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.
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!