn to Article 19(1)(a), which guarantees the freedom of speech and expression. If there is one thing that our cases agree upon, it is that the main justification for Article 19(1)(a) lies in its importance to maintaining democracy. That, in itself, tells us nothing, however, because it is an open question what democracy is, and how free speech contributes to maintaining it. Let us therefore discuss the philosophy of free speech itself, in the context of democracy.

Free speech has been extensively discussed on this blog before. The post most relevant to our present discussion may be found here. For the purposes of simplicity, I will posit two possible philosophical approaches to free speech, that I will label the “market-based approach” and the “social good approach”. The market-based approach, that may be found in the writings of John Stuart Mill and in the judicial opinions of Oliver Wendell Holmes, takes the existing structure of market-relations as a given, background fact, requires complete freedom of speech within the structure of that market, and disallows governmental intervention to alter the existing pattern of relations. For instance, suppose that Anil Ambani and I both want to broadcast public messages of support for the rival candidates in the next parliamentary election. Mr Ambani’s wealth allows him to buy advertising space on television and upon billboards to implement his wish; my (lack of) wealth does not allow me to do so. Under the market-based approach, if the government intervenes to – for example – limit the amount of advertising time or billboard space that Mr Ambani can buy in order to ensure that others can use that space as well, it would be an impermissible restriction upon his freedom of speech. My counter-argument that my freedom of speech is being violated by the current state of affairs would be rejected on the ground that it is not my liberty that is being restricted, but – in the words of Isaiah Berlin – my ability to exercise it, because of my lack of wealth. Cases such as Sakal Papers and Bennett Coleman are examples of the Supreme Court endorsing the market-based approach, where it disallowed the government’s attempts to bring down barriers to entry in the newspaper market by placing restrictions upon big newspapers. Mill’s claim – and one that has been echoed down the years – is that such an approach is maximally conducive to democracy, since it involves complete and unrestricted free play of ideas (the market itself is not treated as a restriction).

The social good approach, on the other hand, does not take the existing market as given, but questions the justice of the initial distribution of resources that directly affects the exercise of free speech, and most importantly, treats the market as we would treat a law explicitly banning all speech – as a potential restriction upon the freedom of expression, that must be judged on its own terms. The overall argument for this approach, that advocates the connection between freedom and barriers to market entry, can be found in this path-breaking article by Professor G.A. Cohen, called Freedom and Money, here; it is impossible to sum it up here, but very briefly, if I want to access a good but don’t have money to buy it, and I try to access it anyway, the government, acting under the laws of property and sale of goods (for example), will physically restrain (or punish) me. It is in that sense that there is an infringement of freedom.

So when Mill argues, for instance, that an open marketplace would guarantee the contestation of all possible ideas and the survival of the best, the free-speech-as-social-good approach accepts his goal, but rejects his premise: the purpose of free speech is indeed to provide an environment in which there is as wide a range and diversity of ideas as possible, available to the public. The market is instrumental towards achieving this goal, and not an end in itself.

And it is this approach that, it is submitted, the Supreme Court has endorsed in a majority of its cases. It is found in the dissenting opinion of Mathew J. in Bennett Coleman, where he argued that: “an interpretation of Article 19(1) (a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion.”

In the Cricket Association of West Bengal Case, the Court observed: “That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject.

And in Union of India v. Motion Picture Association, the Court observed interpreted Article 19(1)(a) as aimed at “promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues.”

     And perhaps most significantly, in LIC v. Manubhai D. Shah, by effectively holding in favour of a “right of reply” in the case of contentious newspaper articles (even in an in-house newspaper), the Court noted: “fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions.”

Let us now make the argument. Article 19(1)(a), as the Court has held repeatedly, is most fundamentally about democracy. Freedom of expression is essential to maintaining a functioning democracy. The Court has endorsed a rich, substantive conception of democracy, which envisages a broad and diverse range of ideas open and accessible to the public. The freedom, under Article 19(1)(a), is not just the right of a speaker to speak his mind, but a community right to access information, an individual right to be informed, and the social good of a vibrant and engaged public. And lastly, this freedom is not exercised within the constraining influence of existing market relations that determine access to the means of communication and information, but contrariwise, it is the market relations that must be judged – and if necessary, modified – to comport with the right since, like any other human or governmental action, they too can operate to restrict it.

The last step is easy enough. The educational system is the most important avenue for access to knowledge and ideas. There is no substitute for it. Unaffordable book prices constitute a heavy barrier to access. It doesn’t matter – for the purposes of the present argument – that the prices are imposed by private entities, because – as we have discussed above, that is still treated as an interference with freedom. In other words, if I can’t access crucial educational materials because of a government ban and if I can’t access them because of prohibitively high prices, in both cases, my freedom is being infringed (see G.A. Cohen’s argument, discussed above, for why this is so) The difference is that in the former case, I can sue the government to comply with its 19(1)(a) obligations, but I cannot sue the publishing houses for the same, since the Constitution does not permit us to enforce the fundamental right against the publishing houses. But that isn’t the argument anyway: because what is at stake here is the interpretation of a law (the fair dealing provision in the Copyright Act). It is submitted, therefore, that the Court ought to treat unaffordable book prices as impediments to a full exercise of Article 19(1)(a) rights and freedoms (as elaborated above), and interpret the Copyright Act in a manner that is most conducive to removing those barriers. This approach would be consistent with accepting that the actions of private parties and the structure of market relations act as barriers to freedom (which they do), and also avoid the constitutional impermissibility of imposing fundamental rights horizontally.



Filed under Copyright, Free Speech

2 responses to “Copyright and Free Speech – II: Constitutional arguments against OUP et al in the DU Photocopying Case

  1. LawSchoolLeaks

    Sooo…. You think OUP’s approach in this case should fail on not just copyright grounds but also constitutional grounds. Yet when it came to choosing a publisher for your book, you went with OUP!

    Freedom of expression, it is a great thing, allows us to take morally dubious conflicting stances!

    • Thanks for your comment. With your anonymous handle to boot, you make me feel like I’m back in law school again!

      You also seem to have missed the part where I put up all of my research, in some form or the other, either on this blog, or on SSRN, in the interests of open access. But then again, it’s always easy to mock the constraints faced by academics within the structures of academic publishing. Cheers.

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