RIGHT OF CREATOR VERSUS PUBLIC INTEREST: WHERE LIES THE BALANCE OF CONVENIENCE
* Chirag Balyan
* Sajid Sheikh
Creativity is, how an individual expresses himself through his work. It is immaterial whether, one works for oneself or some other person or entity[i]. If a person steals or asserts ownership over, the author’s ‘expression’[ii], then author doesn’t only lose a right over a work which is or can be copyrighted in law but, also loses the ‘identity’. Creativity is personal to individual and creator may or may not, be willing to bring it to market. This raises a question that whether, creator has the sole interest in a work done by him? Can a creator choose to confine the work to him?
Few will argue that, State and Society in some cases may have a reason to say that the work of creator, can further the larger public interest. In such instances, the pivotal issue is, whether, the right of creator is subservient to interest of society or is superior to societal interest.
Moreover, the advent of digital era, has two dimensional impact on the creativity and creative works. The positive dimension is the increasing interest of people to engage in creative pursuits. The negative dimension is the kind of challenges the digital space, pose not only to the copyright regime, but society as a whole.
Thus, any creative work involves the interest of multiple stakeholders. The varied interests of the stakeholders are conflicting and competing to each other. The changing information landscape further, intensifies the copyright battles.
Therefore, there is a need of a paradigm shift in the Copyright regime, so that the interest of various stakeholders can be balanced by thinking of new alternatives. Essentially, this article ponder over such issues and discusses, whether any such alternatives are required or not so that competing and conflicting interests, can be balanced.
Keywords: Copyright, Public Interest, Remix, Informational Landscapes.
INTRODUCTION: PROPERTY, INTELLECTUAL PROPERTY & PUBLIC INTEREST
Property is not a natural right. It is an institution deliberately constructed by the majority not only to shield the private or individual interest, but also for the ultimate good of all and the orderly society. That is to say, that there exists a consensus in the involvement of public interest in the protection of property. Involvement of public interest exists in two ways. Firstly, public interest is involved in the non-interference with others rights. Secondly, the society takes the responsibility to protect individual property so that it gets something in return, which is worth making the effort. This is very evident from the nature of protection extended to intellectual property.
COPYRIGHT – TO WHICH SIDE BALANCE IS TILTING?
Copyright is a form of intellectual property granted under the law to the creators (or his assignees) of the original works of authorship. Copyright plays a very important role in determining the way we think of creativity; either in terms of exclusive property or general welfare. Lawrence Lessig remarks that, “In recent years copyright has moved away from being an esoteric and technical legal subject to one that affects musicians, designers, artists, students, authors, ordinary consumers and more generally anyone involved in any way in cultural production.”[iii] There is a commonly held opinion that view Copyright and the public interest as inextricably linked[iv] particularly, in the areas of education, research and access to information.[v] However, there are three different schools of thoughts in regard to the extent of this relation in between them. First school holds that creator’s rights come in the first place than public interest. Converse to it is the second school of thought which says the primary purpose of copyright law is to foster the creation and dissemination of intellectual works for the public welfare, and to give authors the reward for their contribution to the society is only its secondary purpose.[vi] Third school advocates that the rights of the creator’s and the public interest must be balanced against each other so that one is not sacrificed for the other. In support of balancing approach, Lord Mansfield in very eloquent terms observed,
[W]e must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.[vii]
Creator’s Right at first place. There have been many attempts to try to quantify or locate the proper balance of copyright law. One important tool employed has been the discipline of economics, which was first applied to Copyright in 1934 when Arnold Plant published his article, ‘The Economic Aspects of Copyright in books’. Landes and Posner states that, the central problem in the copyright law is to strike ‘the correct balance between access and incentive’ and if, copyright law is to ‘promote the economic efficiency’ then, they said that, copyright law should aim to ‘maximize the benefits from creating additional works’ and should minus the losses accruing from ‘limiting access and costs of administering copyright protection’.[viii]
Thus, this school of thought stepped in the tradition of law and economics, sees the grant of exclusive rights over the literary and artistic works as an encouragement for creators and their publishers to engage in creative production. The copier in duplicating the work bears negligible investment risk and makes illegitimate profit by dealing with someone else work and thereby, copier, firstly, undermine the legitimacy of law; secondly, prevent the producer from recovering its actual cost; and thirdly, discourage the people seriously involved in creative endeavor to invest the money. Therefore, school believes that function of copyright law is to ensure that the market price, of the work, is not affected by the piracy. This way copyright law achieve dual result of helping the copyright owners to “recover the cost of producing their work” and “justify copyright protection and exclusive rights”. It is also in consonance with the theory of “unjust enrichment”, as it seek to prevent the copier from taking any undue benefit or profit from the success of well received works.[ix]
Public Interest at first place. The one issues that time and again surfaces in the global copyright debates is whether, the protection of intellectual property is inconsistent with the public interest or human rights. The ‘public interest’ theory supporters see the end of copyright law as the furtherance of public good. There has been various attempts to interpret the ‘public interest’ as ‘user’s interest’ and to treat opposition between authors and public as hollow. It has been argued that, the ‘public interest comprises the goals and aspirations of authors and users, or the public and educators, and so forth’.[x] Similarly, Recital 11 of European Council’s Directive on Copyright term though, regards rights of author under copyright law as fundamental to intellectual creation, however, it emphasize that the protection of copyright is in the interest of various stakeholder such as authors, cultural industries, consumers and society as a whole and thus ensures the maintenance and development of creativity[xi] Thus, in a way EU Directive on Copyright Term sees that the public good and societal interest can be protected if copyright of the author’s is protected. People have also tried to argue that ‘public interest’ is furthered if an environment conducive to fostering creativity and innovation is supported through the effective protection of the rights of creators. It is against the public interest if the creators and investors are not adequately rewarded, because, then creators will be discouraged to work and society has to rely on foreign works and materials for the “access”
State as protector of Public Interest. If we look at the ‘State’ as the guardian or protectors of our rights, then copyright law can be seen as an instrument to further those rights and the interest of society lies in the fact that legitimacy of copyright law is not undermined through piracy. In a society, governed by rule of law, it is a duty of the State to uphold public interest. Copyright law not only protect the rights of authors (monopoly rights, authorship etc.) and further public interest (by providing for fair use in some instances), but also, give enough encouragement through protection to publishers, media houses etc., so that there is free flow of money in creative industry. It is also in the public interest to thrive the competition in the market and the economy which is only possible if there are adequate incentives for the private players in the creative industry.
However, Neil Netanel in his article Why has Copyright Expanded? Analysis and Critique, has argued that interest of motion pictures and recording studios is not public interest, at pg. 4 he elaborates that,
But the public interest – as reflected in some 300 years of copyright precedent – is for a narrowly tailored incentive for authors to contribute to the store of knowledge and enrich the public domain. Copyright is meant to spur creativity and expressive diversity. When it has the opposite effect – when authors cannot freely build upon their predecessors’ works in creating new expression and when copyright serves as a tool for entrenching media conglomerates – something has gone awry.[xii]
This thought is grounded on the libertarian ideals of individual freedom. This school suggests that limitation on owner’s right is the means for attainment of the public goal of progress in science and the arts. This way the public domain is preserved and raw materials needed by other creators in the creative process, are also conserved. All these formulations attempts to prioritize the public interest, or common good, though may be in different sense.
Balance approach. At the heart of copyright law, there exist two vested interests that are conflicting and often compete with each other. On the one hand lays the interest of the author/producers and all those who put their skill and money in the work and on the other hand is the interest of the public at large. Thus, it is an issue in which content creators have a vital stake and certainly too important an issue for public at large. The balancing of the interest of the individuals and the society is the foundation of all intellectual property laws. The notion of a balance, or bargain, has become something of a mantra for judges, legislators, policy makers and academic commentators in the modern field of copyright law. The breadth and ease of acquisition of copyright protection are the balance of the more limited rights that copyright law confers. Owner of the copyrighted work is given protection against unlicensed copying, public performance etc. It likewise qualifies the holder for making the subsidiary work from original work and control the sale and distribution thereof. These rights, however, are limited in the number of ways to which different IP regimes have adopted different standards of the limited term of protection, provisions of fair use or research exemption to promote growth of knowledge, and other limitations like provisions for compulsory and statutory licensing, government use etc. All copyright systems seek to strike a balance between the rights of the owner and the public interest’. The preamble to the WIPO Copyright Treaty also emphasizes ‘the need to maintain a balance between the rights of authors and the large public interest, particularly education, research and access to information’.[xiii] Copyright law was thus aimed to strikes a balance between competing interests and competing policy considerations. Relevantly, it is concerned with rewarding authors of original literary works with commercial benefits having regard to the fact that literary works in turn benefit the reading public. The purpose of copyright law respecting original works is to balance the public interest in promoting the encouragement of ‘literary’, ‘dramatic’, ‘musical’, and ‘artistic works’, as defined by providing a just reward for the creator, with the public interest in maintaining a robust public domain in which further works are produced. Thus, Copyright works as a system of balances to provide incentives to creators while also ensuring that there is a free circulation of works in the public domain, which all other creators would build upon. For e.g., copyright explicitly allowed (and still allows) public libraries to exist as an alternative noncommercial distribution channel for cultural works. [xiv]
Impact of Expanding Informational Landscapes: The advancement of science and technology has led to the emergence of new information landscapes. It’s not only about abstract information, but about the social, cultural and economic impact on these informational spaces. With the IP regimes holding the clutches tighter on the flow and exchange of this information the implications go deeper.[xv]
Advanced innovations and Digital technologies have made the things easy for humans to make and re-make and thereby contribute significantly to the social and economic culture. Peer to Peer file sharing, remixing or editing music videos, etc. is now a culture followed by everyone in a globalized world. Most of these kinds of activities infringe one or other right of the creator’s. So the moot question here is whether, everyone who knowingly or unknowingly participated in this cultural and informational discourse, be held liable. This problem has led to the “copyright war” in which we all are pirates.[xvi]
The balance approach would require us to distinguish between ‘amateurs and professionals’ and ‘copy and use’. We need to restore a copyright law that leaves ‘amateur creativity’ free from regulation. Where the creativity is an amateur remix, the law should deregulate it.[xvii] Further, in the digital age, where every use of a creative work produces a ‘copy’, that makes as much sense as regulating breathing. The law should also give up its obsession with ‘the copy’, and emphasis instead on uses like public distributions of copyrighted work that connect directly to the economic incentive copyright law was intended to foster.[xviii]
CONCLUSION: IS AN ALTERNATE REQUIRED?
Nature provides us with the perfect equilibrium for the sustenance of life on this earth. However, human intervention always tends to distort this balance. Thus, perfect balance, though essential but is very difficult to maintain because there will always be forces acting one way or another causing misbalances. Similar analogy applies to copyright law where, over time this balance has shifted drastically in favor of content owners such as large publishing houses, media conglomerates, etc. This imbalance is caused because of the influence they hold in shaping the legislative and executive policies. Courts in infringement suits by the copyright owners have often disregarded the public interest in the subject matter of copyright by narrowly interpreting the doctrine of “fair use”, “compulsory licensing” etc.
Thus, there exists a conflict. This conflict presupposes the existence of interests. The creators have not only an interest in ‘bundle of rights’ but more importantly right to make money from their invention. Similarly, there is also a wider public interest involve in the author’s creation. Here, which interest shall be regarded by lawmakers, while enacting law, so as to end this conflict of overlapping interest is an important question. However, finding the locus of interest in between these two stakeholders (i.e. Creators & public at large) would be holding the narrow view. The broader proposition demands us to include other stakeholders, like financers, publishers, recording companies, or the person commissioning the work of art, etc., who all puts lots of money in bringing the creator’s work in the market. Actually the fact is that creators are hardly the copyright owner, it is big publishing houses, media giants and financers etc. who owns the work and make the most of money out of the originally created work of some poor fellow (who has nothing but intellect and creativity). Original creators are forced to sell their ‘copyright’ to the people, who holds a dominant position in the market and has the power to effectively bargain with them, for meager one time incentives. It will not be inappropriate to say that, it is the big publishing houses, media giants and financier who has the ‘bundle of rights’ not the creators. Therefore, actual debate is not “creator’s rights vs. public interest” but “Creator’s Rights vs. Rights of Media Houses, Publisher’s etc., vs. Public Interest”. To find where, balance of convenience lies in between these three stakeholders is a difficult under copyright law. The above analysis shows that there has been a radical shift in this balance in favor of the owners of content, rather than that of the public. But since, current copyright regime is used as a tool to prevent or curb creativity. Copyright laws over time have been transformed from their original purpose of regulating the publishing industry to instead regulating its customers, artists and audiences. Therefore, we require a departure from the existing regime which violates and impinge on the fundamental right of “speech” & “expression” by curbing the creativity of amateur kids. But before this we have to look into other options to get rid of this problem? Here we can draw our attention to the copyleft movement and using it as a tool to balance both the interest of creator as well as public. Latter interest will be sufficed because they don’t have to take permission from the author to quote or use the work provided they recognize the work of original creator in their “remix”.
Chirag Balyan is an Assistant Professor (Law) at Maharashtra National Law University Mumbai.
Sajid Sheikh is a Teacher Associate (Law) at Maharashtra National Law University Mumbai.
[i] In Law, if a person creates something in employment of other, the copyright of such work belongs to employer and not creator. However, author may still have ‘moral rights’ over such work.
[ii] Article 19(1) of the Constitution of India speaks of freedom of expression as being fundamental right.
Freedom of expression is also enshrined in the Universal Declaration on Human Rights. Article states that, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” [Universal Declaration of Human Rights, G A. res. 217A(M), U.N. Doc A/810 at 71 (1948), article 19.n
Sub Clause (2) of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), in the similar terms states that, “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, article 19.
[iii] Lawrence Liang, Guide To Open Content Licences 7 (v1.2 ed. 2004)
[iv] See, Gerald Dworkin, Copyright, The Public Interest and Freedom of Speech: A UK Copyright Lawyer’s Perspective in Copyright And Free Speech: Comparitive and International Analysis 154 (2005)
[v] WIPO Copyright Treaty, Preamble, Dec. 20, 1996, SI 2005/3431.
[vi] Robert A Gorman & Jane C. Ginsburg, Copyright: Cases and Materials, 14 (6th ed. 2002).
[vii] Sayre v. Moore (1785) in Cary v. Longman, 1 East 358, 362 n. (b), 102 Eng. Rep. 138, 140 n. (b) (1801).
[viii] William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Leg. Stud. 325, 325-333 (1989).
[ix] Alina Ng, Copyright Law and the Progress of Science and the Useful Arts 9 (2011).
[x] Jane C Ginsburg, Authors and Users in Copyright, 45 Journal of the Copyright Society of the USA 1, 4 (1975).
[xi] Council Directive 2006/116 (EC).
[xiii] See Supra note 5. For more details refer, Gillian Davies, Copyright and the Public Interest (2d ed. 2002).
[xiv] Liang, Supra note iii, at 10.
[xv] IP and the City- Restricted Lifescapes and Wealth of Commons (Jan. 29, 2016, 08:05 AM), http://static.world-information.org/infopaper/wi_ipcityedition.pdf.
[xvi] Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy 4 (2008)
[xvii] See Id.
[xviii] Lawrence Lessig, On Defense of Piracy (Jan. 20, 2013, 10:15 Am), http://content.time.com/time/business/article/0,8599,1851241,00.html#ixzz2iT4E8g7m, last accessed on 20/10/2013.