What is the public domain? What is private? And do these questions have any bearing on the growing information commons that we on this site are trying, in our own various ways to promote?

Consistent with the style of my previous articles, I would like to embark on a heuristic examination of these questions – by supplying illustrations of the manner in which “public” has been deployed and interpreted in India, I hope to converge on a few (hopefully interesting) observations. The object of this exercise is to see if, and in what manner, our understanding of the public domain may be enriched by reading the phrase as a subset of other prevalent discourses on the “public”.

Three Conceptions of the Public Domain

At the outset, one might observe three popular conceptions of the information “public domain”:

Firstly, “public domain” is ascribed a rather technical meaning either as information that is not owned or as information that has been released from the cycle of ownership into a state of ownerless “moksha”. The conception is evident, say, in statements of the following sort by the Indian Supreme Court:

“The price of the grant of the monopoly is the disclosure of the invention at the Patent Office, which, after the expiry of the fixed period of the monopoly, passes into the public domain.”

Here “public domain” is seen as the afterlife or the spirit world of owned information. To continue the life-cycle metaphor, the “public domain” refers to a state of “permanent disappearance of all evidence of ownership at any time after live-birth has taken place”.

In the second conception, the “public domain” is a sphere where the public may gain access, notionally rather than actually, to information. One may observe this conception in statements such as this one, again, by the Supreme Court:

“We are not concerned here with what kind of gains .. those persons made as had conceived ... the sting operations leading to the material being brought into public domain through electronic media.”

Here the Supreme Court is not commenting on the copyright status of the information but only signaling the fact that the information has been consigned to a realm where the public’s attention may be drawn to it.

A third conception of the public domain refers to all information that is issued from a “public” source – the state. Accordingly, as the UNESCO in its Governmental Public Domain Information Guidelines states, “public domain information” refers to “certain types of information that are produced by public authorities (‘government’ in the broad sense) in the course of their duties, and that are seen as a public good”.

This conception of public domain corresponds roughly to the definition of “public documents” contained in Section 74 of the Indian Evidence Act which includes all “documents forming the acts or records” of the sovereign authority, or of official bodies and tribunals, or public officers, legislative and executive in India or a foreign country.

Other “publics”.
Apart from these three conceptions of the “public domain”, there exists in India a supplementary lexicon of the “public” which includes phrases such as “public interest”, “public information”, “communication to the public” and “public space”. Interpretations of each of these phrases have tended sometimes to confirm the conceptions of the public domain just described above, and at other times embody hybrid conceptions of their own.

In the remainder of this article I will briefly dwell on how each of these phrases have been deployed or interpreted in India. These interpretations, even if they do not directly contribute to our reading of the “public domain” together constitute the ecology of meaning within which it is interpreted, and so provide a useful catalogue of interpretative techniques that may be applied to it.

“Public Interest”
The phrase “public interest” is used in India in various contexts: for instance, as one of the justifications for the acquisition of private land by the state, or in the context of “Public Interest litigation”, or more recently in the context of public interest broadcasting.

In his innovative reading of a landmark case decided by the Supreme Court declaring airwaves to be “public property”, Ashish Rajadhayksha argues that there are at least four differing and competing ideas of the “public” that emerge in the debate on air waves and public interest. These are:

1. Being “in the public interest”
2. Being accessible to the public
3. Being in the service of what the public wants
4. Being provided as a public service

There is no seamless web that ties these four different ideas together, and depending on the context in which they are discussed, the differing ideas of the public could itself lead to a very different understanding of public interest.

Public Place
In the Indian legal imaginary, the public place is invariably a site of perpetual illegality. Thus, a public space is a place where drug offenders peddle narcotics, and “fallen women” proposition customers for their trade. Thus public place means “any place intended for use by, or accessible to the public and includes any public convenience. It is not necessary that it must be public property. Even if it is a private property, it is sufficient that the place is accessible to the public. It must be a place to which the public, in fact, resorts or frequents.”

Discernable in this definition is the familiar “access” register of the public, even as the “state-as-public” paradigm is being specifically rejected.

Communication to the public
Under the Indian Copyright Act, a "communication to the public" occurs when a person makes any work “available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work”. Such communication occurs “regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.”

So a work is deemed to be communicated simply by virtue of its being made available to be seen or heard by the public – which public could be entirely absent during the course of the event. (The Courts however, adopt a somewhat more qualitative understanding of “communication” in the context of Contract Law where for instance, the mere acceptance of a document is not sufficient to signify cognisance of its terms.)

The “public” in this sense is deemed to be an always seeing or always hearing or otherwise-always-enjoying public, which may or may not in fact be the case.

Conclusions
The Indian Supreme Court has over many years arrived at a highly evolved understanding of “public spirited” or “public minded” persons as those who are not a) wayfarers; b) officious interveners; c) busybodies; and d) acting for “personal gain, or private profit or out of political motivation or other oblique consideration”. A “public spirited” person then is one who will “seek judicial redress for the benefit of persons who have suffered a legal wrong ... but who by reason of their poverty or disadvantage are unable to approach the court for relief” themselves. Curious as this description may sound, I think it adds an important dimension to our understanding of the “public” in that it identifies the ideal subjects of “public” process – those who are denied access either due to impoverishment or other disadvantages.

While we need not abide by the specific prescriptions of any of these definitions, I think they are useful to bear in mind as so many answers to the range of questions that may be posed about what the “public” comprises, and who constitutes it, who it may be activated by and on behalf of whom.

tags: Bangalore, Hyderabad India policy-law public-domain public-space copyright law public-interest public

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