India: Bare acts by private companies infringe Government copyright?

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Source: www.delhihighcourt.nic.in

As Sir John Salmond clearly points out ‘every right has a correlated duty’, but what are these rights and duties? This is where a legislature plays its role; it defines the rights and responsibility of a citizen and explains what would happen if it is not followed. Legislation in simple words can be understood as ‘the law of the country’ legislated ‘by its ruling authority’. Legislation is a tool of the Government to maintain the balance in the society by organizing, regulating and guarding the citizens. For example, when the ruling authority of a country puts a ban on a certain act/acts, it is doing with the interest of regulating public behavior.

Legislations are the guidebook to knowing law for the citizens. It is important for not just the Government but the citizens as well. The Delhi High Court in Union of India v Vansh Sharad Gupta [1] have held that ‘Public can be expected to follow the law only if law is easily accessible 'at the click of a button'. In fact, as rightly pointed out by the Central Information Commission, the Right to Information Act, 2005, itself mandates the Government to place the texts of enactments in the public domain.’ In December 2017, a Public Interest Litigation (hereinafter referred to as the ‘PIL’) was filed in the Delhi High Court by Arpit Bhargava to end the monopoly of the private publishers over the publication of bare acts. He contended in the PIL that:

  • The bare acts being published by the private players of the market is infringing the copyright of the Government as these acts of the Parliament are in the public domain.

  • The private players have created a monopoly and charge the public at large according to their whims and fancies. This commercial gain for selected few should not be allowed.

  • The Government is not publishing the authentic and accurate versions of the legislations at a reasonable price because of which the public is suffering in the hands of the private player.

  • Fundamental rights include the 'Right to Know' which obliges the Government to inform the citizens about law by publishing legislations, rules, notifications and regulations which are "reasonably priced, accurate and authentic".

The Petitioner seeked directions from the Court to:

  • Direct the Government to take immediate steps to ensure availability of its own authentic, accurate and reasonably priced publications of all central acts, rules, notifications and their amendments.

  • Direct the Government to "immediately bar or prohibit private business houses or publishers and others from publishing and printing all central acts, rules and notifications in contravention of provisions of the Copyright Act 1957".

To understand the prominence of the case, it is important to keep in mind the balance between the public benefit aspect of publishing and the copyright protection of an information necessary for the above mentioned public benefit along with the extent of exception of fair use. The PIL highlights two major issues:

  • ‘Copyright of the Government’: Section 17 (d) of the Copyright Act, 1957, states that ‘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’. Section 52 (1)(q)(ii) of the Copyright Act, 1957 states that ‘any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter’. Therefore, it is clear that though the Government has the copyright over the legislation, but, Section 52 carves out protection from infringement if the legislation is reproduced or published together with any commentary thereon or any other original matter. While interpreting the meaning of Section 52 the Delhi High Court in the case of The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr.[2] held that ‘to hold that inspite of the legislature having declared the actions listed in Section 52 to be not amounting to infringement, the same have to be viewed putting on the blinkers of being infringement would amount to holding that the Copyright Act which allows actions listed in Section 52 to be done without the same constituting infringement and consequences thereof not constituting infringing copy, cannot be done to the extent permitted by the language of Section 52.’ Also, the Court has in different judgement made it clear that there is no ‘rule of thumb’ to interpret Section 52, rather, each case has to be tested on its own facts and evidences on record.

  • ‘Right to know’: In Reliance Petrochemicals Ltd vs Proprietors Of Indian Express,[3] the Supreme Court specifically held that ‘Right to Know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon the responsibility to inform.’ Also, to facilitate the right to access, the Copyright Amendment Act of 2012, expanded the scope of fair use provisions. Time and again through various judgments the Indian judiciary has specified that the ‘right to know’ and ‘right to access information’ are inevitable parts of the Constitution. The Courts have bestowed upon the state the duty to provide updated and precise legal information to its citizen, as for them to exercise a right or to follow the law, they need to be well-informed about it.[4]

It would be interesting to see what turn the case will take in the Court of law especially when cases like Vansh Sharad Gupta v. PIO, Legislative Department, [5] have already highlighted the need of access to legislative information for citizens of the country. It would be imperative to see how the availability, reproduction and cost of legislations will get affected by it and the role that the Government would play in this.

 

SOURCES

 

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[1] https://indiankanoon.org/doc/123116384/ 

[2] http://lobis.nic.in/ddir/dhc/RSE/judgement/16-09-2016/RSE16092016S24392012.pdf 

[3] https://indiankanoon.org/doc/1351834/ 

[4] Please see Union Of India vs Vansh Sharad Gupta and Vansh Sharad Gupta v. PIO, Legislative Department

[5] http://ciconline.nic.in/rti/docs/cic_decisions/CIC_SS_C_2013_900008-SA_M_168160.pdf 

 

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