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.

The silencing of liberal India

Pratap Bhanu Mehta in The Indian Express

Yet another book withdrawn and pulped by the publisher under pressure. The “pulping” of Wendy Doniger’s book, The Hindus: An Alternative History, is the pulping of liberal India. The agreement by the publisher to withdraw it is like putting a contract out on free expression. In India you publish at your peril. It is in a shockingly long line of books and art withdrawn from free circulation one way or the other, sometimes against the law, sometimes in the garb of law.

India is a democracy, but its reputation as a bastion of liberal values is dimming by the day. The argumentative Indian is being replaced by the offended Indian, the tolerant Indian by the intolerant mob, the reflective citizen by the hurt communal mobiliser, the courageous Indian by the cowardly thug who needs the state to protect it against every argument, the pious Indian by the ultimate blasphemer who thinks he needs to protect the gods rather than the gods being there to protect him. Whether this is a tiny minority or represents the majority is beside the point. The point is that the assault on free expression is winning. How is liberal India being silenced?

Liberal India is being silenced because its joy at exposing hypocrisy is far greater than its commitment to defending freedom. Every time a book is under assault, the same tiresome argument breaks out. “Oh, you did not speak when so and so was banned. You did not speak when Taslima Nasreen was the target, or when Jitender Bhargava was ordered to withdraw his book on Air India.” Or there is the partisan division: you did not object to what the Congress did to Salman Rushdie, or the CPM in West Bengal.

The point is that we spend all our psychic energies in exposing each other, not in defending values. If freedom is to survive, we have to set aside this debate on hypocrisy. It devours all energy. But it also legitimises the disposition that is at the heart of banning books: a fragile ego that takes joy in revenge, rather than taking pride in freedom. Let us get on with the task of defending the core values.

Liberal India has been silenced because it never understood that toleration does not, to use Govind Ranade’s phrase, come in halves. You cannot pick and choose when to be tolerant. You cannot choose to be tolerant along partisan lines. Neither can you choose to be tolerant based on what you think are distinctions between good and bad scholarship, serious and scurrilous books. These distinctions are a good basis for criticism; they are not the best basis for deciding whom the law will protect. And R.V. Bhasin, author of a banned book on Islam, will be protected as much as Wendy Doniger. And so it should be. If you want a hundred flowers to bloom, a few weeds will grow as well.

Liberal India has been silenced because the one institution that needs to protect it constantly fails: the courts. Civil society and politics have a lot to answer for. But the incentives to mobilise around the banning of books have largely been created by the laws and by the convoluted jurisprudence of the courts. A law that signals that it is open to banning books will incite mobilisations to ban books. If the state gives the category of taking easy “offence” such aid and succour, offence will be easily taken.

In the case of Doniger’s book, there seems to have been no threat of the book provoking large-scale violence. Despite protest and criticism, the book has been in circulation. But more importantly, the courts have sown the seeds of further confusion. For example, the Bombay High Court judgment on the Bhasin case upheld the idea that it is “no defence that the writing contains a truthful account of past events or is supported by good authority.” Courts uphold the idea that the criticism of religion must only be “academic”, whatever that means. Lampooing is part of legitimate criticism.

While banning the novel, Dharamkaarana, they showed no regard for the artistic integrity of the work. Courts should be the bully pulpit of constitutional values. They should draw strong lines protecting freedom. No wonder liberals worry that the court will not rescue them. No wonder the mere threat of litigation is a dampener on free expression.

Liberal India has been silenced by professional offence-mongers. Those who now claim to speak on behalf of communities use every trick they can to silence. There is often the threat of violence. The use of law is not, in this instance, an exercise of citizens’ rights. It is the use of law as a tactic of intimidation. Often, these groups have the implicit backing of political parties. No political party in Maharashtra stood up for the rights of scholars. As a result of the James Laine episode, most publishers do not want to even touch books on Shivaji.

The BJP’s relationship with groups that initiate these mobilisations has often been one of plausible deniability. It gives aid and succour to vicious offence mongering, it legitimises this contrived narrative of Hindu hurt. All it needs to do to overcome these suspicions is come clean and emphatically state that it does not support the “withdrawal” of books. We do not need political parties that take on the garb of liberalism by avoiding issues; we need political parties that actually defend liberal values.

Liberal India has been let down by its publishers. If major presses like Oxford University Press (OUP) and Penguin cave in to the threat of litigation so easily and fail to take matters up to the Supreme Court, it will become easier for people to intimidate. Recall OUP’s conduct in the case of the Calcutta High Court banning a scholarly monograph by Hans Dembowski on the judiciary. Indian business is supine because it feels politically vulnerable at so many different levels.

Liberal India has been silenced by its educators. The extraordinary failure of the project of liberal education is manifesting itself in the pathology of liberal institutions. If so many of India’s educated middle classes, which inhabit key institutions like the judiciary, bureaucracy, media, are so confused about basic constitutional values, if they are so content at liberty being abridged, one by one, you have to wonder about liberal education.

The fact that universities themselves did not remain exemplars of criticism, that they banished a healthy engagement with tradition has meant that the most ignorant and violent have now become the custodians of tradition. Wendy Doniger could not have damaged Hindus. But if Liberal India dies, Hinduism will die as well.

Economics lecturers accused of clinging to pre-crash fallacies

Academic says courses changed little since 2008 and students taught 'theories now known to be untrue'

• Phillip Inman, economics correspondent
• The Guardian, Sunday 10 November 2013 22.28 GMT

Economics departments have been accused of ignoring critics of the free market such as Karl Marx. Photograph: Alamy

Economics teaching at Britain's universities has come under fire from a leading academic who accused lecturers of presenting "things that are known to be untrue" to preserve theories that claim to show how the economy works.

The Treasury is hosting a conference in London on Monday to discuss the crisis in economics teaching, which critics say has remained largely unchanged since the 2008 financial crash despite the failure of many in the profession to spot the looming credit crunch and worst recession for 100 years.

Michael Joffe, professor of economics at Imperial College, London, said he was disturbed by the way economics textbooks continued to discuss concepts and models as facts when they were debunked decades ago.

He said: "What if economics was based more on empirical studies and empirical evidence? There are lots of studies and economists are often very good at finding the evidence for how things work, but it does not feed into or challenge what's in the textbooks.

"I asked a textbook author recently why a theory that is known to be wrong is still appearing in his book he said to me that his publisher would expect it to be there."

Joffe, a former biologist, called for more evidence in economic teaching in the October edition of the Royal Economic Society newsletter. He said many reformers had called for economics courses to embrace the teachings of Marx and Keynes to undermine the dominance of neoclassical free-market theories, but the aim should be to provide students with analysis based on the way the world works, not the way theories argue it ought to work.

"There is a lot that is taught on economics courses that bears little relation to the way things work in the real world," he said.

The Treasury-hosted conference will debate the state of economics teaching, with leading figures from the profession invited to speak, including Bank of England director Andy Haldane. Sponsored by the Institute for New Economic Thinking (INET), it aims to highlight reforms to address the shortcomings of the core economics curriculum.

Headed by economics professor Eric Beinhocker of Oxford University, the INET has grown into a large international lobby group with the aim of reforming mainstream economic teaching in the world's leading colleges.

The conference comes only a fortnight after Manchester University economics students criticised orthodox free-market teaching on their course, arguing that alternative ways of thinking have been pushed to the margins.

Members of the Post-Crash Economics Society said their course was dominated by models and equations that trained undergraduates for City jobs without a broader understanding of the way economies and businesses work.

Joe Earle, a spokesman for the society and a final-year undergraduate, said academic departments were ignoring the crisis in the profession and that, by neglecting global developments and critics of the free market such as Keynes and Marx, the study of economics was "in danger of losing its broader relevance".

The profession has been criticised for its adherence to models of a free market that claim to show demand and supply continually rebalancing over relatively short periods of time – in contrast to the decade-long mismatches that came ahead of the banking crash in key markets such as housing and exotic derivatives, where asset bubbles ballooned.

Joffe said university economics department were continuing to teach concepts that had been disproved. In one example he said the idea that companies suffer "dis-economies of scale" when they increase production beyond certain capacity was true in only a small number of firms.

The U-shaped curve shows that unit costs are high when production begins and become cheaper as economies of scale allow a company to spread costs over more units. Units become more expensive to produce after a factory reaches capacity.

Joffe said: "We ought to stop teaching the U shape as the typical relationship between costs and scale, for the simple reason that it is false."

Free access to British scientific research within two years

Radical shakeup of academic publishing will allow papers to be put online and be accessed by universities, firms and individuals

• Ian Sample, science correspondent
• guardian.co.uk, Sunday 15 July 2012 19.53 BST

Professor Dame Janet Finch's recommendations on open access publishing prompted the government's decision.

 

The government is to unveil controversial plans to make publicly funded scientific research immediately available for anyone to read for free by 2014, in the most radical shakeup of academic publishing since the invention of the internet.

Under the scheme, research papers that describe work paid for by the British taxpayer will be free online for universities, companies and individuals to use for any purpose, wherever they are in the world.

In an interview with the Guardian before Monday's announcement David Willetts, the universities and science minister, said he expected a full transformation to the open approach over the next two years.

The move reflects a groundswell of support for "open access" publishing among academics who have long protested that journal publishers make large profits by locking research behind online paywalls. "If the taxpayer has paid for this research to happen, that work shouldn't be put behind a paywall before a British citizen can read it," Willetts said.

"This will take time to build up, but within a couple of years we should see this fully feeding through."

He said he thought there would be "massive" economic benefits to making research open to everyone.
Though many academics will welcome the announcement, some scientists contacted by the Guardian were dismayed that the cost of the transition, which could reach £50m a year, must be covered by the existing science budget and that no new money would be found to fund the process. That could lead to less research and fewer valuable papers being published.

British universities now pay around £200m a year in subscription fees to journal publishers, but under the new scheme, authors will pay "article processing charges" (APCs) to have their papers peer reviewed, edited and made freely available online. The typical APC is around £2,000 per article.

Tensions between academics and the larger publishing companies have risen steeply in recent months as researchers have baulked at journal subscription charges their libraries were asked to pay.

More than 12,000 academics have boycotted the Dutch publisher Elsevier, in part of a broader campaign against the industry that has been called the "academic spring".

The government's decision is outlined in a formal response to recommendations made in a major report into open access publishing led by Professor Dame Janet Finch, a sociologist at Manchester University. Willetts said the government accepted all the proposals, except for a specific point on VAT that was under consideration at the Treasury.

Further impetus to open access is expected in coming days or weeks when the Higher Education Funding Council for England emphasises the need for research articles to be freely available when they are submitted for the Research Excellence Framework, which is used to determine how much research funding universities receive.

The Finch report strongly recommended so-called "gold" open access, which ensures the financial security of the journal publishers by essentially swapping their revenue from library budgets to science budgets. One alternative favoured by many academics, called "green" open access, allows researchers to make their papers freely available online after they have been accepted by journals. It is likely this would be fatal for publishers and also Britain's learned societies, which survive through selling journal subscriptions.

"There is a genuine value in academic publishing which has to be reflected and we think that is the case for gold open access, which includes APCs," Willetts told the Guardian. "There is a transitional cost to go through, but it's overall of benefit to our research community and there's general acceptance it's the right thing to do.

"We accept that some of this cost will fall on the ring-fenced science budget, which is £4.6bn. In Finch's highest estimation that will be 1% of the science budget going to pay for gold open access, at least before we get to a new steady state, when we hope competition will bring down author charges and universities will make savings as they don't have to pay so much in journal subscriptions," he added.

"The real economic impact is we are throwing open, to academics, researchers, businesses and lay people, all the high quality research that is publicly funded. I think there's a massive net economic benefit here way beyond any £50m from the science budget," Willetts said.

In making such a concerted move towards open access before other countries, Britain will be giving its research away free while still paying for access to articles from other countries.

Willetts said he hoped the EU would soon take the same path when it announced the next tranche of Horizon 2020 grants, which are available for projects that run from 2014. The US already makes research funded by its National Institutes of Health open access, and is expected to make more of its publicly funded research freely available online.

Professor Adam Tickell, pro-vice chancellor of research and knowledge transfer at Birmingham University, and a member of the Finch working group, said he was glad the government had endorsed the recommendations, but warned there was a danger of Britain losing research projects in the uncertain transition to open access publishing.

"If the EU and the US go in for open access in a big way, then we'll move into this open access world with no doubt at all, and I strongly believe that in a decade that's where we'll be. But it's the period of transition that's the worry. The UK publishes only 6% of global research, and the rest will remain behind a paywall, so we'll still have to pay for a subscription," Tickell said.

"I am very concerned that there are not any additional funds to pay for the transition, because the costs will fall disproportionately on the research intensive universities. There isn't the fat in the system that we can easily pay for that." The costs would lead to "a reduction in research grants, or an effective charge on our income" he said.

Another consequence of the shift could be a "rationing" of research papers from universities as competition for funds to publish papers intensifies. This could be harmful, Tickell said. For example, a study that finds no beneficial effect of a drug might be seen as negative results and go unpublished, he said.

Stevan Harnad, professor of electronics and computer science at Southampton University, said the government was facing an expensive bill in supporting gold open access over the green open access model.

He said UK universities and research funders had been leading the world in the movement towards "green" open access that requires researchers to self-archive their journal articles on the web, and make them free for all.

"The Finch committee's recommendations look superficially as if they are supporting open access, but in reality they are strongly biased in favour of the interests of the publishing industry over the interests of UK research," he said.

"Instead of recommending that the UK build on its historic lead in providing cost-free green open access, the committee has recommended spending a great deal of extra money — scarce research money — to pay publishers for "gold open access publishing. If the Finch committee recommendations are heeded, as David Willetts now proposes, the UK will lose both its global lead in open access and a great deal of public money — and worldwide open access will be set back at least a decade," he said.