Salam,
In the previous post, I discussed the Oxford letter, which was itself merely a response to an increasingly contentious issue: translation. Here, I turn to the broader context of nineteenth-century Indian copyright law and revisit two landmark decisions that left British publishers deeply dissatisfied, prompting a letter in response.
Translation as Troublemaker for Publishers
Now comes the main thing: translation. Printing arguably entered India in the sixteenth century, on September 6, 1556, by something of a happy accident, when a Portuguese ship carrying a press intended for Abyssinia was detained in Goa. Indigenous participation in the enterprise, however, emerged more substantially only in the nineteenth century, particularly after the introduction of lithography in the 1820s. Unevenly across regions and linguistic publics, the decades following the 1840s saw an expansion of vernacular printing, with numerous entrepreneurial printers and publishers entering the market with vigour.
At the same time, the colonial state’s so-called “civilising mission” and its expanding educational programmes generated an ever-growing demand for textbooks, instructional manuals, and translations of European works into vernacular languages (See Bently pp 1187-1194). This market created commercial incentives for Indian publishers to translate and reproduce British works at relatively low cost—developments that began to rankle British publishers and sowed the seeds of future copyright tensions.
At the same time, nationalist figures—such as Tilak, whose newspaper Kesari called for translations of works owned by Oxford, as noted in the impugned letter—reportedly used translation as a political instrument, enlightening Indian readers and apprising them of prevailing conditions and sentiments in India. In Bently’s account (p. 1214), Kesari’s advertisement included works such as Sir Alfred Lyall’s Rise of British Dominion in India. Translation thereby underlied both a commercial character and a pedagogic function, while also ferrying the nationalist spirit across linguistic communities.
It was within this broader context that translation became a cause of consternation. The silence of the 1847 Act on translation rights—a gap that, as Chatterjee suggests, largely went unnoticed until the 1860s and 1870s—acquired significance as Indian publishers increasingly translated and transcreated English works for Indian readerships (p. 29).
Initially, Indian publishers appear to have exercised some caution, often relying on works that were in the public domain or outside the scope of protection. Though they still faced repercussions sometimes. Macmillan and Anr. vs Suresh Chunder Deb (1890) ILR 17 CAL 951) merits a mention on this count, wherein the court ruled in favour of Macmillan Publishers, affirming its rights over the arrangement and selection of material even in compilations drawing upon otherwise non-copyrighted works.
Translation, however, was contested, and in the absence of explicit statutory clarity in the 1847 Act, courts tended to favour Indian publishers.
Two disputes in the second half of the nineteenth century brought this to a head, unsettling major British publishers and exposing the fragility of their claims over the Indian market in matters of translation: Munshi Shaik Abdurruhma’n (and Another) v Mirza’ Mahomed Shira’zi (1890) 14 ILR (Bombay) 586. 2.) Macmillan and others v Khàn Bhàdur Shamsul Ulama M Zaka (1895) 19 ILR (Bombay) 557. These cases, which Chatterji and Bently also discuss, negated the right of translation, holding that a translation and a copy stand on different footings. In Zaka Ullah (1895), Justice Farran noted that the interest of the public ought not to be constrained by the “caprice or possible pecuniary interest” of the original copyright holder.
A translation right was eventually written into the Copyright Act, 1914, after lobbying by publishers. But no such right existed in 1900, when the Oxford letter was written. And the way the British actually enforced copyright against Indian printers is curious in its own right, given how strikingly uneven the enforcement was.
As Chatterjee notes, British publishers were often reluctant to go after Indian printers aggressively, partly because those printers were too undercapitalised to be worth suing. More often than not, they preferred strategic indifference to litigation: a cease-and-desist letter rather than a full suit. And when they did act, they tended to act commercially rather than juridically. That is, instead of suing the pirates, they tried to out-pirate them, flooding the market with cheap authorised translations, guides, and keys. Macmillan was especially good at this game, though never quite good enough to win it.
The upshot, per Chatterji’s account, is almost the inverse of what all that wealth and clout would predict. Put simply, it was the British publishers who “largely came off worst.” They got little help from the educational authorities (who were sometimes the pirates themselves) and little from the judiciary. Thus, left to linger in a field whose basic principles and definitions were still unsettled, and under a law that was, in consequence, unsatisfactory to them.
Final Thoughts
What I sketched here is but a few markings upon a vast historical terrain. Those intrigued may find it useful to stray beyond copyright law proper and sift through the neighbouring histories that long shadowed it: libraries, presses, censorship, book histories, education, and technologies of communication such as telegraphy, photography, and lithography, etc. For much of the copyright history survives not in the formal annals of copyright, but scattered along the edges of adjacent domains.
Before taking my leave, a brief note on the operation of copyright and print regulation within the princely states and colonial enclaves, where British copyright protections did not always run with full force. Tellingly, as Bently demonstrates (p.1208), British publishing houses such as Longman often viewed these territories as “Alsatias” (i.e., lawless spaces) and feared that they might become centres for the production of unauthorised vernacular translations and reprints of British works, subsequently smuggled into British India. Contemporary reports from publishers in the early twentieth century suggested that states such as Mysore and Travancore were, at times, awash with unauthorised reprints of popular British authors.
The colonial government, too, worried that princely states might be used by nationalist actors to evade restrictions on problematic literature. It is in this context that British attention to princely-state copyright arrangements must be understood — including the Oxford letter’s own references to these semi-autonomous sovereign sites. (see also these two archival documents, which relate to the states of Bhopal and Travancore vis-à-vis copyright law).
For those willing to wade into this history, the following works may offer a nice point of departure:
- Natarajan, J, History of Indian Journalism, (1955)
- Anant Kakba Priolkar, Printing Press In India (1958)
- Rimi B. Chatterjee, Macmillan in India: A short account of the Company’s trade with the sub-continent, in Macmillan: A Publishing Tradition (Springer Nature, 2002) pp 153–169 (paywalled)
- Print Areas: Book History in India (eds Swapan Chakravorty & Abhijit Gupta, Orient Blackswan, 2004) (paywalled)
- Ulrike Stark, An Empire of Books: The Naval Kishore Press and the Diffusion of the Printed Word in Colonial India (Permanent Black, 2007) (paywalled)
- Rimi B. Chatterjee, Empires of the Mind: A History of the Oxford University Press in India Under the Raj (OUP, 2007) (paywalled)
- Moveable type: book history in India (eds. Abhijit Gupta & Swapan Chakravorty (Permanent Black, 2008)
- In particular, see the chapter by Rimi B. Chatterjee, Pirates and Philanthropists: British Publishers and Copyright in India, 1880-1935. (paywalled)
- Lionel Bently, Copyright, Translations, and Relations between Britain and India in the Nineteenth and Early Twentieth Centuries, 82 Chi.-Kent L. Rev. 1181 (2007)
- Abhijit Gupta, ‘Popular Printing and Intellectual Property in Colonial Bengal’ (2012) 113(1) Thesis Eleven 32.
Thanks to Prashant Reddy and Swaraj Barooah for sharing their thoughts on the post.
See you in the next post.