In the media, mentions of copyright law are invariably coupled with shrill narrations about piracy. Two images are typically conjured in these narratives: Firstly, that of a prosperous national industry going to seed only because of piracy. For instance, the following passage from a thoroughly enjoyable account of piracy in Mumbai:

“Such printing presses in New Delhi, Mumbai, Bangalore, Hyderabad and Meerut roll out pirated management, technological and educational books - as well as best sellers - within two months of them hitting book stores, causing the $1.6 billion Indian book industry much heartburn, and over a quarter of its sales.”

So, if an industry is “$1.6 billon” one should avoid giving it heartburn.
Secondly an image is conjured of a distastefully illegal, therefore immoral underworld that deals in contraband books. For instance, consider this paragraph elsewhere in the same article :

“The book pirates have a well-oiled system. The pirate or the fixer, as he is known, has no office, has only cash transactions and leaves no invoice. He creates a mechanism to find out which books are moving fast, in what discipline, and at what price,” explains Subrahmanyam. “He prints these books, sometimes in a well-known press.”"

The usual asinine stuff blockbuster thrillers are made of.
While this type of sensationalism may be resorted to out of sheer necessity (little else in copyright law is as “newsworthy”), it ascriptively installs a particular economic model of copyright law as “an instrument that secures (intellectual) investment”, thereby subduing other equally important paradigms – for instance copyright as an instrument to secure maximal dissemination of information.

There are many attractions to this ‘bootleg-side-up’ paradigm of copyright law. From the bootleg perspective copyright law seems internally consistent, altogether ship-shape. Yet, we know that the history of copyright law is fraught both with grave controversies about the nature of “authorship” as well as quarrels about infringement. Its progress has been marked by the concern for the spread of knowledge at least in equal measure as the concern for investment. Copyright law as it stands, embodies a particular model of creation and a particular image of the author which has since come to be deprecated in literary theory. The objective of this article is to draw attention to the divergences in opinion which have led to such a depreciation.

Copyright Act’s Tales - All works have owners, but only some have authors.
Like all legal principles, copyright law embodies an internal theology about its actors – who they are, what they do – which may or may not correspond with reality. The purpose of the following section is to uncoil and critique two of these implied narratives – who according to copyright law, is the author and how does creation occur?

Who is the author?

There are three problematic assumptions about the author that copyright law foists on unwary media consumers:

a) Every author is a genius and only produces works of genius.

This isn’t something that the law says explicitly, but in fact ends up meaning.
The idea of a creative genius – the free and autonomous human being who creates unique works of art unhindered by external influences – is a product of the humanist ideas of the Enlightenment period in Europe. Martha Woodmansee traces the process by which in the 18th century, the element of “inspiration” or the genius in writing came to be regarded as something internal, personal, rather than external. In her view, this change was necessary to secure the writer whose arena had, over the course of the 18th century, shifted to the marketplace. For writing to be seen as an economic activity, it had to be regarded as the product of the individual mind, which was achieved by the notion of the genius.

In the specific context of the Indian Copyright Act, this notion plays itself out in, say, the way that all works of an author enjoy a uniform copyright of lifetime of the author plus sixty years. The author is presumed to be always expressing himself. Everything from telephone numbers hastily jotted down to entire volumes of books, you’re automatically deemed the “author” of.

Additionally, in the way that the law couches the requirement of originality in negative terms (original = “not copied”), every work of every author is immediately created on an equal footing. Again we know this generally not to be the case. Alas, Joyce’s Ulysses is a better read than my laundry list. Mark Rose points out that this loose standard is concomitant to a law that bases its protection on the uniqueness of the identity of the individual who is its apparent source. This could either mean that all works of an author are equally protectable because each carries her/his imprint, or that some authors are devoid of personality. The law prefers the former approach.

b) The author is the originator of meaning.

This is, again, an assumption implicit in the romantic humanist tradition outlined above. Changes in literary thinking during the 18th century, heralded by Edward Young in England and carried forward among others, by Fichte in Germany, led to the deprecation in literature of imitation in any form whatsoever. In this new theory of genius and originality, as William Wimsatt in Literary Criticism: A Short History puts it, “the only way to be sure of having any worth was to be in on the threshold of literary history, to get there first, even if with the least. “.

It is not hard to see how this concept has been imported into contemporary copyright law. For instance, the way in which the author retains control over derivative works – translations and adaptations – or the exception in an infringement action where the work has been independently produced.
Advances in literary theory in the previous century, however, rebut these assertions of the humanist tradition.

Structuralist literary theory, for instance, argues that any piece of writing or any signifying system has no origin and that authors merely inhabit pre-existing structures that enable them to make any particular sentence. Hence the idea that ‘language speaks to us’ rather than us speaking language.
So what we mis-perceive as our originality is simply our recombination of some elements in the pre-existing system. Hence every text we write and sentence we speak is made up of the already written.

c) The author is a constant entrepreneur, rationally interested in maximizing his reward
This attitude of the law is best summed up in statements such as the following passage from a Ministry of Human Resources and Development report on piracy.

“The basic idea behind such protection is the premise that innovations require incentives. Copyright recognises this need and gives it a legal sanction. Moreover, commercial exploitation of copyright yields income to the creators and thus making pecuniary rewards to individual’s creativity.”

The law delineates in painstaking detail each of the rights the author has, it gives them a term of lifetime-plus-sixty and then makes the rights wholly assignable. What is more, it places inconvenient obstacles to renunciation that prevents those who disagree with the system from opting out.
One criticism of this approach is that it leads to, in NYU law professor Rochelle Dreyfuss’ words, the “if value, then right” theory of creative property — If there is value, then someone must have a right to that value. One may observe this principle in operation in such actions as those by a composers’ rights organization, ASCAP, which sued the Girl Scouts for failing to pay for the songs that girls sang around campfires. More recently J.K. Rowling’s publishers instituted legal proceedings to prevent “unauthorized” cardboard installations of Hogwarts from being erected during celebrations of a popular festival in India.

At a basic level, however, this approach also obscures the distinction between the incentives required to create a work and those that are required to disseminate the works to the public. So not only is the author’s behavior expected to be entrepreneurial in her creative endeavors, she is also supposed to be entrepreneurial in terms of business acumen. Having secured for her works an assignable right, the law expects the author to show so much prudence as to determine the right price at which to sell his wares in the open market.

Even if we are coaxed into believing that authors are instinctively entrepreneurial when they create, it is intuitively evident that they may not exhibit the same sharpness while negotiating business deals that precede the publication and distribution of a work.

In India, in most cases, royalty to authors varies from six percent to a maximum of 10 percent of the book’s price. By contrast, as much as 40-50 percent of the price goes to retailers. In some cases, authors are offered a bulk amount in return for the transfer of the “copyright” itself (as opposed only to the right to reproduce/publish). Some agreements have clauses which bear no connection with the rights granted under traditional copyright law, for instance, a “right of first refusal” clause, by the terms of which an author would be obliged to offer her/his subsequent works exclusively to the same publisher for publication, who would retain the right to decline to publish. Instances of publishers incorporating works of smaller authors into the works of “big name” authors without permission are not uncommon.

That these practices are widespread puts paid to the notion of the entrepreneurial author who is able to maximize his/her rewards. It shows up copyright as an instrument that does not do much to aid the author-in-need, but rather facilitates the easier appropriation of works by publishers and other rentiers of the IP system.

How do people create?
a) Creativity is Cartesian and occurs in isolation
Copyright’s model of creation is based on the Cartesian concept of the subject, wherein the ideas originate in the author’s consciousness on the way to being expressed in works.

There are many defects in this model, of which two are enumerated below.
Firstly, while it may be argued that the requirement of “originality” in the law is merely a formal requirement (if not-copied, then original), there is evidence that its substantial requirements weigh on the outcome when the law is faced with either new art or old art in a new medium. This was the case with the debate surrounding the copyrightability of aborigine art. Opposition to it was on the grounds that the particular artist was only reproducing traditional symbols. As Brad Sherman suggests, the problem stems from copyright law’s account of originality which “posits a number of aesthetic and cultural factors” – notably, that of creation as “a rupture with tradition”.

Secondly, it is interesting to see what copyright dogma does to the forms of creativity that get delegitimized by this arrangement. What happens to creative forms that have a more distributed provenance and to which the particular individual author is not central. In the Indian context, we have the example of the epic Mahabharata which was authored by innumerable composers over a span of several centuries,
gaining in each retelling.

It is possible that with copyright’s constricted conception of creativity, we foreclose the possibility of another literary work of the same grandeur. (In a section titled “The differing traditions of cultural creation in the South”, the Copy South Dossier provides several excellent examples from the South that assail this model.)
b) Creation with an incentive model – it is incremental

The incentive justification of copyright law posits that copyright provides market incentives for creating works without which the fountain of our culture would simply run dry. In Paul Edward Geller’s words, this model “posits an author who could rationally weigh the costs of increasing investments necessary to create a work and to communicate it on the market, against the prospects of increasing profits.” However, the fallacy of this model, as Geller himself points out, is that “there is no decisive evidence that market incentives consistently prompt authors to make works not just methodically at the lower end of the spectrum of works, but creatively all across this spectrum”. There is by now, a vast volume of literature on the various non-monetary incentives that motivate authors to create.

Conclusions
Even though the media’s coverage of piracy has tended to advance a particular rationale for copyright law, in fairness, one does, these days, occasionally encounter articles that advance contrary opinions. For instance, an article in the Financial Expres, titled “Imitate or Die“, advances the radical theory that “imitating” discoveries has proved beneficial for China and India. “Had Indian firms been prevented from copying fluoroquinolones, for example, the Indian public would have been worse off by the equivalent of $255million a year …” the article says, and elsewhere, “India could resolve not to invent another thing, and still prosper mightily.” Although this article deals specifically with patent laws, its rationale may as easily be applied copyright law. Whilst such articles are few, they do play a significant role in denting the popular theology about copyright law.

tags: Bangalore, Hyderabad India media-events copyright law piracy news media ownership

extracted from: