Gandhi, Freedom, and the Dilemmas of Copyright

When the copyright on Rabindranath Tagore's writings were to expire, his estate sought (and got) an extension in copyright term.  But when  the copyright on Mahatma Gandhi's writings were to expire, the trustees did not seek such an extension, in deference to Gandhi's views on copyright. On the cover of the first English edition of the Hind Swaraj, it states: "No Rights Reserved".  Was Gandhi a Wikipedian at heart, and a prophet who foresaw the 'copyright wars' and had his own visions of how far free culture and free knowledge activism could and could not go?

Description

Central to modern discussions of copyright law is the conflict between copyright’s role as a market-based mechanism of cultural production and its detrimental effects on access to knowledge, free speech, and cultural creativity. So divisive is this debate in the world of copyright law today that some have characterized it as the ongoing “copyright wars”. In January 2009, when copyright in all of Gandhi’s works expired, to the absolute surprise of many, the Navjivan Trust,to whom Gandhi had transferred the copyright in his works, chose not  to seek a statutory extension of copyright.

The Trust’s firm decision rested in large part on Gandhi’s unease with copyright law, and his reluctant acceptance of its benefits. Gandhi’s opinions on copyright law reveal a rather concerted attempt to grapple with the innumerable public and private trade-offs that are central to the institution, which are today seen as the very basis of the copyright wars. Much like Gandhi’s views on other issues, they reveal a pragmatism, nuance, and creative engagement, which likely emanate from Gandhi’s training as a lawyer. Instead of simplistically rejecting the institution in its entirety, Gandhi saw copyright law for what it is—an important social compromise—and sought to engage with it in a way that tracked his beliefs on other issues.

This talk will argue that the nuances of Gandhi’s engagement with copyright law hold important lessons for thinking about copyright law in society, and for managing its complex trade-offs. Gandhi’s thinking on the topic anticipated many of the modern dilemmas about the structure and function of copyright law--such as the role of exclusivity, the importance of control and integrity, and the costs and benefits of licensing revenues. And while Gandhi may not have had a clear (or unambiguously correct) solution to any of them, he almost certainly asked the right questions.

About the Speaker

Shyam Balganesh’s scholarship focuses on understanding how intellectual property and innovation policy can benefit from the use of ideas, concepts and structures from different areas of the common law. His most recent work tries to understand copyright law’s pre-requisite of “copying” for liability, as a mechanism of pluralistic decision-making that allows it to incorporate both utilitarian and rightsbased considerations into its functioning.

Balganesh received his J.D. from the Yale Law School, where he was an Articles and Essays Editor of the Yale Law Journal and a Student Fellow at the Information Society Project (ISP). Prior to that he spent two years as a Rhodes Scholar at Balliol College, Oxford, and received a B.C.L. and an M.Phil in Law from Oxford University.

His recent publications include: ‘“Hot News’: The Enduring Myth of Property in News,” 111 Columbia Law Review 419 (2011); “The Pragmatic Incrementalism of Common Law Intellectual Property,” 63 Vanderbilt Law Review 1543 (2010); and “Foreseeability and Copyright Incentives,” 122 Harvard Law Review 1569 (2009), among others. He is also currently editing a collection of scholarly essays on the topic of intellectual property and the common law, scheduled to be published by the Cambridge University Press in 2012.

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