Lessons in Cola, Copyright, Constitutionality and Generosity for dear Mr. Raju (from a self-appointed legal educator)

I’m responding to Raju Narisetty’s blog post on copyright infringement, along with which he tosses in some rambling invectives against Sunita Narain and the Center for Science and Environment (CSE).  In his words, “it all began” with his discovery of Mint articles archived at a site run by the CSE (www.indiaenvironmentalportal.org). The article claims that users and readers have absolutely no right to use Mint contents for any purpose unless The Mint expressly authorizes them. Mr Raju finds a gleefully irony in the fact that he can now accuse the CSE of a misdemeanor, as revenge for their having had the temerity to take on the Colas during their highly acclaimed pesticide campaign. I want to dwell briefly on his digs at the CSE, before addressing his observations on Copyright.

Coke
In relation to Sunita Narain and the CSE’s extremely hard fought campaign against the big colas, Mr. Raju scours the entire internet and finally handpicks this link - a monumentally stupid, 3 sentence piece in the National Public Radio’s website which says this.

“ In India, several states have banned the sale of Coke and Pepsi after a group called The Center for Science and Environment said the soft drinks contain unacceptably high levels of pesticide. The national government of India has said the Center’s data is flawed. But the state governments continue to ban the products.”

(I’m quoting the entire article, here and I hope Mr. Raju doesn’t give himself a nosebleed if he sees this)

While this snippet certainly does not tell you the “entire saga” of high toxicity levels in colas in India, it reveals much about Mr. Raju’s own worldview.

The CSE is a “group” – like the Taliban, the Bajrang Dal and the Indian Mujahideen – that is “prone to pointing fingers”, and is not the well-respected two-decade old research organisation that we know it to be. This ‘group’ is obviously populated by some nasty attention-seeking lunatics who are strangely influential amongst lowly state governments who irrationally ban the sale of colas. By contrast, the “national government of India” – the repository of reasonableness and true wisdom – is, however, wiser, and pooh-poohs the madwoman’s rants.

Undoubtedly, Sunita Narain is one of the many  “self-appointed guardians of right and wrong behavior in our society” whom Mr. Raju cannot abide. Coke and Pepsi would, of course, do nothing of the sort since, as we know, Coke is an honourable man. In fact, they advertise with him, these colas.

Here’s a snippet from another article that tries to capture what the real pesticide saga is about.

The most common pesticides detected by the CSE in the samples were Lindane, Chlorpyrifos, Heptachlor and Malathion. Lindane accumulates in fat tissues and damages the liver, kidney, neural and immune systems, and induces birth defects and cancer. Exposure to Chlorpyrifos adversely affects brain cell development. Malathion causes dna abnormalities at all doses.

According to CSE, the United States has restricted the use of Heptachlor to underground termite control. If the results are to be believed, therefore, they could have serious health implications for people.

Why should a global company which provides quality products globally provide a substandard product in India? Equally importantly, will our government give more importance to the threat of reduced investment vis-à-vis a possibly very real health threat to the public at large?

It’s a little shocking that the editor of a major national newspaper would exhibit openly his ignorance of important public issues. Or perhaps he is only exhibiting his antipathy towards them. In 2006, at a Global Meeting in Istanbul, Coca Cola issued special-edition coins with “Coca Cola Republic of Happiness” inscribed on them. More than a mere marketing gimmick, I imagine this “Coca Cola Republic” to be an actually existing borderless nation-state with a devoted population that includes people of Mr. Raju’s ilk. This population emphatically denies allegiance to any of the recognized constitutions of the world, and is opposed to being identified with the peoples of any country. The ‘other’ of this republic is not any one sovereign state, but the  “ordinary public” of the entire world.

Copyright
The pretext for this attack is equally ill-conceived. Mr. Raju is visibly pained that the CSE has not sought his express permission in writing before collecting the articles in its database. This “egregiously” violates, in his learned legal opinion , the Indian Copyright Act, 1957. At the heart of Mr. Raju’s attack is an extremely parsimonious view of freedom of speech and the press.

He plays the “poor wittle struggling WSJ-funded newspaper” card when he says that it costs him 8 whole rupees per newspaper that they produce, which they then sell to an avaricious reading public at a throwaway price of Rs.3. In doing so, they starve themselves in the public interest. It is only the disinterested beneficence of the noble advertisers that rescues him from the gutters.

Mr. Raju suffers from two types of delusions 1) firstly of imagining that his publication owns copyrights in its work because of his own personal belief in “never.. giving away content for free”. 2) secondly, that his publication’s copyrights supercede our constitutionally guaranteed rights to freedom of speech and expression.

In fact, it is the Indian Copyright Act (as opposed to the CocaCola Copyright Act) that confers on authors an ‘exclusive right’ to their work. The objective of this monopolistic right is not, contrary to what Mr.Raju may personally believe, to facilitate profiteering by newspapers, but is given in order to promote an active and healthy public domain. The right under the Act is not an absolute right to do whatever one wants to with information that one acquires ownership of. Certain acts are explicitly privileged in order to ensure that the opportunity to profit from information is not misused to curtail public debate and discussion.

Section 52 of the Indian Copyright Act sets out in elaborate detail the kinds of uses that do not constitute copyright infringement and includes “fair dealing with literary works for private use, including research,  and for criticism or review, whether of that work or of any other work.” Fair dealing has been interpreted to include two elements 1) There must be an intention to compete and derive profit from such competition 2) unless the motive of the infringer were unfair or improper or oblique, the dealing would be fair.

Mr. Raju, has mercifully refrained from alleging that the site is trying to profit from his information and put him out of business. I’m not a regular user of the site Indian Environment Portal, but even a cursory glance shows you that its main intention is not to commercially vie with the Mint at all. The site provides an extremely useful public resource by compiling articles on the Indian Environment from different sources on one portal. If I were researching environmental issues in India this is one of sites I would likely start my search at. Merely linking would not serve the same purpose, since one cannot search through the contents of the site unless the entire article is archived. The fact that the National Knowledge Commission backs the website only augments its stature.

Mr. Raju may be right in saying that reproducing articles in their entirety may not be permitted expressly under the Indian Copyright Act. However, he is naive in supposing that is the only law that applies. The other important piece of legislation that he is neglectful/ignorant of is the Indian Constitution which guarantees the right to freedom of speech and expression and includes the “right to communicate” (by virtue of which the press itself traces its constitutional claim to protection).

Freedom of speech and expression is necessary, for self expression which is an important means of free conscience and self fulfillment. It enables people to contribute to debates of social and moral issues. It is the best way to find a truest model of anything, since it is only through it, that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press.(THE SECRETARY, MINISTRY OF INFORMATION & BROADCASTING, v. CRICKET ASSOCIATION OF BENGAL & ANR.)

This is not a right that can be repelled unless on the grounds of “security of state”, “public order and morality” or “friendly relations with neighbours”. The commercial interests of The Mint do not, unless I am much mistaken, further the security of the state.

Bent out of shape
This isn’t a site that gives news about capital markets or provide corporate updates – the stuff that The Mint’s primary audience is looking for. It deals with our living environment, an inconvenience the importance of which the “Coca Cola Republic” steadfastly refuses to acknowledge. While it is possible that soaring markets might propel the denizens of this unreal republic into orbit (where they may eventually find an alternate environment to colonize and lay to waste), the rest of the population of this planet, and the last remaining generations of its progeny have this one earth to contend with. The meanness of mind with which Mr. Raju will not only refuse to be a part of the campaign to conserve our environment, but also try to govern the tools of its articulation by others is astonishing. It is a view in which noone is ever “saying” anything, merely selling products, in which one doesn’t launch a web-portal to say anything but to display, as wares, “intellectual property rights”, where human beings are reduced to “eye balls”.

Against Mr. Raju’s parsimonious view of the Mint being a vehicle by which “eyeballs” collaborate to help him to help squeeze out the maximum amount of profit he possibly can, I offer Vekatramiah J’s alternate conception of the role and importance of the press.

“The press as a medium of communication is a modern phenomenon. It has immense power to advance or thwart the progress of civilization. Its freedom can be used to create a brave new world or to bring about universal catastrophe.
17. Freedom of speech presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. It rests on the assumption that the widest possible dissemination of information from as many diverse and antagonistic sources as possible is essential to the welfare of the public. It is the function of the Press to disseminate news from as many different sources and with as many different facts and colours as possible. A citizen is entirely dependent on the Press for the quality, proportion and extent of his news supply. In such a situation, the exclusive and continuous advocacy of one point of view through the medium of a newspaper which holds monopolistic position is not conducive to the formation of healthy public opinion. If the newspaper industry is concentrated in a few hands, the chance of an idea antagonistic to the idea of the owners getting access to the market becomes very remote. But our constitutional law has been indifferent to the reality and implication of non-governmental restraint on exercise of freedom of speech by citizens. The indifference becomes critical when comparatively a few persons are in a position to determine not only the content of information but also its very availability.The assumption in a democratic set-up is that the freedom of the press will produce a sufficiently diverse Press not only to satisfy the public interest by throwing up a broad spectrum of views but also to fulfill the individual interest by enabling virtually everyone with a distinctive opinion to find some place to express it.”

Postscript

“The rapid growth in Indian media has come at the cost of ethics”
Raju Narisetti (Evanston, Illinois, 2008)

The editor of the financial newspaper Mint, Raju Narisetti, argued that the media in India wasn’t self-critical and there were few media-watching-media columns in the newspapers.
(Goa, October 2007)

How embarrassing.
Following a comment on Mr. Raju’s blog, I’m including a snapshot of page 7 of the 21st October edition of the Mint.
Its up here until I get my legal take down notice on account of ‘copyright violation’.