In a momentous development, the Government of India refused to re-register IRRO, a collecting society formed for the purpose of licensing books and other literary works.
An official at the Ministry of Human Resource Development (MHRD) informed SpicyIP that the governmental order refusing registration was issued on the 5th of December for various reasons including the failure by IRRO to comply with the latest copyright rules mandating a general body meeting and election of members of governing council etc. Some months ago, the IRRO (Indian Reprographic Rights Organisation) had challenged the constitutionality of the copyright rules.
This news of IRRO failing to procure a registration assumes importance in the wake of a controversial copyright law-suit filed by leading international publishers such as OUP, CUP and Taylor & Francis against Delhi University (DU) and its photocopier, Rameshwari. The suit seeks to prevent all educational photocopying, with the plaintiff’s arguing that for such photocopying to remain legal, permission must be sought from the copyright owners and/or IRRO.
Delhi University argues that the allegedly infringing activities (photocopying extracts/select samples from books for the purpose of creating course packs and distributing this to students) is well within the ambit of the exception embodied in 52(1)(i) of the Indian copyright act, which permits any reproduction during the course of educational instruction. For more background, see this editorial in the Hindu:
“Late last year, leading publishing houses including Oxford University Press and Cambridge University Press brought a copyright action against Delhi University and a tiny photocopy shop licensed by it, seeking to restrain them from supplying educational course packs to students. This lawsuit sent shock waves across the academic community, leading more than 300 authors and academics including famed Nobel laureate Professor Amartya Sen to protest this copyright aggression in an open letter to publishers. For those not familiar with the term, course packs are compilations of limited excerpts from copyrighted books, put together painstakingly by faculty members in accordance with a carefully designed syllabus and teaching plan.”
Issues with the IRRO
Even as the suit remains pending, IRRO has been issuing misleading statements and putting pressure on Universities and other institutions to take licenses. The plaintiffs have also repeatedly touted IRRO as a feasible option to this legal controversy arguing that a license from IRRO will cure all copyright ills. Defendants however reject the IRRO option on several grounds, including:
First, taking a licence for course packs amounts to paying for a right that does not exist. It bears reiteration that photocopying for the purpose of educational instruction is a legal exception under copyright law and one is not required to seek the permission of the copyright owner and/or pay any licence fees.
Second, the IRRO and publishers are likely to offer a paltry licensing fee at the start. Once their foot is in the door, there is no stopping them from rapidly escalating licensing fees year after year. Canadian universities bore the brunt of this copyright greed around a year or so ago and refused to renew their licenses.
Third, the IRRO does not hold the rights to all published works. If Universities are to track down and enter into licensing deals with every copyright owner, this would lead to excessive delays in the preparation of course packs.
Apart from all of the above, it is critical to note that the IRRO license is absolutely ludicrous in that it permits only a 10% reproduction of a single work. If it goes beyond 10%, universities need to go back to copyright authors. 10% copying is seen as acceptable as “fair use” in even an excessively pro market jurisdiction such as the US (see the Cambridge vs Becker that we blogged about here). Further, it bears noting that the majority of the photocopying instances alleged by the plaint amounts to no more than 10% of a full book.
It bears reiteration that the IRRO does not hold licensing rights to all published works. We queried the IRRO on this count, and specifically asked:
“Unfortunately, neither your letters to various Universities nor your website contains the complete list of your members and more importantly, the list of works which you are authorized to license. Therefore, we request you kindly provide an up-to-date copy of the ‘Registry of Owners’, as well as a complete list of works authorized by owners. We request you to also put this up on your website in the interests of transparency and as per the norms of the RTI Act.”
A copy of our letter to them dated 7th May 2013 is here. Despite the efflux of more than 6 months, we are yet to receive a response! Leading us to conclude that perhaps the IRRO hates transparency and wishes its repertoire and its list of members to be shielded from the public eye.
International Pushback Against IRRO equivalents
The pushback against IRRO style licenses has begun worldwide. Countries with progressive copyright regimes that provide adequate safeguards for educational use are now beginning to realise that when the law itself provides this space for educational copying, why take licenses? Particularly when IRRO equivalents have been jacking up their prices year after year. We’d reflected on the Canadian and the New Zealand experience here. Prof Ariel Katz maintains a list of Canadian Universities that have now refused to cow down to these egregious licenses. And now, more recently in Israel, a court endorsed agreement has been reached between Hebrew University and two publishers, wherein 20% of any book can be copied freely and would count as “fair use”.
Apart from the legal issues, this law suit raises serious policy issues around the cost and accessibility of educational titles. As we showed in an empirical study some time ago, law (and social science titles) are often not accessible and affordable in India. Publishers routinely dump old outdated editions into India.
Judge, Parties and Counsel?
The matter is being heard by Justice Rajiv Sahai Endlaw of the Delhi high Court, and the various parties to this law suit are as under:
Plaintiff: OUP, CUP and Taylor and Francis: Represented by Sai Krishna and Associates (arguments by Sai Krishna)
1. Rameshwari Photocopying (represented by Saurabh Seth)
2. Delhi University (represented by Saurabh Banerjee who is briefing senior counsel Gopal Subramanium).
3. SPEAK (Society for the Promotion of Equitable Access to Education), represented by Swathi Sukumar briefing senior counsel, Neeraj Kishen Kaul. This Society was formed by a group of academics to contest the various assertions of publishers in this law suit and to advocate for a meaningful interpretation of the educational exception in the copyright act.
4. ASEAK (Association of Students for Equitable Access to Education), represented by Jawahar Raja (arguing himself) and Rajat. This society consists of various students who’ve come together to protest this egregious law suit that threatens the future of access to education.
The next date of hearing is tomorrow. The law suit has been covered extensively in the popular press including Al Jazeera, Times of India, AFP, Hindu etc. Along with Lawrence Liang, I have two elaborate pieces in Kafila, where we’ve countered many of the arguments/rhetoric by publishers. See here (Part I) and here (Part II)
IP, Access and Public Interest
DU’s counsel, Gopal Subramanium is expected to continue his arguments tomorrow. In the last hearing, he asked that the court adopt the progressive view of copyright propounded by the Canadian Supreme Court in the famous CCH case, wherein they held that copyright law does not merely embody a set of rights in favour of the copyright owner, but also contains certain entitlements in favour of the public. Seen this way, the copyright defences are not mere defences to be interpreted restrictively, but are “user rights” to be interpreted meaningfully so as to maintain a robust public domain. In the words of the court:
“…the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”
However, Mr Subramanium did not stop here, but went further and advanced a rather maverick proposition. He argued that the copyright framework that we’ve followed so far (i.e. first labelling something as an infringement and then seeing if one or more of the “defences” articulated in section 52 apply to it) needs to be replaced with a more evolved framework where courts need to desist from calling the act of reproduction an “infringement” in the first place. Rather, he argued that since the act of photocopying for an educational purpose was a user entitlement that fell within the’ “protected” domain of copyright norms, the notion of infringement itself does not arise at all in the first place!
One waits with bated breath to see which way the court will rule. This case is to education what Novartis was to health. To that extent, it will rate as one of the most significant IP decisions to have come out of India.
If the Novartis ruling and logic is anything to go by, one can be certain that the public interest and access issue will form a significant part of this ruling. It also helps that the section 52(1)(i) exception is widely worded, encompassing a wide range of educational activities including the photocopying acts pleaded in this law suit.
Once Mr Subramanium finishes with his argument, Jawahar Raja will argue for ASEAK (student association). Sai Krishna (counsel for plaintiff) will then have an opportunity to rebut the various arguments made by the defence counsels. After which, the arguments close and the matter is reserved for judgment. It is expected that arguments will close by end of the year and one can expect a decision in the first half of next year.