Issues of access and ‘fair use’ in new High Court copyright judgment

Delhi HC has ruled there’ll be no cap on how much of a book can be photocopied, so long as course demands it. What are the implications for the publishing industry?

Written by Aneesha Mathur | Published:December 12, 2016 2:55 am
delhi high court, du photocopy case, delhi university, oxford university press, education news, indian express Publishers moved against Rameshwari Photocopier’s Dharampal Singh. (Express Photo: Tashi Tobgyal)

Background

In 2012, a clutch of academic publishers moved Delhi High Court seeking a permanent injunction to restrain Rameshwari Photocopier, a shop on the premises of Delhi University’s Delhi School of Economics, from making copies of chapters of textbooks published by them and selling to students as “course packs”. The publishers wanted DU to get a licence from the Indian Reprographic Rights Organisation, a society that collects licensing fees on their behalf, and seek permission for preparing course packs after paying copyright dues. A Single judge Bench dismissed the suit on September 16, 2016.

In their appeal, the publishers said well-known fair-use principles were being violated, and that the relevant section of the Copyright law [Section 52(1)(i)] allowed copying only where a “direct connection between the teacher and the pupil without an intermediary” existed. They also said the photocopier was “competing” with the copyright holders, commercially exploiting their work, and depriving them of revenues.

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On December 9, a Division Bench of the High Court rejected the appeal — upholding, and expanding, the Single Bench’s order, underlining the principle that photocopying of copyrighted material was allowed under Indian Copyright law, and ruling that their could be no caps on how much of a book could be photocopied as long as it was justified by the demands of the course. However, Rameshwari Photocopier will have to justify the creation of course packs by proving that they are in accordance with DU’s syllabus.

Judgment

The December 9 order said that photocopying of copyrighted material for use “in the course of instruction” that is allowed under Section 52(1)(i) of the Copyright Act would include all copying done for academic use in a university, as long as the text being copied was “justified by the demands of the course”. The Division Bench upheld the expanded scope of interpretation of “course of instruction” under Section 52(1)(i) to include the entire academic exercise from the setting of the syllabus to the actual classroom teaching. The Bench said that “course pack” was a collection of reading material selected by teachers “keeping in view the objective of the course as per the curriculum…”.

The court held that 52(1)(i) did not include the “qualitative and quantitative” tests for fair use. Students and teachers “could not be expected” to copy every book on an individual basis, and copying by a shop was an “extension” of the requirement of the classroom, it said.

It said that restrictions on the extent of use of the copyrighted material, like “percentage of text” limits laid down in countries like New Zealand and the USA could not be imposed in India under the Copyright Act. “Utilisation of the copyrighted work would be a fair use to the extent justified for purpose of education. It would have no concern with the extent of the material used, both qualitative or quantitative,” the court said.

It also said that the law in India was only concerned with whether the inclusion of the material was “justified by the purpose of the course pack”. The Bench has, however, directed the Single Bench to consider during the trial of the suit the issue of whether copying of “full text” of the book could be justified.

Implications

Legal experts say the judgment is likely to have “unforeseen and far reaching consequences” for the industry and copyright law.

Senior Advocate Neeraj Kishan Kaul, who represented the students’ organisation SPEAK, said the judgment had accepted the arguments of students and academics for access to study material. Dr Raman Mittal, Associate professor at DU’s Law Faculty, said the judgment took into account the “societal purpose” of the Copyright Act, and would have a bearing on the issue of access to educational material for academics.

IPR Law expert Advocate C M Lall, however, said the judgment seemed to have used the “emotional connect” to education as an “intellectual duty” in the Indian tradition instead of looking into the efforts put in by the authors and publishers. “The court has looked at this in a giant publisher vs poor students context,” Lall said, adding that this would create a situation where the rights of the author would be ignored.

“The primary source of income for the publisher and author are the universities, if the universities allow such institutionalised copying, the new teacher coming in to teach will simply use the existing compilation being sold at the photocopy shop instead of looking at the books,” Lall said.

He compared the photocopier’s “compilations” to “DJ mixes and cassettes of the music piracy days”. “This is the same thing. How can you take extracts from books, compile them and sell them and then claim it’s for the public good?” Lall said.

IPR lawyer Eashan Ghosh argued the judgment had “ignored” provisions relating to licensing policy, and may “discourage” publishers from issuing “India editions”.

Dr Alka Chawla, Associate Professor at DU’s Law Faculty, while welcoming the “access” for students, said the judgment “left issues unanswered”. “The suit will have to be tried ‘with expert evidence’— the syllabus and readings are prescribed by university teachers. Who else will you call to provide expert evidence? This issue should have been settled,” Chawla said.

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