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Wednesday, December 01, 2021

DU photocopy case: Delhi HC restores copyright suit by publishers

The publishers in their plea had said that tests for "fair use" of Copyright material — which include extent of how much of the material is copied and whether market of the Copyright holder is affected

Written by Aneesha Mathur |
Updated: December 9, 2016 4:03:58 pm
delhi university, Rameshwari Photocopier, photocopy, photocopy copyright, DU, delhi high court, DU photocopy, delhi university photocopy, india news Rameshwari Photocopier on the premises of Delhi University’s Delhi School of Economics supplies ‘course packs’ containing photocopies of chapters of books. Express photo

Giving relief to students and academics in India, the Delhi High Court on Friday held that photocopying of copyrighted material for education 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 the copying.

The division bench of justice Pradeep Nandrajog and justice Yogesh khanna on Friday passed a 58 page judgment on an appeal filed by 5 international publishers — Oxford University Press, Cambridge University Press, United Kingdom, Cambridge University Press India Pvt Ltd, Taylor & Francis Group, UK; and Taylor & Francis Books India Pvt Ltd — against a single bench decision of the high court which had dismissed their case against copying of their copyrighted publications by DU-based Rameshwari Photocopier for preparation of “coursepacks.”

“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, that is, for instructional use by the teacher to the class and this 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 given by the teacher to the students. This would require expert evidence, ” said the bench while remanding the matter for trial.

While allowing for copying of material under the law, the bench has sent the suit filed by the publishers back to the single bench for trial on the ‘facts’ of whether the coursepacks being sold by Rameshwari photocopiers were “justified” by the existing syllabus.

The division bench in its judgment has held that the “qualitative and quantitative tests” laid down under the “fair dealing” doctrine of Copyright law, that is, 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 in their plea had said that tests for “fair use” of Copyright material — which include extent of how much of the material is copied and whether market of the Copyright holder is affected — should apply in the interpretation of the relevant provisions of the Copyright act. The court has dismissed this argument.

“The 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 reason being, ‘to utilise’ means to make or render useful. To put it differently, so much of the copyrighted work can be fairly used which is necessary to effectuate the purpose of the use, that is, make the learner understand what is intended to be understood,” the bench has held.

READ: UGC: Educational institutes can’t hold students’ original documents

The court has however. held that while creation of coursepacks for educational purposes was allowed under law, the photocopier will have to face trial in the suit, and prove that the packs being sold by them are “justified by the purpose of the course pack”.

The photocopy shop will have to prove that the syllabus and course content of the semester asks for the inclusion of the particular extracts of the copyrighted textbook in the ‘coursepack.’

The bench however dismissed the argument of the publisher that the Copyright Act did not allow for photocopying of materials by the photocopy shops.

“Concerning the argument that there cannot be an intermediary when use of copyrighted material post reproduction takes place in the course of instruction, common sense tells us that neither the teacher nor the pupils are expected to purchase photocopiers and photocopy the literary work to be used during course of instruction in the class room,” held the bench.

The court also upheld the argument by the students and academics organisations that photocopying of expensive published books for academic purposes was justified for reasons of “public education. It has held that students were not expected to purchase the reference books, and were “not the potential customers” of the publishers, and therefore, photocopying for academic purposes did not affect the potential market of the publishers.

“In the context of the argument of an adverse impact or the likelihood of the same on the market of the copyrighted work in question, taking the example of a literacy programme, assuming the whole of the copyrighted material is used to spread literacy, one cannot think of any adverse impact on the market of the copyrighted work for the simple reason the recipient of the literacy programme is not a potential customer. Similar would be the situation of a student/pupil, who would not be a potential customer to buy thirty or forty reference books relevant to the subject at hand. For purposes of reference she would visit the library. It could well be argued that by producing more citizens with greater literacy skills and earning potential, in the long run, improved education expands the market for copyrighted materials,” observed the bench.

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The bench has now sent the case back to the single bench, and refused to issue a stay on the working of the photocopy shop during the trial of the suit. The copier has been directed to keep accounts and records of the material being copied and the course packs being supplied.

The judgment also noted that there was no evidence that Rameshwari was “making profit” in any manner by “making coursepacks” as an activity different from simply making photocopies.

Speaking to the Indian Express, Senior Advocate Neeraj Kishan Kaul, who had represented the Students’ organisation Society for Promoting Educational Access and Knowledge (SPEAK) said that “over 95 per cent of the contentions of the students and academics” had been accepted by the court.

“I cannot comment on the impact on the photocopiers, but the only thing that the bench has remanded for trial is the facts of whether inclusion of a particular material is justified by the demands of the course. On legal principles all our contentions have been upheld,” said Kaul. In a statement to the media, teh Association of Students for Equitable Access to Knowledge (ASEAK) also welcomed the decision.

The counsels for the Publishers and Rameshwari photocopier were unavailable for comment at the time of writing this article.

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