Free Speech and Copyright – III: A brief addendum on 19(1)(g)

If – as we have argued – constitutional values ought to inform our interpretation of the fair dealing provision, then what, it might be asked, do the arguments in the previous two posts mean for Article 19(1)(g), which guarantees the freedom of occupation, trade or business? Shouldn’t that play a role in the interpretation of the Copyright Act as well, because an unrestricted permission to photocopy will certainly have an impact upon the profits of the publishing companies? The answer is yes, of course it should. And of course, 19(6), that permits reasonable restrictions in the interests of the general public, will play the role of a counterbalance. Now, I would submit that there are two considerations that ought to be borne in mind when analyzing the 19(1)(g) issue in this case. The first is that in a series of judgment, from Mohini Jain through Unnikrishnan and most recently in Right to Education, the Court has made it clear that the historical rootedness of education as a public service and a charity throughout Indian history implies that while it is protected under Article 19(1)(g), it does not enjoy the same levels of protection as other businesses – especially when it comes to the question of profit. What this means is that a 19(6) balancing test would give shorter shrift to profit than it would otherwise do (this argument is buttressed by Article 21A’s constitutional guarantee of education although that, of course, is limited in its scope to the ages of 6 to 14 and so can, at best, play only an indirectly interpretive role in this enquiry, as a guiding principle). And secondly, the public interest in this case – cheap access to educational materials in a nation that still suffers from grinding inequality and poverty – is close to overwhelming. Of course, it may be argued that the unrestricted photocopying will drive OUP, CUP and Taylor&Francis out of business, and so do a disservice to the public interest by constricting the availability of educational materials. That is a judgment for the Court to make, although my intuition is that a close analysis of the financial statements of these companies will reveal those fears to be – largely – groundless.

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Filed under Copyright, Free Speech, Occupation and Business

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