Lokesh Vyas writes in with a post pondering the existence of a ‘right to research’ (r2r) in India. The query around r2r in general is not a new one – see for example Appadurai’s widely cited 2006 paper by the same name, or SPARC’s Coalition formed back in 2009. Lokesh attempts to find grounding for it in Indian law through the current post. He is an LLM Candidate (IP and Technology) at American University Washington College of Law (AUWCL), InfoJustice Fellow at PIJIP, and Arodhum Scholar, 2021. He graduated from the Institute of Law Nirma University, Ahmedabad in 2021
Right to Research (“R2R”): An Independent Right with an Imposed Dependence in Copyright Law?
Lokesh Vyas
Several academics and activists in some other parts of the world are discussing a ‘Right to Research’ (“R2R”) (American University’s PIJIP – my current institution is doing one such plethoric project in the light of international copyright laws) which is indeed needed to combat covid-created calamities (e.g. read Prof Sean Flynn’s paper). However, I wonder whether India is witnessing similar discussions. Undoubtedly, issues around research (including access, inequitable participation, excessive pricing) are not novel in India. In recent times, we’ve seen it come up during the DU Photocopy battle as well as in the Sci-Hub controversy (read Nikhil’s three-part post (Part I, Part II, Part III). However, a full-fledged discussion around whether a ‘Right to Research’ exists in India, whether it be internal, or external to Copyright laws seems largely absent.
If we imagine what an R2R could be, it need not necessarily stem from copyright law, nor does it appear to be only limited to people’s right to access research material. Scope-wise, it’s not necessarily limited to researchers, even if they are the ones who are obviously affected by it. Rather, I will attempt to frame it as a constitutional right with a strong footing in international human rights law. I argue that R2R can have four possible premises – 1.) a right under the constitution 2.) a user right under copyright law. 3.) privilege under copyright law. 4.) an exception under copyright law. I specifically support the first (constitutional right) and the third (privilege under copyright, in terms of Hohfeld taxonomy) premises. (Per Hohfeld Taxonomy, if ‘right’ to research is regarded as a privilege, no duty will lie in the users and no-right will exist in copyright holders.)
I divide the post into two main parts – the first part argues that ‘research’, although provided for in Indian Copyright law, runs on the premise of a baseless assumption of access by users, making it an incomplete and impractical user right. The second part highlights the constitutional and international law framework of R2R and attempts to establish its existence outside copyright law.
(Note: 1. This post is limited to ‘research’, but it may be an interesting thought exercise to consider other fair dealing activities as a privilege. 2. Since the topic requires a full-fledged research paper with detailed arguments, the post only touches upon the constitutional and international law aspects to show that there is a strong logico-legal case worth investigating, for the R2R in India.)
India’s Presumed-Access Research Right!
Section 14 of Indian Copyright law provides an exhaustive list of rights owned by the copyright holders, with a disclaimer that they are “subject to the provisions of this Act”. One relevant provision in this regard is Section 52 which reads ‘Certain acts not to be an infringement of copyright’. Specifically, Section 52(1)(a)(i) that reads “a fair dealing with a literary, .. for the purposes of— 1[(i) Private use including research”, is relevant for researchers. A conjoint reading of Section 14 and Section 52(1)(a)(i) suggests that copyrights cannot be an impediment for private research (although there is an arguable case for its expansion to public research, see comments here). However, this does not happen in reality, because access, which is a prerequisite for research, is controlled by copyright owners. It is worth noting that although copyright holders control the access of the works’, this control of access does not come from Section 14. Given Section 16 which restricts the interpretation of copyrights to the statute, Section 14’s interpretation cannot be expanded beyond the literal framings within the statute.
[Separately, if rights conferred under the Copyright Act ARE SUBJECT to other provisions including Section 52 which lays down non-infringing activities, then why should research be regarded as an exception to copyright (for e.g. See Para 19, here) and not vice versa!]
One way to control access, (though not as a right) comes from Section 65A (read more here), dealing with technological protection measures (TPM), which are covered by the concept of paracopyright (see also here). But as per the statute, TPMs can be circumvented for ‘a purpose not expressly prohibited by the Act’, taking us back to Section 52(1)(a)(i). Regardless of how benign the idea was to make it adaptable to Section 52, circumventing a TPM demands technical expertise which cannot be always expected from a researcher. In simple words, Copyright Act, 1957 permission allowing access to research works protected by TPMs works only if one is a technically able researcher.
Doesn’t this look like a scenario where access is either assumed or overlooked? Worse, if research is a right under copyright law, regardless of how impractical it is, it would most likely be shown (and seen) to be pitted against copyright holders because rights/interests in the same statute are often thought to require a ‘balance’, i.e. treated as opposing forces (though indirectly, it speaks of IP Internalism, see here). Thus, when the question reaches the court, the Judge would apply a balancing test (the balance between author rights and users’ rights) to ensure that both parties’ interests are protected. But it runs with a presumption that protecting parties’ interests would automatically (or ultimately) endorse the public policy goals of copyright law (see the relevant discussions of Parliamentary Debates on Copyright law at pages (of the uploaded file) 124, 136, 196, 351 especially the statements of Mr. Kishan Chand).
‘Balance’ is nothing but a mystical metaphor of (over)simplifying issues with an assumption that all the background work has been done (see for e.g. here). Moreover, from whose perspective, is the balance seen? This ballad of balance makes a bizarre impression that users and copyright holders have antagonistic interests, like a zero-sum game. But doesn’t this contradict the fundamental goal of copyright law which hinges on the harmony between users and creators (where users and creators are not necessarily different) with an aim to foster knowledge and enhance it by maximizing people’s participation in a creative activity? I think, yes, it does.
Tellingly, giving people a right to research which presumes access, is equivalent to expecting every researcher to have institutional access to research, as well as assuming that institutions actually have the necessary subscriptions to all journals. This is in essence making research contingent on the economic capability of an individual. Further, if access is available, the accessor can anyways make use of the work and the researcher would be treated like any other consumer. In its current form, it is just a theoretical right, playing the role of a paper tiger with no real-life benefits
Right to Research (R2R) – An Independent Right?
As per the OHCHR, states have a duty of respecting, protecting, and promoting the rights of people to undertake and access research, and this is core to actualizing many fundamental human rights. These rights include the right to science and culture (Art. 27, UDHR & Art. 15, ICESCR), right to expressions (Art 19 UDHR & Art 19, ICCPR), and right to development (declaration and supporting treaties), right to education (Art. 23, UDHR & Article 13, ICESCR). Further, there are rights that are derived and deciphered from the above rights such as the right to read, right to knowledge, right to information, right to think/learn, right to academic freedom, right to be creative. Hence, an R2R is just a derivative of these extant rights (especially the right to science and culture) which does not owe any recognition in copyright law. Interestingly, these rights have later found a place in the Indian Constitution.
‘Research’ literally suggests a close intellectual engagement with something, thus, it necessarily involves the faculties of reading, thinking, examining, which ultimately adds value to the personality of an individual. Given such a relationship of research with overall individual development, R2R draws credence from Part III and Part IV of the Indian Constitution. Under part III, R2R gains support from Article 21 [Right to Life] and Article 19(1)(a) [freedom of expression].
In 1966, in Rabinder Nath Malik v The Regional Passport Officer, the Delhi High Court noted that the scope of Article 21 includes “a right to acquire useful knowledge,”. Similarly, in 1980, the Supreme Court of India in Francis Coralie Mullin v The Administrator, Union Territory of Delhi, (dealing with a right of a detenu under COFEPOSA Act) noted that “… the right to life includes the right to live with human dignity and all that goes along with it, namely, … facilities for reading, writing and expressing one-self in diverse forms…”. Highlighting the importance of giving a broad interpretation to fundamental rights especially Art 21, the Court went on to say that “Every limb or faculty through which life is enjoyed is thus protected by Article 21 … include the faculties of thinking and feeling”. Further, in Samatha v State of UP, while mentioning the right to development as a fundamental right, the Supreme Court included the fulfillment of the “social, cultural and intellectual” needs under Art. 21. I would argue that this can be used to bolster the premise for a right to research as well.
Similarly, in Wiley Eastern Ltd. vs IIM, the Delhi High Court found the purpose of Section 52 of Copyright Act (specifically mentioning ‘research’ at Para 19) in protecting Article 19(1). Thus, it could be argued that R2R is potentially backed by both Articles 21 and 19 – with Copyright law seeing it as a part of freedom of expression, and the Constitution justifying it as a part of living with human dignity.
Under part IV, a duty is imposed upon the state under Article 39(b) to effectuate that “the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. The term “material resources” is interpreted so broadly that it includes both public and privately owned materials, and a premise for an R2R could be found within this understanding. The inclusion of data under material resources by the Srikrishna Committee (e.g. here) further lends support to the argument that it can include informational goods such as research material within its ambit.
Notably, it can be observed that R2R under the Constitution, if it exists, would tend to focus on overall well-being and the holistic development of an individual. Conversely, Indian Copyright law’s R2R/research exception/limitation appears (at least semantically) to be only concerned with the availability of research material as it seems to already assume (/ignore) access.
Final thoughts – Importance of (Re)Contextualization/Revision
The framing of R2R within Copyright is not a problematic premise per se. However, it does not do much, and rather limits R2R’s scope and impacts to merely being called a right of the user who (often) is willing to research and needs access to copyrighted content. Such scenarios, by the very policy narrative of balance between private and public interests, are sought to be adjusted with(in) copyrights. Conversely, a constitutional framing of R2R backed by human rights logic would break this binary of ‘copyright owner–users’, making research a right of everyone which can include access to research, contribute to it, and make it available.
This framing can revamp its functioning and simultaneously foster the public interest goals of copyright laws. Such revision/contextualization of R2R would also help courts manifest and understand the (hidden) interrelationships, tensions, and contradictions between various legal concepts, legal problems, and legal arguments such as liberty, economic and social inequalities, property, knowledge governance, contract, free will, which though may be connected with copyright law but do not really stem from or exist within it. As noted in the beginning, this is a very surface level beginning to this conversation. I would welcome readers to write in with their thoughts and critiques.
Some notable readings – InfoJustice (PIJIP), R2R – Bibliography; Carys Craig, Users rights Rhetoric; M. P. Ram Mohan and Aditya Gupta, Right to Research in India, Jessica Litman, Readers’ Copyright; Julie E. Cohen, Place of users; Jane C Ginsburg, Authors and Users in Copyright law (paywalled); Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” and “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (paywalled); J. M. Balkin’s “The Hohfeldian Approach to Law and Semiotics” and “The Promise of Legal Semiotics”.
I would like to thank Prof Sean Flynn and Swaraj Barooah for their inputs on the topic. Thanks to Akshat Agrawal for his comments on the draft.
Source: spicyip.com, 18/01/22
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