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Sangam Classics
& Question of Copyright

Nadesan Satyendra

18 March 1998
(from a contribution to the Tamil.net)

Vannakam,

Dr.Kalyanasundaram's  request for comments on copyright implications (coming as it does from some one who has made an important and pioneering contribution to placing the classics of Tamil literature on the web) calls for a response.

The central matter of concern appears to be about 'edited' versions of the Sangam classics.

The Kanian/DQ article makes the point:

" We tend to think, for example, of the Tamil Sangam classics as so ancient that they exist beyond copyright, but in fact the only versions we have available of the Sangam literature are editions that have been copyrighted and that copyright is still valid in India."

But Dr.Kalyanasundaram rightly points out:

"Editing of ancient works does involve certain expertise in the field and time, effort on the part of the editor. But at this stage, in spite of the additional effort, the work (source text) is still largely the work of the original author. Yes? Or can the editor now claim some propriety rights on the reproduction of the edited source text by others? If someone does claim copyright protection for one particular way of reproducing the ancient work, that amounts to he/she claiming authorship to the work itself. For ancient works, the recent editor himself depended on some other source of the work. One cannot have a growing number of authors or editors claiming copyrights for thirukuRaL verses. Whatever way it is reproduced, it was written by thiruvaLLuvar and it must stay that way for eternity. Period. "

Dr.Kalyanasundaram's common sense point of view is also good law - in the end, appearances to the contrary, all good law is sound commonsense! Copyright is a right which an author has in his or her original literary or other work. The actual duration of the right varies from country to country. In the US for instance, for pre 1978 publications, the copyright expires 75 years from the date of publication. Within the European Union, copyright will last for the life of the author plus 70 years. In India, the term for copyright protection extends to the life of the author plus 60 years. In Singapore, the period is the life of the author plus 50 years.

Clearly, copyright in the Sangam classics expired long years ago. But what about later 'editions' of the classics? Here, the question that needs to be addressed is whether the 'edited version' may be considered to be an 'original intellectual creation'.

Originality in the context of copyright law simply means that the work should originate from the author and must not be copied from another work. If the work in question is an 'edited' version of an earlier work, the level of creativity demanded for copyright protection would normally exclude products which may be of substantial labour but which reflect little or no intellectual effort ('sweat of the brow' products).That which copyright protects is 'intellectual creation' and not 'physical labour'.

It is not enough for editors to claim copyright where all that they have done is to expend perhaps, substantial labour to present earlier works in a different form. Again, even where an editor may claim that though the separate parts were not unknown, the way he has put them together is all his own, his claim to have copyright will extend only to the original and creative 'way' he has put the separate parts together and not to the work itself. Though, no doubt each case will have to be considered on its merits, it will be difficult (though, perhaps, not impossible) to assert a copyright in punctuation marks. Be that as it all may, an editor does not acquire copyright of the original work by editing it - indeed, an editor admits by his very actions that the work that he is 'editing' is not his own. And, as Dr.Kalyanasundaram rightly remarks, there can be only one author of the Thirukural.

Some countries, like the U.S.A. and India have made provision for the registration of copyrights. Though registration is not compulsory, the Indian Copyright Act does provide that the Register of Copyrights shall be prima facie evidence of the particulars therein. But this prima facie evidence may be rebutted. The Indian Copyright Act also enables a plaintiff who asserts copyright violation to sue where he resides or carries on business for profit or gain.

The Kanian/DQ article says:

"One difficult issue, yet to be resolved for other languages, is the question of "intellectual property rights", more commonly known as copyright. As materials that are protected in one jurisdiction become available across national boundaries without any protection for the IPR, many issues will become more problematic."

Here, it may be helpful to recognise that whilst copyright is an intellectual property right not all intellectual property rights are copyrights. Intellectual property rights are a broader category and include 'copyright', 'patents', 'trademarks' 'domain names' etc. Again whilst it is true that the digital revolution has brought with it an increasing interest in the law of intellectual property, attempts to harmonise the law have also gone on apace.

In the specific area of copyright, whilst there is no such thing as an 'international copyright' that will automatically protect an author's creative work throughout the world, most countries are parties to the Berne Convention on Copyright (and the Universal Copyright Convention) and their national laws reflect this. However, it is true that jurisdictional issues may well arise because of the very nature of the internet.

In February 1993, President Clinton formed the Information Infrastructure Task Force (IITF) to articulate and implement the US Administration's vision for the National Information Infrastructure (NII). The IITF was chaired by Secretary of Commerce Ronald H. Brown and consisted of high-level representatives of the Federal agencies that played a role in advancing the development and application of information technologies.The comments in a report issued by IITF may be found useful:

"...there are those who argue that intellectual property laws of any country are inapplicable to works on the (internet) because all activity using these infrastructures takes place in "Cyberspace," a sovereignty unto itself that should be self-governed by its inhabitants, individuals who, it is suggested, will rely on their own ethics -- or "netiquette" -- to determine what uses of works, if any, are improper.

...First, this argument relies on the fantasy that users of the Internet, for instance, are somehow transported to "chat rooms" and other locations, such as virtual libraries. While such conceptualization helps to put in material terms what is considered rather abstract, activity on the Internet takes place neither in outer space nor in parallel, virtual locations. Satellite, broadcast, fax and telephone transmissions have not been thought to be outside the jurisdiction of the nations from which or to which they are sent.

....Computer network transmissions have no distinguishing characteristics warranting such other-world treatment. Further, such a legal free-for-all would transform the (internet) into a veritable copyright Dodge City. As enticing as this concept may seem to some users, it would hardly encourage creators to enter its confines....

.....With no more than minor clarification and limited amendment, the US Copyright Act will provide the necessary balance of protection of rights -- and limitations on those rights -- to promote the progress of science and the useful arts. Existing copyright law needs only the fine tuning that technological advances necessitate, in order to maintain the balance of the law in the face of onrushing technology."

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