JOIN HANDS

The aim of this article is to analyse the cachet and efficaciousness of the instrument of Public Interest Litigation (PIL) in India. At the same time an attempt is made to evaluate the sociological aspect of the PIL in India. The article further vocalizes the scope and nature of PIL in India.

I. Introduction

The Constitution of India is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed as that they can understand and appreciate it. The more they understand it the more they love it and the more they prize it. It is really the poor, starved and mindless millions who need the court’s protection for securing to themselves the enjoyment of Human Rights[1]. The Constitution precedents cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teaming millions, half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face the death and destruction. Then, neither the court nor the Constitution will save the country[2]. This line of thinking has been now recognised and adopted by various social reformers, lawyers, judges and social workers. Even, general public now knows that the court has constitutional power of intervention, which can be invoked to ameliorate their miseries arising from repression, governmental lawlessness and administrative deviance[3]. The socio-justice tool through which these aspirations of the Constitution and people of India are achieved is known as “Public Interest Litigation” (PIL). Before proceeding further, it would be appropriate to appreciate the meaning of the expression PIL. A matter of “public interest” does not mean that which is interesting or gratifying curiosity or a love of information or amusement but that in which a class or community have a pecuniary interest or some interest by which their legal rights or liabilities are affected[4]. The expression “public interest” or “probity in governance” cannot be put in a straightjacket. Public interest takes into fold several factors. There cannot be any hard and fast rule to determine whether government action was taken in public interest or was taken to uphold probity in governance. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilised society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity[5]. The expression “litigation” means a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression PIL means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights and liabilities are affected[6].

II. Evolution of PIL

The legal movement, which has resulted in the shaping of PIL in India, has been influenced stalwartly by the benign movement in U.S.A. The “Council for Public Interest Law” set up by the “Ford Foundation” in the U.S.A defined public interest law as follows: “Public interest law is the name that has recently been given to efforts to provide legal representation to previously non-represented groups and interests. Such efforts have been undertaken in the recognition that the ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the poor, environmentalists, consumers, racial and ethnic minorities and others. It was born out of the need of a large number of people who individually lacked the economic resources or operational capacity to vindicate important social values and their own specific interest through court”. In India, the courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, women, children and other downtrodden have either no to justice or had been denied justice. A new branch of litigation known as PIL was evolved with a view to render complete justice to the aforesaid classes of persons. It expanded its wings in course of time. The courts granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. The court has intervened when there had been callous neglect as a policy of the State, a lack of probity in public life, abuse of power in control and destruction of environment. The court interferes and gives appropriate directions when there has been an element of violation of Art1cle 21 or of Human Rights or where the litigation has been initiated for the benefit of the poor and the underprivileged that are unable to come to the court due to some disadvantage[7].

The evolution of PIL in India has an interesting background. In the famous case of Kesavananda Bharati v State of Kerala[8] the Supreme Court ultimately put a brake on the arbitrary and unreasonable power of legislature to destroy the “Basic features” of the Constitution. Thus, the seeds of PIL could never have been planted had the Supreme Court not brought justness and fairness in the “Indian Legal System” in the year1973, by formulating the “Doctrine of Basic Structure”. Justice Krishna Iyer sowed the seeds of the new dispensation in Mumbai Kamgar Sabha v Abdulbhai Faizullabhai[9] and used the expression PIL and “ epistolary jurisdiction” in Fertilizer Corporation Kamgar Union v U.O.I[10]. In between, the Supreme Court interpreted the expression “procedure established by law” as a procedure which must be just, fair and reasonable in the year 1978[11]. This led to the testing of any “law” on the touchstone of Articles 14, 19 and 21 collectively and thus brought justness and fairness in the State’s dealing with the general public. The Supreme Court in the year 1993 declared “independence of judiciary” a “basic feature” and acquired autonomy in the selection and appointment of judges[12]. This made the interference of “Executive” in the appointment of judges a forgotten practice and made the judges more free and impartial to render justice. In the year 1993 the Supreme Court held that judicial review U/A 32 and 226 is a basic feature of the Constitution, which is beyond the pale of amendability[13]. Thus, the discretion to entertain a dispute or petition was reserved exclusively with the judiciary. This was a landmark judgment since all the PILs are either filed U/A 226 or U/A 32. This means that the discretion to entertain a PIL itself can be considered to be a part of basic feature and the only limitation could be the self-imposed restriction by the court itself. To supplement all this, the collective powers of Articles 32, 136, 141 and 142 made the Indian Supreme Court one of the most powerful court of the world.

The courts in India found that the oppression of the weaker and disadvantaged groups was considerably greater in India as compared to U.S.A. The political and legislative sensitivity was also missing. The Supreme Court was left with no choice but to assume a much more concerned guardian and protector of Fundamental Rights. The resources in India were always claimed to be limited, hence the financing of legal aid programme for giving a boost to PIL was ignored by the government as much as possible. This led to the relaxing of the requirement of “procedures” and “locus standi” by the Supreme Court. The court treated even a simple letter as a PIL. Since the coffers of the State were not burdened by this practice, the “Executive” did not object to the growth of PIL as a measure for emancipation of the poor and the weaker sections. Even the public at large supported the PIL drive. It is interesting to note that the tool of PIL proved to be a grand success in India as compared to its counterpart in U.S.A. This may be because the strategy for giving the poor and oppressed meaningful access to justice is not, as in the U.S.A, to provide funds so that they may participate in the traditional system on an equal economic footing. Instead the strategy is to change the system. Thus, volunteer social activists are allowed standing; a simple letter can be accepted as a writ petition, the court itself will shoulder much of the burden of establishing the facts through the commissions, and whenever possible the case will move swiftly to the issue of remedy, by-passing the time-consuming and costly process. The substantial accomplishments of Indian PIL surely prove that it is a development worthy of the most serious consideration by jurists, lawyers and judges from all societies, and particularly from the United States where the parallel and contrasts are so striking[14].

III. Scope of PIL in India

The scope of PIL, reflecting its sociology, is very wide which is clear from the following principles:

(1) The court in exercise of powers U/A 32 or 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who are in a disadvantaged position and, thus, not in a position to knock the doors of the court. The court is constitutionally bound to protect the Fundamental Rights of such disadvantaged people so as to direct the state to fulfill its constitutional promises.
(2) Issues of public enforcement, enforcement of fundamental rights of large number of public vis-a-vis the constitutional duties and functions of the state, if raised, the court treat a letter or a telegram as a PIL upon relaxing the procedural laws as also the law relating pleadings.
(3) Whenever injustice is meted out to a large number of people, the court will not hesitate to step in. Articles 14 and 21 of the Constitution of India as well as the International Convention on Human Rights provide for a reasonable and fair trial.
(4) The common rule of locus standi is relaxed so as to enable the court to look into the grievances complained on behalf of the poor, deprived, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right.
(5) When the court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the government from raising the question as to the maintainability of the petition.
(6) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or provisions analogous thereto would apply depend on the nature of the petition as also facts and circumstances of the case.
(7) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a PIL.
(8) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of the personal grievances, the courting furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice.
(9) The court in special situations may appoint commission, or other bodies for the purpose of investigating into the allegations and finding out facts. The court will not ordinarily transgress into policy.
(10) The courts would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, it does not have a power akin to Article 142 of the Constitution of India.
(11) Ordinarily the High Court should not entertain a writ petition by way of PIL questioning constitutionality or validity of a statute or a statutory rule[15].

The sociology of PIL makes it clear that through this mechanism the courts seeked to protect Human Rights and Fundamental Rights in the following ways:

(1) By creating a new regime of Human Rights by expanding the meaning of Fundamental Rights to equality, life and personal liberty. In this process right to speedy trial, free legal aid, dignity, means of livelihood, education, housing, medical care, clean environment, etc emerged as Human rights. These new reconceptualised rights provide legal resources to activate the courts for their enforcement.
(2) By democratization of access to justice. This has been done by relaxing the traditional rule of locus standi. Any public-spirited citizen or social action group can approach the court on behalf of the oppressed classes. Court’s attention can be drawn even by writing a letter or sending a telegram. This has been called “epistolary jurisdiction”.
(3) By fashioning new kinds of reliefs under the court’s writ jurisdiction.
(4) By judicial monitoring of State institutions such as jails, women’s protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting Human Rights.
(5) By devising new techniques of fact finding. In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own officials for investigations. Sometimes it has taken the help of National Human Rights Commission or Central Bureau of Investigation or experts to inquire into Human Rights violations. This may be called investigative litigation[16].

The court may face the following challenges of the social-justice mandate, which they are competent to tackle:

(1) The expanded role of the judges in modern social state and the new demands for judicial responsibility.
(2) The rise and growth of varied system of judicial review and legitimacy of such growth.
(3) The emergence of the notion of “access to justice” as a judicial answer to egalitarian ideals and demands for effectiveness, and the development of PIL.
(4) The role of the courts in promoting its legal system in terms of PIL[17].
These challenges can be effectively met if we select an appropriate locus standi strategy, which advances the cause of social justice.

IV. Social justice and locus standi

The social justice requirement of India mandates that the concept of locus standi should be treated with a pragmatic approach. The present socio, economic and political conditions of India requires a “liberal locus standi” policy. Thus, PIL should be entertained as much as possible, by diluting the concept of locus standi. It must be noted that the right to move the Supreme Court U/A 32 itself is a Fundamental Right, which along with Article 226 has acquired a status of basic feature. The concept of PIL must be looked in the light of the judicial review power of the Supreme Court and the High Court in India, which is also a basic feature of the Constitution. This means that whenever a violation of any Fundamental Right is seeked to be protected either U/A 226 or U/A 32, the courts are “duty bound” to take note of the same. The doctrine of basic structure is not meant for “executive” or “legislature” alone but it equally binds the courts to exercise their power of judicial review wherever the situation demands so. If enforcement of Fundamental Right U/A 32 were refused by the Supreme Court, then the whole purpose of providing the Fundamental Rights under Part III would become futile. Thus, the doctrine of basic structure takes away the “discretion” of the High Courts and the Supreme Court to refuse to entertain a PIL, except in cases of abuse of process of law or abuse of process of court.
Some people discourage the expanded role of PIL by arguing that the PIL are overburdening the already overburdened courts. The fallacy of this argument is apparent and it suffers from at least two weaknesses. Firstly, the problem of overburdening is an “administrative” problem whereas the rights sought to be enforced are Constitutional and legal in nature. It is difficult to appreciate how the sacrosanct Fundamental Rights and Human Rights can be brushed aside simply on the basis of a hyper-technical “administrative argument”. Even if we prohibit the entertainment of PIL absolutely, it will not solve the problem of overburdening of courts. The problem of overburdening of the courts can be solved only by adopting a positive attitude by the judges and lawyers and it has no relationship whatsoever with the benevolent concept known as PIL. It must be appreciated that two wrongs cannot make a thing right. Thus, the overburdening of courts cannot be lessened by limited use of PIL. The solution lies in administrative efficiency and not in curbing the essentially required PILs. Secondly, the doctrine of basic structure and the socio-economic conditions of India obligates the Constitutional courts to liberally use the tool of PIL. If we look back at the past what would have been India had the tool of PIL not been used by the courts in India. In any case, the maintainability of a writ petition which is correlated to the existence and violation of a Fundamental Right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in watertight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. The civil remedies for administrative wrongdoing thus depend upon the action of individual citizens. In such an action, the individual is pitted against the State-always an unequal contest. The individual does not have even the few procedural devices that the common law imports into criminal actions to try to redress the balance. At his own expense, he must challenge the vast panoply of State power with all its resources in personnel, money, and legal talent, by a civil action for a declaratory judgment or for an extraordinary remedy-injunction, writ of mandamus, or writ of prohibition. Aside from the manifold technical insufficiencies of these forms of action, the financial impediments to such an action are staggering. In simple terms, locus standi must be liberalized to meet the challenges of the times. Ubi just ibi remedium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets .Law is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundry will be litigation-happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms suffer from atrophy and activism is essential for participative public justice. Some risks have to be taken and more opportunities opened for the public-minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi. Public interest litigation is part of the process of participate justice and 'standing' in Civilization of that pattern must have liberal reception at the judicial doorsteps. If the courts cannot, or will not, give relief to people who' are in fact concerned about a matter then they will resort to self-help, with grave results for other persons and the rule of law. Some may reply that if there is no evidence of a great increase in numbers there is no evidence of need for enlarged standing rights. The reply would overlook two considerations. One case may have a dramatic effect on behaviour in hundreds of others; this is the whole notion of the legal 'test case'. Secondly, the mere exposure to possible action is likely to affect the behaviour of persons who presently feel themselves immune from legal control[18]. It is of utmost importance that those who invokes this court's jurisdiction seeking a waiver of locus standi rule must exercise restraint in moving the court by not plunging into areas wherein they are not well versed. Besides, it must be remembered that a good cause can be lost if petitions are filed on half -baked information without proper research or by persons who are not qualified or competent to raise such issues as the rejection of such a petition may affect the third party's rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the court should permit it only when it is; satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations[19]. It must be noted that even where a writ petition has been held to be not entertainable on the ground or otherwise of lack of locus, the court in larger public interest has entertained a writ petition. In an appropriate case, where the petitioner might have moved a Court in his private interest and for redressal of the personal grievance, the Court in furtherance of e-public interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus, a private interest case can also be treated as public interest case[20].

V. Abuse of PIL

PIL is a weapon, which has to be used with great care and circumspection, and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The court must not allow its process to be abused for oblique considerations. The petition of such persons should be thrown out at the threshold and in appropriate cases exemplary costs should be imposed. PIL cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions U/A 32 were entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this court. Personal interest cannot be enforced through the process of this court U/A 32 of the Constitution in the garb of a PIL. A person invoking the jurisdiction of this court U/A 32 must approach this court for the vindication of the fundamental rights of affected persons and not for the vindication of his personal grudge or enmity. It is the duty of this court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction of this court for personal matters under the garb of the P.I.L[21]. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance deserves rejection at the threshold[22]. It must be noted that once the court has accepted the PIL, its withdrawal is not permissible unless the court permits the same. Thus, the petitioner is not entitled to withdraw his petition at his sweet will unless the court sees reason to permit withdrawal. In granting the permission the court would be guided by considerations of public interest and would also ensure that it does not result in abuse of process of law. Courts must guard against possibilities of such litigants settling the matters out of the court to their advantage and then seeking withdrawal of the case[23]. Thus, a writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clear mind and clear objective. It is depressing to note that on account of the trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for disposal of cases of genuine litigants. Further, The court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of Information given by him; and (c) the information being not, vague and indefinite. The information should show gravity and seriousness involved. The court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others, and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court, cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature[24].

VI. Social justice through PIL

The Supreme Court has played an active role in attaining social justice through the mode of PIL. In Hussainara Khatoon v State of Bihar[25] the PIL was filed by an advocate on the basis of a news report highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. This litigation exposed the failure of criminal justice system and led to a chain of proceedings resulting in the release of over 40,000 undertrial prisoners. The right to speedy trial was recognised as a Fundamental right U/A 21 of the Constitution. In Bandhua Mukti Morcha v U.O.I[26] the Supreme Court considered the plight of bonded labourers engaged in the stone quarries of Haryana. An action in the form of PIL was initiated for the identification, release and rehabilitation of the bonded labourers. The court issued direction to the Haryana Government in this regard, which were updated from time to time to meet the end of justice. In Sheela Barse v U.O.I[27] a PIL was filed to assist the release of juveniles kept in jails. The Supreme Court issued directions for the release of such juveniles and asked for the information regarding the number of such juveniles who are placed in jails. In P.U.D.R v Commissioner of Police, Delhi[28] the attention of the Supreme Court was drawn to the police atrocities committed against poor people who were forcibly taken to a police station in Delhi to work there without wages. As a consequence of such atrocities, one person died. The while granting a compensation package to the legal representatives of the deceased, the court directed the recovery of the same from the erring policeman. In M.C.Mehta v State of Tamil Nadu[29] a PIL was brought before the Supreme Court complaining that thousands of children were employed in match factories in Sivakasi. These children were exposed to fatal accidents occurring frequently in the manufacturing process of matches and fireworks. The court directed the State Government to enforce various welfare legislations including the Factories Act and to provide facilities for recreation, medical care and basic diet to the children during working hours and facilities for education. The court further directed for the formulation of a scheme requiring a compulsory insurance of both adult and children employed in hazardous industries. In Delhi Domestic Working Women’s Forum v U.O.I[30] the Supreme Court took a serious note of the sexual assault by seven army personnel against six domestic servants travelling in the train. The Supreme Court laid down various guidelines to protect and assist rape victims. The guidelines include the legal assistance, anonymity, compensation and rehabilitation of rape victims. The National Commission for women was directed to evolve a scheme for providing adequate safeguards to these victims. In the landmark judgment of Vishaka v State of Rajasthan[31], the Supreme Court declared that sexual harassment of women at work place constitutes violation of gender equality and right to dignity, which are Fundamental Rights.

VII. Conclusion

The role of PIL in bringing and maintaining the concept of “social justice and equality” cannot be either doubted or rejected. The roads ahead are, however, very tedious, difficult and complex in nature. The toughest competition is from the “executive” wing of the Constitution as it is careless about and ignorant of its noble role, which the founding fathers of the Constitution have framed for it. The court may keep on recognising the basic Human Rights and Fundamental Rights, but their “enforcement” is equally important. The “executive” seems to be indifferent towards the goals set by the Constitution and is interested in self-fulfillment only. This process is reflected by the increasing judicial activism of the Supreme Court, which is encroaching upon, though rightly and justly, those areas which primarily and exclusively were reserved “executive” and the “Legislature”. The abdication of the “Constitutional duties” by the Executive and the Legislature has left no choice for the Supreme Court but to assume the role of “limited policy making and law making”. This further has necessitated the acceptance of “unlimited qualitative quantity” of PILs in India. This means that the deserving cases should be admitted and appropriate reliefs should be granted irrespective of the number of PILs involved. Thus, the wings of PIL are required to be spread further till Executive and Legislature wake up and fulfill their duties and responsibilities.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Telephone no: +91 011 9899169611.

[1] Justice Dwivedi in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.
[2] Justice Chandrachud in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.
[3] Upendra Bakshi; “Taking suffering seriously: Social Action Litigation in the Supreme Court of India” Law and Poverty (ed) Upendra Bakshi, pages 387-415 (1988).
[4] Janta Dal v H.S. Chowdhary, AIR 1993 SC 892.
[5] Onkarlal Bajaj v U.O.I, (2003) 2 SCC 673.
[6] S.R.Pandian. J in Janta Dal v H.S.Chowdhary, AIR 1993 SC 892.
[7] Balco Employees Union v U.O.I, AIR 2002 SC 350.
[8] (1973) 4 SCC 225.
[9] (1976) 3 SCC 832.
[10] AIR 1982 SC 344.
[11] Maneka Gandhi v U.O.I, AIR 1978 SC 597.
[12] Supreme Court Advocate on record v U.O.I, (1993) 4 SCC 441.
[13] Kihoto v Zachilhu, AIR 1993 SC 412.
[14] Clark D. Cunningham; “ Public Interest Litigation in Indian Supreme Court: A study in the light of American Experience”, J.I.L.I, V-29: 4. P-494 (1987).
[15] Guruvayur v C.K.Rajan, 2003 (6) SCALE 401.
[16] Parmanand Singh, “ Public interest litigation in India”
[17] S.R.Pandian. J, in Janta Dal v H.S.Chowdhary, AIR 1993 SC 892.
[18] Fertilizers Corporation Kamgar Union v U.O.I, AIR 1981 SC 344.
[19] S.P.Anand v H.D.Deva Gowda, AIR 1997 SC 272.
[20] S.N Patil v M.M.Gosavi, AIR 1987 SC 294.
[21] Subhash Kumar v State of Bihar, (1991) 1 SCC 598.
[22] Janta Dal v H.S.Chowdhary, (1992) 4 SCC 305.
[23] S.P.Anand v H.D.Deva Gowda, AIR 1997 SC 272.
[24] Ashok Kumar Pandey v State of West Bengal, JT 2003 (9) SC 140.
[25] AIR 1979 SC 1360.
[26] (1984) 4 SCC 161.
[27] AIR 1986 SC 1773.
[28] 1989 (1) SCALE 114.
[29] AIR 1991 SC 417.
[30] (1995) 1 SCC 14.
[31] (1997) 6 SCC 241.

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Introduction

The copyright law protects the intellectual creations in original works. The subject matter of copyright is literary and artistic work. The copyright protection commences as soon as the work is created and it does not require any registration formalities. Traditionally the concern of copyright law was limited to books, music, paintings or films. Copyright protection has now taken new dimensions and today it extends to even computer software and compilations of data. Copyright has some closely related rights that confer similar principles of protection. These are known as “related rights” or “neighbouring rights”. These rights protect persons, other than the creators, who are involved in the dissemination of copyrighted work. These rights are confined to three specific categories of persons: performers, producers of phonograms and broadcasting organizations. In some countries such rights may be a part of the copyright law,[1]while in others there is different legislation to protect these rights. The Berne Convention for the protection of Literary and Artistic works, as revised up to 1971, provided the highest level of international legal protection for copyright, prior to TRIPS. With the conclusion of TRIPS under the Uruguay Round of multilateral trade negotiations, protection of copyright and related rights became, for the first time, a subject covered by the international trade law. Articles 9 to 13 of TRIPS prescribe the “minimum standards” for the protection of copyright. Article 9.1 of TRIPS establishes that WTO members must comply with Articles 1 to 21 of the Berne Convention, 1971, including the Appendix thereto. The Berne Convention requires that the enjoyment and exercise of copyright cannot be subjected to any formality such as registration. The only exception to adherence to the Berne Convention is Article 6bis, which obliges the members to protect the moral rights of the authors. Article 9(2) of the Berne Convention contains exceptions to the exclusive right of reproduction conferred by the copyright law. The pre-requisites for the applicability of this Article are:
(a) These limitations and exceptions should be granted in certain special cases,
(b) These should not conflict with the normal exploitation of the work, and
(c) These should not unreasonably prejudice the legitimate interests of the author.
In the context of copyright, TRIPS does not confine this Berne exception only to the right of reproduction but extends it to all exclusive rights conferred by copyright.

Indian perspective on copyright protection

The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the following two forms:
(A) Economic rights of the author, and
( Moral Rights of the author.

(A) Economic Rights: The copyright subsists in original literary, dramatic, musical and artistic works; cinematographs films and sound recordings.[2]The authors of copyright in the aforesaid works enjoy economic rights u/s 14 of the Act. The rights are mainly, in respect of literary, dramatic and musical, other than computer program, to reproduce the work in any material form including the storing of it in any medium by electronic means, to issue copies of the work to the public, to perform the work in public or communicating it to the public, to make any cinematograph film or sound recording in respect of the work, and to make any translation or adaptation of the work.[3] In the case of computer program, the author enjoys in addition to the aforesaid rights, the right to sell or give on hire, or offer for sale or hire any copy of the computer program regardless whether such copy has been sold or given on hire on earlier occasions.[4] In the case of an artistic work, the rights available to an author include the right to reproduce the work in any material form, including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work, to communicate or issues copies of the work to the public, to include the work in any cinematograph work, and to make any adaptation of the work.[5] In the case of cinematograph film, the author enjoys the right to make a copy of the film including a photograph of any image forming part thereof, to sell or give on hire or offer for sale or hire, any copy of the film, and to communicate the film to the public.[6]These rights are similarly available to the author of sound recording.[7]In addition to the aforesaid rights, the author of a painting, sculpture, drawing or of a manuscript of a literary, dramatic or musical work, if he was the first owner of the copyright, shall be entitled to have a right to share in the resale price of such original copy provided that the resale price exceeds rupees ten thousand.[8]

( Moral Rights: Section 57 of the Act defines the two basic “moral rights” of an author. These are:
(i) Right of paternity, and
(ii) Right of integrity.

The right of paternity refers to a right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work. Right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work, or any other action in relation to said work, which would be prejudicial to his honour or reputation. The proviso to section 57(1) provides that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer program to which section 52(1)(aa) applies (i.e. reverse engineering of the same). It must be noted that failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.[9] The legal representatives of the author may exercise the rights conferred upon an author of a work by section 57(1), other than the right to claim authorship of the work.[10]

Judicial Response

The response of Indian judiciary regarding copyright protection can be grouped under the following headings:
(1) Ownership of copyright,
(2) Jurisdictional aspect,
(3) Cognizance taken by the court,
(4) Infringement of copyright,
(5) Availability of alternative remedy, and
(6) Rectification of copyright.

(1) Ownership of copyright: The ownership in copyright may vest in different persons under different circumstances.

In Eastern Book company v Navin J.Desai[11] the question involved was whether there is any copyright in the reporting of the judgment of a court. The Delhi High court observed: “It is not denied that under section 2(k) of the Copyright Act, a work which is made or published under the direction or control of any Court, tribunal or other judicial authority in India is a Government work. Under section 52(q), the reproduction or publication of any judgment or order of a court, tribunal or other judicial authority shall not constitute infringement of copyright of the government in these works. It is thus clear that it is open to everybody to reproduce and publish the government work including the judgment/ order of a court. However, in case, a person by extensive reading, careful study and comparison and with the exercise of taste and judgment has made certain comments about judgment or has written a commentary thereon, may be such a comment and commentary is entitled to protection under the Copyright Act”.
The court further observed: “In terms of section 52(1)(q) of the Act, reproduction of a judgment of the court is an exception to the infringement of the Copyright. The orders and judgments of the court are in the public domain and anyone can publish them. Not only that being a Government work, no copyright exists in these orders and judgments. No one can claim copyright in these judgments and orders of the court merely on the ground that he had first published them in his book. Changes consisting of elimination, changes of spelling, elimination or addition of quotations and corrections of typographical mistakes are trivial and hence no copyright exists therein”.

In Godrej Soaps (P) Ltd v Dora Cosmetics Co[12] the Delhi High Court held that where the carton was designed for valuable consideration by a person in the course of his employment for and on behalf of the plaintiff and the defendant had led no evidence in his favour, the plaintiff is the assignee and the legal owner of copyright in the carton including the logo.

(2) Jurisdictional aspect: The question of territorial jurisdiction of the court to deal with copyright infringement was considered by the courts on several occasions.

In Caterpillar Inc v Kailash Nichani[13] the plaintiff, a foreign company, was carrying on business in several places in India including Delhi, through its Indian distributors and collaborators. The plaintiff claimed the relief of ad-interim injunction for preventing infringement of its copyright by the defendant, though the defendant was dealing in different goods. The Delhi high Court held that it was not necessary to show that the business being carried on by the plaintiff in Delhi should necessarily be in respect of footwear and articles of clothing as well. It is sufficient if the business was being carried on by the plaintiff in Delhi and further that there was an infringement of plaintiff’s copyright in respect of certain goods, which were being sold by the defendant in Delhi. The court further held that section 62 of the Copyright Act makes an obvious and significant departure from the norm that the choice of jurisdiction should primarily be governed by the convenience of the defendant. The legislature in its wisdom introduced this provision laying down absolutely opposite norm than the one set out in section 20 CPC. The purpose is to expose the transgressor with inconvenience rather than compelling the sufferer to chase after the former.

In Lachhman Das Behari Lal v Padam Trading Co[14] the Delhi High Court observed that the plaintiff being a firm functioning at Delhi, the suit filed by it in the Delhi courts is maintainable and is not liable to be rejected under Order 7 Rule 11 of the CPC as prayed. The Court further observed that the plea regarding want of territorial jurisdiction is not covered by Order7 rule 11 of CPC. The court observed that even if it is held that this court has not the territorial jurisdiction, the plaint cannot be rejected. At the most it can be returned for presentation to the proper court.

In Exphar SA & Anr v Eupharma Laboratories Ltd & Anr[15] the Supreme Court finally settled the position in this regard. The Court observed: “Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding or where there are more than one such persons, any of them actually and voluntarily resides or carries on business or presently works for gain. It prescribes an additional ground for attracting the jurisdiction of a court over and above the “normal” grounds as laid down in Section 20 of the C.P.C. Even if the jurisdiction of the Court were restricted in the manner construed by the Division Bench, it is evident not only from the cause title but also from the body of the plaint that the Appellant No 2 carries on business within the jurisdiction of the Delhi High Court. The Appellant No 2 certainly “a person instituting the suit”. The Division Bench went beyond the express words of the statute and negatived the jurisdiction of the Court because it found that the Appellant No 2 had not claimed ownership of the copyright, infringement of which was claimed in the suit. The appellant No 2 may not be entitled to the relief claimed in the suit but that is no reason for holding that it was not a person who had instituted the suit within the meaning of Section 62(2) of the Act”.

(3) Cognizance taken by the court: To prevent copyright infringement, timely cognizance taking by the appropriate court is absolutely essential. The taking of cognizance by the court depends upon the limitation period as mentioned in the Limitation Act, 1963 and Cr.P.C, 1973.

In David Pon Pandian v State[16] the Madras High Court, while dealing with section 68A of the Copyright Act, observed: “ The Court can take cognizance of the offence if the charge sheet is filed within the period of limitation prescribed under Section 468 of the Cr.P.C and in computing the period of limitation, the date of commission of the offence is to be reckoned as the starting point. If the charge sheet is not filled so, the Court has no power to entertain the complaint”

The court referred the decision of the Supreme Court in State of Punjab v Sarwan Singh[17] in which it was observed: “The object of Cr.P.C in putting a bar of limitation on the prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of Court by filing vexatious and belated prosecutions long after the date of the offence. The object, which the statute seeks to sub-serve, is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is, therefore, of utmost importance that any prosecution, whether by State or a private complainant, must abide by the letter of the law or to take the risk of the prosecution failing on the ground of limitation”

In Shree Devendra Somabhai Naik v Accurate Transheet Pvt Ltd[18] the Gujarat High Court explained the inter-relationship between Article 137 of the Limitation Act, 1963 and section 50 of the Copyright Act, 1957. The Court observed: “ The order passed by the by the Copyright Board is an order whereby it is held that the provisions of Article 137 of the Limitation Act are not applicable and the board has also held that the Copyright Board is a Tribunal and quasi-judicial authority for all other purposes except for the purposes which are specifically provided in the Copyright Act. It is an order by which an application under Section 50 of the Copyright act is entertained and the Copyright Board will decide the same on merits. The Copyright Board does not believe the delay alleged by the present appellant. Entertaining an application is a matter of discretion. In the present case, the Copyright Board in its wisdom, overruling the contention that the application was barred by limitation, decided to entertain the application. It is a discretionary order”.

(4) Infringement of copyright: A copyright owner cannot enjoy his rights unless infringement of the same is stringently dealt with by the Courts .The approach of the Indian Judiciary in this regard is very satisfactory.

In Prakashak Puneet Prashant Prakashan v Distt.judge, Bulandshahr &Ashok Prakashan (Regd)[19] the Allahabad High Court held that if the petitioner publishes a book by adding any word before or after the book “Bal Bharati”, he infringes the copyright of the respondent.

In Hindustan Pencils Ltd v Alpna Cottage Industries [20] the Copyright Board of Goa held that where the similarities between the artistic works of the parties are fundamental and substantial in material aspects, it would amount to copyright violation and the defendant’s copyright is liable to be expunged from the register of copyright.

The Board referred the decision of Prem Singh v Cec Industries[21] wherein it was observed: “ In a case where the first party himself is shown to have adopted or imitated a trademark and copyright of a third party, then Courts can resolutely decline to step in aid of this party because honesty of action is the crux of the matter and Courts protection is extended only on the principle that damage to a party who has acquired goodwill or reputation in certain trading style for making his goods, should not be allowed to be affected by the dishonest user of the same by another”.

The Board further referred the decision of the apex court in R.G. Anand v M/S Delux Films[22] where the Court observed: “Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case, the Courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work with some variations here and here. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of the act of piracy”.

In Ushodaya Enterprises Ltd v T.V. Venugopal[23] the division bench of the Andhara Pradesh High Court held that even though the defendant has registered the carton under the Trademark Act, that may not come to the aid of the defendant as the case of the plaintiff is that it owns a copyright of the artistic work under the Copyright Act and no registration is required for the same. Thus the court held that the plaintiff was justified in alleging infringement of his artistic work.

In Khajanchi Film Exchange v state of MP [24] the appellants apprehending the violation of their copyright in the film, prayed for the writ of “Mandamus” without first exhausting the alternative remedy available under the Copyright Act. The Division Bench of the Madhya Pradesh High Court Observed: “ There is no dispute in the submission that it is the duty of police to be watchful in the area and detect crime and punish the criminal in accordance with law. But the petitioners did not complain that any stage nor did they seek action from other functionaries of the State. They ask for mandamus without putting the grievance before the respondent and seeking their reaction. The writ petition was filed 16 days before the release of the film. Enough time appellants had, to approach the authorities/ police and later to the respondents giving their reaction to the grievance and how it was ready to deal with the matter. Therefore, unless the demand was put across and reaction awaited for some time, moving the court was premature and unsustainable. Therefore, petition was filed on mere apprehension that appellants would be deprived of their rights which did not exist when claim for mandamus was made. Mandamus can be granted only when default, commission, or omission takes place which had not happened in this case”.

In Jolen Inc v Shoban Lal Jain[25] the Madras High Court held that latches and acquiescence is a good defence to an action for copyright infringement. The court held that the plaintiff having allowed the defendant to carry on the business under the trade name of the plaintiff for 7 years is prima facie guilty of acquiescence and it cannot claim for relief of injunction against the defendant as the balance of convenience is in favour of him.

(5) Availability of alternative remedy: The availability of an efficacious alternative remedy prevents a person from invoking the writ jurisdiction of the High court.

In Khajanchi Film Exchange and Another v State of M.P and others [26] petitioners instead of approaching the concerned authorities filed a writ petition in the High Court. The Madhya Pradesh High Court observed: “ The film was not yet released. The petitioners did not approach the respondents. There was no failure on the part of the respondents in performance of their legal duties with respect of the right complained of. The entire machinery was put to doubt by the petitioners on the basis of the averments made in the writ petition that it is to the common knowledge that they do not take action. Thus apprehending infringement of their rights, the writ petition was filed. The petitioners should have approached the concerned authorities first; and in the event of their failure to take preventive measures/seizure of cassettes under the M.P.Police Regulations and the copyright Act, the petitioners should have approached this Court. If a writ is entertained and relief readily granted before release of the movie without approaching the respondents who have to prevent threatened violation of copyright, it would open a flood gate of litigation. The copyright Act provides adequate safeguards and procedure. It cannot be said that a mere apprehension that certain offence may take place, a writ can be filed seeking a direction that no such offence be allowed to take place. First authorities have to be asked to prevent it. The function of the police is to prevent piracy and unauthorized exhibition. In the instant case there was no inaction on the part of the police and other concerned officials and they were unnecessarily dragged in writ petition without even putting them to notice of proposed writ. No demand notice was served, no specific complaint was lodged. Thus writ is not maintainable”.

(6) Rectification of copyright: In the rectification proceedings, an entry in the Copyright Register pertaining to a particular copyright can be expunged by the Copyright Board.

In Lal Babu Priyadarshi v Badshah Industries[27] the Division bench of the Patna high Court Observed: “ Rule 16(3) of the Copyright Rules, 1958 which embodies the principle of natural justice provides that when there is a rival claim with regard to subject matter of the copyright then no order can be passed in favour of any party without hearing the application of the other applicant. Non-observance of the said provision will vitiate the order with regard to the entry in the Register of the Copyright. The said requirement cannot be waived nor non-observance of the said provision can be said to be a mere irregularity. If a person making an application under section 45 is not aware of the rival claim then the matter would be different. But in this case, as is evident from the notice sent by the appellants through their counsel, they were aware of the claim of the respondents and as such they should have given notice to the respondents intimating them of their intention to file an application for registration so that the respondents could have raised objections and, thereafter, the matter would have been decided in terms of provisions contained in Section 45, read with Rule 16. In this case Rule 16 has not been followed before making the entry in the Register of Copyright under section 45 and, thus, the Board rightly came to the conclusion that non-observance of the provisions of Rule16 (3), which is mandatory in nature, has vitiated the certificate of registration in favour the appellants”.

On-Line Copyright Issues

The Internet is a paradox. It is everywhere, yet, at the same time, it is nowhere. It is “a worldwide entity whose nature cannot be easily or simply defined.[28] The ease with which computers can transfer and exchange digital information on the Internet have caused concern among intellectual property owners, especially copyright owners. The information technology allows the computer users to easily and secretly transform the copyrighted materials into digital form and store them in their computer memory. Once a user digitized information, he can easily upload it to the Internet. Once the information is available on the Internet anyone in the world with Internet access can download, modify, and distribute it. Thus, in an instant, a copyrighted work can potentially lose its value and significantly suppress an author’s incentive to create new material.[29]

Thus, with the advancement of information technology, copying, modifying, and distributing of copyrighted materials has become very simple and difficult to trace. The copyright owners are now at the mercy of a technology that has raced ahead of the law. Because the Internet “is a cooperative venture not owned by a single entity or government, there are no centralized rules or laws governing its use.

Traditional Copyright infringement Theories: Traditionally there was only one copyright infringement theory known as “primary infringement”, which made the person infringing the copyright personally liable for his acts. Thus, the concept of third party liability or secondary liability was not recognized by the legal systems of various countries all over the world, including the United States. As the society progressed, need was felt to develop new theories to meet the challenges thrown by it. While there were no express provisions, which talked about infringing acts of another, third party liability theories were evolved in the courts over the years. The courts derived these theories from the traditional tort law and patent law theories of contributory and vicarious liability.

The U.S Supreme Court articulated the rationale for incorporating “third party liability” into the copyright law in Sony Corporation of America v Universal Studios, Inc. [30]The court specifically noted patent law’s explicit statutory prohibition against inducing infringement and against contributory infringement, and held that he absence of express language in the Copyright Act did not preclude third party liability. Moreover, the court reasoned that “ vicarious liability is imposed in virtually all areas of law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another.”

Direct Infringement: Direct infringement is a strict liability offence and guilty intention is not essential to fix criminal liability. The requirements to establish a case of copyright infringement under this theory are:
(1) Ownership of a valid copyright; and
(2) Copying or infringement of the copyrighted work by the defendant.

Thus, a person who innocently or even accidentally infringes a copyright may be held liable under the Copyright Act of the U.S. and under the laws of various other countries. The guilty intention of the offender can be taken into account for determining the quantum of damages to be awarded for the alleged infringement.

Contributory infringement: The contributory infringement pre-supposes the existence of knowledge and participation by the alleged contributory infringer. To claim damages for infringement of the copyright, the plaintiff has to prove:
(1) That the defendant knew or should have known of the infringing activity; and
(2) That the defendant induced, caused, or materially contributed to another person’s infringing activity.[31]

Vicarious Infringement: Vicarious copyright infringement liability evolved from the principle of respondent superior. To succeed on a claim of vicarious liability for a direct infringer’s action, a plaintiff must show that the defendant:
(1) Had the right and ability to control the direct infringer’s actions; and
(2) Derived a direct financial benefit from the infringing activity.[32]

Thus, vicarious liability focuses not on the knowledge and participation but on the relationship between the direct infringer and the defendant.

Legal precedent for vicarious copyright infringement liability has developed along two general relational lines. The first relational line involves the employer/employee relationship, whereas the second involves the lessor/lessee relationship.

Internet and copyright infringement theories: The advent of information technology has made it difficult to apply the traditional theories to various cyberspace entities and organizations. These cyberspace players can be grouped under the following headings:
(1) Internet Service Providers (ISPs),
(2) Bulletin Board Services Operators (BBSO),
(3) Commercial Web Page owner/operators, and
(4) Private users.

(1) Internet Service Providers (ISPs): An ISP most often provides Internet access and he may be held liable for copyright infringement. In Religious Technology Center v Netcom On-Line Communication Services, Inc[33] a former minister uploaded some of the copyrighted work of the Church of Scientology to the Internet. He first transferred the information to a BBS computer, where it was temporarily stored before being copied onto Netcom’s computer and other Usenet computers. Once the information was on Netcom’s computer, it was available to Netcom’s subscribers and Usenet neighbors for downloading for up to eleven days. The plaintiffs informed Netcom about the infringing activity; nonetheless, Netcom refused to deny the subscriber’s access because it was not possible to prescreen the subscriber’s uploads, and kicking the subscriber off the Internet meant kicking off the rest of the BBS operator’s subscribers. Thus, plaintiffs sought a remedy against Netcom for infringement under all three theories –direct, contributory, and vicarious.

The court first analyzed whether Netcom directly infringed plaintiff’s copyright. Since Netcom did not violate plaintiff’s exclusive copying, distribution, or display rights, Netcom was held not liable for direct infringement. The court then analyzed the third party liability theories of contributory and vicarious infringement. The court held that Netcom would be liable for contributory infringement if plaintiffs proved that Netcom had knowledge of the infringing activity. The court then analyzed whether Netcom was vicariously liable. Here, once again the court found that a genuine issue of material fact supporting Netcom’s right and ability to control the uploader’s acts existed. The court found that Netcom did not receive direct financial benefit from the infringement. Thus, the court found that the Netcom was not liable for direct infringement, could be liable for contributory infringement if plaintiffs proved the knowledge element, and was not liable for vicarious infringement.

(2) Bulletin Board Services: The BBSs are more vulnerable to copyright infringement litigations than the ISPs because they can operate independent of the World Wide Web.

The first case in this category was Playboy Enterprises, Inc v Frena[34] In this case, the defendant operated a subscription BBS that allowed the subscribers to view, upload, and download material. The court held that Frena had violated Playboy’s exclusive distribution right and their exclusive display right. Because Frena supplied a product containing unauthorized copies of copyrighted work, he has violated the distribution right. Moreover, because Frena publicly displayed Playboy’s copyrighted photographs to subscribers, he violated the display right. The court concluded that Frena was liable for direct infringement, though Frena himself never placed infringing material on the BBS and despite his arguments that he was unaware of the infringement. The court relied upon the strict liability theory and held that neither intent nor knowledge is an essential element of infringement.

In Sega v Maphia[35] the BBS was providing services to numerous subscribers who upload and downloaded files to and from the BBS. The evidence clearly showed that the BBS operator knew that subscribers were uploading unauthorized copies of Sega’s video games to and downloaded from his BBS. The court held that since the BBS operators only knew and encouraged uploading and downloading, but did not himself upload or download any files, he was not liable for direct infringement. The court, however, found the BBS operator contributory liable. Regarding the knowledge element, the BBS operator admitted that he had knowledge of the uploading and downloading activity. The court rejected the BBS operator’s asserted fair use defense since their activities were clearly commercial in nature. Further, the nature of the copyrighted games was creative rather than informative and the entire copyrighted works were copied, uploaded, and downloaded. This copying had adversely affected the Sega’s sale.

(3) Commercial Web sites: The Web Page owners must be cautious of the things they post on their Web Pages so that they do not violate the stringent provisions of the copyright laws. A Web Page owner cannot successfully plead and prove that they were unaware about the copyrighted material because copyright notices are prominently given in authorized software. They also have the controlling power over the content of their pages. The owner are usually the parties that actually perform the uploads to their pages.

(4) Private Users: A computer user who uploads copyrighted material to the Internet is liable for direct infringement. This liability could be avoided only if he can prove the fair use doctrine. Thus, an Internet user should not post copyrighted material on the Internet in a casual manner.

On-line copyright issues in India

The reference to on-line copyright issues can be found in the following two major enactments:
(1) The Copyright Act, 1957, and
(2) The Information Technology Act, 2000.

(1) Copyright Act, 1957 and on-line copyright issues: The following provisions of the Copyright Act, 1957 can safely be relied upon for meeting the challenges of information technology:

(a) The inclusive definition of computer is very wide which includes any electronic or similar device having information processing capabilities.[36] Thus, a device storing or containing a copyrighted material cannot be manipulated in such a manner as to violate the rights of a copyright holder.

(b) The term computer programme has been defined to mean a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.[37] It must be noted that Section13(a) read with Section 2(o) confers a copyright in computer progamme and its infringement will attract the stringent penal and civil sanctions.

(c) The inclusive definition of literary work includes computer programmes, tables and compilations including computer databases.[38] Thus, the legislature has taken adequate care and provided sufficient protection for computer related copyrights.

(d) The copyrighted material can be transferred or communicated to the public easily and secretly through electronic means. To take care of such a situation, the Copyright Act has provided the circumstances which amount to communication to the public. Thus, making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available, may violate the copyright.[39] The communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.[40]

(e) The copyright in a work is infringed if it is copied or published without its owner’s consent. The Copyright Act provides that a work is published if a person makes available a work to the public by issue of copies or by communicating the work to the public.[41] Thus, the ISPs, BBS providers, etc may be held liable for copyright violation if the facts make out a case for the same.

(f) The copyright in a work shall be deemed to be infringed when a person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-
(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) Permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.[42]

(g) The Copyright Act specifically exempts certain acts from the purview of copyright infringement. Thus, the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy in order to utilize the computer programme for the purpose for which it was supplied or to make back-up copies purely as a temporary protection against loss, destruction, or damage in order only to utilize the computer programme for the purpose for which it was supplied, would not be copyright infringement.[43] Similarly, the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme is not a copyright violation if such information is not otherwise readily available.[44] Further, there will not be any copyright violation in the observation, study or test of functioning of the computer programme in order to determine the ideas and principles, which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied.[45] The Act also makes it clear that the making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use will not amount to copyright violation.[46]

(h) If a person knowingly makes use on a computer of an infringing copy of a computer programme, he shall be held liable for punishment of imprisonment for a term which shall not be less than seven days 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. However, if the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.[47]
It must be noted that copyright can be obtained in a computer programme under the provisions of the Copyright Act, 1957.[48] Hence, a computer programme cannot be copied, circulated, published or used without the permission of the copyright owner. If it is illegally or improperly used, the traditional copyright infringement theories can be safely and legally invoked. Further, if the medium of Internet is used to advance that purpose, invoking the provisions of the Copyright Act, 1957 and supplementing them with the stringent provisions of the Information Technology Act, 2000, can prevent the same.

(2) Information Technology Act, 2000 and on-line copyright issues: The following provisions of the Information Technology Act, 2000 are relevant to understand the relationship between copyright protection and information technology:

(a) Section 1(2) read with Section 75 of the Act provides for extra-territorial application of the provisions of the Act.[49] Thus, if a person (including a foreign national) violates the copyright of a person by means of computer, computer system or computer network located in India, he would be liable under the provisions of the Act.

(b) If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network accesses or secures access to such computer, computer system or computer network[50] or downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium[51], he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected. Thus, a person violating the copyright of another by downloading or copying the same will have to pay exemplary damages up to the tune of rupees one crore which is deterrent enough to prevent copyright violation.

(c) While adjudging the quantum of compensation, the adjudicating officer shall have to consider the following factors:
(i) The amount of gain or unfair advantage, wherever quantifiable, made as the result of the default;
(ii) The amount of loss caused to any person as a result of the default;
(iii) The repetitive nature of the default.[52]
Thus, if the copyright is violated intentionally and for earning profit, the quantum of damages will be more as compared to innocent infringement.

(d) A network service provider (ISP) will not be liable under this Act, rules or regulations made there under for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.[53] The network service provider under section 79 means an intermediary and third party information means any information dealt with by a network service provider in his capacity as an intermediary.[54]

(e) The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.[55]

Conclusion

The provisions of the abovementioned two enactments show that the Copyright protection in India is strong and effective enough to take care of the Copyright of the concerned person. The protection extends not only to the Copyright as understood in the traditional sense but also in its modern aspect. Thus, on-line copyright issues are also adequately protected, though not in clear and express term. To meet the ever- increasing challenges, as posed by the changed circumstances and latest technology, the existing law can be so interpreted that all facets of copyright are adequately covered. This can be achieved by applying the “purposive interpretation” technique, which requires the existing law to be interpreted in such a manner as justice is done in the fact and circumstances of the case. Alternatively, existing laws should be amended as per the requirements of the situation. The existing law can also be supplemented with newer ones, specifically touching and dealing with the contemporary issues and problems. The Information Technology Act, 2000 requires a new outlook and orientation, which can be effectively used to meet the challenges posed by the “Intellectual Property Rights” regime in this age of information technology. Till the country has such a sound and strong legal base for the protection of Intellectual Property Rights, the judiciary should play an active role in the protection of these rights, including the copyright. The situation is, however, not as alarming as it is perceived and the existing legal system can effectively take care of any problems associated with copyright infringement.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Telephone No: 9899169611.

[1] For instance, in countries like US or India, copyright law covers the rights of producers of phonograms.
[2] Section 13
[3] Section 14(a)
[4] Section 14(b)
[5] Section14(c)
[6] Section 14(d)
[7] Section 14(e)
[8] Section 53A
[9] Explanation to Section 57(1).
[10] Section 57(2)
[11] 2001 PTC 57(Del)
[12] 2001 PTC 407(Del)
[13] 2002 (24) PTC 405(Del)
[14] 2002 (25) PTC 508(Del)
[15] 2004 (2) SCALE 589
[16] 2002 (24) PTC 377(Mad)
[17] AIR 1981 SC 1054
[18] 2002 (25) PTC 434(Guj)
[19] 2001 PTC 213 (All)
[20] 2001 PTC 504 (C (Goa)
[21] AIR 1993 Del 223
[22] AIR 1978 SC 1613
[23] 2001 PTC 727 (AP) (D
[24] 2003 (26) PTC 183(MP) (D
[25] 2001 PTC 216 (Mad)
[26] 2002 (25) PTC 812(MP)
[27] 2002 (25) PTC 173 (Patna) (D
[28] Religious Technology Center v Netcom On-Line Communication services, Inc, 907 F.Supp. 1361(1995)
[29] Mary Shulman, Internet Copyright Infringement Liability, 27 Golden Gate U.L.Rev.555, 558(1997)
[30] 464 .U.S.417 (1984)
[31] Gershwin Publishing Corpn v Columbia Artists Management, Inc 443 F2d 1159(2d Cir.1971)
[32] Netcom, 907 F.Supp. at 1375
[33] 907 F.Supp.1361 (N.D. Cal.1995)
[34] 839 F.Supp.1552(M.D.Fla.1993)
[35] 948 F.Supp .923 (N.D. Cal.1996
[36] Section 2(ffb)
[37] Section 2(ffc)
[38] Section 2(o)
[39] Section 2(ff)
[40] Explanation to Section 2(ff)
[41] Section 3
[42] Section 51(a)
[43] Section 52(1) (aa)
[44] Section 52(1) (ab)
[45] Section 52(1) (ac)
[46] Section 52(1) (ad)
[47] Section 63B
[48] Section 13(1) (a) read with Section 2(o)
[49] Praveen Dalal and Shruti Gupta: The Unexplored Dimensions of Right To Privacy (May-04 issue of IJCL)
[50] Section 43(a)
[51] Section 43(b)
[52] Section 47
[53] Section 79
[54] Explanation to Section 79
[55] Section 81

The aim of this article is to evaluate the mandates and requirements of Treaties and Conventions entered under the banner of World Trade Organisation (WTO). The discussion becomes essential, as the heat of these mandates has been felt with effect from 01-01-2005 when the provisions of these Treaties and Conventions came into full force in India. A timely attempt has been made to make the people and the Government of India aware about the impact of the same vis-à-vis data protection requirements.

I. Introduction

The law regulates the conduct of the society in its most desirable and benign form. It maintains the order in the society and eliminates unhealthy delinquencies and deviations. Thus, law plays an important role in developing a civilised society. The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to “conflict of laws” which is generally taken care of by the “Private International Law”. An important aspect of the Private International Law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevails, if there is a conflict between the two laws of the different sovereign States. The position is, however, totally different when it comes to “Public International Law” that primarily encompasses within its ambit the law(s), which are, required to be uniformly followed by the “Member Countries”. The Treaties and Conventions eneterd under the banner of a common platform like WTO bind these “Member Countries” and they cannot plead that the same is against the notions and ideologies of their nation. That is why countries are very cautious while entering into various Treaties and Conventions. The Treaties and Conventions so entered are not automatically incorporated in the “Municipal Legal System”, though some countries endorse the concept of “automatic incorporation” of the same. In India, we have to take an independent action of “legislation” U/A 253[1] of the Constitution of India to make the Treaties and Conventions functional. This shows the legislative superiority of Parliament over the respective States. The laws concerning Intellectual Property Rights (IPRs) are also part of Public International Law and the TRIPS[2] Agreement governs most sturdily and persuasively the protection requirements of IPRs in India. In fact, with effect from 01-01-2005 the provisions of Indian Patents Act, 1970 also allows “product patent” along with the “process patents” for medicines. It is interesting to note that India was sternly against extending the protection of product patents to “medicines”, but as a trade-off it has accepted to confer the same protection to pharmaceutical industry. This protection is, however, subject to various “public interest limitations” that can be invoked against these industries in situations of calamities and emergencies. In fact, none of the IPRs are absolute in nature and public interest is pervading all of them. The provisions of TRIPS Agreement expressly recognise this requirement and the “Doha Declaration” was adopted as a “safety valve” for releasing the pressure created by the apprehensions of possible charging of “excessive prices for the medicines” in “Least Developed Countries (LDCs))” and “Developing Countries (DCs))”. Thus, to appreciate the level of protection available for “data property”, a brief evaluation of TRIPS becomes essential.

II. The TRIPS Agreement- A Magna Carta of IPRs

The provisions of TRIPS Agreement are the most extensive and rigorous in nature. They protect all the forms of IPRs collectively. The protective umbrella of TRIPS covers the following IPRs:
(1) Copyright and Related Rights,
(2) Trademarks,
(3) Geographical Indications,
(4) Industrial Designs,
(5) Patents,
(6) Layout designs of Integrated Circuits, and
(7) Protection of Undisclosed Information.

It must be noted that by virtue of Article 1(2) of the TRIPS Agreements[3], the Control of Anti-Competitive Practices in Contractual Licences has been excluded from the definition of “intellectual property”. The discussion in the present article is addressing only the “data protection” aspect, hence it is confined exclusively to section 1, i.e. Copyright and Related Rights[4]. Article 9(1) of the Agreement provides that Members shall comply with Articles I through 21 of the Berne Convention, 1971 and the Appendix thereto. The members, however, shall not have any rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom[5]. Thus, although TRIPS utilises Berne as a “minimum standard”, it deviates from the Berne in two aspects. TRIPS is broader than Berne, in that it protects “software and databases”; but at the same time, TRIPS is also narrower than Berne, in that it does not require compliance with moral rights provided by Berne Article 6bis[6]. The member will, however, have to continue to fulfill the existing obligations that Members may owe to each other under the Berne Convention[7]. It means that if two Members of TRIPS Agreement are “already” extending protection to each other in the form of “moral rights” of the authors under the Berne Convention, then the TRIPS Agreement will not prevent them from doing so. The combined reading of Article 2(2) and Article 9(1) shows that the two provisions are not contradicting each other. The TRIPS Agreement is not “recognising” the “moral rights” of the authors and the story ends here only. It is in no way restricting the conferment of the same under the Berne Convention if the Members to the TRIPS Agreement are already extending the same to each other on a “reciprocal basis”. Thus, in no way TRIPS should be misunderstood as laying down the rule that it is “prohibiting” or “regulating” the moral rights. It has only refused to bring the same under the protective umbrella of TRIPS Agreement.

III. TRIPS Agreement and Data Protection

The TRIPS Agreement recognises the protection of “data property” in Article 10(2) of the TRIPS Agreement. Article 10(2) of the Agreement provides that “compilation of data” or “other material”, whether in machine-readable or other form, which “by reason of the selection or arrangement” of their contents constitute intellectual creations shall be protected “as such”. The Article further provides that such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.

A closer perusal of the Article reveals the following facts:

(1) It is the ‘compilation” of data or other material, which is protected under TRIPS Agreement. It must be noted that “compilation” of a subject matter of Copyright is protected under almost all the legal systems. This is also protected in the Berne Convention. Thus, if a data is compiled in a particular manner, the same cannot be used in the similar manner. Further, by using the words “other materials” the ambit of this Article has been extended to even “non-data items”.

(2) The compilation may be either in a machine-readable form or in some other form. The previous category includes storing of data in “computers” and its “parallels”, whereas the latter category includes storing of the data in the traditional paper mode. The storing of “data property” in computers and its parallels necessitates protection of the same in Information Technology law as well. That may be why the government is planning to amend the relevant provisions of the Information Technology Act, 2000. The proper approach, however, seems to be to incorporate necessary “explanatory provisions” in the Indian Copyright Act, 1957 and making minor suitable amendments in the Information Technology Act, 2000. In no case it should pressed forward through Information Technology Act alone. If a data stored in a computer or its parallels is misused, the provisions of the Information Technology Act can be pressed in to service along with the Copyright Act, depending upon the nature of violation or contravention. At this point it may be noted that the Copyright Act, 1957 already protects “databases” as “literary works” under section 2(o) of the Copyright Act[8]. It must be noted that the definition of “literary work” is “inclusive” in nature and it is capable of encompassing more categories. Secondly, the concept of “compilation” used in this section is itself inclusive in nature and the compilation of “databases” is one of them. Thus, the expression “compilation”, as used in section 2(o), includes at least two forms of compilation. The one is compilations for the purpose of conferment of Copyright and the other is compilation for the purpose of Data Protection. Thus, when the section 13(1)(a) of the Copyright Act uses the expression “original literary works, it is used not only in an “inclusive” manner but also in a “multifunctional” manner. It should not be confused to mean the literary work vis-à-vis copyright only. The inclusive nature of the definition of “literary work” is permeating the entire Copyright Act and it cannot be allowed to be whittled down while interpreting section 13(1)(a) of the Copyright Act. In short, the copyright Act protects original compilations as “both” copyright and databases. It would be wrong to suggest that copyright and data protection are one and the same thing. These two are different Intellectual Property Rights, which are expressly protected not only under the TRIPS Agreement but also equally under the Copyright Act. The erroneous treatment of databases as copyright and with similar parameters has created a position where the government is planning to make a separate law for data protection. The present requirement is only to issue an “explanatory notification” clarifying this position. In fact, the definition of “literary work” is capable of accommodating “other materials” as well, which may be non-data in nature. This possibility has been expressly recognised and provided by both the TRIPS Agreement and the Copyright Act

(3) The claim for data protection originates only because of the “selection or arrangement” of the contents by using the “intellectual creations”. Thus, if there is no intellectual endeavor involved in the selection or arrangement of the contents, then the same may not be protected as “data property”. The same will, however, still be entitled to the protection of Copyright, since the protection of copyright is not dependent upon the “quality” of the contents but their “expression” as such. It must be mentioned at this point that the claim of copyright is no dependent upon the formality of registration. The moment the contents are “expressed” in an original manner, the same will get the protection of Copyright. If the contents are arranged using some intellectual endeavour, the same can be claimed as either the copyright or as databases. Thus, it can safely be concluded that all “databases” are capable of copyright protection but not all copyrightable material qualifies for the data protection. This shows that it is easier to get copyright protection than data protection. This suggestion should not be misinterpreted as suggesting that the copyrightable material can be absolutely devoid of any intellectual shade. It only means that the requirement of “quality” is more demanding and stringent in cases of data protection than the copyright. Thus, the same material may fail to qualify for data protection, but it can be still protected by the copyright. This point is further strengthened by the use of the expression “as such’ in Article 10(2) of the TRIPS Agreement. Thus, either the work is protected as databases or it may qualify for the protection as copyright.

(4) The protection in the databases is not available for the data or material itself, but it is exclusively available for the intellectual creation in the form of selection or arrangement. Further, the right in databases is without prejudice to any copyright in the data or material itself. Again, it shows that a person possessing the data has two rights. On the one hand he has a right in the form of databases, which is available in the intellectual creations in the form of selection or arrangement. On the other hand, he has a right in the “very data or material itself”, which is available to him in the form of copyright. In short the right to data protection is available only in the “form and manner” of intellectual selection or arrangement and not in the data or material itself, whereas the copyright is available in the data or material itself since the same is an expression”. Thus, the Copyright Act, 1957 adequately protects both the databases and the copyright equally.

IV. Conclusion

The above discussion shows that the proposed change in the Information Technology Act, 2000 for conferring data protection is not only unwarranted but is equally based on misinterpretation of the provisions of the Indian Copyright Act, 1957 and the TRIPS Agreement. The concerns and apprehensions of the MNCs are far-fetched and unwarranted. The TRIPS Agreement and the Copyright Act, 1957 provides sufficient safeguards for preventing violations of databases of MNCs. The data, information and details provided by the MNCs will get the protection of ‘Data Property” if the same involves intellectual creations within the meaning of Article 10(2) of the TRIPS Agreement. If they fail to satisfy the requirement of Article 10(2), still they will be protected as copyright. The brightest and the positive aspect of this situation is that even non-data items are also protected, both under the TRIPS Agreement and the Copyright Act, 1957. Thus, the MNCs should concentrate on their “business initiatives” rather than wasting their resources and time on unnecessary concerns.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Phone No: 9899169611.
http://praveen-dalal.blogspot.com/

http://perry4law.blogspot.com/

[1] Article 253 reads- Legislation for giving effect to international agreements: Notwithstanding anything in the foregoing provisions of this Chapter (Part XI, Chapter 1-Legislative Relations), Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
[2] The Trade Related Aspects of Intellectual Property Rights
[3] Article 1(2) reads- For the purpose of this Agreement, the term “intellectual property” refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II. The Control of Anti-Competitive Practices in Contractual Licences falls in the 8th category; hence it is excluded from the protective umbrella of intellectual properties.
[4] As provided in Articles 9 and 10 of the TRIPS Agreement.
[5] Article 6bis of the Berne Convention confers “Moral Rights” on the owners of the Copyright, which is not available under the TRIPS Agreement.
[6] Elaine B. Gin: “ International Copyright Law: Beyond the WIPO and TRIPS Debate”, JPTOS, (Oct-04), page 785.
[7] Article 2(2) of TRIPS Agreement.
[8] Section 2(o) provides that unless the context otherwise requires, literary work includes computer programme, tables and compilations including computer databases.