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Published : October 14, 2010 | Author : ayusmanmahanta
Category : Intellectual Property | Total Views : 7840 | Unrated

Ayusman Mahanta.I am a 2nd year LL.B. Student. Contact me at ayusmanmahanta@legalserviceindia.com.

 Copy right : Seductive mirage

Copy Right in real sense is not a property, because it conflicts with some people's traditional sense of what property is. They live in the physical world and the non-physical is counter to the intuitions that life engenders. Disagreements about their use are likely to be serious because resource-use matters to people. They are particularly serious where the objects in question are both scarce and necessary. Some have suggested that property relations only make sense under conditions of scarcity[1].

When a watch is stolen, the owner loses the watch. But when you copy a copyrighted work, the original owner still has their copy. Nothing physical is stolen, so it seems very different.

Yet IP is becoming vastly important in the modern world, and the foundation of a growing pie of the world's economy. This growth has led for all sorts of diverse movements. Some feel we should just abandon most concepts of IP. Some want to strengthen them to deal with the disrespect they receive. Some wish to try technological approaches of various sorts.[2]
Intellectual property is the "real" property and physical property the illusion.

Most Indians today are familiar with the once alien and western terminology of intellectual property rights. For the common man the moment of realizations was, when he was told, while buying a personal computer that he could be at a real risk of being imprisoned and paying a hefty fine if caught using pirated software. For a large number of computer literate population in India, this has not been a pleasant news. The use of pirated software in developed countries is a crime, which attracts severe punishment. However, until very recently, the average techno Indian has used pirated software as a matter of right and was oblivious to the seriousness of his piratical ways. To a large section of the population using pirated software is just about as natural as having a computer, perhaps even more so. Most people find it unacceptable to pay more than the amount for say software that must necessarily be a part of the computer and not feel a sense of guilt or moral turpitude over the act. After all, it is not equivalent to theft.

In India, there has been a copyright law in place since 1911, however it is only in the years from 1992 that there has been an active demand to enforce IPR more stringently.[3] The irony of the current intellectual property (IP) regime is that unlike globalization, privatization, and liberalization, the construction of highways, dams etc., it did not set in slowly or steadily for India to get used to the idea. It has been thrust upon with uncompromising severity to implement, without questioning.

Copyright laws, as they stand in India today, lean towards the first world partiality for protecting private interest over the promotion of societal welfare.[4] This partiality cannot be reconciled with the constitutional position in India, because information in this society has attained the status of a primary good.

Rawls has defined primary goods as, ‘things that every rational man is presumed to want. These goods normally have a use whatever a person’s rational plan of life’. Rawls further classifies primary goods into social and natural primary goods. Social primary goods are, ‘rights, liberties, powers, privileges, wealth, income, and opportunities whereas health and vigour, intelligence and imagination are natural primary goods.’[5]

One can ascertain from Rawls’ classification that natural primary goods may be defined as the raw material, the inherent capacities with which a person is born. They are not a result of external factors, though they might be either enhanced or diminished by the operation of external influences, such as a person’s environment, upbringing, and societal influences. Social primary goods on the other hand are attributes that every person possesses by virtue of their existence in a civil society. Apparently, information is a social primary good that is today just as essential to the welfare and development of a person as rights, liberties, powers and opportunities because in ‘a social structure in which citizens have equal rights to basic liberties, citizens requires equal access to information so that they can strategies and make correct decisions’.[6]

The judgment of the US Supreme Court in the case of Wheaton v Peters[7] also the different nature of literary property and reiterates the view expressed by Justice Yates, that ‘property is founded on occupancy and abstract objects cannot be occupied’. The court stated, ‘Feudal principles apply to real estate. The notion of personal property of the common law, which is based on natural law, depends materially on possession, and that of an adverse character, exclusive in nature and pretensions. Throw it out for public use, and how can you limit or define that use? How can you attach possession to it at all … light and air, and a part of the great ocean, may be claimed and held, as long as necessary for the occupant; but abandon the immediate occupation, and the exclusive power and the exclusive possession are gone together. These and similar reasons contribute to show the source of literary property everywhere.’

The opinion may be dissenting; Justice Yates yet challenges, at a very fundamental level, the existence of property rights in intangible objects.

Copy Right and The Constitution of India
Article 38 of the Constitution of India[8] enjoins the State to strive to promote the welfare of the people by securing and protecting a social order in which justice-social, economic, and political-shall inform all the institutions of national life striving to minimize inequalities in income and endeavor to minimize inequalities in status, facilities, and opportunities.

Copyright creates rights over information. These proprietary rights restrict the free flow of information. This would in effect create an inequality of a new kind and split the population into two groups, i.e. the information-rich versus the information-poor.[9] In 21st century, such discrimination would create inequality similar to equality existed in days of land owners and peasants. The copyright regime in its current form would create disparities which are in essence old forms of inequalities patterned around the ownership of productive forces.[10] Sub-clause (b) of Article 39 of the Constitution of India provides that ‘the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good. Sub-clause (c) of Article 39 supplements this by providing that the State must ensure that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. The Supreme Court of India has held that the expression ‘material resources’ used in sub-clause (b) of Article 39 is wide enough to include not only natural or physical resources but also movable and immovable property and that the term ‘economic system’ in sub-clause (c) of Article 39 is wide enough to include professional and other services.

The direction in sub-clause (b) of Article 39 to serve the common good must be achieved by any law that is enacted or already in force. Creative work must be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and other arts. There can be no equality of opportunity while information is concentrated in the hands of a few and its availability to the public at large is dependent on the terms set by this class of information rich. Merely granting rights to a person does not absolve the State of its responsibility of providing the infrastructure to its citizens to compete in a free market. Rights and liberties have no value if there are no means to achieve them. Caging information in the rigours of the present IP regime would ensure that this primary good turns into a tool for perpetrating economic and social inequality rather than furthering social and economic justice.[11]

Piracy is not merely a crime like other crimes, it is a crime created from vacuum with out any basis. It only creates scarcity out of no where that was never scarce. It is only economic exploitation which does not gel to Indian economy and a powerful history of arts on which we stand. Information today has become so essential for the development of an individual in any society that the State can no longer allow this valuable resource to be concentrated in the hands of few. Lastly, though the western copyright model has been in existence for some centuries, it must be accepted that this model is based on a fallacious importation of the rules governing tangible property to govern intangible property and non-western developing nations like India would do well to construct copyright models that do not stunt the growth of their skilled work force, do not impair their flourishing economies and that do not flout the Constitutional mandate of a Welfare State.
[1] Hume [1739] 1888, pp. 484-98
[2] http://www.templetons.com/brad/iprop.html
[3] Ministry of Human Resource Development,Study on Copyright Piracy in India, http://www.education.nic.in/ htmlweb/cr_piracy_study/cpr.htm#content.
[4] India has more than complied with the mandate of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS). A plain reading of the objectives of the TRIPS Agreement will highlight the marked difference in the object sought to be achieved by the TRIPS Agreement than those sought to be achieved by national copyright statutes. The Preamble of the TRIPS Agreement provides: ‘Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade’.
[5] Rawls John, A Theory of Justice.
[6] Drahos Peter, The Philosophy of Intellectual Property Rights
[7] 33 U.S. (Pet. 8) 591 (1834). The case upheld the power of Congress to make a grant of copyright protection subject to conditions and rejected the doctrine of a common law copyright.
[8] Article 38 of the Constitution of India provides: ‘(1)The State shall strive to promote the welfare of the people by securing and protecting a social order in which justice-social, economic, and political-shall, inform all the institutions of national life; (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.’
[9] Article 39(c) of the Constitution of India states that: ‘The State shall, in particular, direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.’
[10] Madhusudhan Singh v Union of India AIR 1984 SC 372, para 21
[11] Ankita Singhania , Copyright Laws in India and Maintenance of a Welfare State Government Law College, Mumbai, Journal of Intellectual Property Rights Vol 11, January 2006, pp 43-52

Authors contact info - articles The  author can be reached at: ayusmanmahanta@legalserviceindia.com

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