Copyright in Perpetuity

Copyright terms, in perpetuity and literary icons

What does the Indian film icon Amitabh Bachchan have in common with the British romantic poet William Wordsworth and our own Gurudev Rabindranath Tagore? The obvious answer would be poetry, Bachchan being the son of the late legendary poet, Harivansh Rai Bachchan. But the more recent link is the topic of copyright in perpetuity, which all of them have some connection with.

Natural right to inherit copyright in perpetuity

Bachchan was recently in the news for questioning the copyright principle which allows exclusive rights to heirs of original literary work for only a defined period after the death of the author. In India, under the Copyright Act, 1957, in the case of original literary, dramatic, musical and artistic works, copyright protection is available for a period of 60 years from the year after the author’s death.

Bachchan said it was “rubbish” that what “gets left to a natural heir by father Harivansh Rai Bachchan, after his passing passed 60 years, belongs no longer to his domain or possessive copyright as willed, but becomes for the entire universe to tread, scratch, mutilate, use in commercial consideration on their own creative discretion”.

According to him, “Written copyright and whatever else in the realm, lives 60 years after the passing with the elements of them that be the rightful? Really? So who designed 60 years? Why 60, why not 61, or why not perpetuity.” He asked, “How can individual property become public property?” (See more here)

The Statute of Anne and the Battle of the Booksellers

The debate over copyright in perpetuity versus copyright for a limited term is as old as the law that we inherited itself, i.e., it dates to the Statute of Anne of 1710. This law, which codified copyright, provided for a defined copyright term (of 14 years, which could be renewed for another 14 years if the author was still alive). Naturally, some books soon lost copyright. As and when this happened, people started raising questions about copyright terms and corresponding rights through lawsuits. The most well-regarded incident on this issue in this period of copyright history is the Battle of the Booksellers that went on for 30 years, where publishers “felt that their rights rights to exclusively publish books was common law and should be perpetual”. (See more here)

Wordsworth, Macaulay and copyright perpetuity

Another interesting anecdote is that of William Wordsworth, who, a little under 200 years ago, had petitioned the British Parliament to recognise a “creative work as a personal possession belonging by natural right to the author”. The poet’s friend, Thomas Noon Talfourd, took up this sentiment in right earnest, and argued in parliament that “justice demanded perpetual copyright” (although he eventually tabled a bill that asked for a posthumous copyright term of 60 years). In opposition to Talfourd, India’s old friend, Thomas Babington Macaulay (of the ‘Minute on Indian Education’ fame, and who is significantly responsible for mainstreaming English as the language of currency in our country), was vehemently opposed to a long copyright term after an author’s death. In fact, in 1841, Macaulay specifically commented on the complaint by Bachchan, of a limited copyright term depriving an author’s descendants of economic benefits. He argued that there could be no natural law that entitled an author to copyright, that copyright holders did not work with a view to ensuring their descendants profited from their works, and that the intention of copyright was only to remunerate professional artists and authors (see more here).

The Berne Convention

The entire timeline on the legislative history of copyright terms can be quite extensive, but the next most relevant point, perhaps, is 1886, when the Berne Convention was confirmed. The Berne Convention sought to standardise international rules of copyright, and its revision in 1908 introduced a minimum copyright term of the life of the author plus fifty years. The copyright term depends on the type of work being protected. For example, “ In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of the work” (see more here). Countries can choose to legislate a longer copyright term, as indeed some have done, such as Mexico, which is apparently the lengthiest term at present, offering a term as high as a hundred years after the death of the author (see more here).

Rabindranath Tagore and copyright term in India 

Until 1992, the copyright term in India was life of author plus fifty years, but this was increased to sixty years. Originally, an ordinance was brought about in Parliament which sought to extend the term, in order “to extend the time of reprint of the books” of Rabindranath Tagore. Bachchan, in fact, made reference to Tagore in his comment about copyright in perpetuity. He may not have known that the current copyright term was introduced to protect Tagore’s works themselves, and to allow the Visva Bharati university, which had inherited the rights in Tagore’s works, to continue to derive benefit from the same! Since a specific carve-out only for Tagore’s works could not be made, the copyright term was extended for all works.

In the debates than ensued in Parliament around the term of copyright on 17 March 1992, the Member of Parliament from Jorhat, Bijoy Krishna Handique, noted that even as extending the copyright term was a “wise decision”, “all [was] not well with the Visva Bharati and the manner in which it has made use of the copyright in recent times in not inspiring”. [Accusations against the university, of which Tagore was the founder, included publishing incomplete and incorrect texts, poor translations, and poor production standards.] Prof. Rasa Singh Rawat, MP from Ajmer, in fact argued that the term should be extended by twenty, and not just ten years. In the Rajya Sabha, NKP Salve asked as to why some works, that constituted “a priceless legacy of the Indian culture itself” did not have “permanent” copyright?

There were also those who objected to the copyright term extension. George Fernandes, MP from Muzaffarpur, was among them. Radhika Ranjan Pramanik, MP from Mathurapur, prodded the government to ponder on fundamental questions as to the objective of the amendment itself. He asked, “What should be the term of copyright? … Why fifty years and why not sixty years and so? … So, you are doing it in [an] ad hoc manner. What is the scientific reason? I want to know from the hon. Minister this…. Unless the object, that is the protection is not achieved within fifty years, then how can you assure that the protection can be achieved within ten years? … Then, again, the question of extension will come.” for a copy of the debates – warning – huge download).

Eventually, after a lot of academic debate on the exact number of years that should be granted, everyone in the Indian Parliament signed up for the extension of the copyright term, which is where it has stayed ever since.