Opinion To copy or not,within the bounds of law

Why is that? After all,both the bookseller and the photocopier are doing the same thing — profiting from the intellectual skill and capital of someone else by illegally copying a literary work for profit. Why then do we feel that this is patently incorrect? Is it because we assume that had these books been more accessible,students would have paid full price?

The Indian Copyright Act does allow certain exceptions to the rule against copying by incorporating the doctrine of “fair dealing”. Section 52 describes various circumstances under which copying will not be considered infringement. Sub-Section (o),for instance,states that under the direction of a person in charge of a public library,anyone can make up to three copies of a book for the use of the library if such book is not available for sale in India. Sub-Section (p) allows a student to copy an unpublished literary work kept in a library,museum or other institution to which the public has access,for the purpose of research or private study.

Neither of these provisions appears to have been invoked. In fact,it appears at first glance that they will not apply since the books in question are clearly available for sale in India — which has to be why the publishers of those books initiated action in the first place.

Could it then be that we feel these books are priced so far beyond the means of our impoverished student community that there is almost a Robin Hood-style justification that makes it acceptable to illegally copy these books?

If we take a look at Section 32A of the Copyright Act,it appears that the statute has already addressed the issue in some small measure. Section (1)(b) states that where,in connection with systematic instructional activities,copies of the book are sold in India at a price that cannot reasonably be related to that normally charged in India for comparable works by the owner,any person may apply to the Copyright Board for a licence to reproduce and publish such work at a lower price for the purposes of systematic instructional activities.

If that is the case,and if it could be proved that the price of the books in question was exorbitant compared with similar books,it should be possible to apply and obtain a compulsory licence to publish the books at a cheaper price. However,if all academic books of comparable quality are being sold at the same or similar price this clause is of little use to the problem at hand.

After this analysis it appears that the fault or at least a part of it should lie with the university. An integral part of the process of imparting an education is identifying the books and research material that are relevant and essential to the completion of the educational programme. The university is obliged,in my view,to identify books that are not just suitable in terms of content but also easily available. Where such a book is not available,they should prescribe alternative,affordable and accessible reading material better suited for higher education in India. Or else,students should be made clearly aware of the financial commitment by way of textbooks that their course of study will involve.

Despite the public gnashing of teeth at the actions taken by the publishers,they are entirely within their rights. It matters little if we believe that the law should not be strictly enforced in the special context of academic instruction. Till such time as the law specifically prescribes special exceptions of the kind that will address this situation,we are obliged to adhere to the law as it stands. Much as we may want the law to look leniently on the photocopier outside Delhi University,he violated the Copyright Act and is liable to be punished.

The writer is a Bangalore-based lawyer