THE COPYRIGHT LAW AND FREE SPEECH OVERLAP

(Project towards the fulfillment of assessment in the subject of Intellectual Property Law)

Submitted by: Submitted to:

Palak Chhachhia (1396) Dr. Gargi Chakrabarti

Shreya Poonia (1479) Faculty of Law

NATIONNAL LAW UNIVERSITY, JODHPUR

WINTER SESSION

JANUARY – MAY 2019

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 TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................4

THE HISTORY OF CONFLICT.....................................................................................................6

THE NATURAL THEORY OF PROPERTY ON COPYRIGHT...................................................7

COPYRIGHT VIS-À-VIS HUMAN RIGHTS UNDER INDIAN CONSTITUTION...................8

FREEDOM OF THOUGHTS AND FREEDOM OF EXPRESSION.............................................8

CONCLUSION..............................................................................................................................14

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 ACKNOWLEDGEMENT

Upon completion of our project, we would like to concede our thanks to the people who lent

sincere contributions in this project. We would like to thank our IPR teacher, Ms. Gargi

Chakrabarti, whose wise inputs and remarkable teaching has made us grasp the concepts and

helped us work harder towards the project.

We would also like to thank the librarian for providing access to books and materials for the

project, and the IT Department for making available the vast resources of the internet at our

disposal.

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 INTRODUCTION

The law of copyright protects the right of one person and restrains another from exercising

corresponding rights. It is a natural extension of the freedom of speech and expression protected

under Article 19(1)(a) of the constitution. If an individual enjoys the freedom of speech and

expression, he must also be guaranteed protection of the intellectual property in his expression.

Absence of such protection would demoralize creative artists and have a chilling effect on

creative activity1.

Copyright is not a positive right to do something but confers a negative right which restricts

others from copying the original work of an author. A right for one person is thus a restriction on

another.

Copyright stems from two types of roots; the entrepreneurial side linked to the exclusive right to

make copies and reproduce the work of an author, and the other side being the protection of the

author now that his/her work could be copied. Since it was created, copyright has been directed

to the protection of a reproduction of work, exclusively concerned with the material expression

of the ideas on which the work was based. Copyright is not about ideas, but the way in which

they are expressed.

Freedom of expression, on the other hand, is used to indicate not only freedom of verbal speech

but any act of seeking, receiving and imparting information or ideas, regardless of the medium

used. Before the Human Rights Act 1998 (‘HRA’) came into force, the right to freedom of

expression was a negative one: you were free to express yourself, unless the law otherwise

1
Madhavi Goradia[ Divan, Facets of Media Law 5 (Eastern Book Company, Lucknow, 2010)
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prevented you from doing so. However, the right to freedom of expression in Article 10 is not

absolute. Interferences with the right to freedom of expression may be permitted if they are

prescribed by law, pursue a legitimate aim and are necessary in a democratic society, that is, if it

satisfies a pressing social need. Although there are a variety of reasons why we may want to limit

the scope or effectiveness of intellectual property rights, the corrosive effect of control on the

public domain does not seem to be one of them. Following the introduction of the HRA it now

seems that the defences of fair dealing and public interest in the Copyright, Designs and Patents

Act 1988 (‘CDPA’) must be interpreted in accordance with the principles of human rights.

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 THE HISTORY OF CONFLICT

The adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations General

Assembly in 1948 ushered in an international consciousness for the recognition and respect for human

rights. Subsequent thereto, a number of treaties and other instruments, such as International Covenant on

Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights

(CESCR) incorporated its provisions, in some cases wholesale. 2 One common feature of almost all human

rights treaties or instruments is the inclusion of the freedom of, or the right of expression. Since the

establishment of the World Trade Organisation (WTO) and the entering into effect of the Agreement on

Trade-Related Aspects of Intellectual Property Rights 3 (TRIPS Agreement), government officials,

international bureaucrats, intergovernmental and nongovernmental organisations, courts and scholars have

focused more attention on the interplay of human rights and intellectual property rights (IPRs). 4 One

notable tension and conflict within the two sets of rights is between copyright law and the freedom of

expression right. The relationship between copyright law and freedom of expression has always been

controversial, but this tension has deepened in recent years with the emergence of the digital environment

and expansion of copyright law. 5 This claim, that there is indeed some tension between the imperative of

copyright law and the core of the right to freedom of expression has been ignored for a variety of

intuitions and reasons.6 The two rights inherit a built-in legal conflict and that copyright inevitably

imposes a restriction on freedom of expression. The problem is that the natural right of free speech is

being depleted by the legislatively granted right of intellectual property, putting both individual liberty

2
B Maripe ‘Freezing the press: Freedom of expression and statutory limitations in Botswana’ (2001) 2 African
Human Rights Law Journal 52-75.
3
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr.15, 1994.
4
PK Yu ‘Reconceptualising Intellectual Property Interests in a Human Rights Framework’ (2007) 40 (3) UC Davis
Law Review 1039.
5
YH Lee ‘Copyright and Freedom of Expression: A Literature Review’ CREATe Working Paper (2015) 5.
6
MD Birnhack ‘Acknowledging the conflict between copyright law and freedom of expression under the human
rights act’ (2003) 2.
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and the public good at risk.7 The purposeful disregard of this inherent conflict is beginning to erode the

right of public dissemination of information; in favour of private property rights. The danger caused by

this erosion is that it creates private monopolies over information and unconstitutionally 'chills'

expression. This frustrates the democratic, public benefit purposes of the original constitutional clauses. 8

In contrary some scholars argue that because copyright does not protect the ideas that are embodied in or

that may have inspired the work, but protects only the expression of those ideas, it means copyright is not

a constraint on freedom of expression, as it does not prevent a person from repeating or making use of the

ideas or information contained in a protected work, but merely prevents that person from copying the

form of expression used in that work.9

THE NATURAL THEORY OF PROPERTY ON COPYRIGHT

Copyright is a property, but the property is an intangible one. It is the right of the author in the

creation of his intellectual copyright being a property right, can be transferred or assigned to

another person. It can also be inherited during the time it exists. Copyrights are governed and

regulated by the municipal laws of the country. The protection of copyrights is possible, and

limited within the territorial limits of the country, however, international treaties like the Berne

Convention for the Protection of Literary and Artistic Works (1886), the Universal Copyright

Convention (1952) and the Agreement on Trade Related Aspects of IPR (1994) are to ensure

protection of copyrights to nationals of member-countries. Copyright is a bundle of exclusive

right but is not a monopoly right as others are not prevented from making a similar work

independently like other properties. Where two writers write on the same theme both are likely to

be different from each other and both have exclusive right on their intellectual work.

7
AB Cook ‘Copyright and freedom of expression: saving free speech from advancing legislation’ (2013) 1.
8
CW Dallon ‘The Problem with Congress and Copyright law: Forgetting the Past and Ignoring the Public Interest’
(2004) 44 SANTA CLARA LAW REVIEW 365.
9
CJ Adduono ‘Rebalancing copyright law’ Unpublished PhD thesis, University of Southampton (2015) 5.
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 COPYRIGHT VIS-À-VIS HUMAN RIGHTS UNDER INDIAN CONSTITUTION

Everyone has right to freely participate in the cultural life of the community, to enjoy the arts and

to share the scientific advancement and its benefits. Similarly, everyone has right to protection of

the moral and material interests resulting from any scientific, literary or artistic production of

which the author has. Thus, at the fundamental level of human rights law, a balance is expected

between the interests of the community and the interests of the individual on important

exceptions related to fair use. At the end of the legislated period of protection the copyright

works moved to the public domain in which it may be freely exploited by all. The purpose of the

limited right conferred for a limited time was to allow author to benefit materially for a time in

order to encourage production. Moral rights on the other hand are enduring and designed to

protect the rights of the authors beyond the period of any economic reward particularly right of

attribution and the right of integrity. These rights enable the author to assert and be recognized

for her or his authorship and aim to ensure that the work is not modified or distorted. U.S. and

U.K. laws define copyright as a property right and author's rights as human rights. The key

difference is that a property as defined means something which can be freely traded. In this

context "free trade of copyright" is therefore the rights to be governed by economic power.

FREEDOM OF THOUGHTS AND FREEDOM OF EXPRESSION

Freedom of thought and expression is the World Human Rights Declaration which the U.N.

adopted on December 10, 1948 the best prescribed freedom as human rights so for. Under the

provision of Article 18 Universal Declaration of Human Rights of all human beings have a right

to have freedom of thoughts, conscience and religion. This right includes freedom of change to

his or her own religion or faith and freedom to express his or her own religion or faith in the

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form of discussion event, worship or ceremony, alone or in group, publicly or secretly. Article 19

of Universal Declaration of Human Rights express that all human beings have right to enjoy

freedom of opinion and expression. This right includes right to have an opinion without

interference and to pursue, to obtain, to convey information and thoughts regardless of a border.

Freedom of thoughts may be expressed as freedom to choose own views on the world, life and

politics and when this thought is expressed outwardly, it becomes freedom of press, publication,

assembly and association. Further in regard to faith it becomes freedom of religion, in regard to

truth seeking, it becomes freedom of learning and as such freedom of thoughts is theoretical

foundation of all the spiritual and political freedom and basic of basics. Therefore, freedom of

thoughts means freedom of expression, and includes inner thoughts of which nobody is aware of,

but can be protected. Freedom of thoughts and expression has always been considered to be

superior to other human rights and that is because the expression of an individual is the most

fundamental activity for self--fulfillment. Therefore, the media of expression, the press is an

essential condition of democracy through which people participate in forming a political

decision. Constitution of India adopted the same resolution of the U.N. and put freedom of

expression under Article 19. The Preamble of our Constitution envisages the liberty of thought

and expression. Every citizen of India enjoys full liberty to express himself or their self. The

Preamble of Indian Constitution plays a vital role in determining the purview of fundamental

rights guaranteed to the people which is enshrined in Part III of the Indian Constitution. The

conceptual dimension of fundamental rights or human rights are contained in the Preamble of

Constitution itself. The Constitution of India is not to be construed as a mere law, but as the very

source by which all the laws of the land are derived. It is a living and organic thing and therefore

must be construed liberally. The importance and utility of the Preamble has been pointed in

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several decisions of the Apex Court. Though by itself is not enforceable in a Court of Law10. The

Preamble of a written Constitution states and abides which the Constitution seeks to establish

and promote and also aids the legal interpretation of the Constitution where the language found

to be ambiguous11. Therefore, aims and objects settled down in Preamble should be considered

the very aims of the Constitution because it is the part of the Constitution. Universal Declaration

of Human Rights also declares that all human beings are born free and equal in dignity and

rights. They are endowed with reason and conscience and should act towards one another in a

spirit of brotherhood12. There are several rights and freedoms recognized in the form of Human

Rights under Universal Declaration of Human Rights and these rights have also incorporated in

the Constitution of India in toto. The Universal Declaration of Human Rights stoutly prohibits

any sort of discrimination on the ground of sex, colour, race, sex, religion, birth, etc. Freedom of

speech and expression guaranteed under Article 19 of the Indian Constitution is also directly

emanated from the Human Rights Values which are expounded through Universal Declaration of

Human Rights. Furthermore, no distinction shall be made on the basis of the political jurisdiction

or international status of the country territory to which a person belongs, whether it is

independent, trust, and non-self governing or under any other limitation of sovereignty 13. The

expanding horizons of Human Rights and Fundamental Rights also covers the very concept of

'Copyright'. The basis of copyright protection is the originality and creativity of a human being.

Originality is the primary requirement for any copyright protection, is largely uncontested in

most legal discourses. Prior to 1911 in England, there was no requirement of originality by the

10
Hershel Shanks Vs. Elisha Qimron.
11
Re Berubari Union, A., 1960 SC 845 (846).
12
Article 1 of Universal Declaration of Human Rights.
13
Article 2 of Universal Declaration of Human Rights.
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statute14. Thus, in Walter and Lane 15 copyright protection was granted. The decision of Delhi

High Court in Eastern Company Vs. Navin16 created confusion as regards the current position of

the Indian law. In the case the plaintiff had claimed copyright in the head notes, in the section,

manner of arrangement and in the manner of presentation of the judgment in both printing and

electronic form in law journal as the process of compilation required some amount of skill,

labour and expertise. The court first observed that in the case of compilations another person can

also make a similar compilation but can not infringe upon the copyright of the previous compiler

by using the fruit of her labour. She has to go around compiling the work herself. Therefore, here

the court seemed to be affirming its faith in the sweat of brow theory. But the court soon made a

turn around. It is said that the orders and judgment of the court are in the public domain and any

one can publish as they are in the nature of facts, the protection of copyright must be in a

creativity them, original and selection of facts and not in the creative means used to discover the

facts. Here the court itself is not affirmed about the recognition and enforcement of right- to

express of an individual as a fundamental right but in later opinion the right has been recognized

as a fundamental right by the court. The whole debate is centralized around what is the purpose

of copyright protection, which in turn has a bearing upon how much protection should be

afforded. The Advocates of 'Sweat and Brow' obviously come from a Lockean need to reward

labour to promote intellectual property. Those requiring an element of creativity are narrowing

the scope of copyright protection, since the communities interest in accessing these compilations

is greater than the individual interest in monopoly over them. Followers of Locke also support

their rationale in the ultimate community goods only, i.e. only if one provides incentive by

14
E.P. Stroke James eft. al., Copinger and Skore James an Copright at 58
15
(1900) AC 539.
16
92 (2001) DLT 403.
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reward with newer ideas in the form of property accrue to human kind. On the other hand, those

requiring a modicum of creativity in the work may have been inspired by the Hegelian theory of

personality of the author as reflected in the work to be the basis of copyright protection. The

copyright is a sort of 'economic right' which has to be recognized and protected in the form of

human rights. The Constitutional context of Human Right discussed by Chief Justice 'Leela

Simon' in the following terms. "Human rights granted in the Constitution of India through its

admission of "Fundamental Rights". Since the Indian Constitution was written after the U.N.

Declaration of Human Rights in 1948. The makers of the Constitution inserted Part III, that

discusses "Fundamental Rights" that every citizen of India has, and these rights as "inviolable in

the sense that no law ordinance, custom, usage or administrative order can abridge or take away

these rights. Copyright law restrict speech. It restricts what writers may write, what painters may

paint, what composers may create. It does not limit itself to slavish copying but prohibits people

from creating entirely new works, so long as those work use even if only in part another's

expression.In India Part III of the Constitution provides Article 19(1)(a), i.e. freedom of speech

and expression which has close concern with the protection of copyright in India. This is a basic

right which is recognized and it imply for individual's (citizen) right to express his/her opinions

freely by writing, by uttering words, by pictures and painting, etc. The citizen of India is free to

express his opinion through the dramatic, musical, literary and artistic works, which is the

subject matter of copyright17, and all such rights have been guaranteed in the term of

fundamental rights are subject to the restriction imposed by clause (2) of Article 19. The

Allahabad High Court in a case18 held that the right of a citizen to exhibit films in picture theatre

or T.V. screen is a part of the fundamental right enshrined in Article 19(1)(a) of the Indian

17
State of W.B. Vs. Subodh Gopal, AIR 1954 SC 92, 95.
18
Anirudh P.S. Yadav Vs. Union of India, AIR 2000 All. 123.
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Constitution which can be abridged or taken away only by invoking the provisions of the

Constitution. The same opinion has reaffirmed by the Supreme Court of India 19. Section 13(b) of

the Copyright Act, 1957 covers the cinematography, films and sound recording in the very

subject matter of copyright20, and therefore these copyrights has been treated as a fundamental

right of a citizen. In India Article 19(1)(a) of Constitution should be construed liberally, so that a

citizen can express his views through any media e.g. newspaper, advertisement, magazines,

radio, television, etc., but such freedoms are being checked by the reasonable restrictions

imposed by the Constitution. As no right can be absolute in its nature and it always subject to

respective duty. Therefore, it would be incumbent over all the citizens to develop the scientific

temper, humanism and the spirit of inquiry and reaffirm 21, and to value and preserve the rich

heritage of Indian Composite culture.

CONCLUSION

Protection of Intellectual Property Right in India continues to be strengthened further. The year

1999 witnessed the consideration and passage of major legislation with regard to protection of

Intellectual Property Right in harmony with international practices and in compliance with

India's obligations under TRIPS for instance the Patents (Amendments) Act, 1999, that provides

or establishment of a mail box system to file patents and accords exclusive marketing rights for

certain time period. The Trade Marks Bill, 1999 which repealed and replaced the Trade and

Merchandize Marks Act, 1958, The Copyright (Amendment) Act, 1999. A Sui-generis legislation

for protection of geographical indication called the geographical indications of Goods

(Registration and Protection) Act, 1999 by second amendment of Patents Act confirming TRIPS.
19
Ramesh Vs. U.O.I. of India, (1988) SC 668.
20
State of Bihar Vs. Shailabala Devi, 1952 SCR.
21
Article 51, A(h) and (f).
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In addition to the above legislature changes, the Government of India has taken several measures

to streamline and strengthen the Intellectual Property Rights administration system in the

country. The restrictions imposed on the freedom of speech provided under Indian Constitution

do not contain any specific provision related to copyright. Neither copyright can supposed to be

an antithesis of the very concept of freedom of speech in the light of Constitutional provisions.

Since copyright explicitly protects the forms of expression and does not provide any protection

to the ideas expressed. Therefore, copyright laws are not restrictive in nature over freedom of

speech. The ultimate aim of copyright protection is to protect the "intellectual endeavors" made

by the real authors of the work and to limit the fruits and benefits of that original work only to

the owner of that creation. Hence, such protection can never come in the form of an impediment,

so far as question of realization of right to freedom of speech and expression is concerned.

Hence, it is submitted that as the copyright does not restrict the right to speech and expression

guaranteed under Article 19 of the Constitution therefore it may be treated as right to speech and

expression. Therefore, it acquires the status of human rights.

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