Delhi High Court’s Ruling Against Publishers is a Triumph For Knowledge
The court conclusively stated that the reproduction of any work by a teacher or a pupil in the course of instruction would not constitute infringement.
In a landmark judgment, Justice Rajiv Sahai Endlaw of the Delhi
high court has held that reproducing books and distributing copies thereof for
the purpose of education is not copyright infringement. The ruling legitimises the practice of
photocopying prevalent in universities and other spaces of learning. The
question of whether such photocopying without the permission of the
copyright holders was legal arose in 2013. A group of five prominent publishers had
filed a suit against the University of Delhi and its photocopying service
provider, alleging infringement of their copyrighted titles. Specifically, they
argued that the infringement arose from widely used ‘course packs’ which were
photocopies of collated passages and chapters from various titles and,
sometimes included entire books as well. At the heart of the matter lay the
interests of students and their rights and ability to access education,
academics invested in the importance of readership and the free flow of
knowledge and the publishers who claimed that photocopies hurt their sales and
that they ought to benefit from this practice, monetarily. The publishers
wanted the court to restrain the defendants from committing ‘institutionalised
infringement’ and make them apply for bouquet licenses to carry on with the practice of
photocopying.
The suit caused a huge furore. Soon, students and academics joined the fray
to mount a stronger defence against the publishers. Notably, Amartya Sen wrote
a letter urging the publishers to reconsider the action. Thirty three academics
delivered a joint statement against the suit and intervened as the Society for Promoting Educational Access and
Knowledge, or SPEAK, while students put forth their interests
through the Association of Students for Equitable Access
to Knowledge, or ASEAK.
Pending the adjudication of the matter, the
court proceeded to temporarily injunct the preparation of such course packs.
The copyright law rests on a delicate balance
between the interests of copyright owners (authors, publishers, creators,
artists) and copyright users (those who use and enjoy the works). The law is
designed to encourage the creation of works and simultaneously, to permit
the users to enjoy the works and promote arts and knowledge.
In the Indian Copyright Act, 1957, section 52 lists a number of
scenarios which do not constitute infringement, including a fair dealing
provision. In other words, the section is the bulwark for public enjoyment of
copyrighted work – it allows largely purposive acts, including fair
dealing, tied to bona fide use and copying in research, educational
institutions, libraries, review, reportage, criticism, incidental copying and a
greater degree of use for the benefit of disabled people.
The act of photocopying, the court ruled, is
reproduction of the work and constitutes infringement, unless it is listed
under section 52. It found that the acts of photocopying, preparing course
packs and their distribution fell within the ambit of section 52(1)(i), which
states that “the reproduction of any work – by a teacher or a pupil in the
course of instruction”, would not constitute infringement. Interpreting the
clause in an expansive manner, the court deemed that the application of the
clause is not limited to an individual teacher-student relationship,
but is applicable to educational institutions and organisations such as
DU and thus, the law must reflect the realities of our burgeoning
educational system.
The publishers contended that use of the copyrighted
material should occur only during the course of the instruction, that is, in
classroom lectures. The court disagreed and held that the course
of instruction “…include(s) 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 for which the pupil
is under the tutelage of the teacher and that 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 by holding tests from
time to time or clarifying doubts of students, that the pupil stands instructed
in what he/she has approached the teacher to learn.”
Whereas the court
liberally interpreted the provision on educational institutions, it also
rigidly laid out the contours of the copyright law, pivotal in enabling public
enjoyment of works. It held that copyright is a statutory right and not a
natural or a common law right. Thus, the nature of copyright is limited and is
subject to limitations and exceptions set in the law. It
further added that “Copyright, specially in literary works, is thus not an
inevitable, divine, or natural right that confers on authors the absolute
ownership of their creations. It is designed rather to stimulate activity and
progress in the arts for the intellectual enrichment of the public. Copyright
is intended to increase and not to impede the harvest of knowledge. It is
intended to motivate the creative activity of authors and inventors in order to
benefit the public.”
On the issue of charging a nominal fee (40 paise
per page), it was held that the said rates could not cumulatively amount to be
competing with the sales price of the books. They were reasonable operational
costs and only if the reproduction
charges were similar to the books, could they have been said to be functioning
commercially. Furthermore, the court observed that in an age of
technological advancement, any act of copying for the purpose of education
(within the ambit of section 52) – whether by pen and paper, or photocopying
machines, or by students clicking pictures of textbooks on their cellphones
should be permissible.
Justice Endlaw also
pointed out that this flexing of user rights is in conformity with several
international treaties. India is a signatory to the TRIPS Agreement and the Berne
Convention, which allows India to decide “as to what extent
utilisation of copyrighted works for teaching purpose is permitted..(provided)
that the same is to the extent justified by the purpose” and does not
“unreasonably prejudice the legitimate rights of the author.”
This fresh jurisprudence is
a vindication of the freedom to exchange ideas and knowledge, which is
crucial to fostering an excellent learning space. This will also ensure that
eager students and teachers in developing countries freely share latest
research and publications, without the slightest hesitation of operating in a
grey area. Justice Endlaw’s judgment has aptly restored the
public-serving face of copyright law, which is a huge triumph for access to
knowledge.
Regards
Pralhad Jadhav
Senior Manager @ Library
Khaitan & Co
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