[This post is a part of the IP History series and is authored by Shivam Kaushik. Shivam is a 2020 law graduate from Benaras Hindu University and is presently working as a law researcher at the Delhi High Court. The first post of the series on India and the Berne Convention can be accessed here and his previous posts can be accessed here.]

In the story of Indian copyright law, the city of Stockholm has a prominent place. We copyright buffs (yes, unfortunately, we exist); we just love Stockholm. Stockholm is the place where India stood up in defiance against the Western juggernaut of the ever-expanding big bang of copyright. Stockholm is to Indian copyright, what Normandy was to allied powers in World War II. But if you examine this analogy a little, you will find something disconcerting.

Let’s take a closer look at the second limb of the analogy first. The invasion of Normandy, a region in France, was mounted by the allied forces to reclaim French territory lost to Germans. So basically, the French and their friends launched an invasion upon the French soil to reclaim the idea of France. Makes sense, right? Now let us look at the Indian offensive. India attacked copyright imperialism to reclaim the idea of Indian copyright at Stockholm, the capital city of Sweden. Why were Indians fighting at an European city 6500 kms away from India to reclaim the idea of Indian copyright? Strange, isn’t it?

Shouldn’t the debates on issues having a pivotal impact on the future of India’s education, literacy program, and economic & intellectual development have taken place in the heart of the country instead of fancy old-world European cities like Berne, Paris, Berlin, Rome, Brussels and what not? Places that were entirely disconnected from the ground realities and needs of the Third World. But then we live in a world that is so Eurocentric that Britain is literally at the centre of the (commonly accepted) world map. The Time of a relatively insignificant town on the outskirts of London is the peg against which the entire world measures its time because the all-important ‘prime meridian’ is drawn through it for no particular reason. It’s a pattern.

Before your mind militates against what you just read, let me clarify- I am not imputing any inherent value to the venues of international conferences. The point that I am trying to make is somewhat more nuanced. In my view, these conferences and places are emblematic of a much more regrettable fact: how distant, far off and detached the locus of decision-making and the fate of Indian copyright has always been from Indians. The shape and form of India’s copyright was delivered to India in a meticulously packed agreement/revision/protocol- we mostly did the unpacking here. International copyright outsourced and externalised issues and problems that are almost existential for the nation. Almost.

But it seems that I am getting ahead of myself here. Let us take it from the top.

In the introductory post, I touched upon the first copyright law enacted for Indian works which was passed in 1847. The Act was titled “An Act for the encouragement of learning in the Territories…, by defining and providing for the enforcement of the right called Copyright therein.” The preamble of the Act stated:

“And Whereas for the encouragement of learning it is desirable that the existence of the said right should be placed beyond doubts, and that the said right should be made capable of easy enforcement in every part of the said Territories”

Make a note: The very first copyright legislation in India passed by the British had UTILITARIAN UNDERPINNINGS and was enacted to encourage learning. The law did not even as much as a whisper about rewarding the labour or the creative ingenuity of the author.

The term of protection provided by the 1847 Act was ‘natural life of the author plus seven years’ or ‘forty-two years’ in case the term of seven years was to expire before the end of forty-two from the publication of such book.

The Act of 1847, was repealed by the Indian Copyright Act, 1914 passed by the Governor General of India. The Act of 1914 was enacted to modify the Act of 1911 passed by the British legislature in its application to British India. The Act of 1911, in turn, was passed by the Britishers to implement the Berlin Revision of 1908 to the Berne Convention which introduced copyright protection for the life of the author plus fifty years to the Berne Convention. Still with me? The point worth noting is that the Act of 1914 increased the term of copyright for Indian authors from the life of the author plus seven years to the life of the author plus fifty years.

 What was the nature and purpose of the copyright under the 1914 Act? Was it for further encouragement of learning? Or for giving Indian authors the fruits of their labour? We can all take our educated guesses, because the Governor General did not care to mention it. Maybe, the text of the British Act contained the reason (it didn’t) or maybe the text of the Berlin revision had some indication (it didn’t). It seems that the lasagna of copyright laws, agreements, and revisions had enough layers for even Brits to forget to mention why they were doing what they were doing. One can do a hindsight analysis to find or rather ‘create’ the answer as many authors do. But the takeaway from this whole international copyright mess is that the purpose and the rationale behind the Indian copyright were lost.

Fast forward to Indian independence. The Literacy rate is at 20% (copyright was not doing much for ‘encouragement of learning’ I guess), and the country is bleeding foreign exchange for importing books from the West (apparently not much contribution from copyright on the supply side as well). To put things in a better perspective, an example might help- while the average book supply in European and American countries was almost 2000 pages per person, the book supply in India was ONLY 32 pages per person (out of which only 16 were “strictly educational”). It was at this point the Indian development economist at UNESCO, Malcolm Adiseshiah famously remarked–

“India as a nation ran the risk of dying intellectually and spiritually if the prevailing book famine was not checked”

Independent India enacted its first copyright law in 1957. The story behind the 1957 Act deserves a separate blogpost. For the purpose of the present post, it is sufficient to note that the term of copyright was retained as the lifetime of the author plus fifty years; India was still a member of the Berne Convention.

For the newly independent countries, copyright was both- a challenge: in the form it was in, and an opportunity: of what it could potentially be. For it could be a means of creating a massive literate citizenry and a booming publishing industry. Imagine having India’s own Penguin, HarperCollins, Pearson, OUP. Copyright could pull that rabbit out of the hat.

India and other recently independent African countries knew this. They wanted international copyright to be modified to aid the inexpensive production of scientific and technical books and textbooks. Education and development of the Third World could not be ignored anymore. (Side note: An interesting read here that posits the rapid industrial development of Germany can be argued to be connected to the absence of copyright during that period). India and other developing countries threatened to walk out of Berne and create a ‘developing country only’ treaty.

The stage was set for Stockholm.

Much has already been written about 1967 Stockholm Conference (here, here, here). Copyright material producing and exporting nations, especially the UK, were ideologically opposed to any changes “that distorted the spirit and undermined the foundations of Berne” [read ‘spirit’ and ‘foundation’ to mean ‘exploitation’ and ‘subjugation’ respectively].

Ultimately, the block of developing countries, led by India, was able to extract the Stockholm Protocol (1967) giving power to developing countries to avail reservations like-

• reducing the copyright term to the life of the author plus twenty-five years;
• extinguishing translation rights within ten years in case of non-publication of translation; and
•  blanket exception for educational use.

But these concessions were merely symbolic. In respect of the Protocol, Jaman Shah shows that a British newspaper wrote (paywalled) that:

“Britain’s role at Stockholm was to wreck the new proposals without incurring the odium of actually voting against them…. It is so complicated that it could only have been drafted by the British civil service bent on destruction.”

Barbara Ringer, a leading US copyright expert remarked that Stockholm was “the worst experience in the history of international copyright conventions”. It was painted as a complete failure in the wild wild west.

The criticism of the Protocol by the West was so systematic and effective that it could not come into effect and even its chief patron India never ratified it. India’s four-year situationship with the Stockholm Protocol ended in 1971 when the copyright imperialists delivered the fatal blow in the form of the Paris Act, 1971 by which Article 34 was added to Berne. It foreclosed any country from making any reservation under the Stockholm Protocol.

The Paris fiasco was a huge setback for developing countries. It was a battle lost. But one would have expected India to continue with the war, just like the imperialists did after Stockholm. However, India lost the plot at Paris. Not only did India abandon the idea of reforming international copyright to make it just and equitable; from asking for a reduction of the copyright term on the international stage, in 1992, India itself increased the term of copyright from the lifetime of the author plus fifty years to sixty years. The reason for India’s Stockholm syndrome? Copyright in all of Rabindranath Tagore’s works was expiring in 1991 and the Vice Chancellor of Viswa Bharti, which held copyright in all of Tagore’s works, made an appeal to the Prime Minister seeking copyright protection for a further period of 10 years. First, an ordinance was issued to that effect, and then an Act was passed in 1992. It was Indian copyright’s eureka moment as it finally came to terms with the ‘spirit’ and ‘foundation’ of the Berne Convention. It’s quite the tale indeed, and that seems to be how India learnt to stop complaining and love copyright.

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• Source: https://spicyip.com/2023/07/indian-copyrights-stockholm-syndrome-or-how-india-learnt-to-stop-complaining-and-love-copyright.html