Creative Commons: Impact on

Indian Copyright law

Project on IPR and Information Technology,

Seminar Paper

SUBMITTED TO
Mr. Vikas Bhati
Assistant Professor, Law

SUBMITTED BY
Sudhir Kumar Singh
Roll No. 138
X Semester

Acknowledgement

The present project on the said subject is able to get its final shape with the
support and help of people from various quarters. My sincere thanks go to all the
members without whom the study could not have come to its present state. I am
proud to acknowledge gratitude to the individuals and institutes during my study
and without whom the study may not be completed. I have taken this opportunity to
thank those who genuinely helped me.
With immense pleasure, I express my deepest sense of gratitude to sirs to assign
and help me in my project. I am also thankful to the whole Dr. Ram Manohar
Lohiya National Law University family that provided me all the material I required
for the project.
Last but not least I would like to thank Almighty whose blessing helped me to
complete the project.

Sudhir Kumar

Table of Contents
Introduction
The need for creative Commons
Structure of creative commons and semi commons
Indian Compatibility
Benefits
Conclusion
Bibliography

Introduction
To build a layer of reasonable, flexible copyright in the face of increasingly restrictive default
rules
-Lawrence Lessig
3

The Commercial benefit that an author has over his original work that is Copyright has always
been to the benefit of the public domain. If a time-line is made of the time period during which a
copyright sustains it will be found that the idea was always to ultimately enrich the public domain.
Even under current laws a copyright of an artist over his work is maximum extendible to his
lifetime plus 60 years under Indian law. The nature of content management industries, that is the
music/art/cinematographic or other on-line internet related company though highly competitive,
pose a certain unique challenges to the copyright law in the modern era. The internet age has
brought with itself not only access to the demographic for the marketeers but also piracy.
Creative Commons is thought upon to correct and remedy the above. The Open Source Software
concept has also been immensely popular in the past two decades. The term Open Source implies
that the author of the software has put the software code in the public domain accessible and
modifiable as it may seem fit to the public. It was with this that the open licenses along the lines of
creative commons were conceptualized.
Open source licenses present with themselves a new challenge to the existent Copyright law. The
few rights restricted concept starkly contrasts the all rights reserved under the traditional licensing
scheme practised by the authors to date. There may exist certain friction between practice of these
licenses and the current copyright laws.
This project aims to identify a broad spectrum of these challenges faced, the law and policy
decisions related to these challenges and the scope for future development of Creative Commons.
The application of Creative Commons is already under-way with major user generated content
management websites. These websites, accessible under jurisdiction of Indian copyright act, are
bound to create grey areas in the law. Globally, furthermore, artists and authors of literary works
have already started applying creative commons and like licenses to their works. It is feared that
there might sometime soon arise a dispute which may lead to precedents or policy decisions
adverse to the development of Creative Commons and like licenses. The dissertation analyses data
from industry and jurists and makes an effort to interpret their understanding of the concept of such
licenses, and then recommends an ideal perspective that may mould jurisprudence amalgamating
the creative commons and like licenses and the copyright laws as existent. Various suggestions and
4

recommendations have also been put forth in tune with the factors required for growth of open
source licenses in India.

Need for creative commons

The concept of commons is hence essential to clarify. Commons is generally understood to be a
legal regime where multiple owners are each endowed with the privilege to use a given
resource, and no one has the right to exclude another. 1 This commons could be regarding any
property, real or legal fiction. This definition however falls short of explaining the constituents of
commons in terms of property created by legal fiction. In the commons pertaining to property
such as copyright, several unanswered questions are raised. The concept of regulating of
commons however in the reasoning of copyright laws, initially, has been on the basis of
commons pertaining to real property, mostly relying on the works of English philosopher John
Locke14. Locke (1690) formulated two provisos to simultaneously guarantee preservation and
access to commons15. His first clause was 'sufficiency proviso', wherein he stated that private
appropriability is to be reasoned on basis of the individual contribution, and only admits
appropriation at least where there is enough and as good left for others2. This as is apparent has
placed a limitation on individual rights by acknowledging collective ownership of the resources.
The second clause is the 'spoilage proviso', which reasserts with greater force the necessity of
preserving the integrity of common resources, stipulating the limitation of individual's property
rights when these can have significant effects leading to the depletion of resources.
The logic is simple and deduces from all that has already been discussed in the document, it is
not possible to isolate works and define it and protect it. The work may be apparent however it
still is in the fabric of knowledge and connected to every other knowledge, previously existent
1 Michael A. Heller, The Tragedy of the Anti-commons: Property in the Transition from Marx to Markets, 111
HARV. L. REV. 621, 623-4 (1998)

2 Locke, 1690, section 27

5

and newly generated. It is impossible to presume that the author has been an independent creator,
self reliant for knowledge base from which the work was created and working purely for
monetary incentive. In matter of incentive, several research papers and real world instances have
amply demonstrated that the authors are not seeking adequate compensation for their works but
merely trying to protect themselves from the feeling of being cheated of their labour. 3 Industries
work on certain commercial scaled models, which often rely heavily on one type of technology.
It thus makes sense to defend that technology, and consequently, the laws that protect their rights
in those technologies. This protection maybe sought indefinitely in cases where a lot maybe at
stake or for a limited period until the industry amends its commercial scale models to include the
new technology. The essential problem faced by any new technology is facing the established
industry, which invariably also influences the laws and policies in specific to the economic sector
it participates in
Remarkably however the trends in copyright laws internationally and specific to India have been
towards stronger copyright laws. TRIPS Agreement and subsequent World Intellectual Property
Organisation (WIPO) treaties are lengthening copyright tenure and dis-balancing the relationship
between individual and community rights, as was envisaged under the original copyright
regime.4 As already mentioned that the process of developing a work by any author is an ongoing
process of information sharing and generation, mostly out of commons, and it is easy to
comprehend that easier the access to plenty information better the quality of work produced by a
capable author. In all fairness, keeping the utopian ideals presented till now aside and merely
keeping to the ideal scenario envisaged by the stronger copyright supporters where all the
knowledge maybe summed up from distinct individual units of information, a strong copyright
will still be detrimental to the interest of community.
This is illustrated simply by assuming that all existent information is copyrightable and has had
copyright law applied to it. This shall lead to prevalence of two classes of information, one is a
3 Subsequent chapters shall illustrate this claim of the author.
4 Irrelevance and outdated status of work in commons shall be further agravated if stronger and longer copyright
tenures (extended copyrights) are advocated and applied. See Ramello (2004), supra, note 6.

clear cut commons comprising of all the information that has copyright either as been
relinquished by author or expired, and the other class as where copyright is still in continuing
application. Any new work to be formed shall still be dependant on existent works29. The author
of the new work shall require prior permission or license from the continuing copyrighted works
and may refer to commons openly. The process of acquiring licenses and finding owners shall in
itself cost to the detriment of final work produced. It shall be entirely dependent on the financial
ability of the author. Intellectual Property infringement, unlike real property trespass, requires a
more technical due diligence. The extent of physical property is distinguishable, however the
intellectual property infringement, especially copyright. In reference to American law, refer to
Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197 (1996) in
Indian context refer to Supreme Court judgements regarding interpretation of copyright laws.
The Walt Disney-Grimm Brothers example already provided at the beginning of this chapter
illustrates the point. Any work, no matter how original shall always depend on a socio-cultural
context to derive its meaning in order to be consumed at large. No matter how hypothetical the
scenario or illustration regarding formation of original and distinct works, we cannot ignore or
contradict this basic fact that all recent information or contribution of authors, no matter how
original or distinct depend on previous works or information available is not due to its extent
being legal fiction and technically definable only by judicial scrutiny of every specific instance.
Hence the 'knowledge cost' involved shall be a dissuading factor, and there is a possibility that
the work shall rely mostly on commons knowledge available, which due to its composition of
mostly expired copyrighted works shall be outdated and mostly irrelevant.
This starving of the creative commons and the irrational application of the copyright regime to
the internet and computer has led to the movement of open source and content, where in, within
copyright regimen, solutions are sought and implemented to bring back the rationality of the
original copyright. The libertarian approach to copyright is utilised, that is parties enter into
agreements and decide how the license is to be used, and form 'clubs', which shall be referred to
throughout as semi-commons. The semi-commons, thus serve as a parallel system of managing
information and knowledge created by way of these license. 5The Semi-commons provide a
5 Herkko Hietanen , A License or a Contract; Analyzing the Nature of Creative Commons Licenses , SSRN id
1029366

balance between copyright protection to the authors against commercial exploitation of their
works without their permission or gain and the need for an up to date reliable commons, a
repository of knowledge which is relevant to the times and possible for anyone to publish a
derivative work from without prior permission. It is this system of licenses, the semi-commons
created, that shall be the topic of discussion throughout this project, in specific reference to
Creative Commons.6

Structure of Creative commons and Semi

commons
Copyright, by default, implies by its presence of mark, All rights reserved. Any use of the
copyrighted material requires one to obtain a license from the owner of such copyright. The use,
no matter how simple and harmless, still requires a maze of legal contract building and hefty
legal payments to ensure that, if for instance there is a compilation work consisting of multiple
owners in it. This is feasible only for the industry, where they have the resources and the
expertise to navigate through this maze and until before the dawn of internet, when any person
wishing to publish had to either put considerable resources or had to resort to the established
industry. To illustrate, if someone wanted to shoot a documentary, even with the camcorder, he
would still not be able to publish it without approaching any studio established for the purpose of
production and distribution.7 The artist hence is never in control of his work, and furthermore,
the copyright regime and the set-up doesn't leave him with much options but to seek legal aid
from the industry to clear him through the maze of copyrights. The essential fact being, that if an

6 Creative Commons the license established by the

www.creativecommons.org. (Last visited on 1st April, 2011)

organisation

Creative

Commons.

Refer

to

7 The fact that an artist or an author had to resort to established commercial enterprises for publication also made
him susceptible to changes dictated by them in their works. Further assignment may be used as a tool for
exploitation as well.

artist/author does not approach a commercial enterprise, there are chances that he may never be
published.
This movement sparked off the Open Source/Content revolution, with ample licenses entering,
from those that cater to soft wares, as in Apache license etc, to those licenses that cater to
pictures and documents, for instance Open Document License, the original license used by
Wikipedia. However over time, with the international presence of internet and legal frameworks
in various countries starting to recognize cyberspace, it became necessary to have a license that
was creative content specific, recognizable on-line. It is with these ideals and purposes that
Lawrence Lessig, a Professor at Stanford Law School, founded the Creative Commons
organization.8 These Open Content Licenses, especially Creative Commons, have been
conceptualized to address the issue of broadening ambit and subject matter of copyright law,
which is usually done by way of diminishing exceptions available as defence in infringement
suits. These exceptions are primarily what are known as fair uses under copyright law. It is not
though as if during infringement proceedings arising out of standard copyrighted work the
defence of fair use is not available. These licenses endeavor towards creating clearly demarcated
limits of control the author has over the work, instead of general presumption had that control is
absolute. The licenses like creative commons are seen as conditional licenses in the broad sense,
however due to the nature of their usage, that is for works in digital form, the distinction is
harder to make between their nature as a license or of as contract. India is still finding no urgent
need to resort to the doctrine and hence has no such jurisprudence, but predictably when times do
press upon the courts to settle such matter, they shall surely resort or de minim formulate on the
basis of American jurisprudence.9 Keeping aforementioned reasoning, it is hence important for

8 For more history please refer to http://creativecommons.org/about/history (last visited 1st April, 2011)
9 M/S Entertainment Network v. M/S Super Cassette Industries, available at

http://indiankanoon.org/doc/1592558/ (Last visited on 1stApril, 2011) . This has been apparent

with the fact that in this recent case, on the issue of compulsory licenses and broadcaster's right,
the court in it's judgement gave great importance to foreign jurisprudence on the issue instead of
reasoning of its own to reach a conclusive Indian jurisprudence, as compared to a dispute under
any other law.
9

us to establish the very basis of their nature, whether theses licenses are license at all or contracts
other than license. This is required as if the Creative Commons is to be remediable, one needs to
know the extent of legal remedies that can be sought. The proprietary softwares for instance are
click-wrapped in End User License Agreement, and remarkably these are called agreements due
to their contractual nature, wherein several obligations are created on the end user to the extent
of, for instance, the proprietary software company having the ability to delete aggressively any
files on the computer of the end user.
It is only justified thus, that owners and publishers, especially with respect to software, make
unilateral contracts including licenses to ensure that they are able to have the remedies available
under both contracts and licenses. The other advantages of contracts is click/ shrink wrap
agreements in application, which foregoes most local jurisdiction laws regarding signing in
writing etc. for licenses81 and other jurisdictional issues, as contracts universally are seen at the
option of private individuals reasonably free from state interference. Contract form of 'licensing'
also allows additional rights to be created and obligations much beyond the scope of copyright
laws to be included, for instance Digital Rights Management of creative works and further more
the creation of rights of the creative content provider vis--vis the consumer beyond what the
publisher's and owner's right may have as its scope under copyright law.10
The issue that arises out of the structure of such semi-commons is the scenario where a work
licensed, where the licensor does not have the right to license, is used bona fide by licensees of
derivative works. The original owner of the work is well within his right to proceed with
infringement proceedings against any of the licensees, besides the improper licensor, however
due to the chain nature of the derivative works, it would be important to see whether it will be
possible for licensees to be indemnified from the improper licensor, or the preceding licensee.

10 Section 57 of the Indian Copyright Act, 1957 Author's special rights moral rights etc are

provided for. See also Wily Eastern Ltd v Indian Institute of Management, 1995 PTR 53 (Del),
wherein it was ruled that these rights are available to the author and not owner in matters of
attribution and derivatives. Hence with the stance of law in favour of author in matters of
derivatives, it only makes sense that a contractual obligation be imposed by the publisher on the
consumer to make up for the commercial risk imposed by derivatives.
10

This is the hidden risk of infringement83. It will be now the duty of the licensee to ensure that
before he enters the chain of open content license, the original owner of the work has cleared it
for use and may require further information costs, ironical, considering these licenses were set up
to remedy that very problem.
Creative Commons licenses (hereafter referred to as CC) are drafted as any other license, to
impose conditions on the grant of interest and with restrictions specified 11. These restrictions are
of a specific format, as will be shown, and allow the license to have best of both laws,
contractual as well as copyright law, that is, one may sue for breach as well as infringement. The
CC is aimed at creator's directly, that is the authors of the creative works, and are not in their
essence to be managed by creative content managers and publishers. It primarily depends on the
on-line publishing model that is UGC model as discussed in the preceding chapter. The idea is to
make a semi-commons86, knowledge or a creative works repository comprising of similarly
licensed creative works which can be modified by the public and published by them. It is an
artificial public domain where the authors retain their copyright and only license select interest in
the rights to the public, in specific those interests that are beneficial to society. In the real world
property terms it is akin to forming a trust wherein general public is the beneficiary. The
common deed when being ported into Indian jurisdiction had to overcome certain aspects of the
copyright regime created under the Indian Copyright Act, 1957. The license deed, or as we have
discussed in the preceding paragraphs, the contract format, must then serve to harmonize Indian
CC with the common CC, furthermore, a contract must serve for all eventualities, and thus it is
amply clear that there should be creation and definition of rights wherever the Indian regime is
found deficient in that regard vis-a-vis common deed.
Thus there are several inherent defects and advantages to CC, however it still remains to be seen
how the CC shall fit under the Indian copyright regime, that is whether the Indian regime shall be
able to leap frog into an adopted era of open content licenses as opposed to developed regimes
where it had evolved intra-system.

11 Herkko A. Hietanen, Creative Commons' Approach to Open Content, SSRN-id 1162219.

11

Indian Compatibility
First and foremost, our discussion should include the socialist ideals of the Indian Republic.
Unlike the US of A, whose Intellectual Property Regime we find so modern and tempting to
adopt, our constitution does not guarantee Fundamental right to Property. We have a legal right
to property, but that too is severely limited by the need for public good. The socialist ideals of
our country regarding property law have even in the post-liberalization phase, not seen any
change. Moreover, ironical instances have now become the norm, where to fuel liberalization,
socialist property laws are invoked to capture resources for the individual capitalists. In face of
such events, it becomes only irony that Intellectual Property Rights may get broader in ambit and
exclusive as well. The time has never been riper for Indian Republic to reform its socialist stance
and at the very least adopt libertarian measures for resource capturing, that is putting the
individual rights higher than the purpose of the process, since the process is to serve eventually
interests of few individuals. However, sadly the trend is to the contrary.
Since it is clear by the structure of the Indian Music industry that the artist is marginalised, and
the key players are publishers, licenses are of utmost concern under the copyright regime, so that
proper control over the works are maintained by persons other than the author of the work. Any
person other than the author to the creative work finds himself in a finely balanced position. His
right over someone else is merely on a license, and these licenses are subject to provisions of the
Indian Copyright Act, 1957, which provides for fair use, mechanical compulsory license and
other exceptions which are detrimental to the interest of publisher. However trends are now
favoring publishers more than ever, so much so, that the latest amendment bill tries to undermine
their control over the creative works in the market aggressively.
The amendment bill has several changes that shall be beneficial to CC and like licenses. The
foremost being clause 9 of the bill, which shall allow relinquishment, partly or wholly, of rights
by an author by way of notice to the Registrar of copyrights as well as by way of public notice,

12

as opposed to only the former option in a specified format before. This minor procedural change
will benefit CC and like licenses, as they require partial relinquishment of the author's right in his
works, and where applicable right even wholly relinquished. Under the earlier procedure the
author was required to send in a notice of specified format to the Registrar of Copyrights, but the
bill proposes an option of public notice, with no mention of any specified format. The CC human
layer, mentioned in the previous chapter, may serve as a clear enough public notice of the
author's intent to partly or wholly relinquish his right. This shall make the core intention of CC
licenses even easier to propagate under Indian copyright law.
The Clause 13 of the Bill proposes to do away with the signing by author or his agent in order to
grant license12. This as we may have discussed in the previous chapter is an obstacle in granting
CC type licenses that is licenses which are formed and granted entirely in digital format. Even
though the Information Technology Act is quite clear on provision of digital signatures wherever
written signatures are mentioned under law, it is still a matter of inconvenience to implement.
The amendment does away with any signing for that matter and allows for the grant of copyright
license in a digital format. This further strengthens the value or CC type license agreements in
future as grant of license, if ever the pre-emption of Copyright statute is followed by the Indian
courts.13
The great debate of statutory license, to be differentiated from compulsory licenses as mentioned
in the preceding chapter, is laid to rest with the clause 17 of the bill. It proposes to insert sections
31C and 31D, which provide for statutory licenses in cover versions of sound recordings and
broadcasting of sound recordings. This a welcome move as it was seen in the Super cassettes
case, that compulsory licenses were not enough to protect broadcaster's rights and as we
observed in general industry practices, cover versions of sound recordings is not the norm as in
the west due to lack of clear statutory licenses. How statutory licenses help CC licenses is
indirect, they make it easy to make derivative works in a more uniform and clear manner. The
ambiguity of law regarding derivatives is removed by the insertion of these proposed sections.
12 Section 30 of the Indian Copyright Act, 1957.
13 Supra, See Chapter 3.
13

CC type licenses may require copyright societies specific to their purpose, as regular copyright
societies may not find it easy to adapt to the ideals of open content licenses.
There is commercial exploitation of a CC licensed work possible as long as it has been granted
on the Non-Commercial terms (nc), hence the authors may be required to ensure that their works
secure them royalty where a non-commercial use of their work has been made. Clause 18 of the
bill amends the Act in such manner that only authors shall be allowed register a copyright
society, hence eliminating creative content managers or intermediaries from the equation116.
This makes it all the more convenient for authors of CC licensed works to appropriate
commercial benefits from their works effectively while keeping to the core essence of CC
licenses to keep out creative industry intermediaries from the creative work process, as is also
shown by the clause as it amends section 35 of the Act to put the control of the copyright society
from owner of the works to the author of the works. Lastly but most importantly is the expansion
of fair dealing proposed by the amendment by way of clause 31. In order to appreciate the fair
dealing changes proposed, it may help to ascertain certain facts about fair dealing in India, vis-vis fair dealing/use in the rest of the world.
India, like other common law countries, with the exception of the US of A, has specific usages
provided as statutory provision119. Unless the usage is not provided for under these provisions,
the defence of fair dealing may not be used by the user of the work. American jurisprudence on
the other hand has factor analysis in place, which is wider in ambit, and allows court decisions to
outline fair dealing/use of a work. There are four factors under American law provided by
statute120, these are namely, Purpose and character of the use; Nature of the copyrighted work;
Amount and substantiality of the portion of the work used, Effect on the use of the new work on
the potential market for the copyrighted work.
The agenda of information economy domination of the developed world as mentioned in the
second chapter is going to be highly detrimental to the interest of the developing nations,
especially India, who see progress by participation in the knowledge economy. This may be
amply illustrated by the instance of our rising knowledge industry talent, a major 'export' of
India. Any restrictions on information needed to incubate these talents shall be detrimental to
14

Indian economy, for instance information technology industry restricting or charging exuberant
prices for their software or reference and instructional literature being kept out of means through
legitimate means. Hence it is in the interest of the nation to manage semi-commons of
information by using existent tools to provide reap such benefit and ensure information grows
free from encumbrances to a prosperous knowledge economy in India.

Benefits
India, in the developed world economies, is seen as one of the largest contributors of highly
skilled work force. India, from its perspective is effectively suffering brain drain. Brain drain is
not within the scope of this dissertation, however a mention is made because it is an important
indicator of the teeming specialized workforce we have, and inadequate resources to harness
their full potential, making them leave for proverbial greener pastures.
Hence it is essential to outline a few basic issues that shall be discussed in this chapter. Firstly,
does India keep on merely updating its IPR statutes 'artificially' apeing developed nations, who
have actually reached their maturity through evolution and friction of rights. Or should India take
pro-active measures to ensure that the knowledge economy grows and takes the IPR with it.
Secondly, can India, a perceived information technology super power keep relying on expensive
foreign copyrighted works for research and development purposes making her economy and
population grow and be nurtured in an expensive proprietary system or should it ensure that
future generations are educated and habituated to information around them that is free to access
and suited to their needs. Thirdly, should Indian economy approach the information technology
behemoth, the Internet, in the same manner as the developed nations and declare war on its free
use or should it adopt novel concepts of business models that exploit the very core nature of
internet and freedom associated with it. Lastly, an issue that shall be uniformly addressed
throughout, do CC provide that ultimate solution to help India pull itself out of developing
country bracket without falling into the trap of 'information imperialism'.

15

To start with, let us examine how information technology like a PC, though getting cheaper year
by year, is still out of reach of a tier B town educational system in India. On the outset, surely the
appropriate authority administering the system can afford low hardware specification systems,
that can now be bought, for hardly any remarkable expenditure. By author's reckoning, at the
existent rates, a school for instance can buy computer hardware in enough quantity to enable IT
literacy for the same price as that of a routine school walls' white-wash. What then makes a
school or parents decide against such onetime marginal cost of hardware, when seen with the
lifetime of it and the benefit it will accrue, are the softwares. Piracy aside, not many can afford
proprietary softwares in India. Further the cost of training in itself is more. Educational
softwares, that is softwares which have information as content or are used to impart knowledge,
are expensive, and often IT education imparted is merely limited to basic software and hardware
operations, heavily under-utilizing the PCs potential in education.
The logistics of making an educational programme requires funding and further requires
resources beyond the means of a school. A multimedia teaching tool shall require graphic and
text content, video and extracts from literature, all of which shall have to be licensed. The
logistics of it all are tough. Even though fair dealing provisions under Indian copyright laws
allow for copying of material for educational purposes, but those are only limited to teaching
discourse, examination and performances. There is no protection of fair dealing in copying and
distributing materials. The solution to this is preparation of material from scratch, and dedicating
them to semi-commons14. The benefit of this shall be that each school shall be able to modify the
content to their needs and make further derivative works to better impart education. CC licenses
are of great assistance in this regard, as is obvious by their popular usage worldwide by
governments and non-government organizations alike.15
India, which has begun using CC licenses to further distribution, translation and reuse of its
works. One may access their books on-line for free or get delivered a hard copy for a nominal
14 Sara Bannerman, Intellectual Property issues in ICT4D, 2007, SSRN-id 1014166. An excellent resource to
examine the open content movement and its uses by various countries.

15 See http://wiki.creativecommons.org/OER_Case_Studies . (Last visited on 1st April, 2011)

16

cost. Another instance of CC license usage for instructional purposes is Computer Masti.
Computer Masti is an extensive research based product created at IIT Bombay for computer
education in schools. It is designed as a series of books and activities, after an understanding of
what is suitable for school education in the Indian subcontinent as well as for schools abroad.
Furthermore, Indira Gandhi National Open University (IGNOU) provides a national digital
repository of Open Courseware , keeping in line with Massachusetts Institute of Technology's
(MIT) Open Courseware, which is course material available on-line gratis and libre. The
National Council for Education and Research Trust (NCERT) is making efforts towards
providing school textbooks free on-line.
By usage of semi-commons, the research community shall be more fluid internationally. This
paper for instance is mostly based on semi-commons published research papers world over in a
repository called Social Science Research Network (SSRN) and given current published
resources, especially in India, this dissertation would not have been possible. These Open Access
repositories make available new research faster and help knowledge grow. The research
community is the best example of how knowledge can only grow if shared.
Several scientific institutes in India are practicing Open Access publishing 138. Indian Open
Access publish on-line is an established practise now. The Indian Academy of Sciences publishes
several freely accessible journals on-line. The Indian National Science Academy has made
available several of its publications free on-line. MedKnow Publications 142, a small but fast
rowing publisher based in Mumbai is providing electronic publishing services to a number of
medical journals and partnering with Bioline International to make the full text of these journals
available on an OA basis. Several developing nation have also initiated maintenance of Open
Access repositories, notably China and South Africa 143. The quality of these Open Access
research papers has often been questioned, however fact remains that they are more cited than an
off-line published papers144. In order to ensure convenience in ascertaining Open Access content
databases, an organization called Registry of Open Access Repositories has been formed 145. It is
noted though that there is higher concentration of Open Access repositories amongst developing
nations to be in Asia-pacific region. Developing country research authors are still reluctant to

17

publish content on open access fearing that their research might be used without remuneration by
developed country researchers. Here international protection and taking on the leadership of such
initiative is required by developed countries, and it has, especially in UK, at Parliament level and
USA at house of representatives level.
Developing as well as developed nations have a lot to gain from open content/software licenses.
There are several instances of CC uses by governments around the world 148. The Dutch
government has all its official websites on the CC (0) licenses, and is the first one to do so. The
Indian Copyright Act does provide for an exception to use of any matter published by the
government of India16 however such matters are limited to merely orders, reports, statutes etc in
the official gazettes and acts of parliament. The government website or journals are hence open
to copyright restrictions, which are not pursued in interest of public interest, but still have a risk
of infringement to them. Hence it would benefit if the government of India also, in all .nic
databases make available content on CC license, like Netherlands Government.
YouTube, a UGC hosting website, serves to publish cinematographic works. The users may
register themselves for the service, gratis, and then may upload their videos. They are required to
consent to a waiver of liability of YouTube in case of any infringing material in the upload, and
further consent to terms and usage policy of the hosting service. The end result is that their video
is published under a CC license of their choice, and other members are free to apply their
creativity or simply view, where applicable, such videos. You tube, thus has evolved from a
movie publisher and distributor from the traditional business model and still serves the same
purpose, albeit gratis for many of it's artists. It's revenue model is unconventional for such
industry though, it earns revenue through advertisements and paid for content, which is standard
for a conventional website. It has thus successfully merged the two industries and managed to
show a profitable enterprise. Though several competitors are present, but they mostly resort to
pay-per-view policy, paid registration and Digital Rights Management softwares, which are in
tune with the standard business practices of all rights reserved copyright licenses. They have
seen little popularity, even though their content is uniformly of higher quality.

16 Section 52(1)(k), The Indian Copyright Act, 1957.

18

Feedbooks, an online book publishing website provides for free and paid books in electronic
format. Notably, they have public domain books as well as originally published books available
for free. The authors earn either by way of sales of hard copies or by way of donations. In music,
artist individually apply similar business model for their music, however the added benefit of it is
that they may get commissioned to perform, depending on their popularity.
Indian music industry has been established on basis of film industry, and this does not leave
much room for artists not catering to the genre. Most of such artist self publish their works, an
expensive proposition, however with a model like above, it will not only be cheap but
progressive as well for the economy as it will not interfere with the existent film music industry
and run a parallel independent music industry. This shall be especially beneficial to classical
music which Indian musical heritage is so rich in as well as music genres of a more experimental
nature. CC licenses present India with an opportunity to bring up to date her copyright regime
with the Information Technology without any major changes or amends to the copyright laws.
The CC license shall work within the framework of the copyright law and provide that outlook of
intellectual property as it was meant to be in harmony with the read and write culture, that is a
culture where everyone contributes to the commons.

Conclusion
Copyright should occupy a primary place in the political agenda of developing countries for the
very fact that two pivotal elements are strictly dependent on it: economic development and
access to knowledge. As regards the latter, developed states tend to support the opinion that the
strengthening of copyright automatically generates technological and economic development
because the capacity of the country to attract foreign investments is enhanced. From a more
general perspective, advocates for strong IPR counter that strengthening IPR will accelerate the
transfer of technology between countries, ensuring a relatively equal distribution of gains from
this policy change and, from a different perspective, it is undoubted that the collective creation
and distribution of immaterial goods (culture, knowledge, software, services) become a
19

productive element to also compete on the global market, but starting from innovative practices
developed in relation to vocation, know-how and the identity of each territory.
In The Information Technology age, as reiterated plenty times, the dominance or power shall lie
with the nation that holds the information. The author does not wish to suggest or recommend
piracy, but there is a base lesson to be learnt from early American IPR piracy. India needs to
make her own knowledge commons for her populace to build upon. The International Copyright
regime is getting broader in ambit and owner centric rather than commons centric. This the
authors and artists of India today may feel beneficial, however they need to realize that the
developed nation is already ahead in securing IPR ownership.
India has undeniably, the capability of developing largest skilled workforce in the world, and in
the information age, that can make it a superpower. Any freedom or control lost on the
information supply side shall make the workforce dependant on the information owner and in
turn it shall make the whole economy reliant on the IPR owner. A hypothetical scenario, for sake
of illustration maybe Microsoft deciding that it shall license its softwares in India on terms
stricter than before, making it unavailable and out of reach for most of the economy. The IT
administrators, especially the IT workforce trained only in Microsoft technology shall suffer the
most. They shall be rendered worthless for their skills. The creative content industry needs to
evolve to the information technology as well. There are several business models successfully
implemented world over based on the semi-commons concept, working in harmony with the
normal and progressive uses of information technology. The traditional business models are not
sufficient in this day and age. CC licenses and like licenses provide perfect solution by way of
compromise.
To conclude, the CC and like licenses constructing semi-commons are the future of copyright
practices, and sooner we adopt them, the sooner we shall avert the disaster that staunch and rigid
dogmas alone are capable of inflicting.

20

Bibliography
LAWS
1. The Indian Copyright Act, 1957
2. The Indian Contract Act,
3. The Digital Millennium Act, 2000
4. The Indian Information Technology Act,
5. The Copyright Amendment Bill, 2009
CASE MATERIALS
1. R.G Anand v. M/S. Delux Films & Ors 1978 AIR 1613.
2. United States v. Causby U.S. 328 (1946)
3. P. Lakshmikantham v. Ramrkishna Pictures AIR 1981 AP
4. Supercasette Industries v. Nirulas Corner House 148 (2008) DLT 487
5. Campbell v. Accuf-Rose Music 510 US 569 (1994).
6. ProCD v. Zeidenberg
ARTICLES & JOURNALS
1. Giovanni B. Ramello , Private Appropriability and Sharing of Knowledge: Convergence or
Contradiction ? The Opposite Tragedy of the Creative Common
2. Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to
Markets, 111 HARV. L. REV. 621, 623-4 (1998)
3. Elkin-Koren, Exploring Creative Commons: a skeptical view of a worthy pursuit, p. 9, SSRNid885466 (2006)
4. Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of "Authorship", 1991 DUKE
L.J. 455

21