“The way I see it, if you want the rainbow, you gotta put up with the rain.”
Dolly Parton
“मेरे विचार से यदि आप इन्द्रधनुष चाहते हैं, तो आपको वर्षा को सहना होगा।”
डॉली पार्टन
Wednesday, February 09, 2022
Quote of the Day February 9, 2022
Right to Research (“R2R”): An Independent Right with an Imposed Dependence in Copyright Law?
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
Applications Open For HBCU Student Scholarships
Los Angeles – BeGreat Together, the nonprofit arm of newly launched online educational platform Assemble.fyi, has opened applications for $5,000 scholarships to be awarded to three, full-time junior, senior, or graduate students attending a Historically Black College or University. Chosen students will support them in conducting research for their upcoming short documentaries.
Starting Spring 2022, the organization will film four short documentaries focused on Black and Latino community changemakers and the work that they are doing to transform their communities. Each program will contain historical and present-day facts and statistics related to the community where the change is being catalyzed. Topics will include Black and Latino maternal health, advocacy and art within Latino communities, housing advocacy, engaging the justice system, and more.
Any full-time students enrolled in an accredited Historically Black College or University are encouraged to apply by submitting a short essay. Experience with qualitative or quantitative research is not necessary, but preferred. An interest in Black and/or Latino community building is strongly encouraged. Applications close February 22, 2022 at 11:59 CST. The three winners will be notified by the school email address provided by February 28, 2022 and the funds will be distributed directly to the institution they attend.
Source: indiaeducationdiary.in, 27/01/22
Current Affairs- February 9, 2022
INDIA
– Centre issues new media accreditation guidelines for journalists
– Railway Protection Force launches nationwide “Operation AAHT” to curb human trafficking
– BARC (Broadcast Audience Research Council) to resume news channels’ ratings after 17 months
– EAM S Jaishankar meets Sri Lankan Foreign Minister GL Peiris in Delhi, discusses energy security, fishermen issue
– 7 soldiers trapped in avalanche in Arunachal Pradesh found dead: Army
– Praveen Kumar Sobti, Bheem in BR Chopra’s ‘Mahabharat’ TV series, dies at 74
– AIM (Atal Innovation Mission), NITI Aayog, and USAID collaborates under SAMRIDH (Sustainable Access to Markets and Resources for Innovative Delivery of Healthcare) initiative
ECONOMY & CORPORATE
– Ayush Minister Sarbananda Sonowal launches dedicated storefront for Ayurveda products on Amazon.in
– ICMR got ₹171.74 crore in royalty from Bharat Biotech from sales of COVID vaccine Covaxin
– PM CARES Fund got ₹10,990 crore since its inception in March 2020 until March 2021; spent ₹3,976 crore during 2020-21
– RBI extends restrictions on Karnataka’s Millath Co-Operative Bank till May 7
WORLD
– US President Joe Biden approves support deal with Taiwan for Patriot missiles
Salesforce Global Digital Skills Index 2022
India scored the highest place in Sales Force Global Digital Skills Index, 2022. The index was created comparing 19 countries. The index was calculated based on the readiness of the citizens in learning new digital skills and employee sentiments. Of all the countries, India had the highest readiness score. India scored 63 out of 100.
How was the index calculated?
The index was calculated based on a survey. The survey asked questions to more than 23,500 workers in all the 19 countries.
Key findings
60% of the Indians are equipped with digital resources. Only 25% of the respondents in India believe that advanced technological skills are must at workplace. Only 39% of Indians believe that their work place had advanced digital marketing skills. More than half of the respondents wanted to learn new skills, mainly to progress in their career. Younger respondents were more confident. They had ambitious goals of learning new skills.
Global Performance
The average digital readiness was 33. Three major skill gaps were identified. They were workforce skills, leadership skills and generational skill gaps. These skill gaps are creating huge impact on the GDP of the countries.
Way forward
According to the index, India is create 1,3 million jobs by 2026. Also, India will generate 66.4 billion USD of new business revenue by 2026.
About Salesforce
It is a software company. It is headquartered in San Francisco, California. It provides Customer Relationship Management services. In 2007, the company was criticised for phishing attacks. It was founded in 1999 by a former Oracle executive Marc Benioff. It was founded as a software as as service company.
What arguments in marital rape case reveal about insecurity of patriarchy
Rama Srinivasan writes: Powerful men have explicitly laid out their view that sex against the wishes of their wives is not a crime, legal or moral, while others are in the mood for a marriage strike against what they perceive as a men’s rights issue.
In response to arguments made in favour of criminalising marital rape, a former top law enforcement officer has speculated that this petition, which he termed anti-civilisation, could bring about the destruction of family and children. Due to his past role as the ex-CBI director, Nageswara Rao must be taken seriously when he appears to support sexual acts that may not be outlawed but are, at least, morally questionable. One of the two judges hearing the case in Delhi High Court has admitted to being sceptical about the legal ramifications of criminalising marital rape but neither appear to question the moral imperatives. Rao represents one extreme view of this complicated relationship.
Another, more prevalent, impulse is the fear of false accusations. The source of this anxiety is linked to both rape cases and dowry harassment ones. This piece will address them individually. Only a fraction of sexual crimes is reported, especially because those that make it to courts appear to put the complainant on trial. This was again evident in recent high-profile cases including that of Tarun Tejpal’s and Franco Mulakkal. Even where the judges have been able to ascertain that an explicit “no” was expressed — as in the case of Mahmood Farooqui — the court has ruled for acquittal.
Litigation on sexual crimes draws from social and caste-based perceptions on what constitutes rape. These are, in turn, based on who is presumed to have access to women’s bodies. These norms are not laid out in explicit terms but courts as well as social groups skirt around them. When BJP’s Kuldeep Sengar was accused of rape in a case where the complainant’s father and, later on, her lawyer have both died under suspicious circumstances, his constituents joined together for a demonstration in solidarity — with the accused. Their simple contention was that their representative was innocent.
Similarly, despite a documented history of predatory behaviour, several journalists who were accused of sexual harassment at workplace have denied any wrongdoing. Their colleagues, friends and families, at times, lend support to these refutations. In many ways, the denial has less to do with accusations themselves but, rather, societal perceptions of right and wrong. Men from privileged backgrounds are assumed to have access to bodies of women from all social backgrounds but access of marginalised men, even in cases of courtships and love affairs, is rigorously policed. This discrepancy may be exposed as hypocrisy but it suggests something more deep-seated.
Fears of false accusations are based on an uneasy relationship between law and morality, where sexual acts criminalised under the criminal code and those explicitly permitted under law are still in the zone of moral ambiguity. Criminalisation of acts that are deemed socially acceptable in certain circles brings with it the feeling of persecution by those automatically perceived as bad faith actors.
The only cases where a conversation on false accusations does not skirt around unspoken social norms are those of courtships gone wrong, where women retrospectively file complaints of sexual assaults. A study conducted by Rukmini S in 2013 revealed that 40 per cent of such complaints were cases of consensual sex “criminalised by parents.” Men in such courtships are assumed to be guilty whether or not a conviction is possible.
The other source of anxiety here is the history of dowry harassment cases. My ethnographic interviews with lawyers in north India have often dwelled on the “problem” of false dowry cases. Gentle probing on this assumption revealed that the perception of fraud stems from the seemingly cynical timing — often after a marriage has irrevocably broken down — and presumed motivations of the complainant rather than the merits of the cases themselves. Dowry demands and exchanges are still prevalent in rural and urban areas, criminalised by law but, again, in the zone of moral ambiguity. They are taken seriously, if at all, when accompanied by cases of serious violence and harm.
Complaints of extortion and harassment by police officers aside, the claim of dowry harassment — most likely an authentic one — has become a necessary evil in some ways. Women seeking divorce have found that the inclusion of dowry harassment charges is often vital for the case since judges recommend mediation as a rule. The treatment of women within marriages is deemed an internal matter and to be negotiated within family settings. The fear of persecution via false cases stems from the lack of alignment between law and morality.
The petition against marital rape has been an opportunity for the Indian mainstream to witness the unravelling of some of these unspoken norms on sexual crimes and marital relations. Powerful men such as Rao have explicitly laid out their view that sex against the wishes of their wives is not a crime, legal or moral, while others are in the mood for a marriage strike against what they perceive as a men’s rights issue.
Criminalisation of marital rape opens up another frontier for a battle between law, which is ideally based on dignity and respect for all, and morality in narrower circles, based on unequal power relations within families.
In my December 2020 piece for The Indian Express, I had asked: Who is afraid of Indian women? The article had pointed out that for people who view patriarchy — in reality, a social construct — as a natural order, the fear that the edifice will crumble at any moment is very real. Lack of control over women’s sexuality presents itself as a crisis that can lead to an unravelling of hierarchies that patriarchal agents are heavily invested in. This case against marital rape is perceived as a civilisational threat by some because it requires such agents to explicitly state these unspoken norms and end the situation of moral ambiguity.
Written by Rama Srinivasan
Source: Indian Express, 9/02/22
Tuesday, February 08, 2022
Quote of the Day February 8, 2022
“Inaction breeds doubt and fear. Action breeds confidence and courage. If you want to conquer fear, do not sit home and think about it. Go out and get busy.”
Dale Carnegie
“निष्क्रियता से संदेह और डर की उत्पत्ति होती है। क्रियाशीलता से विश्वास और साहस का सृजन होता है। यदि आप डर पर विजय प्राप्त करना चाहते हैं, तो चुपचाप घर पर बैठ कर इसके बारे में विचार न करें। बाहर निकले और व्यस्त रहें।”
डेल कार्नेगी
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