[This post is a part of the IP History series and is authored by Shivam Kaushik. Shivam is a 2020 law graduate from Benaras Hindu University and is presently working as a law researcher at the Delhi High Court. His introductory post on the series can be accessed here and his previous posts can be accessed here.]
George Orwell was a linguistic genius! In a paper written in 1946, he observes that we often have to defend what we find morally indefensible; intentions, schemes, and actions that can only be justified by reasoning and thoughts that are too brutal for anyone to express directly. So, in order to ensure that people do not form the mental picture of the actual intended purpose, we employ obfuscation and euphemism, use vague and complicated phraseology in naming those schemes and projects. Orwell called this technique of linguistic disguise as ‘pacification’.
The TRIPS agreement is a classic example of pacification. TRIPS lays down the minimum standard of IP protection to be provided by countries and is a part of the ‘package’ that comes complimentary with the privilege of participating in the international trading system. No country gets to say- No thanks, we are good! Imagine it being named ‘TRAPS’ instead (Trade Related ‘Aspects’ of Intellectual Property Rights). TRAPS as an acronym would be much more accurate and descriptive. It would instantly paint the mental picture of a ‘mouse trap’ in the mind of listener when anyone referred to the multilateral treaty. No one anyways refers to the agreement by its full name.
Legend has it that during the hearing in Novartis v. Union of India before the Supreme Court, Dr. Rajeev Dhawan appearing for Cipla called TRIPS ‘a treaty of coercion’ as also ‘predatory’ (¶ 65). Peter Drahos has been equally pointed in his criticism of TRIPS and calls it the ‘most potent expression of economic coercion’. But this write up is not about TRIPS. TRIPS is not history yet. it’s a live wire; issues like TRIPS flexibilities, waiver are hotly debated in academia and public frequently; Berne Convention, on the other hand, is a treaty straight out of antiquity- 137 years old. Still effective and in place but too obsolete for anyone to spare a thought about. (Though Lokesh has recently brought it up in a blogpost over here.)
This post looks at Berne Convention from the viewpoint of 19th century colony and tries to make sense out of it. For international agreements like TRIPS are not a standalone, sporadic incident in international IP. As Drahos, puts it “…many developing countries have never exercised a meaningful sovereignty over setting of intellectual property standards”. And International IP agreements have merely acted as instruments of pacification in the hands of the hegemons; giving pretence and semblance of legality and legitimacy to acts that, without the façade of “treaty of wherever”, would have been called out for perpetuating hegemony.
Berne Convention for the Protection of Literary and Artistic Works, adopted in 1886, is one of the oldest, if not the oldest international treaty dealing with IP. One of the most important principles it embodies is that of ‘national treatment’ as per which foreign authors are entitled to same level of copyright protection as provided by a country to its own citizen. The momentous, first of its kind treaty currently has 181 members [for context, WTO currently has 164 members]. However, the beginning of Berne was very humble. In the beginning, it was signed by only 8 copyright exporting countries- Belgium, France, Germany, Italy, Spain, Switzerland, Tunisia, United Kingdom.
The primary problem because of which the need of a multilateral copyright treaty was felt was that of ‘international literary piracy’. At the beginning of 19th century, copyright exporting countries were increasingly getting concerned about the unauthorised reproduction of books taking place beyond their borders. Brits were upset with Irishmen and Americans for pirating their stuff, French were miffed at Germans, Swiss, Belgians, Italians and pretty much at everyone for pirating French books. A multilateral treaty giving copyright protection, for example, to French works in multiple countries simultaneously seemed to be the most logical solution. Thus, Berne Convention was conceptualised.
In the Berne Convention, one provision that really caught my attention is Article 31 and deserves to be reproduced in full:
Application to certain territories- (1) Any country may declare in its instrument of ratification or accession, or may inform the Director General by written notification at any time thereafter, that this Convention shall be applicable to all or part of those territories, designated in the declaration or notification, for the external relations of which it is responsible.
Now, the meaning of the provision might not be as forthcoming as it should be. For it is the pacified, and toned-down version of something… “brutal”. If the drafters would have shown some fidelity to the true intent and motive of Article 31, it would read something like this:
Roping in colonies- (1) Any imperial power in its instrument of ratification or accession may unilaterally declare or inform the Director General by written notification at any time it wishes that the commitments, liabilities, and obligations undertaken by the colonizer shall be equally applicable to the colonised, as designated in the declaration or notification, as well.
In order to enable Britain to become a signatory to the Berne Convention the British parliament passed the International Copyright Act, 1886. Britain exercised the power provided under article 31 and signed the Convention on behalf of all its colonies; bringing roughly 300 million people within its sweep. Not including colonies in Berne made little sense to the colonisers, as it may lead to ‘inter-colonial piracy’; the problem that Berne has set out to remove from colonising states(Seville; the internationalization of copyright law; p.71). India became a member of Berne Convention on the application made by the UK on India’s behalf on 5th September 1887.
In a nutshell- Britain and other big boys thought they needed an international agreement to curb international copyright piracy; they negotiated it; they signed it; India got trapped in it.
It would have been logical to let the memories of this chain of events fade away had it not had a pronounced impact on development and evolution of copyright and the diffusion of knowledge in India. Let me try and put things in perspective with the help of a hypothetical example. If any person in India in 1890 re-produced writings of Victor Hugo without permission, she would be committing ‘copyright infringement’ as copying works of foreign authors was prohibited under law. French works had automatic copyright protection in all Berne territories including India. But if any person, say, in the US in 1890 decided to re-produced writing of Victor Hugo without permission could do so openly and legally and there was no ‘copyright infringement’. This was because foreign authors like Victor Hugo did not have any copyright in the US at that time to start with, as the US chose not to join the Berne Convention.
[Sidenote: You may find the above juxtaposition somewhat perplexing as for a student of Indian copyright law and policy, ‘copyright infringement’ and ‘piracy’ are synonyms. The idea that there can be acts which may qualify as ‘piracy’ but not ‘infringement’ is inconceivable at first. It was the case for me at least.]
It is widely accepted that US’ decision to not join Berne played a decisive role in creating a literary ecosystem based on piracy of foreign works, consisting of a huge domestic publishing industry, and the largest literate reader base ever produced. The US was invited to join Berne Convention but it took a conscious decision to not sign the Convention. At that time, the US perceived copyright to be a tool of socio-economic development of the masses and Berne as an impediment in that process. America would not sign Berne Convention until 1989. The presence or absence of Berne in the equation mattered!
The enforcement of Berne at such a nascent stage in India has had a profound effect on the concept of ‘copyright’ itself. It may even be said that the Indian copyright seems to have first contracted ‘natural right syndrome’ and its tint of universalism, inviolability and inalienability from Berne! For much of the memory of Indian copyright, there never was any difference between an Indian author and a foreign author. Imagine me telling you that copyright is a natural property right that one gets by virtue of one’s creativity; it is just that for 200 odd years, Indian copyright law was only for Indian authors and the said natural right was denied to American, British, German, and French authors in respect of their creative undertaking. What would you say?