Publishing sector in India is considered as a promoter of a creative division, as the publishing industry helps in transferring knowledge, creative fictions, information and data etc. The publishing sector in India is third largest English Language market in the world, and one of the most valued sectors for advancement of Indian community. However, this sector faces challenges of plagiarism, fabrication / falsification of data, low research quality etc. which are prevalent due to lack of guidance on publication ethics to guide as check points for publication. 1 Before delving into understanding the protection and limitations on publishers under the Indian laws, a few basic concepts can be addressed as under:
- What are the rights conferred upon a publisher?
Under the Copyright Act 1957, publisher is accepted as a copyright holder of a work, either through employment or through assignment where the exclusive rights are transferred in his/her favour. These rights may extend to:
a. to reproduce the work in any material form including the storing of it in any medium by electronic means;
b. to issue copies of the work to the public not being copies already in circulation;
c. to make any translation of the work;
d. to make any adaptation of the work; 2
The above rights are subject to the arrangement between the author and publisher, when the work is created independently by the author, whereas in case of work created under employment, the rights extend to all exclusive rights provided under the Copyright Act 1957.
2. What are the necessities under law that needs to be met by a publisher?
The publishing industry is subject to various legislations under the Indian laws. Each one of them lays down some procedural aspect that need to be adhered to by publishers. Some of these aspects with relevant legislations are given as under;
- Under The Press and Registration of Books Act, 1867:
- Particulars to be printed on books and papers, such as name of publisher and printer, along with place of printing and publication. 3
- Declaration to be made by the owner of any press for the printing of books or publications before the specified authority within whose local jurisdiction such press is operative 4
- Rules regarding publication of newspapers, including a mandatory declaration by the printer/ publisher of every newspaper before a District, Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published 5
- Under Delivery of Books and Newspapers (Public Libraries) Act, 1954
- Publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government.
- Under Copyright Act, 1957
- Publishers enjoy 'related rights', i.e. they have the right over the edition they publish. The soft copy of layouts, films, plates, stocks and publicity material are the publisher's property. The author is not allowed to produce a competing work that could harm the sale of the book while it is in print. 6
Needless to say that all the above legislations mentioned also provide for penalty clauses in cases where procedural requirements are not met. Apart from the above mentioned, there are legal risks associated with publishing sectors, and few of such major risks are:
Infringement – Before publishing a work, it is mandatory for the publisher to ensure that the publication, to the best of his knowledge, will not lead to any infringement especially that of copyright and trademark. An instance, where the publishers has derived the contents from an earlier work and have used the same in his work without proper authorization from the owner/ proprietor of original work, then in such cases the publisher may end up causing infringement of an exclusive right of the owner/ proprietor of the original work.
Case: Penguin Books Ltd. vs India Book Distributors And Ors. 7
This case deals with the protection of the publisher's related rights from infringement. In this case the right of distribution (a related right vested with the publisher) was infringed upon by India Book Distributors. The plaintiff had the right of distribution over a work that was imported from a foreign country. These rights were infringed, and the Hon'ble Delhi High Court observed that without distributing license pertaining to a work no distributor can indulge in the business of distribution by infringing upon the rights of the entity holding such license.
Another area of concern is possible claim of defamation. Contents of publication which can harm or damage the reputation of any person, may lead to defamation unless such contents are protected by the exceptions of defamation such as truth, public conduct, content of public concern, proceedings of court, merits of a matter, good faith etc., as provided under section 499 of the Indian Penal Code 1860.
Case: Selvi. J. Jayalalithaa Vs. Penguin Books India 8
This case gained a lot of momentum owing to the fact that a political figure was involved. The publisher was asked to refrain from publishing the books (a biography on the plaintiff) on account of it containing defamatory content about her personal life. The Hon'ble Court had passed an interim injunction in this case that was turned into an absolute injunction against the publications which contained the contents defamatory to the plaintiff.
Obscenity is another challenge that has recently gained a lot of attention in the Indian community. Even though the issue of obscenity, as on date, is specific to the online streaming platform wherein the parties have raised issue of bringing online streaming within the purview of the Censor Board in order to stop obscene contents from the online platform. The publishing industry representing magazines, books, periodicals, novels, short stories etc., have escaped the eyes of the protestors over the use of sexual and/ or pornographic contents. With our move towards progressive society, the content market in India today majorly rely on hot, sexual and/ or pornographic contents to attract the attention of audience. Under the Indian Penal Code 1860, section 292 to 294 deals with obscenity, and section 292 specifically makes sale, hire, import, export, business, advertising of obscene books. Pursuant to the existing provisions against obscenity, it is important to also balance right to expression.
Case: (1) Ranjit D. Udeshi vs State Of Maharashtra 9 and (2) Aveek Sarkar & Anr. vs State Of West Bengal And Anr. 10
In both the cases given above the publication of 'Obscene' content was brought to court. These landmark judgments set out the test for obscenity and though the matter was resolved in the favour of the publisher in the latter case, it is still advisable to avoid publication of any obscene content as the Indian Courts have indicated that the concept of obscenity would change with the passage of time, and what might have been "obscene" at one point of time would not be considered as obscene at a later period.
Outraging religious beliefs/ sentiments – India is a secular country, diversity of religious beliefs and practices. By virtue of being a secular state, the constitution of India values and respects all religions equally and also protects religious sentiments of its citizen. Under the Indian Penal Code 1860, Chapter XV (section 295 to 298) deals specifically with the offences relating to religion. The provisions of Indian penal code especially with respect to religious sentiments is very stringent to protect the sentiments of its citizen. Further, religion as a topic is very critical and delicate, and therefore any statement or publication which may hurt the religious sentiment may not only lead to disregard the reputation of the author and also end the career of the author in terms of publications. Such critical contents may also cause public nuisance and in worst case scenario may lead to riots on religions.
Case: R.V Bhasin vs 2 Marine Drive Police Station, 11
In this case, the Hon'ble Bombay High Court mainly dealt with the Author of the work, but the order also extended to the publishers and all circulation of the books was called off. The Hon'ble Court observed that:
"The author has gone on to pass insulting comments on Islam, Muslim community with particular reference to Indian Muslims. It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims."
As a general practice, the publishing house or publishing agencies, ensure a legal read of work before processing it for publication. The legal read of work must be a primary concern, since any dispute that may arise on account of publication may not only ruin the reputation of the publishing house/ agency but may also lead criminal charges which will not only destroy the goodwill of the publishing agency but may also end the market value of the publishing house/ agency.
Under Section 95 of the Criminal Procedure Code, the State Government has been entrusted with the Power to declare a book or publication as forfeited to Government. Further Section153A of the Indian Penal Code 1860 provides for punishment for acts between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
In light of these serious concerns, it is important for all publishing houses/ agencies to ensure legal read of works before publications.
1 Federation of Indian Chambers of Commerce & Industry, FICCI Booklet on Publishing Ethics, available at http://ficci.in/study-page.asp?spid=23081§orid=86
2 Section 14, Indian Copyright Act, 1957
3 Section 3, Press and Registration of Books Act, 1867
4 Section 4, Press and Registration of Books Act, 1867
5 Section 5, Press and Registration of Books Act, 1867
6 Section 56, Indian Copyright Act, 1957
7 AIR 1985 Delhi 29, 26 (1984) DLT 316.
8 O.A. No. 417 of 2011 and Application No. 2570 of 2011 in C.S. No. 326 of 2011(Madras High Court); Shilpa S. Shetty vs. Magna Publications Co. Ltd. & ors. AIR 2001 Bom 176 held that "...the principle that whenever defamatory articles are likely to be published they cannot be permitted to go ahead to print and to cause damages."; R Rajgopal alias R.R. Gopal and Another vs. State of Tamil Nadu and Others Writ Petition (C) No. 422 of 1994; Swami Ramdev VS. Juggernaut Books Pvt Ltd & Ors. as decided on September 29,2018.
9 1965 AIR 881, 1965 SCR (1) 65
10 (2014) 4 SCC 257
11 Pronounced on January 06, 2010 by Hon'ble Bombay High Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.