By now, most readers are likely to be aware of the case against the shadow libraries Sci-Hub and LibGen, by three publishing houses. We had a post questioning why ‘poorer’ countries were still allowing copyright law to act as a hindrance to development here, and a three-part post looking into the case against Sci-Hub and LibGen, the fair dealing exception and the education use exception here, here and here. We’re pleased to now bring you an incisive post by Saral Minocha looking into questions of constitutionality that this dispute may raise. Saral is a graduate from NLU Delhi (2017). After working in a law firm for a couple of years, he is now teaching at CLAT Possible.
Copyright and the Sci-Hub/Libgen Case: A Constitutional Query
Saral Minocha
Image from here
The conflict between copyright law and the right to receive information is now starkly visible. In the ongoing litigation in the Delhi High Court pertaining to shadow libraries Libgen and Sci-Hub, the plaintiffs (three publication houses that publish books, journals and academic articles, namely Elsevier, Wiley and ACM) have filed a suit seeking the direction that these shadow libraries be blocked on grounds of copyright infringement. Whether these shadow libraries are committing copyright infringement and whether an injunction must follow is in the domain of copyright law and laws pertaining to civil relief. I do not propose to examine that issue. I want to take a step back and examine whether our copyright law is in line with our constitutional scheme.
An inquiry of an allegation that a law violates the fundamental right to free speech, guaranteed under Article 19(1)(a) of the Indian Constitution, goes as follows: it first needs to be proven that the law restricts the right provided in Article 19(1)(a); if that venture succeeds, then it is on the State to prove that the restriction, first, has basis in one or more of the grounds provided in Article 19(2), and second, is reasonable. It is my submission that an interpretation of our copyright law that allows the plaintiffs to prevail in this ongoing litigation restricts the right to free speech as granted in Article 19(1)(a), and that such restriction does not have basis in any ground in Article 19(2).
Restriction on the Right to Freedom of Speech?
The right that is immediately affected by the banning of these shadow libraries is the right to receive information, which has been interpreted as a part of Article 19(1)(a). As is evidenced in the abovementioned ongoing litigation, if the suit succeeds, then because of copyright law, the general public would not be able to receive information. Thus, copyright law does restrict the right to receive information, and hence Article 19(1)(a). Of course, one may make an argument that the general public is still free to pay the fee required by the publishers for accessing materials available freely on these shadow libraries, but given the steepness of the fee, most of the general public would effectively not receive this information at all. [The argument here pertains only to educational materials – books, journals, research articles, documentaries etc. While there may be constitutional issues pertaining to other subject matter covered by copyright law, that is beyond the scope of this piece.]
In this regard, one might take the example of American jurisprudence on this issue to argue that speech that infringes copyright is not protected under the right to free speech. In the US, it has been held by the Supreme Court that copyright law does not infringe the First Amendment right to free speech. However, the argument that speech infringing copyright is unprotected is not an attractive argument with respect to the Indian Constitution. The structure of the right to free speech in the First Amendment is such that the Court itself is free to find the grounds on which it can be restricted – which it has. The US Supreme Court has developed grounds on which speech can be restricted – clear and present danger, obscenity etc. However, the structure of the right in India is different – the Court is not left free to determine grounds on which the right granted under Article 19(1)(a) can be restricted; the Court is bound by the grounds for restrictions provided in Article 19(2). If a law has a direct and inevitable impact on the right granted in Article 19(1)(a), it is said to restrict such right. The direct and inevitable impact is starkly visible in the ongoing litigation.
Reasonable Restriction under Article 19(2)?
Article 19(2) has the following grounds on which restrictions to the right to free speech in Article 19(1)(a) can be made: “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality,… contempt of court, defamation or incitement to an offence”. Of these the only grounds that appear to be justifying copyright law are friendly relations with foreign states, decency and morality.
Friendly Relations with Foreign States
Perhaps a feeble argument could be made using “friendly relations with foreign states”. One could make an argument that not implementing copyright law would lead India to violate the TRIPS Agreement, thereby causing harm to “friendly relations with foreign states”. If this argument is accepted, however, then the Parliament would be free to enter into any international treaty providing for restrictions on speech, and then claim that treaty as a ground for restricting free speech. Surely the Parliament’s power to enter into international agreements (and thereby create relations with other states) is limited by the right to free speech; any other position could give the Parliament a carte blanche to impose any restrictions whatsoever on free speech.
Decency or Morality
Coming back to decency and morality: till now, they have been invoked in relation to obscenity and some cases pertaining to election laws. One may make an argument that it would be immoral for person X to commercially exploit person Y’s creative work, and since copyright law prevents this from taking place, copyright law is squarely covered by this ground. It needs to be noted that “morality” is now interpreted as constitutional morality and not public morality, the scope of which is unclear. At least one aspect of constitutional morality has been implicitly, if not directly, identified by the Supreme Court. In Navtej Singh Johar, the Court relied upon the notions of equality and anti-discrimination as being important values that guide constitutional morality to hold that section 377 of the Indian Penal Code was unconstitutional insofar as it criminalized consensual sex between two adults of the same sex. In the question of whether our copyright law passes the test of constitutional morality, are equality and anti-discrimination relevant like they were in Navtej Singh Johar?
In this analysis of “morality” one would have to evaluate the moral counterweights to copyright law. Is it moral to take refuge behind copyright law and impose difficult paywalls to educational content? In our country, where access to education is linked to one’s class membership, and where education is correlated to social mobility, realities of life are affected by education. SpicyIP has also covered in a past piece affordability difficulties faced by even the best of educational institutions in India. In this reality, surely, the answer to the question asked at the beginning of this paragraph would be an emphatic no.
Therefore, at least to the extent that our copyright law prohibits access to educational materials, it is not moral. It follows then that to the extent that our copyright law prohibits access to educational materials, it is not covered by the ground of “decency and morality” in Article 19(2).
Of course, given the amorphous nature of the words “decency and morality”, the Court can do some interpretational gymnastics to hold that copyright law is moral, but I hope that the Court also evaluates the moral counterweights to the need of protecting original works.
The Balancing Approach
There is also a line of argument according to which fundamental rights in conflict can be “balanced”. That line of argument has found favour with the Indian Supreme Court as well. Without commenting on the merits of balancing Article 19(1)(a) rights with other rights, it is important to see what rights can potentially be in conflict with Article 19(1)(a) in the context of copyright law. One such right is the right to property under Article 300A. Given the constitutional scheme, though, a fundamental right should trump the right to property, and a question of balancing would not even arise.
Another such right could be the right to trade under Article 19(1)(g), using which publishing houses and other copyright owners may make an argument that their business is dependent entirely on exclusivity (and hence copyright). However, the Article 19(1)(g) right is not absolute, and can be restricted on the wide ground of “public interest”. If one accepts the morality argument in the previous part of this article, then it is obvious to see that access to educational materials is in public interest – access to educational materials leads to better access to education for those who cannot ordinarily access it, and then to better chances of social mobility. Any argument raised by the plaintiffs in the ongoing litigation pertaining to their right in Article 19(1)(g) can, therefore, be repelled by taking refuge in the public interest exception in Article 19(6). Therefore, in the context of availability of educational materials, the balancing-with-Article 19(1)(g) argument is a non-starter.
For the sake of completion, it is also important to note that it is not as if the drafters of the Constitution were unaware of copyright. The first copyright legislation in India was enacted in 1914, i.e. much before the enactment of the Constitution. Further, “copyright” is in fact mentioned in the 49th entry in List I of the Seventh Schedule. However, since legislations are “subject to the provisions of the Constitution”, an argument that copyright law is valid because the framers of the Constitution envisaged copyright law is also a non-starter; copyright law has to be subject to Article 19(1)(a) not just because of Article 13 (which provides that laws infringing fundamental rights are void to the extent of infringement), but also because of Article 245 (which provides for power of Parliament to legislate).
The Way Ahead
Irrespective of how this litigation ends, the conversation that it has triggered about the link between copyright law and free speech rights must be continued. This conversation can lead to two solutions: First, an amendment in copyright law that either compels copyright owners to make educational materials available at a reasonable cost (a statutory license scheme?) or clarifies the exceptions to copyright infringement to the effect that research is not inhibited by exercise of copyright. Second, the Constitution can be amended to include “copyright” as a ground in Article 19(2). As things stand in the Constitution, however, I submit that to the extent that our copyright law inhibits research, it invalidly restricts the right in Article 19(1)(a), and therefore, to that extent, it is void. The ongoing litigation, therefore, must, on constitutional grounds if not copyright-related grounds, be decided in the favour of the defendants.
Author’s note: I would like to acknowledge Swaraj Barooah, Dr. Arul Scaria, Shrutanjaya Bhardwaj and Aishwarya Kane for their inputs on this post.