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Introduction Ever since its inception as a formalized institution in law, intellectual property and especially the law relating to copyright1 has been subject to the constant tension between protecting the interests of the 'creator' of the work and the public interests in the such works, best illustrated by the concept of "public domain" in intellectual property parlance.2 It has always been the endeavour of law makers (inclusive of the judiciary3) across the globe to strike the right balance between these conflicting interests. An important determinant of such equilibrium is the term of the copyright, which has always been a contentious issue.4 The Congress in the United States and the Parliament in India have put to use their wisdom and on atleast one occasion exercised their power to extend the term of the copyright.5 This went relatively unnoticed in India but created a public furore in the United States. In Eldred v. Ashcroft6, the United States Supreme Court and the lower courts in certain other cases upheld the validity of the Copyright Term Extension Act of 1998. These decisions have brought to fore the need to re-examine the extent to which copyright is a constitutionally sanctified regime in the United States. If the debate generated around the constitutionality of the term extension in the United States has been very instructive as well as interesting, the absolute refusal of the Indian legal fraternity to even respond, if not protest, on such an extension is equally insightful. It raises very crucial questions on the relatively unexplored linkages between copyright laws and the Constitution in the Indian context. This article is an attempt to understand and analyse the situation of copyright term in these two different constitutional contexts. It is generally accepted that since the inception of the US Constitution, intellectual property has always been treated as constitutional property.7 However, this is not so in India. It is this difference and reasons thereof that have been focus of this article. This article is divided into two parts. The first part details the law relating to the copyright term extension and the Constitution in the United States. In this part, the author provided an originalist conception of the copyright clause and has analysed how the same has been constructed by the Court in Eldred case. An attempt to critique the decision has also been made. In the next part, the author has ventured into the intersections of copyright law and the Indian Constitution, by first tracing the power to create copyrights and then trying to justify copyright as an essentially constitutional phenomenon. This is followed by the conclusion. I. The Copyright Clause in the U.S. Constitution and the Power of the Congress to Extend the Term of the Copyright The Congress in the United States is vested with the power "to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.8 This clause has given rise to certain very interesting questions does the clause mean that copyright can be given only to promote progress of science and useful arts? What is the 'limited times'9 contemplated by the constitution drafters? What is the standard of judicial scrutiny that must apply to legislations which are made in furtherance of power so granted? These questions take us to the core of the debate between the groups of scholars who have been classified as the IP Restrictors10 and the others who argue for an extended term of protection. A. The Originalist Understanding of the Copyright Clause In the United States, copyright laws were already in existence by 178311 and realising the need to harmonize them, the drafters included the Copyright Clause in the Constitution in 1787. The clause was unanimously accepted in the Constitutional Convention without any debate and therefore relatively little is known about the drafting history of the clause.12 On August 18, 1787, James Madison proposed that the Constitution grants the legislature power "[t]o secure to literary authors their copyrights for a limited time." On the same day, Charles Pinckney also proposed to include the power "[t]o secure to Authors exclusive rights for a certain time."13 These proposals were initially referred to the Committee of Detail. Later, on August 31, 1787, the Committee of Eleven, which included Madison, was appointed to consider convention items postponed or not yet acted on. The Committee of Eleven, on September 5, 1787, reported the language of the Copyright Clause now included in the Constitution, and the language was agreed to unanimously. Though the intent of the framers is not clear from the Constitutional Convention Debates, Madison did reveal his understanding in the Federalist No. 43, published on January 23, 1788, where he wrote: "The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain, to be a right at common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals."14 Jefferson, on the other hand, did not support the clause, and was quite apprehensive about the creation of monopolies and he unambiguously made it clear that he did not want the Congress to enjoy the power to create limited monopolies.15 We will now explore how the IP Restrictors constructed the originalist argument16. It has been opined that these scholars used the framers' view at a "high level of abstraction" and that this was necessitated because of the thinness of the existing historical record supporting their view.17 According to Benkler, the word "progress" in the preambular language of the copyright clause delimits the power of the Congress and it must be given its due significance. He argues that the framers did not cherish private rights in information and knowledge.18 A writer suggests that it was plausible that the framers envisioned 'progress' to mean 'spread of knowledge and information' and thereby the interpretation must be informed by this import of the phrase.19 Another set of authors put forth the view that the framers' notion of the Copyright clause was also influenced by the English experience in relation to the Statute of Monopolies, enacted in 1623 and that the copyright clause was a reaction to the misuse of copyright and patents in England.20 Another tool used to place limitations upon the power of the Congress is the interpretation placed on the word 'limited', to mean that the copyright cannot be perpetual21 and that it was the intention of the drafters to ensure that after the limited time was over, the valuable writings and discoveries would come into the public domain.22 B. The Copyright Term Extension Act, 199823 The Copyright Act, 1909 gave the authors an exclusive right for twenty eight years, renewable once.24 In 1976, the law was amended to extend this time period. This amended law provided that the basic term for copyright protections, for works created on or after January 1, 1978, was the life of the author plus fifty years.25 The CTEA has four basic provisions that amend various sections of the 1976 Act. The first deals with the extension of the term of copyrights, the second alters transfer rights, the third creates a new infringement exception and the fourth addresses division of fees.26 On the issue of term extension, simply put, the Act adds an additional twenty years of protection, both prospectively and retrospectively for works already protected by copyright law.27 The CTEA was widely supported in the entertainment industry. Support came from Disney28, the Gershwin family, Bob Dylan and Quincy Jones among others.29 The proponents of the Act generally offer three justifications in support of the legislation. Firstly, that the enactment is needed for United States to remain competitive in the global intellectual property market.30 They argue that longer the protection, greater will the trade balance tilt in favour of United States. But this has been rebutted by showing that the balance of trade actually depends on the demand rather on the term of protection.31 The second justification often provided is that the seventy year term is required for harmonisation with the laws in the European Community.32 The argument being that, in the absence of the extension, American authors would be discriminated against because they enjoy a protection of twenty years less than their European counterparts. The opponents of the extension aver that the complete harmonisation with European laws is impossible, contending that there would still be notable differences in relation to anonymous and pseudonymous works and also in relation to works for hire.33 They further argue that the copyright philosophy differs substantially in both the continents, in that Europe follows the author's right approach, wherein such right may exist in perpetuity compared to the limited moral rights approach in the U.S.34 The next argument citing longevity as a reason for extension is that, firstly authors are living longer and, thus, they feel a need for longer protection and, secondly that, due to the recent developments in technology, the commercial longevity of works is much longer.35 But what must be noted here is that, this may result in actually protecting the works for a longer time than necessary and the benefit would go to the author's descendants.36 The opposition to the CTEA seems to be well-founded in law and reason. Firstly, they refute the argument that the CTEA advances the interests of the authors and artists, by protecting their moral rights. It is pointed out that the actual beneficiaries of the law would be publishers and the studios that have the copyright and that the amendment does not even talk about the rights of the author and the artists.37 Moreover, even if it were the interests of the author, copyright law could do it only prospectively but retrospective extension is a windfall.38 The same argument applies to the CTEA providing an incentive for authors to produce more works. There is no need for such an incentive for already existing works. The other argument is that there are doctrines such as 'fair use' and 'idea expression dichotomy' which make the extension constitutional. Though, this may be the case under general copyright law, where these are seen as protection for free speech guaranteed under the First Amendment39, they are of no use to save the CTEA from being declared unconstitutional. It has been rightly pointed out that, when a copyright expires, both the ideas and expressions contained therewith become a part of the public domain. Thereafter, a person is able to publish and disseminate the work, without taking any permission from the copyright owner. Extension of copyright takes away this right to free speech and, therefore, is unconstitutional40. The fact that the idea within the work was copyrighted or not, does not alter this deprivation of speech; nor does the fact that there was a fair use exception. C. The Supreme Court on Copyright Term Extension: Eldred v. Ashcroft41 In Eldred case, petitioner Eric Eldred, a publisher of HTML books and other individuals and companies who use public domain materials argued that the CTEA unconstitutionally blocked a new crop of material from entering the public domain.42 The petitioners' argument was that the copyright clause was to be read as an enumerated power subject to limits and that these limits were to be drawn from the phrases "limited times" and "progress of science" forming a part of the preamble in the Copyright clause.43 The Court by a majority of 7-2 rejected the claim of the petitioners that copyright term extension was unconstitutional and also the claim for a heightened review. The majority judgment was delivered by Justice Ginsburg and she was joined by Chief Justice Rehnquist, Justice Scalia, Justice Sandra O'Connor, Justice Kennedy, Justice Thomas and Justice Souter. The dissenting opinions were delivered by Justice Breyer and Justice Stevens. The majority judgment called for deferential review of enactments under the copyright clause and stressed the role of the Congress in determining matters such as copyright term extension. In Justice Ginsburg's view "The CTEA reflects judgments of a kind Congress typically makes, judgments that we cannot dismiss as outside the Legislature's domain... It is generally for Congress, not the Courts, to decide how best to pursue the Copyright Clause's objectives."44 The majority opinion did not discuss the public domain but did adopt the economic-utilitarian view; for example it stressed that copyright law "celebrates the profit motive" of the authors.45 In the Eldred case, Court also rejected the Petitioner's claim on the limitations inherent in the text.46 The Court refused to subject the Congress' power to the preambular prescription of "limited times". It reasoned that, all that the phrase indicated today, as it had even during the framing of the Constitution, was that the right had to be "confined within certain bounds" in relation to the duration of the right.47 The Court observed that it was for the Congress to decide how best to pursue the objectives of the Copyright Clause and said that the policy considerations in favour of the CTEA, coupled with the legislative practice in this regard, supported their conclusion.48 Justice Stevens, in his dissenting opinion, seemed to have bought the argument of the Petitioners in relation to the constitutional prohibition of perpetual copyright on an instalment plan. He observed that "a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights" and would prevent the Congress from "extending existing monopoly privileges ad infinitum under the majority's analysis".49 Both the dissenting judges, Justice Breyer50 and Justice Stevens51, rejected the majority finding in relation to the originalist construct of the copyright clause and their opinions embody the historical approach of the IP Restrictors.52 Finding the CTEA to be unconstitutional, Justice Stevens opined that retrospective extensions of copyright would result in "gratuitous transfer of wealth from the public to the authors, publishers and their successors in interest"53. On the issue of heightened judicial review, Justice Ginsburg rejected the Petitioner's claim and found that the 'rational basis review' was appropriate and that the CTEA passed this standard.54 What was also interesting that the majority opinion did not address the concerns of the Petitioners as to how the D.C. Circuit Court had misinterpreted the decision in Harper and Row v. Nation Enterprises55, as regards the law it laid down in relation the immunity of copyright laws from First Amendment challenges.56 All that Justice Ginsburg did was to observe that the D.C. Court "spoke too broadly".57 Moreover, the majority opinion tried to justify the CTEA by pointing out to fair use provisions and recalling that only expressions and not ideas were protected by copyright law.58 This reasoning failed in the light of the arguments advanced by Prof. Chemerinsky in relation to the non-applicability of these doctrines to works which would have fallen in public domain but for the CTEA.59 D. Post Eldred Champion of the 'open source movement' and leading IP Restrictor Lawrence Lessig, undeterred by the failure in Eldred's case, argued two more briefs challenging the provisions of the CTEA. In Golan v. Ashcroft60, the Petitioner was a conductor who put on free symphonic concerts to promote classical music. Constrained by a very limited budget and the prohibitive costs of renting sheet music for copyrighted works, Golan depended on public domain works for his orchestras. The term extension in CTEA had prevented him from selecting certain popular and important 20th century compositions for performance in public. Contending that the twenty-year extension was overly burdensome on public domain beneficiaries, Lessig wanted the CTEA to be struck down on the basis that it no longer gave protection for a 'limited' period. The Court rejected this argument on the basis that Eldred had already settled the matter in this regard and it had actually foreclosed such a claim. In Kahle v. Ashcroft61, the Petitioner was an Internet Archive whose principal activity was to build an internet library for free and permanent access to researchers, historians and scholars to works that exist in digital format. They also wanted to include 'orphan works' (works in which copyright still subsists, but which are out of print and, therefore, not available to public) in their digital library. Lessig argued that the law had created orphan works and the CTEA created an unconditional copyright regime, regardless of the copyright holder's preferences. He argued that such unconditional copyright was violative of the First Amendment and in excess of the power granted under the Copyright Clause. The Court rejected these arguments and found that the transition from a conditional to unconditional regime of copyright was a matter of mere procedure and did not have constitutional ramifications. The 'limited times' argument was rejected for the same reason as in Golan.62 In another case, Lucks Music Library v. Alberto R Gonzales63, a District Court upheld the constitutionality of § 514 of the Uruguay Round Agreements Act, 1994, which granted an extension to the copyright in the works of foreign authors, which would have otherwise fallen into the public domain. The Court seemed to follow the same argument as that of the Court in Golan's case. II. Copyright Duration and the Indian Constitution A. Copyright Law: The Prerogative of the Parliament The Indian Constitution does not contain a Copyright Clause, in the sense that there is no separate clause that confers power on the legislature to create such rights. In India, Article 245 and Article 246 read with the respective entries in the Seventh Schedule of the Constitution, enable the respective legislature to pass laws relating a particular subject.64 The entries in the three lists of the Seventh Schedule demarcate the fields in which the Parliament or State legislature, as the case may be, is competent to enact laws. Through Entry 49 of the Union List in the Seventh Schedule, the Parliament has the prerogative to make laws in relation to "Patents, inventions and designs; copyright; trade marks and merchandise marks".65 This power to legislate is, of course, "subject to the provisions of this Constitution"66. That is, the power so granted is not absolute and is definitely subject to Part III67 of the Constitution. Having shown that the Parliament is competent to make laws relating to copyright, now examine whether copyright could be placed within Part III of the Constitution. B. Freedom of Speech & Expression and Copyright Article 19(1)(a) guarantees to every citizen of India, the right to freedom of speech and expression. The grounds for 'restricting' (please note it is not extinguishment or complete denial) this right are enlisted in Article 19(2) and the language is unambiguous about the fact that only reasonable restrictions are permissible.68 Unlike its American counterpart, this right is guaranteed to citizens only; therefore, even if we were to place copyright within Article 19, it would not be of any help to aliens if they are to claim copyright as a constitutional right. On first look, it seems as if copyright is repugnant to the freedom of speech and expression, but it is not so. Firstly, the very inclusion of Entry 49 gives some guidance as to the construction of Article 19(1)(a). It is a principal rule of interpretation of the Constitution that its provisions are to be harmoniously construed. Therefore, it cannot be the case that Article 19 (1) (a) prohibits the existence of copyrights. Secondly, [for one's right to speech and expression to be effective, one must also be guaranteed the right to protect it against unfair use, piracy and illegal exploitation]. This is exactly what copyright law does. It gives one the exclusive right to exploit the work for a 'limited' period.69 Thirdly, copyright law effectuates such a right guaranteed by providing an incentive for citizens to be more creative.70 Moreover, it does secure a citizen's intellectual creation as his/her property by granting an exclusive right for 'limited' times. Additionally, the doctrines of fair use and idea expression dichotomy ensure that there is sufficient room for criticism and review. So it is urged that 'freedom of speech and expression' be interpreted so as to include copyright for a limited term. Then comes the question, if copyright could be legitimately placed within the ambit of Article 19(1)(a), then why not interpret it in such a fashion as to ensure perpetual copyright. It is submitted that this cannot be so. Firstly, if it were so, then it would adversely affect another's right to free speech and expression. The work will cease to come into the public domain and effectively freeze the public domain. Secondly, such an interpretation would be inconsistent with the jurisprudence evolved by the Apex Court in relation to the 'right to information'.71 Thirdly, it will lead to an extinguishment (and not mere restriction) of another's right to speech and expression. Moreover, such an interpretation will not be in consonance with the provisions of Part IV of the Constitution, especially the goals envisaged in Articles 39(b) and (c)72. For the aforesaid reason, there cannot be a perpetual copyright regime in India. These arguments could also be used if it is found that the term is too long. But then it remains to be seen whether the Supreme Court will judicially review the length of the term or like its American counterpart, exercise deferential review and leave the extent of the term to be determined according to the wisdom of the legislature. Conclusion The differences in the constitutional perspectives of copyright law in the two jurisdictions have been adequately demonstrated. We have also seen the debate between the IP Restrictors and those who support the Eldred case approach. The author submits that the arguments of the IP Restrictors merit serious consideration and the deferential review stance taken by the U.S. Supreme Court needs reassessment. There are indeed lessons that could be learnt from the American experience. Firstly, there is need for a more stringent review of copyright laws and carefully assessing its impact on the public domain and the freedom of speech and expression. In this regard, it is disheartening to note the indifference of the academia to raise such important issues, considering that the author found no academic writing in relation to the present discussion in India. The more important lesson to be learnt is how a group of scholars constitutionalized their vision about the society and economy, which is doubtful, has failed to happen in India. We have to start viewing the Constitution more as a social document capable of fulfilling the aspirations and determining the destinies of the Indian people. Given below are views of Justice (then Professor) Stephen Breyer writing in opposition to extension of copyright term in 1976, which unfortunately could not find support from the majority in Eldred: "This continual expansion is not surprising. Holders of copyrights about to expire have a financial interest in urging extension. Authors and publishers can lead a legislature to focus on the production and 'moral' arguments for protection, while no single interest group is sufficiently affected to focus legislative attention upon the problems of dissemination. An examination of the question, however, suggests that, even if the moral argument is given its due, which is little, extension is not justified."
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Manupatra
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