Recently there has been a lot of heated discussion and debate over whether Copyright is content neutral or not. Here is my take to it. To start with, Copyright is an exclusive statutory right provided to the owner or the author of the work for a specified period within a specific jurisdiction. According to the Copyright Act 1957, “copyright” means the exclusive right of the owner, “to do” or “authorise the doing” of any of the following acts namely reproduction, issue copies, perform in public, translate, adapt in respect of a work or any substantial part thereof. Now the question facing us is whether legitimacy of content necessary to claim copyright. And the answer to that is in the affirmative, i.e., the content should be legitimate within the specified jurisdiction and in the period of copyright protection to claim exclusive right over the work. To elaborate a little more let us look at the definition of Copyright which talks about the exclusive right “to do” or “authorise to do” and the simple question which one needs to answer is whether one “can do” or “authorise to do” something illegitimate or illegal? One need not know the nuances of Law to answer that. Hence, publication, reproduction, adaptation or translation of a work, which is illegitimate, by the owner himself or someone he authorises cannot be claimed as a right as the work itself is illegitimate.
Moreover, Copyright is an exclusive right and if we apply the principles of hofieldian matrix, every right gives rise to corresponding liability. Now the question which comes to the mind is can one claim a right over something illegal and can there be a corresponding liability arising from such right? The answer to that is in the negative. Ascertaining liability based on a right begetting from illegal acts or illegitimate contents is bad in law. For example, a thief cannot claim a right over stolen goods just because of the illegal act by which he acquired the goods. Similarly, if Copyright is granted as an exclusive right then for establishing the corresponding in rem liability it is imperative for the content to be legitimate.
Adding further, Copyright as a right is time period and jurisdiction specific. Copyright depends on what is legal in a definite jurisdiction in the specified time period. Copyright as a right in terms of protection granted varies across jurisdiction. Thus, if we take the case of claiming copyright over content alleged to incite violence might vary a great deal from India, to the US or even different EU countries as a content which might incite people in India can be an opinion oriented piece of literature in the US, for example, an interpretation of religious books like the Gita or Quran. Hence, if the Supreme Court of India imposes a ban on the publication of a work claiming to incite violence, then its reproduction, adaptation, translation is automatically banned, and any act to the contrary invites criminal liability. But there cannot be said to be a right vesting on the owner to sue for the assertion of the right within the territory of India. Though the right can be asserted in different jurisdiction which allow the work to be published.
Still adding further, Copyright is an intellectual property right similar to patent right and the trademark right and if we analyse the two Acts, we find that in Trademark Act, 1999 a mark or a part of a mark shall not be registered as a trade mark if – (a) it contains anything which is scandalous or obscene; (b) it is contrary to any law for the time being in force; (c) it is likely to deceive or to cause confusion; and in the Patent Act, 1970 it is not an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality. Thus both the acts put a restriction on the legitimacy over the content or work over which a right can be claimed. Similarly, even though there is no such provision in the copyright act but it can be easily deduced that the work over which copyright is claimed cannot be contrary to law as “to do” or “authorise to do” cannot be contrary to law.
Thus, screening out all the points it can be safely said Copyright is not content neutral and it depends on the legitimacy of the content in question. If a work is held to be obscene within a specified jurisdiction or is against public order then there cannot be any right vesting on the owner of the copyright. Though, like the patent or trademark legislations there is no provision in the Copyright Act, 1957 which prevents registration of any work on the grounds of public order, morality or contrary to law, but once a work has been declared to be so no right can be said to rest on the owner in the jurisdiction till the restriction is imposed as there can be no right from or for an illegitimate act.
In conclusion, Copyright in general aims at protecting and safeguarding the interests of authors and owners and at the same time balances the competing interest of the society and those who are members of the society. If we look at the history of Copyright law we find an impetus on public interest. The Statute of Anne which was the first copyright statute, was titled “An Act for the Advancement of Learning” an approach which laid impetus on public interest in the circulation of knowledge. Thus, Copyright which not only talks about authors interest but also public interest and thus allowing for Copyright protection over contents which are illegitimate would not only be bad in law but also would be against public interest. Hence, even though there is no strict statutory provision barring Copyright over illegitimate work but “to do” or “authorise to do” cannot be interpreted in the light of illegitimate work.