Who owns our laws?
On June 25, 2019, an editorial of The New York Times was published based on the Georgia v Public.Resource.Org (a case about whether the State of Georgia can assert copyright in its annotated state code). The State of Georgia sued the Public.Resource.Org, a non-profit organisation, for scanning and uploading all volumes of annotated Georgia State Code. This, in fact, triggers a pertinent question - should not the law be made accessible for all, and in a democracy should not the people and people alone own the law? Critically, it touches a serious concern on copyright over ‘public documents’. Relevantly, I found a piece published in Spicy IP, ‘‘Shouldn’t we liberate laws from the clutches of copyright law?’’ by Dr Arul George Scaria, which in turn inspired me to write this piece. Dr Arul, explored three key questions, (a) does copyright exist in Act of the Parliament? (b) if so, who owns it? (c) finally, whether reproduction or publication would be considered as exception to copyright infringement? As I understood, on premise of right to know and access law, he aptly argued that Indian laws should be freed from the barrier of copyright and any reproduction or publication should be considered as exception to copyright infringement. I was wondering about the conditions in Bangladesh and how we could relate the similar narrative to our context.
Section 2(40) of the Copyright Act, 2000 of Bangladesh, delineates that “government work means a work which is made or published by or under the direction or control of … (b) the legislative authority in Bangladesh; (c) any court, tribunal or other judicial authority in Bangladesh’’. Section 30 fixes the term of protection for government work until sixty years from the following year of publication. Thus, laws and judicial decisions of Bangladesh are copyrightable by the government. Section 71 of the said Act outlines certain situations and conditions in which reproduction or publication constitutes copyright infringement. Section 72 lists out number of exceptions to infringement of copyright. As per the provisions of section 72(17), the reproduction or publication of Act of parliament per se without any commentary shall not be treated as exception to infringement of copyright of government. However, this would not be the case for any judgement or order of the court unless it is otherwise provided.
Acts of the Parliament and key judgements of the Supreme Court of Bangladesh are now officially made available online and accessible to all for free. Yet, the dearth of accessible up to date official or translated version of laws and judgements exists despite some paid law reports. How far the judgements of the court can be reproduced or published commercially taking advantages of copyright exemption? Regrettably, we see foreign corporation sells our judgements to us, claims copyright over it and makes money from our law schools and research institutes. The question remains should any commercial gains by the private publishers from copyright exemptions be allowed?
The US ‘fair use’ or UK ‘fair dealing’ doctrine as transplanted in various jurisdictions of the world prohibits commercial use. It was argued by the publishers in Delhi University Photocopy Case (2016); however, the court exempted the ‘course pack’ as ‘non-commercial use’ based on its nature, scale and impact on the market on one hand and the right to education of the students on the other. In 2017, Arpit Bhargava, a petitioner filed a PIL in Delhi High Court challenging the publication of bare Act by private publishers, infringing government’s copyright and making undue profits? It was also argued that government is under legal obligation to make the laws accessible at reasonable price, if not for free, because citizens have the right to know. Similar arguments may be spelled out in our context which would reasonably include copyrighted commercial use of judicial decisions as well.
Surely, the availability of laws and judicial decisions would be useful for furthering our legal education and research to which our honourable Apex Court expressed concerns and provided guidelines (albeit on maintaining quality of it, in Professor Syed Ali Naki and others v Bangladesh and others, HCD, 2016) and Bangladesh Bar Council and others v A.K.M. Fazlul Kamir and others, AD, 2017). The accessibility of law and judicial decisions will justify the imposition of the maxim ‘ignorantia juris non excusat’ and facilitation of constitutional duties of knowing and observing the laws under article 21 of the Constitution of Bangladesh. Thus, the government should adopt initiatives such as creative commons or digital repository and/or allow private entities to make our laws and judgements accessible for free. Thus. the significant question remains, should not we revisit our copyright regime and liberate our laws?
The writer is Senior Lecturer in Law, East West University, Bangladesh.