Does Publication of Bare Acts by Private Companies amount to Copyright Infringement?

7th February, 2018 - 12:11 pm Categories: Copyright Legal Issues 0 Comments

Introduction

“[I]f ignorance of law is no excuse it presupposes that a citizen is able to know law. The elementary requirement in this country is that the citizen is able to obtain an authenticated copy of the Act, Rules and Regulations. If a citizen is not able to obtain these documents, the argument is that it would be difficult to implement the rule that ignorance of law is not an excuse.”

A Public Interest Litigation [WP(C) 10941/2017] has recently been filed in the High Court of Delhi contending that ‘Right to Know’ being a fundamental right and obliges the Government to inform the citizens about law by publishing authenticating it and updating as well as providing  reasonably priced printed copies of Bare acts. Interestingly, the PIL also goes on to claim that Acts of Parliament are under copyright ownership of the Government and, therefore, these cannot be permitted to be published by private players for commercial gains.

Background

The present petition has highlighted the troubling issue of accessing legislative and judicial documents in India. This issue was previously brought to the forefront by Vansh Sharad in his writ petition, whereby the High Court of Delhi observed that the “RTI Act itself mandates the Government to place the texts of enactments in public domain”[1]. Even prior to this The Bombay High Court has on a number of occasions passed orders directing the Government to make available authentic and updated copies of the acts and legislation, the most recent one being in the case of Mumbai Grahak Panchayat and Another. Vs State of Maharashtra and Others[2].

On the basis of the status report filed on the last date of hearing in the case of Union of India v. Vansh Sharad Gupta (hereinafter referred to as ‘Vansh Sharad’)the Court took a prima facie view that the Cabinet Secretariat’s officials are making positive efforts in tackling the issue of digitisation of bare acts, rules, regulations and notifications. Visibly, the actions taken by the Government is evidenced in the New India Code web portal which is under development and provides for improved online access to Indian legislations[3].

However, access to legislation has re-surfaced again with the present PIL filed in the High Court of Delhi by Advocate Arpit Bhargava which claims that the failure of the Government in providing affordable and accurate hard bound copies of Central Enactments, Rules and Notifications is violative of the fundamental right guaranteed under Article 19(1)(a) of the Constitution. Advocate Bhargava has also alleged that apart from the high prices of the private publications, some were also inaccurate. A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar on 08.12.2017 has thereby issued notice to the Ministry of Law as well as the Department of Publications under the Ministry of Housing and Urban Affairs and sought their stand on the issue raised in the petition. The matter is listed for 11th April, 2018.

The present PIL sheds light on two cardinal principles, the Right to Know and the principle of fair use which is given under Section 52 (1) q (ii) of the Copyright Act 1957 (hereinafter referred to as the ‘Act’). The said provision excludes the reproduction or publication of any Act of a Legislature from the scope of copyright infringement subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter.

Analysis

While the importance of the right to know has been reemphasized, time and again as being co-related to the fundamental right of freedom of speech and expression guaranteed under Article 19 of the Constitution, the interpretation of Section 52 (1) q (ii) and the condition laid therein has never before come into question. One needs to analyse a number of issues to understand whether the publication of Bare Acts by private companies amounts to copyright infringement of the Government or not?

• Whether there exists any Copyright over Statutes?

An interesting point to be evaluated while considering this issue is whether the State can assert any copyright over Statutes. In U.S.A. the position laid down in State of Georgia v. Harrison Co[4] is that, “the citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process”. Even the Bombay High Court in Vansh Sharad reaffirmed the observation made by the CCI that “[t]he law and enactments are in public domain and none can claim copyright in the law”. In light of these judgements, one could reasonably argue that there exists no copyright over Acts and Statutes and therefore, can be reproduced or published freely.

On the other hand, various provisions of the Act suggest otherwise. Section 52 which enumerates the acts that shall not amount to infringement necessarily implies the existence of a copyright. Moreover, Section 17 (d) of the Act lays down that Government shall be the first owner of all Government works, unless there is an agreement to the contrary. The definition of Government work as laid down under Section 2 (k) of the Act covers within its scope, all works which are made or published by or under the direction or control of the government, legislature, Court, tribunal or any other judicial authority in India. On reading these provisions together, the logical inference would be that the copyright over the Acts and statutes lies with the Government.

• Whether such Copyright is infringed by publication of Bare Acts by private publishers?

If the argument of the Government being the copyright holder is accepted, one would then have to examine if there exists any exception which gives the private companies the right to publish Government work without infringing government’s copyright in them. This exception is given under Section 52 (1) q (ii) which lifts the prohibition on reproduction or publication of an Act or statute if it is knit together with any commentary thereon or any other original matter. This requirement has been confined to Acts of legislature alone and does not extend to other categories of Government work covered under Section 52 (1) (q).

The Petitioner in this regard claims that the term “Bare Act” itself implies law in its raw form and hence any reproduction of it by private publishers amounts to infringement of the copyright of the Government. Whether the comments and cases added by the private publishers to the Bare Acts published by them fulfil the condition set out Section 52 (1) q (ii) could be analysed on the touchstone of the judgement laid down in Eastern Book Company v. D.B. Modhak[5]. In the given case the Supreme Court of India rejected the ‘sweat of the brow’ doctrine(which conferred copyright on works on the basis that some amount of skill, labour and capital has been employed in the work), and held that the work must be original “in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author”. The present PIL therefore delivers a platform to interpret whether on account of the skill and judgment displayed in the combination and analysis of statutes with cases and other annotations, the private players of the market satisfy the requirement of commentary or original matter.

Apart from this, there are other concerns regarding publication of Bare Acts by private companies. In the Mumbai Grahak Panchayat case, it was observed, “[t]he Judges of this Court have repeatedly noticed that there are errors in the Bare Acts published by the private publications. …[I]n some publications, the amendments to the Enactments or to the Rules are not incorporated. In some cases, the amendments are not correctly reproduced.” This issue which has also been raised in the present petition is worrisome considering the wide use of such Bare acts, including by the Courts.

Conclusion

The present PIL seeks directions to the Government to take immediate steps to ensure availability of its own authentic, accurate and reasonably priced publications of all central acts, rules, notifications and their amendments and to immediately bar private publishers from doing the same. If this prayer of the petitioner is granted, one is left to wonder whether these directions could in fact result in an improvement in the accessibility of public domain materials or rather disincentivize the creation of new expressive works. It is no doubt the duty of the Government to provide for promulgating the statutes. However, in my opinion, allowing the Government (or anybody else) to monopolize publication and distribution of statutes is not a reasonable panacea. Alternatively, the Government could exercise its power to regulate the mode of promulgating these Acts, so as to ensure its accuracy and authority. Fair use provisions, must be interpreted so as to strike a balance between the rights and interests of the copyright holder, and the often-competing interest of the public in protecting the public domain. What remains to be seen is whether the Hon’ble Court takes such a balanced approach, or one more skewed toward either side.

Author: Ms. Prakriti Varshney, intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at anirudh@khuranaandkhurana.com.

 References: 

[1] Union of India v. Vansh Sharad Gupta, W.P.(C) 4761/2016 & CM APPL. 22914/2016

[2]2017 SCC OnLineBom 726

[3]See Order dated 15.12.2017 inUnion of India v. Vansh Sharad Gupta, W.P.(C) 4761/2016 & CM APPL. 22914/2016

[4]548 F.Supp 110, 114 (N.D. Ga 1982)

[5] 2008 (36) PTC 1 (SC)