Discussing the Mahatma’s take on copyright and the interplay between the 1955 Copyright Bill and the Berne Convention, we are pleased to bring to you this post by Shivam Kaushik. The post is a part of our IP History series. Shivam is a 2020 law graduate from Benaras Hindu University and is a former law researcher at the Delhi High Court. His previous posts can be accessed here.
Copyright Bill, 1955: the Best Copyright Law that India Never Had
By Shivam Kaushik
Seen from Nehru’s eyes, Indian independence was a ‘tryst’ with destiny. The stroke of the midnight hour was the moment when India stepped out from old to new, and the long-suppressed soul of a nation found utterance. But with the benefit of hindsight, I feel that the words of Charles Dickens more aptly describe what immediately followed independence- “It was the best of time, it was the worst of time; it was the age of wisdom, it was the age of foolishness; it was the epoch of belief, it was the epoch of incredulity…”
Political independence from the British was an opportunity for Indian copyright to move out of the silhouette of colonialism. However, Article 372 of the newly enacted Constitution allowed for the continuation of the British made laws including Copyright Act of 1914. Thereafter, in the year 1952, the Government of India moved a resolution in the Parliament to ratify the 1948 Brussels revision of the Berne Convention which made copyright protection for lifetime of the author plus fifty years mandatory for all member countries. The said resolution was passed without much discussion. The record of discussion on the resolution in the Lok Sabha is barely two pages! The Indian parliamentarians instead of questioning incorporating higher standard of copyright protection and its effect reprimanded the government (p.14 pdf) over the delay in ratifying the Revision. During the discussion in Rajya Sabha, a parliamentarian outlined (p.12 pdf) that it would be wiser to be “tied with the rest of the world”. The colonial hangover was still lingering, a shadow that refused to dissipate.
However, one mind that was unaffected by the all-encompassing coloniality was that of a renowned author, astute lawyer, and successful printer- M.K. Gandhi. He had a very nuanced view of role and function of copyright law in the Indian society. In a fantastic work written in 2013, Shyamkrishna Balganesh described Gandhi’s approach as ‘copyright pragmatism’. Gandhi differentiated between the legal structure of the institution of copyright from its normative values, and its consequences. He infused copyright law with normative ideas such as distributive justice- ideas that were not fundamental to copyright when it was originally conceived.
Much like Indian copyright thought in general, his thoughts on copyright law are barely explored, and widely misunderstood. So much so that the when copyright in his works was expiring in 2009, the Trust owning copyright in Mahatma’s writing refused to petition the government to extend the term of copyright as was done in 1992 for Tagore’s works. The Trust’s stand was based on the conception that the Gandhian thought is fundamentally opposed to the idea of copyright and Gandhi never supported it. This position is captured in detail in a post written by Swaraj 15 years back. The Trust’s misconception was despite the fact that Gandhi engaged with copyright through his lifetime and later ‘bequeathed’ copyright in his works to the Trust in question. A copyright pragmatist, Gandhi was in favour of strategic deployment of copyright law.
The Last War of Independence
The clearest articulation of this copyright pragmatism in the history of Indian copyright can be found the Copyright Bill, 1955. It was introduced in Rajya Sabha to replace the British era Copyright Act of 1914 eight years after the independence. The Bill reflected the aspiration of a developing country looking to augment access to books. Two major highlights of the 1955 Bill were:
- Reducing the term of copyright from lifetime of author plus fifty years to lifetime of the author plus twenty-five years.
- Mandatory requirement of the registration of the work in order to institute a suit for copyright infringement.
The Bill struck at the heart of Berne obligations. Both the conditions of registration and reduction of copyright term were antithetical to the core of Berne Convention of which India was a signatory. While introducing the Bill in Rajya Sabha, the Deputy Minister for Education- Dr. K.L. Shrimali acknowledged (p.23 pdf) that the step was taken to ensure that the burden on the public is not substantially greater than the benefit accruing to the author. India, which was aiming to launch education programs and increase public literacy among its masses needed to reduce the prices of books and limit the profits earned on books. It was an open secret- multilateral instruments like Berne inhibit access to books and educational material in low income developing countries.
The proposal evoked sharp response from the Members of Parliament who were authors and writers by profession. The Bill was referred to a Joint Parliamentary Committee (JPC) and both the conditions were done away with (p.69 pdf). Prachi in her recent post has captured in detail the discussion that took place in both the houses. The whole lobby of writers, led by renowned author and parliamentarian- Ramdhari Singh Dinkar, picked up arms against the Bill. In their anguish, they were joined by foreign authors’ groups including Confédération Internationale des Sociétés d’Auteurs et Compositeurs (CISAC), British Joint Copyright Council, and All India Centre of PEN, London. These organisations played a prominent role in convincing the JPC to recommend complying with the Berne obligations. The JPC Report records (p.10 pdf) “the member of P.E.N., etc were very emphatic that there should not be compulsory registration”. The other side, though in minority was equally terse. Mr. U.M. Trivedi, in his dissenting note (p.11 pdf) to JPC report equated the extension of term fifty years after the death of the author with ‘jagirdari’ for three generations to the heirs of deceased author.
On the basis of the original text of Bill, Prashant Reddy and Sumathi Chandrashekaran in their book “Create, Copy, Disrupt” speculate (p.121) that initially India was contemplating opting out of the Berne Convention. While that may certainly be plausible, I suspect it may not have been the case. After the Bill was revised and was re-introduced in the parliament, the Deputy Minister of Education in Rajya Sabha gave two reasons (p.98 pdf) for the amendments made to the original text. First, being a Berne signatory, India was bound to provide copyright protection for 50 years after death to foreign authors. In such a case, keeping the term of copyright at 25 years after death to Indian authors would have been discriminatory. This reason, to me, makes it apparent that the government had no intention of denouncing Berne, and it was only contemplating the shorter term of copyright for Indian authors. Second, he reasoned that authors in India were not rich and the family of the author should receive support from their works. Thus, the 1955 Bill which metamorphosed into the Copyright Act, 1957 was wholly Berne compliant.
The Copyright Bill of 1955 was an opportunity for India to step out from the old age copyright policy to a new “India centric” copyright policy. But unfortunately, the juncture never came. The stroke of midnight hour was squandered and the pragmatic copyright policy never awoke to life and freedom.
P.S.- Do check out this amazing post on Ramdhari Singh Dinkar’s views on Copyright and how he changed the direction of Indian copyright in 1950s written by Prashant Reddy.