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Personal Reflections: Disability, Copyright and AI

noreply@blogger.com (Unknown) — Mon, 19 Jan 2026 13:08:00 +0000

"Disability is simultaneously real, tangible, and physical, yet also an imaginative creation whose purpose is to make sense of the diversity of human morphology, capability, and behavior."

— Joseph Straus in ‘Extraordinary Measures’

Currently-abled people are considered to both create and consume content but the Indian copyright statute tends to recognise people with disabilities primarily as people who consume cultural artefacts rather than as those who create them too.

Current Indian Law

The 2012 amendments to the 1957 Indian Copyright Act introduced provisions for the benefit of people with disabilities into the statute. These provisions took the form of an exception to copyright infringement in Section 52(1)(zb) and a compulsory licence in Section 31B, the latter of which was intended to cover situations to which the former could not apply.

Section 52 'prompts the law to turn a blind eye to persons or eligible organisations making accessible copies of protected works available to people who have disabilities (through the unauthorised adaptation, reproduction, issue of copies or communication to the public of such works) as long as they take reasonable steps to prevent accessible copies from entering ordinary channels of business and act on a non-profit basis', as Sidharth Chopra and I wrote in 2020, while 'Section 31B describes the process through which a compulsory licence for the benefit of persons with disabilities may be granted where accessible copies are sought to be made available on a for-profit basis in circumstances which fall beyond the scope of Section 52'.

Both of these provisions speak of access to existing works and not of the authorship of works which could potentially come into being. At the time the amendments were passed, they were hard-won ‘rights’ which were almost inarguably the most progressive disability provisions globally.

Personal Recollections of the Path to the Amendments

Early versions of the so-called disability proposals to amend the 1957 Copyright Act focussed on enabling people who were blind to access protected works.

At the time they were being discussed, I was a young lawyer who, by an extraordinary stroke of luck, found herself working with one of the country's most formidable intellectual property lawyers. He was both collegial and kind, never once attempting to redirect my attention from issues that were important to me and only requiring me to be able to defend my own words.

Our days working on the bill, which would soon turn to years, were spent analysing international exhaustion and other commercial issues for the most part although, as it turned out, what was most important to me were the disability proposals. I was furious about how narrow their scope was because I viscerally knew that they would not make a difference to most people with disabilities and found myself calling another lawyer, Shamnad Basheer; his number was easily accessible and I knew he was working on the disability proposals. I didn't then know him at all and, although I don't think I realised it at the time, I now know that I was entirely intemperate when we spoke. He handled my anger with far more grace than I had any right to expect.

Later versions of the bill which Shamnad, Rahul Cherian, and a number of other experts worked on were much broader. (My own thoughts at the time on how the provisions could perhaps have been structured are here: SSRN.) Shamnad himself, thankfully, did not hold my outburst against me and became a friend I could turn to until he passed on in 2019. We had last spoken a few weeks before his death; unbeknownst to me, we were in different time zones. I’d turned to him for guidance and reassurance not knowing what to do with a legal knot I was dealing with in my own life; he called me back after he woke up.

This time, when copyright law could perhaps benefit from reinterpretation once again, either through policy or legislative measures, there will be no calls returned or taken, and it is impossible not to feel that loss.

From Access to Authorship

What I think changes the equation now is the proliferation of generative artificial intelligence. Debates have been raging about AI and authorship, and the interaction between AI and human creativity.

In 2012, there was no real difference to consider between authors based on whether or not they had disabilities because the technology to fundamentally change how we perceive the act of creating content was not in common use. With GenAI in the picture now, it is worth asking whether the law should be structured so that the compensatory use of technology as support for creativity by persons with disabilities should be treated as being on a different footing from the supportive use of technology by those currently-abled in the process of creating works. Doing so may not be ideal simply because if the legal treatment of people were different on that basis, it would immediately require proof of basis which would undoubtedly trigger the development of inescapable bureaucratic hurdles for people with disabilities to clear.

A better approach would probably be to consider universal design such that the threshold for copyrightability remains standardised for everyone regardless of whether or not they have disabilities but is reconstructed so that it does not act as a barrier to those who do have disabilities. Doing so would probably require us to reconsider our apprehension of non-human authors and become more accepting of the possible role of AI in authorship but, then again, we already accept non-human authors when it comes to films and sound recordings through ‘producers’ recognised by the 1957 Copyright Act who may be corporate entities or, in the language of the 2018 Practice Manuals, ‘producing companies’. (See: 3. The Statutory Anticipation of AI, Artificial Intelligence: An Opportunity to Recast Copyright Law) If we are willing to accept non-human authors in line with commercial imperatives, there seems to be little reason why we should not do so in service of human dignity.

Recent Discussions

Thus far, when it comes to copyright and AI, our focus has been on infringement and training data and not on authorship. There is, of course, the question of whether training data should be viewed primarily through the lens of copyright at all but, leaving that aside for the moment, in terms of licensing, there's quite a strong push towards developing a form of "one licence/one payment" which would enable AI companies to proceed to use data with as little friction as possible.

My own suspicion is that such an approach risks turning the legal landscape into a constitutional and jurisprudential minefield potentially open to multiple challenges under Articles 19 and 21 of the Constitution given that it has the potential to run roughshod over individuals’ privacy, authors’ and performers’ moral rights, the rights of citizens to engage in trade. A more robust solution to the issue would be, I suspect, to accord differential treatment to works on the basis of authorship and availability. (I still don't have firm opinions but this is one model I’d thought might be viable: [PDF] 5. The Data underlying Computational Creativity, Artificial Intelligence: An Opportunity to Recast Copyright Law).

We have form for splitting rights. Copyright lawyers routinely do so with abandon. Rights are split with reference to works, territories, royalties, duration and more into a seemingly infinite number of permutations and combinations. That we could take that same skill and apply it to infringement seems obvious if somewhat tedious and potentially more expensive than developing a blanket licence scheme would be. That we could also take that same skill and apply it to authorship, too, does not seem to be unthinkable. And perhaps that's exactly what we should do in aid of social inclusion and human dignity.

If not anything else, to fail to accord people with disabilities rights at par with those who are not currently disabled seems to be not just inequitable but also unconstitutional.

Postscript. Reading ‘Extraordinary Measures’ by Joseph Straus prompted this post. Reproducing a few thoughts upon reading it to highlight, through one observed example, that legal change, while useful, is not enough when the social recognition of disability remains strained by class and gender —

One issue which the book doesn't seem to (so far) touch on though is the class and gendered lens through which disability is seen or, in some cases, simply not seen.

It is not affliction or afflatus even if it is documented in scans; it is simply non-existent. If it is the result of domestic assault, it may be socially viewed into non-existence as all domestic assault may be viewed (particularly within the so-called 'upper' classes where acknowledgment disrupts the fiction of civility and challenges the structure of power). If it doesn't result in complete disruption, it may be medically viewed into non-existence since the levels of functionality (and dexterity) musicians routinely require may be drastically different from the requirements of non-musicians who do not need as high a level of precision.

Extraordinary Measures talks about how performers with disabilities must perform music and perform disability. That's true enough in most cases. However, the performance of disability becomes impossible when its existence is met with willful blindness.

Gender, of course, comes in: literature is not short of explorations of the differential treatment and pain relief men and women receive. Class, too, makes a difference ironically with the expectation of simply powering through seeming to be far more entrenched in the supposedly 'upper' classes possibly because of their unwillingness to acknowledge disability at all when the causes are interpersonal.

Pain so extreme that it would fell most people becomes self indulgence. Bones visibly not where they should be become self inflicted postural issues. And 'substandard' performance through the collapse of the neuro-muscular-skeletal system becomes moral failing, an expression of laziness. Disability as divine affliction once again, that old trope, rather than as its counterpart, divine afflatus — inaccurate too, but perhaps more cognisant of the miracle that any performance at all, competent or not, may be.

It is extraordinary to see how perceptions of disability can come a full circle. And, for all the enthusiasm for accommodation through law that there may not be, perhaps it also needs to be accompanied by greater social recognition of the wide spectrum of possible disabilities.

This post is by Nandita Saikia and was first published at IN Content Law.

Notes: Drafting Policy Documents

noreply@blogger.com (Unknown) — Sun, 18 Jan 2026 01:43:00 +0000

Three notes previously posted on LinkedIn about drafting policy submissions, the first in response to students asking for advice, the other two following responses to the advice:

Note 1:

I had a few students approach me about how to write policy briefs... Some competition, as I understand it. So, just leaving this here in case it's useful to anyone. It isn't authoritative, just an overview of how I see things, FWIW.

1. There is usually no format or template. Do what works for you and your client. The basic intention should be to make life as easy as possible for the reader. So, where you can: tabulate content, use white space, use clear sections; a large block of text is not easy to parse. And maybe consider an executive summary.

2. No-one really has the time to read 15 pages of background history, and, frankly, with the number of people who will put it in anyway, there's zero chance that the final arbiters of the document will be unfamiliar with the subject. So it's best to keep this part short, use footnotes liberally and, if there's a comparative analysis between jurisdictions, clearly signpost what's what. Also, stick to the actual law here so that if your reader bypasses it entirely, it does your argument no harm.

3. If you're looking at a bill, e.g., PRIORITISE. Figure out what the most important issues are for your client and focus on them, or for the country, if that's your aim. Putting in 50 issues and burying 3 critical ones somewhere in the middle is effectively going to guarantee that the 3 critical issues are virtually impossible to find. Put the 3 issues front and center, and either ignore the rest or dump them in an appendix. Esp. if they're of the "there's a typo here" variety.

4. Morality has its place but it needs to be tied in with the law. There is a large field where you can fit in moral arguments: Indian law has tended to look towards a Hegelian concept of public interest, it has resisted dominant narratives from the West (e.g. TPM), and it has forged almost completely new paths (e.g. disability, authors' continuing royalties). Emotive language is best toned down esp. if you're making arguments that don't have any solid moral counter (e.g. people with disabilities should be able to access culture unimpeded). Also, tie in what you're saying with international treaties to highlight that even if you're suggesting something "outlandish", it's not going to violate India's international obligations.

5. If your suggestions are likely to have some weird fallouts, admit them upfront along with how you see their being addressed or contained. Someone else will anyway likely bring them up so don't pretend that they don't exist.

6. If it's possible, talk not just about how the law should be or what principles you think it should follow but exactly what language could potentially be included in legislation or policy. This helps readers visualise exactly how you see the law in action.

Ultimately, getting policy work done is collaborative even if you have fiercely opposing viewpoints. There is going to be just one piece of legislation or regulation or policy. Do what you can to get it to work for everyone.

Note 2:

re this [Note 1 above], https://lnkd.in/dWQ29hPi, I've been told that it should include the suggestion that policy proposals be evidence-backed. I understand the fear of rhetoric-driven policy but I've not highlighted the need for evidence because, to my mind, it's obvious that when there is useful evidence, you put it in.

That said, there are also times when evidence is limited or hard to access. And that shouldn't impede a solid proposal.

One example: I remember working on a submission against the two-finger test (way back when it was actually a thing) along with two other people. A lady into governance who is one of the most brilliant, empathetic people around, and a doctor who spent a good deal of time ensuring that the document made sense.

I don't recall there being much by way of evidence beyond a clear explanation of the test being worthless. And I don't believe that evidence in the sense of surveys and impact assessments would have been appropriate. What would one have done? Talked to women to confirm that the test is nonsense and exposed them to secondary trauma? To medics who'd often been trained using a 19th C forensic science text? Neither option would have been worth pursuing, and not pursuing them didn't detract from the submission.

There are times when 'evidence' is appropriate. There are also times when it isn't. What's important is that proposals be well substantited whatever form that substantiation takes.

('Evidence' is often understood as being hard, quantitative data which is why I'm so resistant to saying it's necessary. Linking to a piece I wrote about this several years ago here; it's old but I don't recall my views having changed since I posted it in 2018:

https://lnkd.in/d39e4aqM)

Note 3:

One last quick note on policy specifically re 498A:

1. I have often asked about how much misuse there is — I've never made any claim about the exact % of misuse myself but I have often faced the “99% misuse” claim, and I do think that a person making a claim with a specific percentage mentioned should be able to defend it.

2. Speaking for myself, I don't know what the numbers are. My feeling is that there is significant misuse in a sliver of upper-middle class urban India and even more non-use elsewhere. I don't know what the numbers are but am aware that documentation of the occurrence of domestic violence is staggeringly different depending on whether one looks at it through crime reports or through family health surveys.

3. I do tell those who ask me to comment on 498A papers (or their new counterparts) to first spend at least 15 minutes outside the burns ward of any public hospital. I don't think that's unfair; if you're old enough to advocate against it, you should be old enough to develop at least a vague understanding of why the section was introduced at all.

4. I find it fascinating that every single anti-498A piece I've seen advocates getting rid of the section itself rather than specifically targetting misuse. They may exist but I've never come across one which speaks of addressing misuse by finding credible and fair ways to enforce perjury laws or which explores how ‘498A as a strategy’ could specifically be suppressed; I'd be all for either.

There's no movement to address insurance fraud, e.g., by scrapping insurance. Not really sure why most suggestions to counter 498A misuse invariably seem to require scrapping 498A.

This post is by Nandita Saikia and was first published at IN Content Law.

Sarees: Culture, Commerce, Constitutionalism

noreply@blogger.com (Unknown) — Mon, 05 Jan 2026 14:29:00 +0000

[Working Draft: PDF at SSRN]

Abstract: This article explores how sarees, as cultural artefacts, have been failed by conventional intellectual property laws which understand authorship and ownership through Western individualistic paradigms rather than through paths of communal continuity. Weaving together mythology, commercial constraints, and technological implications, it suggests that sarees may be better protected by turning more strongly towards India’s own Constitution and its understanding of the public interest.

Note: Inspired by flowlines designed mainly from an economist's point of view once mapped out with D.R. on a scrap of paper, now lingering only at the fringes of memory. Short descriptions of most of the sarees referred to here can be found at sareesearch.blogspot.com. Much of the text in this piece relies not on academic research but on conversations over the years, and therefore lacks citation; where research has been merged with experience, that has been marked, as far as possible. The text is still a work in progress but, it's gone as far as it will for now, and has been shared as it is; it has decidedly not been written from an economist's perspective. (v1.2, 16 Jan. ’26)

The Saree: Tradition and Tenacity

Conventional IP Laws and Cultural Expression

Challenges to Effective Legal Amendment

Living Traditions

Public Interest as a Shield

Revision History:

v1.1 05 Jan. 2026: Minor textual changes

v1.2 16 Jan. 2026: Title Updated, Typos Corrected, SSRN link added

The Saree: Tradition and Tenacity

“Legal arguments do not suit beautiful women,” Draupadi is told in Pratibha Ray’s ‘Yajnaseni’ when she verbally challenges her enslavement upon having been staked, and lost, in a game of dice while another man comments: “The greatest offence a woman commits is to try to be learned.”^[1] Far from being spared by the force of legal argument, in what has become one of the most well-known scenes in the Mahabharata, divine intervention saved Draupadi which could remind one of Hegel saying, millennia later, that ‘the State is the march of God^[2] on Earth’ in secular terms.

At the time of the Mahabharata, Draupadi’s logic and learning, as formidable as they may have been, would never have won her liberty by themselves. She was not free to speak as a man might have been; she was, in fact, not free at all, being unequal to all men as a woman and, in particular, being subject to her husbands as a wife. It took at least two thousand years to formally change that equation in theory if not in practice.

Interpretations vary, and it appears that the text of the epic has itself not remained stable over time. Early versions seem to have indicated that Draupadi’s garments were replenished spontaneously giving rise to the proposition that the replenishment was ‘dharma’ or divine justice at work. Metaphors heavily embedded in nature may have also been at play, as Hiltebeitel has suggested: Karna, the sun’s son directed that Draupadi, named Krsnā at birth and identified with the Earth, be disrobed only to be later killed by Arjuna, son of the rain god Indra who helps cover the Earth with greenery each monsoon after the scorching sun has laid her bare.^[3] Rebutting this theory, Mehendale has pointed out that the ‘disrobing’ may simply have been the attempted removal of an upper garment in line with social practices of the time: during the Gupta period, when the scene is believed to have been firmly introduced to the epic, only noble women wore upper garments and Draupadi, supposedly enslaved, would no longer have been one.^[4]

Whether it was actually true that many women did not then wear upper garments is unclear: in an unconnected work, speaking of the period which ran from 320 B.C. to 320 A.D. (just prior to the Gupta period), Kamala Dongerkery, who along with her mother helped keep Kasuti embroidery alive in the 20th century notes: “While it would seem that in the sculptures there are a large number of female figures the upper parts of whose body are decorated only with ornaments, it would be wrong to make a generalization in this respect and conclude that it was usual for women to dress in this manner. A closer study of many of these sculptures often indicates a close-fitting bodice or a coatee type of garment and a diaphanous apparel drawn over the body. The arm decoration on the sculptures was not always an ornament but a decorated sleeve.”^[5]

Whatever the intention underlying the attempt to remove Draupadi's garment may have been, it is clear that a greater power acted to shield Draupadi from what is likely to have been the predatory male gaze. The dynamic between the vulnerable, the powerful, and the protective aligns neatly with independent India's constitutional philosophy which recognises that liberty requires equality to be meaningful and that the interaction between the two may require intervention to ensure that liberty does not become oppression and that equality does not become complacence. The possible need for intervention is so deeply embedded in Indian consciousness that, in independent India, it has easily led to the acceptance of a protective (and somewhat interfering) state not just for the perceived good of the individual but also for the greater good of society. The role of state has, however, played out alongside that of the divine.

Later versions of the Mahabharata which prominently linger in public consciousness tend to agree that Draupadi surrendered herself to Lord Krishna and that it was He who foiled the attempt to disrobe her by ensuring that her garment, understood to be a saree, never ended. Whether or not it was actually a saree isn't entirely clear; Raja Ravi Varma had ‘invented the sārī as the national epic dress for women’ in the late 19th century,^[6] and the visual has since held fast. It is the interpretation of Draupadi's garment which was portrayed by B R Chopra’s serialisation of the epic, a cultural phenomenon first telecast in the late 1980s; she wore a yellow saree with a red border in the televised serial. Suresh, of the Dresswala family fame (their being the oldest costumiers in Bollywood), was approached with a technical issue: the saree was supposed to unfold endlessly, and creating a looped shot was proving to be a struggle. “Just use the entire bale of saffron cloth,” he suggested. “And so,” as the Ahmedabad Mirror reported decades later, “it came to be that the actress had the bale draped around her only to be twirled out of it for the scene.”^[7]

Soon after the episode was telecast, the market was all but flooded with red-bordered yellow sarees. Materials differed, as did price points. There was a yellow saree with a red border which every woman could buy, and buy such sarees is exactly what women did in droves. Draupadi's virtue had been proved by the attempt to disrobe her having failed quite as spectacularly as it did, and many women wanted to don the garment she had worn.

The sequence of events demonstrated how sarees are not simply a matter of convenience or commerce to Indian women; they are a potent mix of culture, convenience, commerce which, in modern India, all operate beside constitutionalism. They are steeped in history, spiritual and personal: sarees connect mythology and memory to the material world where they engage with the patriarchal and the legal, neither of which manages to assert unchallenged dominion over either women or their textiles. Banarasi sarees, for example, are chosen by women ‘from within the confines shaped by male taste’, male weavers and merchants and, yet, each of them has a sense of their own power: the weaver as ‘the owner of his tradition’, the merchant ‘within the commercial realm, asserting his control over his suppliers, workers, and customers’ and the customer over ‘her own self-presentation’ which influences what's woven and sold. Their concerns are more complementary than conflicting: the weaver prioritises design and motif, the merchant craftsmanship, and the customer practicalities (such as whether a fabric will dry under a fan during the monsoons) and aesthetics.^[8] None of their concerns exist entirely independently of the law which, rarely knowing exactly what to do, tends to provide protection to both weaves and weavers with indifferent efficacy.

Conventional IP Laws and Cultural Expression

The law interacts directly with textiles primarily through intellectual property rights which include patents, trade marks, copyrights, designs, and geographical indications. The trouble has generally been that none of these forms of rights is especially well suited to protecting sarees: each one is capable of protecting various aspects of production and commerce but they cannot be relied upon to gel with each other. Broadly, geographical indications and trade marks are both markers of origin while, with reference to sarees, copyrights and designs can often be employed to protect visual presentation.

As their name suggests, geographical indications may protect sarees from specific regions whether they are heritage handlooms such as Banarasi sarees or distinctive contemporary sarees. For example, Gollabama sarees from Andhra Pradesh are protected even though their history appears to date back less than a hundred years. They were developed and gained popularity following the production of a 1940s film depicting the legend of a queen named Gollabama who is believed to have been married to the legendary King Vikramaditya.^[9] The couple was separated for a while during which time the queen lived as a milkmaid, an image which finds itself repeatedly rendered on Gollabama sarees as a woman in profile carrying a pot on her head and, sometimes, carrying a second pot in the crook of her arm too. The motif is unmistakable, and it is all but impossible to confuse Gollabama sarees with other kinds of sarees.

In contrast to geographical indications, trade marks usually distinguish the sarees of one brand from another, and in general, sarees are not sold with trade marks of any kind printed all over their body (as some handbags are). There are exceptions to this general rule; in cities like Delhi, it is not entirely surprising to walk past a woman wearing a saree with the Facebook logo or what was the Twitter logo printed all over its body. These trade marks, however, have little to do with the origin of the sarees themselves, and there seems to be no indication in any literature that such seemingly arbitrary use of corporate logos is ordinarily licensed by major technology companies. In all probability, the use of trade marks in such a manner does not indicate any connection to the relevant trade mark owner. That said, it appears that trade mark owners whose logos are so used are usually willing to turn a blind eye; it is possible that the likelihood of ‘fair use’ being argued in support of the unlicensed use of trade marks has been taken into account, and it is also possible that the benefits of having a human being essentially act as an unpaid billboard for a company in a manner which does the company no harm far exceeds the potential reputational and legal costs of initiating formal countermeasures through the judicial system even if it were likely that the trade mark owner would technically ‘win’ in court.

Closer to their conventional use, trade marks tend to be visible as labels affixed to sarees, inspiring consumer confidence by indicating who makes, curates or sells them. Although they may include ‘the shape of goods, their packaging and combination of colours’,^[10] it is unlikely that an entire saree could be a trade mark. In some cases, labels aside, to those familiar with the market, specific colour combinations or styles could provide a sense of the origin of a saree but such recognition would not be due to a trade mark. For example, perhaps till about 2015, it was often not especially difficult to make an educated guess as to a saree being a Byloom saree^[11] or a Fabindia saree.^[12] However, with the growth of interest in handloom sarees, and newer brands like Suta^[13] and Taneira^[14] having been established to cater to what appears to be virtually the same segment of consumers, telling saree brands apart at first sight has become increasingly difficult.

Further, quite apart from brand-associated trade marks, the industry also relies on certification trade marks^[15] which distinguish sarees based on their materials and the techniques used to weave them. In India, Silkmark, Woolmark, Handloom Mark, Jute Mark, Cotton Mark, and Khadi Mark are all certification marks. Their proprietors do not directly trade in products bearing the certification marks they themselves own; the proprietors merely certify the products. For example, the Silk Mark Organisation of India which introduced the Silk Mark label to guarantee the authenticity of silk is a 2004 initiative of the Central Silk Board under the Government of India's Ministry of Textiles.^[16] It does not manufacture or sell sarees itself but it does organise expos.

Thus, both geographical indications and trade marks help consumers identify the provenance of sarees but do not protect the designs of sarees. That task tends to fall to copyright law which can, in theory, be used to protect sarees as a whole, possibly by treating them as works of artistic craftsmanship especially if they are handwoven, or, alternatively by concentrating on the protection of artwork featured on sarees regardless of whether the designs have been printed, painted, embroidered or woven; the 1957 Copyright Act which governs the field protects works which have been fixed without reference to the manner of fixation. Amongst the works which copyright law protects are ‘artistic works’, defined such that paintings, drawings, and works of artistic craftsmanship all, amongst other specified manifestations of art, fall within its ambit.^[17] However, to actually merit copyright protection under copyright law, an artistic work must be original,^[18] and therein lies the rub.

Although art which satisfies the originality requirements of copyright law can undoubtedly be reproduced on sarees and although sarees can be designed so that they are, as a whole, ‘original’ and protectable, the vast majority of sarees made in India are not original in the sense that copyright law would require them to be to merit protection. Their makers do not plagiarise each other's ideas in the way that Western paradigms imagine plagiarism but they do tend to draw upon inherited community motifs to design contemporary sarees.

The iconic kingkhap motif seen on sarees from Assam,^[19] demonstrates this phenomenon. Early renditions of the motif, associated with the Ahoms who ruled the area between the 13th and 19th centuries, are believed to have featured a stylized rendition of the Ngi Ngao Kham, a mythical creature associated with Ahom royalty, which looks like an amalgam of a dragon and a lion. The motif was usually woven into muga silk with extra weft. The muga silk tradition has lived on but, over time, the motif has found its way not only on to paat and eri silk weaves but also on to cotton weaves. Many iterations of the motif, even in times long gone, seem to have portrayed lions leading to the belief, in some quarters, that the original motif itself had always featured lions. Whether the motif initially portrayed a mythical creature or an earthly one, what is indisputable is that over time, it has evolved. Contemporary kingkhap motifs tend to portray a variety of animals including elephants and peacocks in pairs with the only constant being that each animal faces the other within a frame shaped like a peepal leaf. The structure of the kingkhap motif is unmistakable even though there may be significant differences between one rendition of it and the next and, that being the case, it is extremely unlikely that it would be possible to establish a legitimate copyright claim over any one rendition especially if, in doing so, a heritage design would become privatised.

The story of the kingkhap motif is not an isolated one; motifs used across India tend to draw heavily from the past, and to draw from the environments in which weavers find themselves. Architectural design often finds its way into sarees whether it is the stepwells of Western India being echoed in the fiercely geometrical designs of Patan patola sarees or motifs drawn from the fort at Maheshwar being woven into Maheshwari sarees. Having an individual weaver attempt to claim exclusive rights in any heritage motif is all but unheard of, and corporate entities also shy away from doing so either in deference to tradition or recognising the likely futility of making such attempts which would be challengeable and likely, even if rights were asserted, unenforceable. After all, even if a public domain motif or the derivative of one were to be technically privatised by a person, public backlash could be engineered to be swift and uncompromising given that tolerance for cultural appropriation is limited not to mention that it is all but impossible to imagine such legal ‘victory’ having the slightest dampening effect on weavers and others who produce sarees, few of whom work in large cities and many of whom appear to carry on with their work beyond spheres where ‘copyright infringement’ is a meaningful expression.

With the exception of those designer sarees which can, in fact, be attributed directly and clearly to identifiable designers, copyright is not necessarily a suitable mode of protection for sarees. Designer sarees, too, may find it difficult to avail of protection since, even if they appear to step over the originality threshold of copyright law, it is not necessarily the case that their designs are novel. This matters because copyright protection under the 1957 Copyright Act in designs which can be registered under the 2000 Designs Act (but are not) ceases once the saree to which the design has been applied is reproduced more than fifty times using an industrial process either directly by the owner or with the owner's permission.^[20]

Although it may seem as if one could simply change the mode of protection from copyright law to designs law once the ‘50 pieces’ mark had been crossed, the definition of a design under the 2000 Designs Act specifically excludes ‘artistic works’ as defined by the Copyright Act from its scope meaning that, technically, a saree as a whole would probably not be treated as a design capable of protection under designs law; the work or imagery on the saree may, however, still be treated as a design. However, in that respect too, a further complication arises: designs which are not new or original cannot be registered, neither can publicly-known designs or those largely indistinguishable from known designs be registered.^[21] This gives designs a small leeway: the statute seems to suggest that they may be either new or original.

Nonetheless, given the manner in which sarees tend to be designed, including those at the ‘high fashion’ end of the market, it would be an exceedingly unusual saree, likely one independent of heritage practices, which would be even relatively certain of qualifying for any manner of protection, piecemeal or not, under designs law. While the Designs Act recognises that creativity does not operate in a vacuum, in what appears to be a corollary to its refusal to register known designs, it insists that even if designs are old, to be considered original (and thus satisfying the ‘new or original requirement for registrability), they must not merely originate from their authors but also be new in their application.^[22] This is an extremely high threshold to step over and most sarees would likely stumble not quite knowing if they had lost copyright protection and simultaneously not quite knowing if they qualified for designs protection.^[23] While it may be possible to sidestep the issue of copyright/design categorisation by producing limited editions with less than fifty articles each, there is no guarantee of such a strategy being commercially viable. The only saving grace seems to be that since copyright, unlike designs protection, does not require registration, should copyright subsist in a saree, the failure to register the copyright would not result in the loss of copyright protection.

As such, not only is Intellectual property protection with reference to origin through trade marks and geographical indications uneven but so too is protection with reference to design uncertain which, for all practical purposes, leaves only patents in the running regardless of the fact that there are not many avenues through which they could be helpful. Patents^[24] tend to stand by themselves as rights which protect inventions.^[25] As such, they can potentially be used to protect the processes through which sarees are made as well as the products used to make and engage with them.

Generally, in the context of sarees, patent applications at the Indian intellectual property office tend to fall under the heads of applications to protect textile production techniques,^[26] applications to protect textile production equipment (such as looms),^[27] applications to facilitate draping, handling, and storing sarees (such as pleating and folding machines),^[28] and computer science based applications for software programmes to be used at various stages of a saree's life cycle. However, the patent protection route is sometimes of limited utility.

Although patents could protect products such as dyes, for example, the story was nowhere near as straightforward as patent to package marketed. Traditionally, the making of dyes had relied on secrecy, and early European attempts to learn how to make dyes well known in the East largely failed. However, various scientific breakthroughs helped change this situation; early chemical dyes, such as coal tar dyes discovered in the 1850s,^[29] were often not immediately patented but later dyes such as indigo, which was developed in the 1880s, was almost immediately patented. Mendeleev’s development of the periodic table about ten years previously had resulted in secrecy no longer being a viable intellectual property protection strategy for chemical dyes.^[30]

Patent protection did not necessarily translate into market share though. In part, that may have been because although natural dyes should theoretically have become obsolete with the introduction of synthetic dyes, that proved not to be the case. In practice, natural dyes were not easily dislodged, not least because traditional dyers did not always know how to use the new dyes well, and because using the old dyes made sense particularly in relation to materials like silk where quality mattered. Also, in markets like India, there was not always much of a price difference between Indian and imported synthetic dyes so continuing to use old methods was not necessarily cost ineffective.^[31]

When it comes to aspects of sarees and their making which do not involve inventions, the value of patents is even more uncertain. It does not appear that it would be possible to protect appearance per se using patents (given that the 1970 Patents Act does not recognise aesthetic creations as inventions).^[32] Despite this, there are cases in which applications appear to have been filed for that purpose. For example, in May 2024, a patent application was filed in respect of the Kalakshetra Muttukattam Silk Saree (a golden orange saree with green checks in the body, a 10-inch border, and a 39-inch striped end-piece inter alia portraying ‘a row of horse with a rider, muttu kamalam, row of elephants, tiger paws’).^[33] As of 8 December 2025, its status appeared to be ‘Awaiting Request for Examination’ meaning that a patent had not (till then) been granted. The specifications seemed to focus on the design of the saree; they went into some detail about how it is woven and what yarn is used in the warp and the weft but the level of detail appeared to be comparable to that which is often expressed in applications for geographical indications. Time will tell if that is also what a successful patent application requires; it remains to be seen whether a patent will ultimately be granted for the Kalakshetra Muttukattam Silk Saree.

The fact that a patent application was filed at all is perhaps indicative of the dilemma which those seeking to protect sarees face: it is rarely the case that any existing form of intellectual property protection fits like a custom-made glove. When it comes to visual appeal, trade marks do not seem to be suitable. Copyright, design, and patent laws (assuming that patents are relevant at all) all rely on some combination of originality and novelty for rights to be granted by any of them, and, although all three understand each term slightly differently, the novelty and originality seen in sarees tends not to clearly align itself with any of the conventional intellectual property law understandings of these terms.

Challenges to Effective Legal Amendment

The question, “If not conventional intellectual property rights, then what?” is not easily answered. Two legalistic options present themselves, neither of them immediately helpful. Firstly, one could attempt to amend intellectual property statutes (or at least to tweak them through subordinate legislation) to have them be more amenable to protecting sarees and other cultural artefacts, or, secondly, one could explore the possibility of bringing into being a sui generis law which would be suitable to protect not just sarees but other heritage artefacts which have, especially in recent times, proven to be vulnerable to cultural and corporate appropriation.

A third option, which would be useful if only in the short term, would be to channel public opinion to convince corporate entities not to engage in glaring acts of cultural appropriation without simultaneously engaging with the communities whose art and know-how they take it upon themselves to draw from in a respectful and mutually beneficial manner. This is a method which has seen some success and, with the proliferation of social media, it is not especially cumbersome to employ but there will probably come a point when communication fatigue and message saturation will overcome the message itself. Till effective legislative and policy frameworks are in place though, channelling public opinion to curb the (mis)appropriation of cultural artefacts has demonstrated its value as a stopgap measure which would likely seamlessly segue into a supplementary measure in a better regulated environment by adding an easily comprehensible emotional element to the black letter of the law.

Ultimately, however, although one may hope that the law would be able to provide reasonably stable safeguards to protect cultural artefacts, the very rigidity of existing intellectual property frameworks could itself prove to be a hindrance to the development of living textile traditions, and ultimately to the protection of sarees and other cultural artefacts which they seek to protect. The Indian copyright statute, for example, recognises authors^[34] and the possibility of a work having been jointly authored by more than one author such that their contributions are not distinct from each other.^[35] Although the statute itself does not recognise co-authors with distinct contributions to a work, drawing on real estate law and drawing parallels with co-tenancy arrangements, copyright law has (through case law) formed an acquaintance with co-owners of copyrights.

What copyright law has singularly failed to do is recognise community copyrights. The task of protecting rights of groups of people has, in the context of sarees, largely fallen to geographical indications law; although trade marks law can, in theory, protect groups through the issue of collective marks, such marks do not play a prominent role in the protection of sarees. However, even if copyright law were to recognise ‘community copyrights’, the immediate problem would be to determine who would be recognised as belonging to the community. It is difficult to envisage how a community could be recognised without enabling its members to define themselves, an act which would almost inevitably turn into a form of gatekeeping which could potentially enable gatekeepers to police the activities of its members using the threat of derecognition. Even worse, the gatekeeping could easily be executed, if not universally enforced, by members of more privileged groups.

Such a phenomenon could be considered to have occurred in relation to phulkari embroidery originating in Punjab and now often seen on sarees in urban markets. Under the colonial gaze which had once privileged phulkari work undertaken by rural women at home for non-commercial purposes and derided work undertaken by both male Kashmiri migrants (already skilled at darning using the very stitch phulkari demanded) and urban women for commercial purposes, the embroidery had tended to occupy the rather bizarre position of being a marker of femininity despite the fact that men also acted as embroiderers, of being an authentic artefact of material culture completely ignoring its role as a commercial commodity, and of being the product of domestic leisure oblivious to patriarchal and economic forces which could force women into embroidering to earn money. Although traces of it remain, that worldview and its insistence on a single, debatable narrative was challenged soon enough: speaking of phulkari work as far back as 1911, Alma Latifi pointed out: "The patient needlewomen who make them must suit their market. It is impossible to live on unremunerated art and everybody, except the art connoisseur, will agree that it is better to be well fed yourself than merely interesting to well-meaning strangers,” with ‘strangers’ presumably including British proponents of cultural narratives who ignored commercial narratives.^[36]

Today, the fabric on which it is undertaken is rarely the khadi or thick cotton of yore nor is silk necessarily used for the embroidery itself as it once was. On the contrary, phulkari sarees (relatively new artefacts in themselves) tend to range from chiffon to silk, their colours are not always as vibrant as they once used to be, and they are often machine-stitched rather than being hand-embroidered. Many contemporary sarees would probably not be considered to be ‘traditional’ although the import of that term, which could be considered to be a Western conception born of a creationist or Platonic worldview which treats the world as being largely unchangeable and tends to freeze indigenous practices to what they were at the moment of first contact with Western peoples,^[37] could easily deny indigenous peoples dynamism and agency in their own lives particularly as they adapt to technological and social change, a thesis borne out by the colonial inclination to simply treat newer or ‘non-traditional’ forms of phulkari work as bastardised work.

Whatever the underlying philosophy may be, policing who actually belongs to a community or what qualifies as authentic art could easily take the form of insisting that, when it comes to sarees, production techniques and designs remain true to their roots, obliterating all possibility of their thriving as living traditions capable of evolution and creative response to changing contemporary environs.

Living Traditions

Sarees are, of course, easily available but that, by itself, means little. The handwoven sarees of yore were supplemented by sarees woven in bulk in powerlooms and mills decades ago, and the rejection of mill woven sarees was one of the prongs of action during the independence movement which steered women towards using khadi.

In independent India, there has been a push towards reinvigorating the handloom sector. Some traditional weaves, however, seem to have been either lost forever or revived in forms fundamentally different from what they once were. Baluchari sarees from Bengal which feature scenes ranging from those one might encounter in everyday life to those drawn from mythology and scripture, for example, once often displayed a different scene in every frame, narrating a story as a graphic novel might do; these frames were placed side-by-side within the end-pieces of the sarees. Although the frames remain, in their contemporary form, Baluchari sarees tend to repeat the same image in each frame, and it is said that the weavers no longer know how to weave the old designs.

Not all women can afford handloom sarees, not even those who weave them. The rot began to set in long before independence, likely when the textile industry began to shift towards mechanisation not just to weave cloth but to accomplish ancillary tasks; weaving had hitherto been a family activity in largely agrarian settings with women often handling tasks such as warping and spinning. With the use of machines, however, their labour was the first to be replaced.^[38] (It is perhaps unsurprising that, today, women involved in the weaving of intricate traditional sarees are themselves often photographed wearing inexpensive synthetic sarees.)

Further complicating weavers’ circumstances was a combination of colonial greed and indifference. By the fag end of 19th century, anticipating Gandhi, Fakir Mohan (a poet and social reformer) pointed out that weavers in Orissa had abandoned weaving to engage in wage labour.^[39] Many common people lived in poverty; the early 19th century saw land settlements through Regulation VII of 1822, increased indebtedness, dispossession, pauperisation, and government interest in issues like public health extending no farther than was necessary for administration.^[40] The poor made peace with their lot as best they could, encouraged to lay all at the feet of the Lord, sometimes supposedly with gratitude for being spared the burdens of wealth. Sambalpuri weavers, Pratima Panda pointed out, were inspired by the saint-poet Bhima Bhoi^[41] who wrote: “The twins of happiness and misery, bondage and freedom, are all your creation. [....] As for me, I would prefer to stay in hell forever, if that would save the world.”^[42] This is a pattern which has continued to be recognisable, and it is not only weavers who are affected by it.

Lifestyles were often guided by religion and philosophy and, even today, such beliefs and practices may underlie not just the weaving of sarees but encompass all aspects of their journey from design to sale; specific procedures which span laying the warp on the loom to determining when the loom should be ritually avoided may be followed all to enhance their auspiciousness. Once a saree is sold, it is considered to be old and impure; if at all it is taken back by a merchant, it will likely be kept aside and sold with a heavy discount possibly during the month of Ashadha or Aadi, coinciding with the beginning of the sun's journey South and considered inauspicious for ceremonies such as weddings, on the understanding that the saree is flawed in some way.^[43]

Commerce, however, occurs not only in the rarified environs of handloom emporia and well-established shops but also through unexpected channels with women making best of their circumstances, supported by spirituality and pragmatism. A story published by the Sahitya Akademi narrates how women in a village were sold sarees which, unbeknownst to them, had been taken off the dead by a hospital and piled up to be thrown away; a man saw a business opportunity in the pile and sold the sarees after washing them. He led his buyers to believe that they were castoffs from wealthy urban women who exchanged them for sundry household items. Although they weren't pleased when they learnt the truth, the women made peace with the practice (and the seller!) because they needed clothing.^[44]

The story may not be far from the truth; local markets often sell extraordinary sarees at throwaway prices, and it is probably best not to think too deeply about their provenance — many are damaged, and well worn treasures may be buried in piles of indifferent textiles. Given the condition in which they tend to be sold, the likelihood of their having been stolen is low. It is far more likely that they are indeed castoffs or, as is whispered in some markets, the clothes of the dead sold by their families, not quite as dark a tale as the story but one which can be unsettling nonetheless.

Debates have raged, primarily in upper-middle class milieus, about the authenticity and acceptability of powerloom sarees which some believe to threaten the handloom saree sector. There does not, however, appear to be clear evidence of this happening across the board. Many handloom sarees are inexpensive and are not considered to be ‘exclusive’; it is primarily at the upper end of the market that handloom sarees tend to be sold at higher prices than their counterparts woven using powerlooms. The markets for the two, however, may be quite different. Paithani sarees woven on powerlooms can be purchased for less than ten thousand rupees each while those woven on handlooms tend to cost about ten times as much, for example. The sarees are distinguishable and, in this case, there is no easily discernible reason to believe that a woman who would ordinarily buy a handloom saree would ‘settle’ for a powerloom one or that one who would ordinarily buy a powerloom saree would reach for a handloom one; personal budgets tend not to be quite so flexible.

However, it would be naïve to think that the proliferation of powerlooms has had no effect on the handloom sector. Powerlooms have tended to emerge through interaction with handlooms, and simple handloom designs can be woven using powerlooms.^[45] In Chirala, Andhra Pradesh, the weaving of Telia Rumal handkerchiefs used by labourers has been wiped out despite having been the area’s most prominent product in the 19th century. One of the causes has been the proliferation of powerlooms coupled with powerloom Telia Rumals woven elsewhere being passed off as handlooms in the export market; once this happened around 2000, weaving in Chirala immediately shifted to the production of jacquard sarees.^[46] That said, sarees featuring Telia Rumal designs continue to be made in Nalgonda, now in Telangana; such sarees were first made in the 1950s in Chirala and the know-how reached Nalgonda through a weaver who visited Chirala in the 1970s.

A similar situation is also seen in relation to the trend of reproducing the images created by intricate weaves in print. For example, it is possible to buy sarees with printed renditions of designs woven into double ikat Patan patola sarees quite easily. Double Ikat requires dying both the warp and the weft prior to their being woven together into cloth; the process is exacting and the sarees so woven can take months to be made. Unsurprisingly, an authentic double Ikat saree can cost a few hundred thousand rupees in the market while a printed saree with the ‘same’ design usually costs no more than a few hundred rupees. The difference in their workmanship is apparent at first glance to those who are even vaguely familiar with handloom sarees, and it is difficult to lend any credence to the suggestion that printed double Ikat dilutes the market for traditional, handwoven double Ikat not least because it appears that there are two entirely different sets of women buying the two different kinds of sarees.

Where confusion and market dilution can potentially occur is in relation to weaves which are not particularly expensive. For example, single Ikat often seen in Pochampally sarees, Sambalpuri sarees, and Rajkot patola sarees produces blurred designs which are often imitated in printed sarees. These sarees are sometimes sold for similar prices as authentic Ikat weaves. When the sales price of printed imitations is comparable to that of woven originals, it is hard to believe that there exists no intention to pass off printed lookalikes as authentic weaves. To an extent, certification trade marks like the Handloom Mark can help authenticate purported handlooms but it does not appear that the mark is always immediately recognised by lay consumers who would most benefit from it, and it is unclear whether adequate steps are taken to ensure that it is not inappropriately applied to products. Further, although there exist opportunities to use not only trade mark and geographical indications laws but also consumer protection laws to counter what may essentially be deceptive practices that rely on consumer ignorance, it is not immediately apparent what the best legal strategy would be or who should initiate legal proceedings.

Alongside questionable practices are those which simply represent the organic evolution of textiles often with the support of technology. The arts of nomadic tribes which are often printed or embroidered on to sarees tend to reflect the experiences and world views of artisans, for example. Rabari embroidery, often simply referred to as ‘Sindhi taka’ or ‘Kutchi embroidery’ in contemporary urban India, expresses a history closely tied to the women who embroider it; the Rabaris are believed to have fled to Sindh from Jaisalmer where the Sumras sheltered them for a time only to once again flee to Kutch where they sought refuge with the Samma Rajputs and have remained for several centuries. Legend has it that each exodus was due to rulers demanding a Rabari girl; while time has blurred those demands, it is known that the Delhi Sultanate conquered the Sumras in 1315 aligning with the chronology of legend. Although heritage Rabari motifs show clear traces of curvilinear motifs representing nature inherited from Mughal aesthetics through Mochis who were court embroiderers in Kutch since at least the 19th century, later Rabri motifs are more angular and reflect their changing circumstances: the royal elephant of yore could morph into a cupboard, consistent with a more settled lifestyle, while a cycle or aeroplane might be represented in an extremely abstract (and perhaps unrecognisable) form. The designs have often come to be outlined by those who have sewing machines, a time-saving device, and their ownership has tended to be communal rather than individual although how an outline is filled is likely to depend on an individual embroiderer. Traditional colour schemes too have occasionally been adapted to suit urban clientele, and it is possible to find entirely monochrome Rabari embroidery adorning sarees.^[47] Once again, these are innovations which conventional intellectual property laws are unequipped to deal with; if not anything else, intellectual property laws do not excel at protecting works or designs of any kind which not only do not have clearly attributable authorship but which also keep changing unpredictably in time and in space.

Public Interest as a Shield

On one hand, it is important that the law not interfere with the natural development of textile arts while, on the other, in an ideal world, it should be able to address the malafide misappropriation of those arts. It is reasonably clear that intellectual property laws are inadequate to simultaneously achieve both these ends by themselves. Or, indeed, either one of them.

The core issue seems to be one of identifying exactly what party one wants the law to take; the answer, if one were not partisan, would likely be: “to satisfy ‘public interest’ factoring in that entrepreneurship and, by extension, corporatisation play a role in public life and, therefore, in determining where public interest lies” regardless of one's own persuasions. Unfortunately, this immediately raises the problem of defining public interest which is infinitely complicated by the fact that there are no clear ‘right’ answers.

Focussing on temperament rather than on technicality, and drawing on conceptions of the social contract and the work of Rousseau, public interest would seem to align with the interests of all individuals' 'common good' (which tends to be a non-starter when it comes to intellectual property since universal consensus, understandably, does not exist) while Hobbes’ absolutist worldview appears to suggest, despite its emphasis on sovereignty, that public interest could align with the interests of the majority of individuals (ultimately leading, through a convoluted path, to the unreliable calculations of utilitarianism). Both these approaches lean towards objectivity and can trample on minorities and vulnerable sections of society, groups to which the constitution guarantees protection both through universal protection of the right to life and, in some cases, specific protections granted to communities or groups of individuals with reference to factors such as faith, sex, and caste. As such, drawing on the social contract to determine where public interest lies, particularly given that (as Carole Pateman pointed out) it is underlain by a sexual contract subordinating women, does not easily fall within the constitutional scheme of Indian law.

Leaving aside the possible impropriety of coalescing distinctly Western logic with the Indian ethos of life and law, an alternative approach to expressing public interest through law lies in Hegel’s philosophy (which suggests that the state facilitates the pursuit of individual interests while synthesising them into a coherent, ethical whole using its laws and institutions). There are indications that Hegel himself struggled to understand Indian philosophy, his Eurocentric and almost inarguably condescending view seeming to have been primarily through the lens of the Bhagavad Gita. Ironically, his philosophy nonetheless resonated in India. Although they appear to have been primarily influenced by other sources, Gandhi's ‘sarvodaya’ (the good of all) and ‘swarajya’ (self-rule), and Ambedkar’s understanding of fraternity (akin to Sittlichkeit tied to ethical life within society), liberties (facilitating individual choices within a legal framework prohibiting discrimination), and state-mandated equality (ensuring that liberty would not become a privilege of the powerful) gently echo Hegel in hindsight. All of these lines of thought ultimately came to form the warp of the Constitution of independent India most clearly seen in chapters dealing with the fundamental rights^[48] and duties^[49] of individuals, and the directive principles of state policy.^[50]

Pulling this conception of public interest into the realm of sarees would probably take the form of not merely providing intrinsic protections through intellectual property laws but also actively shielding sarees and those who engage with them as makers, merchants, or consumers from active illegitimate interference. Although, by Western standards, this may be seen as unjustifiable protectionism, it could be structured to avoid violating India's international obligations, not an impossible task especially since, internationally, there has been significant effort extended towards creating the means to protect indigenous and cultural artefacts. It would also mirror the mechanism through which Krishna once saved Draupadi. And, that being the case, it is a path India would probably be both culturally and constitutionally comfortable taking.

REFERENCES

[1] Rāẏa, Pratibhā. 1995. Yajnaseni: The Story of Draupadi. Rupa Publications India Pvt Limited. (Shakuni said to Karna, "The greatest offence a woman commits is to try to be learned. It is because she became wise and scholarly that her condition is thus! If she had grovelled at our feet and begged, perhaps she might have escaped such a gross insult. Just as knowledge and power enhance a man's attraction, similarly ignorance and helplessness increase the charm of a woman. However, Draupadi, strengthened by pride in her learning and wisdom, is like a burning tongue of flame. Can anyone have pity on her?”)

[2] Hegel’s conception of God was closer to ‘universal reason’ than to actual divinity.

[3] Hiltebeitel, Alf. “Draupadī’s Garments.” Indo-Iranian Journal 22, no. 2 (1980): 97–112.

[4] Mehendale, M. A. “Once Again ‘Draupadī’s Garments.’” Bulletin of the Deccan College Research Institute 50 (1990): 285–90.

[5] Dongerkery, Kamala. 1949. The Indian Sari. New Delhi, India: The All India Handicrafts Board, Ministry of Commerce and Industry, Government of India.

[6] Venniyoor, E M. J., Raja Ravi Varma. Trivandrum: Museums and Zoos and Art Gallery (1982) quoted in Hiltebeitel, Alf. “Empire, Invasion, and India’s National Epics.” International Journal of Hindu Studies 2, no. 3 (1998): 387–421.

[7] Ahmedabad Mirror, May 10, 2015 07:30 AM, UPDATED: Mar 29, 2021 03:38 PM. 2015. “Players of Dress-up.” https://www.ahmedabadmirror.com/players-of-dress-up/47218060.html.

[8] Shukla, Pravina. “Evaluating Saris: Social Tension and Aesthetic Complexity in the Textile of Modern India.” Western Folklore 67, no. 2/3 (2008): 163–78.

[9] It isn't entirely clear who King Vikramaditya may have been, not least because a number of kings in ancient India appear to have adopted ‘Vikramaditya’ as a title; ‘Vikram’ means ‘valour’ and ‘Aditya’ means ‘sun’.

[10] 1999 Trade Marks Act, Section 2(zb).

[11] https://byloomonline.com

[12] https://www.fabindia.com

[13] https://suta.in

[14] https://www.taneira.com

[15] 1999 Trade Marks Act, Section 2(e).

[16] https://silkmarkindia.com/index.php/smoi/

[17] 1957 Copyright Act, Section 2(c). An “artistic work” means: ‘(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) a work of architecture; and (iii) any other work of artistic craftsmanship.

[18] 1957 Copyright Act, Section 13(1)(a).

[19] Assamese women traditionally wear a two-piece set called a mekhala sador which looks similar to a saree from a distance. However, in response to market demands, Assamese weavers have also begun to make sarees in increasingly large numbers over the last few decades. The same designs which are woven into mekhala sadors are woven into sarees.

[20] 1957 Copyright Act, Section 15(2).

[21] 2000 Designs Act, Section 4.

[22] 2000 Designs Act, Section 2(g).

[23] The 2000 Designs Act uses the term ‘copyright in a design’ to refer to the protection it offers; the term has not been used in this text to avoid confusion with copyright protection under the 1957 Copyright Act. Instead, this text simply refers to designs protection.

[24] This article refers to the Indian Patents Act, 1970, as amended up to 1 October 2025 and accessible at https://www.indiacode.nic.in/bitstream/123456789/1392/1/A1970-39.pdf

[25] Indian Patents Act (1970}, Sections 2(j), (ja), and (ja) which, read together, stipulate that an ‘invention’ means a new product or process which is ‘capable of being made or used in an industry’ and incorporates an inventive step (meaning a feature involves ‘technical advance’ in comparison to existing knowledge or having ‘economic significance’ or both in a way which keeps the invention itself from being obvious to ‘a person skilled in the art’). Further, Section 2(l) defines a ‘new invention’ as ‘any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art’.

[26] e.g. Application no. 202521100394, Composition and Method for Textile Finishing dated 16 October 2025; Application no. 202441034239, Diversification of Natural Dyed Silk Sari with Innovative Finishes dated 30 April 2024

[27] e.g. Application no. 202241073573, Programmable Electronic Jacquard Machine for Complex Designs in Handloom Sector dated 19 December 2022; Application no. 202221071026, Workstation for Handmade Saree Painting Task dated 9 December 2022

[28] e.g. Application no. 202441088979, Mini Saree Pleating Machine dated 18 November 2024; Application no. 202411022824, Automated Saree Draping Device dated 23 March 2024; Application no. 202341074199, A Modular Apparel dated 30 November 2023

[29] “Dyes from Coal Tar Products.” Scientific American 13, no. 39 (1858): 308–308.

[30] Moser, Petra. “Innovation without Patents: Evidence from World’s Fairs.” The Journal of Law & Economics 55, no. 1 (2012): 43–74.

[31] Roy, Tirthankar. “Acceptance of Innovations in Early Twentieth-Century Indian Weaving.” The Economic History Review 55, no. 3 (2002): 507–32.

[32] Indian Patents Act (1970}, Section 3(l).

[33] e.g. Application no. 202441034876, Kalakshetra Muttukattam Silk Saree dated 2 May 2024

[34] 1957 Copyright Act, Section 2(d).

[35] 1957 Copyright Act, Section 2(z).

[36] Maskiell, Michelle. “Embroidering the Past: Phulkari Textiles and Gendered Work as ‘Tradition’ and ‘Heritage’ in Colonial and Contemporary Punjab.” The Journal of Asian Studies 58, no. 2 (1999): 361–88.

[37] Pierotti, Raymond. “World Views and the Concept of ‘Traditional.’” Ethnobiology Letters 9, no. 2 (2018): 299–304.

[38] Wendt, Ian C. “Four Centuries of Decline?: Understanding the Changing Structure of the South Indian Textile Industry.” In How India Clothed the World: The World of South Asian Textiles, 1500-1850, edited by Giorgio Riello and Tirthankar Roy, 193–216. Brill, 2009.

[39] Satpathy, Sumanyu. “Gandhi before Gandhi: Two Little Prehistories of the Great Soul.” Economic and Political Weekly 49, no. 30 (2014): 171–81.

[40] DAS, BINOD S. “Orissa’s Economy in the Nineteenth Century.” Social Scientist 4, no. 11 (1976): 32–46.

[41] Panda, Pratima. “Sambalpuri Textile of Odisha: An Emblem of Unity in Diversity.” Proceedings of the Indian History Congress 82 (2023): 1371–78.

[42] Mahapatra, Sitakant. (1983) 2017. Bhima Bhoi. Sahitya Akademi.

[43] Kawlra, Aarti. “Kanchipuram Sari: Design for Auspiciousness.” Design Issues 21, no. 4 (2005): 54–67. (Kawlra discusses this phenomenon with reference to the Padma Saliyar community in Tamil Nadu which weaves Kanchipuram sarees using the Korvai technique that embodies the integration of opposites.)

[44] Narasimhan, Usha, and Preethi Narasimhan. “Saree.” Indian Literature 66, no. 3 (329) (2022): 16–22.

[45] Roy, Tirthankar. “Development or Distortion? ‘Powerlooms’ in India, 1950-1997.” Economic and Political Weekly 33, no. 16 (1998): 897–911.

[46] Niranjana, Seemanthini. “Thinking with Handlooms: Perspectives from Andhra Pradesh.” Economic and Political Weekly 39, no. 6 (2004): 553–63.

[47] See: Frater, Judy. “When Parrots Transform to Bikes: Social Change Reflected in Rabari Embroidery Motifs.” Nomadic Peoples 3, no. 1 (1999): 31–49. (The information in this paragraph is drawn both from Frater and the author's own interaction with Rabari embroiderers.)

[48] Constitution of India, Chapter III.

[49] Constitution of India, Chapter IV-A. (This chapter was a later addition into the constitution, introduced only in the 1970s long after Ambedkar's death in 1956. However, it does not disrupt the underlying warp of the constitution.)

[50] Constitution of India, Chapter IV.

This post is by Nandita Saikia and was first published at IN Content Law.

Indian Copyright Law: A Primer

noreply@blogger.com (Unknown) — Thu, 09 Oct 2025 19:31:00 +0000

Indian Copyright Law: A Primer

v1.1

Note

This document intends to provide a very quick introduction to Indian copyright law.

It is geared towards focusing on those aspects of the Indian Copyright Act, 1957, which are most closely associated with GenAI, and does not provide an overview of the statute as a whole. Instead, it aims to help elucidate, in basic terms, the legal framework through which the possibility of GenAI infringing copyright is understood at the points of: content input, data processing, and output generation.

It does not comment on any of these issues itself and merely provides background information which could help facilitate discussion. In doing so, it streamlines legal explanations, distills the Indian copyright statute, (over)simplifies statutory caveats, and sacrifices nuance in the service of brevity and what one hopes is clarity.

The document cannot and should not be relied on for any purpose other than to help develop an extremely rough sense of Indian copyright law. It definitely does not contain any professional advice, and its contents should not be construed as such. It may not be accurate or fit for any purpose; it is only indicative in nature and no action should be committed or omitted on the basis of its contents.

It has been made publicly available only to facilitate academic discussion at the bridge between law and technology. Please feel free to distribute it provided this note is included in its entirety.

— Nandita Saikia, 2025

What does copyright protect?

Copyright protects the expression of ideas in certain types of content. It does not protect ideas alone. This is known as the idea-expression dichotomy, and is one of the fundamental principles of copyright law.

So, for example, if a group of people vacationing together were to write letters to family back home describing their holiday, there would be no copyright in the idea of such write-ups. Copyright would potentially subsist only in the text of each letter, i.e. the actual expression of the idea of narrating how the holiday was unfolding.

As long as the letters were written by their authors without copying text from each other or elsewhere, it would not matter if each letter contained similar themes (as such letters probably would if their authors undertook the same activities). This is because the doctrine of independent creation would come into play: a legal principle which enables independently-created works to be protected by copyright.

By ‘works’, copyright law means not just letters but also other forms of content which can potentially be protected by copyright. Under the law, the term ‘works’ includes:

Literary works such as books, pamphlets, and magazines,
Dramatic, musical, and artistic works including photographs,
Films and sound recordings, and
Artistic architectural works.

The law also recognises that some ideas must necessarily be expressed similarly and accounts for this through legal principles such as the scènes à faire doctrine and merger doctrine which ensure that standard or inescapable expressions of ideas in works cannot be monopolised by anyone.

All of this put together generally tends to enable copyrightable works (i.e., independently-created contemporary works which, depending on their form, are original or have not been copied) to enjoy legal protection.

…but what is copyright?

Copyright is a bundle of rights which subsists in works. Depending on the form of the works in question, it could include the rights to:

reproduce, translate or adapt works,
perform works in public or communicate them to the public,
include works in films or sound recordings, and
do the acts listed above in relation to translations and adaptations of works too.

The moment protectable works are created, copyright subsists in them. Copyright need not be registered although registration is possible and may be recommended especially to help prove who owns it.

How long does copyright last?

Usually, copyright lasts for 60 years after the death of a work’s author(s) or for 60 years after its publication depending on its form and publication status. The time during which copyright is ‘active’ is known as the term of copyright.

Works which are not protected by copyright are considered to be in the public domain — this is what copyright law means by the public domain.

Works do not enter the public domain merely because they can be accessed by the public. On the contrary, works enter the public domain in three main ways:

if they cannot be protected by copyright (perhaps because of not being original or meeting other criteria for copyrightability),
because their copyright has expired, or
because their owners have relinquished copyright and left them in the public domain.

Who owns copyright?

Assuming works are copyrightable, the first owners of the copyright in them are usually their authors, as defined by the Indian Copyright Act.

However, the simplistic definitions in the statute (such as ‘the author of a musical work is its composer’) tend to fall apart in the face of AI which can play roles of varying importance in the process of having content come into being. So far, solutions to this problem remain unclear.

The statute also recognises that sometimes authors are not the first owners of the copyright in the works they create, e.g.:

those who commission certain works may own the copyright in them,
employers may own the copyright in their employees’ works,
end-users who rely on software or AI, to whatever extent, to create works may find that the software’s terms of service / EULAs could play a role in determining ownership.

Issues of ownership tend to be determined by a mixture of what the law says and what the people involved agree between themselves.

Why does ownership matter?

Those who own the copyright in works and those authorised by copyright owners, may undertake the acts in the ‘copyright bundle’ in relation to the works they have rights in. They can also often prevent others from doing the same.

If unauthorised persons undertake the acts in the copyright bundle (such as publishing protected works) without due authorisation during the term of copyright, copyright infringement is usually said to occur. Infringement is both a civil wrong and a criminal offence and can attract significant penalties.

How does one get authorisation to enjoy copyright?

Persons who are not copyright owners can undertake actions in the copyright bundle by having the copyright in the relevant work transferred to themselves through an assignment or by getting due authorisation through a licence.

Assignments tend to be negotiated by the parties involved while licences may be negotiated by parties or, in some cases, be enabled by the copyright statute through statutory and compulsory licences.

Further, grants of rights (i.e., assignments and licences) may be partial or total. For example:

they may be for a limited time or till copyright expires, or
they may be for specific territories or worldwide.

Also, there are additional statutory provisions which limit how works which are used in films and recorded music such as scripts and lyrics may be dealt with. These additional provisions (often referred to as the Bollywood Amendments) are designed to protect individual authors from powerful players in the entertainment industry, and were introduced to Indian copyright law in 2012.

However rights are split up and whatever form grants of rights take, the formalities laid down by the law, such as the necessity of licences being written, must be complied with.

Does the Indian Copyright Act only deal with copyright?

In addition to copyright, the Indian copyright statute also deals with neighbouring rights and allied issues such as technological protection measures, rights management information, broadcast reproduction rights, the performer’s right which grants performers a right in their performances akin to copyright granted to authors, and the moral rights of authors and performers which, in essence, enable them to claim credit for their works and performances and to the prevent denigration of the same.

Can copyright be legally enjoyed without due authorisation?

Indian statutory law does not explicitly speak of fair use. However, it lists a number of specific acts which it considers to be exceptions to copyright infringement. The bulk of these exceptions allow the use of copyrighted works without licences for the purposes of:

research, review, and reportage,
facilitating educational activity,
ensuring access to law, and
performing certain religious and cultural activities.

Not all acts are allowed to be undertaken for these purposes without due authorisation during the term of copyright — only those acts which are recognised by the law and listed in Section 52 of the 1957 Indian Copyright Act are allowed.

Although the Indian copyright statute does not mention ‘fair use’, one of its clauses allows ‘fair dealing’ with protected works in certain specific circumstances, and Indian courts have often referred to ‘fair use’ as contemplated by US copyright law to analyse what may constitute ‘fair dealing’ in the Indian context. Fair dealing is a narrower concept than fair use, and the two are not fungible.

Just as copyright can be enjoyed without due authorisation in specific circumstances, other rights contemplated by the Indian copyright statute (such as the performer's right) may also sometimes be dealt with without due authorisation in very limited sets of circumstances.

Personality Rights: The Battle for the Self

noreply@blogger.com (Unknown) — Fri, 12 Sep 2025 13:38:00 +0000

. an overview of personality rights law in India weaving together thoughts on law, technology, culture and enforcement mechanisms

Draft 1.1 (12 September 2025)

(A demonstration of the dulcimer player, an 18th century automaton, said to feature Marie Antoinette; Source: https://youtu.be/nITEU4fsqCU)

The Inanimate and the Fantastic

Sometimes anthropomorphic, at other times, decidedly not, automata have long been a source of unease to humans: they have straddled the line between the animate and the inanimate, between human beings and machines, never quite one or the other in myth, in history which may as well be myth, and increasingly, in what we believe to be ‘real’ life not so much through the mechanical automata of yore but through what could be considered to be their contemporary digital counterparts: deepfakes, intangible and deceptive.

Automata were used as gifts to the powerful not least during the Enlightenment, perhaps reminding recipients that those who presented them possessed considerable skill and were not powerless themselves. In doing so, they interacted with hierarchies of social power: dismantling them, reinforcing them, rejuvenating them, and even creating them. Often seemingly benign and charming, and perhaps intended to be just so by their makers and to their contemporaries, for better or worse, retrospection allows automata to be placed in historical contexts which may tend to consider them to be tangible exhibits of the social and cultural anxieties of their times — in hindsight, it is not especially surprising to learn that Marie Antoinette was presented (albeit not by French revolutionaries, and in circumstances which were anything but revolutionary) a spectacular automaton of a lady playing music, ostensibly herself, a few years before she was beheaded in the throes of the regime-changing French revolution.

The history of automata is often murky and ambiguous. We aren't sure who or what the golden maidens who helped Vulcan, the lame god, were: automata, perhaps, or merely dynamic engravings on armour; Homer’s words, passed down to us, are open to interpretation. We know of the belief in the oracles of the ancient world which sometimes lingers on but not always of the mechanics of their speech, of priests and speaking tubes possibly having facilitated the rendition of their prophecies. We study how automata eked their way into the arts from at least the time of the Renaissance (as references to speaking heads and the elaborate theatre props of the time indicate) and have experienced how, in what must have once been an astonishing reversal, the animate has come to emulate the inanimate not just in the arts but in everyday life. Synchronised dances performed by troupes such as the Tiller Girls and those incorporated into ballets like Swan Lake demonstrate how thin the line between automata and human beings can be as do, in contexts with little claim to aesthetics, the routines of factory workers set to repetitive, unthinking work.

Tools of Capital, Subjects of Free Will

Human beings, except perhaps for the most privileged, were arguably reshaped into automata in service of capital and to realise the dreams of what was to become the industrial age. While it is impossible to argue that large numbers of people, particularly in the global South, are still treated as automata, the self is no longer merely transformed in physical form between the animate individual and the inanimate automaton in the public sphere: it is fragmented into infinitely reproducible virtual components of voice and likeness.

Thankfully, we do not yet have to deal with human clones off the written page. Still, what we must contend with is not the mere fragmentation of mind and personality, whether trauma-induced dissociation or the bifurcation of public and private ‘face’ prompted by supposedly good manners, which we have always known, but a stripping down of our identities into fundamental constituent elements all too often followed by reproduction and monetization of those elements not necessarily with our consent.

Entirely unsurprisingly, the piecemeal dismantling, reconstitution, reproduction and sale of our identities now often used to create the virtual counterparts of automata and ventriloquists’ dummies, never quite dissociated from us and sometimes going so far as to masquerade as us, is cause for considerable consternation. Not only do these practices have the potential to create disinformation at hitherto unseen scales in public life, as when artificially-generated images based on components of individuals’ identities are used to create political content, but also to upend private life when, for example, such images are used to portray explicit encounters which never occurred in real life. They are potentially tools of crime and fascism. They are also potentially tools of benign entertainment and instruction in educational settings. And we are forced to strike a balance between the benign and malign, between permissible free speech about us and unjustifiable abuse of facets of our identities. ‘If it were held otherwise, an entire genre of expression would be unavailable to the general public’¹ with caricature, lampooning and parody simply being excised from our linguistic florilegia by law.

The technology being used to recreate human beings in virtual forms, often as composites of real and imagined individuals indistinguishable from recognisable people, is amoral. Like most technologies, it does not, by itself, architect to create unjustifiable or illegal upheaval in either public or private spheres but the ease with which it can be used to do so has meant that the law has desperately tried to regulate both the technology itself and its use. One of the primary mechanisms through which it has aimed to protect real human beings has been by dragging intellectual property and tort laws into the 21^st century through personality rights first formulated long before the digital age.

Rights to Images of the Self

A network of rights culled from constitutional law,² statutory law, and tort law protect so-called personality rights by protecting individuals and aspects of their personalities directly (partly through constitutional law which protects individuals’ privacy), by protecting content drawn from individuals’ personalities (primarily through intellectual property laws in the context of personality rights although other content laws regulating free speech also apply to such content), and by protecting individuals against unfair practices conducted by using aspects of their personalities (through data protection, competition, and consumer protection laws). Tort law, entwined along other branches of law, tends to complement the rights constitutional law and statutory laws grant individuals; tort law recognises the right to privacy, the right of publicity, the right not be cast in a false light, the right not to have content incorrectly be passed off as being associated with one. It also helps fill in gaps in statutory law: for example, statutory Indian copyright law does not explicitly recognise the right against misattribution as a moral right but it is possible to attempt to assert such a right through tort law.

Together, the laws which protect personality rights provide de jure, if not de facto, legal assurance of individuals' privacy and their right to be left alone on one hand and, on the other hand, facilitate individuals’ right of publicity by enabling them to share chosen aspects of themselves while curtailing others from doing so.

The choice of which aspects of individuals’ identities and (private) lives may be publicly shared belongs to individuals themselves although extremely broad exceptions to this general rule exist particularly to facilitate reportage featuring public figures. One of the ‘burdens of public office’ is that it is ‘difficult to segregate the private life of the public figures from their public life’, as the High Court of Delhi recognised in relation to Maneka Gandhi.³

Thus, individuals who are not public figures tend to have a greater right to privacy than those who are public figures or who thrust themselves into the public eye, and, conversely, well-known individuals tend to have a greater or, at any rate, more-frequently asserted right of publicity than others which enables them to control the commercialisation of their identities and portrayals of their lives.

The law does not require individuals' consent to always be obtained for either components of their identities or portrayals of their lives to be used to synthesize and publicize content featuring them as a whole or through isolated components alone and, even if consent is obtained, that consent may not be adequate to legally justify such acts.⁴ The key to legal justifiability may lie in the perception generated by the content and in the possibility of the occurrence of unjust enrichment at the expense of the individual whose life and likeness has been used.

To an extent, disclaimers distancing content from specific individuals may help mitigate legal exposure provided that they are not misleading⁵ ‘else, law would be lending its imprimatur to fraud, and no less’ as the High Court of Delhi put it while pointing out that none of the decisions placed before it in a case pertaining to a film depicting the life of an actor ‘postulates, as a principle of law, that the insertion of a disclaimer, disclaiming relationship between the events and characters depicted in the film and real persons would suffice to negate the possibility of any such connection or relationship existing’.⁶ As a starting point, this position makes sense. However, generative artificial intelligence has significantly reshaped the landscape in which personality rights are protected, asserted, and contested.

Identifying Synthetic Content

Personality rights largely arose in relation to portrayals of individuals and their lives in a time before specific aspects of an individual's personality could easily be digitally isolated and mashed together with the fantastical. While the law does not generally require the insertion of disclaimers elucidating the nature of content which portrays individuals, such disclaimers may be demanded of content publishers, inter alia, under Rule 12(5)(c) of the 2021 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules and, in the case of films, by the Central Board of Film Certification. While most disclaimers tend to focus on highlighting the fact that the content to which it is appended is not an accurate portrayal of real life, it has become prudent to mark synthetic content (created or generated by or with the support of artificial intelligence) as such in a manner which is discernible by the content’s potential audience.

An advisory issued by MEITY in March 2024⁷ required the possibility of the ‘inherent fallibility’ of AI and the possible ‘unreliability’ of its output be appropriately labelled in cases where the AI was undertested or unreliable (without specifying what sort of testing would be considered adequate or whether the labelling should be visible to only the users of the AI or to viewers of its output as well). Still, it appears that labelling the output of AI would allay some of the ethical concerns raised by the uncertain sources of the output of generative AI as well as future-proof the content itself should legislators and policymakers later mandate such labelling.

For now, the focus of policymakers seems to have been on identifying bad faith actors when necessary rather than on regulating the receipt and perception of synthetic speech and content: under MEITY’s March 2024 advisory, for example, deepfakes and other synthetic content should be ‘labeled or embedded with permanent unique metadata or identifier’ in cases where intermediaries permit content synthesis using their software or computer resources, and users avail of these facilities to synthesize content which could be used as misinformation or deepfakes.

Further, despite this regulatory lacuna, the 2016 Rights of Persons with Disabilities Act requires government websites and other online content to be accessible via Sections 40 and 46 respectively buttressed, in some cases, by an advisory issued by the Ministry of Information & Broadcasting in April 2025,⁸ which would, if the requirements of the provisions were to be implemented, likely lead a significant fraction of online content, synthetic or not, to interact with artificial intelligence if only to enhance accessibility by automatically generating subtitles, describing the content of pictures in text (a task at which AI has not been known to excel), and the like. And that being the case, it is likely that a time when it becomes necessary to label synthetic content for what it is will not be far off.

Contending with Synthetic Content

For the most part, legal discussion of the infringement of personality rights facilitated by artificial intelligence tends to take the form of exploring how the rights of celebrities may be protected; the discourse appears to be primarily driven not by abstruse academics but by commercial expedience. Celebrities, after all, form the section of society whose personality rights are most likely to be asserted either by themselves or by corporate entities acting with regard to them not just because celebrities’ livelihoods and corporate profits are closely tied to monetising those rights but also simply because they are amongst the few who can afford to initiate legal processes for purposes that are not always, in some way, existential.⁹

Court cases related to personality rights, too, tend to involve celebrities¹⁰ with the result that jurisprudence pertaining to the concerns of people who are not public figures is not as well developed even though they may also suffer egregious harms through the violation of personality rights whether by being targetted by scammers impersonating their relatives to extract money from them, by having disgruntled former partners distribute synthetic ‘revenge’ porn in which they ostensibly feature or in other ways which cause significant distress.

In some circumstances, it may be possible to counter the distribution of synthetic content in violation of personality rights by invoking formal legal processes which do not (immediately) refer to courts through mechanisms set up by sui generis statutes such as those pertaining to consumer protection and, possibly, data protection.

The 2019 Consumer Protection Act, for example, recognises the rights of consumers to be protected from unfair trade practices¹¹ which it defines as the adoption of unfair methods and deceptive practices to promote the sale, use or supply of goods or provision of services¹² (including by the issue of misleading advertisements¹³) as well as to seek redressal against both unfair or restrictive trade practices and unscrupulous exploitation.¹⁴ The statute contemplates the establishment of a Central Consumer Protection Authority to ‘regulate matters relating to violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of public and consumer’¹⁵ and sets up a three-tiered dispute regulation mechanism at district, state, and national levels as well. Further, although it supplements rather than derogates from other laws,¹⁶ the 2019 Consumer Protection Act permits competent courts to take cognizance of certain offences such as those pertaining to misleading advertisements and punishable with imprisonment and fines under Section 89¹⁷ only if a complaint is filed by the Central Consumer Protection Authority or a duly authorised officer.¹⁸

For the most part, however, the enforcement of personality rights is through courts which tend to interpret traditional intellectual property laws in purposive and, occasionally, novel ways to meet the challenges presented by artificial intelligence. In legal discourse too, conversations about the legitimacy of generative artificial intelligence tend to understandably harken back to fundamental concepts such as the idea-expression dichotomy of copyright law, and to split hairs between goodwill and reputation with reference to trade mark law — these concepts form the basis of our understanding of what is legally permissible. However, there has been recognition of the fact that this may be inadequate, and there have also been whispers of pursuing approaches hitherto untried in India such as granting individuals intellectual property rights in facets of their own identities such as copyright in their faces; this is an approach which it appears Denmark has been experimenting with.

The Inadequacies of the Current System

It is not just celebrities who are adversely affected by the violation of their personality rights. The ease with which those rights can now be violated using synthetic content makes everyone vulnerable to abuse and exploitation, and while our jurisprudence appears to be developing along lines one might hope for, our enforcement mechanisms lag far behind.

The transmogrification of the self venturing into the realm of the inanimate is not a new problem; we've seen it manifest itself repeatedly through history with personality and being misappropriated and identity being a plaything of power. What's new about the problem we now face is one of scale and spectrum: in its newest avatar, brought into being with the support of artificial intelligence, the consequences of synthetic content being publicly distributed are potentially swift, devastating, and irreversible. We do not currently have adequate legal mechanisms capable of matching its swiftness or efficiency to counter it, and the need of the hour is to create such mechanisms.

The violation of personality rights is not merely a commercial issue which affects companies and celebrities. On the contrary, it has become a fight to retain the integrity of the self. It is a fight which, to a greater or lesser extent, affects all individuals in the face of what has effectively become an endless stream of potential threats from scammers to malcontent acquaintances, all of whom have the capabilities of generative artificial intelligence available to them at the press of a button.

NOTES

[1] High Court of Delhi CS (OS) 893/2002 on 29 April 2010, DM Entertainment Pvt. Ltd. v Baby Gift House, MANU/DE/2043/2010 http://student.manupatra.com/Academic/Studentmodules/Judgments/2022/June/MANU_DE_2043_2010.pdf. (Nothing prevents content laws such as those pertaining to defamation, the maintainance of societal harmony, etc. from being invoked against synthetic content perceived to be malign.)

[2] Supreme Court of India 1994 SCC (6) 632 on 7 October 1994, R Rajagopal v. State of Tamil Nadu, https://indiankanoon.org/doc/501107/; SAIKIA, NANDITA, Business Standard on 25 August 2017, SC's Right to Privacy ruling does more for Indians than we had hoped for, https://www.business-standard.com/article/economy-policy/sc-s-right-to-privacy-ruling-to-benefit-indians-more-than-we-hoped-for-117082500450_1.html (re Supreme Court of India Writ Petition (Civil) 494 of 2012 on 24 August 2017, Justice K S Puttaswamy (Retd.) v. Union of India, https://api.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf)

[3] High Court of Delhi AIR 2002 DELHI 58 on 18 September 2001, Khushwant Singh v. Maneka Gandhi, https://indiankanoon.org/doc/1203848/

[4] High Court of Delhi 57(1995)DLT154 on 1 December 1994, Phoolan Devi v. Shekhar Kapoor, https://indiankanoon.org/doc/793946/ although the receipt of consent may significantly diminish an individual's ability to successfully make a claim against the publication of content which features them; Also see: High Court of Madras O.A. 417 of 2011 and Application 2570 of 2011 in C.S. 326 of 2011 on 27 August 2012, Selvi J Jayalalithaa v. Penguin Books India, https://indiankanoon.org/doc/26686171/

[5] See: Supreme Court of India Writ Petition (Civil) 36/2018 on 26 March 2018, Viacom 18 Media Private Limited vs Union Of India, https://indiankanoon.org/doc/69899441/; High Court of Madras O.S.A. 75 of 2020 and C.M.P. 2945, 2946 and 9240 of 2020 on 16 April 2021, Deepa Jayakumar v. A L Vijay, https://indiankanoon.org/doc/9075307/

[6] High Court of Delhi CS(COMM) 187/2021, I.A. 10551/2021 & I.A. 14436/2021 on 11 July 2023, Krishna Kishore Singh v. Sarla A Saraogi, https://indiankanoon.org/doc/71066966/

[7] Ministry of Electronics and Information Technology, eNo.2(4)/2023-CyberLaws-3 dated 15 March 2024: Due diligence by Intermediaries / Platforms under the Information

Technology Act, 2000 and Information Technology (Intermediary

Guidelines and Digital Media Ethics Code) Rules, 2021, https://web.archive.org/web/20240406133511if_/https://www.meity.gov.in/writereaddata/files/Advisory%2015March%202024.pdf

[8] Ministry of Information & Broadcasting, No. DM/5/2025-DM dated 22 April 2025, Advisory on adherence of Indian Laws and the Code of Ethics prescribed under the Information Technology (Intermediary Guidelines and Digital Media, Ethics Code) Rules, 2021 - reg., https://web.archive.org/web/20250507001649if_/http://www.mib.gov.in/sites/default/files/2025-04/advisory-dated-22.04.2025-1.pdf

[9] See, e.g.: (1) High Court of Delhi CS (OS) 893/2002 on 29 April 2010, DM Entertainment Pvt. Ltd. v Baby Gift House, MANU/DE/2043/2010 http://student.manupatra.com/Academic/Studentmodules/Judgments/2022/June/MANU_DE_2043_2010.pdf; (2) High Court of Delhi CS(OS) No.2662/2011 on 26 April 2012, Titan Industries Ltd. v. Ramkumar Jewellers, https://indiankanoon.org/doc/181125261/; (3) High Court of Madras Application 735 of 2014 and Civil Suit 598 of 2014 on 3 February 2015, Shivaji Rao Gaikwad alias Rajinikanth) v. Varsha Productions, https://indiankanoon.org/doc/26058025/; (4) High Court of Bombay Interim Application (L) 17865 OF 2024 in COMM IPR SUIT (L) 17863 of 2024 on 7 March 2025, Karan Johar v. India Pride Advisory Private Ltd., https://www.livelaw.in/pdf_upload/karan-johar-vs-india-pride-advisory-private-ltd-590255.pdf

[10] See, e.g.: (1) High Court of Delhi CS(COMM) 652/2023 and I.A. 18237/2023-18243/2023 on 20 September 2023, Anil Kapoor vs Simply Life India, https://indiankanoon.org/doc/113724486/; (2) High Court of Delhi CS(COMM) 389/2024 on 14 May 2024, Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Peppy Store, https://indiankanoon.org/doc/192161932/; (3) High Court of Bombay Interim Application (L) 23560 of 2024 in COM IPR SUIT (L) 23443 of 2024 on 26 July 2024, Arijit Singh v. Codible Ventures LLP, https://indiankanoon.org/doc/103091928/; (4) High Court of Delhi CS(COMM) 828/2024, I.A. 40391/2024, I.A. 40392/2024, I.A. 40393/2024, I.A. 40394/2024, I.A. 40395/2024 & I.A. 40396/2024 on 1 October 2024, Manchu Vishnu Vardhan Babu alias Vishnu Manchu v. Arebumdum, https://indiankanoon.org/doc/115544225/; (5) High Court of Delhi CS(COMM) 1053/2024 & I.A. Nos. 46360/2024, 46361/2024, 46362/2024, 46363/2024, 46364/2024 & 46365/2024 on 28 November 2024, Dr Devi Prasad Shetty v. Medicine Me, https://images.assettype.com/barandbench/2024-12-02/dkbh5704/Dr_Devi_Prasad_Shetty_Vs_Medical_Me.pdf; (6) High Court of Delhi CS(COMM) 514/2025 with I.A. 13419/2025, I.A. 13420/2025, I.A. 13421/2025, I.A. 13422/2025, I.A. 13423/2025, I.A. 13424/2025 & I.A. 13425/2025 on 26 May 2025, Ankur Warikoo v. John Doe, https://www.livelaw.in/pdf_upload/highcourtorder-601919.pdf; (7) High Court of Delhi CS(COMM) 578/2025 on 30 May 2025, Sadhguru Jagadish Vasudev v. Igor Isakov, https://images.assettype.com/barandbench/2025-06-02/urxxbv0x/_Sadhguru_Jagadish_Vasudev___Anr_V__Igor_Isakov___Ors_.pdf; (8) High Court of Delhi CS(COMM) 956/2025 on 9 September 2025, Aishwarya Rai Bachchan v. aishwaryaworld.com, https://images.assettype.com/barandbench/2025-09-11/2o7mije7/Aishwarya_Rai_Bachchan_V_S_Aishwaryaworld_Com___Ors_.pdf

[11] Section 2(9)(ii), 2019 Consumer Protection Act, India.

[12] Section 2(47), 2019 Consumer Protection Act, India.

[13] Section 2(28), 2019 Consumer Protection Act, India.

[14] Section 2(9)(v), 2019 Consumer Protection Act, India.

[15] Section 10(i), 2019 Consumer Protection Act, India.

[16] Section 100, 2019 Consumer Protection Act, India.

[17] “Any manufacturer or service provider who causes a false or misleading advertisement to be made which is prejudicial to the interest of consumers shall be punished with imprisonment for a term which may extend to two years and with fine which may extend to ten lakh rupees; and for every subsequent offence, be punished with imprisonment for a term which may extend to five years and with fine which may extend to fifty lakh rupees.”

[18] Section 92, 2019 Consumer Protection Act, India.

This post is by Nandita Saikia and was first published at IN Content Law.

First impressions: The Draft National Telecom Policy, 2025

noreply@blogger.com (Unknown) — Fri, 25 Jul 2025 13:40:00 +0000

grand plans (not always well thought through), not enough by way of inclusivity, the prioritisation of industry, and a disturbing lack of attention to the risks posed by AI

(10 points quickly jotted down based on a copy of the recently-released Draft National Telecom Policy shared with me; the draft policy is available online too)

1. Although one wouldn't expect this to be in the policy, it's remarkable that one rarely hears talk of basic literacy without which access to digital anything is difficult. There's also no specific mention of enhancing access to the digital world, so to speak, for people with disabilities.

2. The policy seems to cobble together terms which aren't necessarily meaningful in conjunction with the words near it but which sound as though they're at the cutting edge of technology; the oft referenced ‘quantum’ seems to be a favourite.

e.g. the aim to "Strengthen the security by adopting quantum resistant cryptography" — what's being strengthened exactly and how?

3. Surely, having everyone complain is not how the non-functionality of systems should ideally be assessed?

re “Formulate stringent QoS parameters for network availability (wireless/wireline), Broadband (wireline) service and customer services, focusing on Quality of Experience (QoE) and utilizing crowd-sourced data” reiterated with “Review QoS benchmarks emphasizing Quality of Experience (QoE) and real user data”

Also, there are such systems in place to detect network outages. They require a significant number of complaints to be made to be meaningful — those complaints are not always made and there's no mention of a plan to modify user behaviour in this regard.

4. That said, as optimistic and upbeat as the document is, it doesn't simply build castles in the air. Talk of satellite networks is, e.g., backed up by talk of securing orbital slots.

5. It's not at all clear why the goal to “Encourage low-latency communications for industrial applications” should be restricted to industrial applications in general rather than to sectors critical to the public.

6. If one were to “Create an innovation centric section 8 company” per a stated goal for 2030 — never mind why… What would such a company actually do?

7. Other goals are astonishing. An oblique reference to the ISM band in the goals for 2030 says: “Make spectrum available for R&D with minimal compliance requirements and in alignment with global best practices and standards” — Shouldn't this already have been in place and, if not, why can't it be expedited?!

Also, it appears that industry will take precedence in the ISM band (although the draft doesn't say which frequencies it has in mind when it says e.g. “Make available spectrum for Captive Non-Public Network (CNPNs) and private 5G for industrial use cases”).

8. The aim to “Develop a framework for accepting IPRs as collateral by financial institutions to support innovation financing” sounds interesting though, of course, it needs to be complemented with a standardised framework for IP valuation which we don't really have.

9. “Establish a biometric based identification for all telecom users to ensure privacy and protection” — no explanation as to why biometrics are needed to ensure privacy & protection provided, what form biometric-based identification would take (unless it's merely Aadhaar unnamed), and how it would be implemented.

10. The enthusiasm for AI seems unbridled and there's no talk of human oversight. AI is repeatedly mentioned and some plans such as that to “Collaborate/facilitate relevant ministries/departments for a resilient Public Protection and Disaster Relief (PPDR) network with harmonized spectrum plans, AI-powered predictive analytics, and IoT-enabled systems for resource mobilization” are particularly discomfiting given that predictive AI is notoriously unreliable and the plan doesn't so much as mention the possibility of human intervention to mitigate errors.

This post is by Nandita Saikia and was first published at IN Content Law.

Why are Scenic Arrangements "Dramatic Works"?

noreply@blogger.com (Unknown) — Fri, 20 Jun 2025 15:13:00 +0000

Granted that this may have confused no-one else but I've never really understood why the definition of a dramatic work in §2(h) of the Indian Copyright Act includes: "the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film".

Having (obviously) only watched contemporary stage performances (as opposed to historical performances), I'm used to scenic arrangements usually being fairly minimalist artistic works. However, I've recently been learning about Renaissance theatre, and have come to realise that historical scenic arrangements for staged performances were anything but simple or straightforward: they seem to have been analogous to full-fledged sets with special effects in contemporary blockbuster films, often requiring a multitude of trained professionals to put them in place and get them to work. It wasn't just someone hanging a pretty picture in the background.

I imagine it's unlikely that matters had changed all much by the time scenic arrangements came to be protected as dramatic works (in the UK Literary Copyright Act of 1842, as far as I can tell) — there wasn't at the time much, if anything, to be said of cinematography — and I'm beginning to suspect it's possible that having scenic arrangements be considered dramatic works is one of the vestiges of a time when they might as well have been just that.

The later development of cinematography may simply have led to cinematograph films being excluded from the scope of dramatic works (as the current definition of "dramatic work" in the Indian Copyright Act demonstrates) — the theatre has never been quite as corporatised as film, and I'm guessing that no-one ever lobbied hard to comprehensively change the definition of dramatic works to reflect changed practices. Which would explain why scenic arrangements are somehow still considered to be dramatic works.

This post is by Nandita Saikia and was published at IN Content Law after having been posted on LinkedIn.

Artificial Intelligence: An Opportunity to Recast Copyright Law

noreply@blogger.com (Unknown) — Tue, 08 Apr 2025 06:05:00 +0000

Draft: 15 MAY 2025

This piece considers the interaction of Indian copyright law and artificial intelligence, explores how the law could be amended to make it more compatible with AI, and suggests that AI has simply highlighted age-old concerns which the law has given rise to rather than created a series of novel challenges.

* An early draft of this piece was originally published here as 'Artificial Intelligence: The Making or Breaking of Copyright Law' on April 8, 2025.

Contents

1 Assisted Creativity and Copyrightability. 2

2 Privileged Creators and Trade. 4

3 The Statutory Anticipation of AI. 5

4 Acknowledged Authorship. 8

5 The Data underlying Computational Creativity

6 Rethinking the Scope of Protection. 15

1 Assisted Creativity and Copyrightability

Two ‘female forms’ which ‘mov’d, and breath’d, in animated gold’ supported Hephaestus, ‘Sovereign of the fire’ and god of craftsmen, as he approached Thetis, Achilles’ goddess mother, who was to commission armour for her son. These female forms had been forged by Hephaestus and, we are told, had ‘voice, and sense, and science’ bestowed upon them by the gods.[1]

Hephaestus’ helpers are widely believed to have been androids, and, yet, the Iliad describes the figures which adorn the warrior Achilles’ shield, also forged by the god of craftsmen, in remarkably similar terms. This leads one to wonder if Hephaestus’ women of gold were, perhaps, not androids at all but dynamic figures on greaves, armour protecting tibiae, which quite literally supported Hephaestus by holding him upright and facilitating mobility. Such an interpretation does not seamlessly align with the helpers’ grasp of science but neither does it disturb the practice by which living beings, whether gods or humans, may labour assisted to fabricate works which would, were they made in our own time, likely be eligible to be protected by copyright and, possibly, other intellectual property laws.

Nonetheless, despite assisted creativity being well established, there is considerable contemporary debate about which uses of technology are legitimate. Social media platforms often host heated discussions in arts and crafts groups about which handicrafts merit being described as having been handmade. Many knitters, for example, appear to treat knitting using a loom with derision; they refuse to recognise items made using looms as truly being handmade. From their comments, it appears that they view even manual looms, unlike the knitting needles they themselves use, as machines rather than as tools.

It is not entirely clear where the dividing line between a tool and a machine lies. The former is defined by the Cambridge Dictionary as ‘a piece of equipment that you use with your hands to make or repair something’[2] while the latter is defined as ‘a piece of equipment with several moving parts that uses power to do a particular type of work’.[3] The definitions provide little clarity since even common pieces of equipment like electric drills and some sewing machines, such as those which are handheld and manual, straddle the line between tools and machines.

Focussing on aids which help bring tangible works into being, the difference between ‘tools’ and ‘machines’ matters not least because it is far more likely, in our time, that items made by hand rather than by machines would be considered to be eligible to be protected by copyright. In the case of looms, an intricately-patterned scarf woven on a handloom used to make cloth would not be considered to be anything but handmade and, if its design were original, potentially copyrightable. A scarf made on a knitting loom, however, could easily be alleged to not have been handmade by self-proclaimed purists of the craft and may struggle to cross the threshold of copyrightability since such items tend to have designs which are fairly predictable.

Copyright law leans towards protecting the products of human labour especially if, in their fabrication or creation, human ingenuity has been applied. In doing so, it has come to protect a mixture of works, tangible and intangible, depending on the circumstances: not just the content of books and other literary works but also computer programmes (deemed to be literary works by the law),[4] musical and dramatic works, sound recordings, films, artistic works (including photographs, sculptures, and works of craftsmanship) and computer-generated works. It requires these works to be either original or non-infringing depending on their nature,[5] to have been created independently of other pre-existing or contemporaneous works,[6] and to not be so banal as to have their treatment of a subject be unavoidable.[7]

Perhaps betraying its origins as a right printers lobbied for, manifested through the genesis of Great Britain’s seminal 1709 Statute of Anne, the law pertaining to copyright treats trade in books as a given, allowing the content of literary works as well as other works which can be printed on to paper or like media, physical or electronic, to retain copyright even if copies of the works are mass-produced and, in the case of works of art, are in two-dimensional form.[8] In contrast to this, copyright law is less enthusiastic about trade in tangible works which would ordinarily merit copyright protection (especially if they are three-dimensional and visually-appealing); it tends to protect the works themselves rather than content embedded in them, and to limit the extent to which they can be protected by the 1957 Copyright Act, the primary statute which governs the subject in India, upon their having been legally reproduced more than 50 times by an industrial process,[9] which, in practice, is when such works tend to enter commercial channels.

A less cynical outlook would perhaps explain the disparities in the treatment of various kinds of works, and copyright law’s choice of which mass-produced works to shun, not with reference to the origins of copyright law but with reference to the purpose of the grant of copyright protection. Considered through a utilitarian lens, that copyright law tends to protect original, contemporary books containing literary, dramatic, musical, and artistic works without reference to how many copies of them are produced is unsurprising; copyright is ostensibly intended to protect the revenue streams of authors and those works which benefit society at large, particularly if that benefit is achieved through the facilitation of access to academic learning, a purpose books are ordinarily intended to help fulfil.

2 Privileged Creators and Trade

An introduction to the earliest Indian copyright law,[10] an 1847 statute, noted that it would be expedient to establish a copyright law in those parts of India governed by the East India Company to encourage learning[11] while, over a century and a half later, the overriding purpose of the 2012 amendment to the Indian copyright statute, the 1957 Copyright Act in force in the Republic of India since 1958, was to protect the interests of musicians and lyricists in the film and music industry.

Closely linked to the broader societal benefits of protecting copyrightable works is, of course, the need to protect the creators of those works: in that swoop, the law protects authors (and, in recent decades, performers),[12] especially if they are natural persons, by helping them monetise their work through the grant of exclusive rights in their creations and performances.

The law’s close links with the potential for monetisation, demonstrated not least by the ease with which copyrights can be licensed, bought and sold, may have resulted in those creators, who can competently leverage markets and social networks not to mention navigate legal labyrinths, being able to financially benefit from having their works be protected by copyright far more easily than those who cannot.

In practice, this has meant that, in making choices about whose works merit protection, the law, anchored in patriarchy and ableism despite attempts in recent decades to dislodge it from its moorings, has developed a tendency to protect those works historically associated with men for the most part, and to prioritise the protection of works of individual genius. As a corollary, those creative items which have historically been overwhelmingly made by women are also those which are least readily protected by copyright law: quotidian cookery is unlikely to be protected but the creations of (once often male) chefs may be eligible to merit protection, for example, and mere gardens tend to remain unprotected but vistas shaped under the supervision of (once ordinarily male) landscape architects can often be protected.

Strangely, items made using looms and needles can far more easily be exceptions to the general rule that copyright has a limited role to play in the protection of so-called women’s arts. Needlework, brocades, lace, and tapestries all have the potential to be considered works of art, perhaps because, although the media differ, their visual impact can often be rendered using paints which men have traditionally favoured.

Or perhaps there is an older tale to tell, which copyright law has subconsciously imbibed: Pandora, handed over to the titan Epimetheus, was moulded by Hephaestus using clay and water. In Theogony and Works and Days, Hesiod tells us that she was animated, and given gifts by the gods; the goddess Athene taught her needlework and weaving.[13] It may not be mere coincidence that these are the two ‘women’s’ crafts which copyright law can most easily be called upon to protect.

Although she is commonly referred to as the first woman, at no point does Hesiod tell us that Pandora is a woman. Instead, she is described more as a prototype for women than as a woman herself. Although she is clearly said to have been given the ability to speak, not once does she actually speak in Hesiod’s telling.[14] And, so, it may well be that these crafts, which women once predominantly engaged in, were, in times of myth, passed on to them not by a woman but by an android, a physical manifestation of artificial intelligence, resulting in their being treated as more than banal ‘women’s work’, the products of mindful creativity (or, at any rate, creativity derived from an android courtesy of the gods) rather than mindless drudgery (undeserving of legal protection).

3 The Statutory Anticipation of AI

While it has never been unusual for human beings to create works with the assistance of technology, until recently, it has not been common for the general population to see technology create works unassisted only upon being prompted to do so by humans. Some of the technology which allows for the fabrication of tangible works, such as that used for 3D printing, has been relatively easily accessible by the public since about 2009 when an early patent for fused deposition modelling, a 3D printing technique, expired.[15] Other technologies, such as generative AI, used to create ‘intangible’ works such as text, audible music, and visual art which are recorded on or enjoyed through physical and digital media without necessarily being tangible themselves, have only exploded in popular consciousness since about 2023, in no small measure, off the back of the release of a free version of ChatGPT based on GPT 3.5 towards the end of 2022.

In the early 1990s, Mark Weiser pointed out: “The most profound technologies are those that disappear. They weave themselves into the fabric of everyday life until they are indistinguishable from it.”[16] This has certainly held true in the case of AI, as artificial intelligence is commonly called: many forms of AI, such as grammar- and spell-checks, are ubiquitous being all but universally used; they are rarely thought of as being artificial intelligence at all. The partial invisibility of AI on one hand contrasts with inescapable visibility on the other hand brought about by news of developments in the area frequently coming to the fore of public discussion. This makes it difficult not just to define AI in any meaningful way for the purposes of the law which will ultimately likely have to settle on a single set of standards and policies to govern legitimate uses of the technologies involved without finely categorising AI and finetuning the law for each category, an endeavour which would, in any case, likely fail given that scientific developments invariably to outpace legal developments.

The emergence of GenAI, as generative AI tends to be referred to, in public use and discourse seems, at first glance, to have been anticipated by a provision of the 1957 Copyright Act introduced to the statute in 1994 which states that ‘in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created’ is its author.[17] However, it may not be easy to identify which works could be considered to have been computer-generated not least because a definition of ‘artificial intelligence’ has proved to be elusive, and policy documents (such as the Report on AI Governance Guidelines Development released by the Indian Ministry of Electronics and Information Technology in January 2025)[18] have demonstrated a tendency to forge ahead and discuss how AI should be governed without delving into the issue of what constitutes AI in the first place.

As far as authorship is concerned, it is not immediately apparent that the 2018 Practice and Procedure Manuals published on the website of the Indian Copyright Office are consistent with the mandate of the 1957 Copyright Act simply because the manuals are non-committal about who the authors of musical works may be (with reference to whether they are natural or legal persons),[19] indicate that the authors of artistic works must always be human,[20] and assert that only human beings can be authors of literary works.[21]

As such, the law does not clearly allow for the authorship of entirely computer-generated literary, dramatic,[22] musical or artistic works to be attributed to humans. Nonetheless, it would appear that the absence of categorical assertion, perhaps inadvertently, allows for the authorship of such computer-generated works to be attributed to companies; it is not clear how the statutory position of attributing the authorship of computer-generated literary, dramatic, musical and artistic works to the persons who cause them to be created and the aversion to such persons being natural persons in practice could otherwise be reconciled.

This is in contrast to the treatment which both the 1957 Copyright Act and the 2018 copyright practice manuals have accorded to works which are often composite in nature, namely: sound recordings and cinematograph films (referred to as ‘composite works’ in this piece); the statute states that their producers are their authors[23] while the practice manuals allow ‘producing companies’ to be named as their authors.[24] Thus, in the case of composite works created without the support of artificial intelligence, it appears that copyright law allows both natural and legal persons (or, in the case of the latter, corporate entities, at any rate) to be considered to be authors since there is no restrictive statutory provision limiting author-producers to either natural or legal persons. The statute itself is silent on the subject of who the authors of computer-generated composite works may be but, despite the absence of explicit prescription, it could perhaps be inferred that either human beings or legal persons could be considered to be the authors of computer-generated composite works simply given the absence, too, of explicit proscription.

Further, there is no guidance in the 1957 Copyright Act about what ‘causing a work to be created’ by a computer means for the purposes of the statute. As a result, it is also possible that statutory silence could be interpreted to mean that no person, human or legal, is the author of composite computer-generated works, and that the software programmes which generate them are to be considered their authors; the statutory requirement that a person be the author of computer-generated literary, dramatic, musical, and artistic works does not apply to computer-generated sound recordings and cinematograph films. If it were the case that software programmes could be considered to be the authors of composite works, it is unlikely that works so created would be protected by copyright.

It is important to determine who the authors of potentially copyrightable works are simply because authorship is often only one short step away from ownership: the author of a work is usually the first owner of copyright in the work.[25] Currently, where the statute is unclear, and computational creativity has played a role in bringing copyrightable works into being, the authorship and ownership of those works tend to be determined by standard form contracts which govern the use of the relevant software.

Unfortunately, this is not a foolproof approach to determining issues of either authorship or ownership: not only may such agreements ultimately fail the test of conscionability should they be challenged (which would make their provisions unenforceable), but also, given that, as a group, they have often been drafted in a field rife with statutory uncertainties, they may simply fail to be consistent with what are ultimately judicially interpreted to be statutory imperatives. There is therefore good reason to amend the law to clarify who the authors and owners of works created by or with the assistance of computational creativity would be, ensuring that technology companies which are the most powerful players in the field do not simply override the rights of end-users and appropriate their putative rights.

4 Acknowledged Authorship

Unfortunately, having come into being as a somewhat mercenary right which tradesmen lobbied for, copyright law does not have a solid foundational understanding of what authorship entails. Instead, to this day, it relies on a rudimentary understanding of who may be recognised as an author (in its quest to facilitate trade) which, entirely unhelpfully, defines the authors of literary, and dramatic works as the authors of those works,[26] and veers away from popular understandings of authorship primarily to accommodate commercial demands through its recognition of producers as the authors of what would once necessarily have been expensively-made composite works.[27]

The law tends to treat all natural creators at par, equally but not necessarily equitably, occasionally making allowances for them not with regard to their own innate abilities but with reference to the kinds of works they may create; the so-called Bollywood amendments which were introduced to the 1957 Copyright Act in 2012, for example, primarily attempted to ensure that composers and lyricists working in the film and music industry, being the authors of underlying works in cinematograph films and sound recordings, would be treated fairly.[28] The same set of amendments also introduced provisions related to disability to the Indian copyright statute[29] although the fact that it focussed on treating people with disabilities as consumers of copyrighted works rather than as creators of copyrightable works is inescapable: the statute enhances the ability of people with disabilities to engage with existing copyrighted content by allowing works to be reformatted for their benefit but it contains no particular provision to enhance the ability of people with disabilities to step into the role of legally-acknowledged authors perhaps by lowering the threshold of copyrightability should they create works using assistive technologies.

The technological assistance available to authors has come to take many forms most of which defy heterogeneous categorisation: amongst them are a combination of physical tools at the disposal of authors, artificial intelligence which may be used to support (and occasionally displace) natural and legal persons who are creators, and assistive technologies aimed at enhancing the ability of people with disabilities to engage with the world but which can also aid currently-abled people to do so.

How a broader range of allowances to support creative endeavours could be framed remains an open question, and, so far, the best efforts of the law to align itself with technological advancements, and to ensure that all creators are treated fairly, have proved to be inadequate. Volition is more frequently recognised in the context of infringement than of authorship with its likely having underlain both the understanding that the commission of secondary copyright infringement (by allowing a place to be used to communicate copyrighted works to the public for profit) only gives rise to liability if the person committing such infringement is aware or at least has reasonable grounds to believe that the communication would be infringing[30] as well as the development of exceptions to liability for copyright infringement enjoyed by intermediaries which merely provide neutral networks through which infringing copies of works may have been transmitted.[31] Nonetheless, ‘volition’ may be a useful tool for developing a theory of authorship.

It has been suggested that the intention of authors at the time of creating copyrightable works may play a role in determining the legal protection accorded to their works.[32] However, while discussing the relationship between copyright and designs law, the Delhi High Court noted: “The artist’s intent at the time of creation of the artistic work is indecipherable at the best of times. Artists are governed more often than not by their emotions and moods and whatever be the intention at the time of the creation of the artistic work cannot, in our view, determine the nature of protection available to the artistic work.”[33] That being the case, it is unlikely that authorial intention or the conscious volition of creators could be used as the basis to validate legal authorship in Indian jurisprudence.

Coherent extrapolated volition, the machine ‘counterpart’ of conscious, flawed human volition (extrapolating human conduct in ideal circumstances), too, is, by extension, unlikely to be meaningful in terms of acknowledging authorship for the purpose of copyright law. This aligns with the law’s reluctance to recognise humans as the authors of computer-generated literary, dramatic, musical and artistic works but it does nothing to present a solution to the question of which factors should be considered to determine how authors should be recognised given exponential increases in the use of technology, particularly artificial intelligence, in creative processes.

Even though Indian law seems inimical to recognising conscious volition as the basis for acknowledged authorship, it may be possible to argue that functional volition (understood with reference to the underlying processes through which copyrightable works may be brought into being by creators) could legitimately form the basis on which authorship is acknowledged by the law. Not only would this help align aspects of copyright law relating to authorship and infringement with each other by having a common thread run through each of them but it would also allow for copyright to be shaped to account for the capabilities of individual authors and the allowances which may need to be made to ensure that they, and their use of technology, are considered fairly.

Another alternative may be to consider authorship not in positive terms by attempting to recognise it with reference to the use of technology but in negative terms by describing when authorship would not be acknowledged by law on account of the circumstances in which content had been created; as Elena Cooper has pointed out: “…the challenges to authorship may stem from the objectives of particular practices, informed by their context (e.g. online community resource as opposed to art gallery display), rather that the use of digital technology per se.”[34] Such an approach could align with an emphasis on functional volition, and recognise the disparity between syntactic and semantic comprehension demonstrated by the Chinese Room Argument[35] (in which, in essence, it is imagined that a person who does not know Chinese may render the false impression of understanding the language by ‘conversing’ using Chinese characters chosen on the basis of detailed instructions in English).

In so re-considering authorship with reference to the circumstances of creation, technology per se could at least be partially dislodged as a mast upon which copyright law’s extremely rudimentary understanding of authorship pivots. For example, text written as part of an open project could simply not be protected by copyright at all instead of having to be freed through various ‘copyleft’ licences. Thus, copyright law could be restructured to potentially remove from the scope of copyright protection the sundry, make doctrinal issues about what ‘copyleft’ stands for (other than being opposed to conventional copyright) irrelevant, and harken to another time when content was protected upon registration. However, unlike registration, considering the circumstances of creation instead of the completion of a formal legal process would not disadvantage those creators unfamiliar with the legal system or creators with specific requirements or disabilities which were alleviated through the use of assistive technologies.

5 The Data underlying Computational Creativity

The manner in which people use assistive technologies to create copyrightable works ranges from using technologies to generate creative content in its entirety to accomplishing disparate (subsidiary) tasks embedded within broad creative endeavours to create works (undoubtedly of their own making) with the support of technology. Assistive technologies themselves include a variety of tools from tangible mechanical apparatus at one end of the spectrum to intangible artificial intelligence (embedded in hardware though it certainly is) at the other end of the spectrum. While in the case of tangible tools, the difference between ‘tools’ and ‘machines’ plays an important in determining the copyrightability of works, in the case of intangible tools such as AI systems, questions regarding the copyrightability and the use of AI must not only consider that difference but also, bearing it in mind, ask how AI interacts with pre-existing copyrighted content, go on to question what precise use AI is put to by its users, and finally determine if the output which comes into being with the involvement of AI merits copyright protection.

The first of these questions requires an analysis of what data or content is fed to AI to train it to act in specific ways, for what purpose the AI deals with the content, and how it treats the content it is fed to formulate outputs. Strangely enough, if one were to disregard the fact that the statute does not deal with minor infractions,[36] it is just one provision of the 1957 Copyright Act which deals with all these aspects of the issue: Section 52 which enumerates exceptions to copyright infringement.

Protected works other than computer programmes, as Section 52(1)(a) of the 1957 Copyright Act says, may be used without authorisation for private or personal purposes including research, for the criticism or review of the works themselves or other works, and for the reportage of current events, current affairs and public lectures. The provision does not differentiate between commercial and non-commercial use, and although its emphasis on private and personal uses in its first subsection may lean towards such a demarcation, it is also possible that open artificial intelligence systems used by closed groups may satisfy the requirement that use be ‘private’ as opposed to being public to benefit from the exception carved out by the provision. Notably, the other two subsections of Section 52(1)(a) of the 1957 Copyright Act dealing with review and reportage do not contain analogous restraints. All three subsections do, however, require that unauthorised use be fair to fall within the scope of the provision; Indian statutory law does not define ‘fairness’ in this context but an understanding of fairness drawn from § 107, Title 17, USC, which explains ‘fair use’ in the context of US copyright law, has been incorporated into the Indian corpus juris through case law.

Section 52 of the 1957 Copyright Act carries on listing exceptions to copyright infringement from subsection (1)(a) all the way to subsection (1)(zc), finally ending with subsection (2) which extends the application of the exceptions carved out in Section 52(1) both to translations of literary, dramatic, and musical works and to adaptations of literary, dramatic, musical, and artistic works in the same way that they apply to the works themselves. The exceptions cover a wide range of subjects and circumstances but their tenor remains remarkably consistent in that they explain how the copyright in specific kinds of works can be used without authorisation, and with limited regard to the identity of users. Their consistency may make them appear to be rigid but their interpretation in the real world has proven to be less than inflexible. Indian courts have, for example, recognised ‘transformative use’ as a valid defence to counter allegations of copyright infringement even though the term quite simply does not appear in the 1957 Copyright Act, much less in Section 52.[37]

There is also the fact to consider that the exceptions to copyright infringement appear to step straight from one work being used or copied to create another in a manner where proximity would, but for their existence, lead to the commission of infringement. While such an arrangement functioned smoothly in a world that had not seen the proliferation of AI, it does not work as smoothly in an AI-ridden world.

It is not one step from having so-called training data as AI inputs to the manifestation of an AI output. The lack of proximity between input and output, when it comes to AI, could be read in two ways: either that proximity (closely linked to the expressive use of one work in the creation of another) is required for infringement to occur and, therefore, the lack of proximity means that no infringement has occurred, due to which the exceptions to copyright infringement in the 1957 Copyright Act tend to ignore situations in which there is no proximity, or, alternatively, that choosing not to deal with situations which lack proximity is a considered choice meaning that the lack of proximity is no defence to allegations of infringement.

It is extremely unlikely that there could have been much thinking along these lines when the 1957 Copyright Act was first drafted simply because the relevant technology had barely begun to be developed, and, despite the statute having been amended several times since then, there does not appear to have been much, if any, attention paid to the possibility of AI gorging content as training data. This is far from the first time that the law has had to find ways to catch up with technology, and although the initial steps to do so may be taken by the courts, ultimately, the question of how to handle AI may well fall to Parliament.

One way in which the law could handle copyrighted content being used as training data would be to craft a new exception to copyright infringement to allow for such use. A broad exception would, however, be unlikely to be fair simply because it would facilitate extremely well-funded AI companies using content belonging to others without either authorisation or remuneration. If the choice to expand the statutory exceptions to copyright infringement were made, it would therefore be fitting to frame an exception to infringement to account for the wishes of authors and rights owners (which may not always align with each other), and to ensure that the law would not inadvertently come to either facilitate unjust enrichment or block technological progress.

5.1 An Exception to Infringement

The primary challenge to contend with is the almost ubiquitous nature of copyright: copyright has come to protect almost all content, including the most banal, provided it meets decidedly low thresholds of copyrightability. Although doctrine somewhat raises the bar through the scènes à faire principle and the like, per the 1957 Copyright Act, sound recordings and cinematograph films must merely be non-infringing to benefit from copyright protection,[38] while literary, dramatic, musical, and artistic works must be original to be protected by copyright,[39] with judicial interpretation resulting in ‘originality’ rarely requiring much beyond having a work originate from an author. This has resulted in very little contemporary content not being protected by copyright.

One possibility would be to have the law treat works differently depending on whether or not they were commercially available at the instance of authors, and on how the relevant AI systems were structured. Although far from a foolproof mode of differentiation, it would seem reasonable to ordinarily assume that significant effort had been made to create content legally made available for sale or hire, and it would seem to be fair to exclude such content, including trade fiction and commercial animation, from the scope of a broad exception to copyright infringement which allowed copyrighted content to be used as training data by AI systems.

Simultaneously, it would also seem justifiable to include works which were not commercially available within the scope of a possible exception to copyright infringement allowing protected content to be used as training data by AI, provided that the works were not tagged with an explicit indication that they were not intended for such use, not simply on account of the practical challenges involved in tracing the competent persons to grant licences in respect of all content which was not commercially available, negotiating licence terms, and paying fees but also because of the inescapable possibility that many authors may have little desire to be traced.

Copyright law would need to walk a fine line between protecting authors’ revenues and their privacy; it is entirely possible that some authors (such as those who have been subject to gender-based violence in conservative societies and who speak about their experiences to raise awareness) may desire anonymity for their advocacy. Forcibly shredding the privacy of authors at the altar of copyright maximalism is unlikely to benefit either authors or society at large which may ultimately be deprived of their voices.

5.2 Consensual Licensing

When it comes to content which is commercially available, too, the law would need to tread carefully noting that within the category lies, on one hand, content published subject to contractual negotiation which has been made immediately available for monetisation whether or not its authors have received pecuniary remuneration such as text published by traditional academic and trade publishers, and, on the other hand, content published subject to contractual imposition (including through various software EULAs[40] and website Terms of Service) which could be monetized but may not have been published with the intention of having it enter commercial channels such as what is likely to be a significant fraction of end-user posts on social media platforms.

In the case of content published subject to contractual negotiation, it is probable that the identity of authors would be known to publishers while, in the case of content published subject to contractual imposition, such knowledge cannot be taken for granted, and any framework to obtain authors’ consent would therefore have to be developed cognizant of the need to avoid unmasking the identity of authors who would prefer enhanced privacy, if not total anonymity. Nonetheless, in both cases, it would be fair to require that authors’ consent for the use of content they have created as training data AI be obtained.

Ensuring that publishers acting as content aggregators do not unilaterally license content en masse to AI companies without consent from and remuneration payable to the authors who have created it may require an amendment to the 1957 Copyright Act to ensure that signed grants of rights to publishers, whether historical or not, are not interpreted to allow such conduct.[41] Further, while tweaking the provisions in the copyright statute pertaining to contracts would probably be adequate to obtain informed consent in the case of content published subject to contractual negotiation, it would probably be necessary to include an additional provision either to the statute itself or in subordinate legislation to ensure that users subject to contractual imposition were in fact aware of the possibility that content they created and uploaded could be used to train AI, and to give them the option to refuse to allow their content to be so used.

5.3 Non-Voluntary Licences

Finally, is the question of the manner in which AI systems should benefit from derogations from the usual flow of copyright law whether through exceptions to infringement, extraordinary contractual perquisites or otherwise.

Looking at the issue through a utilitarian lens, it could be argued that, to benefit from derogations without charge, an AI system should need to be open and have subscription levels where end-users (being members of the public) could meaningfully use it without payment. Failing that, if AI systems were some combination of closed, proprietary and chargeable, there could conceivably be established a mechanism through which statutory licences could be obtained in respect of them to legalize their use of certain forms of protected content as training data.

Such a layered approach is not unknown to copyright law: the provisions in the 1957 Copyright Act which help to make copyrighted works accessible to people with disabilities are contained in an exception to copyright infringement which focuses on personal, private and not-for-profit access to copyrighted works in streams independent of the usual commercial channels of trade,[42] and in a compulsory licence which allows for-profit operations.[43] In essence, the law facilitates the possibility of the grant of a licence in cases beyond the purview of the statutory exception to infringement.

Copyright law generally does not operate independently: although its substantive provisions are contained almost exclusively in the 1957 Copyright Act, in practice, its procedural provisions, particularly relating to rights ownership and exploitation, come into their own at the confluence of contract and copyright law. As a result, it is not exceptional for copyright law to call upon contract law, and there appears to be no reason why it could not do so with reference to AI.

6 Rethinking the Scope of Protection

The proliferation of AI, with creators of all stripes using it, has forced copyright law to grapple with determining not only the extent to which AI programmes themselves should be protected by copyright law but also the extent to which works may be brought into being with technological assistance without sacrificing their eligibility to be protected by copyright (and without their creators sacrificing the right to be acknowledged as authors).

Thus, the extent of copyright protection needs to be considered both qualitatively and quantitatively with analyses referring to eligibility for protection and, where protection is merited, the duration of such protection respectively. With regard to the latter, it would be prudent to rethink the term for which copyright protects software in general (within which AI is included), and the term for which copyright protects the output of AI particularly when it comes to the output of generative AI.

In the case of AI systems, given the rate at which we now know that technology can progress, it would seem that lowering the term of copyright for software to a number of years comparable to that for which patents or semiconductor integrated circuits are protected would likely achieve the dual aims of protecting investment in research, and not supressing further research by allowing those who do not own the rights in specific AI systems to further develop them after a certain number of years. Dealing with the term for which the output of AI should enjoy copyright protection, however, requires one to simultaneously deal with the issue of whether such output is or should be copyrightable in the first place.

Assuming that works meet the criteria to be protected by copyright, to answer the question of how long copyright protection should last, it would probably be possible to argue that where works are entirely created by GenAI upon being fed prompts by humans, the duration of protection should be much lower than when works are created by human beings with or without the assistance of technology. This would divide works into two groups: that which had come into being upon the execution by AI of instructions from human beings and that which had come into being upon the execution of activities by humans possibly with the support of AI; the degree of support would not matter if such a bifurcation were adopted. At a theoretical level, ignoring the degree of technological assistance employed to create works would mirror copyright law’s refusal to engage in the qualitative analysis of specific works to determine their copyrightability on the basis of artistic merit and, on a practical basis, concentrating only on whether or not technological assistance had in fact been employed to bring works into being would demonstrate cognisance of the difficulties in assigning a quantitative test to establish the degree of technological support relied upon to create a work without, at the very least, also engaging in qualitative analyses of the work.

As difficult as it may be to determine for how long a copyrightable work should be protected, it is probably even more difficult to determine if a work should be protected by copyright. While there is no doubt that AI programmes generally merit copyright protection, the copyrightability of the output of AI programmes is fraught with concerns primarily evolving from two issues: the legality of the manner in which AI treats content, and the legitimacy of the uses to which humans put AI with ‘legitimacy’ being understood to include not just legal but also ethical considerations. Unfortunately, these issues raise questions which do not have easily discernible answers: firstly, the question of what exactly AI does with content which has been fed to it as training data, and, secondly, the question of what exactly humans who use AI are doing with both AI and its output. Threshing out these two issues is an exercise complicated by the facts that we do not truly have a workable theory of authorship to guide us, that we are far from certain about the extent to which the framing of prompts amounts to an act of authorship for the purposes of copyright law, and that we rarely seem to know what happens to data within an AI system.

The operations of AI systems tend to be opaque, especially in the case of proprietary AI, and, so, it is often challenging to determine if, in its operation, AI winds up committing copyright infringement or other legal wrongs. It would, therefore, probably be prudent to frame supplementary guidelines governing how legal AI systems may operate, particularly predictive AI systems which are used in situations where they could have (sometimes devastating) real-world consequences for human beings beyond simply creating content that would be considered artistic; if one takes a step back and looks at the big picture, it is difficult to argue that copyright infringement is the primary wrong that legal policy should address in this context. For example, AI systems which are used to attempt to accomplish such tasks as determine eligibility for parole, assess the risk of recidivism, or analyse the manner in which an epidemic may spread should, ideally, be rigorously tested so that the risks of employing AI are well established, and humans are in a position to make informed decisions factoring in the likelihood of AI output being incorrect. This may require not only framing policies on how the data inputted into AI systems may be treated and processed (notably in terms of confidentiality and copyright) but also framing policies to ensure that AI systems themselves stand up to scrutiny such that claims of their efficacy are not divorced from reality; this may necessitate having the operations of AI systems not operate completely with an impenetrable ‘black box’.

While forcing (often corporate) owners of AI systems to divulge enough about their proprietary software to ensure that those systems actually work as claimed and do so in a legal manner may require ‘diluting’ their intellectual property rights, it should be possible to encompass within the copyright framework (which protects software in India) mechanisms beyond those which are extant to protect information which has been publicly divulged about AI systems (possibly akin to those used by the legal regimes which govern patents and semiconductor integrated circuits). Ultimately, the law will have to balance proprietary rights and public interest to ensure that one is not privileged over the other.

As far as the activities of human users are concerned: although it is unlikely that end-users could be held liable for the operations of AI they did not control, the purpose and manner in which they used AI would likely be factors in determining whether they could be considered the legal authors of works they had brought into being or, perhaps, had helped bring into being in conjunction with AI. Complementary to the issue of whether or the output of AI could be considered to have been authored by its end-user creator are the questions of, firstly, whether or not the output could be considered to have violated the rights of people (other than the end-user who had caused the work to come into being) such as the right to privacy and the right of publicity, and, secondly, whether or not the output could be considered to have infringed rights subsisting in preexisting works.

In some cases, the issues involved would be relatively easy to clarify. For example, although copyright law has little enthusiasm to entangle itself with morality, it is extremely unlikely that a non-consensual, explicit audio-visual work generated by or with the assistance of computational creativity featuring an identifiable woman would merit copyright protection (not least because it would have almost certainly been created using preexisting imagery of the woman); not only would a user who had created such a work not be recognised as an author by copyright law for the purpose of protecting creative content but such a user would also likely find themselves being accused of a range of other legal wrongs including that of defamation which, in India, is a legal wrong under both tort law and criminal law.

Thus, the first issue relating to rights violations could be serviceably addressed by drawing on not just various extant statutes which deal with the issues at play (such as the right to privacy, and the right of publicity) but also by drawing on tort law and, where criminal offences have not been alleged to have been committed, contract law to examine if there were any way the lens of ‘consent’ could justify what would otherwise be unjustifiable rights violations. The second issue, that of infringement, would be reasonably easy to address with reference to sound recordings and cinematograph films simply because, under the 1957 Copyright Act, infringing works cannot have copyright subsist in them. In the case of other works, however, the issue could become murky because copyright law merely requires non-composite to be original; coupled with the doctrine of independent creation which allows copyright to subsist in two similar or even identical works if they have been independently created, it is not impossible that copyright could subsist in what would, but for the doctrine of independent creation, have been infringing. Here, too, copyright law is clearly not designed to cope with AI.

On one hand, while the end-user of a work may imagine that it has been independently created, the AI itself may have been fed protected content as training data. How the law treats the output of AI may have to factor in whether or not the training data had been acquired legally, and, if so, the terms under which it was so acquired. And, on the other hand, one of the concerns which has repeatedly presented itself in relation to the output generated by AI is that of the legitimacy and copyrightability of works created in the style of contemporary authors. It may be possible to argue that where those authors have, in any case, commercialised ‘their’ style such they employ studios filled with artists to replicate it in a variety of ways, they have also lost the right to protect their style being imitated by end-user creators using AI. Such an argument could, by analogy, conceivably apply to the works of any author has made their style formulaic and commercialised although there is currently no body of judicial opinion which could be used to conclusively either establish or demolish such an argument.

The issue of the who was recognised as the author of works created with the assistance of AI would likely depend not just on the extent to which AI had been relied upon but also on the terms of use appurtenant to the AI. Even if the output were copyrightable, it would not necessarily be possible for a corporate owner of AI to be considered to be the author (except in cases where the output was in the form of a sound recording or a film) although it is possible that the company could, through its terms of service, require end-user creators to assign all rights in the output to the company or to allow the company to exploit the output in various stated ways. To avoid situations in which companies took undue advantage of end-user creators and, possibly, unjustly enriched themselves at their expense, it would likely be necessary to lay down minimum standards for such contracts in subordinate legislation if not in statute itself.

Further, the use agentic AI alone would likely not result in the creation of a copyrightable work. However, the use of agentic AI or AI which accomplished specific and limited tasks in a broader creative process, which allowed the argument to be made that AI had merely supported the creative endeavours of its human users, could well result in the creation of works which were copyrightable and whose creators could be considered to be legal authors. The use of generative AI would, however, be far less likely to result in either the creation of copyrightable works or in having human users who prompted the creation of works be recognised as legal authors.

The line between the two, however, is extremely thin and blurred. For example, AI which harmonised a melody could, depending on one’s point of view be considered to be either agentic or generative AI.[44] Further, the mere harmonisation of a melody, it could be argued, does not merit copyright protection by itself given that it must, in order to sound sonorous to the human ear, abide by the rules of music theory. This leads to the development of a situation where it is not obvious who the author of the content should be considered to be or, for that matter, whether the content brought into being is copyrightable at all.

Other forms of computational creativity also raise similar concerns. Consider AI used to develop recipes either autonomously or semi-autonomously upon having been fed a range of recipes developed by humans along with rules drawn from hedonic psychophysics, a field which explores what appeals to human beings: although the AI could be used to autonomously create recipes, it is almost certain to function much better in collaboration with human beings who know how to cook than in isolation.

Alexandra Kleeman described how she ‘cooked some eggplant fritters that made convenient use of every sad, wrinkling root’ in her refrigerator using AI named Chef Watson to help combine an unlikely assortment into the ingredients of a recipe.[45] Making the best use of leftovers and assorted remnants of vegetables is, of course, not a new task: women have been doing so for centuries, if not longer. Not once in history does there appear to have been a concerted push to recognise the practice as worthy of consideration as labour which should be renumerated, much less as a practice which results in the creation of recipes which should, arguably, be worthy of intellectual property rights protection. However, the insertion of computational creativity into what would once have been primarily a domestic chore, and the commercial opportunities AI presents by urging humans to think along new lines to develop recipes not just with leftovers but with unusual combinations of ingredients, has changed the equation. Although no-one may be entirely certain of what the intellectual property rights position of content – in this case: recipes – generated either by or with the help of AI should be, it is certain that AI has breached the domestic arena, bringing such issues, likely inadvertently but nonetheless firmly, into the realm of academic discussion,[46] by raising questions about the authorship, ownership, and commercialisation of so-called women’s work.

The ambiguities associated with computational creativity and copyright law are not new. They echo old uncertainties relating to the difference between ‘tools’ and ‘machines’, and the reluctance to treat ‘women’s work’ with any respect worth mentioning, with much the same effect: there being a distinct lack of clarity about who could be considered a legal author, what legitimate acts of creativity encompass, and which works might be eligible for copyright protection. So far, there has been no pressing need to answer any of these questions: conventional commercial channels have managed to sidestep them since answering them has not been essential to make money, and, whatever else copyright may be, it is unarguably an economic right. With AI having entered the picture, however, these old fault-lines can no longer be ignored simply because AI systems, associated with large sums of money, seem primed to exploit them. It may, however, be prudent not to have copyright law centre technology and to consider sociology more closely, scrutinising consent, forcing equity where it is absent, and examining the circumstances in which creative endeavours unfold.

While it may appear that AI has caused tectonic shifts in copyright landscapes, it may be more accurate to say that it has merely caused old fault-lines to appear in stark relief. In doing so, it creates the opportunity to address lacunae in the law and to recast it in an equitable mould. Whether that opportunity is availed of or squandered remains to be seen.

References

[1] Pope, Alexander, trans. The Iliad of Homer. W. Suttaby, 1806. https://archive.org/download/homeriliad00home/homeriliad00home.pdf.

[2] “Tool.” https://dictionary.cambridge.org/dictionary/english/tool.

[3] “Machine.” https://dictionary.cambridge.org/dictionary/english/machine.

[4] Section 2(o) of the 1957 Copyright Act (India).

[5] Section 14 of the 1957 Copyright Act (India).

[6] See: the doctrine of independent creation

[7] See: the scène à faire principle and the merger doctrine

[8] In practice, some works such as pop-up books containing 3D art may be exceptions to the general rule that 3D art cannot be reproduced an uncounted number of times without potentially risking the protection of copyright law.

[9] LNG Express India Private Limited v. INOX India Limited. Supreme Court of India, CNR: SCIN010525222024, 15 April 2025. api.sci.gov.in/supremecourt/2024/52663/52663_2024_3_1501_60892_Judgement_15-Apr-2025.pdf. The case analyses Section 15 of the 1957 Copyright Act (India).

[10] References to specific laws, regulations, reports, and manuals in this piece are all references to Indian laws, regulations, etc., unless otherwise specifically stated.

[11] Copyright Act (India) 1847, https://web.archive.org/web/20160304212712/http://lawmatters.in/wp-content/uploads/2014/04/Indian-Copyright-Act-1847.pdf

[12] The protection of performers is beyond the scope of this piece although Indian copyright law does protect live performances in a manner which could be considered to be loosely analogous to the manner in which it protects works.

[13] Evelyn-White, Hugh G, trans. Hesiod: The Homeric Hymns and Homerica. 1914. Reprint, William Heinemann, 1929. https://archive.org/download/hesiodhomerichym0000unse/hesiodhomerichym0000unse.pdf.

[14] Francis, James A. “Metal Maidens, Achilles’ Shield, and Pandora: The Beginnings of ‘Ekphrasis.’” The American Journal of Philology 130, no. 1 (2009): 1–23.

[15] “Timeline of the 3D Printing History - ASME,” https://www.asme.org/topics-resources/content/infographic-the-history-of-3d-printing.

[16] Weiser, Mark. “The Computer for the 21st Century.” Scientific American 265, no. 3 (1991): 94–105.

[17] Copyright Act (India) 1957, s 2(d)(vi).

[18] Ministry of Electronics and Information Technology. (2025). Report on AI Governance Guidelines Development. https://indiaai.s3.ap-south-1.amazonaws.com/docs/subcommittee-report-dec26.pdf

[19] “Practice and Procedure Manual 2018: Musical Works.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/MUSICAL_MANUAL.pdf.

[20] “Practice and Procedure Manual 2018: Artistic Works.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/Artistic_Manual.pdf. In explaining how to fill the application for copyright registration, the manual states: “Correct and appropriate details of the Author (the person who has actually authored or was involved in the authoring of work. There can by more than one persons who can jointly and severally be the author of a work. A firm/organization cannot be an author of work by no means; this column shall always be filled with the name & details of a person.”

[21] “Practice and Procedure Manual 2018: Literary Works.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/LITERARY_MANUAL.pdf.

[22] Although there appears to be no copyright manual published by the Indian Copyright Office specifically dealing with dramatic works in force, the definition of dramatic works in the 1957 Copyright Act reveals that dramatic works tend to possess a dual nature with their also, in the usual course, simultaneously being literary, musical, or artistic works. Due to this, it is possible to infer that the constraints which the 2018 practice manuals of the Indian Copyright Office apply to literary, musical, and artistic works also apply to dramatic works.

[23] Copyright Act (India) 1957, s 2(d)(v).

[24] “Practice and Procedure Manual 2018: Sound Recordings.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/SOUND_RECORDING_MANUAL.pdf; “Practice and Procedure Manual 2018: Cinematograph Works.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/CINEMATOGRAPH_MANUAL.pdf.

[25] Copyright Act (India) 1957, s 17.

[26] Copyright Act (India) 1957, s 2(d)(i).

[27] Copyright Act (India) 1957, s 2(d)(v).

[28] Saikia, Nandita. “The Bollywood Amendments: Film, Music and Indian Copyright Law (2010 to 2012).” SSRN Electronic Journal, January 1, 2010. https://doi.org/10.2139/ssrn.1566350.

[29] Saikia, Nandita. “Viewing Copyright Policy Through Music and Injury” April 1, 2022. https://copyright.lawmatters.in/2022/04/viewing-copyright-policy-through-music.html.

[30] Copyright Act (India) 1957, s 51(a)(ii).

[31] Copyright Act (India) 1957, s 52(1)(b) and (c).

[32] Buccafusco, Christopher. “A Theory of Copyright Authorship.” Virginia Law Review 102, no. 5 (2016): 1229–95.

[33] Microfibers Inc. v. Girdhar & Co., High Court of Delhi, RFA (OS) NO.25/2006, 28 May 2009.

[34] Cooper, Elena. “Reassessing the Challenge of the Digital: An Empirical Perspective on Authorship and Copyright.” In The Work of Authorship, edited by Mireille van Eechoud, 175–214. Amsterdam University Press, 2014.

[35] “The Chinese Room Argument (Stanford Encyclopedia of Philosophy),” October 23, 2024. https://plato.stanford.edu/entries/chinese-room/.

[36] Copyright Act (India) 1957, s 14.

[37] Syndicate of the Press of the University of Cambridge v. B. D. Bhandari & Anr., High Court of Delhi, RFA (OS) No.21 of 2009, August 03, 2011.

[38] Copyright Act (India) 1957, s 13(3).

[39] Copyright Act (India) 1957, s 13(1)(a).

[40] End User Licence Agreements.

[41] A proviso to Section 18(1) of the 1957 Copyright Act states that no assignment ‘shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work’ but an analogous proviso does not appear in Section 30 of the statute which deals with licences.

[42] Copyright Act (India) 1957, s 52(1)(zb).

[43] Copyright Act (India) 1957, s 31B.

[44] Saikia, Nandita. “Priorities and Power: An AI Governance Proposal” January 13, 2025. https://copyright.lawmatters.in/2025/01/priorities-and-power-ai-governance.html.

[45] Kleeman, Alexandra. "Cooking with Chef Watson, I.B.M.’S Artificial-Intelligence App." The New Yorker. November 20, 2016. https://www.newyorker.com/magazine/2016/11/28/cooking-with-chef-watson-ibms-artificial-intelligence-app.

[46] Somaya, Deepak, and Lav R. Varshney. “Ownership Dilemmas in an Age of CREATIVE MACHINES.” Issues in Science and Technology 36, no. 2 (2020): 79–85.

The Garden as the World

noreply@blogger.com (Unknown) — Sun, 09 Mar 2025 08:39:00 +0000

The garden, closed off though it generally is, reflects the world to which it belongs. This piece, written from a place of disenchantment, considers the structure of gardens, and attempts to explore, through law and literature, the manner in which the law has a tendency to prioritise the protection of that which is attributable to the socially privileged.

v1.2 9 MARCH 2025

The garden is often an escape into a liminal world between the quotidian and the fantastic, the ornamental and the productive. It is a world in which it is difficult not to find beauty but in which beauty, even when it is naught but artifice, is not necessarily considered to be art in any sense that copyright law would recognise despite the fact that, to be a garden, the space in which it exists must have been influenced by human skill, creativity, and vision.

The Remains of the Past

The gardens of our imaginations stretch the spectrum from luxuriant, barely contained wildness to nature severely constrained. Whichever way one looks at them, plants are ordinarily vital to their existence; other elements tend to be secondary but what we see of ancient gardens often forces us to invert our perceptions of what makes a garden.

For the most part, ancient gardens no longer live although some have been revived. We can't always be certain of what was planted there although, going by what appear to be the remains of flower beds, we can be reasonably certain that there were plants.

We can also be reasonably certain that ancient gardens were not haphazard dumping grounds for plants and bric-a-brac. We see architectural features, functional structures, and both movable and immovable art, with each category blending into the other, and all of them tending to blend into each other to form a coherent whole.

Excavations at Pompeii have revealed peristyles, colonnaded gardens (sometimes with pergolas in them too) in 252 homes, which contain, amongst other components, low walls or plutei; aediculae, altars, and podia which could have been used to display sculptures or idols; murals and mosaics; fountains and a range of contrivances to store and syphon water including pools (in which there may sometimes have been fish), cisterns, basins, gutters, and drainage channels; sundials (with questionable accuracy perhaps because their presence was more performative than functional) and storage containers: dolia and amphorae.

We can only speculate on the uses to which ancient gardens were put: the presence of lararia, shrines to guardian deities and tutelary spirits, signify the conduct of ritual and religious activity in gardens while triclinia, seating arrangements around three sides of a table, indicate the use of gardens to dine; fountains might signify the use of gardens as status symbols while the abundance of storage containers in some gardens could perhaps indicate that those gardens were meant to be more functional than recreational, and that they were commercial centres. It is unlikely that categories would have been watertight though.

The elements of ancient gardens did not simply disappear from the world; if not anything else, the peristyles of Roman villas were often transformed into the cloisters of mediæval monasteries not least because it wasn't unusual for monks to live in structures which had once been villas.

Contemporary gardens often seem to contain permutations and combinations of the features of the gardens of the ancient world. Although there have been times when it became fashionable to have gardens aggressively stylise nature, horti conclusi and other enclosed gardens dating back to the mediæval world and beyond, have lived on well into contemporary times — they cannot possibly be called facsimiles of nature untamed.

What the Law Protects

The garden itself consolidates disparate elements: it is invariably a verdant, living, organised space possibly containing legally protectable components all of which coalesce in space and in time to make the garden what it is.

Art and Architecture

The inanimate features of gardens can potentially be or encompass art recognised by copyright law as either architectural works or artistic works, or perhaps even designs which could, in some cases, be protected by design law. Some of the functional apparatus of gardens could also well be protected by other forms of intellectual property rights including patents: composting apparatus has sometimes been protected by patent rights, for example.

Stripped bare of its flora, what remains of the garden is a material world not entirely inanimate: earth, landscape, art, and architecture. Earth, by itself, is not protectable but fertilizers used to enhance it may be patentable or protected as trade secrets. Landscape, to the extent that it is shaped by human creativity, may be copyrightable and so too may artworks and the artistic design of architectural features be protected although it would seem that gardens combine what we would now lean towards protecting as ‘design’ (if at all) and what we would now consider art, copyrightable or not.

While the average grotto or fountain is unlikely to merit copyright protection unless it is artistic, for example, the images and sculptures it contains could well merit legal protection assuming, of course, that they had not been made by having raw materials be poured into mundane, workaday moulds.

The moulds themselves could potentially be protectable, either directly or indirectly, if the works they were used to create met the threshold of copyrightability — sculptures which moulds may be used to create are potentially copyrightable as artistic works as are, in some cases, the moulds themselves as works of artistic craftsmanship. However, in light of Section 15 of the 1957 Copyright Act, if otherwise copyrightable sculptures were legally mass produced (more than 50 times using an industrial process) — garden gnomes come to mind, here — they would likely need to be registered as designs under the 2000 Designs Act to continue enjoying legal protection.

Whether or not moulds are artistic, their use to reproduce copies of works makes them ‘plates’ in the eyes of copyright law, and plates used or intended to be used to make infringing copies of works usually belong to those who own the copyright in the works they can be used to reproduce although, if the owners and the creators of those works differ, the creators may have a limited right to use, without authorisation from the owners, moulds they themselves have made for the purpose of the protected works. In so using moulds, the law, however, prohibits creators from repeating or imitating the main design of the works for which they were made per Sections 2(c), 2(t), 58 of the 1957 Copyright Act.

Similar analyses can be applied to virtually every component of a garden, and it is possible to strategically design gardens to ensure that the law protects them to the highest degree possible by having their components cross the statutory thresholds beyond which legal protections, such as the various forms of intellectual property rights, apply.

Protected Flora

Varieties of plants, too, can sometimes be protected under sui generis laws or, depending on the jurisdiction in which they find themselves, patents. In India, methods of horticulture, essentially biological processes for the production or propagation of plants, and plants (including seeds, varieties and species) other than micro-organisms cannot be patented per Sections 3(j) and (h) of the 1970 Patents Act but, in compliance with Article 27(3)(b) of Part II the TRIPS Agreement, a sui generis law brings varieties of plants within the scope of intellectual property protection in the country.

The 2001 Protection of Plant Varieties and Farmers’ Rights Act grants a dual registration: it registers both varieties themselves and their names. To be registrable, per Section 15 of the statute, varieties must be distinctive, uniform, stable and, in the case of new varieties, novel. Further, new varieties cannot be registered if their names consist solely of figures, are confusing or misleading, hurt religious sentiments, are prohibited for use by the 1950 Emblems and Names (Prevention of Improper Use) Act, or dishonestly include geographical names.

The Act defines a ‘variety’ in Section 2(za) as a plant grouping ‘within a single botanical taxon of the lowest known rank’, other than a microorganism, which, in essence, is an identifiable, stable unit suitable for propagation and distinguishable from other plant groupings), and describes what can be protected in Sections 2(j), 2(m), 14, 23, and 29(2).

Under the law, extant varieties including farmers’ varieties (essentially meaning those which are commonly known, which belong to the public domain, which have been notified under Section 5 of the 1966 Seeds Act, or which have been ‘traditionally cultivated and evolved by the farmers in their fields’) as well as other varieties belonging to genera and species notified by the Central Government in the Official Gazette and varieties of varieties (known as ‘essentially derived varieties’) can potentially be registered and legally protected.

The Architectonics of Gardens

The extent of human influence in bringing a garden to life is debatable, and that debate, steeped in class prejudice we know, divine genius we believe in, and natural fecundity we rely on, lies at the heart of how the law offers to protect gardens.

If we were to consider the elements of gardens, what we would find is that those which are believed to derive entirely from God's bounty or to arise in consequence of natural processes are not protected by the law while those which a human hand has clearly had a dominant role in shaping tend to be more easily protected by the law even if human intervention simply creates a facsimile of the natural. But, even here, there are differences in how the law treats both work and works in a garden.

‘Merely’ gardening and deciding where to plant what would not ordinarily result in the creation of legally protectable works if the task was accomplished by gardeners working the soil, no matter how skilled they might be.

The layout of many gardens is fairly conventional — traditional by contemporary standards. For example, we know what to expect of the layout of a Mughal charbagh garden; significant innovation would almost certainly destroy the character of the garden. The adherence to tradition, however, also all but extinguishes any chance of the design of a traditional garden becoming copyrightable.

Gardeners not only face the question of whether or not their works, including arrangements of plants, are original but also of whether the fruits of their labour are in fact more natural than man-made.

However, if the plans for an unconventional garden or park were drawn up by a landscaper, those plans could potentially be protected by copyright law as artistic works particularly if they included architectural features and, in all likelihood, the gardens or parks based on them would also, at least obliquely, receive a degree of legal protection even if not directly as artistic works which, under the law, include architectural works—a possibility which, too, remains open.

This approach is not entirely surprising given that much early landscaping involved literally reshaping land and adding architectural features to it, going so far as to dam rivers and move entire villages, to develop vistas, over the course of decades, which appeared natural from the vantage of stately homes but were, in fact, anything but natural.

The differential treatment accorded to landscapers and gardeners by the law creates a chasm between those who work to bring gardens into being, and those who ‘merely’ design gardens. It is analogous to the way in which the law tends to protect the work of artists but is less than enthusiastic about protecting works of craftsmen even though the line between the two is blurred.

Mosaic designs on pathways in repetitive patterns, for example, are unlikely to be considered to be works of art in the way that images seen and meant to be enjoyed from the vantage of seating arrangements in a garden would probably be even though the former may require considerable skill to lay.

Section 2(c)(iii) of the 1957 Copyright Act does explicitly allow works of artistic craftsmanship to be legally protected. However, the ‘problem’ as copyright law sees it is that works of craftsmanship are less likely than other artistic works to meet the threshold of copyrightability, which, amongst other criteria, requires artistic works to be original to be copyrightable.

When it comes to plants, however, the law adopts a fairly liberal approach. It does not limit the kinds of plant varieties which can be protected, and over a dozen flowers have been registered in India itself. The contemporary willingness of the law to recognise and protect plant varieties is a far cry from the way in which early man-made plant varieties were perceived.

In the summer of 1716, in England, Thomas Fairchild drew the tip of a feather across the stamen of a Sweet William and then brushed the stigma of a carnation with it. The following Spring, he saw that his act had led to the creation of a hybrid: the Fairchild Mule, the world's first known man-made hybrid. Its very existence seemed to fly in the face of Christian religious teaching which asserted that all plants had been created by God on the third day of creation.

“These are the generations of the heavens and of the earth when they were created, in the day that the LORD God made the earth and the heavens, And every plant of the field before it was in the earth, and every herb of the field before it grew: for the LORD God had not caused it to rain upon the earth, and there was not a man to till the ground. But there went up a mist from the earth, and watered the whole face of the ground.” (Genesis 2:4–6)

Unsurprisingly, although the first modern copyright statute had recently been enacted in 1709, the legal protection of plants was not envisaged at the time.

When Fairchild was invited to present a dried specimen of his hybrid at a meeting of the Royal Society in 1720, likely fearful of having committed blasphemy, he took the safe path and claimed that the Fairchild Mule, which incidentally proved the theory of the sexual reproduction of plants, had come into being in consequence of the Sweet William and carnation growing so close to each other that they pollinated each other by accident, leaving him to ‘find’ the hybrid in his nursery.

Fairchild seems to have been a religious man, who believed in God being the divine architect. In his day, turf and topiary were the highlight of English gardens which were startlingly bare for much of each year. And, so, his deliberate creation of a hybrid exponentially increased planting options for gardens although there was also, at the time, a deep unease with change wrought not just by human intervention but also by the importation of ‘exotics’ which were all the rage.

In the The Mower against Gardens published during Fairchild’s lifetime, Milton's friend, Andrew Marvell, wrote: “Luxurious man, to bring his vice in use, / Did after him the world seduce, [....] With strange perfumes he did the roses taint, / And flowers themselves were taught to paint. [....] Another world was searched, through oceans new, / To find the Marvel of Peru. / And yet these rarities might be allowed / To man, that sovereign thing and proud, / Had he not dealt between the bark and tree, / Forbidden mixtures there to see.”

Fairchild himself bequeathed the sum of £25 to the Trustees of the Charity Children of Hoxton, the Churchwardens of the Parish of St Leonard, Shoreditch, and the successors of each to preach ‘annually for ever’ what has come to be nicknamed the ‘Vegetable Sermon’ — “a prophylactic measure in case he had provoked God's scorn,” as Andrea Wulf describes it. He specified two possible subjects for the sermon: ‘The Wonderful Works of God in the Creation’ and ‘The Certainty of the Resurrection of the Dead, proved by the certain changes of the animal and vegetable parts of the Creation’.

Living in a world awash with plant varieties, not to mention genetically modified crops, it is now difficult to imagine one which treated hybrids with reticence bordering on fear. But, perhaps, that, too, is not inexplicable.

A Simulacrum of the World

The human world was once apparently a garden, lush and wondrous. That garden, Eden, was lost to humans and ever since, countless efforts have been made to regain it through literature and in life.

Dante animates what he imagines of Eden in Canto XXVIII of Purgatorio; his words, translated by Allen Mandelbaum read: “Now keen to search within [....] / that forest—dense, alive with green, divine— / which tempered the new day before my eyes, // without delay, I [....] took the plain [....] / across the ground where every part was fragrant. // A gentle breeze, which did not seem to vary / within itself, was striking at my brow / but with no greater force than a kind wind's, // a wind that made the trembling boughs—they all bent eagerly—incline [....] // but they were not deflected with such force / as to disturb the little birds upon / the branches in the practice of their arts; // for to the leaves, with song, birds welcomed those first hours of the morning joyously, / and leaves supplied the burden to their rhymes [....] I came upon a stream [....] // All of the purest waters here on earth, / when matched against that stream, would seem to be / touched by impurity…”

Eden was Milton’s paradise too. He wrote his masterpiece Paradise Lost after having defended the execution of Charles I. By the time he had begun writing, the republic (in England) was stumbling; it would not be long before Charles II returned, and the monarchy was restored. Times were uncertain not least for Milton himself; it was not clear if he would be executed for treason but he escaped that fate, possibly on account of the intercession of his friend Andrew Marvell. In any case, his paradise, metalepsis articulating portals between the world of his text and the world in which he found himself, examined modes of governance and futures after failure. His garden was, in some ways, the state.

The nation state is, however, not easy to remould although, following in the footsteps of Utopia by Thomas More which was first published in 1516 in Latin, there have been many attempts to reimagine it as a more equitable world. Almost every vision of Utopia has featured gardens in fact, through parable, or as metaphor although, in literature, as in life, human-beings have been remarkably resistant to realising a society which might be Utopian.

“Let but the famine-stricken nation assume the function it had neglected, and regulate for the common good the course of the life-giving stream, and the earth would bloom like one garden, and none of its children lack any good thing,” Edward Bellamy wrote in his time-travel novel Looking Backward: 2000 to 1887 which was first published in 1888. Its protagonist argued against capitalism only to find, when he expressed his ideas to a group of well-to-do people, that: “Instead of enthusiasm, the ladies showed only aversion and dread, while the men interrupted me with shouts of reprobation and contempt. [....] It seemed to me that my heart would burst with the anguish of finding that what was to me so plain and so all important was to them meaningless, and that I was powerless to make it other.”

Powerlessness to effect change is an old theme: Thomas More himself vociferously argued against the enclosure of land which dispossessed the many (often substituting them with multitudes of sheep) to cater to the greed of the few, leaving them vulnerable to be hanged when they (almost inevitably) stole food to survive. In doing so, he was also scathing when he spoke of the rich who sacrificed people for profits in the wool trade.

“And by this means very many be forced to forsake work and to give themselves to idleness,” a revision of Ralph Robinson’s 1556 translation of Utopia by Susan Bruce reads, continuing in its attack on enclosure: “For after that so much ground was enclosed for pasture an infinite multitude of sheep died of the rot, such vengeance God took of their inordinate and insatiable covetousness, sending among the sheep that pestiferous murrain, which much more justly should have fallen on the sheepmasters’ own heads.”

More was executed in 1535, not because of his words against inclosures although, as Vybarr Cregan-Reid put it: “Perhaps sealing his fate, More openly criticised the ongoing practise of enclosure, the usurpation of productive land from the peasantry for the benefit of the royal state.” The practice itself was not so much as dented by More’s advocacy against it.

On the contrary, enclosure was supplemented by emparkment, not just to fence off land to hunt but also, in time, to create picturesque views of land artificially contorted to mimic an idealised natural state. The process of emparkment which the rich engaged in not only tended to dispossess poor people locally but also to exploit poor people elsewhere; much emparkment in England was financed by the proceeds of slavery and plantations in the new world, for example.

Emparkment did not restrict itself to stately homes in the English countryside either: in India, the grounds around monuments were occasionally cleared of poor people for reasons which are unlikely to have been anything but supposedly aesthetic. It is said, for instance, that in the early 1900s, an entire village was shifted out of the grounds of Humanyun’s tomb in Delhi although it isn't clear where it was shifted.

Instead of having the garden be the human world, the garden came to be a microcosm of the supposedly civilised world, reflecting, for better and for worse, its predispositions in seeking to create beauty and order, often without the slightest reference to the human cost involved in the enterprise and with the latter brought into being not just by secateurs but also by laws drafted by the privileged and the powerful, as all laws always are.

Elements of gardens have come to be legally protected and, if one were ever required to determine which ones could be protected, the rare exception aside, one would only need to ask if the answer to: ‘Who benefits from protection?’ was: ‘Someone high up on the socio-economic ladder.’ That is the world we have created, the one we seemingly refuse to re-create.

Note: This piece by Nandita Saikia was first published at lawmatters.in. References to statutes are references to Indian statutes. In writing this piece, amongst other sources, information about gardens was gleaned from: The Brother Gardeners: Botany, Empire and the Birth of an Obsession by Andrea Wulf (Windmill Books, 2009); Cutting Back: My Apprenticeship in the Gardens of Kyoto by Leslie Buck (Timber Press, 2017); Capability Brown, Royal Gardener: The Business of Place-Making in Northern Europe edited by Jonathan Finch & Jan Woudstra (White Rose University Press, 2020); The Doctor’s Garden: Medicine, Science, and Horticulture in Britain by Clare Hickman (Yale University Press, 2021); Pompeian Peristyle Gardens by Samuli Simelius (Routledge, 2022); Why Women Grow by Alice Vincent (‎Canongate Books, 2023); The Garden Against Time by Olivia Laing (Picador, 2024).

The Changing Commons

noreply@blogger.com (Unknown) — Thu, 13 Feb 2025 16:57:00 +0000

v1.1 13 FEBRUARY 2025

An exploration of how the commons have been shaped, diminished and developed, over time… bearing in mind that the contours of the commons will determine the legitimacy of the unauthorised use of content as training data for AI

The Earth was given to the world of men in common, John Locke asserted in his 1689 Second Treatise on government, echoing Psalms 115:16. He noted that ‘no body has originally a private Dominion, exclusive of the rest of Mankind’ but also recognised that the development of a mechanism to appropriate the gifts of God, the world and that which lay in it, was necessary ‘before they can be of any use, or at all beneficial to any particular Man’.

Writing several hundred years after the commons and the proprietary began to confront each other, Locke's world was fast moving towards one in which the proprietary was the norm, and not the commons. The proprietary was not the anti-commons; it was the commons which had become the anti- proprietary. Stability was, by then, largely illusory: privilege and power were contested in what remained of the commons.

Early Servitudes

The changes in perceptions of the commons which crystallized by the 17th century arguably led directly to contemporary approaches to the commons and understandings of common rights as hard-won quasi-rights detracting from absolute and legitimate ownership. This was in stark contrast to many earlier understandings which saw common rights as vital components of systems which were responsible for holding communities together through allowances and servitudes even after the proprietary began to hold sway.

In fact, in mediæval agricultural communities, some ancient common rights seem to have been considered to be so obvious and universal that (prior to 1290, at any rate) they were seen as being not merely appurtenant to land but attendant to it; they did not necessarily require proof of either grant or usage to be recognised.

The right of pasture, for example, appears to often have been presupposed: although the servitude tended to be limited to place and by extent (for it is doubtful that anyone would have wanted the right to be exercised in gardens or within curtilages, or that it would have been acceptable to exercise it beyond the extent necessary to support cultivation), there were no arguments about whether or not it existed. It did exist, unequivocally.

1290 was a watershed year not so much because it changed ways of living but because it altered the legalities which enabled those ways of living. It was the year which saw the passing of the Quo Warranto and Quia Emptores laws (in England) which asked by what authority lords — ultimately tenants themselves — exercised jurisdiction over lands and which regulated land dealings not least by preventing land from essentially being sublet by subinfeudation.

One consequence of increased regulation, which forced the alienation of land to follow the mode of substituting tenants rather than creating sub-tenants, was that servitudes were less likely to simply be presumed to exist. In effect, the commons shrank. And they continued to shrink through the gradual weakening of feudalism, through the Black Death which changed demographics, through attempts to create efficiencies in estate management by enclosing land once either common or waste, and through philosophical support for inclosures which support also, incidentally, travelled with ease from the realm of the real to that of the intangible to become the labour theory of intellectual property.

The Privatisation of the Commons

“We see in Commons, which remain so by Compact, that 'tis the taking any part of what is common, and removing it out of the state Nature leaves it in, which begins the Property; without which the Common is of no use. And the taking of this or that part, does not depend on the express consent of all the Commoners,” as Locke put it. “Thus the Grass my Horse has bit; the Turfs my Servant has cut; and the Ore I have digg'd in any place where I have a right to them in common with others, become my Property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my Property in them.”

In having private property come into being by detraction from the commons through the efforts of the man who claims it, the labour theory of property, whether applied to intellectual or real landscapes, implicitly recognises that the endeavours of humans are essentially derivative, and that men do not create anything from nothing.

Although it is understood that Locke referred extensively to the Hebrew bible, this idea also reverberates in the 1611 King James Version’s exploration of the purpose of life which reads (in part): “What profit hath a man of all his labour which he taketh under the sun? [....] All things are full of labour; man cannot utter it: the eye is not satisfied with seeing, nor the ear filled with hearing. The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun. Is there any thing whereof it may be said, See, this is new? it hath been already of old time, which was before us.” (Ecclesiastes 1:3,8–10)

Unfortunately, in laying out his theory of the legitimate origins of private property, Locke also helped legitimise the foundation of an extraordinarily inequitable society, much like contemporary society, simply because his writing seems to champion those who either have or can commandeer physical prowess — or, in the case of intellectual property, textual and artistic skill — to the exclusion of all others. His theory punches down, not up, as one might say.

Nonetheless, Locke’s theory seems to bridge mediæval and modern textual cultures. By the time he wrote, the commons prevalent in the mediæval world had, in practice, already begun to come under the control of legal censorship and would soon be hedged in by then newly-developed copyright laws which restrained drawing from pre-existing texts and treating them as intellectual commons.

Locke's suggestion that a man could create (his own) private property by adding his labour on to what he had found in the commons engineered a mechanism through which the commons could be enclosed and made proprietary.

The Architecture of Pre-Print Textuality

Each act of copying through which mediæval manuscripts came into being invariably turned into an act of creation or transformation since not even the most skilled of scribes could be relied upon to copy a manuscript without error.

The roles of scribes, compilers, commentors, and authors were neatly categorised, at least with reference to theological texts, by Bonaventure in his commentary on The Sentences of Peter Lombard likely completed in 1254 but the categorisation invariably failed. It was, of course, most easily confounded by holograph manuscripts which saw authors copying their own texts inexactly but, even in other cases, the roles imbricated and sometimes significantly overlapped either intentionally or inadvertently turning every manuscript into a version of its exemplar, an interpretation, a recension, a revision, or even a redaction.

Scribes were generally expected to copy exemplars but they were placed in the uncomfortable position of also often being expected to emend manuscripts so that their work did not reproduce the errors contained in the exemplars they copied from. These conflicting expectations resulted in conflating the acts of copying and copyediting at one end of the spectrum and in enmeshing those of copying and composing at the other.

Not all copies were intended to be exact copies though: litteratim copies attempted to copy manuscripts letter-for-letter while verbatim copies attempted to do so word-for-word, the latter presumably correcting minor errors encountered in the process. Only in intended duplicates was the effort made to faithfully reproduce paratextual features, gloss, and mises-en-page. Replicates, on the other hand, simply focussed on copying the main text of manuscripts.

Added to this, even when mediæval manuscripts were not copies, their texts were usually drawn or transposed from earlier documents and included compilations, cartularies collecting charters possibly in archaizing hands imitating texts of the distant past, florilegia comparable to modern anthologies, and cognate texts presenting unbroken linear narratives obscuring derogations from exemplars.

Those engaged in preparing manuscripts, reproductions or derivations, would have often needed to select text and transcribe it on to new surfaces, possibly making adjustments to fit the text in. In such cases, assuming that they didn't change the import of the text, it is unlikely that they would have been considered to alter it. This heritage understanding has reverberated through the ages and likely underlies contemporary copyright laws which may explicitly state that changes to content necessitated for technical reasons do not impinge on the moral right of authors not to have their work mutilated or distorted.

On the other hand, changes to text could well be dialectically motivated to suit politics, power, personal stylistic preference or simply the morality or theological belief of those who engaged in the production of manuscripts. This tendency to mould texts can be seen from the time of Chaucer whose tales are unlikely to have been ‘original’ in the sense which copyright law understands the term through to the 19th century and beyond where translation, a form of derivative textuality, has sometimes continued to use source texts as commons for the purpose of translation, without any real enthusiasm to remain faithful to their source materials; the advent of print did not simply destroy the textual culture which preceded it in one fell swoop.

Translation, a right only included in the so-called copyright bundle in 1886 through Article 5 of the Berne Convention, could significantly alter the world of a text. The Count of Monte Cristo, Dumas’ novel written in French, was bowdlerized when it was translated into English and published in 1846, as was, it appears, every English translation which closely followed that translation. Only after a hundred and fifty years did a complete translation (that of Robin Buss published by Penguin) become available. Each new translation was undoubtedly derived from Dumas’ original novel, and, yet, developing it was the act of an author and not a scribe.

Not even texts which one might have expected to be stable, such as statute and scripture, were necessarily stable. The passive introduction of multiple versions into circulation through error aside, these texts were also actively translated, transposed, and recast to enhance access to them.

Access to Law and Religion

The 13th century Assize of Bread, arguably the law most relevant to the general population of the mediæval world, fixed the size of bread to be sold at a particular price point and accounted for fluctuations in the price of grain by explaining how the size of loaves would vary depending on the vagaries of the corn market.

The law was, however, not treated as being unalterable — adaptations and alterations were intentionally made to suit local requirements. The types of loaves contemplated by the law could be renamed so that familiar local names were used instead. Alternatively, or perhaps additionally, the text of the law could be illustrated or tabulated, or even visualised possibly by having the size of loaves be sculpted into the stone walls of public buildings as ready reckoners of a sort. Such changes made the law more easily comprehensible and, when it was incorporated into almanacs and the like, more easily portable.

At the time, making the law accessible to the public was not merely a matter of reformatting it but of testing its pliancy and possibly reconstructing its content; laws made their way into the commons even if they were not really meant to be there.

It was only from 1504 that the office of King’s Printer came into being with a printer who would print statutes, royal proclamations and other official documents. Before that, the office, which was created in 1485, was held by Peter Actors who imported books, and was not a printer. This change, for which the development of printing technologies was undoubtedly a catalyst, helped cordon off the law from the commons.

Scripture too followed a similar trajectory, ultimately being fenced off from the commons by the appearance of authorised versions. The King James Version of the Bible, an authorised version published in 1611, cautioned scribes and readers alike not to alter its words: “Ye shall not add unto the word which I command you, neither shall ye diminish ought from it, that ye may keep the commandments of the LORD your God which I command you.” (Deuteronomy 4:2) Despite what it said, till legal regulation corralled translation (which had a tendency to to amount to interpretation), the Bible had been a reasonably fluid document which had existed as a codex long before it became a book.

Attempts had been made to effect access to the Bible by wider audiences through translations into the vernacular from mediæval times. The 14th century Wycliffe Bible was the first attempt at translating the Bible into English from the Latin Vulgate. Soon after it came into being, so too did the Suppression of Heresy Act 1400: De heretico comburendo, the 1409 Oxford Constitutions under Thomas Arundel, and the Suppression of Heresy Act 1414 which together attempted to proscribe the use of the English Bible in England, enabled burning heretics at the stake, and made provision for the state to assist the church in the suppression of heresy. But not even all three instruments together succeeded in entirely suppressing the Wycliffe Bible.

Over a hundred years later, another attempt was made to translate the Bible into English, this time not from the Latin Vulgate but from the original Greek and, it is believed, Hebrew texts. This attempt was made by William Tyndale who was executed in 1536, and did not complete his translation. His work, however, was carried on by Myles Coverdale who, lacking Tyndale’s linguistic felicity, primarily relied on Luther’s German translations and Latin texts to fill in the gaps in Tyndale's translation and put together what became the Coverdale Bible first published in 1535.

Tyndale's work also became the bedrock of the Matthew Bible, which also included text translated by John Rogers and Coverdale, and was published by Rogers himself in 1537.

Both the Coverdale Bible and the Matthew Bible received a licence from the king, Henry VIII, and, in doing so, they caused the commons from which scripture was drawn to diminish into insignificance in their own time.

The Contours of the Commons

To have value, the commons should ideally be open, accessible, and usable or, in the case of the intellectual commons, editable.

The issue of authorised versions of both scripture and statute made them open and accessible to wider audiences although the process which achieved that, in both cases, had begun much before authorised versions came into being by the making available of their texts in the vernacular (via the Wycliffe Bible in the case of the former and through the use of English in statutes by the 15th century). The process, however, also inhibited the texts from being freely edited which, for all practical purposes, removed them from the commons.

Other more quotidian texts also faced similar issues: Letters Patent and the formation of the Company of Stationers began to regulate the intellectual commons by censoring what could be legally printed, and the passing of a copyright law soon after (in 1709) essentially took what had been printed completely out of the commons by making the content of texts proprietary.

The market opportunities which printing technologies presented almost certainly catalysed the change but they did not cause it; the process of changing the contours of the commons had been in the offing before the emergence of print.

The commons had, over the previous centuries, come to be diminished by the demands of ideology, theology, public health, technology, legal regulation, and market forces till they were no longer routinely viewed as essential, if sometimes unacknowledged, parts of landscapes, real or metaphorical.

Successive developments in copyright law expanded the scope of copyright, essentially a printer’s right although it was nominally an author's right, and concomitantly narrowed the scope of the commons till the only true commons became the public domain.

Exceptions to copyright and copyright infringement also developed: they were, for the most part, explicated in doctrine such as de minimis and scènes à faire, and were encapsulated in fair use and fair dealing provisions in copyright statutes. Together, these derogations from copyright maximalism came to allow protected content to be used in a restricted manner without the authorisation of their owners.

Although it would be impossible to consider copyright exceptions, new servitudes in all but name, to cause content to fall within the public domain not least because their limits are ambiguous, they do augment the commons. They tend to be sensitive to changes in technology and the demands of the market, and some exceptions have, in fact, been specifically crafted to meet the needs of information technologies, emerging and nascent, such as those dealing with the transient storage of works in the process of transmission online.

The definitional imprecision which is an almost ubiquitous feature of copyright exceptions has contributed to the commons becoming sites in which those without ownership rights confront those who hold such rights often in ways that are both unplanned and unclear, and with outcomes which may be unintended. The challenge of the 21st century will probably be determining how to accommodate the insatiable demands of artificial intelligence for training data in the intellectual landscape comprising the commons and copyright inclosures.

If history has taught us anything, it is that neither the commons nor inclosures are static. It only remains to be seen how the two will be shaped in the years to come, and who will benefit.

(This post is by Nandita Saikia and was first published at lawmatters.in. It focuses on circumstances in England since that is where the first modern copyright statute came into being but it also refers to copyright laws beyond those in England. The dates and facts contained in it have been gleaned from a number of sources including: Primary Sources on Copyright (1450-1900); Common Land and Inclosure by E.C.K. Gonner (Macmillan, 1912); The Bible, A Global History by Bruce Gordon (John Murray Press, 2024); and Britannica.)

Priorities and Power: An AI Governance Proposal

noreply@blogger.com (Unknown) — Mon, 13 Jan 2025 10:43:00 +0000

Although (non-)payments for the use of copyrighted works to train AI have taken centrestage, perhaps that's a concern which can be subsumed within the larger issues of balancing often competing interests and addressing asymmetries of power which abound in the field, issues which we would do well to engage with sooner rather than later…

For some time now, it has been in vogue to say, repeatedly and resolutely, that all creators should be remunerated for the use of their content to train generative AI. This is likely largely because companies have been known to indiscriminately scrape any and all content they manage to access, protected or not, to train artificial intelligence models, occasionally, if reports are to be believed, entering into multi-million dollar deals to access and use some copyrighted content in cases where the content in question is owned by or is in the possession of powerful corporations.

A report released in January 2025 by a sub-committee constituted by the Ministry of Electronics and Information Technology raised the issue of AI being trained with ‘bulk datasets’: it noted that such use is generally prohibited by copyright law, questioned how to ensure compliance with existing law, and wondered whether policy (and, presumably, legal) changes need to be made in light of the mass use of data to train AI. Unfortunately, the report, which dealt with the development of (Indian) guidelines to govern AI, did not make concrete proposals to help define what the path ahead should look like.

Copyright infringement in relation to the deployment of AI can occur at (at least) three points: those of input, the generation of output, and the manifestation of output. Public discussions have tended to focus on input (and the use of data to train AI) and on output (in terms of who might own the output, often in the form of potentially copyrightable works, which AI spits out and in the context of what could happen should the output infringe the intellectual property or other rights of persons or in pre-existing works) rather than on the process through which the output is generated.

This isn't entirely surprising since AI systems are often proprietary and the process through which the output is manifest is often opaque to the public eye. Consequently, not only is infringement difficult to discern but authorship: the task of pinpointing the ‘true’ author of AI output is rarely straightforward since the degree to which human involvement shapes the output can be unclear.

As for infringement: given that acts such as legitimately reproducing and adapting copyrighted works lie within the purview of their owners, it is reasonable to be quite certain that if such works are used as training data for AI without appropriate authorisation, copyright infringement is being committed while creating or developing the output of the AI. However, without knowing exactly what is done to those works (in their avatar of training data) to manifest output, it is difficult to do more than speculate about the exact manner in which copyright infringement is being committed at that intermediate stage. To be certain, it would be necessary to have AI systems be transparent. And to enforce copyright, it would be necessary to know whom to hold accountable for lapses in compliance with the law.

Transparency and accountability are generally spoken of positively (including in the sub-committee report on AI governance) but developing a workable legal model to deal with AI requires policy decisions to be made regarding how to implement goals such as these while balancing and possibly prioritising the various interests implicated by AI. Even if these interests are not always clearly competing interests, they are often non-converging or misaligned: proprietary ‘rights’ such as copyrights and trade secrets, human rights such as free speech and privacy, and public interest.

To further complicate matters, it has proved to be difficult to define AI; the committee report seems to shy away from doing so. And it is likely that a single governance regime will ultimately cover disparate forms of AI simply because it is unlikely that, even if AI lent itself to easy identification and categorisation (which it does not), there would be different regimes in place for different types of AI.

Although generative AI has been in the news incessantly since 2024, much of the AI which plays a role in daily life is agentic or predictive.

Demonstrating how definitions can be elusive, the line between agentic AI and GenAI can sometimes be quite thin and blurred: a melody could potentially be harmonized by the former, for example, but music would more likely be created from scratch with the support of the latter although what amounts to AI-generated music and what counts as human-composed music is sometimes a matter of semantics.

Predictive AI, on the other hand, probably best illustrates just how unclear the picture can become when a range of interests are simultaneously implicated by the deployment of AI.

Consider corporate proprietary AI which, hypothetically, claims to presage the occurrence of illness in a community —

If the workings of the AI are not publicly shared, they cannot be tested and the results of the AI cannot be independently replicated meaning that there would be no easy way to immediately verify if the AI does what it says on the box.

In such a case, it would be difficult to hold anyone to account before the AI had been deployed for long enough to draw inferences from its functioning if it were a spectacular failure at forecasting illness.

That said, forcing a company to share the workings of its AI could potentially violate its intellectual property rights and breach its trade secrets.

Nonetheless, enabling or allowing a company to have its AI be opaque when the stakes are high could detrimentally impact public interest.

And drawing inferences from its functioning would likely require analysing the medical information of patients and other members of the community on whom it had been deployed, potentially violating their individual privacy and, if the information had been compiled, the copyright in the compilation. Not to mention that, if such a compilation had been used to train the AI in the first place, the AI itself could also violate both copyright and privacy rights at stages from input to output manifestation.

In a context such as this, considering the immediate real-world consequences on the lives of large numbers of individuals, it is hard to argue that copyright concerns should take precedence over other concerns. And even though the situation is often vastly less muddled when it comes to generative AI with its focus on creating works, it is still often difficult to make that argument in the face of such outcomes resulting from the deployment of AI such as the generation of malicious deepfakes in addition to benign output.

Nonetheless, of all the concerns there are, copyright is probably one of the most clear-cut.

Indian copyright law, almost entirely articulated in the 1957 Indian Copyright Act, is reasonably clear that copyrighted works cannot be used to train AI without appropriate licences having been obtained except in a few extremely limited circumstances. The statute does not recognise ‘fair use’ in a manner akin to the US concept of the term. Instead, through Section 52, it excuses copyright infringement in certain specified circumstances which it lists.

The use of protected content to train AI is not explicitly excused in the list although, if the conduct involved in so using it fell within the scope of any of the use cases mentioned in Section 52, the provision could be relied upon to excuse it.

First amongst these circumstances are those listed in Section 52(1)(a) of the Indian Copyright Act which facilitates unauthorised ‘fair dealing’ with most protected works. ‘Fairness’ is generally determined using the four-factor test in § 107, Title 17, USC, and although Section 52(1)(a) does not apply to computer programmes, it could be interpreted to apply to protected works other than computer programmes used as training data.

To quote from the sub-committee report on Section 52(1)(a): “Commercial research is not exempted; not-for-profit institutional research is not exempted. Not-for-profit research for personal or private use, not with the intention of gaining profit and which does not compete with the existing copyrighted work is exempted.”

Further, although ‘transformative use’ has not been explicitly included in Section 52 of the Indian Copyright Act, it has become a valid defence against allegations of copyright infringement via case law thus demonstrating that although the statutory list of exceptions to copyright infringement is limited, it is not inflexible.

That being the case, it should be possible to frame factors or tests to have the use of protected content as training data for AI be considered fair dealing in certain circumstances, with the matter of how those circumstances could be delineated ultimately being a matter of policy and judicial determination.

Ideally, there should be a mechanism to prevent online data from being scraped to train AI in much the same way that data can be kept from being indexed by search engines. In relation to content not explicitly excluded, provided that the AI is open, is programmed so that its output is not a replica or a colourable imitation of an existing work incorporated in its training data, and is structured so that its output does not create new works in the style of specific creative humans, it could perhaps be considered eligible to benefit from a possible exception to copyright infringement if the data it intended to use to train itself were legally publicly accessible (as opposed to having been sub-licensed to AI companies without creator-consent by content aggregators, possibly traditional publishers, who normally hide content behind paywalls).

A proposal such as this would, if it were implemented, overwhelmingly exclude from the ambit of data which could be legitimately used to train AI without authorisation any content which had been made commercially available at the instance of the author. It would, however, include the bulk of data such as blog posts, SocMed posts, text, and images made available online in the form of user generated content provided that such data had not been specifically excluded.

Licensing all content protected by copyright is simply not a viable plan not only because of the practical difficulties identifying owners, negotiating licences, and paying fees but also because not all owners can be identified or want to be identified. The desire for anonymity or enhanced privacy is often entirely legitimate, and those who seek it — sexual assault survivors who speak of their experience online to raise awareness, perhaps — may not want to be stripped of their anonymity just so to become eligible to be paid some paltry sum as licence fees upon having their content be used as training data for AI.

Being forced to sacrifice privacy for pennies seems like a poor trade off, and it may not be one which everyone is willing to make despite the inescapable chant of author-owners being entitled to be paid for the use of their content to train AI.

Instead of focussing on paying all author-owners licence fees, it may be worth redirecting attention to clearly and carefully delineating circumstances in which licence fees should be paid and to determining who is entitled to issue licences in the first place. For example, it isn't at all clear that publishers who acquire works without payment to authors should have the right to licence those works en masse to AI companies for tremendous sums of money without so much as informing ‘their’ authors, let alone gaining their consent. Similarly, there should be clear legal requirements of SocMed companies to ensure that, at the very least, they obtain user consent to include their posts in training datasets.

Ultimately, copyright law functions in tandem with contract law and, instead of focussing almost exclusively on the former (particularly in relation to infringement), it would probably be more worthwhile to focus on the interface between the two to ensure as level a playing field as possible for those involved including individual content creators, corporate content aggregators, and AI companies.

India has engaged in such an exercise before: it enacted wide-ranging amendments to its copyright statute in 2012 many of which were drafted primarily with the intention of addressing asymmetrical power relations in the film and music industry by forcibly injecting a basic degree of fairness into contracts which artistes could enter into in relation to their works and performances with corporate and other players.

The time may have come to begin to engage in such a process again, this time in relation to AI not only to ensure that licensing arrangements to train AI are fair but also to force fairness into contractual arrangements which currently determine who would be considered to own the intellectual property rights subsisting in AI-generated works and works created with the support of AI.

Currently, there is little to prevent AI companies from doing what they please in relation to their AI, and a governance focus on preventing data from being scraped to train AI, if it were not supplemented with other measures to protect content creators, could do more harm than good.

This post includes text drawn from two LinkedIn posts: on AI & copyright re training in general and a proposal regarding how the issue could perhaps be handled published in late 2024 as well as from comments made to Sejal Sharma for her piece ‘MeitY's AI Regulation Report: Ambitious But No Concrete Solutions’ published on 9 January 2025.

This post is by Nandita Saikia and was first published at IN Content Law.

GenAI in Educational Institutions

noreply@blogger.com (Unknown) — Sat, 09 Nov 2024 06:00:00 +0000

GenAI is here to stay as one of the tools at the disposal of students in academic institutions regardless of what one feels or thinks about it. It brings with it the obvious problem of completely making up what it presents as facts to the undiscerning as well as more subtle harms such as possibly depriving students of the opportunity to hone their own drafting skills.

While imagining fantasy rather than dealing in fact is, for most practical purposes, anathema in academic settings, helping students to edit their own original essays and the like is not a clear and unequivocal harm since such a function could, for example, support those whose first language is not English and who do not have the benefit of being able to access a human being both able and willing to help them polish their work; given the strength of many classes, the teaching staff at most educational institutions would be immensely overworked if they were to spend vast amounts of time enhancing not just the substance but also the style of each student’s writing.

The concern, of course, is that, regardless of its possible benefits, the use of AI in academic settings is unethical. Unfortunately, this fear is compounded by there being no ironclad recognition of the fact that not all uses of automation or AI for content generation in academic settings either are or should be considered unethical even though some uses are employed as a matter of course.

For example, tools have been used in academia to generate citations in specific formats after users feed in information about sources. It's hard to imagine how such a practice could possibly be considered unethical, and, given how commonplace it is, it isn't even necessarily thought of as ‘using AI’ by those who employ it. On the other hand, prompting GenAI to write an essay of 2000 words on a particular subject and passing it off as one's own clearly isn't ethical, and should the output of the AI either rehash another scholar's work or be a colourable imitation of it, the output could well additionally plagiarise or infringe that scholar's work.

At such extremes, one probably doesn't need a specific policy to determine the occurrence of academic misconduct but much AI use falls between the two extremes such as when AI is used to simply polish a student's own writing. Determining whether or not uses which do not clearly fall at either end of the spectrum of possible uses are acceptable should be a matter of policy.

Drafting policy relating to copyright infringement and plagiarism is relatively straightforward in that, by and large, we know what constitutes plagiarism, what amounts to infringement, and how the two can be avoided even though the two terms, 'copyright infringement' and 'plagiarism', are often incorrectly used interchangeably.

Of course, plagiarism and copyright infringement often overlap but each one has quite a different import; it's entirely possible to commit one and not the other. Nonetheless, in broad terms, plagiarism can be offset by the implementation of clear guidance on citation while copyright infringement can be avoided by only reproducing or adapting copyrighted content with its owner's consent although there are exceptions to this rule of thumb especially in the field of education.

What is far more closely tied to plagiarism than copyright infringement is the violation of so-called ‘moral rights’.

The Indian copyright statute recognises two moral rights: the rights of paternity and integrity, essentially establishing visible authorship and keeping works from being mangled in ways which harm their authors, although authors are required to be proactive to benefit from either one of these rights.

To illustrate: under the 1957 Indian Copyright Act, the statutory right of an author to be identified as such is framed as the right to claim authorship rather than the right to be credited, meaning that it's unlikely that the moral right of paternity, as that right is referred to, would be violated off the bat since, in all cases, the onus is on authors to claim authorship rather than on anyone else to accord credit.

That said, whether or not moral rights are implicated, a failure to accord due credit would almost certainly amount to plagiarism, a rather more nebulous concept than moral rights for the obvious reason that while copyright and moral rights are tied to specific works recognised by copyright law, plagiarism is tied to ‘mere’ ideas which copyright law simply does not protect unless they are expressed in specific forms and formats which it recognises.

Having AI be thrown into the mix as a content generator adds complexity to the issue of determining the occurrence of academic misconduct not least because the use of AI to generate content doesn't automatically always result in the commission of copyright infringement or plagiarism, or, for that matter, in the violation of moral rights although it could do so particularly if the output were to either reproduce pre-existing words of an author verbatim or not or, alternatively, appropriate an author's ideas without credit.

And, that being the case, perhaps the need of the hour isn't so much the development of targetted AI policies but the development of a more broad-based understanding of what AI is and what constitutes acceptable uses of AI, followed by an exercise to update (what one hopes are) existing policies on plagiarism and copyright infringement so that they become more AI-aware, so to speak, both in terms of recognising the impact AI could have on a student's work and in terms of recognising that 'AI detection' tools should be used cautiously since they may not be entirely reliable.

At the end of the day, tools which automate plagiarism detection, as it is called, rely on some form of AI too, and they can find it challenging to accomplish such tasks as differentiating between the reproduction of pre-existing text as illegitimate plagiarism and as the legitimate quotation of precedent, the latter often being necessary especially in the legal field. Thankfully, this is an issue which human intervention can usually ameliorate once a plagiarism report is generated since the difference between the two would almost certainly be obvious to someone working in the field. It is, however, likely indicative of a larger issue which currently plagues AI in all its forms: it cannot be completely trusted when it is left to function by itself without human intervention.

Requiring intervention is perhaps more of a feature than a flaw when it comes to AI. As humans, we respond to our environments and to new information we encounter in ways that non-sentient intelligence cannot be relied upon to do. And, so, it is by ensuring that there is human intervention in what would otherwise be automatic processes that we can also ensure, to a degree, that those processes are fair and flexible. Ultimately, AI should be a tool at human disposal, not one which disposes humans or their plans.

Note: This post amalgamates comments on the subject made (without reference to the Jindal case) to Hera Rizwan who incorporated a portion of them in her article Did AI Write The Exam? Jindal Law Student’s Fight May Set Academic Rules published on 8 Nov 2024, two LinkedIn posts available here and here, and some previously unpublished content.

This post is by Nandita Saikia and was first published at IN Content Law.

First Impressions: The Digital Personal Data Protection Act

noreply@blogger.com (Unknown) — Mon, 21 Aug 2023 10:01:00 +0000

The current version of this post with footnotes in PDF is available here: [GoogleDocs]

WORKING DRAFT

v1, August 2023

Anomalies and Ambiguities

A Reading of India’s 2023 Digital Personal Data Protection Law

NANDITA SAIKIA

Contents

Introduction

1. Digital Personal Data

2. Data Principals

3. Data Processing and Data Breaches

4. The Location of Processing

5. Those who Process Personal Data

6. Permissible Processing at Will

7. Managing Consent for Processing

8. Withdrawing Consent for Processing

9. Individuals Requesting Their Data

10. DPDPA Exemptions

Appendix: DPDPA Povisions

re The Data Protection Board

re Penalties (Annotated Chapter)

Introduction

[Note: This document has been shared only for the purpose of academic discussion. It is not legal advice and should not be relied upon for any purpose. It has not been proofed, and it may not be accurate or complete.]

The Digital Personal Data Protection Act, 2023, (referred to as the 'DPDPA' in this document) received presidential assent on August 11, 2023, becoming Act No. 22 of 2023. The statute, which is to come into force upon notification in the official gazette, possibly on different dates for different provisions, is primarily meant to 'provide for the processing of digital personal data in a manner that recognises both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes' according to its preamble.

The statute attempts to balance three interests which are not always entirely harmonious: the protection of individuals' digital personal data, the ease of doing business, and the accomplishment of state objectives. (In fact, individuals have a duty not to suppress any material information while providing their personal data for any document, unique identifier, proof of identity or proof of address issued by the State or any of its instrumentalities.)

Left to itself, the DPDPA provides a framework allowing for optimal outcomes to be reached in theory but whether it will ultimately succeed in its ostensible aims depends, in large measure, on what the rules framed under its aegis will say.

Like most statutes, the DPDPA is intended to function in conjunction with subordinate legislation which is in consonance with it. The words 'as may be prescribed' repeatedly appear in the statute, and Section 2(v) states that 'prescribed' means 'prescribed by rules made under this Act' leaving no doubt that a great deal is to be left to the rules.

That said, the DPDPA contains a number of definitions in Section 2 although the definitions are intended to apply to the statute 'unless the context otherwise requires' which accords some interpretational flexibility to the statute or, depending on how one looks at it, some interpretational uncertainty to it.

Occasionally, the definitions effectively act as meta-definitions clarifying the meanings of words used in other definitions. For example, the term 'person' appears in the statute in a number of different contexts but, each time, it harkens back to the definition in Section 2(s) with a 'person' defined to include an individual, a Hindu undivided family, the State as defined by Article 12 of the Constitution of India, and any artificial juristic person including a company, a firm, an association of persons or a body of individuals, whether incorporated or not).

In essence, the DPDPA envisages the personal data of individuals (called 'Data Principals') being processed for and sometimes by 'Data Fiduciaries' who may occasionally qualify as 'Significant Data Principals'. 'Data Processors' may carry out the actual data processing and, if consent is required for personal data processing or if data principals have concerns, 'Consent Managers' and, if data fiduciaries are 'Significant Data Fiduciaries', 'Data Protection Officers' step in to smoothen out issues. The DPDPA also envisages the creation of a Data Protection Board of India established by the Central Government, referred to as the 'Board' in the statute, to support the implementation of the statute and help address grievances; it devotes three chapters (reproduced in the Appendix of this document) to its functioning and to dispute resolution in general. This breathless recapitulation of the statute entirely elides the nuance in its text.

It appears that the coming into force of Section 44 of the DPDPA will make the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, which have shaped the field since they were issued in 2011, defunct; the 2011 Rules were issued in exercise of the powers conferred by Sections 43A and 87(2)(ob) of the Information Technology Act, 2000, and Section 44 of the DPDPA has the effect of omitting both of these provisions from the Information Technology Act. It follows that subordinate legislation issued under the aegis of provisions which are no longer in force cannot themselves continue to remain in force. As such, upon coming into force, the DPDPA will be the primary law governing digital personal data.

Possibly recognising the power differentials that can exist between data fiduciaries and data principals, Section 8(1) categorically requires each data fiduciary to be responsible for complying with the statute and the rules thereunder 'in respect of any processing undertaken by it or on its behalf by a Data Processor' regardless of whether or not data principals carry out their statutory duties, and 'irrespective of any agreement to the contrary'. In other words, data fiduciaries cannot either contract out of their responsibilities or shrug them off by claiming that data principals have not performed their duties. Amongst other duties enumerated in Section 15, data principals have a duty to comply with the provisions of all the applicable laws while exercising rights under the DPDPA.

The statute also seems to follow a rough duty-right formula. For example, while data fiduciaries are required to establish effective mechanisms to redress the grievances of data principals, data principals have a duty not to register false or frivolous grievances or complaints with Data Fiduciaries or the Board. 'At any stage after receipt of a complaint, if the Board is of the opinion that the complaint is false or frivolous, it may issue a warning or impose costs on the complainant.'

Given the granularity in the statute, compliance checklists are, by and large, meaningless unless they are bespoke lists drafted keeping in mind factors such as the identity and nature of the data fiduciaries involved, the category to which the relevant data principals belong, the purpose for which personal data is to be processed and the intended location of processing.

The statute itself does not assume that implementing its provisions will be without hiccoughs. 'The Central Government may, for the purposes of this Act, require the Board and any Data Fiduciary or intermediary to furnish such information as it may call for., and for three years after the commencement of the statute, if 'any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for removing the difficulty'.

This document, very much a work in progress at this stage, comprises a largely intratextual reading of the DPDPA which, largely ignoring the provisions relating to dispute resolution and the functioning of the Board, attempts to explore what the statute says… with limited success. The tale of the DPDPA appears to be one of ambiguities and anomalies in part due to the statute leaving so much to be determined by subordinate legislation and in part due to its drafting often being less than a model of clarity.

References to 'Sections' in this document are references to Sections of the DPDPA unless otherwise stated, and the term 'Section' has been used to refer to the various provisions of the statute even though the statute itself occasionally uses the term 'Clause'.

Digital Personal Data

The question of what constitutes digital personal data is perhaps best answered by a cumulative reading of three definitions in the DPDPA: those of 'data', 'digital data', and 'digital personal data'.

2(h). 'data' means a representation of information, facts, concepts, opinions or instructions in a manner suitable for communication, interpretation or processing by human beings or by automated means;

2(t). 'personal data' means any data about an individual who is identifiable by or in relation to such data;

2(n). 'digital personal data' means personal data in digital form;

Thankfully, the definition of 'data' is reasonably clear although the definition of 'personal data' is not as clear: it speaks of 'data about an individual who is identifiable by or in relation to such data'. An individual being identifiable by data indicates that the individual could be named in the relevant 'data' to make it 'personal data' or that the 'data' could drop a large enough number of hints to make it possible to identify an individual it referred to. Given that both these options are covered by the words 'any data about an individual who is identifiable by [....] such data', it is entirely unclear why the statute includes the words 'or in relation to' in the part omitted by the quote in this sentence or what purpose the words 'or in relation to' are intended to serve in Section 2(t).

Data Principals

The individual referred to in Section 2(t) defining 'personal data' as 'any data about an individual who is identifiable by or in relation to such data' is, in fact, a 'data principal' per Section 2(j) — in circular fashion, the latter provision defines a 'data principal' to mean 'the individual to whom the personal data relates and where such individual is— (i) a child, includes the parents or lawful guardian of such a child; (ii) a person with disability, includes her lawful guardian, acting on her behalf'. The definition of a 'data principal' is expository and illustrative (rather than being categorical and definitive), and has the astounding effect of potentially allowing an unspecified number of people not only to act on behalf of two classes of individuals — minors and persons with disabilities — but also to take their place. In the case of persons with disabilities, this is without reference to the nature or severity of their disability or their competence to contract.

In addition to the statute itself allowing for people to step into the shoes of data principals in certain cases, data principals also have 'the right to nominate, in such manner as may be prescribed, any other individual, who shall, in the event of death or incapacity of the Data Principal, exercise the rights of the Data Principal' with 'incapacity' referring to the relevant data principals' inability to exercise their rights under the DPDPA or its rules due to unsoundness of mind or infirmity of body.

Data Processing and Data Breaches

Section 2(x) of the DPDPA defines 'processing' in relation to personal data to mean 'a wholly or partly automated operation or set of operations performed on digital personal data' and then goes on to say that it 'includes operations such as collection, recording, organisation, structuring, storage, adaptation, retrieval, use, alignment or combination, indexing, sharing, disclosure by transmission, dissemination or otherwise making available, restriction, erasure or destruction'.

Section 2(h) which defines 'data' recognises that data can be processed by human beings or by automated means. However, ultimately, it is only the processing of digital personal data by means that are at least partially automated which constitutes 'processing' within the scope of the definition of the term in Section 2(x) although, strangely enough, the provision recognises 'processing' in relation to personal data as the performance of at least partially automated operations on digital personal data. It isn't at all clear what this is intended to mean. Presumably, one must be satisfied knowing that without automation, there is no data processing recognised by Section 2(x) which occurs, and, without such recognition, Section 3, which describes what sorts of data processing the DPDPA applies to, cannot even come into play — regardless of what operation is conducted, and regardless of where it is conducted — since without there being any automation at all in the conduct of a data processing operation, it would falter at the threshold of Section 3 and likely fail to fall within the scope of the statute.

Data fiduciaries must protect personal data in their possession or under their control, including in respect of any processing undertaken by them or on their behalf by Data Processors, by taking reasonable security safeguards to prevent personal data breach. Although the statute itself does not explain what it means by 'reasonable security safeguards', it is possible that subordinate legislation will do so; Section 40(2)(z) to frame rules consonant with the statute on 'any other matter which is to be or may be prescribed or in respect of which provision is to be, or may be, made by rules'.

In addition to this specific requirement, data fiduciaries must also 'implement appropriate technical and organisational measures to ensure effective observance of' the provisions of the DPDPA and its rules.

Should personal data be breached, data fiduciaries must intimate the Board and each affected data principal in the prescribed manner. Once it is intimated that personal data has been breached, the Board may 'direct any urgent remedial or mitigation measures', inquire into the breach, and impose a statutory penalty provided by the DPDPA.

Through an amendment to the Information Technology Act, 2005, via the DPDPA, data principals would not be entitled to any compensation in relation to their data being breached — penalties may be payable but the DPDPA states that those penalties would be credited to the Consolidated Fund of India.

The Location of Processing

The statute applies beyond India although the manner in which it operates differs within India and abroad. If the conduct of an operation for the purpose of processing data crosses the automation-erected threshold of Section 3 and does not fall within the scope of any of the exceptions in the provision, the applicability of the DPDPA is determined with regard to the type of data being processed, the context in which data is processed, and the territory of processing.

Within India, under Section 3(a) and subject to the provisions of the statute itself, the DPDPA applies to the processing of digital personal data regardless of whether personal data is collected in non-digital form and digitised subsequently or whether personal is collected in digital form right at the outset i.e. as digital personal data.

Although the Central Government may, by notification, restrict the transfer of personal data by data fiduciaries for processing to a specific country or territory outside India, Section 16 suggests that personal data can ordinarily be processed outside India unless there are sectoral legal restrictions in other laws which provide 'for a higher degree of protection for or restriction on transfer of personal data by a Data Fiduciary outside India in relation to any personal data or Data Fiduciary or class thereof' — presumably, despite drafting ambiguities, the 'restriction' referred to in the provision applies to transfers of personal data outside India rather than to data fiduciaries outside India.

Pertinently, Section 38(1) states that the DPDPA supplements other laws in force rather than derogating from them, and Section 38(2) states: 'In the event of any conflict between a provision of this Act and a provision of any other law for the time being in force, the provision of this Act shall prevail to the extent of such conflict.' It isn't obvious that these two sub-sections of Section 38 are consistent with each other.

Further, Section 81 of the Information Technology Act, the IT Act, states that the provisions of the IT Act 'shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 (14 of 1957) or the Patents Act, 1970 (39 of 1970)'.

Section 44(2)(b) of the DPDPA amends Section 81 of the IT Act but only to the extent of adding 'or the Digital Personal Data Protection Act, 2023' after 'the Patents Act, 1970' in its proviso leaving clauses in both Section 38(2) of the DPDPA and Section 81 of the IT Act which accord overriding privilege to the statutes in which each of them are placed. It is entirely unclear how they are meant to be read harmoniously, especially considering that there are likely to be a number of areas in which the two statutes deal with substantially the same subject matter, unless a straightforward assessment is made based on the assumption that the latter statute will always prevail. Such an assessment could, however, lead to unintended consequences as time goes by and as new statutes are added to the country's corpus juris.

In any case, under the DPDPA, notifications which restrict cross-border data transfers must be laid before both houses of parliament and, if both houses agree, within the 30-day timeframe contemplated by the statute, that a specific notification either should not have been issued or should be modified, that notification shall cease to have effect or have effect in modified form, as the case may be, from the date the houses so agree without prejudice to the validity of any act performed while the original form of the notification was in force.

Beyond India, under Section 3(b) and subject to the provisions of the statute itself, the DPDPA applies to the processing of digital personal data (and not, it appears, of non-digitised personal data, giving rise to an inconsistency between Sections 3(b) and 16) in connection with any activity related to offering of goods or services to data principals in India.

There is no provision which says that it is immaterial whether or not data is collected in digital form when processing is to take place beyond India although, it could perhaps be argued that such a provision would be as unnecessary in relation to data processing beyond India as it arguably is to data processing in India since Section 2(n) in any case defines 'digital personal data' to mean 'personal data in digital form' without reference to its initial mode of collection.

Those who Process Personal Data

The answer to whose personal data will be processed is easier to answer than the question of who will undertake the processing.

The statute appears to envisage personal data processing being conducted for data fiduciaries but not by data fiduciaries or, at any rate, not necessarily by them. It defines data fiduciaries to mean persons 'who alone or in conjunction with other persons' determine 'the purpose and means of processing of personal data', and goes on to state that certain data fiduciaries or classes thereof may be designated as 'significant data fiduciaries' by the Central Government via notification under Section 10 'on the basis of an assessment of such relevant factors as it may determine, including—(a) the volume and sensitivity of personal data processed; (b) risk to the rights of Data Principal; (c) potential impact on the sovereignty and integrity of India; (d) risk to electoral democracy; (e) security of the State; and (f) public order'.

In essence, significant data fiduciaries must, in addition to complying with all the demands made of data fiduciaries by the statute, also each appoint a Data Protection Officer and an independent data auditor. A Data Protection Officer must be an individual based in India. There are no comparable mandates regarding who may act as an independent data auditor so, presumably, both individuals and juristic persons may do so regardless of where they are based. That said, both Data Protection Officers and independent data auditors must carry out the functions which Section 10(2) of the DPDPA assigns to them:

10(2). The Significant Data Fiduciary shall— (a) appoint a Data Protection Officer who shall— (i) represent the Significant Data Fiduciary under the provisions of this Act; (ii) be based in India; (iii) be an individual responsible to the Board of Directors or similar governing body of the Significant Data Fiduciary; and (iv) be the point of contact for the grievance redressal mechanism under the provisions of this Act; (b) appoint an independent data auditor to carry out data audit, who shall evaluate the compliance of the Significant Data Fiduciary in accordance with the provisions of this Act; and (c) undertake the following other measures, namely:— (i) periodic Data Protection Impact Assessment, which shall be a process comprising a description of the rights of Data Principals and the purpose of processing of their personal data, assessment and management of the risk to the rights of the Data Principals, and such other matters regarding such process as may be prescribed; (ii) periodic audit; and (iii) such other measures, consistent with the provisions of this Act, as may be prescribed.

Each data fiduciary must publish, in the prescribed manner, the business contact information of a Data Protection Officer, if applicable, or a person who is able to answer, on their behalf, questions which data principals may raise about the processing of their personal data.

The DPDPA envisages the actual processing of personal data being conducted by data processors which it defines as persons who process personal data on behalf of data fiduciaries indicating, by the use of the words 'on behalf of', that where data processors are involved, data processing is outsourced rather than carried out in-house by data fiduciaries. Whether this indication is intentional or meant to be effective and to truly segregate data fiduciaries and data processors is an open question. It would probably be prudent to assume that the implicit segregation is no more than a drafting anomaly, and that data processing may be carried out in-house by data fiduciaries.

Section 8(2) allows data fiduciaries to 'engage, appoint, use or otherwise involve' data processors for the purpose of processing personal data on their behalf 'for any activity related to offering of goods or services to data principals only under a valid contract'. The provision excludes activities which do not involve providing goods and services to data principals, and, as such, could potentially exclude activities such as certain kinds of research from its scope meaning that, if a data fiduciary were having personal data processed for purposes which did not involve providing goods and services to the relevant data principals, the statute would not require the data fiduciary to compulsorily enter into a valid contract for personal data processing. This, too, may simply be a drafting anomaly and prudence would suggest that data fiduciaries enter into clear and valid contracts with data processors for the processing of personal data.

Section 4 allows persons (without specifying if the persons must be data fiduciaries or data processors) to process the personal data of data principals only in accordance with the provisions of the DPDPA and for a lawful purpose (meaning any purpose which is not expressly forbidden by law) either with the consent of the data principal or for 'certain legitimate uses' recognised by the statute in Section 7. Section 4 appears in 'Chapter II: Obligations of Data Fiduciary' so perhaps one can reasonably safely assume that the persons referred to in Section 4 who may process personal data include data fiduciaries.

The assumption that data fiduciaries may process personal data directly is buttressed by Section 7 which begins by saying that 'a Data Fiduciary may process personal data of a Data Principal' in circumstances which it goes on to describe. The construction 'a data fiduciary may process or have processed' in relation to personal data processing is alien to the DPDPA although the statute implies that the phrase is embedded in its underlying rationale and, that being the case, it is likely that the statute intends to have obligations relating to personal data processing apply to whoever is responsible for it either by the performance of data processing operations or by instigating their performance.

Additionally, if the 'personal data processed by a Data Fiduciary is likely to be— (a) used to make a decision that affects the Data Principal; or (b) disclosed to another Data Fiduciary, the Data Fiduciary processing such personal data shall ensure its completeness, accuracy and consistency'.

Permissible Processing at Will

As a general rule, personal data processing requires the consent of the relevant data principals. However, Section 7 lists a number of circumstances in which the consent of data principals is not required to process their personal data. By and large, these exceptions are for state purposes, to comply with judicial decisions, to protect those making disclosures required of them by law, to take steps to address health issues and various disasters, and to protect employers.

And, even where consent is required to process personal data, there exists a loophole: data fiduciaries may process personal data which has been voluntarily provided to them by data principals both for the purposes which data principals have agreed to and 'in respect of which' data principals have not refused consent. The use and placement of the words 'in respect of which' in the provision makes it ambiguous — it could potentially mean, in effect, that once a data fiduciary legally acquires a data principal's personal data, they can process it in whatever manner they choose unless the data principal has forbidden them to do so. The words could also, far more legitimately, simply mean that data fiduciaries may process personal data voluntarily acquired from data principals in ways that are incidental to the specified purpose which data principals have previously agreed to (unless data principals have forbidden such use) without being required to approach data principals for each operation involving the incidental processing of personal data ancillary to the specified purpose.

Either way, Section 7 is worth reading in its entirety, and has been reproduced here without its accompanying illustrations.

7. A Data Fiduciary may process personal data of a Data Principal for any of following uses, namely:—

(a) for the specified purpose for which the Data Principal has voluntarily provided her personal data to the Data Fiduciary, and in respect of which she has not indicated to the Data Fiduciary that she does not consent to the use of her personal data.

(b) for the State and any of its instrumentalities to provide or issue to the Data Principal such subsidy, benefit, service, certificate, licence or permit as may be prescribed, where–(i) she has previously consented to the processing of her personal data by the State or any of its instrumentalities for any subsidy, benefit, service, certificate, licence or permit; or (ii) such personal data is available in digital form in, or in non-digital form and digitised subsequently from, any database, register, book or other document which is maintained by the State or any of its instrumentalities and is notified by the Central Government, subject to standards followed for processing being in accordance with the policy issued by the Central Government or any law for the time being in force for governance of personal data.

(c) for the performance by the State or any of its instrumentalities of any function under any law for the time being in force in India or in the interest of sovereignty and integrity of India or security of the State;

(d) for fulfilling any obligation under any law for the time being in force in India on any person to disclose any information to the State or any of its instrumentalities, subject to such processing being in accordance with the provisions regarding disclosure of such information in any other law for the time being in force;

(e) for compliance with any judgment or decree or order issued under any law for the time being in force in India, or any judgment or order relating to claims of a contractual or civil nature under any law for the time being in force outside India;

(f) for responding to a medical emergency involving a threat to the life or immediate threat to the health of the Data Principal or any other individual;

(g) for taking measures to provide medical treatment or health services to any individual during an epidemic, outbreak of disease, or any other threat to public health;

(h) for taking measures to ensure safety of, or provide assistance or services to, any individual during any disaster, or any breakdown of public order. Explanation.— For the purposes of this clause, the expression 'disaster' shall have the same meaning as assigned to it in clause (d) of section 2 of the Disaster Management Act, 2005; or

(i) for the purposes of employment or those related to safeguarding the employer from loss or liability, such as prevention of corporate espionage, maintenance of confidentiality of trade secrets, intellectual property, classified information or provision of any service or benefit sought by a Data Principal who is an employee.

There are also special provisions in the DPDPA to protect the interests of minors. Data fiduciaries cannot legally process personal data in ways that are likely 'to cause any detrimental effect on the well-being' of minors, or, unless permitted by subordinate legislation possibly only in relation to minors above a certain age, undertake either tracking or behavioural monitoring of children or targeted advertising directed at children.

Managing Consent for Processing

If personal data cannot be legally processed without consent, it follows that consent must be obtained to process personal data. For good measure, the DPDPA states that the consent granted by data principals must signify an agreement to their data being processed for specified purposes set out by data fiduciaries going no further than to allow the processing of personal data necessary for the specified purposes. In other words, presumably, data fiduciaries cannot legitimately conduct fishing expeditions to collect personal data just in case it might be useful some time; all personal data collected must be necessary for the specified purposes.

Although the statute accords a degree of protection to data principals, it also imposes a duty on them to ensure that they do not impersonate other persons while providing their personal data for a specified purpose.

In general, data principals whose personal data is to be processed may consent to the processing of their own personal data although, unless otherwise prescribed possibly only in relation to minors above a certain age, Section 9(1) requires data fiduciaries to obtain verifiable consent, in a manner which may be prescribed, from the lawful guardians of those persons with disabilities who have lawful guardians as well as from the parents or lawful guardians, as the case may be, of children.

Data principals may 'give, manage, review or withdraw' their consent to data fiduciaries for the processing of their personal data through, the statute insists, 'an accessible, transparent and interoperable platform', with their single point of contact being a person known as a 'consent manager' acting on their behalf who is registered with the Board. Although the Board may look into registration irregularities, statute does not delve into who would be eligible to register as a consent manager or how consent managers would perform their obligations and be held accountable, leaving the decision to subordinate legislation but, given the definition of 'person' in Section 2(s), a consent manager could potentially be, amongst others, an individual, a Hindu undivided family, the State as defined by Article 12 of the Constitution of India, or any artificial juristic person including a company, a firm, an association of persons or a body of individuals, whether incorporated or not. By itself, the statute does not specify if consent management must be outsourced to third parties by data fiduciaries or consent management can be handled in-house, so to speak.

Should data principals develop grievances in respect of acts or omissions of data fiduciaries or consent managers regarding the performance of their obligations in relation to the data principals' own personal data or the exercise of data principals' rights under the DPDPA, Section 13(1) states that they 'shall have the right to have readily available means of grievance redressal provided by a Data Fiduciary or Consent Manager'. Data fiduciaries and consent managers must respond to grievances within a certain time after they are received although the statute leaves the timeframe for a response to be sent out to subordinate legislation allowing for the possibility of different timeframes being set down for different classes of data fiduciaries. Once the opportunity to redress grievances by approaching data fiduciaries and consent managers directly is exhausted, data principals may approach the Board to address grievances.

All of this, of course, means that to obtain the consent of data principals to process their personal data, data fiduciaries must inform data principals, by way of notices accompanying or preceding requests for consent (or as soon as reasonably practicable in cases where data principals have granted consent before the date of commencement of the DPDPA), what personal data they want to process, and why they want to process it. They should, it appears, limit their requests for consent to requests to process only such personal data as is necessary for the purposes which they specify in their notices to data principals, that is, the 'specified purposes'. Additionally, Sections 5(1)(ii) and (iii) also require data fiduciaries to inform data principals how to withdraw consent, and how to raise grievances both directly with the concerned data fiduciaries and consent managers as well as with the Board.

Without this basic information being provided, the consent given by data principals to data fiduciaries to permit the processing of their personal data cannot be 'free, specific, informed, unconditional and unambiguous with a clear affirmative action', as the statute requires even though a caveat in Section 5(2)(b) allows data fiduciaries to continue processing personal data until consent for processing is withdrawn in cases where data principals have granted consent before the date of the commencement of the DPDPA. Grants of consent which constitute an infringement of the statute, its subordinate legislation, or any other law in force are invalid to the extent of such infringement.

Strangely, Section 5(3) requires data fiduciaries to give Data Principals the option to access the contents of these notices in English or any language specified in the Eighth Schedule to the Constitution. This provision does not specify the language of the notices themselves but limits the languages of mechanisms to access to the notices — it isn't at all clear why this is the case. Even if it is read to mean that the notices themselves must be in the specified languages, courtesy this provision, the notices could potentially be in languages comprehensible to only a small fraction of data principals.

The DPDPA appears to treat these informational notices associated with consent separately from requests for consent themselves. However, in Section 6(3), it uses almost the same linguistic formulation in relation to requests for consent as it does for notices associated with consent adding only that requests for consent must be in clear and plain language. Also, requests for consent must provide 'the contact details of a Data Protection Officer, where applicable, or of any other person authorised by the Data Fiduciary to respond to any communication from the Data Principal for the purpose of exercise of her rights' under the statute.

Withdrawing Consent for Processing

Consent for consent-based personal data processing can be withdrawn at any time by data principals with 'the ease of doing so' required to be comparable to the ease with which such consent was given'. Once consent is withdrawn, 'the Data Fiduciary shall, within a reasonable time, cease and cause its Data Processors to cease processing the personal data of such Data Principal' unless such processing without consent is required or authorised under the provisions of the DPDPA, its subordinate legislation or any other law in force in India.

Strangely, in what appears to be a drafting anomaly, the provision only requires data fiduciaries to cause their data processors to stop processing the personal data of data principals who have withdrawn consent and not to stop processing data themselves. This is, however, a technicality and one can assume that a purposive interpretation of the provision would require data fiduciaries to both stop processing personal data themselves and to stop data processors acting on their behalf from doing so upon the withdrawal of consent for such processing. Such a purposive interpretation of Section 6(6) is supported by Section 8(7) which requires data fiduciaries to erase the personal data of data principals upon the latter withdrawing consent and to cause their data processors to erase the personal data as they have made available to the data processors for processing 'unless retention is necessary for compliance with any law for the time being in force'. Since it would not be possible for data fiduciaries to process personal data which they have erased, they would necessarily also have to stop processing such data themselves.

However, the construction of Section 8(7) leaves much to be desired. It states: 'A Data Fiduciary shall, unless retention is necessary for compliance with any law for the time being in force,— (a) erase personal data, upon the Data Principal withdrawing her consent or as soon as it is reasonable to assume that the specified purpose is no longer being served, whichever is earlier; and (b) cause its Data Processor to erase any personal data that was made available by the Data Fiduciary for processing to such Data Processor'. Although one can sense what it intends to convey, upon close reading, it appears that once 'it is reasonable to assume that the specified purpose [for which data fiduciaries have informed data principals that personal data will be processed] is no longer being served', it is only data fiduciaries have an obligation to erase personal data under this provision.

Section 8(8) then clarifies when the 'specified purpose' mentioned in Section 7(a) will 'be deemed to no longer be served' by stating that such an eventuality will occur if a data principal neither approaches the data fiduciary, that is, initiates contact with the data fiduciary in person or by way of communication in electronic or physical form, for the performance of the specified purpose nor exercises any of their rights in relation to such processing for, in both cases, 'such time period as may be prescribed' possibly with different time periods being prescribed for different classes of data fiduciaries and for different purposes.

A purposive interpretation of Section 8(7) would probably suggest that in cases of consent-based data processing, unless legally required, personal data can be retained only by data fiduciaries and data processors for as long as they need to retain personal data for the processing that the data principals have agreed to although that date may be brought forward to whenever the relevant data principals withdraw consent presumably for data processing as the statute does not appear to separately contemplate consent for data retention — although this is not quite what Section 8(7) literally says, it is likely an interpretation which cannot fall foul of it.

Section 12 which also deals with erasure in part, however, does not appear to be entirely in consonance with Section 8(7). Under Section 12, in cases where they have previously consented, including per Section 7(a), to having their personal data be processed, data principals have the right to have such personal data erased, corrected, completed or updated 'in accordance with any requirement or procedure under any law for the time being in force'. Data principals must 'furnish only such information as is verifiably authentic, while exercising the right to correction or erasure' under the DPDPA or its rules.

Under Section 12(3), upon receiving requests in the prescribed manner from data principals to erase their personal data in such circumstances, data fiduciaries must erase the data unless it is necessary to retain it for the specified purpose or to comply with any law. Further, under Section 12(2), data fiduciaries must correct, complete or update the personal data of data principals if they so request — unlike in the case of erasing data, there is no mention of data principals needing to use a prescribed form to request that personal data be corrected, completed or updated in Section 12(2) although such forms could well be introduced to the law by subordinate legislation.

The provision in Section 12 enabling personal data to be retained for the specified purpose despite a request for erasure having been made appears to directly contradict the provision in Section 8 which speaks of personal data being erased once 'it is reasonable to assume that the specified purpose is no longer being served'. It is unclear how both of these provisions can operate simultaneously.

Whatever the case though, data principals bear the consequences of withdrawing consent, and withdrawal does not affect the legality of pre-withdrawal consent-based personal data processing.

Individuals Requesting Their Data

Upon making a request in the prescribed manner to data fiduciaries to whom they have previously granted consent, including consent as referred Section 7(a), to process personal data, Section 11 States that data principals have the right to obtain a summary of the personal data which is being processed by data fiduciaries (although it is unclear whether this is restricted to data being processed by fiduciaries themselves or whether it extends to data being processed for them too), and, unless the sharing is with another data fiduciary 'authorised by law to obtain such personal data' pursuant to a written request it has made to prevent, detect, investigate, prosecute, or punish offences or cyber incidents, data principals may also request and obtain, the names of data processors and other data fiduciaries with whom personal data may have been shared along with a description of the personal data so shared by the data fiduciaries originally granted consent, and any other prescribed information related to the data principals' personal data and its processing.

There has hitherto been statutory provision allowing individuals to seek personal data through the 2005 Right to Information Act, the 'RTI Act'. However, through a provision which not only keeps citizens from going on fishing expeditions to uncover other people's personal data but also potentially keeps them from accessing their own personal data, the DPDPA changes Section 8(1)(j) of the RTI Act to read: 'Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information which relates to personal information.' The seeming prohibition on seeking any personal data including one's own seems entirely inconsistent with Section 11 of the DPDPA.

That said, the non obstante clause at the beginning of the rehashed version of Section 8(1)(j) of the RTI Act, like its predecessor, only applies to the other provisions of the RTI Act itself. So, one could read Section 11 of the DPDPA harmoniously with Section 8(1)(j) of the RTI Act, to mean that citizens cannot access personal data through the RTI Act which they would not be entitled to access via the DPDPA. If all the other conditions required by the RTI Act were met, such a construction of the law would enable citizens to access their own personal data through the RTI Act without being at the mercy of how those assessing their RTI applications understood the term 'public interest', always an unstable and inexact term.

(At the time it was enacted, Section 8(1)(j) of the RTI Act read: 'Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information'.)

The question of how Section 8(1)(j) of the RTI Act will be interpreted, however, remains open not least because, read together, the two subsections of Section 38 of the DPDPA which deals with 'consistency with other laws' suggest that the DPDPA both supplements and supersedes other statutes; there is no indication of how it realises these two disparate and seemingly contradictory positions simultaneously although, perhaps, one could read the provision to mean that where the tenor of two laws is compatible, they build upon each other, and, that, in other cases, the DPDPA supersedes other laws.

The amendment to the RTI Act has the potential to make it easier for people to seek their own data in cases which fall within its scope but whether that potential will be realised depends largely on how it is interpreted in conjunction with Section 11 of the DPDPA.

DPDPA Exemptions

It is worth treading carefully: the DPDPA does not apply to vast swathes of activity (including processing) which could occur in relation to personal data. It also allows the Central Government to issue notifications for five years after the commencement of the statute declaring that any of its provisions shall not apply to such data fiduciaries or classes thereof for specified lengths of time.

Section 17(2), buried in the depths of the statute, grants a wholesale exemption from the statute to personal data processing not only by instrumentalities of the state notified by the Central Government in 'the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign States, maintenance of public order or preventing incitement to any cognizable offence relating to any of these' and 'by the Central Government of any personal data that such instrumentality may furnish to it' but also, it appears, by the state, its instrumentalities, and anyone else if personal data processing is conducted in accordance with prescribed standards, is not used to make decisions specific to the individuals whose data is processed, and is necessary for research, archiving or statistical purposes. It is not difficult to suspect that a vast array of data processing operations could somehow be defined so as to be pigeonholed within the scope of these exemptions.

Sections 8(7) and 12(3) dealing with the erasure of personal data by data fiduciaries and, if 'processing is for a purpose that does not include making of a decision that affects the Data Principal', and Section 12(3) which enables data principals to correct, complete, or update their personal data simply do not apply in respect of processing by the State or any of its instrumentalities.

Except for two general obligations requiring data fiduciaries to comply with the DPDPA and the rules made under it even if they enter into contrary contracts with data principals and to take reasonable security measures to prevent breaches of personal data in their possession or control, Chapter II detailing the obligations of data fiduciaries, CHAPTER III detailing the rights and duties of data principals, and Section 16 dealing with the processing of personal data outside India shall not apply, the statute says, where:

(a) the processing of personal data is necessary for enforcing any legal right or claim;

(b) the processing of personal data by any court or tribunal or any other body in India which is entrusted by law with the performance of any judicial or quasi-judicial or regulatory or supervisory function, where such processing is necessary for the performance of such function;

(c) personal data is processed in the interest of prevention, detection, investigation or prosecution of any offence or contravention of any law for the time being in force in India;

(d) personal data of Data Principals not within the territory of India is processed pursuant to any contract entered into with any person outside the territory of India by any person based in India;

(e) the processing is necessary for a scheme of compromise or arrangement or merger or amalgamation of two or more companies or a reconstruction by way of demerger or otherwise of a company, or transfer of undertaking of one or more company to another company, or involving division of one or more companies, approved by a court or tribunal or other authority competent to do so by any law for the time being in force; and

(f) the processing is for the purpose of ascertaining the financial information and assets and liabilities of any person who has defaulted in payment due on account of a loan or advance taken from a financial institution, subject to such processing being in accordance with the provisions regarding disclosure of information or data in any other law for the time being in force.

Section 5 dealing with notices that data fiduciaries must generally provide to data principals to obtain valid consent to process their data, Section 8(3) requiring data fiduciaries to ensure the completeness, accuracy and consistency of personal data which is likely either to be used to make decisions affecting data principals or disclosed to other data fiduciaries, Section 8(7) dealing with the retention and erasure of personal data by data fiduciaries and their data processors, Section 10 dealing with the additional obligations imposed upon significant data fiduciaries, and Section 11 dealing with data principals' right to access information about personal data may all not apply to data fiduciaries or specific classes thereof, including startups, if the Central Government issues a notification to that effect having regard to the volume and nature of personal data processed.

Further, Section 3 of the DPDPA provides that, subject to the provisions of the statute itself, the DPDPA shall not apply to—(i) personal data processed by an individual for any personal or domestic purpose; and (ii) personal data that is made or caused to be made publicly available by—(A) the Data Principal to whom such personal data relates; or (B) any other person who is under an obligation under any law for the time being in force in India to make such personal data publicly available'.

Instead of simply assuming that the DPDPA applies to personal data processing, it appears that it would be prudent to double-check whether it does actually apply, in whole or in part, to the specific data processing operations one has in mind. Although this document does not continually use the formulation 'except in cases where the DPDPA or the relevant provisions of the statute do not apply', all the rights and obligations of the various stakeholders involved are subject to broad statutory exemptions including those which may be set out in subordinate legislation.

Appendix: DPDPA Provisions

re The Data Protection Board

2. Definitions. In this Act, unless the context otherwise requires,— (a) 'Appellate Tribunal' means the Telecom Disputes Settlement and Appellate Tribunal established under section 14 of the Telecom Regulatory Authority of India Act, 1997; [....] (e) “Chairperson” means the Chairperson of the Board; [....] (m) “digital office” means an office that adopts an online mechanism wherein the proceedings, from receipt of intimation or complaint or reference or directions or appeal, as the case may be, to the disposal thereof, are conducted in online or digital mode; [....] (o) “gain” means— (i) a gain in property or supply of services, whether temporary or permanent; or (ii) an opportunity to earn remuneration or greater remuneration or to gain a financial advantage otherwise than by way of legitimate remuneration; (p) “loss” means— (i) a loss in property or interruption in supply of services, whether temporary or permanent; or (ii) a loss of opportunity to earn remuneration or greater remuneration or to gain a financial advantage otherwise than by way of legitimate remuneration; [....] (q) “Member” means a Member of the Board and includes the Chairperson; [....] (w) “proceeding” means any action taken by the Board under the provisions of this Act; [....]

35. Protection of action taken in good faith. No suit, prosecution or other legal proceedings shall lie against the Central Government, the Board, its Chairperson and any Member, officer or employee thereof for anything which is done or intended to be done in good faith under the provisions of this Act or the rules made thereunder.

39. Bar of jurisdiction. No civil court shall have the jurisdiction to entertain any suit or proceeding in respect of any matter for which the Board is empowered under the provisions of this Act and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power under the provisions of this Act.

37. Power of Central Government to issue directions. (1) The Central Government or any of its officers specially authorised by it in this behalf may, upon receipt of a reference in writing from the Board that— (a) intimates the imposition of monetary penalty by the Board on a Data Fiduciary in two or more instances; and (b) advises, in the interests of the general public, the blocking for access by the public to any information generated, transmitted, received, stored or hosted, in any computer resource that enables such Data Fiduciary to carry on any activity relating to offering of goods or services to Data Principals within the territory of India, after giving an opportunity of being heard to that Data Fiduciary, on being satisfied that it is necessary or expedient so to do, in the interests of the general public, for reasons to be recorded in writing, by order, direct any agency of the Central Government or any intermediary to block for access by the public or cause to be blocked for access by the public any such information. (2) Every intermediary who receives a direction issued under sub-section (1) shall be bound to comply with the same. (3) For the purposes of this section, the expressions “computer resource”, “information” and “intermediary” shall have the meanings respectively assigned to them in the Information Technology Act, 2000.

CHAPTER V: DATA PROTECTION BOARD OF INDIA

18. Establishment of the Board. (1) With effect from such date as the Central Government may, by notification, appoint, there shall be established, for the purposes of this Act, a Board to be called the Data Protection Board of India. (2) The Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued. (3) The headquarters of the Board shall be at such place as the Central Government may notify.

19. Composition and qualifications for appointment of Chairperson and Members. (1) The Board shall consist of a Chairperson and such number of other Members as the Central Government may notify. (2) The Chairperson and other Members shall be appointed by the Central Government in such manner as may be prescribed. (3) The Chairperson and other Members shall be a person of ability, integrity and standing who possesses special knowledge or practical experience in the fields of data governance, administration or implementation of laws related to social or consumer protection, dispute resolution, information and communication technology, digital economy, law, regulation or techno-regulation, or in any other field which in the opinion of the Central Government may be useful to the Board, and at least one among them shall be an expert in the field of law.

20. Salary, allowances payable to and term of office. (1) The salary, allowances and other terms and conditions of service of the Chairperson and other Members shall be such as may be prescribed, and shall not be varied to their disadvantage after their appointment. (2) The Chairperson and other Members shall hold office for a term of two years and shall be eligible for re-appointment.

21. Disqualifications for appointment and continuation as Chairperson and Members of Board. (1) A person shall be disqualified for being appointed and continued as the Chairperson or a Member, if she— (a) has been adjudged as an insolvent; (b) has been convicted of an offence, which in the opinion of the Central Government, involves moral turpitude; (c) has become physically or mentally incapable of acting as a Member; (d) has acquired such financial or other interest, as is likely to affect prejudicially her functions as a Member; or (e) has so abused her position as to render her continuance in office prejudicial to the public interest. (2) The Chairperson or Member shall not be removed from her office by the Central Government unless she has been given an opportunity of being heard in the matter.

22. Resignation by Members and filling of vacancy. (1) The Chairperson or any other Member may give notice in writing to the Central Government of resigning from her office, and such resignation shall be effective from the date on which the Central Government permits her to relinquish office, or upon expiry of a period of three months from the date of receipt of such notice, or upon a duly appointed successor entering upon her office, or upon the expiry of the term of her office, whichever is earliest. (2) A vacancy caused by the resignation or removal or death of the Chairperson or any other Member, or otherwise, shall be filled by fresh appointment in accordance with the provisions of this Act. (3) The Chairperson and any other Member shall not, for a period of one year from the date on which they cease to hold such office, except with the previous approval of the Central Government, accept any employment, and shall also disclose to the Central Government any subsequent acceptance of employment with any Data Fiduciary against whom proceedings were initiated by or before such Chairperson or other Member.

23. Proceedings of Board. (1) The Board shall observe such procedure in regard to the holding of and transaction of business at its meetings, including by digital means, and authenticate its orders, directions and instruments in such manner as may be prescribed. (2) No act or proceeding of the Board shall be invalid merely by reason of— (a) any vacancy in or any defect in the constitution of the Board; (b) any defect in the appointment of a person acting as the Chairperson or other Member of the Board; or (c) any irregularity in the procedure of the Board, which does not affect the merits of the case. (3) When the Chairperson is unable to discharge her functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes her duties.

24. Officers and employees of Board. The Board may, with previous approval of the Central Government, appoint such officers and employees as it may deem necessary for the efficient discharge of its functions under the provisions of this Act, on such terms and conditions of appointment and service as may be prescribed.

25. Members and officers to be public servants. The Chairperson, Members, officers and employees of the Board shall be deemed, when acting or purporting to act in pursuance of provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code.

26. Powers of Chairperson. The Chairperson shall exercise the following powers, namely:— (a) general superintendence and giving direction in respect of all administrative matters of the Board; (b) authorise any officer of the Board to scrutinise any intimation, complaint, reference or correspondence addressed to the Board; and (c) authorise performance of any of the functions of the Board and conduct any of its proceedings, by an individual Member or groups of Members and to allocate proceedings among them.

CHAPTER VI: POWERS, FUNCTIONS AND PROCEDURE TO BE FOLLOWED BY BOARD

27. Powers and functions of Board. (1) The Board shall exercise and perform the following powers and functions, namely:— (a) on receipt of an intimation of personal data breach under sub-section (6) of section 8, to direct any urgent remedial or mitigation measures in the event of a personal data breach, and to inquire into such personal data breach and impose penalty as provided in this Act; (b) on a complaint made by a Data Principal in respect of a personal data breach or a breach in observance by a Data Fiduciary of its obligations in relation to her personal data or the exercise of her rights under the provisions of this Act, or on a reference made to it by the Central Government or a State Government, or in compliance of the directions of any court, to inquire into such breach and impose penalty as provided in this Act; (c) on a complaint made by a Data Principal in respect of a breach in observance by a Consent Manager of its obligations in relation to her personal data, to inquire into such breach and impose penalty as provided in this Act; (d) on receipt of an intimation of breach of any condition of registration of a Consent Manager, to inquire into such breach and impose penalty as provided in this Act; and (e) on a reference made by the Central Government in respect of the breach in observance of the provisions of sub-section (2) of section 37 by an intermediary, to inquire into such breach and impose penalty as provided in this Act. (2) The Board may, for the effective discharge of its functions under the provisions of this Act, after giving the person concerned an opportunity of being heard and after recording reasons in writing, issue such directions as it may consider necessary to such person, who shall be bound to comply with the same. (3) The Board may, on a representation made to it by a person affected by a direction issued under sub-section (1) or sub-section (2), or on a reference made by the Central Government, modify, suspend, withdraw or cancel such direction and, while doing so, impose such conditions as it may deem fit, subject to which the modification, suspension, withdrawal or cancellation shall have effect.

28. Procedure to be followed by Board. (1) The Board shall function as an independent body and shall, as far as practicable, function as a digital office, with the receipt of complaints and the allocation, hearing and pronouncement of decisions in respect of the same being digital by design, and adopt such techno-legal measures as may be prescribed. (2) The Board may, on receipt of an intimation or complaint or reference or directions as referred to in sub-section (1) of section 27, take action in accordance with the provisions of this Act and the rules made thereunder. (3) The Board shall determine whether there are sufficient grounds to proceed with an inquiry. (4) In case the Board determines that there are insufficient grounds, it may, for reasons to be recorded in writing, close the proceedings. (5) In case the Board determines that there are sufficient grounds to proceed with inquiry, it may, for reasons to be recorded in writing, inquire into the affairs of any person for ascertaining whether such person is complying with or has complied with the provisions of this Act. (6) The Board shall conduct such inquiry following the principles of natural justice and shall record reasons for its actions during the course of such inquiry. (7) For the purposes of discharging its functions under this Act, the Board shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, in respect of matters relating to— (a) summoning and enforcing the attendance of any person and examining her on oath; (b) receiving evidence of affidavit requiring the discovery and production of documents; (c) inspecting any data, book, document, register, books of account or any other document; and (d) such other matters as may be prescribed. (8) The Board or its officers shall not prevent access to any premises or take into custody any equipment or any item that may adversely affect the day-to-day functioning of a person. (9) The Board may require the services of any police officer or any officer of the Central Government or a State Government to assist it for the purposes of this section and it shall be the duty of every such officer to comply with such requisition. (10) During the course of the inquiry, if the Board considers it necessary, it may for reasons to be recorded in writing, issue interim orders after giving the person concerned an opportunity of being heard. (11) On completion of the inquiry and after giving the person concerned an opportunity of being heard, the Board may for reasons to be recorded in writing, either close the proceedings or proceed in accordance with section 33. (12) At any stage after receipt of a complaint, if the Board is of the opinion that the complaint is false or frivolous, it may issue a warning or impose costs on the complainant.

CHAPTER VII: APPEAL AND ALTERNATE DISPUTE RESOLUTION

29. Appeal to Appellate Tribunal. (1) Any person aggrieved by an order or direction made by the Board under this Act may prefer an appeal before the Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date of receipt of the order or direction appealed against and it shall be in such form and manner and shall be accompanied by such fee as may be prescribed. (3) The Appellate Tribunal may entertain an appeal after the expiry of the period specified in sub-section (2), if it is satisfied that there was sufficient cause for not preferring the appeal within that period. (4) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Appellate Tribunal shall send a copy of every order made by it to the Board and to the parties to the appeal. (6) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date on which the appeal is presented to it. (7) Where any appeal under sub-section (6) could not be disposed of within the period of six months, the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within that period. (8) Without prejudice to the provisions of section 14A and section 16 of the Telecom Regulatory Authority of India Act, 1997, the Appellate Tribunal shall deal with an appeal under this section in accordance with such procedure as may be prescribed. (9) Where an appeal is filed against the orders of the Appellate Tribunal under this Act, the provisions of section 18 of the Telecom Regulatory Authority of India Act, 1997 shall apply. (10) In respect of appeals filed under the provisions of this Act, the Appellate Tribunal shall, as far as practicable, function as a digital office, with the receipt of appeal, hearing and pronouncement of decisions in respect of the same being digital by design.

30. Orders passed by Appellate Tribunal to be executable as decree. (1) An order passed by the Appellate Tribunal under this Act shall be executable by it as a decree of civil court, and for this purpose, the Appellate Tribunal shall have all the powers of a civil court. (2) Notwithstanding anything contained in sub-section (1), the Appellate Tribunal may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court.

31. Alternate dispute resolution. If the Board is of the opinion that any complaint may be resolved by mediation, it may direct the parties concerned to attempt resolution of the dispute through such mediation by such mediator as the parties may mutually agree upon, or as provided for under any law for the time being in force in India.

32. Voluntary Undertaking. (1) The Board may accept a voluntary undertaking in respect of any matter related to observance of the provisions of this Act from any person at any stage of a proceeding under section 28. (2) The voluntary undertaking referred to in sub-section (1) may include an undertaking to take such action within such time as may be determined by the Board, or refrain from taking such action, and or publicising such undertaking. (3) The Board may, after accepting the voluntary undertaking and with the consent of the person who gave the voluntary undertaking vary the terms included in the voluntary undertaking. (4) The acceptance of the voluntary undertaking by the Board shall constitute a bar on proceedings under the provisions of this Act as regards the contents of the voluntary undertaking, except in cases covered by sub-section (5). (5) Where a person fails to adhere to any term of the voluntary undertaking accepted by the Board, such breach shall be deemed to be breach of the provisions of this Act and the Board may, after giving such person an opportunity of being heard, proceed in accordance with the provisions of section 33.

re Penalties (Annotated Chapter)

CHAPTER VIII: PENALTIES AND ADJUDICATION

33. Penalties. (1) If the Board determines on conclusion of an inquiry that breach of the provisions of this Act or the rules made thereunder by a person is significant, it may, after giving the person an opportunity of being heard, impose such monetary penalty specified in the Schedule [reproduced below]. (2) While determining the amount of monetary penalty to be imposed under sub-section (1), the Board shall have regard to the following matters, namely:— (a) the nature, gravity and duration of the breach; (b) the type and nature of the personal data affected by the breach; (c) repetitive nature of the breach; (d) whether the person, as a result of the breach, has realised a gain or avoided any loss; (e) whether the person took any action to mitigate the effects and consequences of the breach, and the timeliness and effectiveness of such action; (f) whether the monetary penalty to be imposed is proportionate and effective, having regard to the need to secure observance of and deter breach of the provisions of this Act; and (g) the likely impact of the imposition of the monetary penalty on the person.

[Note: The Central Government may, by notification, amend the Schedule as long as it does not more than double the originally-enacted quantum of any penalty in it. Such notifications shall have effect as if enacted in the statute itself and shall come into force as soon as they are issued although they must be laid before both houses of parliament and, if both houses agree, within the 30-day timeframe contemplated by the statute, that a specific notification either should not have been issued or should be modified, that notification shall cease to have effect or have effect in modified form, as the case may be, from the date the houses so agree without prejudice to the validity of any act performed while the original form of the notification was in force.]

34. Crediting sums realised by way of penalties to Consolidated Fund of India. All sums realised by way of penalties imposed by the Board under this Act, shall be credited to the Consolidated Fund of India.

[Note: Section 34 of the DPDPA is supported by an amendment to the Information Technology Act via Section 44(2)(a) of the DPDPA which simply omits Section 43A of the IT Act which made bodies corporate liable to pay compensation to persons affected by their failure to protect data.]

References

Section 1(1), DPDPA.
Section 15(c), DPDPA.
Section 2(zb), DPDPA.
Section 2(c), DPDPA.
Chapters V, VI, VII, DPDPA.
Section 15(a), DPDPA.
Section 8(10), DPDPA.
Section 15(d), DPDPA.
Section 28(12), DPDPA.
Section 36, DPDPA.
Section 43(2), DPDPA.
Section 43(3), DPDPA: Every order made under Section 43(1) must be laid, as soon as may be after it is made, before each House of Parliament.
Section 43(1), DPDPA.
Section 2(f), DPDPA; “child” means an individual who has not completed the age of eighteen years
Section 14(1), DPDPA.
Section 14(2), DPDPA.
Section 8(5), DPDPA.
Section 8(4), DPDPA.
Section 8(6), DPDPA.
Section 27(1)(a), DPDPA.
See Chapter VIII, in particular Section 34, reproduced in the Appendix with notes.
Section 3(a), DPDPA.
Section 16(1), DPDPA.
Section 41, DPDPA.
Section 3(b), DPDPA.
Section 2(i), DPDPA.
Sections 2(z) and 10(1), DPDPA.
Section 10(2), DPDPA.
Sections 10(2)(a) and 2(l), DPDPA.
Section 8(9), DPDPA.
Section 2(k), DPDPA.
Section 4(2), DPDPA.
Sections 4(1) and 2(d), DPDPA.
Section 8(3), DPDPA.
Section 9(2), DPDPA.
Section 9(4), DPDPA.
Section 9(5), DPDPA.
Section 9(3), DPDPA.
Section 6(1), DPDPA.
Section 15(b), DPDPA.
Section 9(4), DPDPA.
Section 9(5), DPDPA.
Section 6(8), DPDPA.
Sections 2(g), 6(7), 6(9), DPDPA.
Section 27(1)(d), DPDPA : 'The Board shall exercise and perform the following powers and functions, namely:— [....] on receipt of an intimation of breach of any condition of registration of a Consent Manager, to inquire into such breach and impose penalty as provided in this Act [....]'
Sections 6(9), 40(2)(c), 40(2)(d), DPDPA.
Section 2(zb), DPDPA.
Section 13(2), DPDPA.
Sections 13(3) and 27(1)(c), DPDPA ..
Section 5(2)(a), DPDPA.
Section 5(1)(i), DPDPA.
Sections 5(1)(i) and 6(1), DPDPA.
Section 6(2), DPDPA.
Section 6(4), DPDPA.
Section 6(6), DPDPA.
Section 8(11), DPDPA.
Section 12(1), DPDPA.
Section 15(e), DPDPA.
Section 12(2), DPDPA.
Section 6(5), DPDPA.
Section 7(a), DPDPA: A Data Fiduciary may process personal data of a Data Principal for any of following uses, namely:— for the specified purpose for which the Data Principal has voluntarily provided her personal data to the Data Fiduciary, and in respect of which she has not indicated to the Data Fiduciary that she does not consent to the use of her personal data.
Section 11(2), DPDPA.
Section 11(1), DPDPA.
Section 44(3), DPDPA.
Section 17(5), DPDPA.
Section 17(4), DPDPA.
Section 8(1), DPDPA.
Section 8(5), DPDPA.
Section 17(1), DPDPA.
As defined in Section 3(12), Insolvency and Bankruptcy Code, 2016.
As defined in Section 3(14), Insolvency and Bankruptcy Code, 2016.
Section 17(3) Explanation, DPDPA: 'For the purposes of this sub-section, the term 'startup' means a private limited company or a partnership firm or a limited liability partnership incorporated in India, which is eligible to be and is recognised as such in accordance with the criteria and process notified by the department to which matters relating to startups are allocated in the Central Government.'
Section 17(3), DPDPA.
Section 3(c), DPDPA.
Section 44(1) of the DPDPA amends Section 14 of the Telecom Regulatory Authority of India Act, 1997, which provides the statutory basis for the establishment of an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal (or 'TDSAT', as it is generally referred to), to extend its jurisdiction to the DPDPA, and enable Section 2(a) which defines the Appellate Tribunal under the DPDPA as TDSAT to be effective.
Section 42(1), DPDPA.
Section 42(2), DPDPA.
Section 41, DPDPA.

This post is by Nandita Saikia and was first published at IN Content Law.

[SSRN] Indian Music: Ancient Traditions, Contemporary Rights

noreply@blogger.com (Unknown) — Sun, 23 Apr 2023 22:10:00 +0000

...an essay on copyright and musical creativity which 'discusses cultures of musical borrowing in the realm of Indian music from ancient times to the present day, and examines the effect of the introduction of colonial copyright law in India. It posits that the Western paradigm on which contemporary copyright law is based cannot be easily integrated with Indian musical practices, and argues for the decolonisation of the law'.

'This essay, excluding the personal note introducing it, is a lightly-edited version of what would have been my contribution to the volume — Music Borrowing and Copyright Law: A Genre-by-Genre Analysis edited by Enrico Bonadio and Chen Wei Zhu. (I withdrew it from the book in early 2023 due to the failure to reach an agreement as to the terms of publication.)'

Contents

A Personal Note

Divergent and Enmeshed Histories

Incongruous Laws in Indian Environs

Adaptation and Fixation

Authors and Performers

Attributed and Actual Authorship

Borrowing in Cultures of Dialogue

The Adoption of Music

Musical Echoes and Reverberations

Decolonising Copyright Law

Read the essay over at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4426590

Data Protection and the Bill of Unintended Consequences

noreply@blogger.com (Unknown) — Sun, 27 Nov 2022 13:00:00 +0000

This write-up describes first impressions of the 2022 Indian bill dealing with data protection. It has not been edited, and considering that it's been drafted after close to 36 hours without sleep — some days are especially long — it will almost certainly be rethought and edited at some point.

It's difficult to miss the deficiencies of the 2022 Digital Data Protection Bill: the proposed statute appears to be well intentioned, and it does attempt to protect those whose data is collected — data principals as the document refers to them — but it's inability to set meaningful boundaries and to draft with a degree of specificity has resulted in its falling far short of its ostensible aims.

The bill does not go so far as to explicitly state that only such personal data as is essential to provide services or goods may be collected and then retained for no longer than necessary or until the data principal withdraws consent for data retention. However, it does, through the Explanation to Section 5 and through Section 7(8), attempt to limit the processing and collection of personal data. Although the latter provision reads: "The performance of any contract already concluded between a Data Fiduciary and a Data Principal shall not be made conditional on the consent to the processing of any personal data not necessary for that purpose", unfortunately, as is obvious from Section 5, which only allows data processing for a lawful purpose — with 'lawful purpose' meaning any purpose 'not expressly forbidden by law' — those who wish to deal with others' data have a free rein provided they do not act in a manner inconsistent with the other provisions of the legislation.

Structural Issues

The evident desire to protect data principals is rather dampened by three factors. Firstly, the provisions to protect them are often clearly inadequate. For example, Section 9(5) contemplates having data principals be informed of data breaches affecting them but then fails to actually accord meaningful protection to them by omitting any mention of a time frame within which the occurrence of breaches must be communicated from its text.

Secondly, not all the provisions of the bill appear to have been carefully thought through. For example, Section 18(1)(c) states that various provisions of the proposed statute shall not apply where: 'personal data is processed in the interest of prevention, detection, investigation or prosecution of any offence or contravention of any law' — even if the beneficiaries of the exemption were limited to law enforcement agencies, that would probably spark a valid debate on the propriety of the exemption. However, there is no such limitation which presumably means that the exemption applies to absolutely anyone, law enforcement agency or private person wanting a shot at playing the role of Sherlock Holmes in real life, without limitation. It is hard to believe that that is the intention of the bill despite its being what its text indicates.

And, thirdly, the bill is disjointed. Provisions relating to data fiduciaries acting in conjunction with others, to take just one example, are sprinkled throughout the proposed statute in Sections 2(5), 9(2)(b), 9(9), and 12(3). Unsurprisingly, it is, as a result, remarkably difficult to read the bill as a coherent whole.

Definitional Issues

To compound concerns springing from the bill failing to explain and potentially realise it's underlying rationale, the 2022 Digital Personal Data Protection Bill seems to demonstrate that there are times when not even plain English can shield a document from manifest vagueness despite all that may recommend the use of plain English in legal drafting.

To begin with, the definitions in the bill are so unclear that it is difficult to determine what they are intended to apply to.

'Personal data', according to Section 2(13), 'means any data about an individual who is identifiable by or in relation to such data'. This doesn't seem to suggest that the term 'personal data' does not apply to anonymized personal data; the definition is entirely agnostic to possible anonymization and de-anonymization. As long as an individual can be identified obliquely or directly through data, that data is personal data; this interpretation seems to be confirmed by Section 9(6) which confirms that the bill is not oblivious to the possibility of the anonymization of personal data. However, the problem with that interpretation of the definition, even leaving aside the fact that the relevant provisions are not examplars of clarity, is that the proposed Section 2(12) entirely unhelpfully states:

“person” includes— (a) an individual; (b) a Hindu Undivided Family; (c) a company; (d) a firm; (e) an association of persons or a body of individuals, whether incorporated or not; (f) the State; and (g) every artificial juristic person, not falling within any of the preceding sub-clauses;

An individual presumably refers to a sentient being, likely human, given that the proposed Section draws a clear distinction between it and various other categories of persons envisaged by the bill. However, devoid of legislative clarification, one can't be certain. And to make matters even more confusing, the definition of 'personal data' in the bill only makes reference to individuals. Unless the word 'individual' (undefined in the bill, incidentally) is intended to act as a demonstration of synecdoche in action, it would appear that personal data does not go beyond the data of individuals, whoever they may be.

Social Implications

Even more worrying is the fact that the provisions of the bill do not apply to 'personal data processed by an individual for any personal or domestic purpose' according to Section 4(3)(c). Assuming that 'individual' means a 'human being', this potentially legalises such acts as a parent using personal data to track down their adult child who has chosen to leave their familial fold for whatever reason — when an additional factor such as a marriage not approved by the adult's natal family is at play… Well, we've all heard far too many chilling stories to know how and what 'data processing' could lead to.

Further, under Section 4(3)(d), 'personal data about an individual that is contained in a record that has been in existence for at least 100 years' is excluded from the scope of the bill — since this exclusion clearly cannot apply to most human beings who are alive in their own capacity, if it is to apply to them at all, it must apply to them in relation to their ancestors.

In a society where social standing is often determined by birth and in a state where citizenship is usually determined by blood, it is not at all difficult to visualise how excluding the scope of legacy data from the ambit of the bill could be weaponized to target the vulnerable and the marginalised.

Legacy data that is a century old is not digitised from inception, and lo and behold! Section 4(3)(b) explicitly excludes offline personal data from the scope of the proposed statute, with the provision being complemented by Section 4(1) which states that, if passed, the act shall 'apply to the processing of digital personal data within the territory of India where: (a) such personal data is collected from Data Principals online; and (b) such personal data collected offline, is digitized' without any word on how offline data should be treated prior to digitisation.

The extent to which the bill, with its apparent focus on data processing in the corporate sphere, appears to be oblivious to the possible social implications of its text is truly breathtaking.

Conceptual Concerns

Section 4(3)(a) of the bill specifies that data processing must be automated for the proposed act to apply to it — the bill does not contemplate hybrid processing with the active involvement of a human being. So, presumably, to escape having the proposed act apply, if the bill is passed in its current form, all that would need to be done is to ensure that data processing was not entirely automated.

The most startling feature of the bill, however, appears in Section 3 which states that 'unless the context otherwise requires, a reference to “provisions of this Act” shall be read as including a reference to Rules made under this Act'. Much of the detail which would be required to turn the bill into an implementable statute has been left to subordinate legislation, and this Section could potentially, though one hopes improbably, do away with the traditional hierarchy which requires subordinate legislation to conform to the letter of its parent statute in order to be valid. It appears to treat them at par without a single word about how inconsistencies between the rules and the statute are to be addressed, or why it has been deemed necessary to effectively seem to place subordinate legislation which, for all practical purposes, can come into being by bureaucratic fiat at par with legislation that wends its way through parliament via consultation and debate.

A Domino Effect

Unsurprisingly, the issues in the bill go far beyond the bill resting on a shaky foundation — they seep into other areas of law too. For example, personal data is a subset of data which, Section 2(4) defines to mean 'a representation of information, facts, concepts, opinions or instructions in a manner suitable for communication, interpretation or processing by humans or by automated means'.

Section 8(7) states: 'A Data Principal is deemed to have given consent to the processing of her personal data if such processing is necessary …. for the purposes related to employment, including prevention of corporate espionage, maintenance of confidentiality of trade secrets, intellectual property, classified information, recruitment, termination of employment, provision of any service or benefit sought by a Data Principal who is an employee, verification of attendance and assessment of performance.'

Read in the context of the scheme of the proposed statute, it could be argued that the provisions defining data, personal data, and deemed consent could effectively allow data mining of works protected by copyright thereby setting up legislation which, against the scheme of the 1957 Indian Copyright Act, sets up a parallel statutory mechanism which flirts with copyright concerns. Somehow, it doesn't appear that the Digital Personal Data Protection Bill was drafted with the intention of achieving such an outcome.

Deemed consent itself is a concept that, as it currently stands in the bill, is challenging to justify. For example, 'public interest' as contemplated by Section 8(8) which deals with it, and the definition of the term in Section 2(18), somehow suggest that mergers, amongst other overwhelmingly corporate acts, are tied to public interest. The bill does not explain why or how this is the case.

If there was ever a bill crying out for a line edit, this is it. One can only hope, for all our sakes, that the 2022 Digital Personal Data Protection Bill receives careful consideration: its heart appears to be in the right place. Much of the remainder of its content, sadly, seems to be misplaced at the moment.

This post is by Nandita Saikia and was first published at IN Content Law.

Contracts, Clauses, and Checklists

noreply@blogger.com (Unknown) — Thu, 05 May 2022 09:23:00 +0000

"I was recently confronted with an agreement I drafted some 10 years ago which, much to my embarrassment, was still being used possibly slightly edited but essentially still my draft: an agreement I'd put together with maybe 15 minutes of thought prior to drafting. Legally, it was and still is watertight. It also has all the hallmarks of a petty bully. Utterly lopsided clauses not in favour of the the other party, stringent obligations placed on them... the works.

Somewhere between having mellowed with age and having no particular need to demonstrate that I'm aggressively protecting client interests, today, that isn't an agreement I would consider drafting. Of course, I still do whatever it takes to protect client interests though not at the cost of potentially destroying their relationship with the other party if I can avoid it.

I'm far more likely to tell a client now than I was 10 years ago that a clause they're proposing is unfair — think of every time you've seen an onerous, unilateral indemnity clause plucked straight out of a software end-user agreement and dumped into what is a far more non-replicable relationship. Or to refuse to include it since it won't hold water — a non-compete clause for 372 years... Um, no. The "Bolne main kya harz hain?" school of thought doesn't appeal to me in the least.

Seeing the old agreement did, however, make me think of how the same person's drafting style changes over time, and how much the style itself and the changes reveal of the drafter."

(Addendum: Here's a folder in which I've been collating my notes on contractual clauses: Contracts, Clauses and Checklists)

This post is by Nandita Saikia and was first published at LinkedIn.

Viewing Copyright Policy through Music and Injury

noreply@blogger.com (Unknown) — Fri, 01 Apr 2022 06:16:00 +0000

This, I think, is what policy work at its most meaningful looks like: when one is able to use one's experiences to view proposals and, hopefully, to be able to contribute towards a desirable outcome.

Recently learning that a music teacher I had known many years ago had passed on led me to think of those long-ago lessons, and of the disability-friendly provisions in the Indian Copyright Act…

It was only very recently that I learnt that a music teacher I had known had passed on a decade ago. I'd first met her before I was to take an exam in the 1990s, every bit as nervous as could be.

On another occasion, at another exam, she sat outside the music room while I played — "Don't worry, I'm right here" — only to hear the piano begin emitting sounds which no instrument should. Music clips weren't easily available then, some thirty years ago, and a clothes clip I had used to secure pages flew off right in the middle of a piece, straight into the piano. Every string seemed to begin to vibrate. I ploughed through the rest of the piece although I was certain I'd fail the exam.

The teacher was very reassuring when I told her what had happened and her barely-contained amusement was contagious. As it turned out, she was right not to worry. The examiner didn't care about the clothes clip. A raised eyebrow during the exam, the hint of a smile, and a suggestion to fish it out before I began playing the next piece; the wretched thing had fallen flat across a few strings instead of falling right through. There wasn't a word in my report about flying clips.

Over the years, we met occasionally. When I got it into my head that I needed to keep playing even after arm injuries which clearly indicated that I couldn't do so with any degree of felicity, she was steadfastly supportive as was another musician, a gentleman who was unrelentingly exacting as a teacher and unfailingly kind as a person, now also no more. Although neither one was my primary teacher, both of them were a breath of fresh air every time I thought I couldn't breathe. My barely being able to hold a book to read it or a pen to write didn't deter them from encouraging me to find ways to make the piano sing for me.

A locked piano

Unfortunately, a year of a Rachmaninoff piece — amazingly, I no longer remember which one — and countless exercises led to my handspan increasing to 9 white keys at about 180°, and forced me to recalibrate every mental calculation I made before reaching for a specific interval, but did little for my dexterity. I gave up, cutting myself off, and completely ignoring the fact that 'the woods would be very silent if no birds sang there except those that sang best', as Henry van Dyke put it.

Nonetheless, the lessons both of them had attempted to impart remained with me: that detail matters — it wasn't unusual to spend half a year working on a single phrase — and that even if the path one hopes to take is barred to one, there are usually others available. And, if there aren't, there is always the option of forging one's own.

Years later, when I moved into my own place, my first major purchase was an instrument. I rarely attempted to play it but knowing it was there brought me comfort. By then, in the early 2010s, I was a lawyer, and a stroke of good fortune granted me the privilege of working on analyses of the then-proposed new copyright law with one of India's most exceptional lawyers. He didn't once attempt to stifle anything I had to say even if he disagreed with me although he, quite rightly, expected me to be able to support everything I did say.

The proposed amendments included a clause to facilitate access to copyrighted works by persons with disabilities. It wasn't a commercially-critical clause but it was one which was important to me and I spent a reasonable amount of time studying it. With my background and experience of injury, it was clear to me that early avatars of the proposed amendment to the law were drafted in a manner which would almost only have benefitted people with visual disabilities, and that too in a limited way; I was disappointed. I tried to raise the issue when I had the opportunity to do so, and separately suggested alternatives to the legislative proposal which I thought might be workable: Disability and the Indian Copyright (Amendment) Bill, 2010.

All that led me to notice that early drafts of the amendments were entirely inadequate was having lived the life I had lived till then complete with both the experience of my body failing me and the hope, driven into me through music lessons, that no matter how the years unfold, there is always a path ahead.

Other lawyers, like Shamnad Basheer and Rahul Cherian, far more experienced than me, also closely examined the relevant provisions. Eventually, with the efforts of and inputs provided by a multitude of stakeholders, in 2012, India emerged with provisions to facilitate access to copyrighted works by persons with disabilities that were, and probably still are, amongst the most clear, comprehensive and progressive in the world.

An exception to copyright infringement was introduced to the Indian Copyright Act, 1957, in Section 52(1)(zb) as well as a compulsory licence in Section 31B which could apply in situations beyond the scope of the exception. Section 52 'prompts the law to turn a blind eye to persons or eligible organisations making accessible copies of protected works available to people who have disabilities (through the unauthorised adaptation, reproduction, issue of copies or communication to the public of such works) as long as they take reasonable steps to prevent accessible copies from entering ordinary channels of business and act on a non-profit basis', as Sidharth Chopra and I wrote in 2020, while 'Section 31B describes the process through which a compulsory licence for the benefit of persons with disabilities may be granted where accessible copies are sought to be made available on a for-profit basis in circumstances which fall beyond the scope of Section 52'.

That being the case, the impediments to persons with disabilities accessing protected works are primarily social and technological. Although contract law may chime in if technological protection measures are broken without due authorisation to make protected works accessible to persons with disabilities, by itself, the Indian Copyright Act, through Section 65A, only makes the circumvention of 'an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act' a punishable offence if the circumvention is effected 'with the intention of infringing such rights' and not otherwise.

Whether it is converting a book into Braille to aid a visually-impaired person or simply photocopying a musical score on to green paper to help someone with dyslexia, Indian copyright law does not stand in the way, and has unequivocally not done so since 2012. In a world where inequalities are enhanced by asymmetries of knowledge, even-handed access to knowledge — which the 2012 amendments help facilitate — matters. And having work related to legal policy, one's own and that of others, support the enactment of such legislation is what ultimately makes hours of effort worthwhile.

This post is by Nandita Saikia and was first published at IN Content Law.

Reimagining Worlds and Works through Translation

noreply@blogger.com (Unknown) — Wed, 24 Nov 2021 11:34:00 +0000

Copyright began as the right to copy or reprint a protected work and, in time, it has become the right to control avenues through which a work may be financially exploited. At the micro level, this has meant that copyright has evolved from a right which does not allow author-owners of works a say in whether or by whom or how their works may be translated to a right which enables them to control, at the very least, whether a protected work can be translated at all and, if it is translated, by whom it may be translated.

Granting permission for a protected work to be translated, however, may be an act of faith. What happens once an author-owner grants such permission varies dramatically depending on the jurisdiction involved. In the UK, for example, Section 80(2) of the 1988 Copyright, Designs and Patents Act prevents authors from claiming that their moral right of integrity in respect of works they've created has been violated by translations having accorded their works derogatory treatment. In contrast to this, Indian law contains no such preclusion in Section 57 of the 1957 Indian Copyright Act, and translations which distort, mutilate, modify works so as to prejudice the honour or reputation of the authors of the works which have been translated could, assuming the requirements of the provision are otherwise satisfied, be considered to have violated the special rights which vest in those authors.

Although both these positions are diametrically opposed to each other, they reveal an aspect of contemporary understandings of copyright law which are in consonance with each other: translation results in the creation of a new work although the work arises from a precedent work. The act of translation is exegetic rather than merely mechanical, and it is possible that translations, which almost certainly view works through the lenses of cultures other than those in such they were originally written, could significantly remagine works possibly in ways that would not meet with the original authors' approval.

And, so, it comes to be that a translation is simultaneously an original work and an adaptation of a precedent work. This layered understanding finds expression in Article 2(3) of the Berne Convention which, introduced by the 1908 Berlin Revision to the treaty as Article 2(2), states that translations of literary and artistic works shall be protected as original works without prejudice to the copyright in the original works. In other words, although translations are works in their own right, they cannot, to be legitimate themselves, infringe the copyright subsisting in the works they translate.

The recognition of translations as protectable works is not new: courts in England, the land which formulated the modern understanding of copyright in the common law world, have consistently recognised that translation is an act of authorship and not the exercise of a copyist, as the cases of Burnett v Chetwood (1720), Millar v Taylor (1769), Wyatt v Barnard (1814), Walter v Lane (1900), and Byrne v Statist Company (1914) all indicate.

The legitimacy and, in consequence, the protectability, of a specific translation has, however, been a bone of contention ever since attempts were made to formulate the first international understandings of copyright. Unsurprisingly, as is par for the course in the field of copyright, the existence and extent of the translation right has been a pitched battle first between colonial powers and colonised peoples and, later, with the fall of empires in the twentieth century, between exactly the same players in their new avatars as erstwhile colonisers and once-colonised peoples.

Colonisers were, of course, those who tended to promulgate their languages and to be exporters of what passed for good literature and reliable science in the colonial world, and they sought to control who had access to knowledge. This was done not only through copyright subsisting in original works but also through the steady internalisation of the translation right into the fold of copyright.

In 1886, Article 5 of the Berne Convention granted authors the exclusive right to translate or to allow their protected works to be translated for ten years after they had first been published. Ten years later, the Paris Additional Act modified the Article so that the translation right would vest in authors in respect of their original works for the entire term of copyright protection provided the right had been exercised in the first ten years after publication. A further decade saw the removal of the necessity of first translation within ten years of publication through the 1908 Berlin Revision. Thus, the translation right was finally absorbed into copyright. At a macro level, colonisers were accorded a free rein to determine which texts colonised peoples could access in their own languages.

Nonetheless, the Indian situation was an anomaly: Section 4 of the 1914 Indian Copyright Act derogated from the 1911 English Copyright Act to limit the full translation right in respect of works first published in British India. The translation right could be exercised only for ten years after the first publication of an original work beyond which it could not be exercised unless the work's translation had been published during the ten-year window. Then, too, an author could only enjoy a full translation right only in respect of those languages into which the work had been translated in the first ten post-publication years. However, as the Madras High Court pointed out in its 1958 decision in the case of Macmillan and Company Ltd. v The Little Flower Company, the subsistence of copyright in translations sprang independently from Section 1 of the 1911 English Copyright Act without dependence on Section 4 of the 1914 Indian Copyright Act since translations are themselves original literary works.

It would be reasonable to presume that the Indian dilution of the English translation right had less to do with the British having had a liberal approach to access to knowledge in India than it had to do with India having numerous languages, and the British not believing that they were giving up on an opportunity to monetarily benefit from copyright by not tightly controlling translations which, in practice, were often not translations from English into an Indian language but from one Indian language to another. Indeed, post-colonial India brought in a full translation right in the 1957 Indian Copyright Act; one of the issues which had been discussed before the statute was passed was the manner in which some prominent Indian authors had lived in penury despite their works being widely published in both the original and in translation. The lack of a full translation right had meant that they did not financially benefit from their works being sold in translation.

Post-colonial India addressed not just the extent of the translation right but the rationale underlying its formulation. At home, it protected authors through municipal legislation and, in the international sphere, particularly at the 1967 Stockholm Conference, it rebelled against the privileging of erstwhile colonial powers by seeking to restructure copyright law to allow knowledge initially disseminated in the languages of erstwhile colonisers to flow into once-colonised lands. Despite much resistance, India had some support too, and efforts extended in this regard ultimately resulted in the 1971 Paris Act of the Berne Convention superseding the 1967 Stockholm Act.

The Appendix to the 1971 Paris Act permitted once-colonised countries — 'developing countries' in its words — to set up compulsory licensing regimes for themselves to facilitate the dissemination of knowledge amongst their own people in their own languages even if, subject to some restrictions, such knowledge had originally been disseminated in erstwhile colonisers' languages. So it was that through its dealings with the translation right, the so-called developing world demonstrated that copyright could be forced to fit into a more equitable mould than the one in which it had, till then, been comfortably ensconced.

Blockchain: Copyright and (De)Centralisation

noreply@blogger.com (Unknown) — Tue, 26 Oct 2021 17:01:00 +0000

Copyright law is cognizant of the ways in which anonymity can play out in conventional fields as it demonstrates through provisions determining the term of copyright to anonymous works. The law, however, is not especially well equipped to deal with anonymity and blockchain together despite the fact that we have partially segued from the industrial information economy, which copyright law could be considered to have anticipated, to a networked information economy.

Blockchain and traditional copyright law do not fit together neatly allowing open data and 'piracy' to effectively be two sides of the same coin despite offering high hopes for a transition into an economy in which open knowledge prominently features. On the contrary, although blockchain certainly does have its benefits, not least of which are allowing for the fractional ownership of protected works stored on-chain and, potentially, facilitating a thriving marketplace in secondhand digital copies since it enables each copy to be individually identifiable, its largely immutable structure and bypassing of trusted intermediaries also makes it resistant to addressing such issues as mistakes of provenance and outright fraud.

There is no sure way to determine the ownership status of copyrightable or copyrighted works that find their way to the distributed ledger that is blockchain since such information is often informal, contained in non-searchable databases incompatible with each other, and easily changeable off-chain. The problem of determining copyright ownership is not novel by any means but, given that it stands out in stark relief against the much-touted transparency and integrity of blockchain, it is a problem that is entirely inescapable in the new networked economy, and could potentially lead to misdirected payments for the exploitation of protected works particularly in cases where blockchain is employed to facilitate the payment of royalties. The solution to the problem may lie in blockchain itself if it is universally used to store ownership information. However, in relation to the vast majority of works, such a day lies far into the future.

Further, the immutability of blockchain poses technical legal issues where copyrighted content is stored without authorisation not least because intermediaries are shielded from liability for infringement only in a limited number of circumstances which essentially require them to have been unaware of the commission of infringement and to remove infringing content once they become aware of it. Unfortunately (in this context), the removal of infringing content from blockchain may be well nigh impossible since immutability is built into the structure of the technology.

The decentralisation and democratization of data are two fundamentally different processes, as blockchain demonstrates. When it is used in conjunction with copyrighted works, the works themselves may be stored on-chain or off-chain. Independently of where they are stored, payments due or paid in relation to the works may be handled on-chain. The works, if they are stored off-chain, could be hosted in physical form or on various websites, possibly mirrors of each other, which could make data 'universally' accessible. In such cases, it is tempting to synonymise the decentralisation of power over works with the decentralisation of storage of works on to which is appended the universalisation of access.

However, a structural arrangement or change to make works 'universally' accessible (like having works stored at multiple sites) does not democratise data or establish the openness knowledge by itself unless the control of the works is beyond the control of a single person whether licensed publisher or so-called 'pirate'.

Democratising data requires taking data — protected works in the context of copyright law — and relinquishing sole control of it whether by using blockchain or by some other means. In any case, falling short of relinquishing control merely results in either a change or a reiteration of gatekeeping mechanisms and a failure of disintermediation, supposedly one of the salient features of blockchain, especially where a public version of that technology is used. It is not a breaking down of the ownership gate corralling exclusivity envisaged by conventional copyright.

With copyright being primarily an economic right, works protected by it do not exist in a vacuum without reference to monetary considerations. And, so, cryptocurrencies have a role to play in respect of protected works on-chain or associated with blockchain whether in relation to payments to support an off-chain framework which supports works and access to them or as the means to directly transact in relation to works which could be on-chain. The number of permutations of the ways in which protected works, payments, blockchain, and associated cryptocurrencies could interact is limited only by human imagination.

To suddenly pick up the words blockchain and 'crypto…' and club them together with the legal publication or infringement of works claiming that they, the words, define a new path leading to a destination that could never otherwise be reached is absurd. There is no new path: the use of blockchain isn't in itself invariably compatible with open data. It is consistent with nothing beyond having technological choices. Likewise, the use of cryptocurrencies to fund access to data is a choice, one which is likely dictated by circumstances.

If one were prone to cynicism, it would be difficult to ignore that the use of cryptocurrencies may be especially attractive in relation to the illegal publication of protected works since their presumed anonymity could be considered to preemptively resist the enforcement of orders for damages and to avoid mediated transactions, possibly by unwilling mediators, using fiat currencies. However, the anonymity associated with cryptocurrencies is far from absolute meaning that the ostensible 'benefits' of using cryptocurrencies on account of their supposed lack of traceability and consequent ability to thwart recoveries may be more perceived than real.

Blockchain offers the opportunity to build a radically different world than the one we have known but, as a technology, it is agnostic to the ethical considerations involved in access to knowledge. What we do with the technology is up to us, the technology on its own leads nowhere and everywhere all at once. Unless it is forced to change the world, it will simply enforce the status quo.

(This post by Nandita Saikia is based on a note posted on LinkedIn, and was first published on LawMatters.in.)

Copyright/Cinematograph Statutory Dissonance

noreply@blogger.com (Unknown) — Sat, 19 Jun 2021 15:10:00 +0000

It appears the Cinematograph (Amendment) Bill, 2021, proposes to amend the statute in a way which would effectively result in there being two primary statutes which contain provisions relating to the infringement of intellectual property rights in films: the Copyright Act and the Cinematograph Act.

Reading through the proposal, it isn't at all clear how the relevant provisions in the two statutes, if they were all to simultaneously be in force, would act together and, to make matters even more concerning, the provisions proposed to be inserted into the Cinematograph Act seem incoherent from the point of view of copyright law: the first appears to suggest that knowingly recording or transmitting a film (or trying to do so or helping others to do so) requires the consent of the author of the film and not its owner; it reads:

"6AA. Notwithstanding any law for the time being in force, no person shall, without the written authorization of the author, be permitted to use any audiovisual recording device in a place to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part thereof. Explanation. For the purposes of this subsection, the expression “author” shall have the same meaning as assigned to it in clause (d) of section 2 of the Copyright Act, 1957."

Not only does this clash with the basis of copyright law, the non-obstante clause does not accord the proposal adequate clarity regarding how it is to be implemented. The dissonance between the proposed cinematograph law and existing copyright law does not stop there: the 2021 Cinematograph Amendment Bill also addresses violations of what could become s 6AA of the Cinematograph Act via s 7(1A), another proposed insertion — there is no indication of how the new law, if passed, would interact with criminal offences defined by the Copyright Act. The proposal reads:

"7(1A) If any person contravenes the provisions of section 6AA, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to three years and with a fine which shall not be less than three lakh rupees but which may extend to 5% of the audited gross production cost or with both. Provided also that, any act mentioned in Section 52 of the Copyright Act, 1957 (Act 14 of 1957) is not an infringement of the provision of Section 6AA of this Act."

In 2020, the Indian government considered decriminalising copyright offences which was a welcome move. However, although the 2021 Cinematograph Bill attempts to address commercial film piracy, it does not explicitly specify its intention—that takes it beyond India's TRIPS commitments. Of course, India can legally go beyond its TRIPS commitments but whether it should do so in the manner that's been proposed in the 2021 Cinematograph Bill is another matter altogether, one that can be debated. Public comments have been sought in respect of the Bill.

As sound as the rationale underlying the proposals may well be, their formulation leaves much to be desired. If they are ultimately passed, one can only hope that they are passed in a form that is coherent, consistent with existing law, and implementable.

This post is by Nandita Saikia and was first published at IN Content Law following a version of it being published on LinkedIn.

The Pandemic and the Path to Equitable Healthcare

noreply@blogger.com (Unknown) — Tue, 11 May 2021 07:03:00 +0000

Equitable healthcare to address the CoVID-19 crisis requires a multilevel, multipronged approach, and it is important to achieve equitable healthcare not least because, as we've heard over and over again, no-one is safe till everyone is safe. Borders, whether drawn on maps or in minds, will not — cannot — guarantee the safety of those within their bounds. Not when one speaks of being safe from a virus such as this.

Intellectual property rights play a role in the process of achieving equitable healthcare although they are, by no means, the only factor: ultimately, it is realpolitik which plays a decisive role in manufacturing, and in supply and demand chains. This write-up, however, focusses on intellectual property rights and strategies from a largely theoretical point of view not least because the information available in the public domain about pre-existing contractual relationships and other factors which affect the situation on the ground are not available in their entirety. Consequently, it is not a comprehensive overview of the legal position, and involves some speculation which hopefully leans more towards the informed than the inaccurate.

Incentivising Innovation

To begin with, pharmaceutical products are protected by a range of intellectual property rights, and it is not the case that a single right of one kind is the only right of that kind which protects a specific product. For example, vaccines are typically not protected by a single "vaccine patent" but by numerous patents acting in concert with each other.

The hope underlying the state grant of monopolies in intellectual property is that such grants spur further invention and creativity beneficial to society as a whole. However, the issue isn't entirely straightforward: there are clearly times when monopolies can, in fact, disincentivise creativity and, recognising this, some intellectual property laws contain explicit exceptions to infringement. At other times, creativity and invention rest on material which is either owned or funded by the public. Some of the research which spurs corporate R&D in the pharmaceutical sector, for example, may well be publicly funded. So, there is good reason to challenge the notion that the resultant product should be protected by unassailable intellectual property rights (even leaving aside ethical quandaries such as those which relate to profiteering off pandemics).

The fear — or threat, depending on one's point of view — is that loosening intellectual property protections (even in relation to essential pharmaceuticals for the duration of a pandemic) could disincentivise corporate investment in R&D. However, while it could indeed dampen corporate enthusiasm for pharma R&D, considering the extent to which publicly-funded research may be relied on by corporates, there's no certainty as to what the effect or extent of such "disincentivisation" would be.

Domestic Regulation in Public Interest

There are a number of provisions in Indian law which could potentially help to achieve healthcare equity including those which enable the National Pharmaceutical Pricing Authority to control the prices of drugs through Drug Price Control Orders, and Section 26B of the Drugs and Cosmetics Act which empowers the Central Government to regulate or restrict the manufacture, sale or distribution of drugs in public interest during an emergency arising due to epidemic or natural calamity if it is necessary or expedient to do so.

Further, the Patents Act contains provisions relating to compulsory patent licences, patent revocations, and access to pharmaceuticals: now, during the pandemic, compulsory licensing may be effected through Section 92 which could potentially bypass some of the stringent requirements of Section 84, the usual provision used to consider the grant of compulsory licences. Also, the revocation of certain pharmaceutical patents may now be possible under Section 66 of the statute in public interest on account of their being prejudicial to the public even though patents are usually revocable under Section 64 which is notoriously difficult to invoke successfully. And, apart from provisions relating to compulsory licensing and revocation, there are provisions in the Patents Act to facilitate government use of pharmaceuticals in Sections 47, 100, and 102: erasing all nuance, these provisions essentially allow for the distribution of pharmaceuticals in government facilities, extremely limited manufacture in some cases, and the government acquisition of patents.

However, simply stripping pharmaceutical products of their patent rights domestically may not be prudent: patents are an obstacle to equitable healthcare but they are far from the only obstacle. As tempting as it may be to invoke provisions in the Patents Act that derogate from the rights of patent holders, the fact remains that doing so will not necessarily cut rights-owners out of the picture: it is often an extraordinary challenge to reverse engineer or replicate pharmaceuticals even if they are not protected by intellectual property rights and, so, to galvanise manufacture through IP law, it becomes essential not only to have the hurdles presented by patents removed but also to ensure that appropriate tech transfers are in place. The former without the latter could be meaningless as published patent specifications are simply not enough to realise production.

IPR Waivers v Unrestrained Enforcement

All of this brings one to the fraught issue of intellectual property rights waivers. Nobody at all who has suggested that pharmaceutical patents be waived, or at least not enforced for the duration of the pandemic, has suggested that they be waived to the exclusion of tech transfers. In the context of the CoVID-19 pandemic, the argument, invariably made without pushing for tech transfers along with patent waivers, that there is no point waiving patents because patent waivers are inadequate is just as hard to sustain as the argument that tech transfers are not feasible because technology falls within the domain of trade secrets that are only shared if sharing is appropriately incentivised. After all, we are ultimately in the midst of a pandemic caused by a virus without an iota of respect for man-made borders or legalistic rights, and we will all likely sink or swim together. A few of us, to draw on a much-used figure of speech, have luxury yachts while most others are consigned to handmade rafts but we're all still in the same storm, and no vessel is invincible against relentless assaults as vicious as those this virus seems inclined to unleash. Surely, at some point, if not anything else, a sense of self-preservation should make its presence felt.

There may be reasons not to want to waive pharmaceutical patents ranging from the self-centred to the altruistic. Hypothetically, rights-owners may not see global vaccine equity as being desirable since the emergence of new variants of the virus as it mutates in unvaccinated populations could potentially justify the sale of possibly-annual booster shots to richer vaccinated populations mainly in the Global North and to those able to afford vaccines in otherwise unvaccinated populations mainly in the Global South, often poorer, in no small measure, because of having been historically looted by colonisers usually from the Global North. At the other end of the spectrum, rights-owners may simply want to retain their rights to exercise some form of quality control in which case, if criteria to ensure quality are satisfied, they may proceed to ensure that necessary licences and tech transfers are freely granted to meet global demand.

International Consensus: Proposal and Pushback

Meeting global pharmaceutical demand to work towards healthcare equity could be facilitated by the waiver of various intellectual property rights at a global level as has been proposed at the WTO through what is widely being referred to as the TRIPS waiver, a proposal made in October 2020 to temporarily waive certain intellectual property rights so that they 'do not create barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19'.

The proposal did not immediately receive unanimous support and, by the beginning of 2021, it came to be that if a map of once-colonised lands and historical colonisers had been superimposed over one of proponents and opponents of the proposed TRIPS waiver, they would have been an almost perfect match. What tentative support the proposal, now reportedly set to be revised, has received from erstwhile colonial and imperial states has been largely in relation to vaccine equity and not in relation to the broader proposal. Discounting that a vaccine may reduce the severity of illness, it is not clear how limiting support of the proposed TRIPS waiver to vaccine-related IPR would help people, particularly in the Global South, who become infected. Instead, doing so would likely perpetuate existing inequities.

There has been a deluge of opinions aired to the effect that it is not so much intellectual property and technology hurdles but the lack of manufacturing capacity and export restrictions which stand in the way of healthcare equity. This, too, is not entirely incorrect although these opinions usually ignore the facts that IP, tech, and manufacturing hurdles must be removed simultaneously to achieve equity, and that a significant fraction of the world's pharmaceutical manufacturing capacity is already in the Global South. It stands to reason that with the appropriate support, including the removal of IP/tech barriers, global manufacturing capacity could be scaled to meet global requirements.

The arguments against the proposed TRIPS waiver are often either perfectly sound or diversionary gaslighting depending on one's point of view. The suggestion that releasing excess vaccine stocks in the possession of some states would be better than the waiver for immediate effect is, for example, entirely accurate although it fails to mention that releasing excess stocks would not obviate the need for the waiver.

A Possible Path Ahead

Focusing on vaccines alone: the relevant procurement contracts are not all publicly available but it looks like at least some of them prohibit vaccines from being simply given away across national borders — a clause pharmaceutical companies may have wanted inserted into agreements to limit their own liability, and which would explain reports of vaccine loans. Even if some of the excess stocks of vaccines can legally only be loaned, that immediately causes the question of how those stocks will be replenished without augmenting manufacturing capacity to arise. Without an excess stock replenishment requirement, too, should stocks of excess vaccines be released, the world's manufacturing capacity would still currently be inadequate to quickly vaccinate all of the world's people. The operative word is "currently" — an appropriate TRIPS waiver could help change that situation in months; scaling manufacturing is not an IP issue per se but becomes easier to achieve within a reasonable timeframe minus IP roadblocks.

Releasing excess vaccine stocks (which will anyway expire some time) would be a useful supplement to the proposed TRIPS waiver providing time to negotiate the fine print of the waiver itself. It would not, however, be an appropriate or adequate substitute for the waiver. Time is of the essence since the virus could mutate in unvaccinated populations ultimately lowering or neutralising the effect of existing vaccines; this is a possibility and not a prophecy, and increasing vaccination worldwide would help decrease the likelihood of such an eventuality, which could be catastrophic for everyone in both the Global North and the Global South, actually occurring. In the circumstances, even without taking into account healthcare that does not involve vaccines, gambling, even inadvertently, on the probability that it will be possible to programme or tweak existing vaccines to protect chosen populations, or at least a fraction of the world's population, comes across as being both unsafe and unethical.

(This post, based on a Twitter thread, is by Nandita Saikia and was first published at IN Content Law. It was republished at Bar and Bench on 29 May 2021.)

[UPDATE: (1) A revised proposal was was submitted by 62 WTO members on 21 May 21. It did not appear to be immediately available at the WTO site although KEIonline.org uploaded the document and posted a summary of it online.]

NOTES AND ADDENDA:

3 June 2021

A quick note on vaccines re indemnity and immunity:

They're not the same.

Indemnity does not mean that an individual suffering from vaccine injury cannot be compensated; immunity may sometimes mean that.

Indemnity is to evade payment.

Immunity may be to evade liability.

Immunity is not generally granted to pharma companies but it is a negotiable issue. The US granted ltd duration immunity under the PREP Act, AFAIK, but it also has programmes that could help individuals if things go wrong: https://t.co/CRsXozRXke and https://t.co/3pb5C7ayex are US vaccine injury compensation programmes. How well they work is open to debate but they do exist.

A drug regulator cannot generally be sued for granting approval due to sovereign immunity. US employers mandating vaccination, too, may not be easily sued although there may be people who can legitimately claim exemptions (such as, possibly, on medical advice through disability law) and vaccine injury may be treated as an on-the-job injury enabling compensation claims.

India, thus far, AFAIK, has not granted any vaccine manufacturer immunity from liability for vaccine injury but that does not mean that it cannot do so. What India ultimately decides to do — either continue as is or change course — will be more a policy than a legal decision.

Recent reports suggest that India has chosen to consider granting indemnity, not immunity. All granting a vaccine manufacturer indemnity usually does is say that should a legal requirement to pay compensation for vaccine injury arise, the grantor of the indemnity will pay it / reimburse payment (depending on how the clause it structured).

An indemnity clause does not leave vaccine recipients unprotected although — importantly — it acts in tandem with a judicial determination that compensation/damages are due. The Indian system is not known to routinely award large damages for medical negligence/product liability.

Without being granted indemnity, a vaccine manufacturer would typically get insurance to pay damages, if required, which could be either third party insurance or self generated. Whichever option it were to choose, the costs of insurance would be passed on to the buyer.

So, not agreeing to indemnify vaccine manufacturers may (1) not benefit vaccine recipients, (2) raise vaccine prices. There is no major downside to (or cause to decry) agreeing to indemnification in the circumstances.

Once again, indemnity & immunity are entirely different. And the grant of indemnity doesn't justify the brouhaha that's being generated.

8 June 2021

So, how is copyright implicated in pharma intellectual property? (And why does a limited copyright waiver find mention in the proposed TRIPS waiver re pharmaceuticals to fight the pandemic?)

Packaging easily confused with the original licensed or patented product aside, spurious or infringing pharmaceutical products may well use the documentation of the original — fact sheets, specifications, trials... you name it — in which case, in addition to all the other violations involved, copyright infringement has also almost certainly been committed.

Unlicensed pharmaceuticals are usually primarily dealt with through patent and trade mark law. Copyright law tends to be invoked only to the extent of the rights in artistic works which comprise packaging being infringed. However, not additionally invoking copyright law in respect of literary works comprising associated documentation is often something of a missed opportunity.

To avert the legitimate possibility of copyright law being used to assail pharmaceuticals made under the auspices of a patent waiver & tech transfer, a copyright waiver is also necessary.

First Principles: The Anticipated Non-Personal Data Governance Framework

noreply@blogger.com (Unknown) — Thu, 14 Jan 2021 13:08:00 +0000

A committee constituted by the Ministry of Electronics and Information Technology issued a draft report on non-personal data governance in India in July 2020 which it revised in December 2020 following the receipt of feedback from stakeholders. The December 2020 report envisages parallel regimes for the governance of personal and non-personal data although it does not appear to take into account how fluid the two forms of data are. The report's underlying principles also seem fairly ambiguous; the document suggests that 'regulation in India to establish rights over non-personal data collected and created in India' be 'simple, digital and unambiguous' in § 3.4(v) without specifying what it means by 'digital' or, indeed, why the regulations should be digital.

The comments contained in this write-up seek to engage with the principles which appear to underlie the December 2020 Draft Report by the Committee of Experts on Non-Personal Data Governance Framework, and which are set to underpin the framework for the governance of non-personal data in India without dealing with the details of terminology and responsible authorities currently in vogue since, at this stage, those are still details that are relatively malleable.

Sovereignty

Through the course of discussions on data governance in recent years has been the theme of 'data sovereignty' and, true to form, this report too states that 'sovereignty' is one of its guiding principles, in § 3.4(i), defining it by stating: "India has rights over data of India, its people and organisations." This is a somewhat unorthodox approach to the subject of sovereignty, and the suggestion that India has rights over 'data of India' suggests that the conception of the data to which India has rights could be construed in a manner that is unsustainably (and perhaps illegitimately) broad including rights to all data pertaining to India regardless of where it had been generated and all data generated in India regardless of by whom it had been generated or collated.

Considering what the report's definition of 'sovereignty' reveals, it would perhaps be more useful to understand the term as a negative: what does it mean not to be colonised?

In the context of data, and in the broader context of intellectual property laws, non-colonisation would likely mean leveraging Indian data for the benefit of Indians and protecting them from predatory foreign influences. Such an approach, although it says little about invasive intra-state approaches or unfair competition by dominant players within the domestic market, would at least have the benefit of being mindful of individual autonomy and agency without having the state seeming to make claims to 'its people and organisations' which sound strangely paternalistic and proprietary in what is a democratic republic.

Understanding 'sovereignty' through the lens of non-colonisation in this context would have the added benefit of being in consonance with the stated aims of the anticipated data governance framework under discussion which are relevant to the subject: 'to create an enforcing framework that establishes rights of India and its communities over its non-personal data' and 'to create an enabling framework that ensures unlocking economic benefit from non-personal data for India and its people' per § 3.5 of the report.

What is inescapable reading these aims, however, is that the primary concern of the anticipated governance framework for non-personal data is the community and not the individual. While this could be read as Indian culture often prioritising the community over individual, it is more likely that the emphasis on community rights stems from a theorised bifurcation of data into personal and non-personal data reflected in the report's text.

Parallel Regimes

The report is crystal clear about its envisaging two exclusive regimes operating to govern what it sees as two entirely different forms of data: personal and non-personal data, going so far as to partially explain what the latter is by saying: "When the data is not ‘Personal Data’ (as defined under the PDP Bill), or the data is without any Personally Identifiable Information (PII), it is considered Non-Personal Data," in § 4.1.

The explanation contained in § 4.1 is entirely dependent on the PDP Bill and does not adequately take into account hybrid data or non-personal data generated from personal data. Going through the report, it is, for example, not immediately clear what steps an individual could meaningfully take to address the harm caused by the personalisation of non-personal data especially since the focus of the anticipated non-personal data regime is simply not on individual rights.

Further, the compartmentalisation of the two forms of data appears to be far from watertight. 'Government hospital collecting health data of a patient (anonymised)' features in examples of non-personal data collected by public entities to take just one item from a table in § 4 of the report. The table goes on to suggest that the 'data collecting mechanisms, devices, instruments, sensors, etc.' in this case are public, and that the data is collected from or about a subject in a private space. It is entirely unclear what this is intended to mean not least because patient data cannot be anonymous at the point of initial collection.

It is possible that the two regimes governing personal and non-personal data will ultimately be complementary, and that concerns about accountability and harm reversal, where possible, are misplaced but given that the proposals relating to both regimes are currently fluid, it is probably not prudent to simply trust that problems which may arise under one of them will somehow be addressed by the other. These comments therefore attempt to consider the non-personal data regime envisaged in the December 2020 report independently particularly since it is expected to function independently of the personal data regime.

The report does recognise that the two forms of data can become enmeshed with each other; it states that 'mixed datasets that typically have inextricably linked personal and non-personal data will be governed by the PDP Bill' in § 5.1(v) and clarifies that de-anonymised data will be governed by the PDP regime in § 5.2. However, at an enabling level, this does not meaningfully acknowledge how permeable the compartments holding the two forms of data are or how easy it is for one form to be converted into the other while, at the enforcement level, the absence of any system to alert data principals of the de-anonymisation of their data means that individuals whose data has been compromised after anonymisation would likely not know that a problem had arisen.

The report 'recommends that data collectors at the time of collecting personal data should provide a notice and offer the data principal the option to opt out of data anonymization' in § 5.4. The opt-out mechanism is an expression of the privacy by consent model and allows for the default to be that data would be collected for depersonalisation and unspecified post-anonymisation use. However, in a country where technological literacy is limited, it is perhaps worth prioritising a privacy by design model which would, instead of having data principals opt out of having their data be de-personalised and used, require that the default be to disallow the de-personalisation and subsequent use of once-personal data without the informed consent of relevant data principals having been obtained.

The Business of Data

The report labels businesses as 'Data Business' if they collect or manage either personal or non-personal data above a certain threshold, and it anticipates their being required to share metadata and underlying data under appropriate regulations. To exemplify, it states that metadata which hospitals collect about each patient such as their name, age, weight, and symptoms may be metadata shareable under a framework detailed in § 8.

There are two primary concerns which the recommendations relating to 'Data Business' raise. Firstly, as the report itself explicitly states in § 6.1(iii), a Data Business 'is a horizontal classification and not an independent industry sector' and, "Existing businesses in various sectors that collect data will get categorized as a Data Business." This essentially means that there are no special provisions made for persons whose entire business is the collection, compilation, and perhaps analysis, of existing data, and it is entirely unclear whether failing to also treat data businesses as a separate vertical could ultimately result in businesses which exclusively in data becoming unsustainable as businesses.

Secondly, while the example of health metadata in the report is relatively straightforward to the extent that one would expect hospitals to collect the sort of data mentioned in the example, it is also true that the determination of data fields in some businesses is the result of conducting extensive market surveys and analyses perhaps looking into consumer preferences. In such circumstances, forcing a company to share metadata could potentially allow third-parties to unfairly freeride on the expertise, investment, and labour of whoever has compiled the metadata not to mention that such compilations are potentially protectable under copyright law, and it is not inconceivable that a requirement to share them could potentially conflict with the rights granted to copyright owners under the 1957 Indian Copyright Act.

Further, § 6.3(i) of the report states: "The meta-data about data being collected, stored and processed by the Data Business is stored digitally in meta-data directories in India. Open access is provided within India to these meta-data directories." The meaning of 'within India' is not clear at all, and could be read to mean to anyone within India or for use within India. In particular, the use of data obtained via the sharing mandates of the anticipated NPD regime is not restricted to non-competitive purposes due to which it has the potential to ride roughshod over the principles of competition law. Later, § 6.4(i) of the report clarifies that organizations registered in India that will have open access to a proposed meta-data repository, and that they can query the repository but not download metadata. Unfortunately, this does not resolve concerns about a level playing field or anti-competitive practices or, for that matter, explain either why individuals have been restricted from requesting data or how generally proscribing the download of metadata offers adequate protection to those who have generated it.

Accountability

That data is non-rivalrous and amenable to progressive use appears to have been accepted to be axiomatic by the report. The idea appears to underpin virtually every aspect of the anticipated non-personal data governance framework, and it is reflected in the enthusiasm with which the report suggests that data be available for sharing. In fact, § 7.2(ii) of the report, amongst other things, states: "Data being non-rivalrous, the value of data may be consumed by several organizations and communities, without degrading its value to the relevant community."

The mechanisms to protect data from being used for purposes that would subvert social harmony or derogate from intellectual property laws are not especially robust although the report does acknowledge and seek to be compatible with the latter (not least in § 8.6), and to prevent harms arising from the unrestrained use of data by suggesting processes through which proposed uses of data may be vetted.

Significantly, there are no provisions worth mentioning in the report about affixing any sort of accountability, let alone liability, for the mishandling of non-personal data. The lack of potential liability is a theme that appears to run through the length of the report not just in relation to data principals (who are largely beyond the purview of the NPD regime) but also in relation to data- and metadata sets though it is not always a significant concern. For example, it is not clear what penalties a company's failure to disclose or share metadata could attract but, considering that the requirement to share metadata may itself be open to challenge possibly on account of incompatibility with intellectual property laws, affixing liability for non-disclosure is probably a secondary issue. In other cases, however, the lack of accountability is a concern. § 7.4(iv) of the report states that 'data custodians have a responsibility towards responsible data stewardship and a 'duty of care' to the concerned community in relation to handling non-personal data related to it', for example, but apart from requiring custodians to have mechanisms to swiftly remedy accidental harms resulting from leveraging non-personal data, there are no clear mechanisms through which data custodians who fail in the discharge of their responsibilities may be held to account. So too is the case of the data trustee who fails in its responsibility, defined in § 7.7(ii) of the report, to ensure that persons are not harmed by the de-anonymisation of non-personal data.

There are several issues that the report does not deal with such as the sharing of data for a business purpose (as § 8.3 of the report highlights). It isn't clear why, when a data governance set up is being formulated from scratch, certain transactions such as those involving data sharing between businesses should seemingly be left to self-regulation despite the fact that doing so also removes access to such protections as the law may offer to those whose data is mishandled. Currently, the framework to support the development of a data protection and governance regime is nowhere near complete.

The idea that data is apolitical in itself and endlessly available to propel human progress into previously uncharted territories is, frankly, terrifying not least because it is unsupportable. Unfortunately, this is the understanding of data that seems to be creeping into policy discourse which, though it acknowledges that data can potentially wreak havoc, fails to productively engage with how best to prevent and address possible harms.

This post is by Nandita Saikia and was first published at IN Content Law.

[SSRN] Negotiated Content Dissemination Under Copyright Law

noreply@blogger.com (Unknown) — Wed, 18 Nov 2020 02:52:00 +0000

ABSTRACT

Copyright does not function in isolation. It is supported by contract law, and it is but one of the laws which governs content, its ownership, use, and dissemination. Focusing on broadcasts, whilst recognising that the processes applicable to them also apply to other forms of dissemination in modified form, this text describes, in broad strokes, the field in which negotiated grants of copyright function from a statutory point of view, describes what goes into attempting to ensure that content per se is ready for legal dissemination, and discusses how relationships between the various stakeholders are structured to facilitate such dissemination.

A 20-page working paper (that's been on my device for a while) shared as-is: available here via SSRN.

Addendum, 2022

Also see: Content Clearance Form (GoogleDocs via LinkedIn)

This post is by Nandita Saikia and was first published at IN Content Law.

Comments: Proposing to De-Criminialise Copyright Offences

noreply@blogger.com (Unknown) — Wed, 08 Jul 2020 05:15:00 +0000

NOTE: These comments are based on first impressions of the law, and may be re-thought.

Contents

I. Introduction

II. Concerns about Criminal Provisions

1. The Specificity of Offences

2. Definitional Issues

3. Enforcement Processes

4. Sentencing Guidelines

5. Mens Rea and the Commission of Offences

III. Limitations to the De-Criminalisation Process

(References to the Copyright Act are references to the Indian Copyright Act, 1957.)

I. Introduction

Indian criminal law relating to offences contemplated by its copyright statute does not appropriately address infringement: amongst other issues, it lacks nuance, is not always clear, and does not necessarily require that a person intend to commit a crime to be held guilty of it. Due to the textual ambiguity and doctrinal concerns inherent in the statute – the 1957 Copyright Act – proposals to address the deficiencies in Indian copyright law are not untimely. However, to be meaningful, they must employ a chisel and not a sledgehammer to:

Decriminalise minor offences;
Ensure that no offence can be committed without there being an intention to do so;
Ensure that the possibility of imprisonment does not arise merely on possessing the equipment which may be used to violate copyright; and
Provide clarity about exactly what constitutes a crime.

These comments aim to explore how the listed aims could be achieved. They begin with an analysis of the law as it stands and why it gives rise to concerns, continue with an interpretation of how international law could constrain the amendment of domestic law, and include a discussion of how criminal copyright law could be rationalized.

II. Concerns about Criminal Provisions

Chapter XIII of the Indian Copyright Act, 1957, contains provisions that deal with criminal offences, and Section 39A makes some of the provisions of Chapter XIII applicable to the performer's right and to the broadcast reproduction right. The table below describes the offences contemplated by Chapter XIII of the statute and their applicability:

No.	Offences & Section Numbers	Applicability
1	63. Offence of infringement of copyright or other rights conferred by this Act.	Copyright, moral rights, performer's right, broadcast reproduction right and, possibly, the 'right to continuing royalties' (but not the artist's resale right)
2	63A. Enhanced penalty on second and subsequent convictions.	Copyright, moral rights, performer's right, broadcast reproduction right and, possibly, the 'right to continuing royalties' (but not the artist's resale right)
3	63B. Knowing use of infringing copy of computer programme to be an offence.	Copyright
4	64. Power of police to seize infringing copies.	Copyright, Performer's right, Broadcast reproduction right
5	65. Possession of plates for purpose of making infringing copies.	Copyright, Performer's right, Broadcast reproduction right
6	65A. Protection of technological measures.	Copyright, Performer's right, Broadcast reproduction right
7	65B. Protection of Rights Management Information.	Copyright, Performer's right, Broadcast reproduction right
8	66. Disposal of infringing copies or plates for purpose of making infringing copies.	Copyright, Performer's right, Broadcast reproduction right
9	67. Penalty for making false entries in register, etc., for producing or tendering false entries.	Copyright
10	68. Penalty for making false statements for the purpose of deceiving or influencing any authority or officer.	Chapter XIII Offences
11	68A. Penalty for contravention of section 52A.	Copyright
12	69. Offences by companies.	Offences under the Copyright Act

The final provision in Section 70 of the Copyright Act, 1957, deals with the cognizance of offences, and states: "No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act."

1. The Specificity of Offences

Sections 63 and 63A

Offences which fall within the purview of the Copyright Act and punishments which may be levied when they are committed are dealt with in broad terms in Sections 63 and 63A which also make provision for enhanced and diminished punishments in certain circumstances.

Section 63 (read with Section 39A) penalizes persons who knowingly infringe or abet the infringement of copyright in works (unless the infringement lies in the construction of a building), the performer’s right, the broadcast reproduction right, or any other right conferred by the statute except the artist’s resale right conferred by section 53A. The scope of Section 63 is ill-defined: it does not, for example, specify if the rights of eligible authors of underlying works in cinematograph films and sound recordings to receive continuing royalties (introduced into the statute through an amendment in 2012) would, if violated, fall within the ambit of ‘any other right conferred by this Act’, with such a violation constituting a criminal offence. In the case of continuing royalties, this lacuna is a particular concern as the statute does not identify exactly who is liable to pay continuing royalties due to which the target of the law’s punitive arm would be unidentified without the support of contractual agreements – where they had been signed – specifying who would be liable to pay continuing royalties.

The Copyright Act does not limit itself to stating that only the violation of statutory rights would be considered to be criminal – it is therefore reasonable to interpret it to mean that the violation of so-called special or moral rights listed in Section 57 of the statute would constitute a criminal offence despite the fact that the right to attribution is more a right to claim attribution than a right to be attributed at the outset. This potentially leads to an anomalous situation where a person may eligible to be attributed but (a) the person in a position to accord attribution is under no obligation to attribute but, nonetheless (b) upon failing to be attributed, a person with the right to claim attribution may invoke civil and criminal law. Analogous concerns also exist in relation to the performer’s right: the right was restructured in 2012. It had earlier been contained entirely within Section 38 of the Act. However, in 2012, Section 38 was culled to simply mention the existence of the performer’s right and its term, and two new provisions were introduced: Section 38A pertaining to the ‘exclusive right of performers’ and Section 38B pertaining to the ‘moral rights of the performer’ – since neither of the new provisions specifically refer to the performer’s right, if the statute were interpreted to mean that they would together form the performer’s right, it is conceivable that Section 63 (along with its penal implications) would apply to any violations of the rights of performers. Notably, Section 38A begins with:

“Without prejudice to the rights conferred on authors, the performer’s right which is an exclusive right subject to the provisions of this Act to do or authorize for doing any of the following acts in respect of the performance or any substantial part thereof…” [Emphasis added.]

The insertion of the word ‘which’ could support the argument that Sections 38A and 38B together form the performer’s right as the word seems to indicate that Section 38A does not so much lay down the law by itself but narrates a version existing law, presumably that which is already contemplated by Section 38 but which, in result of the 2012 amendment, now remains unspoken. If this were the interpretation accorded to the rights of performers, it would result in Section 57 and Section 38B rights being treated in an analogous manner for the purpose of levying criminal liability under Section 63 (or not doing so).

Unfortunately, it is not clear how performers’ and authors’ moral rights would ultimately be interpreted if the task were left to the judiciary which would be forced to make the best of a less than ideal situation caused by unclear drafting. So too is the case of continuing royalties. Therefore, in order to bring specificity to the law, it would be prudent to make the necessary amendments to the Copyright Act so that there are no doubts about exactly what constitutes a criminal offence under Section 63 of the statute. This could be achieved by providing an exhaustive list of offences within the provision itself rather than resorting to an indicative list which merely criminalized ‘any other right conferred by this Act, except the right conferred by section 53A’, explained that constructing a building or other structure which would infringe the copyright in a pre-existing work would not be an offence under the provision, and then expected a reference to be made to Section 39A to attempt to construct an understanding of the extended applicability of Section 63.

2. Definitional Issues

Sections 2(t), 63, 63A

Along with specifying which acts would be considered offences under copyright law, it is also necessary to specify exactly what constitutes such acts and what the law aims to target. In this regard, there are two clear lapses in the Copyright Act relating to the definition of infringement and the equipment used to commit infringement.

The term ‘commercial infringement’ is not defined in the Copyright Act although Chapter XIII of the Copyright Act certainly contemplates commercial infringement and levies enhanced punishments against those who engage in it. Considering the implications of engaging in commercial infringement, it would be prudent to insert into the statute an exhaustive definition of the term or, at the very least, a clarification either limiting its applicability to ‘infringement where the infringed work is itself the essential object of the infringement’ or excluding ‘the use of an infringing copy of a protected work for commercial purposes’ from the purview of the term. Doing so would help to differentiate between businesses whose purpose was infringement and those which merely used an infringing copy of a work – a ‘pirated’ copy of software, perhaps – to conduct their core business which had nothing to do with infringement.

Further, the term ‘plate’ is used to describe the equipment used to commit infringement, a hangover from an earlier time. It is defined in Section 2(t) of the Copyright Act in non-exhaustive terms which raise concerns since, when infringement either occurs or is suspected to have occurred, plates may be seized. The nature of the definition, however, is so broad that it could result in an alleged infringers entire communications infrastructure being seized whether or not it was actually used to commit infringement. It would therefore be worth narrowing down either the scope of the definition or excluding from the purview of seizures plates which were not used exclusively (or at least overwhelmingly) for the purpose of committing infringement.

3. Enforcement Processes

Sections 64, 65

Section 64 of the Copyright Act grants the police powers to seize infringing copies in its title. However, a close reading of the first sub-section of the provision reveals that the powers of the police are far wider than the title of the provision suggests.

The provision does not require an empowered police officer to have anything beyond satisfaction that a Section 63 offence in respect of infringement ‘has been, is being, or is likely to be’ committed prior to acting. Thus, the police officer is not required to have any sort of firm evidence or even to record what his satisfaction is based on – a wide power with little in the way of accountability made ever more concerning by the fact that the provision envisages offences in three timelines: past perfect, present continuous, and conditional future. Effectively, an empowered police officer who thinks its likely that copyright infringement may be committed in the future could swing into action with the backing of Section 64 of the Copyright Act alone.

Once a police officer swings into action, he does not need a warrant to seize all copies of the work which concerns him, and all plates used to make infringing copies of the work, wherever they are found, without a warrant. The seizure of copies of the work may not be limited to infringing copies, the possibility of plates being seized now, with the evolution of technology, means that the entire communications infrastructure of a suspected infringer could be seized. And although seizures must be produced before a magistrate as soon as practicable, there is no deadline within which seizures must be so placed before a magistrate.

While it is true that persons who have an interest in seizures may make a restoration application to the magistrate within fifteen days of the seizure, it is undeniable that the process of enforcing copyright, even before infringement may have actually occurred, accords extremely wide powers to the police. It would probably be prudent to amend the law so that a warrant is ordinarily necessary for seizures above a specified value, so that there is a deadline within which seizures must be placed before a magistrate, and so that there are clear guidelines indicating not only which police officers are empowered to act but also in what circumstances they may do so.

Not only does Section 64 envisage police acting prior to the commission of infringement but so too does Section 65 of the Copyright Act which deals with the possession of plates to make infringing copies.

Section 65 criminalizes infringement which may be planned but which has not been committed. It is not clear why the provision is necessary at all when entering into a conspiracy to commit a crime may be separately addressed, and no coherent rationale is provided for making punishable a mere plan to commit infringement. The provision reeks of an attempt to control the speech of a once-colonized people, and is difficult to justify in an independent republic.

4. Sentencing Guidelines

Sections 63, 63A, 63B, 65A, 65B, 67, 68, 68A

Section 63 of the Copyright Act provides the punishment for Copyright infringement while Section 63A provides for an enhanced penalty on second and subsequent convictions. In relevant part, the two provisions read as follows:

"63. Any person who knowingly infringes or abets the infringement of— [….] shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.

63A. Whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees: Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before the commencement of the Copyright (Amendment) Act, 1984."

In reading Sections 63, 63A and 63B of the Copyright Act (the last of which deals with the knowing use of infringing copy of computer programme), it is obvious that the legislature recognizes that not all offences are equal: there are provisions made for the imposition of enhanced and diminished sentences. However, there are no statutory mandates requiring that specific offences be treated in a specific manner – the courts have the discretion to decide how to proceed with sentencing. The lacuna poses concerns regarding the uniformity of sentencing in addition to which there also exist concerns about the proportionality of sentences.

In a country where public understanding of copyright law is limited, to say the least, it would perhaps be prudent not to raise the possibility of imprisonment should an individual commit infringement privately. Similarly, if an individual were to commit non-commercial infringement that had no discernible effect on the market value of protected content – the making of a dozen copies of a photograph to share in a book club, for example – it seems entirely disproportionate to have the individual face the prospect of imprisonment. Common sense would suggest that a fine (perhaps coupled with mandatory attendance of a course, possibly online, explaining the basics of copyright law, if possible) would adequately address the harm done.

On the other hand, there also exist strong indications that there are established links between organized crime and commercial infringement. As such, depending on the role which a person played in a commercial infringement operation, especially if it involved selling infringing copies of works or communicating protected works to the general public without authorization, punishments could be enhanced to include the possibility of both hard fines and imprisonment.

Neither of these suggestions regarding the gradation of punishments is alien to the ethos of the Copyright Act which reflects them in both Sections 63 and 63A, not to mention Section 63B. However, they are not immutable statutory mandates. While developing detailed sentencing guidelines would probably be best achieved in subordinate legislative, it may be prudent to lay down broad guidelines in the statute itself which entirely preclude the possibility of imprisoning individuals for engaging in non-commercial infringement regardless of which provision of Chapter XIII of the Copyright Act defines the relevant offence. Doing so would help ensure both uniformity and proportionality in the enforcement of copyright law.

Further, specifically with reference to Section 63A, the provision begins by saying: "63A. Whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence,…"

Two concerns immediately arise in relation to Section 63A: firstly, there is no time gap within which a second or subsequent offence must be committed for an enhanced penalty to become applicable and, secondly, the provision does not clearly specify that the enhanced penalty would become applicable only on the commission of the same offence. The effect of these omissions is that there would be a lifelong Damocles sword hanging over anyone who once committed an offence contemplated by the Copyright Act, and that the sword could fall upon the commission of an entirely different offence – given the range of content which copyright law protects and the wide spectrum of exclusive rights that rights owners enjoy, it is not difficult to envisage such a scenario emerging.

There may be good reason to categorize both offences and time-gaps with reference to whether or not the infringing activity were commercial, perhaps assigning a shorter time-gap in cases where the initial offence involved non-commercial infringement. Once again, as in the case of grading initial offences and sentences, it may be prudent to leave the details of the scheme to subordinate legislation. For this to be realizable, it would be prudent to amend Section 63A of the Copyright Act to specifically envisage the making of such a scheme and to allow subordinate legislation to be framed in addition to replacing the words ‘any such offence’ with ‘the same offence’ in Section 63A to limit the scope of the provision.

5. Mens Rea and the Commission of Offences

Section 63 (and 63A, in consequence), 63B, 67(a), 67(b)

Considering the links between commercial infringement and organised crime, it is not beyond the realm of the possible that those who control such operations would force others into executing the actual infringement. In such cases, for example, if a trafficked person were forced into committing an act which would amount to infringement, it would seem unconscionable, on the face of it, to levy against such a person a punishment although the individual may well have known that the act amounted to infringement.

Unfortunately, the of the Copyright Act does not limit itself to penalising those who commit offences with the intention of doing so. Section 63, which describes the offence infringing copyright or other rights conferred by the Copyright Act, specifies that persons would commit an offence if they were to knowingly infringe or abet infringement.

Further, the textual layout of Section 67 suggests that it is an offence to make or cause to be made either ‘a false entry in the Register of Copyrights kept under this Act’ or ‘a writing falsely purporting to be a copy of any entry in such register’, while the text of Section 68A makes publishing a sound recording or a video film in contravention of the provisions of Section 52A – which describes the particulars to be included in included in sound recordings and video films such as the names of the producers and copyright owners – a punishable offence.

The offences relating to providing incorrect information about protected content are particularly concerning as they are strict liability offences even though it is possible to commit them entirely inadvertently – not only is authorship never fully settled but also: chains of title, particularly in relation to composite works, can be extremely complex. Consequently, were criminal sanctions to be levied whenever an offence occurred, it could easily result in criminalizing persons who had no intention of providing incorrect information or dealing with protected content in bad faith considering how difficult it can be to definitively establish the ownership of protected content since their ostensible ownership and claimed authorship is always open to challenge.

It would therefore be advisable to limit the scope of the offences contemplated by Chapter XIII to those offences which are committed intentionally, and not just knowingly. In no case does there appear to be justification for criminalizing acts which are committed neither knowingly nor intentionally. Addressing these issues could be achieved by simply inserting an umbrella provision into Chapter XIII of the Copyright Act stating: “No act which falls within the parameters of any offence described by this Chapter shall be considered an offence unless it is executed with the intention of committing the offence.”

III. Limitations to the De-Criminalisation Process

India is fettered by its treaty commitments in the decriminalization of copyright law. However, the fetters are loose: TRIPS deals with them in Article 61 which lays down minimum requirements.

With regard to copyright, criminal law is required to come into play only in cases of willful copyright infringement on a commercial scale. This indicates that criminal copyright law is not necessary where infringement is committed without the intention of committing a crime. Further, a plain reading of the Article indicates that criminal provision is not mandatory unless the infringement itself is on a commercial scale; using infringing content or works for commercial purposes does not fall within the scope of acts in respect of which criminal law must necessarily come to bear.

Copyright infringement must be treated at par with offences of a similar gravity and be sufficient to have a deterrent effect under TRIPS although no guidance is provided within Article 61 regarding how to assess whether either of these mandates has been followed. Remedies are required to include the possibility of monetary fines and/or imprisonment (both following the mandates of similar treatment and deterrence) as well as to include, in appropriate cases, the possibility of 'seizure, forfeiture and destruction of the infringing goods and of any materials and implements' predominantly used to commit infringement.

There is very little doubt that Indian law currently extends the scope of criminal copyright law far beyond what TRIPS demands of it. It would therefore not violate India's international commitments to whittle down and rationalise the criminal law provisions in its copyright statute assuming, of course, that in doing so it was cognizant of the mandates of TRIPS regarding willful infringement on a commercial scale.

This post "Comments: Proposing to De-Criminialise Copyright Offences" is by Nandita Saikia and was first published at IN Content Law.

Copyright Crimes in Colonial and Contemporary Times

noreply@blogger.com (Unknown) — Sat, 20 Jun 2020 19:00:00 +0000

Copyright law, in its modern avatar, was introduced in India not because Indians themselves felt a dire for it but simply as one of the laws brought into the country by the British who had colonised the land. As in other parts of the colonised world, the 'natives' had little say in shaping the law they would come to be subject to. They watched, largely as mute and often ignorant spectators, while intellectual property regimes foist upon them contributed to the development of capitalism which, in turn, led to the vastly inequitable distribution of global wealth that persists to this day.

Colonial copyright was, unsurprisingly, often an instrument of power which did not so much encourage universal learning as it held back democratisation through learning. There were controls on procedural issues adjacent to the enjoyment of copyright which included restrictions on who could register copyright, and in what sort of works copyright could be registered. Needless to say, the priority of colonial copyright was not to protect indigenous works or traditional knowledge in subjugated lands. Many indigenous works simply did not qualify as being eligible for copyright protection on account of not meeting the criteria for copyrightability due to their modes of creation or to their manifest authorship being incompatible with understandings of attributable authorship in imported copyright statutes modelled along the lines of the foundational 1709 English Copyright Act.

Alongside creating hierarchies which cut 'natives' out of the sphere in which copyright could be enjoyed, colonial copyright also laid the groundwork to levy high penalties for the infringement of copyright. In fact, turning infringement into a criminal offence and keeping it so could be considered to be one of the vestiges of colonialism in copyright law. Stringent punishments once ensured that 'natives' could be subject to unconscionably high penalties were they to attempt to partake of or participate in systems of knowledge on any terms but those which colonisers imposed on them. And, in contemporary times, not executing a clean break with the past has resulted in the development of a penal law (relating to almost all the wrongs contemplated by copyright law) that can boast of little nuance and few procedural safeguards.

Thus, under Indian law, penal provisions exist in respect of not just copyright itself but also, to varying extents, in respect of allied subjects such as the performer's right, the broadcast reproduction right, moral rights, technological protection measures, and rights management information in both analogue and digital forms. Focusing on copyright infringement for the purpose of this discussion: a violation of copyright is both a civil wrong and as a criminal offence which means that it could be addressed using civil, criminal, or administrative remedies. In the realm of criminal law: individuals who infringe copyright in their private lives without a view to profit and without committing large-scale infringement can potentially be imprisoned. Police seizures of infringing copies may occur without a warrant in some circumstances, and where plates are seized, the definition of 'plates' in the Indian Copyright Act, 1957, is so broad that it could potentially result in an alleged infringer's entire communications infrastructure being seized. To make matters even more concerning, there is no firm deadline within which seizures must necessarily be brought before a magistrate.

Appallingly, Sections 65, 67(a) and 67(b) of the 1957 Copyright Act could be interpreted to mean that the Indian statute does not always need an offence to actually have been committed prior to the possibility of imprisonment arising or, for that matter, the intention to commit a crime to be established in order for an individual to be held guilty of committing an offence. In some circumstances, it is possible to commit a crime merely by possessing plates which could be used for infringement or by providing incorrect information about protected content. Such an error is all too easy to inadvertently make especially when one is dealing with composite content that contains a number of underlying components whose authorship and ownership are always open to challenge (such as broadcasts or recorded songs).

From a statutory perspective, sorting out the mess that is criminal copyright law requires a reconsideration of the legitimate extent of police powers, a rehaul of definitional issues so that the targets of criminal copyright law are specific and limited whether they are inanimate 'plates' or animate human beings, and the development of a gradation of punishments and offences which goes beyond the levy of enhanced punishments for the commission of second and subsequent offences, or diminished punishments for special reasons.

At the moment, the law almost entirely limits itself to differentiating between offenders for the purpose of sentencing, if at all. A re-categorisation of offenders (so that individuals acting privately could not be treated as being akin to economic offenders whose businesses dealt in infringing products), of infringing acts (so that the reproduction of protected content for personal or limited interpersonal use would not be considered comparable to sustained public communication), and of content (so that the owners of rights in composite content could not be held liable for actions executed in good faith that had the potential to impact disputed underlying components regardless of when the dispute were to arise) would be necessary to develop a matrix in which offences, offenders, and punishments could be simultaneously addressed in a coherent manner. As such, recognising an infringement hierarchy, so to speak, could ultimately help to ensure that no punishment levied was disproportionate to the offence committed by coupling the hierarchy with a gradation of punishments (that could range from soft fines to imprisonment).

Global consensus regarding copyright crimes is not a particularly useful aid to develop copyright norms for the future. Instead, the existence of a global consensus leaning towards validating the criminalisation of copyright infringement is merely a useful aid to study how powerful states have leveraged intellectual property rights to secure their own power over the last few hundred years. What we now most need is to have the rationale underlying the copyright crime regime shred its colonial past and view the future with an eye to actually encouraging learning and to supporting legitimate business.

(This post is by Nandita Saikia and was first published at IN Content Law.)