As many of you may have heard, the Delhi High Court just handed down a major IP verdict in the DU photocopy case. In a 94 page decision, the court (Justice Rajiv Sahai Endlaw) dismissed the suit of the plaintiffs (CUP, OUP and other leading academic publishers) and held that the educational exception under section 52(1)(i) of the copyright act is broad enough to cover the acts of photocopying and the creation of course packs by Delhi University (DU) for their students.
For background to this case, see our posts here and here. Other posts with the tag DU can be found here.
DU was represented by Saurabh Banerjee, led by senior counsel, Gopal Subramanium. The photocopy shop was represented by Saurabh Seth, led by Rajesh Yadav. As some of you know, a group of us academics (drawn from the law and social sciences) intervened in this DU copyright matter and presented arguments to the court. We formed an association called SPEAK (Society for the Promotion of Educational Access and Knowledge) for this purpose. Our counsel was Swathi Sukumar, led by the wonderful Neeraj Kishen Kaul, a leading senior counsel. Similarly a number of students had formed an association called ASEAK and their counsel was Jawahar Raja.
DU’s counsel, the truly gifted Gopal Subramanium (one of India’s leading senior counsels or silks) who ran a rather maverick argument stating that the earlier framework where one qualified an act as an infringement and only then went into the “defences” was wrong and in cases such as this, there is no infringement at all in the first place. From my limited understanding of the order at this point, I believe the judge did incorporate this insight into his decision.
On a broader note, it seems like the court was pleased to accept many of the arguments that we had advanced. Here are the key highlights based on a quick understanding of the order (this is my version and only I am to be held responsible if there are any errors).
- The judge (Justice Endlaw: god bless his soul!) dismissed the publishers’ law suit as a whole. Noting that there was no cause of action at all. Since there was no actionable infringement in this case. All the alleged copying is covered under the broad educational exception under section 52(1)(i) of the copyright act. In short, the judge noted that there was no need for trial at all in this matter, since there was no actionable infringement.
- The decision stands at a whooping 94 pages!
- The judge explicitly stated that the educational exception under section 52(1) (i) should be construed widely and clearly covers the present set of acts engaged in by DU (photocopying excerpts of books etc and creating course packs). Plaintiffs’ argument that it should cover only photocopying in the classroom is incorrect. The exception should cover all kinds of educational copying including copying for the purpose of preparatory work towards a class etc.
- Copyright is not a “divine” right! The judge actually said this! I repeat: God bless his soul!
- IRRO doesn’t even come into play since educational exception covers the alleged acts. And no need to pay IRRO. So out goes the IRRO business model strategy, which I believe is why this suit was brought in the first place at all.
- If DU can photocopy, so can its agents (Rameshwari photocopiers) or any photocopier for that matter, whether inside or outside the University.
This decision will prove one of the biggest landmarks in IP jurisprudence the world over. And clearly spells out that private rights will have to yield to larger social goals which have to be interpreted widely. Much like the Supreme Court decision in the Novartis case, this decision too makes it amply clear that while India will be guided by foreign precedent, it will carve out its own IP jurisprudence and interpret the law in a way that suits its own societal requirements.
On a related note, I’m really happy to see such a progressive decision come out of the Delhi High Court (which, when compared to the Mumbai high court) has, of late, been churning out atrociously one sided and skewed IP decisions.
A great number of players came together in a wonderful collaboration to make this victory happen. Students, lawyers, academic, activists and many other well wishers. Well done to all of them! And heartfelt thanks for preserving this much needed academic space when all other spaces have been shrinking thanks to an ever expansive notion of private IP rights. (the latest being a hugely problematic ruling from the EU making even hyperlinking illegal!)
More when we get a copy of the order on the court website. Stay tuned!
A horrible decision! Indian judges need to get down from their high pedestal and stop mocking laws but statements like “Copyright is not a divine right” – It is certainly a legal right. And what good this “right” is if agents of DU too can photocopy the books? This country has no respect for IPR. Some arbitrary “social” goal has to be upheld. Then why waste time in legislations? Just give the lordships in black robes the right to interpret our social and moral goals. Indian courts need a complete overhaul, especially this “I am the law” approach of Indian courts and judges.
I am pretty sure that the judge didn’t pull out the judgement from his magical bag of judicial activism, but rather gave a well thought out decision. The judgement is available, and you could point out how the judge deviated from legislation. Especially when the legislation itself provides the right to copy for educational institutions. Is it the agency relationship you are averse to?
The decision is here:
http://lobis.nic.in/ddir/dhc/RSE/judgement/16-09-2016/RSE16092016S24392012.pdf
Superb Shamnad Sir. and Congratulations to your entaire team.
Garima
Thanks Garima
I feel in a country like India, this decision would be hailed as a boon. Instead of criticing the decision, it should be noted that the decision is limited for Education purposes only. So IP warriors need not worry, you already have PDF files of almost all the books for free, the difference now could be. These books may get printed too and available at cheaper rates openly. All publishers in India always discount the fact that somewhere some place there copyright is violated now the foreigners will follow the suit.
This post lacks the articulate analysis expected of a big blog like spicy ip since it is being visited by High Court Judges for an insightful summary. No doubt this post patronizes the good advocates that appeared (publicity is all good), but what were the legal points, are nowhere to be found.
I am sorry, it may be a ‘major’ victory for students….for the publishing community it is a great setback. Looks more like a thieves charter. That particular photo-copy stall does not limit itself to few pages or chapters….but entire books, cover to cover. Hardly that can be said to be “fair use”/”fair dealing”.
All photo-copy machines in Europe have a notice how much you could or should copy.
In this case, Universal I remember used to come out with an excellent compendium of question-answer books tailor-made for Delhi University’s Campus Law Centre. Due to rampant copying — lot of it at Rameshwari Photo-copy shop — they had to discontinue it as it was just not commercially viable.
Let us then abolish copyright…and get all our info’ from Wikipedia. As they say: the best things in life are free. Is that not so??
And for movies, songs and TV, do with what we have got till date — since not much will be produced thereafter without copyright.
And while at it, we could abolish pernicious and exploitative patents as well…..and go back to the stone age.
Case is surprise to the copyrighted authors & Publishers. I personally feel that everyone should have access to the education and its means, but not at the cost of authors. this is government responsibility to grant access to education through legitimate means, through govt resources. the judgement likely to have far reaching impact on the copyrights of the authors.
Def in the matter pleaded u/s 52 1(a), Section 52 zb & Section 76, which seems to be not tenable in law as:
Section 52 1(a) speaks that photocopy for research purpose shall not be deemed as infringement, so should this be deemed as fair dealing to use photocopy, rather imparting instruction is generally deemed as verbal communication to students for academic courses. However scholar is already exempted under the act.
Section 52 zb exempt the person with disability or specially abled students and not to others, should the def not have complied with section 31B. law permits the person, group or NGO to do that for specially abled students, therefore if def wanted to impress upon section 52 zb,
Section 76 speaks about good faith, there seems to be no reason for good faith in this matter, being def relates to intellectual class.
Economic status of the people can not be a reason to violate others rights, however from the social points of view this is plausible judgement, but we are in the world of globalization now.
Firstly,
I Congratulate Prof. Basheer and the whole Team of various experts, who were committed for this legal battle and also supported the cause “Right to access to Education”, especially in a populous country like India having large number of students.
Now, coming to the merits of the judgment I feel we may feel free either appreciate or may criticize it, as law by nature gives ample room of being dynamic and evolutionary both the the same time, so there always room for arguments both side.
But, this judgments also highlights a several other issues which we need to fix in coming days in the interest of the students and education both in India.
For example ;
1. We must ensure that texts and all conventional and modern reading materials are cost effective and easily accessible to all students.
2. IPR’s underlying objective is to encourage the skill development by protecting the interests of the innovators, creators on one hand but at the same time, it cant do it by jeopardizing the interest of the larger community in society. IPR must need to regulate interest by adopting a balancing act tactics between both the stakeholders.
3. We also need to prevent, certain malpractices related to the xeroxing facilities which exists presently and must streamline such facilities by legalizing it and by adopting middle path for protecting interest of all the publishers’ community and xerox lobby and students.
4. We must remember that winning this case puts a higher obligation on us as a nation to protect and uphold the fundamental jurisprudence of IPR and at the same time to evolve better PIR regulations having more practice dimension for our societal interest.
Looking forward for more evolution in IPR regime in India!
regards,
Parna Mukherjee