Sovereign Immunity or Bullying? Copyright struggles

by Koka Tarini Siddhartha

One of the first laws we learn as law students is the law of torts, which governs civil wrongs such as being a nuisance to your neighbours by playing loud music, or perhaps by trespassing on someone else’s property. Amidst concepts like nuisance, negligence, assault and battery, is a stand-alone doctrine called sovereign immunity. Simply put, sovereign immunity refers to the protection extended to a state or government on the basis that a state is incapable of doing wrong and thus cannot be sued.

We often relate to this doctrine in terms of state protection through diplomatic relations, or a state’s immunity to being punished for civil wrongs like trespassing or defamation. Note that all these actions are against tangible property (property which can be touched and felt, including land and the human body).

The question we are concerned with is whether this doctrine applies to copyrighted creative works as well.

Why is there a need for sovereign immunity?

The inception of sovereign immunity can be traced back to feudal Europe, where the king would not only make laws for a territory but also preside over the courts. To be tried by a court, one had to be subservient, or below the rank of the king, which ultimately resulted in the principle that the king could do no wrong.

Since then, governing systems have evolved, and democracy has become the norm in many countries. Despite this, the doctrine of sovereign immunity continues to exist to protect heads of state, agents and employees of the state in their official capacities.

To a certain extent, the legitimacy of this doctrine is justified; the proper functioning of the government would be deterred if it had to fear defamation suits while speaking at parliamentary sessions, or imprisonment for assaulting a citizen to maintain public order.

Does this mean the doctrine could extend to copyrighted work like photographs and sound recordings?

At this point, we’re going to draw a parallel between tangible property (for example, land) and intangible property (for example, copyrighted creative works). In India, when a particular piece of private land is required to build a factory on, to construct a railway line over, or for any other public purpose, the government, as per the Land Acquisition Act, has the power to acquire the land and compensate the owner accordingly.

On the other hand, under the fair dealing provisions of the Copyright Act, 1957, any copyrighted work can be used for judicial proceedings, to report the proceedings, and at official ceremonies without the authorization of the copyright owner. There is no provision requiring the government to obtain prior consent from (or offer compensation to) the copyright owner. Even if one were to file a suit against the government, it would be protected by the doctrine of sovereign immunity.

That isn’t really fair, though, is it?

Absolutely not. Copyright owners could be bullied into allowing their work to be used by the government in the guise of public interest, and even if the copyright owners attempt to sue them, the state would claim immunity. While this scenario has not arisen in India yet, it has in other countries.

The relationship between copyright and the applicability of sovereign immunity has been a point of discussion in the United States since 2000. While the US Copyright Office recommended that the Congress amend the laws and force states to waive/surrender their power of sovereign immunity, the Congress under the US Constitution is not entitled to make such a drastic change. Thus, only the US federal government has waived their right to sovereign immunity and can sue or be sued for any claims of copyright infringement, while the individual states continue to be protected unless they expressly waive their rights.

To illustrate instances of the government abusing their sovereign immunity powers, we have two examples which were reported as recently as March 2017. In the first example, photographer Jim Olive (specializing in aerial/skyline photos, with over fifty years’ experience) found a photograph by him in a Forbes magazine, used by the University of Houston for advertisement purposes. Worse still, the photo was credited to Bauer College of Business, which had removed Olive’s watermark and passed off the photograph as their own.

The second example concerns Mexican-born architect Fernando Donis, who is suing the Dubai municipality for copyright infringement. Donis had submitted a building design in a design competition ten years ago, the rules of which specified that he would be the copyright holder of the design. Yet, in 2017, the municipality has already begun constructing the building claiming that the copyright was granted only over the ‘initial concept of the building’ and not over the project per se.

In both these cases, it is evident that governments are taking advantage of their positions to bully and cheat copyright holders, coercing them into surrendering their creative works. The laws in this regard are still underdeveloped and uncertain, which is a pity, as even you as readers could rightly judge cases like these, distinguishing between the lawful application of sovereign immunity and sovereign bullying.

Only time — and comprehensive changes to the law — will tell if an alternate world can exist where sovereign immunity does not apply to copyrighted work. Until then, we’d like to hear your thoughts on the matter.

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