Copycat Fights
Why publishers are worried after the High Court ruling on photocopying books
E very year, several publishers queue up at educational institutions to get their books made mandatory reading for students. This might soon be a thing of the past. A recent Delhi High Court judgement has laid down that publishers — owners of copyright on their books — cannot prevent educational institutions from encouraging or facilitating copying of textbooks with the help of photocopiers.
Publishers are nervous about the sweeping nature of the judgement’s reasoning. They say their main problem is not that students have been allowed to make copies as much as finding out that the copyright owner loses control over the work after the initial sale.
Manas Saikia, Managing Director at Speaking Tiger Books, and who, as the then Managing Director of Cambridge University Press ( CUP) India, had a role in initiating the litigation, says that as per the judgement, publishers no longer have the right to prevent copies being made of any publication.
On the face of it, of course, the judgement is a boon for students and academicians, as it might force publishers to bring down prices of books to take away the attraction of lowcost copies. Vikas Saddar, who publishes books under the title Knowledge Thrust, says publishers, in order to cut costs, could make books smaller and give only what is relevant for the target readership.
The Trigger
In 2012, some publishers, led by publishing wings of the Oxford University and the Cambridge University, decided to challenge in the court a practice that is common in India – photocopying of textbooks. Their target was the Delhi University, and specifically, Rameshwari Photocopy Services, which runs from the premises of Delhi School of Economics. Their
grouse was the university designing course packs with selected chapters from Oxford University Press and CUP publications, among others. The teachers, they said, were supplying books from the library to the photocopy shop owner, who was selling the copies for 40 paisa a page.
The court agreed that the books under question came within the ambit of the Copyright Act and thus the publishers had a copyright over them. Then, the arguments shifted to whether all instances of copying copyrighted material amounted to infringement of the law. Here, the focus shifted to Section 52 of the Act that deals with exceptions. So, if it could be proved that the act of photocopier owners came within the carve-outs given by Section 52, they would get a free hand. Clause (h), which was central to the argument by the defence, reads: “The reproduction of a literary, dramatic, musical or artistic 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 examination; or (iii) in answers to such questions.” The focus, thus, turned to establishing that the course packs were photocopied “in the course of instruction” by the students. And it is here that the interpretation begins to get fuzzy. The judgement first accepts, undisputedly, that if one student were to photocopy portions of a book for academic purposes, the act would be exempted under Section 52. If so, then copying of the same book by multiple students “in the course of instruction” would also be permissible. Now, if that is the case, then merely the fact that the university or its teachers encouraged it, or the photocopying service facilitated it, should not be seen as an impermissible infraction, argues the judgement. What it doesn’t consider, however, is the fact that with students being encouraged to ‘buy’ the customised course packs from the photocopier, it was effectively getting to sell these packs at a seductively cheap price, and presumably, profiting out of the same.
For students, making copies of books is allowed under copyright laws globally. However, does that protection also cover a photocopier owner (or any business for that matter), who is commercially exploiting the copyrighted material? Here, the judgement makes a debatable inference that ‘publication’ refers to the act of preparing and issuing a book, journal or piece of music, and does not refer to the act of making photocopies of an already published work and issuing the same’ [Does this not, in effect, also legitimise video or even software piracy, since the ‘pirate’ is merely making unauthorised copies of already published works?].
Vikesh Dhyani, DirectorMarketing & Innovation, LexisNexis India- South Asia, says publishers invest in commissioning and editorial teams, pay royalty to authors and spend on manufacturing, warehousing, sales, marketing and distribution. Thus, they will never be able to compete with photocopier owners on pricing. And if that is the case, as it seems to have been reported in the media, he asks, what incentive is there for writers to write and publishers to publish original works when they cannot protect them from commercial photocopying or piracy?
In the alternative, the judgement brings in two other scenarios. First, the judge hearkens back to another age when he was a student and photocopying was more timeconsuming and expensive. He says in those days students would copy textbooks with ink onto paper. Photocopying has merely made that process more efficient, he says, going on to cite judgements from the US that have held that photocopying does not amount to printing or reprinting in the dictionary sense of the term. Also, he asks, what about a student who photographs pages from a textbook using the camera of his phone (and which can be easily distributed on WhatsApp messenger)?
Enforcing copyright on academic textbooks is close to impossible. After all, who can sue a school kid, or for that matter, a photocopier, and expect to hold a moral high ground? At the same time, nobody stands to gain if books are copied with impunity, and now with the backing of the courts. The judgement in question was in the context of expensive foreign textbooks used in higher education. But there is nothing in the decree that cannot be applied to a local publisher. Take, for example, a publisher of books on taxation that have to be updated every year. Rather than buy a new book (as students are wont to), they can now legitimately make a copy of the incremental pages. Will that act as a disincentive to meticulous updates?
As an example, Speaking Tiger’s Saikia points to the Delhi University's North campus. Where there used to be about 16 book stores, he says, now there are just two. The number of photocopiers have multiplied, though. ~