Copyright

A reply to ‘A simple gutting of Copyright Defences’


I felt compelled to reply to Shamnad’s last post on the OUP-DU photocopying controversy for several reasons. The most important objection being that neither I nor Mr. Saika advocated, in my last post, that the Delhi High Court should decide the case just because the IRRO was ready to offer an affordable licence. To repeat Mr Saika’s quote in my last post, he merely states “We have already said in court that as soon as proper licenses are taken from the IRRO by the University or Photocopier we will withdraw the complaint.” I repeat, nobody has made the following argument (to extract from Shamnad’s post) “My Lords: don’t bother with the legality here. Let me propose a rather simple solution and save you the trouble. All Ravi has to do is to pay me Rs 100 a month. As your Lordships will appreciate, this amounts to nothing more than the price of a cup of tea (or two)!” 
In fact, in my last post, I very clearly state the following: 
“On a purely jurisprudential level, I can foresee some arguments against these licences. For example, regarding the blanket licence for the college which imposes a limitation of not more than 1 chapter or 10% of any book – it could be argued that a Court of law might well interpret Section 52(1)(h) of the Copyright Act to allow for a fair-dealing exception of atleast 10% or who knows, maybe even more. Similarly for course-packs, there are going to be arguments stating that if each ‘pack’ in the course-pack falls within the presumed 10% fair dealing exception, then the student does not have to pay anything.” 
So why do I endorse the IRRO licences? Because honestly, I think DU is going to lose this case, hands down. There are two primary defences that DU has on the basis of Section 52(1)(h) of the Copyright Act and let me explain as to why both defences are likely to fail: 
(a) One possible liberal interpretation of the provision is to allow for photocopying of entire books on the grounds that the provision does not lay down any percentages unlike Section 52(1)(g). I don’t think a Court is going to buy that argument because it in essence destroys the very essence of copyright law. Why are foreign publishers like OUP and CUP going to invest resources in developing Indian academia if their target audience is allowed by the law to photocopy books without buying them? 
(b) The second defence which is premised on a purposive interpretation allows for only limited photocopying. The global standard seems to be at 10% and although Amlan’s calculations, in his last post, seem to show that most of the books copied are less than 10% there is a contrary view which suggests that he was wrong in his calculations. In a reply comment to his post, a link was given to a document which claims that average percentage of photocopying is at around 16.85% with the highest percentage being at 33%! Going by the global standard, DU is likely to lose this case unless for some reason the Delhi High Court decides that 20% is the new norm. Let me add a disclaimer and state that I have not personally verified any figures over here and I hope that Amlan can either confirm or deny the same. 
Faced with a situation where a hypothetical client (DU) is going to lose a case, I would advise them to settle. Moreover, a lot of newspaper reports and the comments on the Facebook group seem to indicate that the main grouse of the DU students was that they should not be able to buy entire books just for the use of one chapter. Well I agree with them and if the IRRO is offering them a workable alternative why not accept it? I think 0.50 paise per page for a course pack is very reasonable and to allow the photocopy shop earn more than the IP owner is a perverse incentive. If the students of DU cannot afford to pay for such course packs, the University should buy a licence on their behalf and subsidize them. After all DU receives huge subsidies from the Government of India and I doubt whether this licence is even going to make a prick in its finances. 
As for the arguments that the IRRO may hike its rates or abuse its position or the possibility of denial of licences, I think that line of argumentation is rather cynical. Why start off by presuming the worst? There are checks and balances in the system and if the IRRO abuses its position it will have to face the wrath of a lot of people. So should DU go ahead and fight this battle just for the sake of testing the boundaries of ‘fair-use’ provisions in the Copyright Act, 1957? Well, it is certainly free to do so but it must keep in mind that it will be liable for damages for lost profits. It is a government university and if it is found to be misappropriating the intellectual property of private tax-paying companies and citizen-authors, it should certainly be made liable for damages.
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

5 comments.

  1. AvatarKumar Saurabh

    I am generally a passive reader of this blog. And most often than not, I have the same view point as that of the author.

    The present debate/ argument between Prashant Reddy and Shamnad Basheer however took two extremes and I wanted to add a few pointers.

    One, for the photocopiers to accept the IRRO licence, there has to be an infringement. Unlike music played in a bar where the bar owner lacking a licence obviously infringes on the copyright holder’s rights, the case of photocopying for educational purposes is obviously not as clear cut.

    Why should then anybody accept IRRO proposal just for the fear of a long drawn litigation ?

    Surely the cost of litigation vis-a-vis what seems a reasonable fee to IRRO would be on the minds of the photocopier.

    Two, It is not clear what the prayer in the plaint is. it is also not clear whether injunction was sought/ not granted or whether it was not sought at all.

    In the case of the latter, what the plaintiff is praying for becomes interesting. if he is seeking a total ban on the photocopying, but no interim injunction was sought, then it appears to be a strategic litigation to coerce the photocopier to accept IRRO terms or face a long drawn litigation. thereby making the photocopier calculate the opportunity cost of choosing a financially cheaper path.

    if injunction was sought and not granted, then this itself is evidence that the judge is not completely convinced of the infringement angle.

    Either ways the case of IRRO or of the plaintiff is not as cut and dried as is the case of a pub owner music infringer.

    three, it is not clear whether the plaintiff sought to seek a pre-litigation settlement in the present case. surely, the photocopier is not the only guy allegedly infringing on the plaintiff’s rights. neither is the DU the only university allegedly condoning such infringement. so how does the plaintiff in the long term seeks to take action against other alleged infringers? by treating the present case as a precedent ?

    By filing such other cases against other universities and photocopiers and coercing them to accept a cheap alternative to litigation i.e. – IRRO license ?

    Reply
  2. AvatarDanish Sheikh

    “Why are foreign publishers like OUP and CUP going to invest resources in developing Indian academia if their target audience is allowed by the law to photocopy books without buying them?”

    Actually their target audience is clearly the University as opposed to individual students, if their pricing and distribution models are to be examined. Exhorbitantly high rates and limited print runs point to a model that favours profits by way of selling few copies, rather than a low cost-high distribution model. If their target audience was students, the prices would be lower, its that simple.

    As for the argument about presuming the worst about the IRRO: its really more about pragmatism, considering that in most jurisdictions where course packs are distributed on a licensing model, prices have been hiked to levels almost as unfeasible as actually buying textbooks in the first place.

    You talk about IRRO being a reasonable option as opposed to the possibility of dealing with the possibility of lost profits. Strikes me as a bit myopic if you pause to consider that using your (under)estimate of Rs. 100 extra per coursepack, multiplied by an enrollment size that exceeds 1,30,000, we have the students totally paying upwards of Rs. 1 crore. The possible Rs. 60 lakhs loss kind of pails in comparison then.

    We know where this story of increasing copyright expansion leads to, and with the Delhi High Court we have an opportunity to stop it in its tracks, for now atleast.

    Reply
  3. AvatarYogesh

    Hi Prashant:
    I agree with Danish. Furthermore, I don’t think that the incentive agrument you make should be streched to every instance of a possibility ‘copy’ being made, especially in the context of course packs. Just because there is an existing or a potential market for licenses and that clearing houses can reduce the transactional cost in procuring them, shouldn’t defeat the existence and purpose of the ‘right’ of a fair-dealing defence. It’s high time we starting thinking about ‘fairness’ in incentive structures rather than exclusively focus on ‘fairness’ in fair-dealing. May be IRRO should think about proposing a low cost revenue model for cover to cover photocopying in limited situations (for e.g. in case of students studying in Goverenment institutions), or for uses that move beyond fair-dealing. But sorry, not for course packs.
    You had mentioned in one of your earlier post that affordability cannot be a reason for exercising fair use, and that one should resort to Cls. I don’t quite agree with that narrow view. You can look at it the other way, too. The very existence of an educational exception means that these are permitted uses (and also free uses), and not just to bring down the transaction cost. If it were so, IRRO is actually bringing down the transaction cost. But the exception, nevertheless, holds good. So what is in it other than to make coursepacks affordable?

    Reply
  4. Avatarvika

    I was reading about various university policies regarding photocopying. Standford says, ‘Copying a complete work from the library collection is prohibited unless the work is not available at a “fair price.” http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-d.html
    What I could understand is coursepacks are quite common there as well. Clear directions as to assemble a course pack are given in http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html#4. Even a sample coursepack request form is given there with what copyright notice should be used is also mentioned.
    I just came across this -Until 1991, many instructors and photocopy shops assembled and sold coursepacks without permission and without compensating the authors or publishers. This was based on the assumption that educational copying qualified as a “fair use” under copyright law, which, legally speaking, is a use that is exempt from permissions requirements that normally apply to copyrighted materials. (For a full explanation of fair use principles, see Chapter 9.)
    However, in 1991, a federal court ruled that a publisher’s copyright was infringed when a Kinko’s copy shop reprinted portions of a book in an academic coursepack. (Basic Books Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D. N.Y. 1991).) The court said that reprinting copyrighted materials in academic coursepacks was not a fair use and that permission was required.
    The owner of a copy shop in Ann Arbor, Michigan, began a personal crusade to prove that the Kinko’s case was wrongly decided by advertising that he would copy course materials for students and professors. As a result, he was sued by several book publishers. A federal Court of Appeals decided against the copy shop owner, ruling that the copying did not qualify as a fair use. This ruling was based on the amount and substantiality of the portions taken and because academic publishers were financially harmed—they lost licensing revenues—while the copy shop was making money on the coursepacks. (Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996).)
    This and similar court rulings establish the rule that you need to obtain permission before reproducing copyrighted materials for an academic coursepack. Many campus copy shops still perform coursepack assembly. However, these copy shops have either affiliated with established clearance services or are prepared to obtain clearance on behalf of instructors. http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html#1
    I think all this brouhaha could end if clearance for the course pack was taken. Amlan’s analysis shows that the copying is around 10 % anyway.
    .

    Reply
  5. Avatarvika

    I was reading about various university policies regarding photocopying. Standford says, ‘Copying a complete work from the library collection is prohibited unless the work is not available at a “fair price.” http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-d.html

    What I could understand is coursepacks are quite common there as well. Clear directions as to assemble a course pack are given in http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html#4. Even a sample coursepack request form is given there with what copyright notice should be used is also mentioned.

    I just came across this -Until 1991, many instructors and photocopy shops assembled and sold coursepacks without permission and without compensating the authors or publishers. This was based on the assumption that educational copying qualified as a “fair use” under copyright law, which, legally speaking, is a use that is exempt from permissions requirements that normally apply to copyrighted materials. (For a full explanation of fair use principles, see Chapter 9.)
    However, in 1991, a federal court ruled that a publisher’s copyright was infringed when a Kinko’s copy shop reprinted portions of a book in an academic coursepack. (Basic Books Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D. N.Y. 1991).) The court said that reprinting copyrighted materials in academic coursepacks was not a fair use and that permission was required.
    The owner of a copy shop in Ann Arbor, Michigan, began a personal crusade to prove that the Kinko’s case was wrongly decided by advertising that he would copy course materials for students and professors. As a result, he was sued by several book publishers. A federal Court of Appeals decided against the copy shop owner, ruling that the copying did not qualify as a fair use. This ruling was based on the amount and substantiality of the portions taken and because academic publishers were financially harmed—they lost licensing revenues—while the copy shop was making money on the coursepacks. (Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996).)
    This and similar court rulings establish the rule that you need to obtain permission before reproducing copyrighted materials for an academic coursepack. Many campus copy shops still perform coursepack assembly. However, these copy shops have either affiliated with established clearance services or are prepared to obtain clearance on behalf of instructors. http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html#1

    I think all this brouhaha could end if clearance for the course pack was taken. Amlan’s analysis shows that the copying is around 10 % anyway.
    .

    Reply

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