Calm Down, Mr Bachchan! Your Case Against Copyright Law is Weak

Dear Mr Amitabh Bachchan, you need to take a deep breath and take another look at our copyright laws.

Representative image used to show stealing of intellectual property.

(Photo: iStock)

Too caught up to read the story? Listen to it instead.

In a rather rambling blog post on Monday, Mr Amitabh Bachchan, Bollywood’s Angry-Young-Man-turned-angry-preacher-from-the-social-media-pulpit, let loose a diatribe against the seeming injustice done to him by the Indian Copyright Act – specifically, the concept of copyright terms – as per which he (and his heirs) would lose rights to copyright in his father, Harivansh Rai Bachchan’s works, by the year 2063 (the copyright term for literary works in India is 60 years from the death of their author).

Amitabh Bachchan.(Photo Courtesy: Twitter)

While the post is somewhat incomprehensible (albeit entertaining for its use of inflection), the crux of Mr Bachchan’s argument can be broken down into three points:

1. Copyright is individual property, and should rightfully belong to the designated heirs of an author, similar to physical property.
2. Copyright vests naturally in all creations and the Copyright Act, by virtue of establishing rights, limits this natural right.
3. Allowing the use of a creative work without permission (ie, putting it in the public domain) diminishes the worth of the work.

In this post, I would like to – to put it in Mr Bachchan’s own words – “OPPOSE, DISAGREE, LAMENT, DISPUTE, BE IN VARIANCE OF, IN VEHEMENT LOUD SCREAMS OF VOICE ... EVER” (sic), to/with his arguments.

The False Equivalence Between “Real” & “Intellectual” Property

Property rights generally denote the allocation of a bundle of rights in a manner so as to make the most socially efficient use of that property. In the case of real (physical) property, the use of a physical good by one person diminishes the quantity of that good available to someone else, and therefore, the most (economically) efficient allocation of the good is by limiting its availability and use.

On the other hand, ‘intellectual goods’ are ‘non-rivalrous’ – they are not limited in quantity and can be freely reproduced and used by anyone without losing their inherent value. Another distinguishing aspect between intellectual and real goods is the relative difficulty in excluding the use of the former as compared to the latter.

While (most) real goods can be excluded from others by physically preventing them from using it, intellectual goods can be replicated and used with much more ease. The difficulty in exclusion makes such creative goods easier to copy and use.

This, in turn, leads to the problem of free-loading of resources – the use of a resource for self gain, while diminishing the value of that good for others.

Copyright piracy, for example, is often used as an example of the use of creative goods without contributing to the ecosystem that generates such goods.

‘Artificial Scarcity’

Most modern legal systems assume that creators do not have any incentive to create new goods when they get no direct benefit from its creation. Therefore, a common rationale for intellectual property rights is to prevent freeloading by allocating property rights through legal fictions, in order to incentivise the creation of such goods by securing economic incentives for such works.

This system of exclusion creates artificial scarcity by excluding those uses of such works which do not diminish its value. Moreover, the primary rationale for the law remains that of increasing the availability of scientific and cultural goods in society, not merely of securing the rights of creators or authors.

For these reasons, the law has developed exceptions and limitations to copyrights, such as fair dealing or fair use, which enables important objectives like access to education, or critique and parody, and whose importance was upheld recently by the Delhi High Court in the DU Photocopy Judgement.

To conflate two ideas of real and intellectual ‘property’, as Mr Bachchan has done, is therefore, disingenuous and ignores the significant differences between the different objectives for their protection.

Evolution of IP Laws

Similarly, Mr Bachchan assumes that the rights granted to authors are ‘natural rights’. As per this argument, the limitation of the natural rights of authors like Shakespeare or Rabindranath Tagore are frauds played on authors when they were not aware of any such limitations in their natural rights, and if they were aware of such limitations, they may not have consented to the use of their creations.

However, this argument is ontologically incorrect, and, in my opinion philosophically flawed (counterview here). In fact, the history of copyright law, and its subsequent evolution, shows that copyright is a relatively recent concept.

Copyright was an extremely limited privilege granted to authors – the first such statute enacted in India only granted copyright for the author’s life plus seven years, and in no case exceeding a total of 42 years.

Further development through the ages, and international harmonisation of copyright regimes has only extended such terms (the Berne convention, for example, mandates a minimum term of 50 years).

Therefore, whether for Tagore or Harivansh Rai Bachchan, copyright terms for their works have only increased – which also indicates that longer copyright terms may not necessarily provide greater incentives for creative or scientific production.

In Defence of the Public Domain and Narrow Copyright Terms

Copyright terms were seen as necessary in order to strike a balance between creating adequate incentives for the production of intellectual goods, and contributing to a robust public domain. The public domain plays a crucial role in society by allowing the use of cultural and scientific works without restriction.

The removal of barriers to the access of cultural and scientific intellectual goods enriches society in a myriad of ways – greater access to cultural and scientific goods allows the creation of new knowledge which builds on existing information; it allows incremental innovation from such goods; increases an individual’s attainment of happiness and a good life, and decreases the costs of obtaining information by making such ‘borrowing’ permission-less.

In many cases, longer copyright terms directly correlate to the reduced utility of the information once in the public domain. Copyright terms must therefore, be set in a manner where the eventual lapse of intellectual goods into the public domain can continue to be relevant and valuable – it is the only way to ensure the progress of art and science.

Mr Bachchan’s view of the public domain, as something which ‘treads, scratches and mutilates’, is needlessly pessimistic. The reuse, remix and reworking of Harivansh Rai Bachchan’s works can be transformative and innovative; it can provide the inspiration for greater feats of creativity; and most importantly, it can allow the general public to access such great poetry, which, surely, must have been the intention of Harivansh Rai Bachchan himself. In his own words –

“Kabhi phulo ki tarah mat jina, jis din khiloge tutkar bikhar jaoge, jeena hai toh pattar ki tarah jio, ek din taraashe gaye to, bhagwan ban jaoge.”

The couplet means – ‘Don’t live like a flower, which will crumble after blossoming. If you live, live like a stone – once carved, you become a god.’ It’s an apt metaphor for allowing his poems to be free from the shackles of copyright.

(A longer version of this article was first published on Spicy IP and has been republished with the author’s permission. The author is a lawyer and tinkers in technology and policy. He tweets @divij_joshi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)