Stu­dents win right to pho­to­copy

Delhi Univer­sity's course packs are not a copy­right vi­o­la­tion, says the court in a wide in­ter­pre­ta­tion of the law

Down to Earth - - COLUMN - LATHA JISHNU

COPY­RIGHT, SPE­CIALLY in lit­er­ary works, is not an in­evitable, divine, or nat­u­ral right that con­fers on au­thors the ab­so­lute own­er­ship of their creations. So de­creed Jus­tice Ra­jiv Sa­hai End­law of the Delhi High Court on Septem­ber 16. He ex­plained that copy­right “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”.

End­law, us­ing these ob­ser­va­tions made ear­lier by US judges, has re­in­forced the view that copy­right is not a nat­u­ral right in the judge­ment in the long awaited Delhi Univer­sity (DU) Pho­to­copy­ing case. His 94-page judge­ment lays out clearly the lines on copy­right and fair use ex­cep­tion for ed­u­ca­tional pur­poses. Read­ers may re­call the high-pro­file DU course-pack case which brought stu­dents, aca­demics and in­tel­lec­tual prop­erty (IP) ac­tivists to the court in de­fence of their right to have pho­to­copies of bits and pieces from the pre­scribed text­books as course ma­te­rial. At the cen­tre of the law­suit that caught pub­lic at­ten­tion was the cor­ner pho­to­copy­ing shop, The Ramesh­wari Pho­to­copy­ing Ser­vices, which in 2012 was sued by top aca­demic pub­lish­ers such as Ox­ford Univer­sity Press and Cam­bridge Univer­sity Press for copy­right in­fringe­ment. They claimed this prac­tice was los­ing their au­thors roy­al­ties.

Some aca­demics, how­ever, have dis­puted this claim and said the pub­lish­ers tended to keep a chunk of the profit them­selves and passed on just a pit­tance to au­thors as roy­al­ties. They formed speak (So­ci­ety for the Pro­mo­tion of Ed­u­ca­tional Ac­cess and Knowl­edge) and made it a party to the dis­pute. As did stu­dents, who set up aseak (As­so­ci­a­tion of Stu­dents for Eq­ui­table Ac­cess to Knowl­edge), and im­pleaded them­selves in the case.

The de­fen­dants con­tended that course packs come un­der the ex­cep­tions of fair use as laid out in In­dia’s Copy­right Act. There was no case of in­fringe­ment for com­mer­cial pur­poses since Ramesh­wari was pro­duc­ing the course packs un­der an agree­ment with the univer­sity. They also brought in the ar­gu­ment that few stu­dents in In­dia could af­ford the high-priced books. So even if the course packs were abol­ished it would not re­sult in any ad­di­tional rev­enues to the pub­lish­ers or au­thors since stu­dents would not be in a po­si­tion to buy the books.

In his rul­ing, End­law in­ter­preted Sec­tion 52(1)(i) of the Copy­right Act, which is at the heart of the dis­pute, in the widest pos­si­ble terms to cover pho­to­copy­ing of copy­righted works for ed­u­ca­tional pur­poses. As such, it cov­ered cre­ation of course packs by DU for its stu­dents. Sec­tion 52(1)(i) ex­empts the re­pro­duc­tion of any work in the “course of in­struc­tion” and the pub­lish­ers had con­tended that the term ex­tended only to the use of copy­righted work in lec­tures and tu­to­ri­als when the teacher is di­rectly in­ter­act­ing with the pupils. The judge re­jected this nar­row in­ter­pre­ta­tion. Since the spe­cific sec­tion states that the re­pro­duc­tion of a work by a “teacher/pupil in the course of in­struc­tion” would not con­sti­tute in­fringe­ment, the is­sue be­fore the court, ac­cord­ing to IP experts, was whether this ex­emp­tion was lim­ited to in­di­vid­ual teacher-pupil in­struc­tion or whether it could be ex­tended to an en­tire in­sti­tu­tion and its stu­dents. End­law ruled that there could be no re­stric­tion given the re­al­i­ties of In­dia’s ed­u­ca­tion sys­tem.

He also cited the Berne Con­ven­tion and trips, the IP regime or­dained by the World Trade Or­ga­ni­za­tion, to say that these pacts gave In­dia the flex­i­bil­ity to in­clude such an ex­cep­tion. This may be so. But even courts in de­vel­oped coun­tries such as Canada have ex­empted the use of course packs from cases of copy­right in­fringe­ment.

For In­dian stu­dents, the End­law judge­ment is a huge re­lief. For the rest, it is re­as­sur­ance that courts are in­ter­pret­ing IP laws in ways that re­flect our so­ci­ety’s needs.


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