Access to Legal information in India

There are three broad pillars of Indian democracy: the legislatures who make laws, the executives who enforce laws and the judiciary that interprets laws. The laws regulate a number of activities like criminal offense, civil cases, taxation, trade, social welfare, education and labour rights.

A number of attempts have been made to bring the knowledge of law to the common people. The Government of India took active efforts to present all laws along with their amendments at indiacode.nic.in and all court judgments at judis.nic.in. Similar efforts have been taken up by other privately owned websites.  While it is commendable to make law documents available to common people, it is still quite difficult for common people to easily find the required information.

The first problem is that acts are very large and in most scenarios just a few section of laws are applicable. Finding most applicable sections from hundreds of pages of law documents is too daunting for common people.

Secondly, laws are often vague and one needs to see how they have been interpreted by the judicial courts. Currently, the laws and judgments are separately maintained and to find judgments that interpret certain law clauses is difficult. This is one of the reasons that the private individuals have taken initiatives to publish legal information on internet.

Now the problem arises when the legal information is published on to the internet by an individual, they claim to have copyright of that literary work and also its scenario under Information Technology Act.

Indian Scenario

Copyright and judicial information

It is very important to know certain details about copyrights before analyzing the topic in hand which is copyright in judgments.

Meaning of copyright

"copyright" means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-
(a) in the case of a literary, dramatic or musical work, not being a computer programme, -
            (i) to reproduce the work in any material form including the storing of it in any                  medium by electronic means;
            (ii) to issue copies of the work to the public not being copies already in   circulation;
            (iii) to perform the work in public, or communicate it to the public;
            (iv) to make any cinematograph film or sound recording in respect of the work;
            (v) to make any translation of the work;
            (vi) to make any adaptation of the work;
            (vii) to do, in relation to a translation or an adaptation of the work, any of the       acts specified in relation to the work in sub-clauses (i) to (vi);
                                    (b) in the case of a computer programme,-
                                    (i) to do any of the acts specified in clause (a);

Copyright shall not subsist –

SECTION 52

Sub Section 1(c) the reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding;

Sub section 1(d) the reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;

The most important and relevant being the case of Eastern Book Company and Ors vs D.B Modak and Anr

In this case Appellant No. 1 - Eastern Book Company is a registered partnership firm carrying on the business of publishing law books. Appellant No. 2 - EBC Publishing Pvt. Ltd. is a company incorporated and existing under the Companies Act, 1956. The said appellants are involved in the printing and publishing of various books relating to the field of law. One of the well-known publications of appellant No. 1 - Eastern Book Company is the law report "Supreme Court Cases" (hereinafter called "SCC").

Headnotes are prepared by appellant No. 3-Surendra Malik. As per the said appellant (plaintiff No. 3 in the suits filed in the Delhi High Court), the preparation of the headnotes and putting the various inputs in the raw text of the judgments and orders received from the Supreme Court Registry require considerable amount of skill, labour and expertise and for the said work a substantial amount of capital expenditure on the infrastructure, such as office, equipment, computers and for maintaining extensive library, besides recurring expenditure on both the management of human resources and infrastructural maintenance, is made by the plaintiff-appellants. As per the appellants, SCC was a law report which carried case reports comprising of the appellants' version or presentation of those judgments and orders of' the Supreme Court after putting various inputs in the raw text and it constituted an 'original literary work' of the appellants in which copyright subsisted under Section 13 of the Copyright Act, 1957 and thus the appellants alone had the exclusive right to make printed as well as electronic copies of the same under Section 14 of the Act. Any scanning or copying or reproduction done of or from the reports or pages or paragraphs or portions of any volume of SCC by any other person, was an infringement of the copyright in SCC within the meaning of Section 51 of the Act.

The defendant-respondent No. 2 Spectrum Business Support Ltd. (in Civil. Appeal No. 6472/2004) has brought out a software called "Grand Juriy" published on CD-ROMs and the defendant-respondent No. 2 Regent Data Tech Pvt. Ltd. (in Civil Appeal No. 6905/2004) brought out software package called "The Laws" published on CD-ROMS. As per the appellants, all the modules in the defendant-respondents' software packages had been lifted verbatim from the appellants' work; the respondents had copied the appellants' sequencing, selection and arrangement of the cases coupled with the entire text of copy-edited judgments as published in the plaintiff-appellants' law report SCC, along with and including the style and formatting, the copy-editing paragraph numbers, footnote numbers, cross-references, etc.; and such acts of the defendant-respondents constitute infringement of the plaintiff-appellants' exclusive right to the same.

It was held in the case that the reports in the Supreme Court Cases (SCC) of the judgments of the Supreme Court are a derivative work in public domain. By virtue of Section 52(1) of the Act, it is expressly provided that certain acts enumerated therein shall not constitute an infringement of copyright. Sub-clause (iv) of Clause (q) of Section 52(1) excludes the reproduction or publication of any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the Court, the Tribunal or ocher judicial authority from copyright. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. That being the position, the copy-edited judgments would not satisfy the copyright merely by establishing amount of skill, labor and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity are completely excluded.

Accordingly, original or innovative thoughts are necessary to establish copyright in the author's work. The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself. To secure a copyright for the judgments delivered by the court, it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in SCC some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labor and investment of capital, maybe it is a derivative work which gives a flavor of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author.

For the reasons stated above, the appeals were partly allowed. The High Court did grant interim relief to the plaintiff-appellants by directing that though the respondent-defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own head notes, editorial notes, if any, they should not in any way copy the head notes of the plaintiff-appellants; and that the defendant-respondents shall also not copy the footnotes and editorial notes appearing in the journal of the plaintiff-appellants.

Interplay between Public Domain, Freedom of Expression and Copyright

“The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use”

The freedom speech and expression does not only protect freedom of ideas but also the form in which it is expressed.  But Copyright law curtails this freedom of expression.

Freedom of Speech and Expression

•       Right to receive information

•       Right to disseminate information

Justifications for copyright being beyond the purview of Article 19(1)(a) of the Constitution a reasonable restriction under Article 19(2)

•       Economic incentive vis-à-vis promotes free speech and production

•       Right to steal is not included within the freedom of speech and expression

The Idea/Expression Dichotomy

1.     ‘original’ u/s 13 of the Copyright Act, 1957:

Copyright shall subsist throughout India in the following classes of works, that is to say,-

(a) Original literary, dramatic, musical and artistic works;

(b) Cinematograph films; and

(c) Sound recordings;

2.     Sweat of the brow: conferring copyright on works merely because time, energy, skill and labour was expended, that is, originality of skill and labour

3.     Modicum of creativity: in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat  different in character is produced by the author”. - Eastern Book Company v. DB Modak

The Supreme Court too recognized this shift and in Eastern Book Company v. DB Modak (supra), following the approach laid down by the Canadian Supreme Court in CCH Canadian Ltd., Vs. Law Society of Upper Canada (2004) SCC 13, rejected the sweat of the brow doctrine, (which conferred copyright on works merely because time, energy, skill and labour was expended, that is, originality of skill and labour), and held that the work must be original ?in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author?. It is noteworthy that our Supreme Court noticed that the two positions i.e. the sweat of the brow on the one hand, and ?modicum of creativity? were extreme positions; it preferred a higher threshold than the doctrine of ?sweat of the brow? but not as high as ?modicum of creativity?. Thus, our law too has recognized the shift, and mandates that not every effort or industry, or expending of skill, results in copyrightable work, but only those which create works that are somewhat different in character, involve some intellectual effort, and involve a certain degree of creativity. It is in the light of this standard of originality, that the plaintiffs claim to copyright in the questions as well the copyright in the arrangement of the exercises in each chapter and the internal arrangement of questions therein, needs closer scrutiny.

Eastern Book company v Navin J.Desai, the question involved was whether there is any copyright in the reporting of the judgment of a court. The Delhi High court observed: It is not denied that under section 2(k) of the Copyright Act, a work which is made or published under the direction or control of any Court, tribunal or other judicial authority in India is a Government work. Under section 52(q), the reproduction or publication of any judgment or order of a court, tribunal or other judicial authority shall not constitute infringement of copyright of the government in these works. It is thus clear that it is open to everybody to reproduce and publish the government work including the judgment/ order of a court. However, in case, a person by extensive reading, careful study and comparison and with the exercise of taste and judgment has made certain comments about judgment or has written a commentary thereon, may be such a comment and commentary is entitled to protection under the Copyright Act”.

The court further observed: “In terms of section 52(1)(q) of the Act, reproduction of a judgment of the court is an exception to the infringement of the Copyright. The orders and judgments of the court are in the public domain and anyone can publish them. Not only that being a Government work, no copyright exists in these orders and judgments. No one can claim copyright in these judgments and orders of the court merely on the ground that he had first published them in his book. Changes consisting of elimination, changes of spelling, elimination or addition of quotations and corrections of typographical mistakes are trivial and hence no copyright exists therein.