Delhi HC’s Ruling on the ‘Guiding Principle’ of Public Domain & Fair Use

Facts: In this case, titled Syndicate of the Press of the University of Cambridge v. B.D. Bhandari & Ors. [RFA (OS) No.21 of 2009 and FAO (OS) No.458 of 2008], the Cambridge Press (Appellants) had alleged that the Respondents were publishing and selling guidebooks that contained illegal and unauthorized reproduction of the grammar exercises and keys from one of the Appellant’s leading publications. This publication, titled Advance English Grammar, was also followed in Guru Nanak Dev University, Amritsar.

However, a Single Judge Bench of Delhi High Court had dismissed this allegation, holding that there was no originality or invention displayed in composing grammar sentences or exercises and hence the Appellant‘s work did not constitute original literary, dramatic, or artistic works. Moreover, such work not only touched the boundaries of public domain but also fell within the scope of Section 52(1)(h) of the Indian Copyright Act (ICA), viz. the doctrine of fair dealing, owing to its being prescribed by a university. It was from this judgment that the present appeal was preferred by the Appellant.

Issues:
(i) Whether the Appellant‘s work in composing grammar sentences and exercises constitute original literary work so as to provide any copyright on such work to the Appellant?
(ii) If there subsists any copyright, then whether the prescription by the university has an eroding effect on such copyright?
(iii) If there is no such effect or at least only a partial erosion, then whether the work of the Respondent in publishing the guides amounts to infringement of the Appellant‘s copyright?

Judgment:
Regarding the first issue, the Appellant argued that the work in question involved creativity and effort on the author’s part and while the idea might not have been original, the expression was still unique. The Single Judge’s verdict could very well have implied taking away all copyrights associated with all books of English Grammar! A series of judgments was relied upon by the Appellant such as Educational testing Service Vs. John Katzman Federal Circuit 793 F. 2D 533 (3rd Cir. 1986), V. Govindam vs. E.M. Gopalkrishna Kone (AIR 1955 Madras 391), University of London Press Ltd. vs. University Tutorial Press Ltd. (1B IPR 186) and R.G. Anand vs. Delux Films (AIR 1978 SC 1613).

Respondent argued that with the sweat of the borw doctrine having been replaced by the modicum of creativity standard, the Appellant’s work lacked origniality and hence was not entitled to copyright protection. The Court discussed S. 13 of ICA as well as other sources of law such as Black’s Law Dictionary to figure out the standard of originality required, along with case-laws such as Eastern Book Company vs. D.B. Modak (AIR 2008 SC 809).

The tests that were applied were whether the appellant`s work satisfied the ‘originate from the author’ test coupled with the requirement of skill, judgment and labour‖and whether the grammar sentences and exercises in question were copyrightable expressions evolved upon the non-copyrightable ideas pertaining to the knowledge of grammatical constructs of the English language. Interestingly enough, the Respondent hadn’t questioned Appellant’s copyright over the publication in the initial stage at all. Despite that, theSingle Judge had held against such copyright subsisting in the publication. However, in the present appeal, the Court ruled in favor of the Appellant regarding this issue.

With regard to the second issue, the Appellant contended that the terms public domain and fair use were distinct from each other and once a work came within the ambit of public domain, then there was no question of involvement of the fair use doctrine because public domain means no copyright protection is available at all to the concerned work –to this the Court agreed. Regarding the question whether the prescription of the book by the university would mean that the Appellant had relinquished its copyright by dedicating the same in public domain, the Court referred to Section 21 of ICA, which provides for procedure necessary to be followed for such a dedication. It held that merely because permission had been given by the Appellant to the university to prescribe the book for its course would not take the work in public domain, since by doing so, the Appellant has not relinquished any of his rights –such action may at best be releavnt for the tackling the fair use defence, but not public domain.

Insofar as the fair use defence is concerned, the Court agreed that the fact that the Respondent had been using the books published by him for commercial exploitation and not for only educational purposes for the university students took the matter beyond the purview of the fair use doctrine as such. Having said that, only a small part of the Respondent’s book actually contained unauthorized material from the Appellant’s book and the fact that the former was meant as a guidebook to help weaker students and not as a textbook was in fact taken into consideration by the Court.

Regarding the third issue of guidebooks infringing copyright of original textbook especially in the present case, the Court referred to judgments such as V. Ramaiah vs. K. Lakshmanaiah [1989 PTC 137], Nag Book House vs. State of West Bengal [AIR 1982 Cal. 245] etc. as well as the standard to protect derivative works such guidebooks as laid down in the Eastern Book Company Case. After referring to the evolution of the fair use doctrine through a plethora of case-laws, the Court opined that when a published work is prescribed as text book, a guidebook relating thereto has to satisfy the tests for a derivative work as well as not be verbatim reproduction of the original book. The guiding principle is to see whether such guide book provides explanation and/or stepwise process for reaching the answer, detailed analysis of any problem with the objective of making the task simpler in understanding the subject provided in the textbook.

In the present case, the guidebook was held to be containing sufficient additional material apart from the Appellant’s work; there were also other differences in terms of pricing and the nature of the customers likely to buy these two different books in terms of literary sophistication. Nor had the Respondent claimed his book to be the same as the Appellant’s. Besides, an overall comparison of the two books would, according to the Court, reveal sufficient differences as not to consider one to be plagiarized from or infringing the copyright of the other.

Decision: Thus keeping in mind the aforesaid reasons, the Court affirmed the Single Judge’s decision that the Respondent’s book cannot be considered to be infringing the copyright of the Appellant and dismissed the appeal.

Another similar case, titled the Chancellor Masters and Scholars of Oxford vs. Narendra Publishing House was heard together with this matter owing to similarity of subject matter and contentions and a similar decision was taken by the Court in that matter also.