Mere Angne Mein Tumhara Kya Kaam Hai: An Examination of Limited Copyright Term v. Perpetual Copyright Term
“Creativity requires a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”
– Judge Alex Kozinski in White v. Samsung Electronics [971 F.2d 1395 (9th Cir. 1992)]
Amitabh Bachchan is a household name in India because of his immense contribution to Indian cinema. He is also an ardent blogger and social media proponent. The universal respect he commands from a lifetime of cinematic eminence has translated into a natural legitimacy of his opinions and views shared on his various social media handles. When he shares his thoughts, people pay attention. When he shares his fears, people really pay attention. His March 17 blog post was therefore, a social media cataclysm. After chancing upon the shuddering realisation that the inheritance of copyright over his late father’s literary estate i.e. the eminent Hindi poet Shri Harivanshrai Bachchan’s published works, shall lapse in 2063; he delivered a polemic for the ages about the Indian copyright regime and the apparent injustice it has meted to him by forcing him to give up his right of monopoly under copyright after the passage of a measly 45 years from now, at which point he will be at the ripe old age of 121.
In his now well-publicized tirade, he questioned the origin of this limited monopoly rule, proposed copyright in perpetuity, equated intellectual property with physical property, distinguished his father’s works as individual property (the individual being him) and not public property, and advocated for Shakespeare’s and Tagore’s right to reject copyright. For someone not educated in the ethos of copyright, these are all fair questions to ask, regardless of tone (heated) and/or context (Oh no! only 45 more years of monopoly 🙁 ). I have attempted to pacify the angry young man with answers to all of his pointed questions:
“written copyright and whatever else in the realm , lives 60 years after the passing with the elements of them that be the rightful उत्तराधिकारी ..”
Section 22 of the Copyright Act, 1957 has prescribed a copyright term of the lifetime of the author and 60 additional years after the demise of the author (during which time, the copyright is held by the author’s legal heirs) for published literary works.
“so who designed 60 years ?”
A convention held in 1886 called the Berne Convention had arrived at the conclusion that the lifetime of the author plus an additional minimum 50 years would suffice as enough time for the author and his/her heirs to exploit the copyright of the published work. Article 7(1) of the Berne Convention states “The term of protection granted by this Convention shall be the life of the author and fifty years after his death.” The rationale provided for arriving at 50 years was that the lifetime of the author would benefit the author and the additional 50 years would benefit his/her two succeeding generations after he/she passed away. Noteworthy in the text of the Berne Convention is the use of the phrase “term of protection” and not “term of monopoly/limited exclusivity”, although copyright essentially entails the latter. This would suggest that the author is afforded statutory protection from unfair exploitation and piracy of his intellectual labour for a reasonably large period of time (3 generations = author+2), as opposed to them enjoying such monopoly as a matter of right and entitlement. 50 additional years of this amazing right of exploitation appropriated to the children and children’s children of the author has been determined as sufficient incentive to other authors to create new and original work, so that they may also enjoy this extended run of monopoly.
India is a signatory to the Berne Convention, along with 171 other countries who believe this is a fair amount of time afforded to the author+2 to enjoy this monopoly. In fact, India has been even more generous than the framers of the Berne Convention. India offers 60 additional years, a 10 year markup on the minimum requirement.
“i believe it initiated in 1957 or so .. and am angered by its audacity !”
Technically, the Indian copyright regime began way back in 1847 during the British Raj. The Indian Copyright Act of 1847 was established for enforcement of copyright in the territories of the East India Company. If the 1957 Act and its measly lifetime+60 term is cause for anger, one wouldn’t believe the audacity of the 1847 Act, which offered an even more measly term of lifetime+7 years or a total of 42 years, whichever was lower.
“why 60 why not 61…
I cannot speak to the mind of the framers of our copyright law, but I would assume that in the interest of choosing a nice round figure – they opted for 60 as opposed to a prime number such as 61. More importantly, the determination of this term of 60 years i.e. the minimum required 50 years + 10 years, may seem like an arbitrary choice of number, but there is good reason for it. The Berne Convention was held in 1886. Over the course of the century, medical advancements and better awareness for hygiene have improved average life span. Therefore, the 60 year number has been mandated to account for an increased life expectancy.
The only reason for offering this incentive is the creation of new work which contributes to the expanding database of knowledge in the world. Without the monopoly right to exploit the work, there will be rampant piracy and copying. This disincentives authors to create new and original work. After authors have been given a decent interval to exploit their work, the monopoly to the work must be terminated in order for the work to be reabsorbed into the culture at large, for the public benefit, for the rest of time. Hence, the name “public domain”, which refers to the domain of the public good – a good that is realized by giving birth to new and original artistic expression based on existing works created by others, without having to negotiate and pay for the privilege.
…or why not perpetuity !!”
The suggestion of a perpetual or infinite copyright is borne out of the misconception that intellectual property is equivalent to physical property (over which one may enjoy a perpetual or infinite right of ownership and succession). However, the primary difference between the two is that physical property such as land is tangible and cannot be duplicated freely. For one person to gain some tangible item, another person must lose it. For one person to gain the ownership of some piece of land, the previous owner must surrender ownership. This is the ordinary state of physical property, and the laws around physical property are designed around this fact. Intellectual property such as published works on the other hand, is not tangible and can be duplicated easily. In fact, as earlier mentioned, it is in society’s long term interest to have access to all intellectual property (after granting the authors’ their due – both monetary and moral entitlements accrued in lieu of creation of new and original work).
Moreover, intellectual property is non-rivalrous. It is possible for the author to disseminate his/her work for the public good without losing ownership over the same under his/her inherent right to paternity over his/her work, in perpetuity. For instance, Shakespeare is still credited with penning Hamlet, despite its several adaptations, derivative works and even direct physical copies of the play. Therefore, the author can never be “deprived” of his/her intellectual property, as he/she can be for his/her physical property when shared with the world. Last, but not least – the very purpose and use of physical property is markedly different from intellectual property. Placing entry barriers such as accounting and transactions costs, uncertain licensing negotiations with estates or individual heirs discourages those without means to create new and original work without any outside help or inspiration. Entry barriers for the transfer of physical property on the other hand do not have any negative societal impact whatsoever.
The overall net impact of a perpetual copyright would be a drastic stunting of intellectual growth due to the dearth of new and original work. It does not serve the public good to pay an author’s descendant, 50 generations removed from the author, the benefit of the author’s creation, without it being realized by the society.
“so what gets left as natural heir by Father Dr Harivansh Rai Bachchan, after his passing passed 60 years, belongs no longer to his domain or possessive copyright as willed .. but becomes for the entire Universe to tread, scratch, mutilate, use in commercial consideration on their own creative discretion .. ???”
Firstly, the Universe isn’t permitted to “tread, scratch, mutilate” any work, even if the copyright on such work has expired. Under Section 57 of the Copyright Act, 1957, the author has the perpetual right to paternity (acknowledgment of authorship) and integrity (ensure that the work isn’t distorted, mutilated or destroyed or any other act that would prejudicial to the honour and reputation of the author). Secondly, the copyright to any work doesn’t become the Universe’s property. The work underlying the copyright does. And that is the entire point of the incentive of copyright – a limited monopoly offered to delay the transition of work from proprietary to public domain. Those who suggest the elimination of a public domain and propagate a proprietary regime where the fruits of new and original work are only enjoyed by a select few, must show the greater positive benefits of the latter as compared to the former. The removal of public domain would confer a benefit of value only to a handful of those authors whose works retain value, a century or more after publication – a minority figure in the total pool of authors of new and original work.
“my inheritance be mine .. not another’s after the passing of its stipulated time in years .. 60 .. i am genetically my Father’s son .. he be willed to me of all that be in asset of his .. his writings be his .. his heir be me .. his writings be mine .. MINE ! i shall not and will not allow its dilution to general public .”
The tone of this contention indicates a belief that Mr. Bachchan’s father’s works are his and his only, as a natural right; an entitlement akin to fundamental rights such as the freedom of speech and expression. However, copyright isn’t a natural right. It isn’t an entitlement. It is in fact a privilege. A limited privilege of statutory protection from others exercising their own fundamental rights of free trade and expression by copying your work and selling it for a profit. The law restrains everyone else from doing so, in order to encourage authors by providing a stable market for new works. So nothing is taken or confiscated from the author (and his/her heirs), when a copyright expires. Everyone else merely resumes the exercise of their fundamental rights of free trade and expression, which for a specified period of time they had refrained from exercising.
“why was not William ‘Bill’ Shakespeare made aware of copyright ; why not Mr Beethoven or Messrs Chopin and Tchaikovsky, or closer home Gurudev Rabindra Nath Tagore ‘Thakur’ .. had they known or made to know, they may never have wished for any other, but their progeny of generations to come … and because no record has been kept of such .. there is a LOSS OF OPPORTUNITY for them that were rightful heirs of them .. !!”.
This is the most porous and ironic argument made thus far. Aside from the fact that the copyright, as a concept even, wasn’t appreciated in the times of Tagore and certainly not Shakespeare, it would be a shame if the works of the above mentioned geniuses wouldn’t be shared with the world freely. The world would be robbed of the riches of literature that directly passed on to the public domain without any copyright term in the absence of codified laws, such as those of the distinguished names mentioned above. If the proposal of a perpetual copyright would have seen the light of day, the immense database of scientific and artistic work that preceded the copyright regime would not be made available to the beneficiaries of such unfettered access i.e. us. In turn, we would have no inspiration to create our own database of scientific and artistic work.
Finally, the irony of a movie actor clamouring for perpetual copyright, is not lost on me. That too a mainstream Bollywood actor who is the beacon of an industry notorious for not just repackaging old stories predating the copyright regime but also blatantly ripping off original works without so much as an acknowledgment. It is unfair to call out Mr. Bachchan on the industry practise, but then again he himself is not averse to starring in movies that have not obtained the necessary permissions for use of (read “inspired by”) copyrighted material. See Kaante, Nishabd, Hum Kaun Hai, Te3n etc.
It would be remiss of me to not mention what a huge fan I am of Mr. Bachchan’s work. But today I repeat to him his very own words from the 1978 classic Trishul…
Aaj aap ke paas aap ki saari daulat sahi, sab kuch sahi.. lekin maine aap se zyaada garib aaj tak nahin dekha.