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Online Speech and Intermediary Liability: The Delhi High Court’s MySpace Judgment

On the 23rd of December, a division bench of the Delhi High Court handed down its judgment in MySpace vs Super Cassettes. In the process, the Court laid down some important legal principles regarding intermediary liability in the case of copyright claims, the scope of safe harbour provisions, and injunctions. The judgment, therefore, has significant ramifications for online speech, and ought to be studied closely. It is also worth reading because it is one of the first Indian judgments (to my knowledge) that focuses upon the special characteristics of the Internet from the point of view of expanding online speech, and not contracting it. As I shall argue, on the core question before it – that is, balancing online speech with the statutory mandate of protecting copyright – the Court successfully negotiated a minefield of legal and technical issues, and – apart from one finding – managed to tread a fine line between the competing interests.

Background

In 2008, Super Cassettes filed a suit against MySpace. It argued that a lot of the songs and other audio-visual content that MySpace hosted on its website violated its copyright. It further argued that MySpace profited from this through advertisements that were inserted into the videos. Furthermore, MySpace’s existing systems of protecting copyright – i.e., a terms of service agreement with its users directing them not to violate copyright, a notice-and-takedown system where MySpace would take down copyright infringing material on being notified by the holder, and a Rights Management Tool, whereby copyright holders could sign up, create digital fingerprints of its content, and then submit it to MySpace, who would then block mirror content – could not absolve it of liability under Indian law. Super Cassettes argued that MySpace had violated provisions of the Copyright Act. It sought a permanent injunction, and damages.

MySpace argued, on the other hand, that it was an intermediary, and had no role to play in making, modifying, or uploading content upon its website. The advertisements that were shown just before a video played were through an automated process, depending upon matches between keywords. Consequently, MySpace was not modifying any content in its own right, and was protected under the safe harbour provisions of the Information Technology Act. Furthermore, a general injunction to remove copyright-infringing material was impossible to comply with, because not only were there more than 100,000 works on the website which MySpace would have to sift through, but it would also have to monitor every future work that was uploaded on its website.

On hearings for interim orders, the single judge of the High Court found that MySpace was prima facie in breach of the Copyright Act by providing a “space” where infringing material was published, and with “knowledge” that such material was being published (the two requirements under Section 51(a)(ii) of the Copyright Act). The single judge further held that MySpace’s role went beyond that of an intermediary; and in any event, under the proviso to Section 81 of the Information Technology Act, the provisions of that Act (including the safe harbour provisions) were clearly subservient to copyright law. MySpace’s safeguards – such as the Rights Management Tools – were not relevant to a finding of liability for copyright infringement, and could only come into play as factors for mitigating damages. Consequently, the single judge granted a qua timet injunction (i.e., an injunction against future acts), prohibiting MySpace from allowing uploads of any material that breached Super Cassette’s copyright, and to delete from its website the songs and other content about which Super Cassettes provided it with the relevant details.

MySpace appealed.

Issues before the Division Bench

At the outset, it is important to note that the division bench of the High Court was concerned only with the issue of the injunction order – that is, the order of injunction – and not with the overall suit between the parties. Consequently, Justice S. Ravindra Bhat, writing the judgment of the Court, framed the following three legal issues for adjudication:

 “First whether MySpace could be said to have knowledge of infringement as to attract Section 51(a)(ii) and consequent liability; Second, does proviso to Section 81 override the “safe harbor” granted to intermediaries under Section 79 of the IT Act third, possibility of harmonious reading of Sections 79 and 81 of the IT Act and Section 51 of the Copyright Act.” (paragraph 31)

Knowledge of Infringement

Section 51(a)(ii) of the Copyright Act states that copyright shall be infringed when a person “permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.”

The Division Bench agreed with the single judge that MySpace’s website was a (virtual) “place”, from which MySpace earned profit (paragraph 34). The key question was whether, in the absence of specific notice, MySpace could be said to be “aware” or have “reasonable grounds to believe” that copyright infringement was taking place on its website. The single judge had held that the very presence of safeguard provisions and tools (such as notice-and-take-down) in MySpace’s user agreements signalled a “general awareness” that copyright was being infringed on its website, and this was enough for liability to be attracted under S. 51(a)(ii). The Division Bench disagreed. In paragraph 35, Justice Bhat held:

“Simply put, that test [of general awareness] overlooks that unlike “real” space, in a virtual world, where millions of videos are uploaded daily, it is impossible under available technology standards to identify the streaming content, which actually infringes. Knowledge has a definite connotation, i.e a consciousness or awareness and not mere possibility or suspicion of something likely. The nature of the Internet media is such that the interpretation of knowledge cannot be the same as that used for a physical premise.”

He then went on to develop this argument in the succeeding paragraphs, noting that in the specific context of the Internet, where a system could store “millions” of videos, the concept of “constructive”, or assumed knowledge, from the offline world, could not simply be transplanted here. Rather:

“The requirement is to give specific information to the content host or the website(MySpace) that infringement occurs with respect to the specific work. A general or vague description of the works would be insufficient as this then leaves room for MySpace to rely guesswork as to what content has to be removed. Therefore, the onus is upon the plaintiff to give detailed description of its specific works, which are infringed to enable the web host to identify them.” (paragraph 36)

Super Cassettes argued, however, that it had notified to MySpace a list of more than 100,000 songs in which it had copyright. The Division Bench held that this was insufficient, especially because when MySpace had done a preliminary scan of these 100,000 songs, it had found that many of them had been uploaded by distributors or performers who might well have been covered under copyright exceptions (such as, perhaps, fair use). Consequently, the Division Bench held:

“It is only when a specific work is mentioned can it be said that MySpace possesses knowledge of a work being infringed on its website. Providing long lists of all works, tasking MySpace with identifying and removing infringing content is not enough. It is only when MySpace has specific or actual knowledge or when it has reasonable belief, based on information supplied by SCIL and if despite such knowledge or reasonable belief it fails to act can it be held liable for infringement…  in other words, an indiscriminate and blind acceptance of SCIL‟s entire list to run a general filter and “take down” all content would result in grave damage and result in likely multifarious disputes: with up-loaders, many of whom are original creators in their own right and might have used a miniscule quantum of the copyrighted content in… their larger original creation; with distributors, who might hold genuine licenses and with others who create versions, remixes or original titles which may have little content; still there may be other content uploaders whose material only superficially resembles with the titles owned by SCIL, because of the lyrics or titles but is otherwise genuine creation with its independent copyright.” (paragraph 38)

In the present case, therefore, the Court held that MySpace had no prima facie knowledge of infringement (paragraph 39).

The Interplay Between the Copyright Act and Intermediary Liability under the IT Act

This brought the Court to issues 2 and 3 (see above). MySpace had sought sanctuary under Section 79 of the Information Technology Act. Section 79 provides a safe harbour to intermediaries from being held liable for unlawful content on their servers. This safe harbour is lost if the intermediary receives “actual knowledge” that it is hosting unlawful content. And recall that in Shreya Singhal vs Union of India, the Supreme Court had held that “actual knowledge” under Section 79 was limited to either a court order, or a government directive.

As we can see, there is an overlap between Section 51 of the Copyright Act and Section 79 of the IT Act. Section 51(a)(ii) makes an entity liable for secondary infringement if it is “aware” or has “reasonable grounds for believing” that infringement is happening on its “place”. Section 79, which otherwise protects intermediaries, nonetheless revokes this protection if the intermediary has “actual knowledge” that its platform is being used for law-breaking (which includes copyright violation). Now, the key question is this: if the general standard of protection afforded to intermediaries under the IT Act (actual knowledge) – as interpreted in Shreya Singhal – is greater than the general protection in cases of secondary infringement under the Copyright Act (non-awareness), then which of the two laws will apply to the specific case of an intermediary whose website is being used for potential copyright infringement? Or, to put the question another way: if the intermediary does not have “actual knowledge” (as per Shreya Singhal) under S. 79 – that is, if it has not been notified by a court order or by the government that copyright infringement is taking place – can it nonetheless be held liable under Section 51 if it has the “awareness” of copyright infringement (as held by the Division Bench in Issue 1) taking place?

It is here that I part ways with the Division Bench. Super Cassettes argued that the IT Act was not applicable at all to cases of copyright infringement, since the proviso to Section 81 of that Act stated that “nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act.” The Division Bench – in my view, correctly – rejected this argument. It pointed to the language of Section 79 itself, which itself had an overriding clause: “Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3)…” – which, according to the Division Bench, meant “that the only restriction to be placed in the application of Section 79(1) is contained within the section: Section 79 (2) and Section 79 (3).” Consequently:

“In this Court‟s opinion, Section 79 grants a measured privilege to an intermediary. However, that would not mean that the rights guaranteed under the Copyright Act are in any manner curtailed. All Section 79 does is regulates the liability in respect of intermediaries while the Copyright Act grants and controls rights of a copyright owner. Under the circumstances, it is difficult to conceive how one would pose a barrier in the applicability of the other. The true intent of Section 79 is to ensure that in terms of globally accepted standards of intermediary liabilities and to further digital trade and economy, an intermediary is granted certain protections. Section 79 is neither an enforcement provision nor does it list out any penal consequences for non-compliance. It sets up a scheme where intermediaries have to follow certain minimum standards to avoid liability; it provides for an affirmative defence and not a blanket immunity from liability.” (paragraph 47)

In the succeeding paragraphs, the Court stressed on the fact that “Parliament by amending the IT Act intended to create a separate provision and regime for intermediaries…”, and that “given the supplementary nature of the provisions- one where infringement is defined and traditional copyrights are guaranteed and the other where digital economy and newer technologies have been kept in mind, the only logical and harmonious manner to interpret the law would be to read them together.” So far, so good. However, in paragraph 50, the Court then held:

“Section 79(3) of the IT Act specifies that when a person has actual knowledge or upon notification by the appropriate government or its authority fails to expeditiously remove or disable access to an unlawful content then the immunity granted under Section 79(1) is revoked. The knowledge contemplated under this section is actual knowledge. In Shreya Singhal (supra), Section 79(3) with Rule 3(4) of the Rules were read down to mean receipt of actual knowledge from a court order or on being notified by the appropriate government. However, this was in respect of restrictions under Article 19(2) of the Constitution of India. The Supreme Court was conscious of the fact that if millions of requests for take down are made, it would become difficult for intermediaries (such as Google) to identify legitimate requests. In the case of copyright laws it is sufficient that MySpace receives specific knowledge of the infringing works in the format provided for in its website from the content owner without the necessity of a court order.”

However, instead of reading Section 51 of the Copyright Act and Section 79 of the IT Act harmoniously, this effectively subordinates the latter to the former. In the first part of its judgment, the Court undertaken an independent analysis of Section 51, and arrived at a “knowledge” standard for intermediaries. This standard – of specific notice – was considerably less protective than Section 79 IT Act’s requirement of “actual knowledge” through a court order or the government. In paragraph 50, the Court simply adopted the specific notice standard “in the case of copyright laws.” In other words, intermediaries who were otherwise protected under Section 79 of the IT Act would lose their safe harbour if they were given specific notice of copyright infringement by the copyright owner, even in the absence of a court order or a government directive.

The Court justified this by pointing to the “red flag” requirements under the American DMCA, which is another form of notice-and-take-down. That, however, cannot be an answer to why the actual notice standard laid down in Shreya Singhal would be diluted to specific notice in case of copyright claims. And the broader problem is this: even under the Division Bench’s heightened requirement of “specific notice”, the primary onus of deciding upon the validity of a copyright claim, and deciding whether or not to take down content (thus restricting online speech) rests upon a private party – MySpace. The problems with this approach have been well-documented: facing the threat of losing their safe harbour and being sued for damages, private parties will err on the side of taking down content. MySpace, in all likelihood, will have neither the resources to parse Super Cassette’s notice to see whether the infringing content is saved by fair use, or by de minimis use, or any other exception to copyright infringement – and nor will it be willing to take the risk of affirmatively rejecting a notice, and then facing the possibility of extended litigation. It was precisely because of this that the Supreme Court in Shreya Singhal restricted “actual knowledge” to a court order or a government notification. In my view, the Division Bench unjustifiably dilutes that standard for copyright claims.

Furthermore, the matter is somewhat complicated by the operative part of the judgment. In paragraph 68(b), in its record of its findings, the Court notes:

“Section 51(a)(ii), in the case of internet intermediaries contemplates actual knowledge and not general awareness. Additionally, to impose liability on an intermediary, conditions under Section 79 of the IT Act have to be fulfilled.”

However, this seems to run counter to what came before: under this, Shreya Singhal’s actual knowledge standard under Section 79 would apply over and above Section 51’s actual knowledge standard that the Division Bench laid down while discussing Issue 1.

Here is one possible reconciliation: since MySpace was already following a notice-and-take-down rule, the Division Bench’s discussion on specific notice should be limited to finding that what MySpace was doing was consistent with law. The Division Bench did not say that a specific notice would be sufficient to erase safe harbour as a general proposition of law. Rather, in paragraph 68(b), it made clear that the general proposition of law was that intermediaries would continue to be protected even in cases of copyright infringement, unless Shreya Singhal’s standard of actual knowledge was satisfied.

This would be a far more speech-protective reading of the judgment. However, it is a difficult one to sustain, in light of the clear observations of the Court, which we discussed above. This is one issue, then, on which the judgment’s import is – in my view – slightly unclear.

Qua Timet Injunctions

Lastly – and very importantly – the Division Bench agreed with MySpace’s contention that the qua timet injunction was virtually impossible to enforce. Justice Bhat made the crucial observation that:

“A further balancing act is required which is that of freedom of speech and privatized censorship. If an intermediary is tasked with the responsibility of identifying infringing content from non-infringing one, it could have a chilling effect on free speech; an unspecified or incomplete list may do that. In an order of relief such as that passed by the learned Single Judge, MySpace would be in contempt of court for not complying with an order, which is otherwise impossible or at best onerous and cumbersome of performance. In order to avoid contempt action, an intermediary would remove all such content, which even remotely resembles that of the content owner. Such kind of unwarranted private censorship would go beyond the ethos of established free speech regimes.”

(Of course, as I argued above, it is precisely this privatised censorship which is a problem with the specific notice standard that the Court did endorse).

The Court also noted that if MySpace was forced to remove content in accordance with the vague terms of the qua timet injunction, it might even end up being in breach of its contract with its users, in cases where lawful content ended up being taken down. Consequently, the Court finished by holding:

“Without a notice containing the details and location of the exact works in which infringement is complained of, MySpace cannot be expected to scan through such large number of videos to discern infringement. This is not only impractical but also dangerous for reasons discussed previously. A vague order of injunction against works which are yet to exist is not only contrary to law but also impossible to monitor. Therefore, SCIL cannot give vague and general lists of its works but will have to give notice with specific details as well as locations of the works, which the appellant shall remove within 36 hours of receiving such notice.” (paragraph 66)

This is very important, in particular, because it bucks the trend of the High Courts granting qua timet injunctions (accompanied by John Doe orders) almost as a matter of course.

Conclusion

MySpace vs Super Cassettes is a landmark judgment that contributes in no small measure to an evolving international jurisprudence on online free speech and intermediary liability. The High Court pays close attention to the characteristics of the internet, and is very solicitous to how its holdings will affect the flow of information on the internet. Unlike other judgments, where the fluid and flexible nature of the internet has been used to justify greater regulation, the Delhi High Court, in MySpace, is concerned to ensure that this fluidity and flexibility is not stifled by legal concepts developed for the offline world. While its exact finding on the interplay between the Copyright Act and the IT Act is a little unclear, the judgment breaks new ground in its analysis of actual knowledge (for intermediaries) under the Copyright Act, its refusal of a qua timet injunction, and its finding that the Copyright Act will not exclude the safe harbour provisions of the IT Act. It is a judgment that should be studied and discussed closely.

 

 

 

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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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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.

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Copyright and Free Speech – I: Constitutional Arguments against OUP et al in the Delhi University photocopying lawsuit

The on-going copyright litigation between Oxford University Press, Cambridge University Press and Taylor & Francis publishing houses against Delhi University and the Rameshwari Photocopy Service is now well-known. Briefly, the publishing houses sued the University and the photocopying shop, alleging that the use of “course-packs”, that featured material from a number of books published by them, was a violation of the Copyright Act. The Delhi High Court is presently hearing oral arguments.

The importance of this litigation cannot be underestimated: all of us who have ever been students will remember the indispensability of our local photocopying shop to our student lives, the only possible substitute for unaffordable books, whether it was preparing for exams or researching for papers. If the Delhi High Court rules in favour of the publishing houses, future generations of students will no longer have that option. The reasons on both sides of the argument, therefore, must be carefully scrutinized.

What is at issue here is the interpretation of the fair dealing exception to copyright claims. Under S. 52(a)(i), fair dealing with literary works, for the purposes of private use, including research, does not constitute an infringement of copyright. Corresponding provisions in countries like the USA have been read in a highly limited way, to allow photocopying 10% of a book, for example. Naturally, the claims in this case go much further, and a related question (although not raised in this case) is whether photocopying entire books qualifies as “fair dealing” within the meaning of the Copyright Act.

The Spicy IP blog, in a series of thoughtful posts, has analysed the intellectual property and political aspects of this case. In this and the next post, I want to highlight a constitutional argument, grounded in Article 19(1)(a)’s guarantee of the freedom of speech and expression, that aligns in favour of the Court dismissing the suit. I do not claim this argument to be dispositive: only, that a well-reasoned judgment ought to accord it substantial weight, and that if the Court chooses to decide in favour of the publishers, it ought to provide good reasons for overriding important constitutional values.

I begin with three premises – one factual and two legal – that, I hope, are unexceptionable: the factual premise is that at present prices, buying textbooks is a matter of significant financial hardship for a significant number of Indian students. To prove this claim, of course, would require detailed information about the average price of textbooks, the distribution of income, expenditure on a number of indicators, and so on; for the purposes of argument, let us take it as given, with the rider that if the premise is false, then the argument, accordingly, fails.*

As to the legal premises: first, that the plaintiffs in this case are private entities, and not in any sense instrumentalities of the State. The argument, therefore, cannot be that fundamental rights may be enforced against them. Whatever the desirability of horizontally applying Part III between individuals, it is not the law of the land: indeed, most recently, it was proposed in oral argument in the Right to Education Case, passed over in silence by the majority, and explicitly rejected by the dissent. And secondly, it is an accepted principle of constitutional interpretation, not just in India, but in most other nations, that ordinary laws must be interpreted in a way that would conform with the text and purposes of the Constitution. Of course, one must guard against the dangers of a purely reductive analysis here: England, New Zealand and Germany, to name just three States, all permit differing degrees of latitude to judges interpreting statutes to bring them in line with constitutional (or Human Rights Act) provisions. Nevertheless, that need not detain us here – unlike the most vexing cases before the UK, New Zealand and German courts, this is not a case where the Court must choose between a linguistically more accurate interpretation of a provision that conflicts with basic law, and a linguistically strained interpretation that conforms with it; the words “fair dealing” are not self-contained indicators of meaning. It therefore seems at least safe to say – subject to the risk of oversimplification – that when interpreting the Indian Copyright Act’s doctrine of “fair dealing”, the Court ought to be guided by the background principles of the Constitution.

Let us start with a preliminary objection: it might be argued that it is conceptually impossible for copyright protection and free speech to be at odds with each other. Through doctrines such as the idea-expression dichotomy, that do not extend protection to ideas that have not been crystallized into specific forms of expression (so the argument goes), there is no restriction on free speech at all, because ideas are open to all; and even if there is, other concepts such as the fair dealing doctrine mean that the copyright regime internally strikes the balance between the rights of creators (who too, lest we forget, are exercising right of free speech), and the general freedom of expression. This seems to be the dominant position in the United States, as evidenced in the writings of  Professor Nimmer and the decision of the American Supreme Court in Harper & Row Publishers vs Nation Enterprises; and in the United Kingdom, as observed by the House of Lords in Ashdown. Whatever the validity of these claims, there is good reason for rejecting them in the Indian context: the freedom of expression under Article 19(1)(a) is more multifaceted than comparable American and English jurisprudence; there is no equivalent of Article 21A’s right to education in America or the United Kingdom; and furthermore, the Indian Copyright Act was passed in 1957 – before the development of Article 19(1)(a) jurisprudence began in earnest, and long before the passage of Article 21A. We cannot, therefore, assume that a common-law or American-doctrinal interpretation of the Copyright Act will, as an a priori matter, conform to the principles of our Constitution; rather, it is our Constitution that must inform our interpretation of the Copyright Act.

My argument, that I shall elaborate upon in the next post, shall be as follows: our Article 19(1)(a) jurisprudence does not require direct State censorship as a pre-requisite for an infringement of the freedom of speech; rather, it envisages that inequalities of resources acting as barriers to free expression, even though not directly caused by affirmative State action, nonetheless constitute an infringement of the 19(1)(a) right, since they are upheld by State legislation governing property, transfers of goods and, in this case, copyright; and that consequently, such legislation ought to be interpreted by the Courts in a manner that advances, instead of restricting, the freedom of speech and expression.

* For a taste, a quick trawl through OUP India’s website reveals, for instance,  Comparative Constitutionalism in South Asia priced at Rs 950, Romila Thapar’s Readings in Early Indian History at Rs 650, The Making of Modern Indian Art at Rs 3,950 and so on. This is only OUP India (many textbooks, as we well know, are not published in India Editions).

(A modified version of this post will appear here)

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