The right to copy

In this age of copy-and-paste, plagiarism and piracy are rarely regarded as serious issues.

There was a recent Delhi High Court judgement, involving Delhi University and a photocopying kiosk inside the Delhi School of Economics. (Illustration by: C R Sasikumar)

Who invented the revolver? I am not sure the question deserves an answer, since multiple people invented multiple things. Forced to give an answer, most people will opt for Samuel Colt. Thanks to Samuel Colt’s patent (there were separate British and US patents), he had a monopoly on manufacturing revolvers till 1856. The limited point is that because of Colt’s patents and his attempts to guard against infringement, innovations and development of firearms manufacture were impeded. Until the Colt patent expired, Smith and Wesson couldn’t do much.

Researchers agree, from a social welfare point of view, these patents did more harm than good. There is a similar hypothesis, though contested, about how patent wars impeded the initial development of aviation in the US, with the Wright brothers (holders of the patent) fighting Glenn Curtiss and others. Therefore, at the time of World War I, US airplanes weren’t good enough and the government had to enforce a patent pool. All forms of intellectual property right (IPR) protection involve a limited monopoly. That’s an incentive for placing details of the invention in the public domain and the static welfare loss (because of the monopoly) is compensated by dynamic welfare gains through new inventions and investments. The National Intellectual Property Rights Policy of May 2016 cites these arguments.

That trade-off between the static and the dynamic, the immediate short-term and the medium term, is an old debate and we have legislation (WTO, World Intellectual Property Organisation (WIPO), bilateral, unilateral) on IPR protection. There are various forms of intellectual property — copyrights and related rights, trademarks/service marks, geographical indications, industrial designs, patents, lay-out designs of integrated circuits, plant varieties, undisclosed information. Some implementation (patents, designs, trademarks, GI-s) is with the Department of Industrial Policy and Promotion and the Controller General of Patents, Designs and Trade Marks, plant varieties with the agriculture ministry, integrated circuits with Department of Information Technology and biodiversity with environment and forests ministry. Finally, copyrights are with the human resource development ministry. We may have reduced all kinds of IPR to a common conceptual template, such as through the WIPO, but the two roots and antecedents are different — the Paris Convention (1883) for Protection of Industrial Property and the Berne Convention (1886) for Protection of Literary and Artistic Works. In the general discourse and debate, irrespective of legislation, we have accepted IPR more for varieties of industrial property, trade marks, industrial designs, patents, integrated circuits. We haven’t quite accepted IPR for copyright and related domains such as performing artists, recordings, broadcasters. At the back of our minds, we accept the Paris Convention stuff as inherently commercial, the Berne Convention stuff less so.

There was a recent Delhi High Court judgement, involving Delhi University and a photocopying kiosk inside the Delhi School of Economics. The kiosk prepared study packs — photocopying parts of books — and a few publishers brought an infringement case. The court dismissed the suit.

Under Section 52(1)(a), this act of photocopying was “a fair dealing with a literary, dramatic, musical or artistic work”. My intention is not to get into the judgement. In any case, that is only about a very specific form of copying. How many people walk into a store and walk out with a stolen product? Barring thieves, this is a rare phenomenon. Within the set of honest people, how many have used pirated software, or downloaded and watched pirated films, musical performances and songs? Let’s ignore those who indulge in commercial counterfeiting and piracy. Barring them, even within the honest set, the number who have indulged in piracy will be high. Notice, a person will not typically steal a music CD from a store, but is quite amenable to downloading songs from the internet. Stated differently, there is a notion of theft when there is something physical or tangible, not otherwise. Copyright and related rights may assume physical form, but the notion is inherently that of something intangible and non-physical. We don’t accept these things as commercial. To the extent we accept copyright and related rights as commercial, we do it more for neighbouring rights and less for old-fashioned and narrow copyrights. Hence, plagiarism is rarely regarded as a serious issue, in this age of copy and paste.

Add to this a perception that copyrights benefit publishers, not authors (this debate on authors versus publishers goes back to the late 19th century). Books by Charles Dickens were published in the US for which he received no royalties. “Show me the distinction between such pilfering as this, and picking a man’s pocket in the street: Unless, indeed, it be, that the legislature has a regard for pocket-handkerchiefs, and leaves men’s brains, except when they are knocked out by violence, to take care of themselves.” This is a quote from Nicholas Nickleby by Dickens. Books by Edgar Allan Poe were published in Britain and he got no royalties either. Legislation for author versus publisher relationships may have improved since then, but there is still the perception that authors get little royalty from books. Those huge advances are extremely rare. An average (varies between hardback and paperback) royalty will be between 7.5 per cent and 12.5 per cent of the printed price, with a large part of that price swallowed up in the distribution chain. On royalties and sales records, few authors are happy with publishers and this undoubtedly reinforces the general impression of publishers being sharks. There is a famous economist with left-wing views. Being left-wing and anti-market, he doesn’t like IPR and vehemently argues against it. But his books always indicate the copyright is in his own name and he too rails against publishers.