Tag: Public Domain

Mr PATAILLE’s Response to Victor Hugo’s “Domaine public payant” at the 1878 Paris Congress

Image from here

Salam,

In the previous posts, I shared the three speeches delivered by Victor Hugo at the 1878 Paris Conference. (See here: Speech one, two and three) However, there was also a cogent counterpoint to Hugo by Mr Pataille, an author and member of the Société des gens de lettres and its judicial council. As the source document states (mentioned below, page 27), his arguments were presented in a letter addressed to members of Congress, but could not be printed in time for distribution before the vote.

While he remains loyal to the idea of authors’ rights as a form of property, he pushes back hard against Hugo’s more idealistic vision. At one point, he asserts, defiantly so: 

“… Let us remain realistic. – The author is everything, and the public domain is nothing! – Whether the author has released his work to the public or kept it in his desk, he remains the sole and unique owner. — If he can no longer recapture the ideas he has put into circulation, he nevertheless retains exclusive ownership of his name and the material form he has given to those ideas.” 

Well … that sounds spicy! Doesn’t it? And yet, Pataille isn’t blind to solidarity. He also applauds Hugo’s “the grand and beautiful idea of establishing a common fund for men of letters.” but picks holes for two reasons “first, because imposed charity is not charity, it is a tax; second, and above all, because a fund established and financed with public funds for the benefit of an entire category of unnamed individuals would be nothing more than disguised alms, whereas I want any relief fund to be based on the principles of mutuality and solidarity.”

Okay, without much mediation, below is an English translation of Pataille’s letter (via DeepL). For the French original, see pages 27-33, Pataille, J., ed. Annales de la Propriété Industrielle, Artistique et Littéraire, Vol. 25 (Paris, 1880), available through Gallica—the fantastic(!!!) digital archive of the Bibliothèque nationale de France. Needless to say, if you can’t find it there, let me know. I’ll share a copy.

To the members of the International Literary Congress.

Gentlemen and honoured colleagues,

Ever since the issue of authors’ and artists’ rights to their works has been raised and debated, both in times of privilege and since the recognition of equality for all before the law, in publications by interested parties and in the work of legal experts, in congresses and legislative assemblies and, let us say, in the

texts of the laws themselves, there has always been antagonism between those who support authors and those who support the public domain.

There was a time when the struggle was so fierce that the system known as the paid public domain appeared to many good minds as a happy compromise between the two extreme parties; so I was not surprised to hear our great poet and honourable president defend the interests of the public domain with the generosity of sentiment and magnificence of language for which he is known.

But after the incessant conquests of the authors’ party, when there is hardly any discussion left except about the word and we have the thing itself, when almost all modern legislations recognise, under different names, the legitimacy of their rights and are ready to extend their duration and increase their guarantees, I was strangely surprised to to see friends from our ranks and authors ready to accept, as progress and as the law of the future, a system which, in law, is a denial of the property for which I have been fighting, along with so many others , for more than forty years, and which, in fact, constitutes a veritable expropriation of the rights of heirs , with the aggravating circumstance that, place of prior compensation, they are granted only an arbitrary and problematic royalty that is as difficult to collect as it is to determine and guarantee. This is what prompted me to speak at the last session of the Congress and what prompts me to take up my pen today, at the risk of arriving too late.

From a theoretical point of view, the system of paid public domain is based on what I believe to be the erroneous opinion that, once published, a work belongs to everyone or, at the very least, that there are two co-owners with equal rights: the author and the public. Let us examine this as quickly as possible.

In the interest of the public domain, it is always said that authors and artists work on a common fund and that by delivering their work to the public, they are only giving back what they have taken from it. This has been said, and very seriously, in legislative assemblies.

In the interest of the public domain, it is always said that authors and artists work on a common fund and that by delivering their works to the public, they are merely giving back what they have taken . This has been said , and very seriously, in legislative assemblies . I do not think I need to refute the objection in a literary congress. This is obviously confusing the idea, the thought, with the work that is its expression. Proclaiming ownership of the work does not mean seeking authorship of the ideas it may contain, and even if it were true that they were inspired by earlier works, the new form given to the same subject, to the same thought, is enough to make it a unique and personal work. ” Who would dare, as we have written elsewhere, to ask La Fontaine to account for the borrowings he made from his predecessors? Did he not appropriate all the subjects through the charm of his style and the profusion of details and philosophical ideas with which he enriched them? Did this appropriation diminish the public domain? No! The Fables of Aesop and Phaedrus have lost none of their originality, and if there has been imitation, that imitation is in itself a masterpiece, and therefore a new work constituting property. 

“Even though an author has only compiled a work, he has engaged in an intellectual process of appropriation that serves as the basis for a private right, while allowing everyone else to do the same, on the sole condition that they do not take away what is personal in that work . “

Even the most ardent defenders of the public domain are willing to recognise that as long as the work is unpublished, it is the sacred, exclusive property of the author, who remains free to communicate it to the public or to destroy it. – So far, therefore, there is no primary ownership of the public domain, nor even co-ownership. The public remains in possession of everything it previously possessed; it therefore has no claim to assert.

It’s a fact! – But is it right? No! This is the perpetual confusion between, on the one hand, the idea which, once expressed, escapes me and becomes the property of anyone who wants to appropriate it, and on the other hand, my name and the form given to this idea, the book, which remains my property because it is the fruit of my intelligence and my work.

It is said that the author can no longer destroy his work, nor modify it!

But that is the question within the question; it is very certain that once he has entrusted his work to the public and sold copies of it, he will, in fact, find it all the more difficult to buy them all back, as the people who have acquired them will be entitled to reply that they own them by virtue of a regular contract and his own consent.

However, does it follow that, on the one hand, the author will not be able to modify or disavow his original work and, on the other hand, that each of these owners of old copies will be able to reproduce them to his detriment and against his will?

Of course not! – The author’s right of ownership, which derives from the very nature of his creation, is not limited to a simple right to publish or not to publish, to choose his publisher and the method of publication; it necessarily includes the right to prohibit any subsequent publication, either to complete, modify or transform their original work, or even, if they so wish, to keep it silent, as far as it depends on them.  

It is understood that he retains these rights only insofar as he has not voluntarily transferred them to a publisher or a third party. However, as for the public, and especially purchasers, they have acquired and paid for only copies of which they are the undisputed owners with the jus utendi et abutendi, that is to say, the right to use and dispose of them and even to destroy them, but not to reproduce them by printing or other means. Why? Because this is the spirit of the contract that has been entered into between the seller and the purchaser, and which must be interpreted and executed as if each purchaser had signed a deed whereby, acknowledging that they have only purchased and paid for the copy, they undertake not to reproduce it.

If this is true for each individual purchaser, it will be true for all and for the public domain, which is nobody precisely because it is everybody. Once again, no one disputes that the public has the right to profit from the ideas expressed, but that it claim ownership of the work itself , that it claims to have acquired the right not only to draw inspiration from it, but to alter and mutilate it or to make copies or reproductions of it , in order to derive commercial profit to the detriment of the author or his successors, is something that we will never accept. In reality, he has only a right of use.

If we argue that it is in the public interest for certain works to fall into the public domain as soon as possible, so much the better! Civil law is there for that purpose. In its omnipotence, it can decree the expropriation of a literary work, as of any other property, for reasons of public utility, but it must pay for its value. It can even, in exchange for the special protection it grants, limit its duration, just as it limits the duration of ownership of a mine or a railway. This has been accepted by all modern legislation, even by those, like ours, that recognise the principle of authorship.

However, when life annuities and variable rights are gradually being replaced by fixed and certain rights that eliminate uncertainty and make it possible to plan for the future; when the duration of the rights of heirs and concessionaires, which was only ten years not long ago, is now fifty years in France, Russia, Denmark and Norway; when we see so many other legislations ready to follow this path of increasing duration, with Spain, in particular, bringing it to eighty years, I do not understand why we are thinking of going backwards and making the public domain the owner of the work from the death of the author!

Nevertheless, we are willing to reserve a royalty for the direct heirs, to be paid by each publisher. I will not dwell on the difficulty, not to say impossibility, of setting this royalty in a way that is both remunerative and equitable. Any determination made without the cooperation and outside the parties concerned (the heirs and future publishers) will necessarily be arbitrary and, in most cases, unfair, whether a uniform royalty is adopted for all literary works without distinction or whether classes and categories are established.

As I told you at the last meeting, Horace was able to write, in a burst of legitimate pride:

Exegi monumentum ære perennius,

because no one knows what became of his bust and there is not one of us who does not have his works in their library; but it is not given to many to impose themselves on all generations and there are many degrees even among the greatest and most illustrious! Moreover, it is not always the name or talent of the author, nor even the merit of the work itself, that makes a book successful.

Habent sua fata libelli,

says the poet! Some books, indeed, shine and disappear like meteors; others take ten, twenty, thirty years to make their way and are often only appreciated at their true value after the death of the author. If this is true for the works themselves and from the point of view of their intrinsic merit, how much more true is it from a commercial point of view! A novel, even a bad book, will find thousands of readers and make the publisher’s fortune, while a scientific work that has cost its author thirty years of labour and has its place in all the major libraries will find, with great difficulty, only a few hundred buyers. Is it not clear that such a work, even if unpublished, will not find a publisher if, in exchange for the royalties to be paid to the heirs, the publisher does not obtain exclusive rights for at least a few years, and if, by undertaking a costly edition worthy of the work, he finds himself exposed to being overtaken and perhaps ruined by cheap editions!

I am well aware that these objections and many others, which will strike anyone with some practical knowledge of bookshops, can be levelled at the system of paid public domain adopted by the first section, of which I was a member. But you will note that the resolution it proposes to you only allows this after the expiry of the heirs’ absolute property rights. For several members of the section, this was only a compromise and a step towards the declaration of perpetuity, and in any case it did not affect acquired rights, whereas the proposal for a paid public domain applied at the very moment of the author’s death is a step backwards and a real denial of the author’s absolute right. I am well aware that inheritance law is a civil law institution. But it is so in tune with the family spirit and the aspirations of all that it is one of those rights which, if they did not exist, would have to be created. There is no one among us who, when working, does not think about the future and the fate of their children and their property, and if one has the right to leave one’s fortune to one’s children and to bequeath to one’s parents or friends the jewellery or objects one has been most fond of, it is difficult to understand why the law would deprive an author of the right to pass on all or part of their literary works to their spouse, children or even strangers of their choice. What is the point of proclaiming loudly that it is the most personal and sacred of all property, only to immediately deny the author of a literary work a right that is granted to the manufacturer and even to the mere purchaser of a table or a snuffbox?

Our honourable and illustrious president, whose door is besieged by publishers and who has nevertheless made himself an ardent defender of the public domain, has anticipated the objection by proposing an exception for the benefit of publishers who have acquired a work during the author’s lifetime and who, by  derogation from the principle of paid public domain, will continue to enjoy their exclusive right for a period of fifty years . But if it is true that the author loses all his rights upon his death, that his heirs are nothing and that the public domain is the true owner, it is difficult to understand this distinction between transfers made during the author’s lifetime and those that only take effect after his death. In the future, we would have two categories of authors and literary properties, depending on whether or not there was a transfer before death, and we would be exposed to seeing authors, on their deathbeds, calling a notary, not to make a will that would be invalid from the outset, but to try to make a more or less sincere sale to a publisher called in extremis!

No! Let us remain realistic. – The author is everything, and the public domain is nothing! – Whether the author has released his work to the public or kept it in his desk, he remains the sole and unique owner. — If he can no longer recapture the ideas he has put into circulation, he nevertheless retains exclusive ownership of his name and the material form he has given to those ideas. – He alone has the right to revise and modify his work , to judge and assess what kind of publicity suits it, whether it is worthy of a deluxe edition or suitable for a popular edition, and what he has the right to do during his lifetime, he must be able to do after his death, by choosing himself the person or persons he deems most worthy of safeguarding his glory, either by publishing new editions or by preventing truncated and flawed editions that would dishonour his work .

It should not be forgotten that, for an author who is convinced and jealous of his fame, this absolute right to watch over or have his work watched over is far more precious and sacred than that of receiving the proceeds. But even from this latter point of view, I repeat, I do not understand why anyone would want to diminish the author’s estate and disinherit his heirs and legatees for the benefit of the public domain, which has no rights whatsoever as long as those of the author or his heirs exist.

On the other hand, when this property perishes either because there are no heirs or because the period determined by civil law in its omnipotence has expired, I do not understand why the public domain should be obliged to pay a perpetual fee to the benefit of what has been called “the literary family”. Like all of you, I applauded the generous words of our illustrious president, insofar as they expressed the grand and beautiful idea of establishing a common fund for men of letters. But I reject the means – first, because imposed charity is not charity, it is a tax; second, and above all, because a fund established and financed with public funds for the benefit of an entire category of unnamed individuals would be nothing more than disguised alms, whereas I want any relief fund to be based on the principles of mutuality and solidarity. Let everyone contribute their mite in order to be entitled, if necessary, to a share in the distribution of the common fund; let the rich be generous and even give up their copyright in favour of this common fund; nothing could be better! Those who see their share increase accordingly will know to whom they owe it and will bless them. But no taxes! There is fraternity only where there is spontaneity.

Recevez, etc.

J. PATAILLE,

Avocat à la cour d’appel , membre du conseil judiciaire

de la Société des gens de lettres .

A Critique of the Dilution Doctrine in Trademark law

In Dilution Redefined for the Year 2002, the author Jerre B. Swann, Sr., defends the doctrine of Dilution in Trademark law- which protects marks with a reputation across all kinds of products i.e., irrespective of whether the infringer uses the reputed mark in the context of distinct product classes or not- by invoking marketing theories of clarity, clutter, and cognition. His main claims are, first, based on the personhood relation of a proprietor to a mark, condemning any unauthorized use as leeching, given reputation in a mark is like the face of a person- something which is inherently theirs and no one else’s. Second, by shifting focus on the consumer, he argues that distinct and reputable marks enter the consumer’s mind and make them singularly think of a particular thing- the referent that is sold. According to him, out-of-context use of the said mark by someone else who is not its first appropriator erodes the singularity associated with the mark in respect of the information sought to be conveyed. He uses this to argue that singularity retains immediate cognitive responses, and the more number of propositions that come to be related to a signifier or its concept, the lesser the possibility of an immediate cognitive response to the mark. Although the author acknowledges that initially there was criticism of this approach as it seemed to overlap with Copyright law, he shrugs it off by arguing that the ultimate goal of Dilution is to protect mental informational associations/ what he calls “sensations”, of consumers in relation to a brand and its reputation, blindsiding its property-esque characteristics, and enmeshing it with the purpose of protecting consumers from sensation-al, deception.

I criticize the arguments of the author, first, from a semiotic perspective, and second, from the perspective of purposive goals of Trademark law and inherent limits that its doctrine sets on its property-esque character- limits that are often evaporated by the Dilution or the Well-Known mark doctrine, making it incompatible with free expression. I also argue free riding to be a misconceived premise- as what the author refers to as free riding only represents a positive externality that does not cause any harm to the owner of the mark in its context.

First, the author argues that modern Trademarks “convey, among a multitude of other messages- personality, purpose, performance, preparation, properties, price, position, and panache.” The author also postulates his five-step Dilution formula, arguing that the owner of a unique and reputed marketing symbol should be entitled to prevent impairment of its communicative clarity of association by anyone else using a similar symbol. The author refers to this as singularity, arguing the signal value of a mark- word or symbol- to cognitively be linked to its singular association.

What the author misses is the emptiness of these claims when divorced from the particular product i.e., the particular context in which the mark or symbol is specifically being communicated. The singularity of association is expressly rejected not only within the legal substance of the Trademark doctrine but also in social semiotic theory developed by Ferdinand de Saussure as interpreted by Talha Syed and applied in his critique of legal formalism.

Trademark law, itself, rejects this theory of symbols having only singular meanings/associations across all products. The use of the word or symbol “apple” as an apple (as we know) does not erode the possibility of someone using Apple in the context of electronics. If I go to a grocery store and ask for an apple, the store coordinator would not give me an Apple device, and if I go to an electronic store and ask for an apple, the store coordinator would not bring me an apple to eat. Importantly, if I go to an automobile store and ask for an apple, the store owner would be very confused and would not know what to do. Allowing this to happen, Trademark law implicitly rejects this notion of singularity. Further, Trademark law’s prevention of the use of descriptive terms (i.e., symbols already associated with certain products in language) is only applicable in respect of the product it is generally supposed to describe. It does not extend to marketers of other products, lest Apple would never have been allowed to Trademark its word in the context of electronic devices. This shows how Trademark policy, implicitly, dismisses any notion of singularity in the context of a word or its use as a mark.

In any case, when divorced from the context of use, words have no fixed meanings. The context in fact constitutes or generates the associated meaning. Words are merely labels for concepts that have a relational purpose in a particular context. Talha Syed, while interpreting Saussure shows this using the instance of the “Stop” sign, where he argues that neither the signifier nor the sign matters. It is the signified in a relevant context, that evokes association or helps us make sense of what is being communicated. When a “Stop” sign appears for the pedestrian, it does not mean that the pedestrian is supposed to literally stop. It signifies or communicates a concept that is understood in a particular context – the context of the pedestrian walking on a road where cars also move- the concept that- hey pedestrian! you are now advised to see around you for traffic signals and accordingly cross the road. Thus, divorced from context, words have no specific meaning that is signified and are empty labels with no communicative function. Trademark use, essentially, involves similar functional use- i.e., communicating to the user- the particular source of a particular product that is present around other similar products. It thus generates continuous conceptual association of sources in the minds of the consumer in respect of those products, or a family of similar products. There is no presumptuous communicative association that automatically arises across multiple kinds of products. The same word/symbol could signify a different concept forged in a different context – i.e., in relation to a completely different product. This is exactly the reason why cross-class, or cross-product usage of similar marks is allowed in Trademark law around the world.

The context in which communicative association is curated outdoes this logic of singularity and lays the Dilution doctrine at odds with the other features of Trademark law. Trademark law provides rights to exclude to those who coin distinctive associational signifiers to communicate to the consumer that it is their product, however, while doing this- these signifiers automatically become a part of the discursive sphere- vulnerable to be forged in an alternate context. Trademark law allows these exclusions if uses are in the same communicative context – that is in the context of the same product, or similar kinds of products (what is often referred to as the same class of products through the NICE classification system). However, as shown above, if used in a different context, distinct meanings of the same words could be forged to communicate or signify a distinct concept or association. The Dilution doctrine however changes this and extends protection to cross-class/cross-product usage if the mark is reputed, denuding the ability to communicate or forge a separate association using a word/symbol/mark. A criticism of this approach comes back to the apple example- which shows how human minds gradually associate a separate message with a word/symbol in a distinct context. When Apple would have started using the word in the context of electronics, such an association might have initially been awkward. However, the alternate semiotic message to be conveyed gets gradually fixated in a distinct context through constant continuous use. No one who goes to an Apple store or a grocery store, anymore, misassociates these two products which are linguistically communicated using the same word/symbol/signifier. Dilution doctrine erodes this gradual possibility of a word having multiple communicative associations, and misrepresents it by creating the delusion of singularity – something at odds with free speech and communication. Why? Exactly for the reason that provoked skepticism when the Dilution doctrine was first adopted- extending copyright-like rights to exclude over words/symbols/signifiers, to appropriate revenues from every channel that would expose coined terms to the public. And why Trademark law? One of the reasons is the perpetual nature of Trademark excludability.

Trademark law does not aim to incentivize/enable the production of new words. Copyright law, which focuses on the enablement of creative expressions, does not extend rights to exclude to words by themselves considering them building blocks of expression. How do we then justify the argument of the author where he says- for Dilution a symbol need not just be distinctive in respect of the product, but also vis-à-vis other marks? This theory- endorsing competitive edge for coining distinctive symbols- would only seem justifiable if the social interest that the law sought to protect was the enablement of the production of distinctive marks or words. On the contrary, the only reason why the law seems to provide rights to exclude to owners of distinctive marks is to ensure consumers have constant associations of words with certain products in the context of their use. Extending them to all kinds of possible products, in respect of which the mark is not even being used, would be to curb the use of language, and exclude the use of words or signifiers from representing or communicating alternate ideas in alternate contexts- something which Copyright law expressly promotes by rejecting rights to exclude over words. Isn’t Dilution in Trademark law, and Copyright law thus, in fact, at odds, as against merely overlapping?

In any case, treating Trademark excludability as property rights over coined words would extend the kind of protection which Article I Cl. 8 of the US Constitution envisions. However, the perpetuity of Trademark excludability runs at odds with the limiting clause of Art. I Cl. 8. Even if Trademark law is considered a part of this clause (although the same is expressly rejected in The Trademark Cases), limiting the excludability of the coined word to use in the context of the product it represents is this inherent limit– to ensure it does not impede communicative interests associated with signifiers. Similarly, genericide is an inherent limit on the time of protection to a mark, as the interest sought to be protected is consumer confusion/deception (and not enablement or creation of new words). The Abercrombie spectrum further represents this- a mark that is distinctive gets stronger and thus longer protection, in the sense, it’s stronger only because the possibility of its generic association is least, to begin with until it travels and becomes integrated within general linguistic use out of the context in which it was protected. However, once a mark attains a substantial reputation for Dilution to kick in (i) it is already substantially integrated within the language for expressive concerns to begin, and (ii) a consumer being confused by someone using it – is less significant a consequence for the proprietor as against a consumer being voluntarily diverted.

This brings me to the last leg of the critique- free riding, which focuses on diversion by use of the mark, as against confusion. A justification for protection against free-riding is that it creates a negative externality for the Trademark owner by derailing a potential source of income or the possibility of an expanded market. However, a mere possibility of expansion of the market or a potential association of a reputed mark, without creating any confusion, cannot, in my opinion, be a legitimate interest when competed with the interest of using reputed and popular words/symbols that have communicative or semiotic functions. The same is not a viable interest (especially in the case of a reputed mark that already has a significant source of income) to erode semiotic functions of the integrated word/symbol and limit it to a unitary meaning in all contexts. From Hugo Grotius (an early natural law theorist) to Mark Lemley (a recent law and economics theorist), all acknowledge that an interest to use things that are otherwise excluded, without demeaning any legitimate interest of the excluder, is a positive externality and is socially permissible. Thus, in my opinion, the use of Louis Vuitton to sell groceries, although awkward in the beginning, would in no way harm the bag seller in the current time (they may argue that the potential to expand is hurt, but Trademark law should only concern with actual use, not probable use) and would promote a legitimate speech interest of generating alternate associations and forging alternate meanings.

Taking this argument further to the “Rolex” example in Trademarks Unplugged by Alex Kozinski, any seller of the premium watch- Rolex would not be legitimately hurt by a so-called counterfeiter selling cheap watches with the label Rolex on the street, as neither would a consumer of the fake be a potential market of the initial owner nor would there be any associational loss (as no reasonable Rolex customer would be confused or would associate it with the rich person’s Rolex).

The only loss to the proprietor of the reputed mark here is what I refer to as the possible propertarian moral loss. To elaborate, the only interests of the proprietor that are hurt are- (i) third-party associational interests (but that is not a consumer), and (ii) most importantly in the panache of the mark’s associated product, generated by keeping supply low and prices high. However, whether this is a legitimate interest, is debatable. In my opinion, an interest that enhances societal hierarchies inconsiderate of distributive capabilities is not a legitimate interest when competing with the communicative interest of using the word Rolex in a way that does not confuse or deceive consumers (not third parties) about the origin of the associated product sold under that label. An assumption that it is a natural right to protect this interest in maintaining panache through its property-esque formulation is ignorant of the limits that it faces considering competing communicative and socially re-equalizing effects of alternate concurrent use of the expression.

Alpana Roy on De-Colonizing Copyright and Cultural Policy

In this set of 4 posts- I shall be discussing my dilemmas from the Kacha Badam Controversy. The first post covered my thoughts on the delusion that this whole controversy has produced and the need to revamp its factual narrative. The second post covered my thoughts on the hard case that this factual narrative exposes- something I cannot really grapple with yet. The third post brainstormed thoughts on resolving this hard case. Finally, this fourth post will, in the backdrop of these three posts, discuss an amazing paper by Prof. Alpana Roy titled- “Copyright: a colonial doctrine in a post-colonial age” and how her thesis has an important role to play in figuring out/ or rather even further complicating this hard case.

PART-4

In this final post, I am discussing, Prof. Alpana Roy’s paper titled Copyright: A colonial doctrine in a post-colonial age, in the backdrop of the discussions we have had so far. I also had an opportunity of discussing this article in the Critical Interdisciplinary Perspectives to IP reading group hosted by Prof. Anjali Vats, Prof. David Jefferson, among others- which led to a lot of thoughts pushback, and questions. I shall try and put them out here This is also my expression of gratitude to all who turned up for the reading group.

Prof. Alpana Roy’s article, published in the Copyright Reporter in 26th Volume 4th Issue, in December 2008, discusses IP from a sharp post-colonial lens. It is a provocative piece of writing, to say the least.

Setting the stage, Roy clears the air on what colonialism implies and what constitutes de-colonial thinking. She clearly puts it forth that the socio-economic exploitation of the so called “periphery” or alternate, need not always be directly political or dominated by the military. It can also involve continued subordination through the exploitation of the political economy to adversely affect capabilities. She mentions the prevalence of colonial thought in law-making and how it pervades global norms, in sheer ignorance of alternate indigenous realities. This narrative somehow resembles the work of the amazing late Prof. Keith Aoki, on what he calls Neo-Colonialism, and in the context of IP states that- transnational IP system erode concepts of sovereignty and self-determination.

Putting the article in context, Roy turns to International IP Agreements and reflects on the role of these “multifaceted projects” or dominant narratives which primarily reflect/mirror particular moments in the history of Western cultural practice. She emphasizes the importance of this by projecting the dissonance of the norms in agreements like Berne, with nations outside the West. She asserts that Copyright remains a foreign concept in many cultures, and many societies take an extremely radical view on what constitutes property and can be the subject of individualistic private property. In this context, it is important to reflect on the “independent” v. “inter-dependent and inherently social conceptions of the self (the idea of a “family”)” which vary across societies – with the West bending towards the former and Asian societies towards the latter. The law, as it is in its current “global” framings, only accommodates the former, completely ignoring the latter.

She then goes on to talk about a few of these individual dissonant features: (i) print culture (ii) the idea of piracy as against copying and sharing as a sign of respect and recognition- and mentions how such norms being globalized are nothing but a symbol of a dominant narrative used to foster a “one-way traffic around the notion of desirable culture”- consequently moving towards cultural imperialism. It is at this point where she makes her most important argument about this whole system having a far deeper impact than the earlier forms of colonialism, imperialism, or simple tourism, as it tends/attempts to alter the source of the self.

Hereon, she gets into the hard case by discussing the example of “Return to innocence”, supposedly a Taiwanese tribal song, which was appropriated out of a performance by 30 indigenous Taiwanese performers who were invited to perform across Europe by the French Ministry of Culture. A significant portion of these songs was used by a German music entrepreneur and was then also recorded by Enigma- and sold as “his copyright”, without any due accreditation or financial compensation for the use of the said song. She primarily uses this example to first- expose the political economy of cultural practice, and thereafter and most importantly, the political economy of law on culture- and who gets to enforce and who doesn’t. This is important in the context of the debate on print vs. aural culture, as well as in the context of the argument that accesses to a platform to showcase determines who gets to ‘own’. What I am concerned about, in this example, is not the appropriation, but rather the possessive claim of Enigma over this output- dispossessing many others who could have been the actual originators of the expression and should have had the ability to use, build on, or get any financial remuneration in respect thereof. It is in this context that the appropriation is important to be addressed.

Roy uses the “Return of innocence” case to contend how indigenous works fail to fulfill individualistic notions of property rights and are dispossessed from their performers through dissonant norms. She uses this to show how western law, and its hegemonic transposition is highly inappropriate, results in fictitious commodification, and continues to perpetuate the idea of the historic “other” even in law and policymaking. She aligns with Rosemary Coombe who argues that neoliberal conceptions of copyright do not accommodate cultural differences that are difficult to be formulated in terms of a commodity, and are hence difficult to encompass within the conceptual frameworks of “modernity”.

Roy also refers to oral research outputs and argues that as soon as someone publishes all the oral research output they get copyright over it- dispossessing participants and researchers who contributed and undertook research orally but did not/could not really “fix the output in the printed/published form”. On this aspect of fixation, during the discussion with the reading group, Prof. Ann Bartow put forth an interesting question as to- how do rules of evidence work in aural societies? – Historically mapping the same could be an interesting analogy to look at while discussing the irrelevance of fixation norms in non-western societies.

Roy then moves on to how these western cultural norms were exported to colonies by European colonizers as a part of the package of colonization, most prominently in the 18th and the 19th Century. She states that pirating foreign work was still prevalent in free-er countries given the US only joined the Berne until 1989 and offered little protection. To foreign authors until then. Unfortunately, those who were colonized had little say in such policy for their own capability development (I discuss this aspect of IP Gradualism in detail in my paper here).

Roy then moves to the strongest part of her paper where she argues the relevance of printing technology and entrepreneurs in respect thereof in centralizing and transplanting these western norms abroad.  She talks about how printing was essential for the colonial and imperial projects of Europe as their empires could not have survived without the spread of propaganda, religious tacit, commercial documents, maps, charts, etc., among the natives. Here comes the relevance of copyright. She argues that as a form of communication- printing, unlike oral communication, has a tendency of universalizing ideas- and disseminating information through identical texts and making them truths by imposing them through “violent hierarchies” facilitated by the tool of colonialism and the Prospero complex it produces. She talks about how most of the so-called “universal truths” coincided with this enlightenment period of solitary creation and printing technology – that is basically the rise of print medium and subsequently the law of copyright. Importantly she reiterates that this exchange was not happening among “equals” but rather as an imposition in a colonial setup.

Upon political decolonization, Roy writes that there were some modest attempts at resisting western copyright by the Global South, in the context of the inability to translate and develop knowledge, however not to any structural yield. Thes prevailing norms have not only been normalized but have, through TRIPS, also been universally accepted (read: imposed), and are now a part of public international law.

Moving on to a consequential analysis of these norms, embedded with capitalism and the global political economy, Roy quotes Butalia, to argue that it is impossible to separate the world of Copyright law from the world of politics, as knowledge, culture, and access are inextricably linked with power, power is linked with money- and both of those are linked with history– something which cannot be repaired easily. In my opinion- this brings us back to the hard case and the relevance of reparative solutions to be intermingled with systemic change and to look at the same as complementary rather than as an either/or binary.

Roy finally concludes by referring to how copyright is nothing but a tool to merely further the trade and capitalist interests of western societies. However, a consequential corollary of this, which Roy misses in her analysis, is the impact of such a tool on identities and cultural estrangement- the “othering” of non-marketable culture. We might be celebrating Bhuban and his expression today, but that is only because he and many others like him, who do not fit in to this marketable system have been othered from cultural identity framing discourses and economic benefits in respect thereof, for a long, long time. As Macneil argues, we cannot subordinate the subsistence of society itself to the laws of the market, and the interest of the marketers, as it disenfranchises humans of the ability to direct the trajectories of their social institutions. We cannot, as a society afford to do this, as the same is nothing estranging identities.

To conclude these posts, the takeaway I seek to present is-  the need for scholarship, research and thought on –

How to ensure that identity interests of self-determination (including remunerative concerns), especially of those who have been denied the same for long, are retained-  without resorting to dissonant logics of property rights as tools of affirmative action?

Hope we have enough food for thought! Do reach out if anyone wishes to discuss any of this. I am available at 97akshatag@gmail.com

Part 1- here

Part 2- here

Part 3- here

“Kacha Badam” debate presents the Indian ‘Hard Case’?

In this set of 4 posts- I shall be discussing my dilemmas from the Kacha Badam Controversy. The first post covered my thoughts on the delusion that this whole controversy has produced and the need to revamp its factual narrative. This second post covers my thoughts on the hard case that this factual narrative exposes- something I cannot really grapple with yet. The third post shall brainstorm thoughts on resolving this hard case. And finally, the fourth post will, in the backdrop of these three posts, discuss an amazing paper by Prof. Alpana Roy titled- “Copyright: a colonial doctrine in a post-colonial age” and how her thesis has an important role to play in figuring out/ or rather even further complicating this hard case.

PART – 2

To put the idea of the hard case (not in the Dworkinian sense of “principle” but rather qua policy)  in context, I would refer to how I began thinking of it. While reading the wonderful Prof. Anjali Vats’s book- The color of creatorship, I came across an interesting narrative in the context of the Blurred Lines case in the US (Williams v. Bridgeport Music Inc. (2015)). What Vats mentions is that reading the Blurred Lines case is a complex negotiation in the backdrop of a legal system that consistently disenfranchises Black creators of the ability to come across as winners. The case was a historic instance, hailed by many, where, in a copyright infringement action, a Black creator was given a favorable judgment on infringement over, as Vats mentions, “white vultures” of the music industry. This was in a situation that was debatable from the lens of the infringement standards practiced in the US (given it involved ambient sounds). Now- there were two schools of thought that emerged after this case (both belonging to the larger roof of social justice scholars– however taking completely opposite stands on this issue):

The case was significantly hailed by a school of thought as a moment of reparation for black creators, who were significantly appropriated for a larger part of music history, without any sort of monetary compensation. It was an instance helping move toward a legal remedy for more than decades of appropriation of black artists. It was also appreciated as an instance that recognized the protectability of black musical practices.

HOWEVER

A set of critics of this judgment (the other school of thought) kept their focus on a rather structural argument concerning the colonial/western nature of Copyright policy, arguing that the said instance does nothing to repair concerns of equality and in effect reifies and attempts to normalize concepts outside black culture into black culture (in-contextual transposition). Hailing the judgment also estranges the fact that the verdict is extremely harmful to appropriative cultural practices like sampling, hip hop, reggaeton, etc. (mostly practiced by black musicians, or loosely non-western musicians). It reinforces racial capitalism, and a structural racial skew in legal interpretation, against normatively black practices which focus on re-use, and derivation rather than “original creation”. According to them, internalizing could never ever remedy/repair a copyright system that is racist to the core– and there was a need to structurally challenge it rather than supporting the expansion of the doctrine.

This brings us to the hard case.  Prof. Vats, in her book, presents this hard case in an interesting manner by writing as to how this situation was a seemingly forced choice for individuals invested in social justice outcomes out of this case and IP in general. It was either (i) embracing nostalgia and reparation for Gaye or (ii) a commitment to the musical innovation of hip hop (a non-western, non-white, non-individualistic art form dissonant with traditional principles of copyright law).

It was essentially a hard case to choose between “more” copyrights supporting the interests of black artists within the system of copyright law that exists, or a structural change in copyright according to actual epistemological realities or non-white cultures.

Using this, she turned to the de-colonial notion of creatorship and protection, outside the romanticism of commodification and the racial capitalism that it produces. She argues in her last chapter: “Advocating for intellectual property egalitarianism in a way that is legally and politically legible, requires pushing back against accepted IP doctrines, which conceal racial (and colonial) logics.” It is basically a debate between- internalizing possessive individualism (and looking for a solution within) v. structural questioning, which of course may not be a binary, but could end up eroding each other’s territories. We shall get more into this in Part-4.

Against this backdrop, the motion essentially is – Does the celebration of a black artist (Plaintiff) getting a judgment in their favor on copyright infringement, reflect a vantage point in the estrangement of cultural practices, norms and tendencies, through the neo-colonial tool that is western copyright?

Coming to the Kacha Badam issue, and the relevance of this backdrop therein:

I completely subscribe to and endorse the need to ensure that Copyright policy allows Bhuban to protect/recoup his remunerative interest in this performance, given his economic state/ standing, and the surprising visibility that has only been made possible due to the virality provoked by the long tail of the internet. Even record labels nowadays take their investment decisions depending on this viral tendency and potential. Prior to the internet, there was effectively a grand denial to creators/artists from remote villages in India to a claim to participate in visible culture and to be able to exploit them economically- especially due to the need to satisfy the aesthetic preferences of record companies before getting any visibility. I also agree that given folk artists have been denied such protection for the longest time, such remunerative benefit and commodification would help Bhuban do economically better, and will also recognize the copyrightability claims of such artists (I am still unsure as to whether we can categorize Bhuban’s performance as folk, but the song’s tonality does reflect folkish tendencies). I also understand the intuitional trigger and reparational thought in favor of Bhuban due to the long denial of visibility to such artists, his economic state, and the just desserts philosophy that comes with it.

I further subscribe to the fact that – those remixing and using Bhuban’s performance, attributing it to themselves, and in some cases also claiming copyrights over them (exclusivity over exploitation) to market using social media platforms/reels and other mediums, ought to pay license charges to Bhuban and attribute him- given the realistic state of the capitalistic society we live in. The possibility of remixers (who enjoy a better capability to capitalize or better access to visibility) using copyright to claim monopolies on their derived output- and earn money without paying any license fee to Bhuban, can never be discounted. The possibility of them misappropriating something linked to Bhuban’s identity can also never be discounted.

These are some extremely important real-world issues and do effectively endorse this thought of addressing the remunerative and reparative interests of Bhuban and such artists using Copyright law and its possessive individualism– as due compensation for the years of denial of economic compensation over such output and a lack of equal visibility.

But…..here comes the hard case.

A non-internalist/structural critique of this whole controversy would be-

Isn’t the compensating mechanism, mentioned above, normalizing a legal system of exclusivity and possessive individualism -over cultural expressions? Isn’t this a purely western normative ideal, against the norm of sharing – practiced widely in Indian folk cultures, forms of music, musical tendencies, and practices? How does it reflect as a consequence on the idea of imitative musical learning as a mode of pedagogy- which is extremely prevalent in indigenous and alternate musical practices? How does it also reflect on the romanticism of individualistic IP policy and its transposition on dissonant communitarian cultural practices/societies?

In India, indigenous cultural expressions have never really aligned with property-based exclusivities. In fact, to the contrary, there has been explicit resistance to recognizing this possessive individualism (see here, here, here,  here (accompanying note 16) and here), by practicing norms of anonymity while disseminating content, practicing imitation based learning as a core form of pedagogy (here, here, here and here) and by rather focussing on communitarian practice and performance of cultural expressions (here, here and here). For a general critique of the idea of possessive individualism – in the context of Indian culture and identity- see here (Chapter 8). Jaszi and Woodmansee have also, in detail, discussed the dissonance of individualistic norms of authorship and various cultures (which they refer to as “traditional” cultures, although I prefer- alternate cultures).  

The problem with internalizing copyright norms, which are premised on exclusive possession, is that it often relegates ontologically non-commodifiable/ non-individualistic/ community outputs and expressions, to the verge of cultural estrangement and diminishing. Expressions like folktales, ballads, chants, proses, alternate musical practices, religious musical expressions, Indian Classical and Carnatic music, etc., which involve aural transmission or are derivative and collective/communitarian creations do not fall within this commodifiable idea of a creation that is copyrighted and economically transacted in a market setup. This often results in cultural freezing. I, not for once, propose to say that the law should rather commodify such communitarian perspectives as well (as it has been doing in the case of traditional knowledge lately). I rather contend that this normative dissonance ought to be realized in the law and should be remedied by tailoring the law to foster these cultural practices rather than impede them by commodifying and altering their ontological nature in the first place. Transcribing western copyright norms, and in fact romanticizing them (its expansion and role) in cases of completely dissonant expressions, as in the case of Bhuban’s work, ignores the incompatibility of cultural expressions with core principles of western copyright norms- (i) fixation, (ii) individuated authorship, (iii) romanticism of originality and non-derivation (iv) exclusive possession, (v) author performer divide.  It also results in cultural alteration- merely for commercial advantage. In my opinion, such transposition of non-compliant norms takes the shape of a neo-colonial tool that does nothing but reflect the political economy of framing the law (in favor of western commercial interests by the neo-liberal tendencies of the western society). It also affects the political economy of culture and cultural practices. It shows a skew towards market fundamentalism, even in cases of cultures- which were never really supposed to be/ fit to be marketed in an industrial setup. We have to realize this and structurally challenge this.

Bhuban’s musical tone reflects a clear folk tonality, wherein it isn’t easy to assume originality, lest it shall devoid a majority of the members of a community, and dispossess them a claim to something that is normative to the community practice. Every possession results in dispossession. Even assuming the said musical work to be original, the social process of creation and the privilege of being able to access an audience can never be discounted. Romanticizing and transposing individualistic norms of this sort- denies many (who lack such access to showcase, get showcased, and receive) a participative claim to cultural exchange. Moreover, western copyright norms often seek justification on the idea of incentives- i.e., the assumption that unless such rights are granted- one might not be incentivized to create. Well, for starters, Bhuban had no idea he had these copyrights when he performed. The generalization of such a utilitarian conception, in cultural policy, dismisses the fact that for many – music is merely a source of communication and expression and not something which requires any incentive to be produced (some interesting scholarship on this facet here, here, here, here and here) However, this, of course, does not discount the fact that for many, who seek to practice music professionally and are not able to due to economic concerns forcing them to marginal sources of revenue (avenues which guarantee better economic condition), such incentives matter. What I seek to challenge is the generalization of these incentives as being the norm.

So, coming back,  how do we resolve this hard case? To be honest, I don’t know. But it may not be an either/or situation as it seems to be. We shall be looking at this in the next post.

Part- 1 – here.

Part 3- here.

Part 4- here.

Clearing out delusions from the “Kacha Badam” controversy:

A week to go for World IP Day. Last year, I posted a piece on this platform on why this ain’t no occasion to celebrate. I shall be reiterating the same here, albeit, in context.

In this set of 4 posts- I shall be discussing my dilemmas from the Kacha Badam Controversy. This first post covers my thoughts on the delusion that this whole controversy has produced and the need to revamp its factual narrative. The second post shall cover my thoughts on the hard case that this factual narrative exposes- something I cannot really grapple with yet. The third post brainstorms thoughts on resolving this hard case. And finally, the fourth post will, in the backdrop of these three posts, discuss an amazing paper by Prof. Alpana Roy titled- “Copyright: a colonial doctrine in a post-colonial age” and how her thesis has an important role to play in figuring out/ or rather even further complicating this hard case.

PART – 1

It has been a while since the Kacha Badam Controversy took shape. Readers from India would know what it entails, and in any case, this video does a good job at influencing thoughts about the whole debate. However, to put this issue in the context of its implications on cultural and copyright policy, here are the events that took place and how I see them (it might be an interesting hypo for Copyright classes):

A person Bhuban Badyakar, who earns his livelihood selling peanuts door to door, uses/sings a catchy musical tune to attract more consumers. The lyrics used along with his musical tune literally (in Hindi) says- “Kacha badam lelo” which when translated means “buy raw peanuts.” Some bystander in the village where he sells peanuts recorded him singing his catchy tune while selling peanuts, and posted it on social media websites over the internet (including YouTube). What followed is that the said video, including the “music and the lyrics” went viral on social media, and many people started to use, remix, recode, add dance moves, sing versions, and generate further content using it. The song became a viral sensation.

Upon being informed that, well, he could make money out of these uses and that others are making money out of recording and sharing his video, Bhuban reached out to the police in his village asking for his rightful musical dues.

Post this, a regional record label (Godhuli Bela Music), realizing the (i) virality of the video, (ii) economic state of the artist, and (iii) economic potential of aggressively exploiting an already viral work (under the scheme of the Indian Copyright Act), reached out to Bhuban for an assignment of all his rights in their favor, on the premise of a lump sum compensation of Rs. 3 Lakhs (around USD 3930). By this time, the song had already gone extremely viral and upon aggressive enforcement of copyrights, the amount of economic returns that could be garnered by Bhuban are a lot more than Rs. 3 Lakhs (no transformative use defense for non-personal uses of music in the Indian Copyright Act). However, this news of Bhuban even getting Rs. 3 lakhs (although at the cost of assigning away all his economic rights forever, without any scope of a termination of transfer existing in the Indian law) has been hailed by all saying – he got his rightful dues! Even the record label, after getting rights in a super-viral musical work assigned in its favor, put out a statement:

“The whole thought behind this project is to recognize and respect the original creator- Bhuban Badyakar”

As a consequence of this transfer, however, what has potentially been impeded is the ability of users/remixers/user-generated content creators to culturally interact with Bhuban’s work without paying a license fee to the record label (which being an investing business and not really someone who has created – would tend to exploit all money-making avenues in respect thereof). The prospect of royalties going back to Bhuban is also meek, given (i) the history of royalty disbursals in the case of Bollywood biggies (here, here, and here), let alone Bhuban, (ii) the actual state of royalty disbursal in India which amount to a mere 10-15% of the amounts earned by the assignee, and (iii) the interpretive question on the need of disbursing royalties when works are not incorporated in a film or a sound recording, in spite of a specific requirement under Section 19(3) of the Act for any assignment to compulsorily include “consideration and royalty”. However, the fact of the matter is that Bhuban is happy and famous and getting gigs– not because of the label- but because of the long tail of the internet. How does this reflect on copyright and cultural policy? (important reading here)

What comes into the foray from the above fact-view narrative is the delusion that the media has been making out of this incident, hailing it to be a huge win for Bhuban and the role of copyright policy in respect thereof (here and here). What it also brings out in perspective is the role of the existence of copyright law. What the tool of copyright law and its current framings in the Indian Act is doing at the moment- in this instance and many other instances- is benefitting no one else but a corporate entity.

Mind you- neither is the author getting their so-called– “rightful” dues – as was contemplated by the framers of the Act in their intent statement captured in the Rajya Sabha debates of 1955 and 2012 —nor are users, who seek to culturally interact, remix and produce transformative works for a wider variety of works for people to experience and for the broader cultural enrichment of the society (in terms of volume and diversity) getting to do the same- given a far greater potential of aggressive enforcement of copyrights by a corporate non-creating inventor, as against the actual author.

What is the point of having such a system? Is the law merely to benefit an investor, seeking to invest in already viral content, at the cost of the cultural enrichment of the society? No wonder the idea of Copyright, and its ideological symbolism of being hailed as an author’s prime tool, is nothing but one of the greatest canards of history.

I understand the argument that the author may be happy with whatever he has gotten, given Rs. 3 lakhs plus some meek royalties (if and when he gets that is) would be a huge sum for someone who used to sell peanuts + the amount of fame + ripple effect gigs, advertisements, etc. – but to me- that is exactly the problematic point:

If the author receives an amount “x” as the economic incentive to produce the work, in lieu of their copyrights, and they are happy with it (given the virality and prospects, etc.), what is the need for any further tax on the public to access the said work? Doesn’t the role of Copyright as a regulative policy end there? If there is no other recoupment for the author and the author is simultaneously happy, why more access fee in the name of either incentives or just desserts or whatever?

Especially considering the internet and its long tail, why is there for any need for a rate – x+y to be paid- where “y” merely goes to corporate investors seeking to make money out of aggressive enforcement of copyrights?

In my opinion, especially in the context of content that is already viral even before record labels/distributors/publishers step in, this additional amount “y” that is levied as a tax on users, is an unjustifiable deadweight loss and nothing else. The mere disbursal of a lump sum payment cannot be a ground to justify this deadweight loss as a desirable policy, given the undesirable tradeoff of a concurrent tax “y” and continued exclusivity in the hands of a corporate entity (non-creator). Maybe we need to figure out a way that this amount “x”, in Bhuban’s case Rs. 3,00,000, reaches out to him quickly from users directly- and maybe we need to figure out an efficient system in respect thereof- but allowing intermediation, assignments, and continued exclusivity (resulting in immeasurable further tax on users and downstream creators), just because a lump sum by an intermediary is easier- is not a ground to justify beyond incentive payments by users for access and use. It goes over and above the actual intent of copyright and is merely a problem of laze.

We ought to realize this and push for disintermediation in Copyright policy (banning assignments or alienation by authors in favor of corporates), especially in the era of the internet. But for disintermediation- we are gravely and adversely affecting cultural engagement, enrichment, and freedom- something which is paradoxical to the goal of copyright and cultural policy. In a copyright scheme where no transformative usage is recognized (unless it is for personal/private purposes, research purposes, or parodical/critical purposes), such change is all the more required to ensure that copyright incentives, which do not even go back to the author, do not freeze cultural engagement and democracy- or the ability of situated users to talk back and present their cultural narrative in an accommodative permissive cultural space.

This is FOR both the author and the user (aren’t they the same?), and only against a corporate investor- who ideally should really have no stake in Copyright policy, but unfortunately has the most. Who knows, as Oren Bracha argues– the history of IP (commodification of expressions (might actually be the history of capitalism, which is an unfortunate truth.

Part 2- On the hard case here.

Part 3- Resolving the hard case here.

Part 4- Alpana Roy on Decolonizing IP here.