IN A judgment that is likely to have a far reaching impact on copyright law and publishing in India, the Delhi High Court on Friday said photocopying of copyrighted material for educational use was allowed under the Indian Copyright law, and there could be no restriction on how much of the book is copied as long as the demands of the course being taught justified it.
The division bench of Justice Pradeep Nandrajog and Justice Yogesh Khanna on Friday passed a 58-page judgment on an appeal filed by five international Publishers — Oxford University Press, Cambridge University Press, United Kingdom, Cambridge University Press India Pvt. Ltd., Taylor & Francis Group, U.K.; and Taylor & Francis Books India Pvt. Ltd — against a single bench decision of the High Court.
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The single bench had dismissed the publishers’ case against copying of their copyrighted publications by DU-based Rameshwari Photocopy Service for preparation of “coursepacks”.
While allowing for copying of material under provisions of Section 52 (1) (i) of the Copyright Act, the bench has sent the suit filed by the publishers back to the single bench for trial on whether the course-packs being sold by the photocopier were “justified” by the existing syllabus.
“We declare that the law in India would not warrant an approach to answer the question by looking at whether the course pack has become a textbook. But by considering whether the inclusion of the copyrighted work in the course pack was justified by the purpose of the course pack – for instructional use by the teacher to the class – it would warrant an analysis of the course pack with reference to the objective of the course, the course content and the list of suggested readings. This would require expert evidence,” said the bench.
The division bench held that the “qualitative and quantitative tests” laid down under the “fair dealing” doctrine of Copyright law – to test whether use of copyright material is “fair” – does not apply to copying for “purpose of education” under Section 52(1)(i) of the Indian Copyright Act. The publishers had said tests for “fair use” of copyright material – including limit to how much of the material is copied and whether market of the copyright holder is affected – should apply.
The publishers had also sought a stay on the “course-packs” and said Delhi University should take the appropriate licence from the Indian Reprographic Rights Organisation to reproduce the books.
The court has now held that while creation of “course-packs” for educational purposes was allowed under law, the photocopier will have to face trial and prove that the syllabus and course content of the semester calls for the inclusion of the particular extracts of the copyrighted textbook in the “coursepack”.
The bench also dismissed the argument of the publisher that the Copyright Act did not allow for “mass photocopying” by the shop.
The court also upheld the argument by students and academic organisations that photocopying of expensive published books for academic purposes was justified for reasons of “public education”. It held that students were not expected to purchase the reference books, and were “not the potential customers”. Therefore, photocopying for academic purposes did not affect the publishers’ potential market.
The bench has refused to issue a stay on the working of the photocopy shop during the trial, but directed the copier to keep accounts and records of the material being copied and the course-packs being supplied.