Abstract
The Indian legal system has mainly neglected to acknowledge the copyright rights of authors who are detained, despite the fact that intellectual creativity does not recognise the bounds of a prison cell. This study examines the protection provided by the Copyright Act of 1957 and related legal documents for literary and artistic works created by prisoners, or the concerning lack thereof. Despite India’s obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Berne Convention for the Protection of Literary and Artistic Works, no law, prison rule, or legally binding administrative policy specifically protects the copyright of creators who are incarcerated. This paper identifies the main legal issues facing inmate-authors, such as disputed ownership, institutional exploitation, limited access to courts, and the destruction of original works through censorship, and the corresponding policy gap in the Model Prison Manual, 2016. It does this by drawing on doctrinal legal analysis, a review of scholarly literature, and a comparative study of legal developments in the United States and the United Kingdom. In order to close this gap, the paper’s conclusion suggests specific legal changes and administrative reforms. It affirms that the right to creative expression and the financial rewards that come with being an author are essential components of human dignity that jail cannot rightfully eradicate.
Keywords: Copyright Act, 1957; prison inmates; intellectual property; incarcerated authors; moral rights; institutional appropriation; Model Prison Manual; human dignity; Berne Convention; legal reform.
Introduction
History provides strong evidence that the creative voice is not silenced by incarceration. Antonio Gramsci’s Prison Notebooks transformed twentieth-century political philosophy; Nawal El Saadawi penned Woman at Point Zero while imprisoned in Egypt; and Bal Gangadhar Tilak wrote the Gita Rahasya while incarcerated in Mandalay Jail. No prison wall can completely contain the manifestation of personhood that is the creative faculty, which includes the ability to write, imagine, and give ideas form. However, the Indian legal system has curiously ignored a crucial issue: what happens to an individual’s intellectual property rights when they produce an original work while in legal custody?
One of the biggest jail populations in the world is found in India. Over 5.54 lakh people were detained in Indian prisons as of 2022, according to the National Crime Records Bureau, with a sizable percentage of them being undertrial detainees awaiting the conclusion of criminal procedures.[1] One Prison literary journals, art exhibitions, craft workshops, and storytelling programs are all present in numerous State prisons, demonstrating that creative activity is not peripheral among this group. Every day, these institutions produce works of true artistic worth. However, not a single clause in India’s basic law on the issue, the Copyright Act, 1957, addresses the situation of creators who are incarcerated. Equally silent is the Model Prison Manual, 2016, which sets policy for prison administration.
Concrete harm results from this silence. It exposes prisoners’ artistic creations to institutional use without their permission or payment. It prevents inmate-authors from using civil litigation to enforce their rights. It permits non-governmental organisations and jail authorities to use prisoner labour for profit or publicity without being held accountable. Most importantly, it indicates that the law views prisoners’ humanity, including their status as creators, as suspended during the term of their incarceration. Both morally and constitutionally, that signal cannot be justified.
The order of this paper is as follows. The research approach is described in Section II. A review of previous research is conducted in Section III. In Section IV, the current Indian legal system is examined and particular legal issues are noted.The institutional and administrative policy shortcomings are examined in Section V. Legislative and policy recommendations are made in Section VI. A succinct conclusion is provided in Section VII.
Research Methodology
A doctrinal legal research methodology is used in this work. The Copyright Act, 1957 (as amended by the Copyright Amendment Act, 2012), the Indian Constitution, 1950, the Prisons Act, 1894, the Model Prison Manual, 2016, significant rulings from the Supreme Court of India, and international agreements ratified by India, such as the Berne Convention, the TRIPS Agreement, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).
Peer-reviewed legal scholarship, authoritative treatises on Indian and comparative intellectual property law, policy reports from the National Crime Records Bureau and the National Human Rights Commission, and administrative documents from UK prison services are examples of secondary sources that were consulted. In order to place India’s position within a larger international framework, a comparative legal approach is used in addition to the doctrinal study. It mainly draws upon the Copyright Act of 1976 (United States) and the Copyright, Designs and Patents Act of 1988 (United Kingdom). The conclusions of this research are derived from the examination of legal and documentary sources rather than from original empirical evidence. The scope is limited to adult prisoners’ civil copyright interests; juvenile inmates and the criminal law aspects of inmate creativity are not covered.
Review of Literature
There is hardly any scholarship that specifically addresses the copyright rights of Indian prisoners. As a result, the field must be assembled from related literature on access to justice, prisoners’ rights, and copyright theory. In his landmark paper “The Philosophy of Intellectual Property” (1988), Justin Hughes outlined the two theoretical underpinnings of copyright: Hegelian personality theory, which views the work as an externalisation of the author’s self,[2] and Lockean labour theory, which bases authorial ownership on the investment of creative effort.Two Both frameworks have direct implications for creators who are incarcerated: if creative labour creates natural rights, incarceration cannot take away those rights without clear legal authority; if the creator’s personhood is embodied in their work, the state that imprisons them has an increased obligation to refrain from appropriating their creative identity.
In “IP3” (2006), Madhavi Sunder argued for a “third theory” of IP based on distributive justice and cultural engagement, demonstrating how IP systems systematically marginalise the creative output of subaltern and institutionally disadvantaged groups.[3] Her research closely relates to the circumstances of Indian innovators who are arrested, as their exclusion from the intellectual property system mirrors the exact pattern of structural marginalisation she outlines. The most thorough analysis of the 1957 Copyright Act in the Indian doctrinal tradition is still found in Gopalakrishnan and Agitha’s Principles of Intellectual Property (2012), but it makes no mention of authors who are imprisoned.[4] Similarly quiet is Narayanan’s Intellectual Property Law (2001).[5]
Justice V.R. Krishna Iyer’s jurisprudence on prisoners’ rights in general, as evidenced by his rulings in Sunil Batra v. Delhi Administration (1978) and his scholarly papers, established the fundamental Indian theory that incarceration does not terminate constitutional rights.[6] S. Muralidhar’s Law, Poverty and Legal Aid (2004) looked at how marginalised people in imprisonment could access civil justice and found systemic obstacles that successfully keep inmates out of civil enforcement mechanisms, including financial, procedural, and informational ones.[7] Copyright claims are fully subject to these structural obstacles.
Lionel Bently and Brad Sherman’s Intellectual Property Law (2014) highlights exclusions ingrained in copyright systems and highlights the created and contingent nature of authorship as a legal category on a global scale.[8] In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board (1991), the United States Supreme Court overturned a state law that limited convicted criminals’ ability to profit from works that depicted their crimes on the grounds that it constituted an unlawful content-based restriction on speech, thereby implicitly affirming that convicted individuals retain expressive and economic rights in their creative output. This case is the most pertinent judicial treatment on a global scale.[9]
In General Comment No. 17 (2005), the UN Committee on Economic, Social, and Cultural Rights explained that authorial rights under Article 15(1)(c) ICESCR are human rights that are enforceable on States parties regardless of the author’s legal position.[10] This work is the first to carefully apply the theoretical coordinates and problem identification found in the literature to the Indian setting.
Legal Framework and Key Challenges
The Copyright Act, 1957: A Framework of Silence
Section 13 of the Copyright Act of 1957 grants copyright to creative works of literature, theatre, music, and art. In the absence of an agreement to the contrary, Section 17 names the author as the original copyright owner. The definition of “author” in Section 2(d) is sufficiently broad to encompass any natural person who produces an original work; no requirements regarding civil or legal status are imposed. To put it simply, under the Act, an incarcerated person who creates an original poetry, memoir, painting, or sculpture is both the author and the first owner of copyright in that work.
There is a problem with the application. According to Section 17, proviso (b), the employer becomes the first owner of any work created “in the course of employment under a contract of service or apprenticeship,” unless otherwise agreed. In State of Gujarat v. Hon’ble High Court of Gujarat (1998), the Supreme Court decided that prisoners who put in a lot of effort should be paid, implying a degree of quasi-employment.[11] Whether this reasoning applies to artistic or intellectual pursuits, such as whether an inmate who writes poetry during supervised workshop hours is “employed” by the institution, granting the State ownership, has never been decided by the courts. The ambiguity is dangerous because it can be exploited.
Moral Rights: Inalienable but Unenforceable
Two moral rights are granted to authors under Section 57 of the Act: the right of integrity (to object to distortion or mutilation of the work detrimental to the author’s honour or reputation) and the right of paternity (to assert authorship). These rights are explicitly unalienable; they cannot be negotiated away and endure even when economic rights are assigned. Moral rights are a theoretically important residual protection for an inmate whose economic rights could be taken away by institutional pressure or coercion. However, in reality, moral rights claims necessitate that the author file a lawsuit.
When an incarcerated person learns that their work has been published without credit or altered without permission, they face a difficult enforcement obstacle due to limited court access, a lack of funding, and the inherent coercive nature of making a claim against the very organization in charge of their detention. In the context of prisons, the inalienability of moral rights under Section 57 is essentially nominal.
Constitutional Protections and Their Limits
The Supreme Court has consistently upheld that detention does not result in the loss of basic rights. The Court determined in Charles Sobhraj v. Superintendent, Central Jail, Tihar (1978) that the State is nonetheless bound by the rights outlined in Articles 19 and 21 of the Constitution with regard to individuals under its control.[12] The Court underlined in Sunil Batra v. Delhi Administration (1978) that the State’s custodial authority over a prisoner is limited by constitutional restrictions and cannot be used in a way that dehumanises or degrades the prisoner.[13] Article 300A further safeguards against deprivation without legal authorisation the right to property, including intellectual property.
Any jail policy or administrative procedure that routinely deprives convicts of their copyright would be unconstitutional if these constitutional principles were correctly implemented. However, constitutional protection functions at the level of concepts; in order to enforce those principles in the particular context of intellectual property, an impacted party must file a writ petition. For creators who are incarcerated, constitutional guarantees remain largely theoretical due to the practical obstacles to doing so, which are at least as severe as those attending civil copyright claims.
Institutional Appropriation and the Consent Deficit
Informal institutional appropriation, rather than formal legal expropriation, is the most widespread practical threat to prisoners’ copyright. Without the inmate-author’s informed consent, works submitted to prison periodicals, exhibited at prison administration-organized exhibitions, or produced as part of state-sponsored or NGO-administered programs may be duplicated, shown commercially, or disseminated. A formal transfer of rights without documentation is prohibited by Section 19 of the Act, which mandates that any copyright assignment be in writing and signed by the assignor. It does not, however, stop the exploitation of works through what may be called an implicit licence, especially when program participation agreements contain boilerplate language that seem to provide organisers rights.
Even when consent is technically acquired, it may not be relevant due to the systemic power imbalance present in the prison setting. It cannot be stated that an inmate has given free and informed permission to a transfer of rights if they are afraid that refusing to sign a participation agreement may result in their exclusion from a valuable program or if they are just unaware of the intellectual property consequences of what they are signing. The protections provided by the Act are predicated on a situation in which contracting parties are relatively equal, which is just not possible in a prison setting.
Restricted Access to Civil Justice
In India, copyright enforcement is a civil remedy that is typically pursued by bringing a lawsuit in the relevant District Court or, in situations concerning jurisdictional thresholds, the High Court. In order to assert copyright, an incarcerated person must overcome a number of cascading challenges, such as gaining physical access to a court or legal counsel; obtaining funds to support litigation; gathering evidence to support the claim, such as witness statements or records held by prison authorities; and maintaining oversight of proceedings over a period that may span months or years.
The National Legal Services Authority has put in place a number of prison legal aid programs, and the Legal Services Authorities Act, 1987 requires free legal services for those detained. However, the majority of these mechanisms—bail petitions, trial representation, and sentence reviews—are focused on criminal processes. The practical scope of jail legal assistance as it is now implemented in the majority of Indian states does not include civil intellectual property problems. For the most part, an inmate with a valid copyright claim has no recourse.
Censorship Powers and the Destruction of Works
Prison superintendents are consistently granted extensive authority by state prison manuals and administrative guidelines to intercept, examine, withhold, and destroy written materials and correspondence belonging to inmates for reasons of institutional order or security. These authorities, which are intended to stop the dissemination of material that is detrimental to prison administration, may be used in ways that permanently destroy original artistic creations. In addition to being a personal loss for the prisoner-author, a journal confiscated as a disciplinary measure or a manuscript taken during a cell search and not returned also marks the destruction of a possibly unique intellectual work for which there may not be a copy.
The culpability of public bodies for destroying copyrighted works while exercising statutory functions is not covered by the Copyright Act. An inmate whose manuscript is destroyed has no apparent legal recourse under either administrative law or copyright since the junction of prison administration law and intellectual property law in this setting is completely unexplored.
Policy Gaps
The most thorough national policy document on jail management in India is the Model jail Manual, 2016, published by the Ministry of Home Affairs’ Bureau of Police Research and Development. It goes into great detail into prisoner classification, healthcare, nutrition, discipline, education, vocational training, and grievance redressal. Literary and artistic endeavours are specifically encouraged as tools of rehabilitation in chapters on education and career training. However, there is not a single paragraph in the Manual that addresses the ramifications of creative activities for intellectual property while incarcerated.
Prison administrations are not required by law to notify inmates of their copyright; institutional appropriation of inmate works is not prohibited; there is no structure for handling profits from the commercial use of inmate creations; or consent for the external use of works must be obtained voluntarily and with knowledge.
There is no legislative, executive, or administrative tool at the national policy level in India that expressly addresses copyright in relation to incarceration. Although it did not address incarcerated artists, the Copyright Amendment Act of 2012 made significant strides in the areas of statutory licensing, access for the visually impaired, and performers’ rights. There is no interministerial coordination mechanism in place between the Ministry of Home Affairs, which is in charge of jail administration, and the Department for Promotion of Industry and Internal Trade, which is in charge of intellectual property policy.
Although they operate without established intellectual property frameworks, non-governmental organisations that carry out significant creative programming throughout Indian prisons cover a crucial rehabilitative void. Their revenue-sharing, ownership, attribution, and consent rules differ greatly and are set by the internal policies of particular organisations rather than by any external regulations. While some NGOs presume an organisational right to use and publish works created within their programs, others treat the copyright of prison works as belonging to the detainee. This difference is unavoidable due to the lack of policy direction. In contrast, India clearly lacks the administrative certainty that the United Kingdom’s HM Prison and Probation Service has provided by issuing Prison Service Instructions that specifically confirm that convicts retain copyright in works generated during their incarceration.[14]
Suggestions
Legislative Amendment to the Copyright Act, 1957
Section 17 of the Copyright Act, 1957 should be amended to include an explicit explanation that states that a person’s status as an undertrial detainee, prisoner, or person in lawful custody under any enactment does not affect their right to be acknowledged as the author of a work or to possess copyright therein. A new clause that forbids the assignment or waiver of copyright or moral rights granted by Section 57 as a condition of participation in any State-administered or State-sanctioned creative initiative should also be added to Section 19. These changes, which close a legislative gap without altering the Act’s overall structure, are small in scope but have a big impact.
Revision of the Model Prison Manual, 2016
A specific chapter on the intellectual property rights of prisoners should be added to the Model Prison Manual. At the very least, this chapter should: establish a system for the collection and management of royalties or revenues generated by the use of inmate works; require prison administrations to maintain a register of creative works produced within the institution; forbid the reproduction, exhibition, or commercial use of inmate works without the author’s written, informed, and voluntary consent; and require that inmates be informed of their copyright rights in their regional language upon admission. Central aid under prison modernisation projects should be contingent upon state prison manuals being harmonised with these provisions.
Establishment of a Prison Intellectual Property Royalty Fund
Legislation creating a Prison Intellectual Property Royalty Fund, to be managed by State Legal Services Authorities, should be passed by Parliament. This Fund would receive royalties and profits from the commercial usage of works written by incarcerated individuals, hold them in trust while they are detained, and then distribute them to the author upon their release. A victim compensation fund may receive a small amount, no more than twenty percent. Based on the framework of the Prisoners’ Earnings Act 1996 in the United Kingdom, this mechanism preserves the economic rights of inmate-authors with regard to works unrelated to the offence for which they are incarcerated while addressing the justifiable concern that convicted individuals should not profit significantly from criminal notoriety.[15]
Extension of Legal Aid to Cover Intellectual Property
Guidelines expanding the scope of legal assistance under the Legal Services Authorities Act, 1987 to include civil intellectual property claims made by prisoners should be released by the National Legal Services Authority. Training materials and referral channels should be made available to prison-based legal aid clinics so they may offer advice on copyright issues. For IP purposes, prison administrations must to be mandated to make it easier for prisoners to obtain legal representation, including by permitting private correspondence with legal aid providers.
Model Intellectual Property Policy for NGOs
A Model Intellectual Property Policy for Non-Governmental Organisations Running Creative Programs in Indian Prisons should be created by the Ministry of Home Affairs in collaboration with the Department for Promotion of Industry and Internal Trade. This policy should state that the author owns copyright to all works created by inmate participants; that any use of such works for publication, exhibition, or commercial purposes requires the author’s written, informed, and revocable consent; that attribution is required in all publication contexts; and that any money received from the use of inmate works is sent to the Prison Intellectual Property Royalty Fund on the author’s behalf. Obtaining authorisation to operate on prison property should be contingent upon adherence to this sample policy.
Conclusion
The idea put forth in this paper is straightforward but significant: if an individual in legal custody creates an original work of literature or art, they are entitled to the copyright in that work as a matter of constitutional right, statutory entitlement, and international human rights obligation. When the body is imprisoned, the state does not gain control over the creative intellect. However, this idea is not put into practice by India’s current legal system. Where it should speak, the Copyright Act of 1957 is silent. Where it ought to be explicit, the 2016 Model Prison Manual is quiet. Where it ought to help, the legal aid system is inaccessible. As a result, prison writers are systematically exposed to institutional exploitation with no way to stop it.
This paper’s suggested reforms are purposefully small and doable. They don’t call for the reorganisation of current institutions or the establishment of new rights. They need institutional coordination, administrative direction, and legislative clarity—exactly the means by which a functional legal system extends the protection of the law to people on its periphery. It is not a luxury to acknowledge the copyright of creators who are incarcerated. It is an admission that every human being has the right to the dignity of the creative act and the legal rights that follow from it, regardless of the serious circumstances that brought them into the state’s custody. If this acknowledgement is not made, the legal order has more work ahead of it.
Saranya Dharmalingam
Saveetha School Of Law, Chennai
[1] National Crime Records Bureau. (2022). Prison Statistics India 2022. Ministry of Home Affairs, Government of India. https://ncrb.gov.in
[2] Hughes, J. (1988). The philosophy of intellectual property. Georgetown Law Journal, 77(2), 287–366.
[3]Sunder, M. (2006). IP3. Stanford Law Review, 59(2), 257–332.
[4] Gopalakrishnan, N. S., & Agitha, T. G. (2012). Principles of intellectual property. Eastern Book Company.
[5] Narayanan, P. (2001). Intellectual property law (3rd ed.). Eastern Law House.
[6] Krishna Iyer, V. R. (1972). Law and the people. Orient Longman. See also Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
[7] Muralidhar, S. (2004). Law, poverty and legal aid: Access to criminal justice. LexisNexis Butterworths.
[8] Bently, L., & Sherman, B. (2014). Intellectual property law (4th ed.). Oxford University Press.
[9] Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991).
[10] UN Committee on Economic, Social and Cultural Rights. (2005). General Comment No. 17: The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author. UN Doc. E/C.12/GC/17.
[11] State of Gujarat v. Hon’ble High Court of Gujarat, (1998) 7 SCC 392.
[12] Charles Sobhraj v. Superintendent, Central Jail, Tihar, AIR 1978 SC 1514.
[13] Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
[14] HM Prison and Probation Service. (2019). Prison Service Instruction: Prisoners’ property (PSI 04/2019). Ministry of Justice, United Kingdom.
[15] Prisoners’ Earnings Act 1996 (UK), c. 33.