That copyright tends to create a language of its own isn’t something which is entirely surprising to anyone familiar with it. There are both advantages and disadvantages to intellectual property and the debate whether public interest is well served by the protection of private interests via the medium of intellectual property has been going on for a while now.

Intellectual property is not an especially old form of property. Copyrights, for example, were first seen in the year 1710 and arose to protect the monopoly the Stationers had earlier enjoyed as members of the Company of Stationers of London which basically acted as a private censor for the Crown. By 1710, the Crown became much less finicky about the publication and dissemination of seditious material which resulted in the stationers effectively being out of a job.

The members of the defunct company responded by petitioning Parliament to protect the intellectual property of literary works by creating an author’s copyright which they assumed (correctly) would be assigned to them. And ever since, the publishing lobby has lobbied for stronger and stronger copyright protection.

Not too surprisingly, copyright is now considered by many outside the ‘copyright community’ to be completely out of whack since it protects the private interests of copyright owners (usually publishing corporations) to an absurd degree.

In some cases this is seen in the Indian Copyright Act itself. For example, in 1994, the law was amended so that communication to the public for the purpose of determining whether or not infringement had occurred did not require any member of the public to have actually seen or heard the work communicated. In other words, the copyright is infringed by the mere transmission of the work to the public and not its communication to the public. Considering that one of the aims of copyright law is presumably not the recreation of the English language, the term communication in the statute is misleading.

Reinterpreting English in completely non-orthodox ways is not limited to legislators though. In a recent order in the case of Urooj Ahmed vs. Maya Appliances (A. No. 5533/2008 in  CS 949/2008), Justice Shivakumar of the Madras High Court decided that a suit for the infringement of a design can be filed in the place where the plaintiff resides by his interpretations of the Copyright Act and the Designs Act.

In general, a suit must be filed where the defendant resides but Section 62 of the Copyright Act institutes an exception to this rule by saying that a suit for infringement may be filed where the plaintiff resides. There is no such provision which exists in the Designs Act but relying on Section 11 of the Designs Act which says that the registered proprietor of a design owns the copyright in the design, Justice Shivakumar has decided that the provision regarding jurisdiction in Section 62 of the Copyright Act also applies to designs under the Designs Act.

To come to such a conclusion, the assumptions seem to have been that (a) the copyright which exists in a design is the same as the copyright which exists in those works protected by the Copyright Act and (b) that copyright infringement under the Copyright Act is analogous to the infringement of a design.

The result: designs have been afforded protection not envisaged by law because of a creative interpretation of the law.

Image Source – Wikimedia Commons

(This article is by Nandita Saikia and was first published at LawMatters.in.)