Reading it wrong
Ruling in DU copyright case reflects the inability of Indian courts to integrate legal outcomes with robust business models.
The recent verdict of the Delhi High Court in
Chancellor, University of Oxford v. Rameshwari Photocopy Services has spurred
extreme conclusions. Advocates of open access have considered it as vesting
limitless authority to copy for all educational purposes while the publishing
world laments its potential to destroy the creation of content. Both are wrong,
because observations in this verdict that go beyond resolution of the dispute
at hand are legally ineffectual and must be set aside on appeal.
At issue before the court was the
photocopying of course packs by a Delhi University-authorised photocopier
service without obtaining licences from academic publishers, with the extent of
copying ranging from five per cent to 33.25 per cent of the contents of a book
as per the publishers’ submissions. Copying beyond one-third of the text was
thus not in dispute before the court and therefore, it would be fallacious for
any free access advocate to contend that this verdict supports copying of
entire books. Second, the photocopier service, though operating outside the library
premises of the Delhi University, had a contractual relationship with the
university to render course packs for its students and could be considered an
“agent” of the university. Thus, acts by other photocopier services which have
no such authorisation from formal educational institutions are completely
outside the purview of this litigation, and will have to be independently
tested.
Even with this limited construction, a third
of a book is substantial, and can end up wholly devaluing its market value if
freely copied. Justice Endlaw supports this by expansively interpreting the
fair use provision that authorises copying by a teacher or pupil in the course
of instruction. To him, “instruction” is not confined to educational
institutions or establishments but would also cover non-institutionalised
learning. Moreover, “in the course of instruction” would mean not only
classroom lectures but also the “entire academic season for which the pupil is
under the tutelage of the teacher”, including “the prescription of syllabus,
the preparation of which both the teacher and the pupil are required to do
before the lecture and the studies which the pupils are to do post lecture.” As
Prashant Reddy and Sumathi Chandrashekharan demonstrate in their forthcoming
work on Indian intellectual property law, the compulsory licensing provisions
in the Indian Copyright Act were a historical compromise struck precisely
because of India’s inability, in the light of her international copyright
obligations, to resort to fair use to authorise unbridled reproduction of
expensive books in the guise of educational use. These licensing provisions
still remain in the statute, and an expansive construction of the fair use
provision would leave them redundant, a cardinal violation of the principle
of statutory interpretation that resists rendering any statutory provision
otiose.
Apart from this interpretive concern, the
verdict suffers from a deeper problem — a serious lack of vision. With no line
drawing in sight, the verdict takes away all incentive on the part of academic
publishers to put in the effort for professional editing and committed
marketing. Even if one were to assume that academic authors are less interested
in royalties from their writings, no academic author or publisher would like to
see some cash rich venture-capital funded ed-tech start-up rampantly copying
their work and cashing in on the licence-free pass granted by the Delhi HC.
Unfortunately, the court in its mission to enhance access to subsidised
students did not consider this logical consequence of its view on
“instruction”. Anyone can be a teacher, and anyone a pupil, in the emerging
world of smartphone-enabled “instruction”. When these new non-institutionalised
actors in the education space start copying books without taking a licence,
publishers will have no choice but to shut shop.
The court should instead have exploited the
textual ambiguity of the fair use provision to signal the creation of a
different access model, one not built on the present unimaginative, and
convenient, idea of unfettered photocopying and unremunerated access. First, it
could have signalled the growth of a library culture in India by mandating that
beyond a certain quantitative limit, books can only be accessed through
dedicated e-kiosks that are digitally locked and housed within an
institutional, non-commercial, library. This would have incentivised our
universities to create a vibrant and modern library culture for the sake of
enhancing access to their students, rather than entering into unsavory
arrangements with photocopiers, as well as help us in better tracking the
consumption of academic content by students. Second, the court could have held
that in the event of publishers making available digital versions of their
books for reasonable prices, only reproduction below a certain quantitative
limit would amount to “fair use”. By holding so, the court could have signalled
the academic publishing industry to go the digital way, spend less on paper,
and adopt an eco-friendly business model.
As a final takeaway, decisions such as this
show the inability of Indian courts to integrate legal outcomes and robust
business models. Unlike US courts that have used the transformative character
exception in fair use doctrine to signal access models such as Google Books and Images, Indian courts confine themselves to
binaries such as exclusive property or no property rights whatsoever. While
Justice Endlaw rightly remarks that copyright is no divine right, divinity was
never a pre-condition for creatively fashioned legal protection.
Source | Indian Express | 14 October
2016
Regards
Pralhad Jadhav
Senior Manager @ Library
Khaitan & Co
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