DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

INTELLECTUAL PROPERTY RIGHTS-I

“THE COPYRIGHT LAW AND FREE SPEECH OVERLAP”

Submitted by: Under the guidance of:

Jyoti Ranjan Dr. Vikas Bhati

200101076 Assistant Prof. (Law)

B.A.LL.B. (Hons) Dr. Ram Manohar Lohiya

National Law University,

Lucknow.
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 ACKNOWLEDGEMENT

I take this opportunity to thank profusely my lecturer Assistant Professor Dr. Vikas Bhati for
providing me with a platform to explore the unexplored depths of the topic ‘THE COPYRIGHT
LAW AND FREE SPEECH OVERLAP.’ Indeed, the experience has been insightful and most
often, thought provoking. A deeper understanding of such an important topic has enriched my
knowledge.

I also wish to express my gratitude to all the library staff for their patience and cooperation in
helping me find the apt research material. My thanks further extend to all the other sources of
information and of course, to my friends and seniors, without whose insightful thoughts and
relevant criticisms, the project would not have been completed.

Last but not the least, I wish to thank my parents and the God Almighty for their help and
constant support through various means. I also hope that I will be provided with similar
opportunities to work on such other interesting topics in the future.

Thanking You,

Jyoti Ranjan

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 TABLE OF CONTENTS

INTRODUCTION .................................................................................................. 4

SCOPE OF THE PROJECT.................................................................................. 5

RESEARCH QUESTIONS .................................................................................... 5

LITERATURE REVIEW ...................................................................................... 5

THE HISTORY OF CONFLICT .......................................................................... 7

THE NATURAL THEORY OF PROPERTY ON COPYRIGHT..................... 8

COPYRIGHT VIS-À-VIS HUMAN RIGHTS UNDER INDIAN

CONSTITUTION.................................................................................................... 8

FREEDOM OF THOUGHTS AND FREEDOM OF EXPRESSION ............... 9

CONCLUSION...................................................................................................... 14

REFERENCES ...................................................................................................... 15

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 INTRODUCTION

The law of copyright protects the right of one person and restrains another from exercising
corresponding rights. It is a natural extension of the freedom of speech and expression protected
under Article 19(1)(a) of the constitution. If an individual enjoys the freedom of speech and
expression, he must also be guaranteed protection of the intellectual property in his expression.
Absence of such protection would demoralize creative artists and have a chilling effect on
creative activity1. Copyright is not a positive right to do something but confers a negative right
which restricts others from copying the original work of an author. A right for one person is thus
a restriction on another. Copyright stems from two types of roots; the entrepreneurial side linked
to the exclusive right to make copies and reproduce the work of an author, and the other side
being the protection of the author now that his/her work could be copied. Since it was created,
copyright has been directed to the protection of a reproduction of work, exclusively concerned
with the material expression of the ideas on which the work was based. Copyright is not about
ideas, but the way in which they are expressed.

Freedom of expression, on the other hand, is used to indicate not only freedom of verbal speech
but any act of seeking, receiving and imparting information or ideas, regardless of the medium
used. Before the Human Rights Act 1998 (‘HRA’) came into force, the right to freedom of
expression was a negative one: you were free to express yourself, unless the law otherwise
prevented you from doing so.

However, the right to freedom of expression in Article 10 is not absolute. Interferences with the
right to freedom of expression may be permitted if they are prescribed by law, pursue a
legitimate aim and are necessary in a democratic society, that is, if it satisfies a pressing social
need. Although there are a variety of reasons why we may want to limit the scope or
effectiveness of intellectual property rights, the corrosive effect of control on the public domain
does not seem to be one of them. Following the introduction of the HRA it now seems that the
defences of fair dealing and public interest in the Copyright, Designs and Patents Act 1988
(‘CDPA’) must be interpreted in accordance with the principles of human rights.
1
Madhavi Goradia Divan, Facets of Media Law (Eastern Book Company 2010)
4
The Project contains the history of conflict between the two, the natural theory of property on
copyright, copyright vis-à-vis human rights under Indian constitution and some suggestions
regarding these topics in the end.

SCOPE OF THE PROJECT

This project proposes a way to understand the interface between free speech laws on one hand
and copyright and related laws on the other hand. It covers the traces of nature of debates about
the interaction between copyright and free speech, treatment by the courts, specific scenarios
where the issues are particularly acute and current proposals for reform.

RESEARCH QUESTIONS
The research questions are stated below:

1. What is the relationship between copyright and freedom of expression?

2. How the relationship has changed over time?

3. Whether freedom of expression needs to be reconceived in relation to copyright?

LITERATURE REVIEW

The status of freedom of expression as a fundamental right is enshrined in international and

regional human rights instruments as well as national constitutions. The two primary factors
leading to the recent increase in academic interest in the relationship between copyright and
freedom of expression which emerge from the existing literature are the expansion of copyright
law and the emergence of the digital environment. The tension between copyright and freedom
of expression has become increasingly acute due to the recent expansion of copyright law across
several jurisdictions which has not been counterbalanced by a similar expansion of the freedoms
afforded to users. Proposals which have been made for more effectively accommodating freedom
of expression within copyright law include the reinterpretation of existing defences in copyright
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law, the creation of new defences, and the implementation of compensation-based mechanisms.
As freedom of expression is a fundamental right, it has been suggested that in all instances of
conflict between it and copyright, the onus should be placed on the copyright owner to show that
the restrictions imposed by copyright are proportionate and ‘necessary in a democratic society’
within the meaning of art 10(2) of the ECHR (PCR v Dow Jones Telerate; Hyde Park, Residence
v Yelland). Alternatively, new defences could be proposed.

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 THE HISTORY OF CONFLICT

The adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations
General Assembly in 1948 ushered in an international consciousness for the recognition and
respect for human rights. Subsequent thereto, a number of treaties and other instruments, such as
International Covenant on Civil and Political Rights (ICCPR), International Covenant on
Economic, Social and Cultural Rights (CESCR) incorporated its provisions, in some cases
wholesale.2 One common feature of almost all human rights treaties or instruments is the
inclusion of the freedom of, or the right of expression. Since the establishment of the World
Trade Organisation (WTO) and the entering into effect of the Agreement on Trade-Related
Aspects of Intellectual Property Rights3 (TRIPS Agreement), government officials, international
bureaucrats, intergovernmental and nongovernmental organisations, courts and scholars have
focused more attention on the interplay of human rights and intellectual property rights (IPRs).4
One notable tension and conflict within the two sets of rights is between copyright law and the
freedom of expression right. The relationship between copyright law and freedom of expression
has always been controversial, but this tension has deepened in recent years with the emergence
of the digital environment and expansion of copyright law.5 This claim, that there is indeed some
tension between the imperative of copyright law and the core of the right to freedom of
expression has been ignored for a variety of intuitions and reasons.6 The two rights inherit a
built-in legal conflict and that copyright inevitably imposes a restriction on freedom of
expression. The problem is that the natural right of free speech is being depleted by the
legislatively granted right of intellectual property, putting both individual liberty and the public
good at risk.7 The purposeful disregard of this inherent conflict is beginning to erode the right of
public dissemination of information; in favour of private property rights. The danger caused by

2
B Maripe ‘Freezing the press: Freedom of expression and statutory limitations in Botswana’ (2001) 2 African
Human Rights Law Journal 52-75.
3
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr.15, 1994.
4
PK Yu ‘Reconceptualising Intellectual Property Interests in a Human Rights Framework’ (2007) 40 (3) UC Davis
Law Review 1039.
5
YH Lee ‘Copyright and Freedom of Expression: A Literature Review’ CREATe Working Paper (2015) 5.
6
MD Birnhack ‘Acknowledging the conflict between copyright law and freedom of expression under the human
rights act’ (2003) 2.
7
AB Cook ‘Copyright and freedom of expression: saving free speech from advancing legislation’ (2013) 1.
7
this erosion is that it creates private monopolies over information and unconstitutionally 'chills'
expression. This frustrates the democratic, public benefit purposes of the original constitutional
clauses.8 In contrary some scholars argue that because copyright does not protect the ideas that
are embodied in or that may have inspired the work, but protects only the expression of those
ideas, it means copyright is not a constraint on freedom of expression, as it does not prevent a
person from repeating or making use of the ideas or information contained in a protected work,
but merely prevents that person from copying the form of expression used in that work.9

THE NATURAL THEORY OF PROPERTY ON COPYRIGHT

Copyright is a property, but the property is an intangible one. It is the right of the author in the
creation of his intellectual copyright being a property right, can be transferred or assigned to
another person. It can also be inherited during the time it exists. Copyrights are governed and
regulated by the municipal laws of the country. The protection of copyrights is possible, and
limited within the territorial limits of the country, however, international treaties like the Berne
Convention for the Protection of Literary and Artistic Works (1886), the Universal Copyright
Convention (1952) and the Agreement on Trade Related Aspects of IPR (1994) are to ensure
protection of copyrights to nationals of member-countries. Copyright is a bundle of exclusive
right but is not a monopoly right as others are not prevented from making a similar work
independently like other properties. Where two writers write on the same theme both are likely to
be different from each other and both have exclusive right on their intellectual work.

COPYRIGHT VIS-À-VIS HUMAN RIGHTS UNDER INDIAN

CONSTITUTION

Everyone has right to freely participate in the cultural life of the community, to enjoy the arts and
to share the scientific advancement and its benefits. Similarly, everyone has right to protection of
the moral and material interests resulting from any scientific, literary or artistic production of
8
CW Dallon ‘The Problem with Congress and Copyright law: Forgetting the Past and Ignoring the Public Interest’
(2004) 44 SANTA CLARA LAW REVIEW 365.
9
CJ Adduono ‘Rebalancing copyright law’ Unpublished PhD thesis, University of Southampton (2015) 5.
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which the author has. Thus, at the fundamental level of human rights law, a balance is expected
between the interests of the community and the interests of the individual on important
exceptions related to fair use. At the end of the legislated period of protection the copyright
works moved to the public domain in which it may be freely exploited by all. The purpose of the
limited right conferred for a limited time was to allow author to benefit materially for a time in
order to encourage production. Moral rights on the other hand are enduring and designed to
protect the rights of the authors beyond the period of any economic reward particularly right of
attribution and the right of integrity. These rights enable the author to assert and be recognized
for her or his authorship and aim to ensure that the work is not modified or distorted. U.S. and
U.K. laws define copyright as a property right and author's rights as human rights. The key
difference is that a property as defined means something which can be freely traded. In this
context "free trade of copyright" is therefore the rights to be governed by economic power.

FREEDOM OF THOUGHTS AND FREEDOM OF EXPRESSION

Freedom of thought and expression is the World Human Rights Declaration which the U.N.
adopted on December 10, 1948 the best prescribed freedom as human rights so for. Under the
provision of Article 18 Universal Declaration of Human Rights of all human beings have a right
to have freedom of thoughts, conscience and religion. This right includes freedom of change to
his or her own religion or faith and freedom to express his or her own religion or faith in the
form of discussion event, worship or ceremony, alone or in group, publicly or secretly. Article 19
of Universal Declaration of Human Rights express that all human beings have right to enjoy
freedom of opinion and expression. This right includes right to have an opinion without
interference and to pursue, to obtain, to convey information and thoughts regardless of a border.
Freedom of thoughts may be expressed as freedom to choose own views on the world, life and
politics and when this thought is expressed outwardly, it becomes freedom of press, publication,
assembly and association. Further in regard to faith it becomes freedom of religion, in regard to
truth seeking, it becomes freedom of learning and as such freedom of thoughts is theoretical
foundation of all the spiritual and political freedom and basic of basics. Therefore, freedom of
thoughts means freedom of expression, and includes inner thoughts of which nobody is aware of,
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but can be protected. Freedom of thoughts and expression has always been considered to be
superior to other human rights and that is because the expression of an individual is the most
fundamental activity for self--fulfillment. Therefore, the media of expression, the press is an
essential condition of democracy through which people participate in forming a political
decision. Constitution of India adopted the same resolution of the U.N. and put freedom of
expression under Article 19. The Preamble of our Constitution envisages the liberty of thought
and expression. Every citizen of India enjoys full liberty to express himself or their self. The
Preamble of Indian Constitution plays a vital role in determining the purview of fundamental
rights guaranteed to the people which is enshrined in Part III of the Indian Constitution. The
conceptual dimension of fundamental rights or human rights are contained in the Preamble of
Constitution itself. The Constitution of India is not to be construed as a mere law, but as the very
source by which all the laws of the land are derived. It is a living and organic thing and therefore
must be construed liberally. The importance and utility of the Preamble has been pointed in
several decisions of the Apex Court. Though by itself is not enforceable in a Court of Law. The
Preamble of a written Constitution states and abides which the Constitution seeks to establish
and promote and also aids the legal interpretation of the Constitution where the language found
to be ambiguous10. Therefore, aims and objects settled down in Preamble should be considered
the very aims of the Constitution because it is the part of the Constitution. Universal Declaration
of Human Rights also declares that all human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards one another in a
spirit of brotherhood11. There are several rights and freedoms recognized in the form of Human
Rights under Universal Declaration of Human Rights and these rights have also incorporated in
the Constitution of India in toto. The Universal Declaration of Human Rights stoutly prohibits
any sort of discrimination on the ground of sex, colour, race, sex, religion, birth, etc. Freedom of
speech and expression guaranteed under Article 19 of the Indian Constitution is also directly
emanated from the Human Rights Values which are expounded through Universal Declaration of
Human Rights. Furthermore, no distinction shall be made on the basis of the political jurisdiction

10
Re Berubari Union, A 1960 SC 845 (846).
11
Universal Declaration of Human Rights, Article 1.
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or international status of the country territory to which a person belongs, whether it is
independent, trust, and non-self governing or under any other limitation of sovereignty12. The
expanding horizons of Human Rights and Fundamental Rights also covers the very concept of
'Copyright'. The basis of copyright protection is the originality and creativity of a human being.
Originality is the primary requirement for any copyright protection, is largely uncontested in
most legal discourses. Prior to 1911 in England, there was no requirement of originality by the
statute13. Thus, in Walter and Lane14 copyright protection was granted. The decision of Delhi
High Court in Eastern Company Vs. Navin15 created confusion as regards the current position of
the Indian law. In the case the plaintiff had claimed copyright in the head notes, in the section,
manner of arrangement and in the manner of presentation of the judgment in both printing and
electronic form in law journal as the process of compilation required some amount of skill,
labour and expertise. The court first observed that in the case of compilations another person can
also make a similar compilation but can not infringe upon the copyright of the previous compiler
by using the fruit of her labour. She has to go around compiling the work herself. Therefore, here
the court seemed to be affirming its faith in the sweat of brow theory. But the court soon made a
turn around. It is said that the orders and judgment of the court are in the public domain and any
one can publish as they are in the nature of facts, the protection of copyright must be in a
creativity them, original and selection of facts and not in the creative means used to discover the
facts. Here the court itself is not affirmed about the recognition and enforcement of right- to
express of an individual as a fundamental right but in later opinion the right has been recognized
as a fundamental right by the court. The whole debate is centralized around what is the purpose
of copyright protection, which in turn has a bearing upon how much protection should be
afforded. The Advocates of 'Sweat and Brow' obviously come from a Lockean need to reward
labour to promote intellectual property. Those requiring an element of creativity are narrowing
the scope of copyright protection, since the communities interest in accessing these compilations
is greater than the individual interest in monopoly over them. Followers of Locke also support

12
Universal Declaration of Human Rights, Article 2.
13
E.P. Stroke James eft. al., Copinger and Skore James an Copyright at 58.
14
(1900) AC 539.
15
Eastern Company v Navin 92 (2001) DLT 403.
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their rationale in the ultimate community goods only, i.e. only if one provides incentive by
reward with newer ideas in the form of property accrue to human kind. On the other hand, those
requiring a modicum of creativity in the work may have been inspired by the Hegelian theory of
personality of the author as reflected in the work to be the basis of copyright protection. The
copyright is a sort of 'economic right' which has to be recognized and protected in the form of
human rights. The Constitutional context of Human Right discussed by Chief Justice 'Leela
Simon' in the following terms. "Human rights granted in the Constitution of India through its
admission of "Fundamental Rights". Since the Indian Constitution was written after the U.N.
Declaration of Human Rights in 1948. The makers of the Constitution inserted Part III, that
discusses "Fundamental Rights" that every citizen of India has, and these rights as "inviolable in
the sense that no law ordinance, custom, usage or administrative order can abridge or take away
these rights. Copyright law restrict speech. It restricts what writers may write, what painters may
paint, what composers may create. It does not limit itself to slavish copying but prohibits people
from creating entirely new works, so long as those work use even if only in part another's
expression.In India Part III of the Constitution provides Article 19(1)(a), i.e. freedom of speech
and expression which has close concern with the protection of copyright in India. This is a basic
right which is recognized and it imply for individual's (citizen) right to express his/her opinions
freely by writing, by uttering words, by pictures and painting, etc. The citizen of India is free to
express his opinion through the dramatic, musical, literary and artistic works, which is the
subject matter of copyright16, and all such rights have been guaranteed in the term of
fundamental rights are subject to the restriction imposed by clause (2) of Article 19. The
Allahabad High Court in a case17 held that the right of a citizen to exhibit films in picture theatre
or T.V. screen is a part of the fundamental right enshrined in Article 19(1)(a) of the Indian
Constitution which can be abridged or taken away only by invoking the provisions of the
Constitution. The same opinion has reaffirmed by the Supreme Court of India18. Section 13(b) of
the Copyright Act, 1957 covers the cinematography, films and sound recording in the very

16
State of WB v Subodh Gopal AIR 1954 SC 92, 95.
17
Anirudh PS Yadav v Union of India AIR 2000 All 123.
18
Ramesh v Union of India AIR 1988 SC 775.
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subject matter of copyright19, and therefore these copyrights has been treated as a fundamental
right of a citizen. In India Article 19(1)(a) of Constitution should be construed liberally, so that a
citizen can express his views through any media e.g. newspaper, advertisement, magazines,
radio, television, etc., but such freedoms are being checked by the reasonable restrictions
imposed by the Constitution. As no right can be absolute in its nature and it always subject to
respective duty. Therefore, it would be incumbent over all the citizens to develop the scientific
temper, humanism and the spirit of inquiry and reaffirm, and to value and preserve the rich
heritage of Indian Composite culture.

19
State of Bihar v Shailabala Devi AIR 1952 SC 329.
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 CONCLUSION

Protection of Intellectual Property Right in India continues to be strengthened further. The year
1999 witnessed the consideration and passage of major legislation with regard to protection of
Intellectual Property Right in harmony with international practices and in compliance with
India's obligations under TRIPS for instance the Patents (Amendments) Act, 1999, that provides
or establishment of a mail box system to file patents and accords exclusive marketing rights for
certain time period. The Trade Marks Bill, 1999 which repealed and replaced the Trade and
Merchandize Marks Act, 1958, The Copyright (Amendment) Act, 1999. A Sui-generis
legislation for protection of geographical indication called the geographical indications of Goods
(Registration and Protection) Act, 1999 by second amendment of Patents Act confirming TRIPS.
In addition to the above legislature changes, the Government of India has taken several measures
to streamline and strengthen the Intellectual Property Rights administration system in the
country. The restrictions imposed on the freedom of speech provided under Indian Constitution
do not contain any specific provision related to copyright. Neither copyright can supposed to be
an antithesis of the very concept of freedom of speech in the light of Constitutional provisions.
Since copyright explicitly protects the forms of expression and does not provide any protection
to the ideas expressed. Therefore, copyright laws are not restrictive in nature over freedom of
speech. The ultimate aim of copyright protection is to protect the "intellectual endeavors" made
by the real authors of the work and to limit the fruits and benefits of that original work only to
the owner of that creation. Hence, such protection can never come in the form of an impediment,
so far as question of realization of right to freedom of speech and expression is concerned.
Hence, it is submitted that as the copyright does not restrict the right to speech and expression
guaranteed under Article 19 of the Constitution therefore it may be treated as right to speech and
expression. Therefore, it acquires the status of human rights.

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 REFERENCES

BOOKS

BL Wadehra, Law relating to Intellectual Property (5th edn, Universal Law Publishing 2016).

Avatar Singh, Intellectual Property Law (1st edn, Eastern Book Company 2020).

JOURNALS

B Maripe ‘Freezing the press: Freedom of expression and statutory limitations in Botswana’
(2001) 2 African Human Rights Law Journal 52-75.

PK Yu ‘Reconceptualising Intellectual Property Interests in a Human Rights Framework’ (2007)

40 (3) UC Davis Law Review 1039.

YH Lee ‘Copyright and Freedom of Expression: A Literature Review’ CREATe Working Paper
(2015) 5.

MD Birnhack ‘Acknowledging the conflict between copyright law and freedom of expression
under the human rights act’ (2003) 2.

AB Cook ‘Copyright and freedom of expression: saving free speech from advancing legislation’
(2013) 1.

CW Dallon ‘The Problem with Congress and Copyright law: Forgetting the Past and Ignoring the
Public Interest’ (2004) 44 SANTA CLARA LAW REVIEW 365.

CJ Adduono ‘Rebalancing copyright law’ Unpublished PhD thesis, University of Southampton

(2015).

15