On the right to photocopy

S Sivakumar and L P Lukose in The Hindu


The DU photocopy judgment is a victory for access to education. But is it successful in balancing the competing interests of the academic community and the copyright holders?

On September 16, the Delhi High Court dismissed the copyright infringement petition filed by three international publishers against a photocopy shop located in the Delhi University premises (The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services). The court ruled that making course packs for suggested reading for students by photocopying portions of various prescribed reference books does not violate the copyright of the publishers.

Right to reproduction

Section 14 of the Copyright Act, 1957, grants a bundle of exclusive rights such as the right to reproduction on copyright owners for commercial exploitation of the work. Making photocopies amounts to reproduction. Photocopies made in violation of Section 14 thus constitute infringement unless it is listed under Section 52 as an act not constituting infringement. The judgment holds that if any provision of the Act permits any person other than the owner to reproduce any work or substantial part thereof, such reproduction will not amount to infringement (Para 27).

The Copyright Act, to prevent stagnation of the growth of creativity, seeks to maintain a balance between the competing interests of the copyright owners on the one hand and the interests of the public to have access to works on the other. Copyright’s basic rationale is that there should be promotion of creativity through sufficient protection; and at the same time it also caters for dissemination of knowledge and access to copyright material through the doctrine of fair dealing. This doctrine, which is essential for research and academic purposes, is an exception to copyright holders’ exclusive rights. The Indian copyright law uses the term ‘fair deal’ (where listed purposes are statutorily embedded) whereas the U.S.’s copyright law adopts ‘fair use’ (which is merely illustrative). As per Article 13 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, these exceptions must confine to “special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”. Since the term ‘fair dealing’ is not defined in the Act, the judiciary determines its scope on a case by case basis.

Fair dealing

Section 52(1)(i) of the Copyright Act treats as fair dealing “the reproduction of any work (i) by a teacher or a pupil in the course of instruction; or (ii) as part of the questions to be answered in an exam; or (iii) in answers to such question. Section 52(1)(j) uses terms such as “staff and students of an educational institution” whereas Section 52(1)(i) uses “teacher or a pupil in the course of instruction.” On analysing this difference, the judgment holds that “there is no reason to interpret Section 52 (1)(i) as providing for an individual teacher and an individual pupil.” The word ‘instruction’ is not defined in the Act. According to Justice Rajiv Sahai Endlaw, the words “in the course of instruction” would include “reproduction of any work while the process of imparting instruction by the teacher and receiving instruction by the pupil continues during the entire academic session... imparting and receiving of instruction is not limited to personal interface between teacher and pupil but is a process commencing from the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing text books, readings and ensuring, whether by interface in classroom/tutorials or otherwise...” Hence it would be fair dealing if the students click photographs of each page of portions of the prescribed book.

Limitations

Copyright must increase and not impede the harvest of knowledge. When the judgment reads, “Copyright is to motivate the creative activity of authors in order to benefit the public”, what is left for the copyright owners? The judgment places no limitation on photocopy if the material is prescribed in the course of instruction. Copyright holders invest considerably in creating works. Can this be ignored while interpreting Section 52(1)(i) as a license for reproducing unlimitedly everything prescribed in the suggested reading? If the legislature had intended to give such a wide interpretation to the words “in the course of instruction”, why does it add, “as part of the questions to be answered in an exam or in answers to such question” which should also be covered automatically? If the suggested reading provides for the whole book, does Section 52(1)(i) permit reproduction of the whole book or only reasonable excerpts? The judgment has conveniently avoided any direct reference to this aspect. The Court Commissioner had reported that “8 books were found being photocopied cover to cover”. Was the court successful in balancing the competing interests of the academic community and the copyright holders? When the university is entitled to free photocopy of 3,000 pages every month(Para 4), can the possibility of commercial interest be overruled? In that context, does it comply with Article 13 of TRIPS? Is it justified to cover the private photocopy shop in the university premises within the expression “in the course of instruction”? Doesn’t the judgment provide blanket immunity to the university to meet the demands of all the students by purchasing a single book?

Undoubtedly, the judgment, which is a breakthrough in the Indian copyright jurisprudence, is a major victory to access to education in a developing country like India. It will certainly have a far-reaching impact in academic circles as well as on the copyright industry. When access to education itself is a challenge, none of the students can be expected to purchase expensive textbooks, especially when syllabi prescribe certain portions from various books. Universities are expected to cater to students’ reading requirement without prejudicing copyright holders’ legitimate economic interests. Are the Indian universities honestly utilising funds earmarked for libraries for that purpose? The students’ demands can be met reasonably by permitting reproduction of reasonable excerpts.

Ethics, Economics, Education

The decision of the courts against a photocopying shop that provided course-material to Delhi University students will have global repercussions

ALI KHAN MAHMUDABAD in outlook India

The right to education is fundamental to the development of any society. Implicit within this right is the right to access knowledge without being constrained by one's socio-economic background. The state, which is the mediator between private interest and public good, has a duty to enforce these rights. A court case in India instituted last year by Taylor and Francis, Cambridge University Press and its Oxford equivalent against Delhi University and Rameshwari Photocopy Services is being heard again and will force the judicial system not only to address technical and legal questions concerning copyright but deeper questions about what constitutes the public good.

The case concerns the photocopying and sale of books printed by these publishing houses, as buying the originals, even the Indian editions, is beyond the means of most students. In fact, has been established through empirical studies by academics like Shamshad Basheer, often only short sections of these books are copied to make course-packs as is done in the US under the 'fair use' laws. A bare reading of the copyright laws in India might lead some to the conclusion that the photocopying is illegal as the photocopying house, an official licensee of Delhi University, is making a profit. At the same time the carefully worded section 52 of the Indian copyright act makes certain provisions, as has been argued by Niraj Kishan Kaul the advocate for the University of Delhi and goes to great lengths to differentiate between ‘reproduction of work’ and ‘issuing copies of work’ and sub-clauses that allow for an exception to be made for students and teachers.

The court granted temporary relief to the petitioners and stopped the photostat shop from making any copies and on the last hearing on the 1st of October listed the matter for the 21st of October.

Interestingly, copyright laws have not always been restrictive. In 1790 a copyright law was passed in America, actually permitting the re-printing of foreign material, as copyright was deemed a privilege and not a right, which led to an entire industry being built around material that otherwise might have been deemed ‘pirated.’ So although today America is a stickler for enforcing copyright laws, its own market was initially built by breaking these very rules.

What is perhaps of as great importance as a discussion of the technical aspects of the law is a conversation about the value of the service being provided by the Rameshwari Photocopying Services and, crucially, what the stance of the university presses says about their approach to knowledge dissemination.

The argument that the authors of academic works suffer is largely redundant as most academic presses give relatively modest remuneration to the writers. Furthermore, many of the people mentioned in the lawsuit, including noted academics such as Amartya Sen amongst others, have actually written an open letter opposing the case. Notably, there are very few countries in the world in which academics are remunerated in a manner which is commensurate with the role they play in today’s world: writing the history of the future of coming generations. Most academics do what they do because of a love of the subject and of course there are those who are able to cash in on their expertise but these form the exception rather than the norm. The argument for a loss of income to the publishing house is also questionable since the closing down of shops such as the Rameshwari Services will not mean that the students will suddenly be able to buy original prints as these will still be too expensive.

In a section entitled ‘what we do’ the Cambridge University Press website states in big bold letters that its purpose is “to further the University’s objective of advancing learning, knowledge and research.’ Beneath this admirably expressed goal, in smaller font, the blurb talks of 'the global market place,’ ‘their 50 global offices’ and ‘the distribution of their products.’ The two parts of the section speak volumes about the press’ approach in fulfilling its objectives and indeed this is symptomatic of a system that encourages institutions or indeed individuals to profess an ethical approach to economics but one which is in actual fact often under girded by a fine print that almost inevitably puts self-interest before anything else. The Oxford University Press website states similar aims and interestingly even acknowledges that "access to research helps push the boundaries of research."

Of course any institution needs to be self-sufficient but at the same time in many countries those institutions that are deemed to be serving a public good are granted tax-free charitable status, as is the case with both the university presses. This of course in effect means that the taxpayer subsidizes them.

The case instituted by these publishing houses then seems to be part of the worrying effort to commercialize education by making it bend to the ‘logic’ of the market. India is already facing the effects of unregulated private educational institutions that are often used to launder money and which essentially offer a degree on payment service. The publishing houses then are acting in a manner which is no different from the way in which certain corporate entities bully smaller organisations out of the market. The difference is that the some of the students who buy photocopied material might well end up publishing material with the university presses because ultimately both are part of the same system. In a recent statement the spokesperson for the Cambridge Press even said that their primary purpose is "not as a commercial organisation."

In a speech in the House of Commons on the 5th of February 1841 Lord Macaulay, while accepting its necessity, dubbed copyright ‘a tax on readers for the purpose of giving a bounty to writers…for one of the most salutary and innocent of human pleasures.’ Later in the speech, he gave the example of Milton’s poetry, the sole copyright of which lay with a bookseller called Tonson who once took a rival to court for publishing a cheap version of Paradise Lost, after its performance at the Garrick theatre. Macaulay then concluded that the effects of this monopoly led to a situation where ‘the reader is pillaged; and the writer’s family is not enriched.’

The decision of the Indian courts will have global repercussions, as has been the case in its rulings against big pharmaceutical companies. The practice of making course-books is found in many other countries such as Nigeria, Peru and Iran, with the latter also suffering as sanctions mean that many journals cannot be accessed, let alone copied. In Syria, just outside the University of Damascus, in the underpass beneath the Mezze autostradde were a number of shops that provided cheap copies to students who otherwise would not have had access to key material.

In a world delineated by bottom lines, fine prints and sub-clauses, in which freedom in essence translates into 'consumerist freedom,' it is easy to speak of ideals and values but much harder to put them into action. As Harvard philosopher Michael Sandel argues, the more we treat everything as a product to be sold or bought, including our education, our bodies and even our emotions, the more we devalue their intrinsic worth and so what is needed is 'bringing ethics, morality and virtue into public discourse.' For students, any society's real assets, the closure of the small yet crucial services provided by shops that produce photocopied coursework would only add one more obstacle in a country that is already riven with economic disparities.

Why students need the right to copy

 

SHAMNAD BASHEER 

The lawsuit by publishers seeking to stop Delhi University from distributing photocopied course packs goes against the spirit of education for all

The HinduBREAKING FREE: The case also shows why it is necessary for academics to explore alternative open access models. A meeting in October 2012 at Delhi University to examine the implications of the case.

 

Late last year, leading publishing houses including Oxford University Press and Cambridge University Press brought a copyright action against Delhi University and a tiny photocopy shop licensed by it, seeking to restrain them from supplying educational course packs to students. This lawsuit sent shock waves across the academic community, leading more than 300 authors and academics including famed Nobel laureate Professor Amartya Sen to protest this copyright aggression in an open letter to publishers. Tellingly, 33 of the authors of various books mentioned specifically in the lawsuit (as having been copied in the course packs) signed this protest letter making it clear that they were dissociating themselves from this unfortunate lawsuit.

For those not familiar with the term, course packs are compilations of limited excerpts from copyrighted books, put together painstakingly by faculty members in accordance with a carefully designed syllabus and teaching plan.

‘FAIR USE’

What makes the lawsuit particularly egregious is the fact that publishers are effectively seeking an outright ban on all course packs, even those that extract and use no more than 10 per cent of the copyrighted book. Under U.S. law, reproducing up to 10 per cent of the copyrighted books is “fair use” of a copyrighted work, and therefore legal. Given that India is a developing country, with poorer students and more severe educational access constraints, it stands to reason that Indian courts ought to peg this number at 30 per cent or even higher.

Further, the Indian education exception is far wider than its U.S. counterpart. Section 52(1) (a) embodies the “fair use” exception and permits any fair dealing of a copyrighted work for the purpose of research and private study. In addition, unlike the U.S., Section 52(1)(i) embodies a separate exception, under which it is perfectly legal to reproduce any copyrighted work during the course of educational instruction. These exceptions reflect a clear Parliamentary intention to exempt core aspects of education from the private sphere of copyright infringement. Eviscerating these exceptions at the behest of publishers will strike at the very heart of our constitutional guarantee of a fundamental right to education for all.

In fact, copyright scholars have begun labelling these exceptions as “rights” accruing in favour of beneficiaries such as students. In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada endorsed this sentiment noting that:

“…The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”

PUBLIC INTEREST

Recently, an association of students and academics applied to be impleaded as parties to the lawsuit, so that they could help the court arrive at a robust interpretation of the copyright exceptions. While allowing these impleadments, the judge noted the critical importance of “public interest” in deciding intellectual property cases. These developments come close on the heels of the famed Novartis decision where the Supreme Court foregrounded the interests of the public in accessing affordable medication.

DANGER OF THIS LICENCE

Meanwhile, publishers have offered the tantalising option of acquiring a licence from the Indian Reprographic Rights Organisation (IRRO), an organisation set up by publishers to collect royalties on their behalf. This is a dangerous route to tread for three reasons.

First, taking a licence for course packs amounts to paying for a right that does not exist. It bears reiteration that photocopying for the purpose of educational instruction is a legal exception under copyright law and one is not required to seek the permission of the copyright owner and/or pay any licence fees.

Second, the IRRO and publishers are likely to offer a paltry licensing fee at the start. Once their foot is in the door, there is no stopping them from rapidly escalating licensing fees year after year. Canadian universities bore the brunt of this copyright greed around a year or so ago and refused to renew their licenses.

Third, the IRRO does not hold the rights to all published works. If Universities are to track down and enter into licensing deals with every copyright owner, this would lead to excessive delays in the preparation of course packs.

Academic institutions should therefore refrain from entering into any deal with the IRRO or publishers till such time as the case is disposed of. In fact, given the rather wide language of Section 52(1)(i), institutions are well within their right to presume that the creation of course packs and related educational material is legal, until a court holds otherwise.

NO INDIAN EDITIONS

Notwithstanding the egregiousness of this lawsuit, a key advantage is that it forces us to re-examine the current publishing and pricing model that places profit above the interest of students. Academics need to come together and explore alternative open access models in order to break through this private profit monopoly thicket that has come to plague academic publishing.

That a majority of educational textbooks are priced above the affordability range of an average Indian student is well known. A recent empirical study done by me along with my students reveals that a vast majority of popular legal and social science titles have no corresponding Indian editions and need to be purchased at rates equivalent to or higher than in the West.

Therefore, the claim by publishers that course packs would destroy their market for books and put them out of business is highly questionable. Given that this is the first copyright law suit to be brought against course packs, one can only assume that the healthy growth figures boasted by the academic publishing industry means that course packs have not done them much damage. If at all anything, the inclusion of extracts of copyrighted works in the course packs is likely to encourage readers to buy the books when they can afford them.

In the end, this lawsuit must be seen for what it is: a highly pernicious attempt to fill the coffers of publishers at the expense of students! It must be resisted with all the moral and legal force we have.

(Shamnad Basheer teaches IP Law at NUJS, Kolkata. He wishes to thank Amita Baviskar for her inputs in this piece.)