MODULE 8

MODULE 8
PROBLEMS/PROBLEMATIC ISSUES



2.1 INTRODUCTION BY WAY OF CASE STUDY: SATANIC VERSES BY SALMAN
RUSHDIE

O n January 14, 1989, 1,000 British Muslims marched through Bradford and burned a
copy of Salman Rushdie’s novel The Satanic Verses. Sunni joined with Shia to condemn
Rushdie for his apparently blasphemous portrayal of the Prophet Mohammed.1

The book is the fictional story of two men, infused with Islam but confused by the temptations

of the west. The first survives by returning to his roots. The other, Gibreel, poleaxed by his

spiritual need to believe in God and his intellectual inability to return to the faith, finally kills
himself. The plot, in short, is not an advertisement for apostasy.2

3The Satanic Verses uses mythical stories to dramatize the perils of migration – from Bombay to

London and Islam to atheism. Both main characters are actors. Gibreel Farishta is a Bollywood

star who plays Hindu gods in theological movies. Saladin Chamcha strives to be more English

than the English. They are thrown together when Sikh terrorists hijack their Air India flight.

Gibreel loses his faith in Allah and dreams an alternate version of the origin stories of Islam. The

central incident, to which the book’s title refers, occurs in the first dream chapter, “Mahound”.

The Koran does not record Mohammed’s life – rather it is a collection of the words God

revealed to him. His life story was told by later historians and though (as we shall see) there are

conflicting accounts, the basic story is settled. Mohammed was born in the Arabian trading

town of Mecca in 570. He was a reflective man who often withdrew to meditate in a mountain

cave. According to tradition, at the age of 40 he was visited by the Angel Gabriel (Gibreel in

Arabic) and informed that he was God’s messenger. This revelation was the first of many that

would later be collated in the Koran. The major point of contention between Mohammed and

the Arabs he wished to convert was the pagan deities they worshipped. One day the pagans

offered Mohammed a compromise: if he accepted three female goddesses, Al-Lat, Al-Uzza and

Manat as angelic intercessors, they would accept his prophethood. After consulting with


1 http://www.telegraph.co.uk/culture/books/9523983/The-Satanic-Verses-and-me.html
2 http://www.theguardian.com/books/2012/sep/14/looking-at-salman-rushdies-satanic-verses
3 http://www.telegraph.co.uk/culture/books/9523983/The-Satanic-Verses-and-me.html


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Gabriel a clear answer came, as recorded in the Koran, 53:23: “They [the goddesses] are
nothing but names which you and your fathers have made up. God has sent down no authority
upon them.” Mohammed’s message remained pure and his movement flourished. In Rushdie’s
version of events, however, something different happens. “Mahound” initially accepts the
compromise offered by the pagans and agrees to take on the goddesses as intermediaries.
Later he returns to the mountain and is told by Gabriel that Satan cast those first verses on his
tongue. They are now abrogated and replaced by the canonical verses found in the Koran and
quoted above.

The controversy related to Salman Rushdie's novel The Satanic Verses, was one of the biggest
ones. It even led the author to live in hiding for years. It has triggered a lot of questions. One of
them being can defamation, racial hatred and obscenity is a bar to copyright?

2.2 DEFAMATION

D efamation is something that protects an individual’s respect and reputation in the
society. It is assumed that everyone is good unless contrary is proved. Defamation is
communication about a person that tends to hurt the person's reputation.4 It is
anything that decreases the respect, regard, or confidence in which a person is held; or induces
disparaging, hostile, or disagreeable opinions or feelings against a person.5 It’s a false

statement that is communicated to a group of persons. This is of two types if it is spoken, then

defamation is termed “slander". If it is

written, it is termed “libel”. It can also be a TO PROVE DEFAMATION THERE ARE FOUR
gesture, which is a type of slander.6

To prove defamation there are four points POINTS THAT ONE NEEDS TO PROVE:

that one needs to prove: UNTRUE STATEMENT

œ UNTRUE STATEMENT: A defamatory PUBLICATION
DETRIMENTAL
statement must be false -- otherwise it's
not considered damaging. Even terribly

mean or disparaging things are not UNPRIVILEGED
defamatory if the shoe fits. Most opinions

don't count as defamation because they can't be proved to be objectively false. For


4 http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240
5 http://legal-dictionary.thefreedictionary.com/defamation
6 http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240

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instance, when a reviewer says, "That was the worst book I've read all year," she's not
defaming the author, because the statement can't be proven to be false.7

œ PUBLICATION: "Published" means that a third party heard or saw the statement -- that is,

someone other than the person who made the statement or the person the statement was
about. "Published" doesn't necessarily mean that the statement was printed in a book -- it
just needs to have been made public through television, radio, speeches, gossip, or even
loud conversation. Of course, it could also have been written in magazines, books,
newspapers, leaflets, or on picket signs.8

œ DETRIMENTAL: The law doesn't protect you from a personal insult or a remark that injures

only your pride; it protects reputation, not feelings. So if someone calls you a lazy slob, you
might be hurt, but you probably don't have a good reason to sue. If he goes on to say you
cheat in your business dealings, you probably do have a good reason to sue, as long as he
says it to someone else, not just to you. If he says it only to you, you can't sue because he
has not hurt your reputation.9 For example, the person lost work; was shunned by
neighbours, friends, or family members; or was harassed by the press.

œ UNPRIVILEGED: Under some circumstances, you cannot sue someone for defamation even if

they make a statement that can be proved false. For example, witnesses who testify falsely
in court or at a deposition can't be sued.10
There has to be a balance between the distribution of information, ideas, and opinions, and
protecting people from having lies told about them. People may believe that they have been
'defamed' if someone says or implies something negative about their character but whether
this is defamatory depends on factors such as its context and to whom it was said. Each case
depends on its facts. For example, it has been found to be defamatory to say in a particular
context that a person is a homosexual, a communist or has scabbed on fellow unionists. Words
and other matter (such as cartoons) can be defamatory by innuendo - that is, where the reader
has to put two and two together to understand the defamatory meaning. The test of what is or
is not defamatory depends on the standards of the community as a whole and not just of some
narrow section or group.

Most jurisdictions allow legal action to deter various kinds of defamation and retaliate against
groundless criticism. In the United States, the remedy for defamation is by an action on the
case, where the words are slanderous. In England, besides the remedy by action, proceedings
may be instituted in the ecclesiastical court for redress of the injury. The punishment for
defamation, in this court, is payment of costs and penance enjoined at the discretion of the


7 https://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html
8 https://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html
9 http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240
10 https://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html

3

judge. When the slander has been privately uttered, the penance may be ordered to be
performed in a private place; when publicly uttered, the sentence must be public, as in the
church of the parish of the defamed party, in time of divine service,, and the defamer may be
required publicly to pronounce that by such words, naming them, as set forth in the sentence,
he had defamed the plaintiff, and, therefore, that he begs pardon, first, of God, and then of the
party defamed, for uttering such words.11

According to the Constitution of India, the fundamental right to free speech (Article 19) is
subject to "reasonable restrictions". Accordingly, for the purpose of criminal defamation,
"reasonable restrictions" are defined in Section 499 of Indian Penal Code, 1860.12 This section
defines Defamation and provides valid exceptions when a statement is not considered to be
Defamation. It says that Defamation takes place "by words either spoken or intended to be read,
or by signs or by visible representations, to make or publish any imputation concerning any
person intending to harm, or knowing or having reason to believe that such imputation will
harm, the reputation, of such person."13 In India, a defamation case can be filed under either
criminal law or civil law or Cyber Crime Law, together or in sequence.14 The punishment for
Defamation is a simple imprisonment for up to two years or with fine or with both.15 16

Defamation law tries to balance competing interests: On the one hand, people should not ruin
others' lives by telling lies about them; but on the other hand, people should be able to speak
freely without fear of litigation over every insult, disagreement, or mistake.17 The law protects a
person's reputation but this protection can restrict other rights, such as the right to free speech.
The law tries to balance these competing rights. Sometimes, even though someone made a
defamatory statement that hurt a person's reputation, the law considers other rights more.18






11 http://legal-dictionary.thefreedictionary.com/defamation
12 Subramanian Swamy (Sep 21, 2004). "Defamation litigation: a survivor's kit". The Hindu. Archived from the
original on 22 Jul 2013.
13 "IPC @ Bombay High Court". Archived from the original on 2010-12-14.
14 Subramanian Swamy (Sep 21, 2004). "Defamation litigation: a survivor's kit". The Hindu. Archived from the
original on 22 Jul 2013.
15 "IPC @ Bombay High Court". Archived from the original on 2010-12-14.
16 "IPC @ punjabrevenue.nic.in". Archived from the original on 19 Oct 2012.
17 https://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html
18 http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240


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2.3 OBSCENITY

‘O bscenity ‘is a difficult term to explain as it is intricately linked to the moral values of
the society. It is derived from the Latin obscaena (offstage) a cognate of the Ancient
Greek root skene, because some potentially offensive content, such as murder or sex,
was depicted offstage in classical drama. The word can be used to indicate a strong moral
repugnance, in expressions such as "obscene profits" or "the obscenity of war".19 The
Encyclopedia definition of Obscenity states, 'By English law it is an indictable misdemeanor to
show an obscene exhibition or to publish any obscene matter, whether it be writing or by
pictures, effigy or otherwise.' As per an online dictionary it means ‘The character or quality of
being obscene; an act, utterance, or item tending to corrupt the public morals by its indecency
or lewdness.’20 However, the exact meaning of obscenity is abstruse. Obscenity is highly
subjective and is defined according to community standards. It can be understood as something
which is offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas
or being impure, indecent or lewd. Obscenity is something that is patently offensive in the mind
of the audience experiencing it. Its definition is a highly subjective reference to material or acts
which display or describe sexual activity in a manner appealing only to "prurient interest," and
lacks any legitimate artistic, literary or scientific purpose. The test of obscenity is, 'whether the
tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are
open to such immoral influences, and in whose hands a publication of this sort may fall.’

The concept of obscenity differs from country to country depending on the moral
standards of contemporary society. In British law21, Obscenity has not been purely a criminal
law matter. It has emerged also-and quite distinctively-in the jurisdiction of civil or private law.
In criminal law, obscene publication is treated as an action harmful to society at large or to
some specified sections of it, and proceedings are brought by the crown against a subject
charged with a criminal offense. In civil law, however, where obscenity is concerned, what is at
stake is the possible loss of the right to enjoy one's copyright property, if that property is
obscene.

In India the Obscenity law is the same as had been framed by the British Government. The law
relating to obscenity is laid down in Sec.292 of the Indian Penal Code which came about by Act
36 of 1969. In Ranjit D. Udeshi v. State of Maharashtra22, the Supreme Court observed that the


19 http://en.wikipedia.org/wiki/obscenity
20 http://legal-dictionary.thefreedictionary.com/obscenity
21 David Saunders , Copyright, Obscenity and Literary History, ELH, Vol. 57, No. 2 (Summer, 1990), pp. 431-444.
22 AIR 1965 SC 881


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test of obscenity to adopt in India is where an obscenity is published with a commercial purpose
and no other social purpose, it cannot have the constitutional protection of free speech and
expression. Treating sex in a manner appealing or having the tendency to appeal to the carnal
desire of human nature is definitely obscenity. For sale etc of obscene books, the punishment is
imprisonment up to 2 years and fine up to Rs.2000 on first conviction and imprisonment up to 5
years and fine up to Rs. 5000 on subsequent convictions. For sale etc of obscene objects to
young person under the age of 20 years, punishment is imprisonment up to 3 years and fine up
to Rs. 2000 on first conviction and imprisonment up to 7 years and fine up to Rs. 5000 on
subsequent convictions. Anybody who does any obscene act in public places or sings, recites or
utters any obscene songs in or near any public places is punishable with imprisonment up to 3
months or with fine or both.

2.4 RACIAL HATRED

B efore understanding racial hatred it is important to know what is racism? Racism is
actions, practices or beliefs, or social or political systems that consider different races to
be ranked as inherently superior or inferior to each other, based on presumed shared
inheritable traits, abilities, or qualities. It may also hold that members of different races should
be treated differently23. Racism is the belief that a particular race is superior or inferior to
another, that a person’s social and moral traits are predetermined by his or her inborn
biological characteristics. Racial separatism is the belief, most of the time based on racism, that
different races should remain segregated and apart from one another.24 The Oxford English
Dictionary defines racism as the "belief that all members of each race possess characteristics,
abilities, or qualities specific to that race, especially so as to distinguish it as inferior or superior
to another race or races" and the expression of such prejudice, while the Merriam-Webster's
Dictionary defines it as a belief that race is the primary determinant of human traits and
capacities and that racial differences produce an inherent superiority or inferiority of a
particular racial group, and alternatively that it is also the prejudice based on such a belief. The
Macquarie Dictionary defines racism as: "the belief that human races have distinctive
characteristics which determine their respective cultures, usually involving the idea that one's
own race is superior and has the right to rule or dominate others."

'Racial hatred' is an umbrella term used to describe a range of behaviours from abuse or
harassment based on race, to racially biased reporting and the use of offensive stereotypes in


23 http://en.wikipedia.org/wiki/Racism
24 http://archive.adl.org/hate-patrol/racism.html#.UwWbHmLoS1Y

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the media. It refers to feelings and acts of prejudice and hostility towards an ethnic group in
various degrees. Abuse can be verbal or written. Some examples of unlawful behaviour might
include:

µ Writing racist graffiti in a public place
µ Making racist speeches at a public rally
µ Placing racist posters or stickers in a public place
µ Racist abuse in a public place
µ Making offensive racist comments in a publication.25


It is ugly. It divides people into “us” and “them”, based on where we come from or the colour of
our skin. And it happens when people feel that it’s okay to treat others badly as they go about
their daily lives. It has existed throughout human history. It should not be allowed or promoted
in any way possible. Nobody should be hated. Especially not because of skin colour, language,
customs, place of birth or any factor that supposedly reveals the basic nature of that person.

2.5 COPYRIGHT

C opyright is one of a group of ‘intellectual property rights’. It gives the owner the right to
control the use of certain kinds of ‘work’ which are the result of the author’s skill or
which have involved an investment of time, effort and/or money by the owner. Copyright
can be understood as an authorisation to the authors and other creators an incentive to create
and to promote their intellectual, moral and economic interests.26 Copyright ensures certain
minimum safeguards of the rights of authors over their creations, thereby protecting and
rewarding creativity. In general, copyright is a form of legal protection given to content creators
through the assignment of specific rights to works that qualify for protection.27 Copyright is the
right to prevent the unauthorized copying, adaptation, sale, performance or display of creative
works.28 Copyright is a law that applies to forms of expression or content such as text, images
and music. It enables people who create and invest in content to manage how others use the
content. Copyright applies to the content automatically; there is no requirement to register or
go through any other formal process.29


25 http://www.humanrights.gov.au/publications/racial-hatred-act-what-racial-hatred-act
26 http://indiankanoon.org/doc/1217709/
27 https://www.copyright.com/content/cc3/en/toolbar/education/get-the-facts/purpose_of_copyright.html
28 http://www.utexas.edu/research/tarl/curation/ownership.php
29 http://www.copyright.com.au/get-information/about-copyright


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The law of copyright was introduced in India only when the British East India Company was
established in 1847. In 1914 the Indian legislature under the British Raj enacted the Copyright
Act of 1914. It was almost similar to the United Kingdom Copyright Act of 1911. But the major
change that was brought in this Act was criminal sanction for infringement. Number of times
amendment were brought to this Act up till 1957. Subsequently, The Copyright Act, 1957 was
enacted in order to suit the provisions of the Berne Convention. This Act was enacted by
Independent India by which we are governed till date.

2.5.1 PURPOSE OF COPYRIGHT

T he purpose of copyright is to provide an environment that fosters the creation of new
content for the benefit of society of a whole. It does this by30:

Providing an incentive for the creation of new content, by enabling those who create
and invest in new content to set the terms on which others can use the content.
Those terms can (but may not) include payment.
Enabling reward to people who have created content that others find valuable, and
lack the skill or time to produce for themselves.

The major reason why copyright law was brought into existence was to encourage the
development of culture, science and innovation, while providing a financial benefit to copyright
holders for their works, and to facilitate access to knowledge and entertainment for the public.
The objective of this law is public benefit. Therefore, whenever administration of a country
does something for public welfare it is their responsibility to obtain the best possible deal—best
for the public, not for the other party in the agreement.

B 2.5.2 IMPORTANCE OF BALANCING OF INTEREST
oth national and international courts have recognized that freedom of expression is
essential to respect for human rights and the maintenance and progress of a democratic
society. The Constitution of India guarantees everyone the right to freedom of
expression under article 19, which says:

Everyone shall have the right to hold opinions without interference.
Everyone shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds regardless of frontiers,
either orally, in writing or in print, in form of art, or through any other media of his
choice.


30 http://www.copyright.com.au/get-information/about-copyright


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But at the same time there are certain restrictions also which are imposed. This includes that
this freedom should not be exercised at the cost of respect of the rights or reputation of others
or against the interest of public at large.

The copyright today harbours a dark side. The misunderstanding held by many who believe that
the primary purpose of copyright law is to protect authors against those who would pilfer the
author's work threatens to upset the delicate equilibrium in copyright law31. Thus, conveying
that individual interest is on a higher pedestal than public interest. Public interest and welfare
has always been the most important aspect of any law. In copyrights what one is dealing with
freedom of a person to do something as against the freedom of a group of persons? Therefore,
the responsibility increases. They should deal with this wisely and frugally. It should never
happen that interest of an individual is kept at par with that of public’s interest.

Dworkin also endorses the egalitarian character of the utilitarian principle that "everybody can
count for one, nobody for more than one."32 Under this principle he believes that the state may
exercise wide interventionist functions in order to advance social welfare. While balancing the
interest for the purpose of copyright the perspectives of both the owner and the user of
copyrighted material should be kept in mind.

2.5.3 COPYRIGHT AND DEFAMATION

C opyright though gives protection to a creative work by an author. But what if the work is
defaming a person or a set of persons? In such a case there would be a clash of between
the interest of the author and the interest of the victim. In such a case copyright should
not be given. No one should get a license to defame anyone. Opinion can be defined as a view
or judgement formed about something, not necessarily based on fact or knowledge. Voicing an
opinion is not libellous; however, one should be careful that he/she are not actually making an
accusatory statement. Even if he/she say "in my opinion" before a statement, that does not
automatically make the statement an opinion if you are speculating or asserting something
about someone.33 In such cases what courts would see is whether a reasonable reader or
listener could understand the statement as asserting a statement of verifiable fact. (A verifiable
fact is one capable of being proven true or false.) This is determined in light of the context of
the statement.


31 http://www.open-spaces.com/article-v2n1-loren.php
32 http://muse.jhu.edu.proxy-
bc.researchport.umd.edu/journals/human_rights_quarterly/v020/20.2shestack.html#FOOT58
33 http://www.inspiringvoices.com/FAQ/Copyright.aspx

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34However, copyright can be used positively also against defamatory content. There has been
an interesting case in Southern District of New York which shows how plaintiffs have begun to
use copyright law as a means of overcoming Section 230 immunity and take down defamatory
or simply “uncomfortable” content about themselves35. In this case the plaintiff sought to take
down a video of himself, posted on World Star Hip Hop, wherein he was taped in a physical
altercation with his ex-girlfriend. The video was posted by Scott’s classmate, Seymour, who
subsequently assigned the video copyright to Scott. As a general rule, Scott would have no
recourse against WorldStarHipHop since Section 230 of the Communications Decency Act
provides websites with absolute immunity for any potentially defamatory material posted on
the website by its users. In this case, the video wasn’t even so much defamatory as it merely
showed a side of Scott that he would perhaps not want the public (e.g., potential employers) to
see. Scott’s lawyers got creative. Having Seymour assign the copyright to the video to Scott,
Scott then sent a copyright take-down request to WorldStarHipHop which the site refused to
honor. Scott sued the site and, on WorldStarHipHop’s motion to dismiss, the court ruled that
Scott had a valid cause of action for copyright infringement against the site. WorldStar’s
argument, that Seymour’s posting of the video granted it a license to host the video to which
license the subsequent copyright assignment was subject, was unavailing because WorldStar
could not show a written license as required by 17 U.S.C. 205(e).

2.5.4 COPYRIGHT AND OBSCENITY

G iving copyright means welfare of the society in a positive way. India is a country where
largely everything is weighed through culture. Here, law is the other name for morality.
Anything that hurts the sentiments of people at large never gets any protection under
any kind of law. So is the case with obscene material. It imposes a bar on getting copyright.

36One of the trials, against obscenity, that British criminal law has given us show trials such as
the 1960 prosecution of Penguin Books for the publication of Lady Chatterley's Lover, but it was
in the civil courts that Queen Mab and Cain came under the gaze of the law. If a work is
deemed immoral or obscene, the owners of the copyright cannot sue for an injunction against a
pirate for damages, or for an account of profits so as to estimate the returns for the infringing
edition. In short, the civil obscenity doctrine means that an obscene work can be treated as if it
were in the public domain. Copies can be reproduced and sold, and profits pocketed, without
contravening the civil law, though there remains the risk of criminal prosecution.


34 http://www.lawtechie.com/2012/05/using-copyright-law-to-combat-internet-defamation/
35 Scott v. WorldStarHipHop, Inc., 2012 WL 1592229 (S.D.N.Y. May 3, 2012)
36 David Saunders , Copyright, Obscenity and Literary History, ELH, Vol. 57, No. 2 (Summer, 1990), pp. 431-444.


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Even in highly developed countries like USA it’s a debate question that should obscene contents
that pornography be given copyright protection or not. Obscenity is prohibited by sections of
American law other than those concerning copyright. However, the Copyright Office could
reject copyright registration applications where the work was in violation of other law.37 In a
case from US named Roth v United States the court even refused to give even constitutional
protection to obscene content.

A country whose culture is completely opposite to ours, if the courts there feel that obscenity is
bad. It is not even worth of getting constitutional protection leave alone copyright protection.
There should not be any confusion left as to the case in India. Obscenity is a bar to giving
copyright protection.

D 2.5.5 COPYRIGHT AND RACIAL HATRED
workin endorses that governments must treat all their citizens with equal concern and
respect. The benefits of the progress of the society, the scientific advancement, the
basic right to participate freely in the cultural life of society etc., should be enjoyed by
everyone, irrespective of which caste, race or creed they belong to. Copyright law is considered
to be the set of rules and principles that regulate the moral and the patrimonial rights that the
law gives to the authors, for the mere fact of the creation of a literary, artistic or scientific piece
of work, being that work already published or to be published.38 It would not be wrong in saying
that the unique purpose of the copyright law to protect the author’s work, but also the society’s
interests. As a result, the copyright protection should only be granted to persons who are
working towards the betterment of human race and not promoting evils like racial hatred.

The motive of existence of copyright law was not to reward the labour but to promote the
positive development of the society as a whole. The protection granted to copyright owners is
essential in providing the correct incentive for the creation of works.

It is accepted that encouragement of individual effort by personal gain is the best way to
advance the public welfare through the talents of authors and inventors.39 But what if the

individual effort is leading the society towards the dark side by supporting the negatives like
racial hatred defamation and obscenity? No one should be permitted to say or write something
which hurt the reputation, respect, sentiments of anyone. Copyright is a right, and at times
remedy, available to an individual to protect his/her work but this does not mean that it will be
there in every possible case no matter whatsoever.


37 http://chart.copyrightdata.com/c18B.html
38 http://kb-law.info/wt_dev/kbc.php?article=115&land=ES&lang=EN&mode=1
39 http://www.ladas.com/NII/CopyrightPurpose_fn.html#fn8

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It is not that copyright protection in these areas should be terminated completely. But in
determining the scope of copyright protection in the areas which are termed as immoral the
administration must not lose sight of the true purpose of copyright - to promote the progress of
knowledge and learning.


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