Copying, imitation and reproducibility are central to the fine arts and therefore the concept of copyright sits uneasy. Experience suggests that copyright is designed to protect corporate profits rather than artists' creativity. It is imperative for artists and theatre persons to work out alternatives to copyright which recognise the creator's work without obstructing wider dissemination and adaption.
COMMENTARYEconomic & Political Weekly EPW april 4, 2009 vol xliv no 1419This article is based on a presentation at the Second National Free Software Conference, Cochin, 15-16 November 2008. Thanks to Akshara K V, Ashish Rajadhyaksha, Pravin K P, Sameera Iyengar and Sanjna Kapoor and Deepa Punjani for discussions and comments on an earlier version of this article.Sudhanva Deshpande (sudhanva@leftword.com) is a theatre activist associated with the Jan Natya Manch.Authorship and Copyright in TheatreSudhanva DeshpandeCopying, imitation and reproducibility are central to the fine arts and therefore the concept of copyright sits uneasy. Experience suggests that copyright is designed to protect corporate profits rather than artists’ creativity. It is imperative for artists and theatre persons to work out alternatives to copyright which recognise the creator’s work without obstructing wider dissemination and adaption.Increasingly, copyright disputes are all around us. Consider the figure of Harry Potter. The agents of J K Rowling sued a Durga Puja samiti (committee) in Kolkata because the puja pandal (prayer tent) was based on the Harry Potter theme. The puja could eventually go ahead only after the court granted it a one-time ex-emption. Rowling’s agents tried to prevent a Hindi film withHari Puttar in its title from being released. They were unsuccess-ful. But they did succeed in preventing the publication of a lexicon of Harry Potter words.Copyright disputes are cropping up in the field of theatre as well. Last year, a Mumbai-based theatre group was rehears-ing their translation of Bertolt Brecht’sThe Threepenny Opera, a play which has been performed dozens of times in India, in different languages, when they received a communication from the agents of Brecht’s estate that they would need to pay royalty before mounting the produc-tion, failing which legal action would be initiated. The theatre group tried to reason with them – they were an amateur group, the performance was not for profit, and so on. To no avail. In the end, the theatre group found an ingenious way out – they changed the name of the play, and stopped publicising that it was based on Brecht’s original.The irony, of course, is that Brecht’s original was no original. It was a rework-ing of an 18th century play, John Gay’s The Beggars’ Opera. It may also be noted in passing that Brecht himself died in 1956, over 50 years ago.More recently, a senior Tamil play-wright alleged that his well-known play written in the 1970s was being passed off by a Kolkata playwright as his own, with-out even changing the name of the play. The Tamil playwright was not asking for royalty, he was merely protesting the ap-propriation of what he claims is his work under someone else’s name.On the one hand, there is the legitimate issue of the right to be recognised as the creator of a particular work. On the other, corporate entities use copyright laws to clamp patently unfair restrictions on crea-tors. I offer below some preliminary and provisional thoughts on the issue of copyright in theatre.The Importance of CopyingAll art develops and progresses through copying. The student learns from the mas-ter by imitating (in the performance arts) and copying (in the plastic arts). In music and dance in particular, a student is not allowed to improvise till she is able to imitate the master exactly and acquires a certain mastery over the act of imitation. Indeed, from almost the earliest times, there has also been reproducibility. The Indus civilisation had seals, though I am not sure if they used casts, like the Greeks did. In the Middle Ages, techniques of engraving, etching, and woodcuts devel-oped. These were followed by lithographs. The movable type revolutionised printing, making it faster and easier to reproduce both text and images. Photography, in the visual sphere, and sound recording tech-niques, in the aural sphere, speeded up reproduction enormously. These techni-ques also helped standardise reproduc-tion. Verisimilitude of a hitherto unprece-dented level was now possible.Walter Benjamin makes the point that photography, for the first time, freed the hand. Now, the eye did all the work. For the first time, dexterity and skill of the hand was no longer required to create life-like images. “Since the eye perceives more swiftly than the hand can draw, the pro-cess of pictorial reproduction was enor-mously accelerated, so that it could now keep pace with speech.”1 From here, it was but a short step to synchronising image to sound, and create film. With cinema, for the first time, the reproduction of art was not a post facto afterthought, but built very much into the very act of creation. There is no “original” performance which is recorded and reproduced. What is recorded is only fragments of the whole, and the act of creation is as much in the assembling of the fragments as in the re-cording of it. The art of cinema makes ab-solutely no sense without its mechanical
COMMENTARYEconomic & Political Weekly EPW april 4, 2009 vol xliv no 1421plays which flopped, Brecht based many of his plays on other eminently successful plays. Many of Girish Karnad’s and Chan-drasekhar Kambar’s plays are based on an-cient myths and tales. Habib Tanvir has fashioned plays out of local folk tales. One of Govind Deshpande’s plays is a rewritten version of a Tendulkar play, with characters and situations from the original, but differ-ent politics. The history of theatre is replete with such and similar examples.The field of modern Indian theatre has been predominantly an amateur field, in that most of the theatre activity in India is neither professional nor commercial in nature. With an absence of corporate interest, and a lackadaisical attitude of the state towards it, theatre earns, even in instances where it is commercial or profes-sional, very little revenue. Therefore, models or notions of rights developed on the com-mercial stages of the west have little or no relevance to Indian theatre practitioners.It would be interesting to compile in-stances of copyright/authorship disputes in Indian theatre. It would also be interesting to see how disputes have traditionally been settled. One particularly striking instance that springs to mind is from the 1970s. The director Satyadev Dubey took up Achyut Vaze’s Sofa-cum-Bed for production. Vaze hated Dubey’s production. When he ap-proached some other practitioners (includ-ing Vijay Tendulkar), it was suggested to him that he mount his own production. Which he did, and the two productions played side by side for a while. A postscript to the controversy is that Vaze apparently said to Dubey that if he was so fond of re-writing other people’s plays, why doesn’t he write his own. Dubey took up the chal-lenge, and has since been writing plays as well as directing.Most directors end up reworking play-scripts. In 1988, when Safdar Hashmi wrote a play based on Premchand’s story and the director Habib Tanvir worked extensively on it, expanding scenes, editing, cutting, etc, Hashmi felt privileged to acknowledge Tanvir as his co-author for Moteram ka Satyagraha. A couple of years later, when Tanvir did the same to Asghar Wajahat’s Jis Lahore Nahi Vekhya Voh Janmya Hi Nahi, Wa-jahat made sure that the published version was his original script rather than Tanvir’s re-worked version. It would be interesting to see how the latest spat, between the Tamil and Bengali playwrights I referred to at the outset, pans out.The Wrongs of CopyrightThe myth about copyright, of course, is that it protects the creative individual’s interests. In fact, though, it typically protects the inter-ests of corporate entities. Napster had to be shut down not because individual musicians protested against their songs being down-loaded for free, but because music compa-nies perceived a threat to their bottom lines. Interestingly, copyright regimes recog-nise the ownership of corporations – which are in any case recognised as legal individu-als under law – but not communities. Thus, while the company that owns the music of the Hindi film Hum Dil De Chuke Sanam could sue discotheques that play the song Nimbuda, the company itself is not legally bound to pay anything to the Rajasthani com-munity from which it has stolen that song. Copyright regimes are also designed to typically protect the blockbuster from piracy. However, not every novel or film is a blockbuster; and certainly, most plays do not earn millions. My own hunch is that a number of writers and other creative people would be happy to have their work read/heard/seen without bothering too much about royalties. Once their work is owned by a company though, this possibility ceas-es for them. In other words, while copyright regimes protect blockbusters from piracy, they also, typically, prevent non-blockbust-ers from being disseminated widely.The idea of copyright itself needs to be critiqued because it obstructs the free flow and growth of knowledge. It is in opposition to copyright regimes that movements for free software (as opposed to proprietary soft-ware), for copyleft and creative commons li-cences have grown. Playwrights and other theatre-persons need to study these options.The Alternative to CopyrightIn most cases, laws are framed to regulate practice on the ground; practice does not evolve out of nowhere simply because there is a law on the books. Similarly, law adapts to changes in practice and technology. Old law has to cede ground to new law if it goes against common practice. Till 1945, accord-ing to American law, the right to private property in land extended to all the space above the land, going till infinity. In that year, the Causbys, a family of farmers in North Carolina, sued the federal govern-ment because low flying planes scared their livestock, but the judge dismissed the case because “common sense revolts at the idea” that planes should fly on an alternative route because the right over land included the right to space above it.2 The question, then, is: can the practice of theatre lead to changes in law that are in harmony with re-alities of Indian theatre?This may seem utopian. But there are some leads to look at. The Free Software Movement is one. If I were to develop new software, I can cede the copyright over that to the Free Software Foundation, which then makes my software freely available to others, while ensuring that free software is not stolen and made proprietary, or that other software that is developed out of my software is also made freely available. A group of documentary filmmakers and lawyers in the US have worked on a Film-makers’ Statement of Best Practices in Fair Use. This has three purposes: it acts as a source of information for documentary film-makers (since they are often misinformed about copyright); it acts as a source of in-formation for the insurers, the broadcast-ers, the distributors, and others (in a word, “gatekeepers”); and if a filmmaker operat-ing within this code is actually subjected to a lawsuit, it would act as a tool of defence.3 Maybe it is time to think of something along these lines for theatre-persons in India.In the end though, the challenge is to create an alternative culture of trust and understanding among theatre-persons. All of us in the theatre have drawn, time and again, from the large, rich and diverse pool of plays and theatrical traditions from across the world. For this to be nurtured and further enriched, it is imperative that the pool itself be protected, not the adven-turous swimmers in it.Notes1 Walter Benjamin, “The Work of Art in the Age of Its Technological Reproducibility” (third version) in Howard Eiland and Michael W Jennings (ed.), Selected Writings, Vol 4, 1938-1940 (Cambridge and London: Harvard University Press), 2003.2 Quoted by Lawrence Lessig,Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, available online at http://www.free-culture.cc/.3 See Contested Commons/Trespassing Publics: A Public Record (New Delhi: Sarai), 2005, p 105.
COMMENTARYEconomic & Political Weekly EPW april 4, 2009 vol xliv no 1419This article is based on a presentation at the Second National Free Software Conference, Cochin, 15-16 November 2008. Thanks to Akshara K V, Ashish Rajadhyaksha, Pravin K P, Sameera Iyengar and Sanjna Kapoor and Deepa Punjani for discussions and comments on an earlier version of this article.Sudhanva Deshpande (sudhanva@leftword.com) is a theatre activist associated with the Jan Natya Manch.Authorship and Copyright in TheatreSudhanva DeshpandeCopying, imitation and reproducibility are central to the fine arts and therefore the concept of copyright sits uneasy. Experience suggests that copyright is designed to protect corporate profits rather than artists’ creativity. It is imperative for artists and theatre persons to work out alternatives to copyright which recognise the creator’s work without obstructing wider dissemination and adaption.Increasingly, copyright disputes are all around us. Consider the figure of Harry Potter. The agents of J K Rowling sued a Durga Puja samiti (committee) in Kolkata because the puja pandal (prayer tent) was based on the Harry Potter theme. The puja could eventually go ahead only after the court granted it a one-time ex-emption. Rowling’s agents tried to prevent a Hindi film withHari Puttar in its title from being released. They were unsuccess-ful. But they did succeed in preventing the publication of a lexicon of Harry Potter words.Copyright disputes are cropping up in the field of theatre as well. Last year, a Mumbai-based theatre group was rehears-ing their translation of Bertolt Brecht’sThe Threepenny Opera, a play which has been performed dozens of times in India, in different languages, when they received a communication from the agents of Brecht’s estate that they would need to pay royalty before mounting the produc-tion, failing which legal action would be initiated. The theatre group tried to reason with them – they were an amateur group, the performance was not for profit, and so on. To no avail. In the end, the theatre group found an ingenious way out – they changed the name of the play, and stopped publicising that it was based on Brecht’s original.The irony, of course, is that Brecht’s original was no original. It was a rework-ing of an 18th century play, John Gay’s The Beggars’ Opera. It may also be noted in passing that Brecht himself died in 1956, over 50 years ago.More recently, a senior Tamil play-wright alleged that his well-known play written in the 1970s was being passed off by a Kolkata playwright as his own, with-out even changing the name of the play. The Tamil playwright was not asking for royalty, he was merely protesting the ap-propriation of what he claims is his work under someone else’s name.On the one hand, there is the legitimate issue of the right to be recognised as the creator of a particular work. On the other, corporate entities use copyright laws to clamp patently unfair restrictions on crea-tors. I offer below some preliminary and provisional thoughts on the issue of copyright in theatre.The Importance of CopyingAll art develops and progresses through copying. The student learns from the mas-ter by imitating (in the performance arts) and copying (in the plastic arts). In music and dance in particular, a student is not allowed to improvise till she is able to imitate the master exactly and acquires a certain mastery over the act of imitation. Indeed, from almost the earliest times, there has also been reproducibility. The Indus civilisation had seals, though I am not sure if they used casts, like the Greeks did. In the Middle Ages, techniques of engraving, etching, and woodcuts devel-oped. These were followed by lithographs. The movable type revolutionised printing, making it faster and easier to reproduce both text and images. Photography, in the visual sphere, and sound recording tech-niques, in the aural sphere, speeded up reproduction enormously. These techni-ques also helped standardise reproduc-tion. Verisimilitude of a hitherto unprece-dented level was now possible.Walter Benjamin makes the point that photography, for the first time, freed the hand. Now, the eye did all the work. For the first time, dexterity and skill of the hand was no longer required to create life-like images. “Since the eye perceives more swiftly than the hand can draw, the pro-cess of pictorial reproduction was enor-mously accelerated, so that it could now keep pace with speech.”1 From here, it was but a short step to synchronising image to sound, and create film. With cinema, for the first time, the reproduction of art was not a post facto afterthought, but built very much into the very act of creation. There is no “original” performance which is recorded and reproduced. What is recorded is only fragments of the whole, and the act of creation is as much in the assembling of the fragments as in the re-cording of it. The art of cinema makes ab-solutely no sense without its mechanical 
COMMENTARYEconomic & Political Weekly EPW april 4, 2009 vol xliv no 1421plays which flopped, Brecht based many of his plays on other eminently successful plays. Many of Girish Karnad’s and Chan-drasekhar Kambar’s plays are based on an-cient myths and tales. Habib Tanvir has fashioned plays out of local folk tales. One of Govind Deshpande’s plays is a rewritten version of a Tendulkar play, with characters and situations from the original, but differ-ent politics. The history of theatre is replete with such and similar examples.The field of modern Indian theatre has been predominantly an amateur field, in that most of the theatre activity in India is neither professional nor commercial in nature. With an absence of corporate interest, and a lackadaisical attitude of the state towards it, theatre earns, even in instances where it is commercial or profes-sional, very little revenue. Therefore, models or notions of rights developed on the com-mercial stages of the west have little or no relevance to Indian theatre practitioners.It would be interesting to compile in-stances of copyright/authorship disputes in Indian theatre. It would also be interesting to see how disputes have traditionally been settled. One particularly striking instance that springs to mind is from the 1970s. The director Satyadev Dubey took up Achyut Vaze’s Sofa-cum-Bed for production. Vaze hated Dubey’s production. When he ap-proached some other practitioners (includ-ing Vijay Tendulkar), it was suggested to him that he mount his own production. Which he did, and the two productions played side by side for a while. A postscript to the controversy is that Vaze apparently said to Dubey that if he was so fond of re-writing other people’s plays, why doesn’t he write his own. Dubey took up the chal-lenge, and has since been writing plays as well as directing.Most directors end up reworking play-scripts. In 1988, when Safdar Hashmi wrote a play based on Premchand’s story and the director Habib Tanvir worked extensively on it, expanding scenes, editing, cutting, etc, Hashmi felt privileged to acknowledge Tanvir as his co-author for Moteram ka Satyagraha. A couple of years later, when Tanvir did the same to Asghar Wajahat’s Jis Lahore Nahi Vekhya Voh Janmya Hi Nahi, Wa-jahat made sure that the published version was his original script rather than Tanvir’s re-worked version. It would be interesting to see how the latest spat, between the Tamil and Bengali playwrights I referred to at the outset, pans out.The Wrongs of CopyrightThe myth about copyright, of course, is that it protects the creative individual’s interests. In fact, though, it typically protects the inter-ests of corporate entities. Napster had to be shut down not because individual musicians protested against their songs being down-loaded for free, but because music compa-nies perceived a threat to their bottom lines. Interestingly, copyright regimes recog-nise the ownership of corporations – which are in any case recognised as legal individu-als under law – but not communities. Thus, while the company that owns the music of the Hindi film Hum Dil De Chuke Sanam could sue discotheques that play the song Nimbuda, the company itself is not legally bound to pay anything to the Rajasthani com-munity from which it has stolen that song. Copyright regimes are also designed to typically protect the blockbuster from piracy. However, not every novel or film is a blockbuster; and certainly, most plays do not earn millions. My own hunch is that a number of writers and other creative people would be happy to have their work read/heard/seen without bothering too much about royalties. Once their work is owned by a company though, this possibility ceas-es for them. In other words, while copyright regimes protect blockbusters from piracy, they also, typically, prevent non-blockbust-ers from being disseminated widely.The idea of copyright itself needs to be critiqued because it obstructs the free flow and growth of knowledge. It is in opposition to copyright regimes that movements for free software (as opposed to proprietary soft-ware), for copyleft and creative commons li-cences have grown. Playwrights and other theatre-persons need to study these options.The Alternative to CopyrightIn most cases, laws are framed to regulate practice on the ground; practice does not evolve out of nowhere simply because there is a law on the books. Similarly, law adapts to changes in practice and technology. Old law has to cede ground to new law if it goes against common practice. Till 1945, accord-ing to American law, the right to private property in land extended to all the space above the land, going till infinity. In that year, the Causbys, a family of farmers in North Carolina, sued the federal govern-ment because low flying planes scared their livestock, but the judge dismissed the case because “common sense revolts at the idea” that planes should fly on an alternative route because the right over land included the right to space above it.2 The question, then, is: can the practice of theatre lead to changes in law that are in harmony with re-alities of Indian theatre?This may seem utopian. But there are some leads to look at. The Free Software Movement is one. If I were to develop new software, I can cede the copyright over that to the Free Software Foundation, which then makes my software freely available to others, while ensuring that free software is not stolen and made proprietary, or that other software that is developed out of my software is also made freely available. A group of documentary filmmakers and lawyers in the US have worked on a Film-makers’ Statement of Best Practices in Fair Use. This has three purposes: it acts as a source of information for documentary film-makers (since they are often misinformed about copyright); it acts as a source of in-formation for the insurers, the broadcast-ers, the distributors, and others (in a word, “gatekeepers”); and if a filmmaker operat-ing within this code is actually subjected to a lawsuit, it would act as a tool of defence.3 Maybe it is time to think of something along these lines for theatre-persons in India.In the end though, the challenge is to create an alternative culture of trust and understanding among theatre-persons. All of us in the theatre have drawn, time and again, from the large, rich and diverse pool of plays and theatrical traditions from across the world. For this to be nurtured and further enriched, it is imperative that the pool itself be protected, not the adven-turous swimmers in it.Notes1 Walter Benjamin, “The Work of Art in the Age of Its Technological Reproducibility” (third version) in Howard Eiland and Michael W Jennings (ed.), Selected Writings, Vol 4, 1938-1940 (Cambridge and London: Harvard University Press), 2003.2 Quoted by Lawrence Lessig,Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, available online at http://www.free-culture.cc/.3 See Contested Commons/Trespassing Publics: A Public Record (New Delhi: Sarai), 2005, p 105.
