A French Kiss for International Copyright: the French Decree 1852 (verbatim reproduced)

(This post was first published at IPRMENTLAW – another blog I have been associated with for the last few years.)

Bonjour,

Comment ça va? (Well … my French exhausts itself almost immediately after this … Alas) 

But speaking of things unmistakably French, here’s something I wanted to share and briefly talk about: the 1852 French decree… 

‘Twas a decree that would go on to undergird the path of international copyright law and, in many ways, foreshadow the beginnings of the Berne Convention for the Protection of Literary and Artistic Works, 1886 (the first international copyright treaty). Yet it offered nothing new, 19th-century scholars argued. 

You may ask: why do I wake a sleeping decree?

Well … so it happened that a few weeks ago, I was leafing through some literature appertaining to early phases of international copyright discourse and noticed that the famed French Decree of 1852 survives in a rather inaccessible form.

The PSCO website’s scanned pages proved the easiest portal to it, though it may require the patience of a legal archaeologist. (A huge shout-out to the project Primary Sources on Copyright (PSOC) 1450-1900 for making a lot of primary recipes available with required context and commentary)  

Another way to find it here on pages 259–260 of J. B. Duvergier’s 1852 published Collection complète des lois, décrets, ordonnances, règlements, et avis du Conseil d’État : publiée sur les éditions officielles du Louvre ; de l’Imprimerie nationale, par Baudouin; et du Bulletin des lois, de 1788 à 1824 inclusivement, par ordre chronologique… : suivie d’une table alphabétique et raisonnée des matières. Tis available on the Gallica BnF website. 

As I could not find an easily readable text version anywhere, I thought it worthwhile to reproduce the decree here in full both in the original French and in an English translation (using DeepSeek). But whilst dusting off the archival record, I realise that contrary to the exalted status with which this decree is anointed in mainstream discourse, some nineteenth-century commentators greeted it with a more nuanced, and even sceptical, eye. They praised it for its moral might, but they also problematized its much-bandied novelty and moral authority.

‘Twas this forgotten, or perhaps the under-discussed debate, rather than the decree alone, that I wish to discuss in this post. In what follows below, before reproducing the decree verbatim, I share a few reflections on these neglected debates, which seldom find a place in the mainstream telling of international copyright history.

What Nineteenth-Century Scholars Made of It

Long before the age of harmonisation, diplomacy and TRIPS-era sermonizing trade sanctions, France pulled off something rather audacious in 1852 — a decree extending copyright protection to foreign authors without demanding reciprocity in return. 

As the accompanying report by Minister of Justice Jacques-Pierre Abbatucci noted, it was an inconsistency and “contrary to universal justice” to protect a foreigner’s physical property in France while leaving their intellectual creations vulnerable to piracy.

At first glance, one may call this move typical of universalist-civilisation logic of the time. But beneath this generosity lay a pragmatic altruism, as some scholars said. By unilaterally protecting foreign works, France positioned itself advantageously in the emerging landscape of bilateral copyright negotiations, securing both cultural prestige and diplomatic leverage.

Alcide Darras, in his commentary, Études théoriques et pratiques de droit international privé. Des droits intellectuels (1887), (page 83), characterised it as marking a shift from mercantilism to universal justice. Reflecting on the decree’s impact, he remarked, in his commentary, that after the Decree of 28 March 1852, the international legal landscape changed entirely. Through this unilateral act of generosity, Darras declared (which I translated), 

“France was then able to negotiate not merely as an industrial nation haggling over a tariff with trading nations, but as the sovereign of a moral empire, inviting — and, so to speak, compelling — Europe to sign with her a second declaration of the rights of the intellect.”

And the original French text reads: “Immédiatement après le décret du 28 mars, tout changea de face. Cela devait être; car la France put négocier alors non plus comme nation industrielle marchandant un tarif à des peuples marchands, mais comme souveraine d’un empire moral, conviant, forçant pour ainsi dire, l’Europe à signer avec elle une seconde déclaration des droits de l’intelligence.”

Darras adduced evidence to prove his point (page 83). He noted that while France had managed to secure only four copyright conventions between 1841 and 1852 (when it relied on commercial reciprocity), the moral authority gained from the 1852 Decree allowed it to obtain fifty-seven treaties by 1865. Another 1890 commentary by Lucien Bastide named L’Union internationale pour la protection des œuvres littéraires et artistiques noted that between 1852 and 1857, twenty agreements were entered into (see footnote at page 53).

While often celebrated as the first decree of its kind and the harbinger of modern international copyright law, these scholars have cast doubt on both its novelty and its significance. As Darras, for instance, notes in a footnote (p. 83)

“Even before the 1852 decree came to satisfy the notion of justice in France, its beneficial effects had already been foreseen. Mr Gochut had already remarked in 1839: ‘In matters that must be dealt with in full view of the people, generosity sometimes becomes a matter of tact. A fine example might perhaps have inspired all nations, even those that profit from abuse, whereas a strictly negotiated reciprocity will be accepted only by those states that stand to gain from it’ (Revue des deux-Mondes, Vol. I, (1839), p. 393) During the deliberations preceding the vote on the Franco-Portuguese convention, Mr Barthélémy Samt-Hilaire also said: ‘Once we have begun by declaring that counterfeiting in our country is an offence punishable by law, I believe we shall find it much easier to persuade governments to abolish it in their own countries’ (Moniteur, 30 June–1 July 1851, p. 1852.)”

The Decree that ‘Innovated Nothing’??

More arresting, Lucien Bastide, in his 1890 study of the Berne Convention, offers a characteristic claim that underscores the double-visioned account of the French decree of 28 March 1852. While he acknowledged it as a “monument of law” and a marking of a “new era” in French legal history, he also argued that, from a strictly theoretical lens, it was not a true innovation.

Bastide famously argued that the decree “innovated nothing in reality” and contended that the principle of protecting authors regardless of nationality or place of publication was already legally present in the revolutionary decrees of 1791 and 1793. The 1852 decree merely “sanctioned a situation already legally existing for more than half a century”. (see page 15)

The case of the Law of 19–24 July 1793—often called the “Declaration of the Rights of Genius” and hailed as the “Code of the Rights of Intelligence”—is notable here. The law conferred upon authors, composers, painters, and designers the exclusive right to sell, assign, and exploit their works throughout their lifetime.

Though it said nothing explicitly about foreign authors, to Bastide and Darras, this silence was eloquent… They rather insisted that the 1793 law spoke in a particular universal logic and revolutionary France recognised only frères de l’esprit (“brothers of the mind”). 

This meaning, nationality was thus beyond the question. The Revolution had, after all, abolished the droit d’aubaine, the feudal doctrine that allowed the Crown to confiscate a foreigner’s property upon death. In this way, denying protection to foreign authors would amount to a kind of revival of that repudiated injustice, a form of legal spoliation dressed in different clothes. 

From this logic, Darras deduced the “true principle” that copyright flowed from the sole fact of creation. As he said, “As soon as the work is born and has appeared to the day, the right to protection is born for the author”.

He believed that the 19th-century courts had “misunderstood” the original breadth of the revolutionary laws, making the 1852 decree necessary to restore those “true principles”. It is in this context that Bastide argued that the 1852 Decree “innovated nothing” but merely restored the spirit of old laws.

The decree found another prominent proponent in the publisher Louis Hachette, one of the principal architects behind the campaign for perpetual literary property. In a letter later cited by Philip Bertocci’s puissant piece, Hachette celebrated the decree’s recognition, “for the benefit of foreigners, in an absolute manner, without condition, of the right of literary property,” because it elevated the issue “to the level of all the great principles of natural law and human rights, instead of reducing it to the petty proportions of a commercial treaty.” In other words, copyright was no longer to be treated as a grubby bargain between trading nations (i.e., through the picnic pole of reciprocity), but as a matter of civilizational principle.

Concluding Thoughts: A French Kiss with Conditions?

It ought not be lost on readers that this French decree came simply out of universal justice. It coincides with France’s growing cultural and publishing dominance. And therein lies the rub: that international copyright was more than a matter of moral enlightenment (which apparently lent it the logic and language). It very much resulted from economic self-interest dominating publishing economies of Europe. 

‘Twas a combustible mixture of both (and many other factors I’d say).

It merits mention that the 1858 Brussels Congress on Literary and Artistic Property (arguably, the first international congresses that officially inaugurated the project for international copyright), an assembly of more than 300 delegates, “saluted with respect” the 1852 decree, proclaiming it the “expression of a fundamental truth” and the “living manifestation of a principle of justice too long stifled”. From thereon, it remained a crucial citation in other formative gatherings, especially the 1861 Antwerp Congress and the 1877 Antwerp Congress.

Enough commentary. Let the decree have the last word …

Report and decree on the counterfeiting of foreign works. (X, Bull. DX, n. 3869.)

Report to the Prince-President of the Republic.

Monseigneur, copyright, which consists of the temporary right to exclusive enjoyment of scientific, literary and artistic products, is enshrined in French legislation for the benefit of nationals, and even of foreigners, with respect to works published in France. But the foreigner, who can acquire and possess movable and immovable property under the protection of our laws, cannot prevent the exploitation of his works through counterfeiting on the otherwise so hospitable soil of France. This, Monseigneur, is a state of affairs which one may criticise not only for not being in harmony with the rules that our positive law constantly seeks to generalise, but even for being contrary to universal justice. You will have consecrated the application of a salutary principle, you will have assured the sciences, letters and arts a serious encouragement, if you protect their productions against usurpation wherever they may have seen the light of day, to whatever nation the author belongs. Only one condition seems legitimate to me: that the foreigner be subject, for the subsequent preservation of his right, to the same obligations as nationals. If you deign to approve the views I have just set forth, I will have the honour to submit to you the attached decree, which will have the effect of realising them. I am with the most profound respect, Monseigneur, your very humble and very devoted servant, the Keeper of the Seals, Minister Secretary of State for the Department of Justice, signed ABBATUCCI.

Decree.

Louis-Napoléon, President of the French Republic, on the report of the Keeper of the Seals, Minister Secretary of State for the Department of Justice; having seen the law of July 19, 1793, the decrees of 1 Germinal year 13 and February 5, 1810, the law of 25 Prairial year 3, and Articles 425, 426, 427 and 429 of the Penal Code, decrees:

Art. 1. Counterfeiting, on French territory, of works published abroad and mentioned in Article 425 of the Penal Code, constitutes an offence.

Art. 2. The same applies to the sale, export and dispatch of counterfeit works. The export and dispatch of such works is an offence of the same kind as the introduction onto French territory of works which, after having been printed in France, have been counterfeited abroad.

Art. 3. The offences provided for in the preceding articles shall be punished in accordance with Articles 427 and 429 of the Penal Code. Article 463 of the same Code may be applied.

Art. 4. Nevertheless, prosecution shall only be admitted subject to the fulfilment of the conditions required with respect to works published in France, notably by Article 6 of the law of July 19, 1793.

Art. 5. The Minister of Justice (Mr Abbatucci) is charged, etc.

Below are the images of the original French text 

Thanks to Anshika Tripathi for reading the post.

Happy Independence Day, 2026, but what about the Republic of Unfree Minds?

Image from here

As today is India’s Independence Day—a day that holds, perhaps, more meaning than we can presently calculate—I have been thinking about swaraj: self-rule.

Independence is often understood in a political sense. Freedom from colonial rule, precisely. But … is a mind still ruled by colonial shadows, caste, gender, class, religious pride, and other thought structures entirely free?

Forsooth, no.

Swaraj/Svaraj must also enter our habits of thought: the ideational patterns we rarely pause to probe, and the material and immaterial conditions through which we live, and, indeed, imagine a life.

This brings to mind K. C. Bhattacharyya’s potent piece “Svaraj in Ideas” (1928), which Swaraj Barooah shared with me a few years ago and which I often return to in my work. The piece was originally delivered as a lecture by K. C. Bhattacharyya and is also included in Indian Philosophy in English: From Renaissance to Independence, edited by Nalini Bhushan and Jay L. Garfield.

For those unaware of Bhattacharyya, he was a distinguished Indian philosopher, known especially for his method of “constructive interpretation”: an approach that sought to clarify and develop the relationships and complexities within classical Indian philosophical systems. See more about him on the Wikipedia page.

Bhattacharyya broods over power in a particularly arresting way. He begins with two kinds of domination: the visible kind, in politics, where one person rules another; and the quieter kind, in spirit, where one culture settles inside another and begins to speak in its voice.

The British (and other colonial powers) had political power over India, of course. But for Bhattacharyya, cultural subjection was more troubling precisely because it was not always felt.

One could be free in the street and still be governed in one’s imagination, one’s thinking, even in one’s idea of freedom. It may not be amiss to note that this account of power, in its subtle and diffuse form, anticipates something later readers of Foucault and other post-structural thinkers may recognise. Bhattacharyya, however, arrives there from his own ground—and half a century earlier.

The opening passage of “Svaraj in Ideas” is worth sitting with. I will leave the rest to readers; it has its own quiet insistence.

1. We speak today of Svaraj or self-determination in politics. Man’s domina- tion over man is felt in the most tangible form in the political sphere. There is however a subtler domination exercised in the sphere of ideas by one culture on another, a domination all the more serious in the consequence, because it is not ordinarily felt. Political subjection primarily means restraint on the outer life of a people and although it tends gradually to sink into the inner life of the soul, the fact that one is conscious of it operates against the tendency. So long as one is conscious of a restraint, it is possible to resist it or to bear it as a necessary evil and to keep free in spirit. Slavery begins when one ceases to feel the evil and it deepens when the evil is accepted as a good. Cultural subjection is ordinarily of an unconscious character and it implies slavery from the very start. When I speak of cultural subjection, I do not mean the assimilation of an alien culture. That assimilation need not be an evil; it may be positively necessary for healthy progress and in any case it does not mean a lapse of freedom. There is cultural subjection only when one’s traditional cast of ideas and sentiments is superseded without comparison or competition by a new cast representing an alien culture which possesses one like a ghost. This subjection is slavery of the spirit; when a person can shake himself free from it, he feels as though the scales fell from his eyes. He experiences a rebirth, and that is what I call Svaraj in Ideas.

Once again, happy Independence Day.

May the year ahead leave us with enough light to recognise the powers that pass for common sense; enough courage to name them; and enough freedom, in thought and life, not to obey them.

Until we meet again.

Finally, the cat is out of the bag – ANI v. Open AI judgment pronounced!

Let me start with a disclosure. I represented one of the intervenors in this matter, Flux Labs, an AI enabled commerce start up.

This post however is on principles, and the jurisprudential significance of the decision in  ANI Media v. OpenAI (2026 DHC 5900), because the principles are what will outlive the parties.

1. The first thing the court does is close a door that should have been closed long ago. ANI leaned on Walter v. Lane, the House of Lords decision from 1900 that gave a reporter copyright in his transcription of a speech. The court holds that Walter v. Lane was decided under an English statute, originality under which was determined by a “sweat of the brow” standard, and that India has rejected the sweat of the brow standard on which it rests. What governs in India is the “skill and judgment” test from Eastern Book Company v. D.B. Modak, which people keep confusing with the American modicum of creativity standard from Feist. They are different tests. And the skill and judgment involved must be more than trivial. Effort alone, however honest, earns no copyright here.

2. From there the court goes somewhere that matters enormously for anyone who works with facts. It applies the Division Bench in B.D. Bhandari and the merger doctrine applied there. Where a fact can be expressed in only a limited number of ways, the fact and its expression merge, they become so intrinsically connected that you cannot pull one apart from the other, and the expression itself falls out of protection. Copyright lives only in the form and manner of expression (or what one may think of as the packaging of expression), never in the underlying facts, however hard someone worked to gather them. And because news is exactly the kind of writing where the ways of expressing an event are limited, the court holds that the threshold for showing substantial similarity in a news article is higher than for other work. This is the thin protection doctrine.

3. On how you compare two works, the court restates R.G. Anand with some force. You compare the works as a whole. You do not dissect the plaintiff’s work into fragments and hold each fragment against the defendant’s text (in other words – the work as an atom). Infringement is made out only where the defendant’s work is a transparent rephrasing of the original, or takes its form, manner, arrangement and expression with minor changes. Applied to the record, this sank ANI’s output claim.

    Now to the part I care about most, and the part where I both agree and disagree.

    4. The court holds that the reproduction right in Section 14(a)(i) includes storing the work in any medium by electronic means, that the provision makes no distinction between temporary and permanent storage, and that the purpose behind the storage is irrelevant at the infringement stage. So, storage per se sits inside the copyright holder’s rights. I will be honest, I think this is wrong, and I have argued the contrary at length in my own writing. Reproduction, to my mind, is concerned with copying that carries the work to someone. Storage that exposes the work to nobody, storage that no human being ever reads, is non-expressive use and ought to fall outside the right itself, and if that is so the court never needed to travel to Section 52 at all. But I will also be honest about this, the destination is the same either way, because everything the court goes on to say about private use turns on the very fact that nobody is exposed to the stored work. My discomfort is with the route, since Section 52 is a more fluid instrument than the boundary of the right, and fluid instruments are easier to bend (or as colloquially called – indeterminate or conceptually unclear) in the next case. A difference of method, then.

    5. What the court does then with Section 52, however, is, to my mind, the heart of the judgment. It holds that Section 52 is not an exception. It is not a proviso hanging off Section 51. Section 52 independently defines the rights and privileges of users of copyrighted works, it is an integral part of the Act, and it must receive a broad and liberal interpretation. This is now only the second declaration of its kind by an Indian court, after the single judge of the Delhi High Court in Rameshwari Photocopy. I cannot overstate what this means. Once fair dealing is a user’s right rather than a grudging carve out, every future fight about education, research, access to information and access to technology starts from different ground. Think about the implications for access to paywalled articles!!? How do I exercise my (now!) right to research a paper behind a paywall? Scihub is gone!! Public libraries (with legal deposit requirement) are dysfunctional! So what? How to?

    6. Working through Section 52(1)(a) itself, the court applies a two part examination, a purpose test (whether the purpose falls within one of the subjects stated in Section 52(1)(a) and a fairness test (or the test of fair dealing), and under the purpose head it does three things that carry massive implication.

    (i) It holds that commercial use is not excluded from private or personal use including research. Parliament knew how to say non-commercial when it wanted to, and it did say so in several neighboring clauses of Section 52, and it chose not to say so here. A journalist reports the news for money and still enjoys the fair dealing defense for reporting. A reviewer is paid and still enjoys the defense for review. The court refuses to read into sub-clause (a) of Section 52(1) a limitation the legislature left out. It draws support from the Notes on Clauses to the 1994 amendment, which said in so many words that an unduly narrow reading of private study would result in harassment to the public.

    (ii) The Court then holds that private use is not confined to human beings but extends to juristic entities. If private and personal meant the same thing, one of the two words would be doing nothing, and the 2012 amendment deliberately put both into the provision. Private reaches a closed sphere, and a company can occupy a closed sphere. The training data here is accessible only to the models themselves, no human being can reach it, access it or download it, and the court holds the use is therefore purely private. B. Malini Mallya, where the Supreme Court extended Section 52(1)(a)(i) to a dance performance at an educational institution, supports the expansive reading. Interestingly the court held the use by Open AI to be private because no one beyond the organization would be exposed to the contents of the work being used or copied – essentially non-expressive use. Thus, instead of reading non-expressive use as an inherent limitation to the scope of rights, the Court read it as a part of private use.

    (iii). And then the boldest move (and honestly vulnerable from a literal interpretation point of view – which I hope is not applied), the court reads research separately, refusing to treat it as swallowed by private use, and gives it what the interpretation using the doctrine of updating construction. According to the Court, Research is no longer confined to humans, though it remains at the behest of humans and for the benefit of humans, and thus research ought to be interpreted more liberally to include use for training LLMs. It will be interesting to see how this reading of the research provision is interpreted when it comes to accessing paywalled articles for the purposes of both human and machine learning.

    7. Importantly, ANI argued that the fair dealing defense is available only where the stored copy is itself a non-infringing copy. The court reads the Explanation to Section 52(1)(a) and holds that the non-infringing copy condition attaches only to the incidental storage of a computer programme, and to no other class of work. Otherwise, the court says, a researcher who photocopies a page in a library would be protected while the same researcher who scans and stores the same page would not be, and that distinction between paper and electronic storage cannot be the intent of the provision.

    8. On fairness, the court does something I found genuinely refreshing. It declines to adopt the American four factor test, notes that Indian courts have never actually settled on a single test, and builds three factors for the case at hand. It asks (i) whether the use stays confined to training, (ii) whether it sets up economic competition that prejudices ANI’s legitimate interests and causes it actual or potential damage, and (iii) whether the functions performed serve the overall public interest. On the first, nothing on record showed OpenAI using ANI’s works for anything except training. On the second, ChatGPT is a general purpose tool, and ANI is a news business, their markets are different, ChatGPT’s responses do not substitute for ANI’s syndication feed, and ANI placed nothing on record beyond bare averments to show lost subscribers or lost revenue. On the third, the court found the public benefits of the technology considerable, in research, education, translation, accessibility and access to information.

    9. So, this leaves us with a judgment that provides a lot of “hope” at least on the jurisprudential side. Is this a tangible outcome of a multi-billionaire defendant, which has until now (maybe except Radio), been a rarity in Copyright disputes?

    P.S: What happens to the Part 1 of the DPIIT Report, the entire premise of which is, now, entirely shaken?

    Submissions of Flux AI Labs in the matter (prepared by Shivani Vij, Shrutanjaya Bharadwaj and myself)

    A compendium of extracts from precedents (bookmarked for anyone interested to look at) on what all we relied upon in principle.

    My writing on AI and copyright:

    WIPO, Wandering, and a Week with the Archives: Some Quick Notes from Geneva

    Image from here.

    Namaskar.

    I write this as I return from a whirlwind week in Geneva—a city I had long longed to visit. Partly because of my PhD work, partly because of its place in the history of international (IP) law, and partly because some cities acquire an almost mythical quality when you spend years reading about them before ever setting foot in them. Geneva was one such city.

    Thankfully, SciencesPo generously provided the funding that made this long-standing wish a reality.

    Much like I did after my archival adventures at the British Library in London, I thought I’d set down a few practical notes for those interested in conducting research at the World Intellectual Property Organisation (WIPO).

    As I have noted before, archival research can often feel intimidating, especially when the institution in question happens to be one of the most influential international organisations in the IP universe. Throw in layers of bewildering bureaucracy, security protocols, institutional formalities, and dare I say …. enough acronyms to populate a small dictionary, and things can appear rather daunting.

    If that’s what you’re thinking, I hear you, dost. I do, yes, I do.

    But here’s the good news: WIPO is far more accessible than one might imagine. Like many large institutions, it becomes significantly less intimidating once you find the right person to guide you through its labyrinthine corridors—both literal and metaphorical.

    In my case, that person was Dr Edward Kwakwa, whom I had the pleasure of meeting at a conference in Finland last year, organised by a dear friend and mentor, Dr Daniel Acquah. An honest ask, a sincere follow-up and voila — an archival aspiration suddenly became a practical possibility.

    For those uninitiated, WIPO is the United Nations specialised agency for intellectual property, established in 1967. Depending on where one positions oneself politically, WIPO is either a champion of global innovation, a sophisticated vehicle for the internationalisation of Western IP norms, or—as is often the case—a fascinating olio of all of the above.

    Whatever your ideological inclinations, if your interests lie in the history of IP, international law, development, technology governance, or the broader politics of knowledge production, WIPO’s archives are a treasure trove. Buried within those boxes and files are stories of negotiations and norm-making, diplomatic dramas and developmental debates, institutional anxieties and geopolitical ambitions, and competing visions of the global knowledge order—some forgotten, some flourishing, and some still fighting for relevance today.

    So if any of that sounds remotely interesting, make the trip.

    First Things First: Thanks to Sahana and Colin!

    Before I get to the practicalities, two people deserve special mention.

    The first is my dear friend and colleague, Sahana Simha, currently a fellow at WIPO. Sahana not only hosted me but also shepherded me through the peculiar puzzles of a new city and a new institution! Every researcher needs a friendly local guide; I had the good fortune of finding one. She is the reason my first day—and indeed my entire stay—was considerably less chaotic than it might otherwise have been. May all travelling researchers be blessed with a Sahana-esque host. 

    The second is Colin Wells, Archives Management Officer at WIPO. I can’t emphasise this enough that archivists and librarians are the unsung heroes of historical research. We academics may eventually get our names etched onto articles and books, but archivists and librarians are the people who rescue order from chaos, retrieve forgotten files, and, of course, save us from ourselves.

    Colin did all of this with praiseworthy patience and precision. He arranged materials in advance, answered (or perhaps endured) my endless questions, and ensured that my limited time in Geneva was spent reading documents rather than chasing them.

    I am deeply grateful to both of them. May their tribe increase!!!

    Now … comes the Practical Bit

    A small caveat at the outset: WIPO’s archival programme is still something of a work in progress. Unlike older institutions whose archival systems have been polished over decades, WIPO’s Archives department is still in its salad days—growing, evolving, and finding its feet. But do not mistake juvenescence for inefficiency. The team is helpful and even enthusiastic about facilitating research.

    The key is simple: plan early and coordinate carefully.

    The first step is to identify relevant files from WIPO’s archival catalogue, which can be obtained by contacting <wipoarchives@wipo.int>. Alternatively, you can simply send a general query and seek their advice. Once you have a sense (or at least an inkling?) of what you need, contact the archives team with your specific request. Subsequently, they will review the materials, determine accessibility, and guide you through the process.

    As you might imagine, WIPO is not the sort of place where one simply saunters in with a notebook, a laptop, and an oozing optimism. Security is taken rather seriously. Dates have to be coordinated well in advance, and once your visit is approved, the archives team will alert security and ask for your identification details beforehand. You will then be issued a visitor badge, which must be faithfully collected each morning and surrendered at the end of the day (no, this is not negotiable). The library is open from 9 a.m. to 5 p.m. And they are, in the nicest possible way, quite strict about those hours.

    Once all that is done… voilà… You have successfully navigated Geneva’s gentlest gauntlet of bureaucracy. You will then be allowed in the WIPO Library within the main complex. This became my temporary habitat from Monday through Friday, where I sifted through files and scanned a potpourri of pages.

    One of the curious joys of archival research is that you may arrive with one question and leave with twenty more. The WIPO archives, which I am only beginning to pore over carefully, will be no exception. Given my limited time, I confined myself largely to materials relevant to my immediate interests—the discourse surrounding international copyright law between roughly 1900 and 1950.

    Even then, the archive kept tempting me down new paths. I will share some stories in the coming days here at this site, at SpicyIP, or IPRMENT. Keep an eye on the space.

    In sum, if you are considering archival research at WIPO, my advice is simple: plan ahead, contact the archives team early through the above-mentioned email ID, be patient with the process, and leave ample room for serendipity. Well … the archives may be carefully catalogued, but the most delightful discoveries seldom are.

    Such is (archival!) life.

    I hope these notes prove useful to anyone contemplating a research trip to Geneva. If you have questions about the process, do leave them in the comments, and I’ll do my best to answer.

    Happy hunting.

    LV

    P.S. An unexpected yield of the visit was a rapid introduction to Bangalorean English. By week’s end, I was emboldened enough to confidently tell Sahana, “Macha, put off one scene, no!” Quite what I meant by this—and whether I used it in the correct context—remains shrouded in uncertainty (just like unexcavated archives). But it is, without question, a linguistic achievement that may ultimately outlast anything I unearthed in the archives.

    See you in the next post!

    Dr Tharoor at JLF Belfast left me Problematising Indian Personality Rights Jurisprudence

    Photo taken by Niharika at the event.

    Salam/Namaskar,

    This post is not from me but from Niharika Salar, a PhD candidate at Queen’s University Belfast, working on questions around identity and geographical indication law in the traditional craft space under the supervision of Professor Giancarlo Frosio and Dr Pratyush Nath Upreti. Niharika, besides being a sagacious scholar with teaching and research experience across India and abroad, is also a dear friend and a generous source of guidance and goodwill. Some of her perspicacious pieces can be found on SpicyIP here, here and here.

    In this post, she reflects on her recent experience at the Jaipur Literature Festival in Belfast and nudges towards a possible connection between such cultural crossings and the complex, evolving—and dare I say consternating—jurisprudence of personality rights in India. Here’s her LinkedIn profile if you wish to connect with her. Here goes Niharika …

    Dr Tharoor at JLF Belfast left me Problematising Indian Personality Rights Jurisprudence

    Niharika Salar

    A few years ago, I wrote something about personality rights in IJLT and recently found myself revisiting those thoughts, albeit with a different focus.

    So, last week, the famous Jaipur Literature Festival was travelling to the island of Ireland, where Dr Shashi Tharoor was speaking on the theme “Living Constitution.” I was looking forward to it for 2 reasons. One, the intellectual kind, because the themes were interesting to me. Two, the cultural kind, because social media and meme culture had long sold me on Tharoor as the articulate, witty, quotable Indian public intellectual. A fellow Indian-origin PhD student I mentioned this to was unmoved. “He says nothing of value,” they said, “just in a well-articulated manner; when was the last time you heard him speak of the interests of the people of his constituency?” My excitement remained unhinged.

    Nevertheless, the lecture theatre was packed, largely with the Indian diaspora. The talk was good. Even substantive for that matter. But everything else happening in that lecture theatre made me observe things I didn’t usually before. 

    This was not about Dr Tharoor himself but about what celebrity and public intellectualism seem to mean in the Indian social imagination, irrespective of the border. And that, in turn, prodded me to ponder whether there might be a deeper connection between the (egregiously) evolving jurisprudence of personality rights in India and the need to deploy more robust socio-legal research tools—tools capable not only of finding answers, but of reframing the very questions we ask in the first place.

    During open Q&A, I noticed that almost every person who stood up to ask a question was of Indian origin. And almost every one of them stood up, physically rose from their seat, which is, in my limited experience of international academic and literary events, not the default. Was it respect? Reverence? Something harder to name? Whatever it was, it was selective because this did not happen in other sessions at the same festival.

    When the session ended, a young boy wanted a selfie with him, and Dr Tharoor said, “Yes, let’s do it outside.” As if he almost knew and was prepared for what came next. After stepping out of the lecture theatre, I watched the chaos around him. People were excited to interact with him and be in the same frame as him. Then I heard someone call out, half-amused, half-exasperated: “We’re in Northern Ireland, we can at least queue up!” Before I had fully processed that sentence, two women were arguing loudly because one had taken too long in her selfie and encroached on the other’s time with him.

    This was anything but new to me, as I am well aware of the celebrity-worshipping culture back home, sometimes even a party to it. The intensity of parasocial attachment to public figures, like politicians, film stars, cricketers, and now intellectual-celebrities, is a well-documented feature of Indian social life. What was new to me, or rather what I experienced for the first time, was that it does not disappear when Indians move abroad; if anything, displacement can intensify it, turning familiar public figures into anchors of cultural identity.

    But I found myself thinking about a different, more specific question: could this same cultural substrate help explain why personality rights jurisprudence in India is developing the way it is? While I don’t delve into ‘how it can do that’, I posit it can.

    So, what does this have to do with Personality Rights?

    Personality rights or the right of publicity, depending on which jurisdiction you are in, is the legal protection of a person’s name, likeness, voice, and persona from unauthorised commercial exploitation and is not a new concept globally. But in India, the jurisprudence has been developing with a particular urgency but mixed flavours. Indian courts have granted injunctions protecting the personas of film stars, cricketers, and politicians with a scope that sometimes outpaces comparable jurisdictions. The underlying legal architecture borrows from passing off, privacy, and publicity rights, but the intensity of the protection and the categories of people seeking it reflect something beyond doctrinal logic alone.

    If celebrity status in India is not simply a form of fame but something closer to a social institution, then the relationship between public figures and their audiences carries deep emotional and cultural meaning. Fans often see celebrities as symbols of identity, community, and even devotion. In that context, the commercial value of a celebrity persona is rather shaped by powerful social attachment. As a result, an unauthorised deepfake of a Bollywood actor or a false AI-generated endorsement by a cricketer does not merely mislead consumers. For many people, it feels closer to a form of violation or desecration. Courts operating within this cultural environment, even unconsciously, may be responding to that deeper social significance when deciding such cases.

    I am not saying that the law is merely validating mass feeling. But law does not operate in a social vacuum, and personality rights, more than most areas of IP (as they are increasingly becoming), sit at the intersection of identity, cultural meaning, and commercial exploitation. Understanding why Indian courts have been expansive, why certain claimants get robust protection, and why the remedies are often immediate and sweeping requires you to understand what celebrity means and what persona has to do with the social fabric that law is trying to govern. 

    This is, at its core, an argument for socio-legal research in IP law, which is a field that often prides itself on technical precision and resists the messiness of social context. The assumption, sometimes implicit and sometimes explicit, is that IP doctrine can be adequately understood on its own terms: through precedent, economic rationale, and comparative analysis with other jurisdictions. Socio-legal inquiry can seem soft by comparison, even indulgent.

    But the JLF Belfast afternoon suggested something different to me. The question I never got to ask Dr Tharoor – whether dowry-related crimes (I was aghast at the recent developments in the Twisha Sharma case) in educated, upper-middle-class families are evidence that certain practices are so deeply embedded in the social fabric that legal prohibition alone cannot contain them – is in some ways the same question I am broaching here, just in a different register. Can law, whether constitutional or intellectual property, fully govern a social phenomenon that it does not also completely understand? And do we, as researchers, produce more accurate legal analysis when we pay attention to the world in which the law is actually operating?

    I think the answer is yes. 

    Perhaps… the selfie argument in Belfast, in its small way, is a data point about what public figures mean to people, about how that meaning travels across borders, and about why a legal system shaped by the same culture might extend protections that look, from the outside, disproportionate. Perhaps this is not even a new phenomenon. 

    But maybe revisiting the criteria through which we frame these questions can help us understand the problem differently. What are the social, cultural, and even epistemic conditions that make celebrity worship make sense in the first place? (see generally, “Conditions of Possibility”) While Indian courts have been increasingly willing to hand out personality rights injunctions, there lies a more fundamental question underneath that willingness: what (not who) is a celebrity? Who gets to have access to become one? Does celebrity change with the medium through which it is produced? Was television really the decisive turning point for persona-based fame, or has social media fundamentally altered the scale, intimacy and velocity of it? And in an era of algorithms, influencers and carefully curated online selves, how much of a celebrity persona is “real” nd how much of it is manufactured performance packaged as authenticity?

    Law is in many ways constantly responding to shifts in social and cultural values. I do not think that is necessarily a flaw to be corrected, but a phenomenon interesting enough to be studied on its own terms. The seemingly simple questions posed in the preceding paragraphs merit closer examination than they have thus far received. 

    P.S.: Sorry, Dr Tharoor, for invoking your likeness to pen these thoughts; hopefully, your May 2026 Delhi High Court order does not extend this far. 

    A Curious Copyright Footnote of 1938 Proceedings of the American Society of International Law at Its Annual Meeting

    Image from here

    Bonjour,

    I found something today, not that dazzling or dramatic (like I found before), but perhaps a useful little footnote at the very least.

    While the postwar shift in U.S. copyright policy—from pirate nation to IP policeman—is hardly news, it is still striking to see it stated so plainly on record by Richard C. De Wolf, then Law Officer of the U.S. Copyright Office. There are, of course, other sources that point in the same direction, but having lit upon this one, I thought it worth flagging for further scrutiny. I came across the remark while leafing through the 1938 Proceedings of the American Society of International Law. There is nothing revolutionary here … but only the sort of archival soupçon that lends a scholarly piece a sharper, more serviceable footnote.

    Source: Wallace McClure & Clement L. Bouvé, International Law of Copyright, 32 Proceedings of the American Society of International Law at Its Annual Meeting 44–62 (Apr. 28–30, 1938). https://www.jstor.org/stable/25656973

    At page 56, De Wolf remarks:

    The question is always coining up: Why is it that the United States, which has long been a party to other conventions for the protection of intellec tual and industrial property, should have so long remained outside the Con vention for the Protection of Literary Property.

    I think a little reflection answers that question. We have been, in regard to inventions, a creating or producing nation. Our inventions have gone abroad and our interest has been to see to it that an American inventor was protected in foreign countries without too much difficulty. On the other hand, until quite recently the United States has been a consuming country with regard to the creations of the mind in the narrower sense, that is, works of literature and art. Therefore, the interests of the exploiters of literary property have prevailed in this country over those of the producers. But now the shoe is going onto the other foot. Since the advent of American motion pictures and a certain type of popular music, Europe has come to be much more largely a consumer of American products of these kinds than it was in earlier times. Consequently we are beginning to think of the interests of our own creators of literature and art in foreign countries and we are asking the question why should we have to go to thirty or forty different foreign countries and perform formalities in those different countries in order to be sure that these works of ours are protected there. 

    Something seems inherently wrong and repugnant to logical thinking in the idea that a man, having written a book?and I presume among all of this audience there is no one who has not done it or has not thought of doing it? should have to go through a lot of burdensome formalities in order to have that work copyrighted in every different foreign country. Of course this was the aspect of the thing that was present in the minds of the people who for mulated the International Copyright Convention. Each country, of course, preferred to legislate for itself; each country had a certain national policy with regard to what should be done to protect copyrights and, of course, wanted to adhere to that with regard to the works of foreign authors. 

    But after a while the system broke down. An Englishman writing a book had to attend to formalities in twenty-five or thirty foreign countries, and a Frenchman likewise. The formalities became so burdensome that every body got together and said, “Here, we will all make some sacrifices. We will sacrifice our national inclinations so far as the citizens of other countries are concerned and, in return, they will sacrifice their inclinations so far as we are concerned, and we will all get together and wipe out the formalities. And the fact of the matter is that the system has worked, and I am sure they would not think of abandoning it. Yet, as Colonel Bouve has pointed out, each country is left with a wide latitude with respect to its own citizens and also with respect to the assertion of protection in the courts of the country. 

    It seems to me that the time has now come when the United States must take up this question seriously. In fact, it has been taken up seriously for some time past. When I first came to the Copyright Office thirty years ago I met Thorvald Solberg, who then and for many years afterwards was Register of Copyrights and whom you know as a persistent advocate of the adherence of the United States to the Copyright Convention. I am frank to say that I imbibed these views from him, and I hold them now. I think that really will be the next and greatest advance in the field of copyright law which is now open to the United States.

    Okay. That’s it from my end today. See you in the next post.

    Thanks

    A Quick Note on Archival Research at the British Library

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    Salam/Namaskar,

    A few months ago, while working at the British Library in the UK for my PhD research, Akshat suggested that I put together a short note, a quick guide, of sorts, on conducting archival research there. I must note at the outset that I remain a novice in this space, learning as I go, and understanding the rhythms of the British Library’s reading rooms. What follows, therefore, is not a definitive directive but a modest, even meandering reflection on my own experience.

    1. Registration and Access: Access to the British Library begins with getting a Reader Pass. To do this, you must: Provide a valid identification document with proof of address. Importantly, anyone from anywhere in the world can register, provided they have a valid address and the required documentation. See here for more information.

    2. Choosing the Reading Room: Once registered, the next step is to determine which Reading Room is most relevant to your work. The Library has several rooms, including Manuscripts, Newspapers, Rare Books, and the South Asian reading rooms, etcetera. Please note that materials related to your field may not always be limited to a single room. For example, even if you are working on copyright law, you may find useful material in the Newspaper section, Manuscripts, or South Asian collections. You can search them here.  Personally, I usually begin with the South Asian collections, as much of my research relates to colonial and Indian copyright history.

    3. Using the Online Catalogue and Requesting Materials: The British Library website and catalogue are central to the research process. You can find all the catalogues in our collection https://www.bl.uk/collection, which holds over 170 million items–something that grows bigger every day. Speaking of my my, here’s how I do it. I begin with broad search terms (for example: “British copyright law,” “Indian copyright,” or “international copyright”) on this Archives and Manuscripts Catalogue, but you can also check the Main Catalogue.

    Once you see a relevant document, you can either submit a request online using your account (you have to create one) or, in most cases, you can use this Request form to access the material. Accuracy is crucial when filling out the request form — particularly when selecting the correct “collection area” or designated reading room. See the image below for what I mean by the collection area. If this is entered incorrectly, the request may be rejected. 

    It takes around an hour to receive your requested material, so you must submit the request on time. For example, if you request it in the late evening around 3 PM, you may receive it by 4, but you cannot finish reading it, as you will need to return the material by 4.40 PM, as many reading rooms close at 5 PM. 

    Of course, you cannot make unlimited requests. As I was informed, you can make up to 10 requests per day. At any given time, you cannot have more than 30 items requested or in circulation. (But do confirm this …) If it’s your first time, don’t worry. The librarians are extremely helpful, especially if you know: the relevant years, the names of individuals, or the type of document you are searching for. Please know that while photography is generally permitted, in some cases, you may obtain permission from the reference staff, but this is not guaranteed.

    Final words

    Archival work itself can be demanding. Locating relevant sources is surely difficult, confusing, and even taxing. What I typically do is treat each document as a lead: once I see a name, a reference, a date, or a piece of correspondence, I follow it further. One file points to another, and gradually a network of connections and a story begin to emerge.

    To give a concrete example: While researching the history of the Indian Copyright Act of 1847, I encountered references to Lord Hardinge, who was the Governor-General of India at the time. While I have yet to investigate this trail fully, a search of the catalogue for correspondence from 1846 to 1849 reveals that files containing his letters do exist. On my next visit, I plan to check the specific letters mentioned in the copyright file discussions. In doing so, I hope to trace the exchanges more closely and see the history(ies) surrounding the drafting of the Act.

    In sum, the key is simply to begin ‘somewhere’ — with a topic, a name, a year, or a letter — and then follow the trail with care.

    Okay, that’s from my end for now.

    À bientôt, de vous revoir.

    An Interesting 1965 Piece: International Copyright and the Soviet Union by Allan P. Cramer

    Image from here

    Namaskar/Salam

    So the other day …. I fell, most unwillingly but quite happily, down a rather curious piece (though I confess I only truly read it now, as one does with the more tempting of intellectual distractions! Alas, life is such).

    It was a piece from 1967 in the Duke Law Journal, a slender sixteen-page text … dressed in all the full regalia of the American law review tradition. I mean … the dense, deliberate, and detailedly footnoted text, as though the citations are contesting for attention with the text they adorn.

    But there is something else as well that ignites my interest in this piece. For one, there is, I find, something rather beguiling about writing on Soviet copyright discourse. It remains strangely under-visited in English scholarship, or at least, not easily sighted in the usual mainstream historical scholarship. Perhaps it is hiding in some archives acloves, carrying the digital dust … awaiting more patient, more persistent pursuers. At times, I suspect I ought to search more earnestly; there is likely an entire cartography of thought yet unmapped.

    Secondly, as I suggested above, I liked the citations of this piece, which detour into forgotten corners, pause for brief historical asides, and occasionally seem to breathe with a life of their own. One begins to feel (at least I did) that the author took greater pleasure in the footnotes than in the main text itself.

    (Well … if one were ever inclined toward an IP trivia night, this is the sort of piece one would chip in, quietly and watch the room slowly realise that copyright discourse is far more entertaining than it had dared to assume.)

    But I shall not linger in preamble any longer. Below follows the citation of the piece, and thereafter a fragment of its introduction

    Citation: Allan P. Cramer, International Copyright and the Soviet Union, 1965 Duke Law Journal 531-545 (1965). Available at: https://scholarship.law.duke.edu/dlj/vol14/iss3/3

    INTRODUCTION (footnotes omitted)

    THE COPYRIGHT laws of a country have no extraterritorial application. Nevertheless, practically every nation in the world, by adherence to either bilateral or multilateral treaties or conventions, protects copyrights of foreign nationals. The Soviet Union alone among the major world powers has refused to recognise international copyright and does not adhere to any treaty or convention for the protection of copyrights. As a result, that country’s state-controlled publishing firms have, generally without seeking permission or paying royalties, printed whatever foreign works they felt were suitable for Soviet minds. During the period from 1917-1950, it has been estimated that one billion copies of books protected by foreign copyright were published in the Soviet Union. Among these were more than seventy-seven million copies of 2700 books by some 200 United States authors, including Jack London, Mark Twain, Theodore Dreiser, Upton Sinclair, Erskine Caldwell, Sin-clair Lewis, John Steinbeck and Ernest Hemingway.” Numerous foreign scientific and technical publications, short stories, plays10 and miscellaneous articles¹¹ have also been published in the U.S.S.R. Thus, that country has been characterized as “the world’s most active literary pirate.”This article will consider various reasons for the Soviet Union’s position concerning international copyright. In addition, it will outline some attempts which have been made to change the Soviet view and evaluate future prospects for the solution of the problem.

    Do take a look at the piece. Happy reading …

    See you in the next post.

    A bientôt.

    Interesting Reading: 19th Century’s Conference Culture and Belgium’s Soft Power

    Image from here


    (This post continues a series where I share readings that I’ve found useful or, at the very least, intellectually stimulating. See here and here.)

    Salam/Namaskar

    The nineteenth century was somewhat a moment for international law. It was marked by a distinctive, I’d say, thought style in which organising international congresses to address perceived “social problems” became almost a thing. Intellectual property (IP) treaties were no exception. The late nineteenth century, as Bentley and Sherman claim, was a period of consolidation of IP laws and the beginnings of IP expertise as a specialised legal field. (Its a must-read book for IP history enthusiasts!)

    I recently chanced upon two pieces that speak nicely to this broader historical moment, and I think our readers here may find them both useful and intriguing. Before pasting their abstracts below, let me briefly flag what they offer.

    The first piece looks at the international congresses held between 1846 and 1914. ‘Tis a short yet sharp account of the early conference culture of internationalism—mapping not only the sheer proliferation of such meetings, but also the kinds of ideas, aspirations, and even anxieties that circulated within them. It can be a useful piece for someone willing to dig deeper into this topic. For those interested in IP like me, this can turn useful in tracing the genealogy of international copyright law.

    Belgium, as is well known, emerges as a key site in this history. Brussels hosted a remarkable number of international copyright meetings, most notably the 1858 Congress, arguably the first serious attempt to forge the foundation of international copyright law, which would later become the Berne Convention. The second piece offers why Belgium came to organise so many international congresses in the first place. These congresses functioned as a form of soft power.

    Read together, these pieces help situate international copyright law not merely as a doctrinal or treaty-based development, but as part of a wider nineteenth-century culture of conferencing, expertise-building, and international problem-solving—one where law, politics, and power were deeply intertwined.

    Okay, here are the readings:

    Christophe Verbruggen et al, Social Reform International Congresses and Organizations (1846–1914): From Sources to Data, Journal of Open Humanities Data (2022)

    TIC-Collaborative was a collaborative digital humanities project that focused on transnational intellectual cooperation (TIC) in the long nineteenth century, in particular on transnational connections in the field of social reform. The dataset contains information on over 1650 international congresses and 450 organizations and conference series related to the social question. The project focussed on the Low Countries and a selection of reform areas.

    The piece also provides a gripping graph showing how the congresses escalated after 1845, see page 4

    “Social reform international congresses and organizations, 1846–1914”

    DAVID AUBIN, Congress Mania in Brussels, 1846—1856: Soft Power, Transnational Experts, and Diplomatic Practices, 50(4) Historical Studies in the Natural Sciences (2020) pp. 340-363 (24 pages)

    In 1853, the director of the Belgium Royal Observatory, Adolphe Quetelet, welcomed delegates from several countries to two consecutive meetings that have acquired considerable reputation as the first international congresses of, respectively, mete- orology and statistics. This paper examines the local context where several similar international congresses (on free trade, universal peace, prison reform, public hygiene, etc.) were organized in the same decade. It argues that the new Belgian state developed this new form of international conference in order to bolster its soft power in the Concert of Nations. It also discusses tensions between national interests and global beliefs in the efficiency of science, which arose from these congresses.

    On a tangential (but highly recommended) note, do check out this beautifully penned piece by my dearest friend Shivam Kaushik, How India Learnt to Stop Complaining and Love Copyright. It pairs rather well with the themes discussed here.

    Okay, that’s it for this post! See you in the next post.

    New Paper: Indian Copyright Law in the Age of GenAI: Knowledge/Power, Patchwork, and Peril

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    Bonjour,

    Happy New Year! Hope you had a nice beginning of the year!

    I recently published an article in the Indian Journal of Law and Technology, co-authored with my good friend Luca Schirru. Apart from being a brilliant human being and an exceptionally kind soul (!), Luca is a Post-Doctoral Researcher at the Brazilian Institute of Citizen Science (INCC), Research Coordinator at the Centre on Knowledge Governance, and a Research Fellow at CiTiP, KU Leuven

    Though I must note here that given the rapid pace of AI developments, parts of the piece may already feel dated, and my own understanding of discourse has evolved since we wrote it a few months ago. Nonetheless, the article can provide useful insight into the limitations of contemporary copyright thinking and open up a broader inquiry into what limits our thinking.

    Below is the abstract of our piece. Those interested in the piece can check the full piece here. Full Citation: Vyas, Lokesh and Schirru, Luca (2024) “Indian Copyright Law in the Age of GenAI: Knowledge/Power, Patchwork, and Peril,” Indian Journal of Law and Technology: Vol. 20: Iss. 2, Article 2.
    DOI: 10.55496/ZGDS8505

    Abstract

    Isn’t copyright law an analog relic, striving to stay relevant in a digital world and hoping to survive an AI-driven and quantum-coded future? We argue it is. It is a law, born in a world of paper and print, now finding itself (again) patching its foundations to keep pace with generative AI (‘GenAI’). This unruly, still-developing technology not only redefines creative processes but also challenges the very assumptions of authorship, creativity, and copying. While discussions on this technology and copyright law abound, amid all the noise, one question simmers beneath the surface: ‘Is the very way we approach GenAI and copyright already shaped—if not confined—by the limits of discourse, where the language of law now struggles to think beyond itself?’. This question matters because, by the time the AI/copyright debate reached Indian courts, the terrain of legal arguments, policy proposals, and ideological fault lines appears to have been already drawn.

    From U.S. lawsuits to European policies, the discourse around GenAI and copyright had crystallised into a vocabulary of ‘fair dealing’, ‘licensing’, and ‘exceptions’, leaving little space to rethink beyond the oft-claimed solutions. We argue this is not merely about finding the correct legal answers anymore. It is about the discourse—the invisible architecture of thought that shapes (and saps) what can be said, imagined, or reformed. In India, one can sense the gravitational pull. Our legal debates echo the voices of distant courtrooms and Brussels backrooms. While the facts may differ, the footnotes may change, the lingo may be localised, the skeleton of arguments remains eerily familiar. There is little space, it appears, left to ask the most fundamental question: ‘What do we want copyright to do for us now?’.

    Drawing on Foucault’s ideas of knowledge/power, this paper offers a discourse analysis of the current AI/copyright conversation. We do not aim to critique GenAI reforms per se, but to underscore the discursive boundaries within which such reforms are conceived, debated, and defended. If employing copyright law as the primary tool to deal with Gen-AI-related issues is a trap, the more profound question becomes: ‘Who built it, who benefits from it, and who remains stuck?’. Far from being a jurisprudential vacuum (as the first hearing in ANI v. OpenAI suggested), India’s GenAI debates are already saturated—saturated with inherited ideas, imported frameworks, and invisible hierarchies of thought. This paper is an attempt to lift that lid and let a little fresh air in. After all, it is through the cracks (or perhaps, diagnosing the gap) where the light comes in.

    The post is incomplete without acknowledging the many minds that shaped it. We owe a big thank-you to Bharathwaj Ramakrishnan and Aditya Gupta for their thoughtful comments on earlier drafts! We are also grateful to Professor Sean Flynn, Director of PIJIP, where both of us have worked (and continue to work) in different capacities. Many of the ideas in the piece were forged, consciously or otherwise, in there. And, as is often the case, several strands of thought in this piece owe their origin to my long conversations with Swaraj Barooah and other members of the SpicyIP family. And of course, a big shout-out to the IJLT team for their useful feedback and much-needed patience! The usual disclaimer applies: any errors, infelicities, or excesses of enthusiasm are entirely ours. After all, as some wise soul once said, mistakes are what make us human.)

    Cool. À bientôt!