On the right to photocopy
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?
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.
Source | The Hindu | 26 September 2016
Regards
Pralhad Jadhav
Senior Manager @ Library
Khaitan & Co
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