When it is right to copy

The litigation,as originally filed in the Delhi High Court,only concerned the publishers as the plaintiffs and the Delhi University and photocopy shop owner as the defendants. Even though the students who were the primary beneficiaries of such course packs would be directly affected by the result of the litigation,they were not made a party to the case,either individually or as a group.

However,this situation was sought to be remedied when an application for impleadment was filed by a group called the Association of Students for the Equitable Access to Knowledge. Such an application is essentially a procedural requirement,which when successful allows the person making it to become a party to the case. It is distinct from an application for intervention,which only allows such persons to make submissions on the applicability of the legal provisions,and not on the facts in the matter. The application filed by the students also allows them to ask for independent relief,not being limited to the ones that have been asked for by the existing plaintiffs and defendants.

Predictably,the publishers objected to this group of students impleading as parties in what they considered to be an essentially private dispute. However,the Delhi HC,allowing this group to become a party to the case,held that,when injunctions as claimed by the publishers are granted,a determination on public interest also needs to be made. Reasoning that,since this group of students represent the public interest and will be affected by the determination in the case,the court impleaded them as defendants.

This ruling is significant because it provides recognition that intellectual property litigations are no longer binary duels between the rights-holder and the much-demonised infringer. They often involve larger issues of public interest. Here,it even appears that there is some relaxation in the legal requirements that permit a third party who agitates such public interest to become a party to the litigation. This example needs a wider application and recognition in intellectual property litigation.

The primary reason for this is that most intellectual property litigation succeeds not through a completion of legal proceedings,but through an interim order,which entitles the plaintiff to prevent the defendant from selling or distributing the goods and services they are allegedly infringing. This interim injunction often blocks a cheaper substitute sold by the defendant from the market,thus affecting the wider public. Hence,from the beginning,the public is an invested party.

Let us also factor in some ancillary concerns as to why a more liberalised system of permitting third parties to engage in intellectual property litigation should be preferred. Even though courts in India have been popular,structurally they are inherently undemocratic. There is recognition of this in judicial precedent,which cautions against adjudication occupying the field of the legislature and entering a policy thicket. However,such caution is often treated as a legal fiction in practice,when courts comment,negate and approve government policy. Even when such judicial ambition is absent,the line between policy and the interpretation of statute curves violently and is not drawn with a black felt pen. Hence,when such an institution engages in an exercise of examination of public interest,it becomes essential for more elements of democratic practice to be infused in it. In many ways,the impleader becomes a votary and the petition becomes a ballot.

Finally,it would be a crass generalisation to suggest that such a system would only be to the benefit of the probable infringer. Such impleadments would allow a diversity of views to be presented before the court when it has determined the existence of public interest in an adjudication.

The writer is a partner at a Delhi-based law firm