Guest post by RAJSHREE CHANDRA

For those not familiar with the recent spate of events at Delhi University; and for those who may have missed Lawrence Liang’s post, here’s a bird’s eye view: Impatient with an old gargantuan University’s obsolete ways, the authorities have attempted a make-over. As in all make overs, the old structure is retained but glossed over with cosmetic changes so as to appear ‘new’. So we have new hip courses, new syllabi content for old courses, new reading lists, new reading packages, new exam system, semesters and so on. Making all transitions possible of course, is a team of make-over artists. At one end of the set up are photocopiers like Rameshwari Photocopy Service located within the renowned Delhi School of Economics and Sociology; and at the other end, we the teachers. Reading material – by way of recommended articles, papers, chapters – was provided to the photocopiers by University faculty, who then made copies of them, segregated them year wise and instruction wise. The first page specified the semester for which the reading material was relevant, the ‘max marks’, the course objective and the syllabus all clearly outlined. Only after they were thus meticulously detailed were they spiral bound with the customary blue plastic cover and voila! Teachers and students alike had accessible reading and teaching material for all the new jazzed-up-courses. Emails circulated by departments instructed the college departments to use and recommend these dossiers; phone numbers of relevant photocopiers were given; and before long an entire chain of dissemination of this ‘new knowledge’ was established. It was all ‘official’. But more importantly, it was affordable, effective and terribly efficient. There was just one problem – it was in violation of the copyright law! The Rameshwari photocopiers were the new pirates!

A copyright is a monopoly right given to authors of ‘original works’ such as books, articles, movies, songs, computer programs and so on. In most cases now the copyright is held by the publisher of the given work, with varying arrangements of obligation sharing between the publisher and the author. It gives the holder exclusive rights to reproduce work, prepare derivative works or to perform or present the work publicly. In India, the Indian Copyright Act 1957 prescribes the scope of these monopoly rights, the kinds of works they may be attached to, the durations for which the rights can be exercised, and the penalties that are attracted when these monopolies are violated. Section 52 of the Act contains an elaborate list of exceptions and an extensive narration of uses by various actors – both individual and institutional – that would not amount to infringement of copyright. Section 52 (i), for example, allows the reproduction of a literary, dramatic, musical or artistic work- (i) by a teacher or a pupil in the course of instruction. (For details see Lawrence Liang’s post)

But the point I wish to make here doesn’t hinge on the legality of the photocopying act by photocopiers in the University. Legality very often is a matter of skilled appropriation of the legalese and, quite often, it is that which becomes crucial in adjudicating between breach and observance. What I wish to do here is to question the philosophical premise that underlies forms of IP, including copyrights.

A general tendency of course is to focus on authors when we think about intellectual property. Many of us are authors ourselves: reading a case about copyright we can empathize readily with the author, his creative and physical labour, his desire to reap the fruits of his labour; his anguish at his work being copied, plagiarized, pirated without his consent. The law detects that this free rider problem may undermine the incentive to create, disclose and commercialize new creation. To prevent this, patent and copyright laws grant inventors/creators a right to ‘exclude’. Because ideas, expressions and other intangibles have properties of non-excludability (my use of your song does not divest you of your use), or is  non-rivalrous (does not rival another’s use or enjoyment) means that there is a near-zero marginal cost from an additional individual enjoying the benefits of a given text. Downloading a song, photocopying copyrighted texts, reverse engineering formulae, algorithms is possible with minimum additional cost.

This is the fundamental problem that knowledge as a public good poses for authors and for a society interested in unleashing innovative or creative potential in society. Thus, rules are devised for transmission which try and change the fundamental nature of knowledge as a public good – rules which create an artificial, rule driven scarcity which transform knowledge into a rivalrous, excludable good. IP rules require that everyone also has only paid access to these. This right permits them to charge prices in excess of the marginal cost of producing their inventions so that they can, not only recover their initial expenditures, but also derive profits.

It is commonly argued that this is necessary a/ because such rules protect authors’ moral right over their creations; b/ because they will optimize the intellectual activity produced and enhance social progress through the creative potential thereby unleashed,; c/ that in the absence of these rules there would be a moral encroachment on the rights of the authors and a reduction in the corresponding amount of social utility produced through creative acts.  Creation of social utility and liberty (to the fruits of his labour) become the foundational moral premise of laws like the copyright law.

It is in this context that we think about the rights of an author. IPRs in creations vindicate the authors right to the labor of his body; they reward his desert; they allow him to make plans, and to exercise his autonomy. And, it is in this context that we think of the actual, potential or putative infringers of copyright as an act of ‘piracy’. The word ‘piracy’ automatically conjures images of illicit, unlawful, covert activities of unscrupulous, stealthy networks of pirates under whose onslaught reel the music, publishing and the rest of the creative industry. But let us, for the sake of an argument, put aside this linguistic framework and its designates of legality for they presumptively bias the argument. Let us test the moral arguments of utility and liberty (listed in a, b and c) that premise copyrights.

A general argument, employed for tangible property and extended to IP, is that people deserve property rights because they employ their self-owned labour – physical or mental. The intuition that people deserve the fruit of their labour is a powerful justification for all forms of property, including copyrights. Even if we were to unproblematically assume that “authors” are the original creators (and ignore the fact that knowledge is something intergenerational, cumulative, drawn from the public domain) there arises a problem. In the garb of rewarding creativity, it is not the author, the “creator”, who gets rewarded but the publisher! What authors get as a recompense for their labour is really a fraction of what accrues to the publisher. For a royalty that ranges between 5-7% of sales , or for meagre one time payments, the authors surrender the commercial rights over their copies to the publisher. The business model of academic publishing has three primary participants: the scholar-authors to write books and for journals; the publisher; the user – college and university libraries, individuals and so on. The primary user is the very same pool of people who produce (or are potential producers) the content for the publisher, who has now acquired rights of sale and dissemination. To then state that the copyright model actually  has a normative basis in some deontological notion of autonomy and liberty is to completely misrepresent the picture. In this case it is not  “authorship” ‘that serves as an idiom for determining who shall be “inside” and “outside” the reach of potential benefits-shared, but the publisher.

The profits that drive the publishing industry are astronomical. In 2010, for example, online journal publishing giant Elsevier’s operating profit margin was 36% (£724m on revenues of £2bn). They result from a stranglehold on the market. Elsevier, Springer and Wiley, who have bought up many of their competitors, now publish 42% of journal articles. Academic libraries face a crisis that threatens their very existence and challenges the fundamental structure of the scholarly publishing system.  Academic libraries cannot continue to pay the regularly escalating subscription prices for scholarly journals that the publishers demand each year. John Perry Barlow sums it up rather well when he says that ‘The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent.

There is a second problem with the ‘reward thesis’. That the creator deserves a reward for his/her labour is a fairly straightforward and morally defensible proposition. But that this reward ought to be in the form of a patent or a copyright, for instance, is determined only by social policies that have come to dominate trade and exchange and is therefore, not necessarily morally incumbent.

As a matter of logic, an identical set of copyright rules could have developed with tort labels rather than property labels. That is, copyright and patent infringement need not be treated as a species of theft or conversion, but could instead be treated as “business torts,” akin to unfair competition or trademark infringement. These labels define the interest people come to have and the exclusionary implications that attach themselves to these interests.  Property rules are more rigid and formal. A tort is not necessarily an illegal act but one that causes harm and that obligates the harm doer to undo the harm through some form of compensation. The law allows anyone who is harmed to recover their loss. A person who appropriates another’s property is a ‘thief’, a ‘pirate’.  No comparable term of censure attaches to a tortfeasor (as they are called) who interferes with prospective profits. It can be surmised then, that introduction of the property label into copyright and patent was not accidental. The move of using a property terminology is therefore, one can argue, meant to seize the rhetorical advantage not otherwise available to the author or the publisher. In other words the principle of fair use does not necessarily translate into copyright: it could well have been another kind of protective and remunerative claim.

However, copyrights, as all property rights are required to, must serve a social function. After all, property rights are regarded as the primary means of performing the allocative, distributive and incentive function in society. Property rights are nearly always clothed in the language of social utility – they are supposed to augment conditions of good life for ‘society in general’. So, as Alan Ryan puts it, there is a consensus that “It’s his”, invites the further question, “What good does its being his do for everyone else?’ ” Generally speaking, most ‘official’ justifications of IP rights have more to do with the social good than with the individual natural rights of authors. The U.S. Constitution, for example, empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries. As Jeremy Waldron argues, “Authors’ rights are created to serve the social good, so any balancing must be done within the overall context of the public good, i.e. between the specific aspect of the public good that is served by intellectual property and other aspects of the public good such as the progressive effects of the free circulation of ideas.

If we are seriously interested in advancing a moral justification for copyrights which draws from the greater good created, then we must also take into perspective those whose activities are constrained by copyrights. Which greater good is advanced when prescribed reading material is inaccessible by tens of thousands of Delhi University students, some of who can ill afford the public transport to colleges, leave alone afford prohibitively priced books? Which aggregate social utility is maximized when the Delhi High Court fails to take cognizance of the abysmal books-to-student ratio in cash strapped libraries? Conceptions of welfare, utility, social good ought to take into account the burden copyrights, and their assertions, inflict on a certain section of society.

To say that rights are a means to an end is one thing; but the correlative proposition that some (in this case a student community that comes from a very varied cross-section of the society) should be forced to bear sacrifices for the sake of some version of greater social good, exposes the crass duplicity of moral arguments cloaked in the garb of social welfare. How much of harm is to be prevented if Delhi University photocopiers were to be permitted to freely circulate study material? Compared to the loss of revenue for the publishers (debatable in itself because the students are not the prospective buyers of the CUPs and OUPs anyway), the harm caused in ‘ban on photocopying case’ is immeasurable. Not that the ‘greater good argument’ is being served here but what also seems relevant from a moral and a social-legal policy standpoint is a conception of net harm or net burden created.

While calculating harm, as Charles Taylor points out, “we make discriminations between obstacles as representing a more, or less, serious infringements of freedom.”  Compare, for instance, a law that forbids you to enter a temple because of your caste-status, with a law that requires you to obey traffic rules. In the latter case we are reluctant to speak of loss or harm, in the former, there is a sense of serious harm done. Which category do IP rights fall into? Are they more like temple entry restrictions or the restrictions imposed by traffic lights. Similarly, compare a theft of your wallet with the photocopying of your book, or lifting of your musical tune. There is a certain hesitation in conflating the two. And this hesitation is not trivial. On the contrary, it draws from a common sense that makes a moral distinction between a theft that dispossess someone, and a ‘theft’ that does not.