Copyright

A "Fair" Education in a Copyright World?


Mainstream media in India has been abuzz with news of a copyright raid conducted against a small photocopy shop by leading publishers. The allegedly infringing material are course packs containing extracts from different books that are selected by the relevant faculty teaching the course at Delhi University. Students routinely procure these course packs from the local photocopier. The raid evoked sharp reactions from students and the academic community, with an FB protest page as well.
Writing in Kafila, Lawrence Liang notes:
“Cambridge and Oxford university press along with Francis and Tailor have filed a copyright infringement petition against Rameshwari Photocopy services and the Delhi university claiming that the course packs that are distributed are in violation of copyright. Describing the course packs as infringing and pirated copies the petitioners have claimed damages to the tune of sixty lakhs….
….The fact of the matter is that in most academic disciplines textbooks are extremely expensive and unaffordable for the average student and if one attempted to buy all the books which are prescribed for a course it would mean that only very few privileged students would afford an education in India.”
For further reading on this issue, see  Danish Sheikh who deals with the issue of fair dealing (in course packs) from a comparative perspective in Kaafila. And Rahul Matthan who strikes a different note by arguing that the course packs in question amount to a violation of the law and that the photocopier must bear the consequences of this transgression.
In this Indian Express editorial, I argue that the copyright defences (under both section 52(1) (a) and (i)) of the Indian copyright act) are wide enough to cover the creation and reproduction of course packs.
I extract below:
“When asked what he thought about Western civilisation, Gandhiji replied: “I think it would be a good idea.” A recent court ordered copyright raid at the behest of leading book publishers against a poor photocopier at Delhi University might force the Mahatma to endorse a similar sentiment if one were to ask him what he thought about public interest in intellectual property (IP).

Contrary to popular perception, IP regimes are meant to serve not only the private commercial interests of IP owners, but a wider public interest…..

It is within this framework that one ought to view the recent attempt by leading publishers to prevent students from accessing affordable course packs put together by a small photocopy shop at the behest of a leading university.

Many appear to acknowledge the “technical” illegality of the photocopying, and take issue with the raid on a purely moral basis. However, it is important to appreciate that the law itself provides enough wiggle room for exempting these acts from copyright infringement.

The law suit filed by publishers before the Delhi high court indicates that the alleged instances of copyright infringement constitute no more than 10 per cent of individual copyrighted books in most cases.

Even in a maximalist IP jurisdiction such as the United States, courts have held that reproducing less than 10 per cent of a book constituted “fair use”. Although the ruling in this case (Cambridge University Press vs Becker) pertains to electronic copies, the logic of it should apply to the physical world as well.

The fair use doctrine is recognised as a valid defence to copyright infringement in most countries including India, where Section 52 of the Copyright Act permits one to “fairly deal” with any copyrighted work for “private or personal use including research”.

That universities and students photocopying excerpts of articles and book chapters are doing so for private or personal use is beyond doubt. And it stands to reason that if the university can do this legitimately, it can also outsource this function to a third party photocopier (who does it as an agent of the university). However, the critical issue is: what amounts to “fair dealing”?

Would takings of less than 10 per cent of copyrighted books amount to fair dealing? If a free-market capitalist economy such as the US, with a maximalist IP regime, can suffer 10 per cent, India can do far better. We should peg our yardstick at 20 per cent or even higher. After all, of what use is our constitutional guarantee of the right to education when materials cannot be accessed by the average student?

But we need not split hairs over the appropriate permissible “fair” percentage. Our copyright act recognises a fairly wide educational exception in Section 52 by permitting any material to be reproduced “during the course of instruction”.

It is a truism that educational material is largely expensive and often unaffordable to the average student. While foreign publishers claim that almost all titles have Indian editions and are lower priced, a recent empirical study done by me along with my research associates demonstrates this to be a false assertion. A vast majority of legal and social science titles (that we studied) had no equivalent Indian editions and had to be purchased at rates equivalent to or higher than in the West. The lower priced Indian editions were often older and outdated versions.

….In the end, a large part of this case will hinge on the term “fair”, a somewhat epidermal term, given our obsession with fairness creams. One hopes that the unfortunate Delhi raids will force us to examine it at a deeper level and acknowledge that a society where private commercial gain trumps the larger public interest in promoting educational access can never be a “fair” one.”

ps: image from here.
Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools.

He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF).

In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen.

Professional History:

After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer.

He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school.

Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

7 comments.

  1. Michael Lin

    If you claim fair use as a defense for the universities and students, as they were engaged in research, only copied a small amount (not an entire novel), or such, then that may be a stretch – I could debate it with you, and maybe even eventually accept it. Similar debates have been going on around the world and there have been widely different results.

    However, a significant point for me is that it was not the University or the students who were accused in court of copyright infringement – it was the store, who presumably was not doing this for free or even at cost – the Store was conducting these activities purely for the sake of making a profit. And that’s one of the factors (in many countries’ laws) that weighs significantly against a fair use defense.

    If you intend to defend the STORE on the basis of fair use, then the store should be giving away the course packs containing the copyrighted materials for free – or at best, merely recouping their costs.

    Reply
  2. Shamnad Basheer

    Tks for your insightful comments, Michael.

    Yes, to the best of my knowledge, the photocopier functions as an agent of the University and is providing material at cost under a contract with the University (the University picks only 1/2 photocopiers after a tender process). If this is indeed true (and I have every reason to believe it is), the case ought to squarely fall within the copyright defences….

    Reply
  3. Anonymous

    We were hoping that SpicyIP would have returned to being a balanced IP Law blog, as it was, rather than the political, “we are crusaders” sort of portal it seems to have become over the past one/two years, ever since you have lessened your involvement with the blog. Your attack on the Publishers, while within your rights, must be balanced, open to understand opposing positions, or is it much easier taking one side. Hope you have the courage to publish this comment.

    Reply
  4. Sooraj K Abraham

    Sir,

    What do you think about the scope of compulsory licensing in this scenario? Can the university apply for a compulsory licensing before the registrar of copyright? Can the photocopier shops be vested with the right of reproducing the same work under a compulsory licensing order?

    Reply
  5. B Prashant Kumar

    Nice Analysis Sir,

    Further, as per my reading of the petition and of the analysis made above, I understand that the publishers have mainly made the ‘course packs’ as causing cause of infringement (and hence the revenue losses), which correctly mentioned by all, can easily fall under the fair use criteria and the Court may well rule in favor of the University.

    What I fail to understand is that though the petition mentions about ‘cover to cover’ copying (at Page 12 of the document procured by SpicyIP), why has that NOT been made as the major issue and mentioned just as passing statements. Is it that the Publishers were not able to procure any such copied book of theirs or was it just to make the photocopy shop be looked by the Court with more disdain with no actual evidence in hand.

    As a lawyer, I think there is either some mistake, or some hidden strategy by Sai Krishna Sir (and Associates) and thus, whether intentionally or not, the case becomes weak if the ‘cover to cover’ copying is not questioned in the petition by the plaintiffs because if so had been the issue, fair use card could not have been played.

    Not to forget, whether engineering student or a law scholar, whether in an IIT or in a NLS or any other college from our neighborhood, photocopy shops giving ‘cover-to-cover’ copies are/have been a savior for everyone. It includes not only me and you Sir, but I am dead sure also the lawyers appearing for the plaintiffs or the ‘constituted attorney’ of the plaintiffs (provided they all studied in India).
    < And that’s the Indian Student inside me speaking!>
    There exists no other way to help the ‘Indian Students’ access such exorbitantly priced books at so nominal costs. (I like herein Sooraj’s idea of compulsory licensing such books, sadly, I dont think its possible under any of the sections of CHAPTER VI of the CopyRight Act, plz correct me Shamnad Sir if I am wrong)

    p.s. #TrueStory = http://goo.gl/HJf72

    Reply
  6. Shamnad Basheer

    Dear Anon:

    We’re dealing with what an optimal policy might be in this regard (within the current contours of the law). I have proferred an interpretation (that if the US can tolerate 10%, we find a higher figure keeping in view the per capita income of India etc. What is “unbalanced” about this? I would argue that the present expansionist view of IP where we ratchet up higher levels of IP protection at each opportune moment in favour of IP owners at the cost of public interest effectively results in an imbalance. I have nothing against publishers. But I will continue to critique their rampant failure to price in an equitable and fair way in India. For credible empirical data to back this argument, see this recently published article of ours.

    If you’re interested in a studied discussion on this issue, backed by logic and empirical evidence, lets proceed. Else it is a waste of your time and mine. Hope we can take the debate to a more informed platform….

    Reply

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