Locating Copyright in Free Speech Doctrine

The right to free speech is located with Article 19(1)(a) of the Indian Constitution, and is subject to reasonable restrictions located in Article 19(2). The restrictions here include public order, morality and decency, but don’t at first glance cover copyright protection. The question of how copyright then impacts free speech is one that has barely been addressed in the debates surrounding copyright law in the country.
The line of cases from the Supreme Court as well as the High Courts dealing with various copyright issues demonstrates how the law has ignored fundamental features of developed free speech doctrine. Judicial responsibility for upholding the constitutional rights of both the public and the speaker has been abdicated through over-reliance on a number of principles within copyright law - the idea-expression dichotomy; the assumption that copyright is an engine of free expression coupled with the assumption that copyright infringers have no free speech rights; the presence of fair use and fair dealing defences; and the preference for property rights over free speech rights. This overreach of copyright doctrine is particularly alarming when it comes to questions of satire when the infringement reproduces information or images of political or social importance.
This paper will locate a free speech counter to the issue of copyright overreach in different invocations of free speech doctrine by the higher judiciary in India - whether it is in the importance of dissent in a democracy, or the question of access to knowledge, further mediated through larger infrastructural access issues.

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Alternative Law Forum
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