Photocopy of books for course packs is fair use; publishers call it unfair
Published: Oct 19, 2016
THE usage of course packs is nothing new. Course packs are nothing but reading from different authors excerpted through photocopying and presented to students. The Faculty of Law, Delhi University has been using this practice since decades. Similar practice have also been prevalent in national law schools. The experience of these educational institutions prove that this practice has never discouraged students from buying or referring to the original book for extensive study. On the contrary, such course packs only help in igniting interest and curiosity among students to explore the subject in a more depth and offer them exposure to different authors.
In the context of Copyright laws, fair dealing with any work (except computer programmes) is allowed in India for the purposes of - (i) private or personal use, including research (ii) criticism or review and (iii) reporting of current events and current affairs, including the reporting of a lecture delivered in public. Although the term 'fair dealing' or 'fair use' has not been defined expressly in the Copyright Act, 1957 yet there are numerous judicial pronouncements discussing this term.
The Delhi High Court had recently rendered a judgment (University Of Oxford Vs Rameshwari Photocopy Services= 2016-TIOLCORP-58-HC-DEL-IPR) which is being considered by many as landmark in the field of Intellectual property rights. The Court, while analyzing the copyright infringement case, observed that although the question relates to copyright law but the same has to be judged in the light of the right to access to knowledge as well as the right to education which finds mention in the Constitution not only as a Fundamental right but also as a Directive Principle of State Policy. While the Student groups and education community is rejoicing the decision there is nothing much that the publishers can do than to mull over the following pronunciation by Justice Rajiv Sahai Endlaw:
"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."
Facts in brief
Five Stalwarts of the publishing industry collectively filed a suit for permanent injunction and damages. These publishing houses included names such as i) Oxford University Press, ii) Cambridge University Press, United Kingdom (UK), iii) Cambridge University Press India Pvt. Ltd., iv) Taylor & Francis Group, U.K. and, v) Taylor & Francis Books India Pvt. Ltd., (hereinafter referred to as plaintiffs). Defendant no. 1 was Rameshwari Photocopy Service, which was carrying on business from Delhi School of Economic (DSE), and Defendant no. 2 was Delhi University itself. The suit was instituted for the relief of permanent injunction restraining the two defendants from infringing the copyright of the plaintiffs in their publications by photocopying, reproduction and distribution of copies of plaintiffs' publications on a large scale and circulating the same. It was also alleged that the defendants indulged in sale of unauthorized compilations of substantial extracts from the plaintiffs' publications by compiling them into course packs for sale.
The practice which was normally being followed by the students was that in order to avoid buying lengthy and costly books they used to get the relevant portion of the books photocopied for use as course packs. It was the case of the plaintiffs that the said course packs sold by the defendant No.1 are based on syllabi issued by the defendant No.2 University for its students and that the faculty teaching at the defendant No.2 University was directly encouraging and recommending the students to purchase these course packs instead of legitimate copies of plaintiffs' publications. And in this entire chain of events the libraries of defendant No.2 University are issuing books published by the plaintiffs stocked in the said libraries to the defendant No.1 for photocopying to prepare the said course packs.
The contention of the plaintiff was that the publishers invest in publishing the books and if the copyright of the publishers is not protected, it will sound a death knell for the publication business. It was submitted that what the plaintiffs are wanting is only a paltry licence fee and on obtaining such licence, the course packs can be made in terms of the said licence. These licences would be subject to scrutiny of the Copyright Board under Section 33A of the Act. The plaintiff maintained that unless the rights of the plaintiffs are protected, educational publications would become an unfeasible business.
The defendants argued that the copyright law has always exempted reproduction for the purpose of education, research and teaching assuming it to be an intrinsic right of academicians. Denying any act of infringement of copyright, the defendants alternatively pleaded that the activities carried on by them amount to fair use of the works within the meaning of Sections 52(1) (a) & (h) of the Copyright Act, 1957. It was also argued that the students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein and cannot afford to buy 35 to 40 books, portions of which are prescribed in the syllabi and / or suggested for reading. Therefore, to ease the financial burden on students, majority of the titles prescribed in the syllabi are housed in the library of the defendant No.2 University which provides such expensive books for reference of students, but owing to only limited copies of such books being available with the library, they are not enough to cater to the needs of all the students. Accordingly, the services of the defendant No.1 are availed by the students and faculty to photocopy the relevant extracts from the books, articles and journals at the nominal / prescribed rate for use for educational purpose and reference only.
Analysis of Court's Verdict
The Court evaluated the responses of the parties involved in the light of relevant provisions of the Act. The Court observed that Section 52 lists the acts which do not constitute infringement. Thus, once the acts listed in Section 52 are declared as not constituting infringement of copyright it follows that the exclusive right to do the acts mentioned in Section 52 has not been included by the legislature in the definition in Section 14. Once that is so, the doing of such act cannot be infringement under Section 51. It was observed that the various clauses under Section 52(1) deal with different factual situations. And once the legislature has in Clauses (h), (i), (j) under Section 52(1) provided specifically for the field of education/instruction, the scope thereof cannot be expanded or restricted by applying the parameters of the omnibus or general Clause (a).
It was clarified that for the action of reproduction of such work by the defendant no. 2 University to not constitute infringement of copyright in the said works, the same has to be "by a teacher or a pupil in the course of instruction". But the said expression cannot be interpreted to mean an individual teacher and an individual pupil. The phrase 'purposes of teaching, research or scholarship' has been defined as including "purposes of instructional activity at all levels in educational institutions, including Schools, Colleges, Universities and tutorial institutions" and "purposes of all other types of organized educational activity". It cannot be said that the legislature intended to exclude teacher and pupil in an educational institution as defendant No.2 University is, from ambit thereof. Thus, merely because imparting of education by teachers today is as part of an institution as the defendant No.2 University and it is the defendant No.2 University which on behalf of its teachers is reproducing any copyrighted work by making photocopies thereof, would not mean that Section 52(1) (i) would not be applicable. The words "in the course of instruction", have to include within their ambit 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 and so that the teachers can reproduce the work as part of the question and the pupils can answer the questions by reproducing the work, in an examination. Resultantly, reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil as prescribed in the syllabus during the academic year would be within the meaning of Section 52 (1)(i) of the Act.
The court also visited the matter with another angle of "fair use". It was noted that even though Section 52(1)(a) have been held to be not applicable to the action of the defendant no.2 University of making photocopies of copyrighted works but the issuance by the defendant no.2 University of the books purchased by it and kept in its library to the students and reproduction thereof by the students for the purposes of their private or personal use, whether by way of photocopying or by way of copying the same by way of hand would indeed make the action of the student a fair dealing therewith and not constitute infringement of copyright. Also, the action of action of the defendant no.2 University, guided by the reason of limited number of each book available in its library, the limited number of days of the academic session, large number of students requiring the said book, the fear of the costly precious books being damaged on being subjected to repeated photocopying, cannot be said to be infringement, particularly when the result/effect of both actions is the same.
Yet another aspect pointed out by the Court was that the defendant no. 1 did not indulge in photocopying the entire books, binding the same, offering or displaying the same for sale to whosoever may be desirous of purchasing the same. Rather it was only preparing course packs i.e. compilations of photocopied portions of different books prescribed by the defendant No.2 University. That, by no stretch of imagination, can make the defendant no.1 as competitor of the plaintiffs, which is one of the most important aspects to be investigated in a case for infringement of copyright.
Thus the acts of defendants were deemed to be bonafide and in the interest of students at large.
Conclusion
The argument of the publishers that their revenue would be adversely affected because of this judgment is fallacious because the judgment does not allow photocopying of complete books and handing it over to the students. The limited issue before the judge was whether the copying of excerpts from books for the purpose of creating and disseminating course packs is legal. The judge ruled that the law was clear on this point and it exempted course pack copying. The decision of the High Court rightfully challenges the hegemony of the publishers and this is not going down well with the publishers who represent the power IP community. And anyways, the publishers do not target students as their customers else, they would have priced the books more competitively. No wonder several authors signed a joint petition who supported the course pack practice as a legitimate exception to the copyright regime.
Had the license arrangement offered by the publishers been accepted, this could have turned out to be dangerous. While publishers would have charged minimum license fee to begin with but the charges would have certainly escalated in no time. The Canadian experience stands testimony to this practice where exorbitant license fee finally forced universities to walk out of license agreements. Reversing this Delhi High Court verdict will result in imposing an EDUCATION CESS on our students community who cannot afford these overly priced books. We must understand that standards of IP protection differ from country to country depending on the social and economic conditions and the entire world cannot be painted with a common brush. The Indian pedagogical system is already severely ailing and allowing the overarching copyright regime would sound death knell for the students learning.
(Manmeet Kaur: The author is Assistant Legal Editor, TIOLcorplaws)