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An Overview of the Historical Exaggeration of IP

In his Independence Day address, Indian PM Modi asked citizens to concentrate on "duties." He previously argued "rights" had weakened India. President Droupadi Murmu and Judge N.V. Ramana previously talked about obligations. Although I agree with some of this "right-duty" discourseI wonder whether our reliance on "Right" (in the sense of "right-izing" everything) is unhealthy, and if right-duty is the only viable legal relationship and lens through which to evaluate the world (legal) issues.[1]

IP has entered the realm of law, but it is still not quite obvious what users want. Some judges and academics refer to them as (Human/Fundamental) "rights" (see, for example, the drafting on Permitted Uses and its comments from 2021) while others refer to them as freedoms or privileges (as is the case here) or L&Es (as is the case on the international level) (for example, here) (e.g. see).

The range and depth of these ideas is vast. The terms "limitation" and "exception" are occasionally used interchangeably, despite the fact that "limitation" is typically broader in scope. In our legal imagination, they still fall short of the standard of the law. Prioritizing rights above legal duties. They seem mutually exclusive and complementary in this era of right-inflation.

Yet, freedom, privileges, and liberties—broader legal ideas than rights and L&Es—are seldom used in legal language. They don't fit the "balance" framework until they're brought in as a "right" due to their greater and typically more imprecise nature.[2]

This essay seeks to clarify the link between copyright and user interests, since these concepts impact our legal thinking and arguments, which affect court judgements and regulations. This also asks whether we are actually autonomous in our knowledge governance thinking or simply sustaining tales. I shall use "user interests" as a catch-all, regardless of its meaning.

Section 52: Multi-monikered?

In India today vs. Newslaundry, the Delhi Court, citing Super Cassettes v. Hamar Television, interpreted Section 52 of the Copyright Act, 1957 as a "right to make fair use or to treat fairly" based on free expression. The Wiley Eastern case justified Section 52 to preserve Article 19(a) of the Indian Constitution, which guarantees free expression. Narendera Publishing House's concept of copyright as a "privilege" and user interests as the "competing interest of enlarging the public domain" was more intriguing.[3]

Rameshwari Photocopy rephrased Section 52 in their own words. The single judge bench described Section 52 as a user "right," but the attorneys disagreed on how to characterize it. The Plaintiffs argued Section 52 in the sense of "immunity" (para 14), while another attorney described it as an independent user "right." Finally, the student body (ASEAK) supporting DU argued that it doesn't matter whether Section 52 is a "exception" or a "right" (para 17).

To answer the question of whether or not photocopying falls under the category of "right" (see paragraph 76) or "permissible activity" (see paragraph 77), the division bench judgements muddled the terms "limitation" and "exceptions" (see paragraphs 73 and 74, where it rehashes a paragraph from the B.D.Bhandari case focusing on the term "exception" and then summarizes it as a "limitation") (para 79). A privilege, according to the appellants' lawyers, who are challenging Section 52. [4].

With so many phrases describing the same provision, it is unclear how to identify user interests and whether the legal issues are properly addressed. As the Courts likewise did not definitively enumerate or interact with these concepts, my dubiety becomes twofold.

Putting this uncertainty aside for a minute, it is also vital to evaluate whether the 'user rights' phrase which is garnering considerable support internationally, is correct. User interests as copyright holders have a duty not to interfere with others' fair use of their work, but this only paints part of the picture of what it means to have rights. If properly conceptualized, this 'right' of users carries with it the potential for a positive positive obligation (i.e., to create works and make them accessible) (i.e. create works and make them available).

Yet, a court could not enforce this affirmative requirement since it would violate the other rights of copyright holders or/and authors. This dissonance is supported by the dictum that "a right without a remedy is no right" (ubi jus ibi remedium) from common law. Users' inability to take copyright violators to court demonstrates that the system isn't designed to accommodate such recourse..[5]

We have only just begun to see a politically acceptable and practically appealing picture of "conflicts of rights" waiting for 'balancing' in the context of this 'rights' discourse. So, the difficulties surrounding the nature of such self- or auto-named 'rights' disappear as soon as a (un/auto) defined relationship between copyright and user interests is seen as two equally positioned legal rights.

Every time this happens, 'zero-sum' thinking kicks in, wherein the defeat of one equals the success of the other. So, whatever seems more solid obtains advantage. Copyrights seem more concrete than nebulous, user-focused concerns because of their exclusive nature. Is it not likely, then, that, in an effort to strike a balance, copyright protections would be more likely to favor the 'known' than the 'ambiguous'?

Confusion since 1884!

From the publication of the Berne Convention in 1886, there has been confusion about which words to use and what they signify. The former British colony known as "India" ratified the Convention (Read: Article XIX, of the Berne Convention, 1886). (Refer to Article XIX of the 1886 Berne Convention). The official debates (here and here) suggest that copyright and user interests were seen more as "universal interests" and not as a direct consequence of copyright.

exceptions to copyright law.[6] Translated papers imply that the debate on user interests originated with a German proposal in 1884 demanding a "reciprocal right" of the public to utilise copyrighted works (page 91, here) (page 91, here). This eventually became a part of the convention Article 8 in the 1886 draught.

While the earliest revision documents (until 1948) were in French, the interpretations of Article 8 (which eventually became Article 10) disagree. E.g. Sam Ricketson and Jane Ginsberg read Art. 8 as "liberty of. . ." however Tanya Aplin and Lionel Bentley describe it as "freedom of …" in their book (page 7). (page 7). To add to the confusion, a literal translation of the French language accessible at WIPO reveals it as "ability to …". Although all these concepts (liberty, freedom, and capacity) might have varied meanings and scopes, they surely have a greater reach than a single (statutory) 'right' arising from or equating to copyright.[7]

With every modification, the area of legal protection for interest of copyright holders grew (see KEI's remark), while user interests diminished. In the 1948 edition, the term 'liberty/freedom/ability' was substituted with 'right'. Currently, with the amendment of 1971, it is neither a 'right' nor a 'liberty/freedom' but a state's authority subject to specific constraints. Consequently, today, it is upon governments to define what their users' interests are.

And this gets me to Stockholm (de)feat!

India and other African nations demanded significant reforms to the International Copyright System in the 1960s. Between 1886-1948, India and African nations were instrumental in severing the relationship between copyrights maximization and a decline in user interests, which ultimately led to the failure of the Stockholm revision.

The 1967 version put greater emphasis on the significance of users' interests for a country's scientific, cultural, and educational progress. Yet it didn't go into users' motivations and how they should connect to copyrights. The International Copyright Problem has been labeled as a result. As Prashant Reddy has noted on several occasions, it is no longer incorrect to call this the first "Access to Knowledge" (A2K) movement.

Existing international accords like WCT and TRIPS have perpetuated (or abandoned?) this confusion about the true nature of user interests, and as a result, we are stuck in a 'rights or L&Es' based understanding. Nowadays, ideas (or magic-solving phrases, as Cohen implies) like "public interest" further bury this reality. But, "human rights" language ends up winning the day since notions like "public interest" seem more abstract and lack strength in concrete situations. The word "balancing" comes up again as a possible answer (but see) (but see).

These concerns seem too theoretical to have any practical relevance in today's world, when so many business deals and geopolitical tensions hang in the balance, should we (as a nation) be labeled as infringers/non-compliant in numerous reports. But if this is the case... here's another question to consider: can we call ourselves "independent" if our intellectual property laws are reliant on the IP policies and interests of other nations, both historical and modern?

Given that a phrase (i.e. right) cannot have the same meaning in every case, I think it's important to describe user interests more precisely. One possible interpretation now is as Hohfeldian liberties or privileges, which don't come with any corresponding rights and don't require anything of the people who enjoy them.

This might help us fine-tune the balance between copyrights and user interests. Some countries argued in 1967 that copyright reform inside and according to individual nations should be based on the interests of those nations' users. The author of Gravity's Rainbow, Thomas Pynchon, puts it this way: "If they can get you asking the incorrect questions, they don't have to bother about the answers."[8]


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