Copyright

Delhi HC: Guiding the way in copyright infringement cases


We have time and again, reported on various instances of copyright infringement. However, for only the second time, at least to this blogger’s mind, the Delhi High Court has gone ahead and taken the softer approach towards a possible infringers in view of how this may affect the academic performance of students!

In Syndicate of the Press of the University of Cambridge v. BD Bhandari (CS (OS) 1274/2004 of the Delhi High Court) pronounced in mid- January this year, the Court was faced with the allegations of copyright infringement of grammar exercises from the publication ‘Advance English Grammar by Martin Hewings’ by popular publishers MBD. The Defendants, MBD, known to most students (including this very grateful blogger) as a study guide for several subjects, in this particular case had used Martin Hewing’s publication as a part of their English guide to help students better attempt grammar exercises in examinations. The defendant’s through their written statement refuted the claim of copyright infringement by pointing out the following differences:

– The introduction to each exercise in the book was different.

– The illustrations available in each exercise of the Plaintiff’s work were absent in the MBD Publication.

– The answers in the Defendant’s publication were placed immediately after the question posed and there was only once answer available unlike the Plaintiff’s work.

– Therefore, the Defendants claimed that being a guide book they had to publish answers to questions posed, which happened to be from the Plaintiff’s publication.

However, as the Court also noted, the striking point in the case arises in terms of the pricing of the Defendant’s books. The Defendant publication cost Rs. 600, over 6 times that of the Plaintiff!!

Strangely enough, the Judge in this present case (Justice Rajiv Sahai Endlaw of the Delhi High Court), despite admitting that ordinarily he would have been inclined to decree the suit in favour of the Plaintiffs, in this case was reluctant to do so keeping in mind the “effect it would have on students” since an injunction in this case “would have had the effect of severely affecting the very existence of such guide books, kunjies and dukkies”!

The Learned Judge then goes on to expound a rationale for not decreeing such behaviour as infringing for the following reasons:

– The Court, retracing the same route it had taken in Oxford v. Narendra Publishing (that our readers will remember we posted about here) stated that requirement to prove originality in a work had undergone a “paradigm shift” from the sweat of the brow doctrine to the modicum of creativity standard after EBC v. DB Modak. Opining that the Plaintiff’s grammar exercises were only “sentences, sometimes with blanks”, the Court held the same does not possess the requisite standard of originality to constitute a copyright.

– Also looking into Section 52 (1) (h), the Court stated that the reproduction of literary work as part of questions to be answered in an examination or in answers to such question shall not constitute infringement of copyright. In the Hon’ble Judges opinion, this would mean that once the Plaintiff’s work was prescribed by a University this would automatically mean that they would fall within the ambit of Section 52 (1) (h) and therefore in the public domain.

– They examined the questions of fair dealing and transformative use and answered in a fashion similar to Oxford. The Court stated that while the questions and answers in the Grammar section were from the Plaintiff’s material, the purpose behind the use of the same and the form in which they were presented was different.

– The purpose behind the publication of the books, the market and the readers that the two publications targeted were completely different. While the Plaintiff’s publication was a textbook and prescribed in the schools/universities to enable students would master the said text, the Defendant’s publications were used to study for examinations at a short notice and used by students “who are not the top students in each class/ course or students with high intellect.”

– The text in the two publications were found to be different by the Court since the defendants in their book, have appended Punjabi translations/meanings of different words as well as a summary in Hindi. Furthermore, the numbering of the chapters and the exercises, a different introduction to each of the chapters contained therein was also different from that of the Plaintiff. This, according to the judge, allows the reader on a bare perusal of the books to believe that the defendant’s publication is entirely different than that of the plaintiff since the theoretical portion was moderately revised, and the appendices and additional exercises were omitted.

Spicy Comments

First, as a question to our readers- The Court states that books ordinarily entitled to a copyright are stripped of that right the moment they are prescribed as the syllabus by a University under S. 52 (1) (h). Is this automatic assumption since the books are prescribed as syllabus, they are now part of the examination and therefore hold no copyright? Comments on the same will be much appreciated.

In the opinion of this blogger, while it is commendable that the judgment does fully understand the possible implications of banning Guides that help several students, (as stated above) the judgment also poses some questions. The Court states the addition of Punjabi and Hindi translations along with the deletion of illustrations and rearrangement of the answer key, all on bare perusal make the two publications seem different. With this observation, the blogger disagrees.

However, on the whole the judgment toes the line with Oxford v Narendra Publishing and does take into account the several students who will be studying for their examinations. We here at SpicyIP wish all of them (especially those sitting for their Board Examinations) all the very best!

8 comments.

  1. AvatarDivs

    Hi Krutika,

    On your question of CR being stripped .. i think the rationale behind 52 is not to strip something off its CR.. but to merely state certain acts which would not make the user of that CRed material susceptible to an infringement action. 52(1)(h) deals with the use of the CRed material in the course of imparting education… and the act of USING the CRed material would not be infringement.. Also the author/publication house wd not “lose” its CR in the subject matter.. by use by a univ/student of such CRed material..

    on the contrary,IMHO, prescribing a book on the reference list.. only promotes a book.. since students would assume that teachers/paper setters may use a particular book as a referral.. and hence smart studying wd not involve excluding the same…I guess more sopies should only sell!!!

    On guides being meant for students who perhaps rank middle in the order of their class.. well well.. trust me.. the brightest ones as well donot refrain from using guide books.. as one of my really bright buddies calls them “Ready references.. when you party all night long and need to take a test the following morn…”

    Cheers!

    Reply
  2. AvatarKruttika Vijay

    Dear Divs

    First off, completely agree with you about the use of guides. If you notice, that entire portion was quoted straight from the judgment because I truly do not agree with it, and as a consequence do not agree that the market for both publications are different. However, it seems that the Hon’ble Judge does.

    Two, while I understand the point about Section 52, I was wondering if this is the rationale of the Courts then:
    a) would it not dissuade publishers of good books that can be used as study material from being a part of college curriculum, and,
    b) While the use by a student or university would not constitute infringement as per Section 52, can this provision be availed by publications such as the Defendants herein?

    Would love to hear your opinion (and our other readers as well) on all these points.

    Thanks!

    Reply
  3. AvatarAnonymous

    Isn’t J. Endlaw taking ‘public benefit’ a little too widely?

    For God’s sake .. the students usage is not the key question. The key question, as rightly put by KV in her comment above, is the behavior/ motive of the defendant.

    Frequently Anon.

    Reply
  4. AvatarAnonymous Coward

    a) would it not dissuade publishers of good books that can be used as study material from being a part of college curriculum, and,

    No. There is too much money in it. Students don’t buy just the guide. They buy the original book _and also_ the guide.

    This is simple economics. Material that is prescribed a) is in the position of a monopolist; b) has a great amount of demand. As we know, pricing is done not as per costs, but as per demand. Add that to a monopoly situation that is created by the book being prescribed, and you have the key to tremendous profits.

    You may also refer to this article which appears in “Surely You’re Joking Mr. Feynman”, and the Consumers International report on Copyright Flexibilities [PDF].

    b) While the use by a student or university would not constitute infringement as per Section 52, can this provision be availed by publications such as the Defendants herein?

    This is tricky. The section does not say: “the reproduction of a literary, dramatic, musical or artistic work by a teacher or a pupil (i) in the course of instruction, or (ii)…” it says: “the reproduction of a literary, dramatic, musical or artistic work (i) by a teacher or a pupil in the course of instruction, or (ii)…”. That makes all the difference. So, the answer to your question would actually (and surprisingly) be a “yes”.

    – Anon. Cow.

    Reply
  5. AvatarDivs

    I quite agree with Anon Coward… on point a) i think it wouldnt effect the book publisher’s position.. the no. of students opting to buy a book would be governed by the quality of the book as also the urge to use an “original” copy.. as for others.. photocopied versions may also find themselves doing the rounds…And i agree.. that students buy the book and the guide… gudes being often being famously infamous for blunders!!!

    On point b) i am foggy after reading Anon Coward’ comment…while i think if the Defendant produces a guide and informally distributes it amongst his peers… he might escape liability.. but what if the guides actually earn significant profits??? I think then a case of infringement should be made.. and ofc IMHO.. no significant skill/labour/idea-expression dichotomy (IMO) exists in cut/copy/paste a 350 page book into 80 pages (but surely time saved by students is significant!!!!)

    P.S. Surely You’re Joking Mr. Feynman is an amazing book!!!

    Reply
  6. AvatarAnonymous

    Hi All
    I think the judge has also ignored the following relevant points while holding the defendants action as fair use:

    i. Book prescribed by the University does not mean that the same fell in public domain.
    A work in a public domain means that the same are not copyrightable or there is no claim of copyright on the said work.
    If this allow then no author would prefer to prescribed his publication in the university, as everybody reproduced his material on the pretext of fair use.

    ii. Section 52(1)(h) clearly says that certain acts not to be infringement of copyright namely the reproduction of a literary work by a teacher or a pupil in the course of instruction as a part of the questions to be answered in an examination or in answers to such questions.

    It is clear from the above that the same can only be done by a teacher or a pupil and not by any publisher and that too for commercial gain.

    iii. If the publisher of a guide book reproduced ad verbatim from the original publication in his guide book then what is the difference in the text book and guide book. Mean if a student found the same thing in the guide book as in the prescribed text book, then what is the purpose of guide book. The guide book is made for the better understanding of the subject.

    In all view I think the Judge has committed grave error.

    Wait for comments

    Reply
  7. AvatarAnonymous

    Hi,

    I know I’m a bit late, but I just read the judgment and I have to agree with Anon above. The Section is quite clear that only a pupil can reproduce the copyrighted work inside an examination.

    The fact that the judgement allows work to be used by a publisher for commercial gain seems to go against many previous judgments pertaining to guides or educational material. Could this reasoning be used to reexamine decisions in Blackwood and Sons v. A.N Parasuram or even Rupendra Kashyap v. Jiwan publishing House where the arguments that use of copyrighted material for the “private use including research” of students were rejected on the grounds that the work was being commercially exploited?

    Reply
  8. AvatarKruttika Vijay

    Dear Anon 2,

    The previous comment from Anon 1 seemed to have escaped my attention. I apologise.

    As for the point that you have raised, in my opinion, I think the judgment relies far too much on the “benefit” of students who are not at the “top of the class” rather than the law in the present case.

    I am unfamiliar with the case of Rupendra Kashyap, but with reference to the case of Blackwood and Sons, I believe in that case the Defendant’s publication was not considered to be “research” within the meaning of the relevant provision and therefore the same was considered as an infringing work. If I also remember correctly, neither of these judgments were referred to by the Bench in this case.

    From your comment above, it certainly seems like there has been a shift in the opinion of the Courts as to what constitutes an infringement- though if you have read the judgment, they primarily state that the Plaintiff’s work would not satisfy the originality requirement in the first place.

    (I have already stated previously that I respectfully disagree with the Court’s opinion that the Plaintiff’s work falls within public domain if it is the prescribed curriculum.)

    Thank you for your comment.

    Reply

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