Lionel Bently


This paper examines the tension between trade and development, and its handling in multiple layers of law-making through an historical case study concerning copyright in India in the late-nineteenth and early-twentieth century. The paper explains the emergence of views in the Government of India of what copyright law should cover that reflected longstanding but not unproblematic assumptions about India's need for European knowledge and learning. The belief that India needed access to European knowledge informed resistance to the desires of British publishers that copyright owners should be able to control the making of translations of their works. These divergences between what are broadly described as "British" and "Indian" views as to the desirability of translation rights emerged towards the end of the nineteenth century in a complex legal environment in which international copyright arrangements were added to those of imperial and local Indian copyright. After two cases in which the Bombay High Court denied the existence of a translation right (under both Indian and the imperial Copyright Act), the British government and the Government of India came under pressure from publishers to adopt such a right. The paper describes how the Government of India resisted such attempts and the deference the British Government was willing to offer it. However, specifically Indian desires were neglected when Britain negotiated copyright matters on the international stage. Instead, Britain committed itself to an increasingly full translation right in the various revisions of Berne Convention, and following the 1908 Revision, sought to legislate a new Imperial Code that reflected these commitments. While India complied with British wishes, and introduced the imperial copyright regime, it utilized the residual powers granted to it to modify and limit the duration of the translation rights. However, the limited application of the modified translation right to works published in India meant that it was an unsuitable means for facilitating the acquisition of European knowledge. Rather, the modifications must be understood symbolically as a proclamation of autonomy, and instrumentally, as a mechanism for the production of an Indian national culture. The case study of the translation right in India highlights the critical importance of social, economic, and cultural context to the operation of copyright and simultaneously resonates with contemporary discussions as to how to accommodate local difference in the context of globalized norms.

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