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Wednesday, January 27, 2021

Publishers vs Students

A society where private commercial gain trumps the larger public interest in promoting educational access can never be a fair one

Written by Shamnad Basheer | August 30, 2012 3:20:46 am

When asked what he thought about Western civilisation,Gandhiji replied: “I think it would be a good idea.” A recent court ordered copyright raid at the behest of leading book publishers against a poor photocopier at Delhi University might force the Mahatma to endorse a similar sentiment if one were to ask him what he thought about public interest in intellectual property (IP).

Contrary to popular perception,IP regimes are meant to serve not only the private commercial interests of IP owners,but a wider public interest. In many ways,intellectual property rights embody a social contract,where the creator agrees to serve the public interest in exchange for a legally guaranteed monopoly. However,in a number of industries,IP owners often breach this social obligation by pricing goods out of the reach of the aam aadmi. And then proceed to do everything within their power to block access to cheaper affordable versions. Pharmaceutical drugs are an excellent example,educational books another.

It is within this framework that one ought to view the recent attempt by leading publishers to prevent students from accessing affordable course packs put together by a small photocopy shop at the behest of a leading university.

Many appear to acknowledge the “technical” illegality of the photocopying,and take issue with the raid on a purely moral basis. However,it is important to appreciate that the law itself provides enough wiggle room for exempting these acts from copyright infringement.

The law suit filed by publishers before the Delhi high court indicates that the alleged instances of copyright infringement constitute no more than 10 per cent of individual copyrighted books in most cases.

Even in a maximalist IP jurisdiction such as the United States,courts have held that reproducing less than 10 per cent of a book constituted “fair use”. Although the ruling in this case (Cambridge University Press vs Becker) pertains to electronic copies,the logic of it should apply to the physical world as well.

The fair use doctrine is recognised as a valid defence to copyright infringement in most countries including India,where Section 52 of the Copyright Act permits one to “fairly deal” with any copyrighted work for “private or personal use including research”.

That universities and students photocopying excerpts of articles and book chapters are doing so for private or personal use is beyond doubt. And it stands to reason that if the university can do this legitimately,it can also outsource this function to a third party photocopier (who does it as an agent of the university). However,the critical issue is: what amounts to “fair dealing”?

Would takings of less than 10 per cent of copyrighted books amount to fair dealing? If a free-market capitalist economy such as the US,with a maximalist IP regime,can suffer 10 per cent,India can do far better. We should peg our yardstick at 20 per cent or even higher. After all,of what use is our constitutional guarantee of the right to education when materials cannot be accessed by the average student?

But we need not split hairs over the appropriate permissible “fair” percentage. Our copyright act recognises a fairly wide educational exception in Section 52 by permitting any material to be reproduced “during the course of instruction”.

It is a truism that educational material is largely expensive and often unaffordable to the average student. While foreign publishers claim that almost all titles have Indian editions and are lower priced,a recent empirical study done by me along with my research associates demonstrates this to be a false assertion. A vast majority of legal and social science titles (that we studied) had no equivalent Indian editions and had to be purchased at rates equivalent to or higher than in the West. The lower priced Indian editions were often older and outdated versions.

Publishers are likely to claim that a liberal educational exception would sound the death knell of their industry and liquidate educational titles altogether. However,one needs simply to look at the fact that despite the many instances of alleged wholesale photocopying at universities,the industry continues to flourish. In any case,given the exorbitant prices of most books,such photocopying does not result in lost sales,as publishers would have us believe. Any counter assertion in this regard must be taken with a pinch of salt,unless backed by strong empirical data.

Further,although copyright regimes purportedly protect the interests of creators,the largest economic returns often flow to publishers,and our poor creators have to remain content with a mere pittance.

In the end,a large part of this case will hinge on the term “fair”,a somewhat epidermal term,given our obsession with fairness creams. One hopes that the unfortunate Delhi raids will force us to examine it at a deeper level and acknowledge that a society where private commercial gain trumps the larger public interest in promoting educational access can never be a “fair” one.

The writer is the Ministry of HRD Professor of IP Law at WB NUJS,Kolkata

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