The on-going litigation between a group of leading publishers and a small photocopying shop attached to Delhi University has all the elements of a legendary ‘fair dealing’ debate.
On one side we have Big Publishing (Oxford & Cambridge University Press along with Francis & Taylor) who argue that use of their intellectual and creative product require recompense; on the other, we have students (many of them from impoverished sections of society) who argue that gaining a functional education in India is impossible without cheap access to such prohibitively priced material (a Facebook protest event has been organised). This sets the stage for one of the most important copyright battles in India in the last few years.
To quickly recapitulate the issue: A small photocopying shop attached to Delhi University regularly compiles extracts from copyrighted books and makes it available to students. A group of publishers have sued Delhi University & Rameshwari Photocopy Service for copyright infringement of their works.
SpicyIP has obtained a copy of the plaint, which can be accessed here.
Professor Basheer wrote an article yesterday exemplifying the need for a fairer view of ‘fair dealing’, keeping in mind the ‘public interest’ at issue here. But I argue that even looking at the black letter law together with recent precedent, the Delhi High Court should rule that compiling photocopied materials from these books, within a reasonable threshold, is permissible within the four corners of copyright law in India.
THE TWO LEGAL QUESTIONS
I will employ the two-fold test generally employed in such analysis:
- Is the copying done for a permissible purpose?
- Is the dealing ‘fair’?
I. LEGALITY OF COPYING EXTRACTS FROM BOOKS
I will begin by examining the question of whether compiling and circulating extracts from books is legal in the first place. I think it is essential to begin my analysis from this point because a lot of pro-publisher commentary I’ve noticed rests on the rhetoric that – ‘publishers are not charity houses‘ and questioning ‘why publishers should be giving out their works for free‘. The fact of the matter is, legally speaking, copyright law in India and all across the world acknowledge that sometimes using/reproducing/distributing parts of a copyrightable work, without making payments to the copyright holder, is necessary and permissible. This is the essence of ‘fair dealing’.
This is enshrined in S.52 of the Indian Copyright Act which provides for a wide educational fair use exception (See Lawrence Liang’s excellent piece on exceptions and limitations for education in copyright law).
Specifically on the issue of whether distributing extracts to students involvess a permissible purpose, we may refer to the recent decision of the Canadian Supreme Court in the case of Alberta (Education) v. Canadian Copyright Licensing Agency (2012). In this case, the court ruled that copying material for teaching in classrooms would pass the permissible purpose test. One could arguably restrict the scope of this decision to ‘teaching in the classroom’ alone. But given that the underlying rationale in this judgement to encourage private or group studying using these materials and the fact that the Candian fair dealing provision mirrors the Indian one, I am confident that Indian courts will interpret this more liberally. I have analysed this decision in a previous post on SpicyIP.
(a) Purpose of the end-user
I expect to find little objection on this issue of ‘permissible purpose’, and this is hardly surprising given that the important ‘purpose’ to be identified here is that of the end-user. In this case, the end-user is the Delhi University student and the purpose is purely educational (unless these very same students are also running coaching centres and using this material for a commercial purpose – which I highly doubt. And in that case, such use is undoubtedly illegal).
(b) Purpose of the copier
Although this aspect enters only in the second-stage determination of: ‘is the dealing fair’, I think this is where the relationship between the University and the photocopy shop will become significant. One could assert that the shop is being run with a commercial objective. But I am given to believe that the shop is acting as an agent of the University (after a thorough tendering process) and therefore, the purpose of the copier (Rameshwari Photocopy Services) is essentially the purpose of the University. And it goes without saying (whether we rely on the University motto or something else) that the objective of the University is to promote the goals of education, which is squarely covered under the copyright law exceptions.
While I have focused on a very recent decision to argue my point, Danish Sheikh over at Kafila has made a thorough comparative analysis on this point.
II. THE QUESTION OF ‘HOW MUCH IS TOO MUCH’ & THE THRESHOLD FOR DETERMINING LEGALITY
I do not for a second question the ability of the publishers to assert their copyright in such a case, simply because it involves the unassailable spectre of ‘Indian education’. However, courts have dealt with this issue in other jurisdictions in the past, and perhaps it would be wiser to defer to them on the question of the ‘extent of permissible copying’.
In the May 2012 decision of Cambridge University Press v. Becker, it was decided that the University would not require a license for reproduction of less than 10% of the total page count of the book. Professor Basheer in his Indian Express editorial argued that if an IP-maximalist regime such as the U.S. can establish the threshold at 10% of the total page count, India should take the lead and peg the threshold at 20%. And I fully agree with him.
Therefore, the courts in India would be reasonably expected to peg the fair dealing threshold at 10-15% of the total page count of the book.
The second leg of my analysis involves a determination of whether this threshold has been breached in this case. For some context, it might be useful to refer to a piece by Rahul Matthan in the Indian Express where he argues that the defendants publishers are in violation of India copyright law.
I will work with the threshold set by the most recent case on this issue – i.e. 10% of the total page count of the book, although I expect this to be increased in the Indian context. I have listed out the total number of pages and the total pages copied in the course packs. I have then calculated the percentage of the total page count that has been copied. You will notice that the average percentage of the entire book copied is only 8.81 %.
AVERAGE PERCENTAGE OF ENTIRE BOOK COPIED = 8.81 %
The full document can be viewed here. I will be updating this file from time to time with more empirical data. (Note: If there are any errors in my calculation, please do let me know. Calculations are based on figures made available after reviewing the course packs. Any errors are purely accidental and I will be happy to revise the figures if pointed out to me)
This is far below the fair dealing threshold set out in Becker. Even looking at each of the instances individually, it is found that a majority of the cases involve reproduction of less than 5% of the total page count of the book.
Out of the 23 books in question, only 5 extracts exceed the 10% threshold (these have been marked in red in the document). Given that this threshold is likely to be raised to 15-20%, you will find that there is only one instance that breaches this threshold. To suggest that the photocopy shop and Delhi University should have to shell out Rs. 60,00,000 in damages for something like this, is frankly a little disturbing to me. When did we become so fixated on the economic exploits of copyright that we forget the very purpose of the regime – to promote creativity and advance the progress of arts and science?
CONCLUSION
Thus, in my estimation, both tests: the permissible purpose and fairness test have been passed in this case. We are working on producing more empirical evidence to establish fairness and I will be analysing some more legal arguments in my next few posts. I hope for now, this clarifies my stance on the issue of ‘where to draw the line’ and hope we do not appear biased or to be pandering to anyone. I am not advocating the abolition of copyright or stating that merely because students cannot afford these books, they should be allowed to infringe copyright. I simply think that the threshold for infringement has not been breached in this case and therefore public interest considerations aside, even strictly looking at the law, Delhi University and the photocopy shop should be in the clear.
(Disclaimer: These views are strictly my own and do not reflect the opinions of other bloggers on SpicyIP)
Hi Amlan
Although I don’t agree with a lot of things being said here, at the outset I just wish to point out that the calculations made in the table herein appear to be inaccurate. Based on the copy of the Plaint being provided by you, I have made my calculations which contrast your findings here. It appears that you have overlooked that in certain instances, more than one chapter is copied. Would it not be plain mathematical logic to take into account all these chapters while calculating the total number of pages copied from a book?
Also, it appears that while taking into account the page numbers being copied you have noted the page numbers written by hand in the Plaint. Alternatively, while calculating the page numbers copied and the percentages thereby, should you not be taken into account the page numbers of the book copied rather than page numbers of the documents filed by the Plaintiffs?
I am sure if you make fresh calculations, in light of the above, your average would change substantially. Also, do you have access to all the course packs being sold by the photocopy shop. These calculations appear to be based on some examples cited in the Plaint which may not reflect the exact extent of the copying happening in DU.
Hoping to seeing a correction from your end.
what is the legal argument that sustains the case for 20% in India in comparison to 10% in the US?
In the sense, if this is based on some sensible economic and/or social rationality (i.e. per capita income, literacy rates, investments in educational resources, etc.), then any sensible person would say that it should be at least several fractions of the rate in the US.
Author lacks clarity on fair use. I doubt if it is eve written by an IP Lawyer . Looks like its a work of some Law Student.
Amlan, did the Canadian Supreme Court in Alberta (Education) v. Canadian Copyright Licensing Agency, make a definite ruling on ‘fair dealing’? My reading suggests that the Copyright Board in Canada held that copying of excerpts by teachers/educational institutions of textbooks to distribute to students, does not amount to fair dealing. The Canadian Supreme Court merely refuted the Board’s reasoning for its conclusion and remanded the matter back to the Board for reconsideration.
Also, is it even reasonable to argue that buying of ‘course packs’ at the starting of the session, just like one buys books, is “in the course of instruction”?
I was in DU briefly in 1996 and later moved to a different university to study Engg. At that time, photocopy per page was 0.40 paise per page. Sure enough these photocopy wallas were selling course packs even. Surprisingly, these course packs would cost approx. 3X the number of pages in the photocopied book X 0.40. And there was a cover too!
Long story short: Don’t kid yourself that this is for the public good. The photocopy wallahs make a fortune out of it. Whatever public good is there in this business is an unintended byproduct.
What the hell are you saying? If the students cannot afford it its legitimate make copies for academic purposes FURTHERMORE have you chanced upon the doctrine of Exhaustion which unfortunately due to our incompetent parliament india does not follow. It stated that as long as the rights of the first sale are not affected there will be no violation of copyright!! There are extracts being taken not the whole book. If one wants to get the whole information they need to buy the book. Which inherently does not affect the first sale. Please review the law before making demeaning remarks about any profession of the Law.
You should read Margaret Chons article on fair dealing its available online. While you’re using this “access to knowledge” which clearly you undermine. She talks about a below approach in India/ developing countries. Time to stop having a a maximalist perspective because we as a country don’t have the resources. And you can also refer to TRIPS Article 7 from the where the Indian Copyright flows which states that along with balancing rights of the user and creator there is inherent need to do this through the lens of promoting social welfare and economic welfare. How are student to learn if they are being penalised for not being able to afford education. WOW.
@Smita Chandra
I distinctly remember taking into account multiple chapters from the same book. If I have made a mistake somewhere, please be kind enough to point them out.
I have made calculations based on the figures provided to me. You are free to share your calculations and I would be more than happy to analyse them in a subsequent post.
Unfortunately, getting physical access to the course packs in Delhi would be economically unfeasible for a law student like me. If I do however manage to receive a copy, I will be sure to cross-check the figures.
Till then, I will be forced to rely on the figures at my disposal – in the plaint.
Again, I urge you to share your calculations publicly as I have done and I will be happy to review them.
@Anonymous (5:02)
“what is the legal argument that sustains the case for 20% in India in comparison to 10% in the US?
In the sense, if this is based on some sensible economic and/or social rationality (i.e. per capita income, literacy rates, investments in educational resources, etc.), then any sensible person would say that it should be at least several fractions of the rate in the US.”
The reason for demanding a lower threshold than currently existant the U.S. is rooted in the fact that India is a developing country, with unique conditions, requiring broader copyright exceptions for educational purposes.
If you would have only opened the link to Lawrence Liang’s detailed report on this subject, which I had posted, you would have come across ample evidence yourself. There are refences to per capita income, GDP and all the other economic indicants that your heart desires.
Part IV of his report is titled: ‘THE FUNDAMENTAL HURDLE: THE COST OF LEARNING MATERIALS’ and explains the situation in India with detailed figures. And I consider prohibitive costs to educational access to be an important ‘socio-economic factor”
I urge you to go through the report. And I hope you will concede that there might exist evidence to the contrary that supports the assertion I made.
You just didn’t bother to click the link I posted and find it yourself.
@Anonymous (6:19 pm)
Author lacks clarity on fair use. I doubt if it is eve written by an IP Lawyer . Looks like its a work of some Law Student.
As a law student might I remind you that the Indian Copyright Act provides for ‘fair dealing’ and not ‘fair use’ and therefore I would humbly excuse my own ignorance of fair use in this case.
Below is a link I would like to share with you: ‘COPYRIGHT BASICS – FAIR DEALING (CANADA) VS. FAIR USE (U.S.’.
The difference is explained. India’s copyright law exception mirrors the Canadian law on this point.
Sometimes law students have their basics in place. Perhaps you should treat them with some respect once in a while.
‘COPYRIGHT BASICS – FAIR DEALING (CANADA) VS. FAIR USE (U.S.’.
http://library.concordia.ca/help/copyright/?guid=fdvsfu
@Anonymous (10:30 p.m.)
The photocopy wallahs make a fortune out of it. Whatever public good is there in this business is an unintended byproduct.
I would rather say that the commercial benefits (if they make anything substantial in the first place) are a bye-product of the public service that comes out of the exercise.
I have received anecdotal evidence from people at D.U. who were there in 1983-85 and they attest that for them, ‘the shop was more than just a lifeline – it was the saviour for so many of us’.
So to each his own, I guess.
Hi Amlan,
You seemed to have overlooked the following comment:
It appears that while taking into account the page numbers being copied you have noted the page numbers written by hand in the Plaint. Alternatively, while calculating the page numbers copied and the percentages thereby, should you not be taken into account the page numbers of the book copied rather than page numbers of the documents filed by the Plaintiffs?
Please find the revised table showing calculations made by me here: https://docs.google.com/spreadsheet/ccc?key=0AnffDTV2ReqUdHk4UUpqN2doT1dfYUdWZzJzaDdFVXc. As visible in the Plaint and the table provided, the Plaintiffs have sighted 21 books (2 books being repeated) as instances, out of which i did not find any reference to the total number of pages for 1 book. Out of the 20 books for which I calculated the percentages, in 11 instances, the percentage of copying is more than 10% and in 6 instances, even more than 20%. The average percentage of copying appears to be 16.84%.
In light of these findings, i hope you would re-evaluate your comments, as even after applying the test of 10% as suggested by you, the ‘fair use’ threshold has been breached. Also, what comes after perusing all the course packs being sold in DU, is yet to be seen!
Two counter arguments which I have (1) Going by your arguement on fair dealing all educational books which are being used by students should be free. I wish it was but thats not the case.
(2) 10% or 20% is one issue, what is being copied is another issue and the book might only have a substantial relevance in 2-3 chapters.
Overall, very interesting to see how this pans but your clear chit is even more interesting!
Does fair dealing/fair use have anything to do with the ability of the consumer to buy the book? At least with fair use, I wouldn’t think so. At any rate, nowhere in your analysis, do you use the ability to buy (of a student) as an argument.
That being the case why do you find it necessary to say “…on the other, we have students (many of them from impoverished sections of society)…” This effectively sets up the “Big Bad Corporations” v/s “Innocent, Poor Students.”
The problem with this is that it gives the impression that the whole objection to CUP, OUP and F & T is because the students are too “poor” to buy the books and that is somehow “unfair.” However, if this is the sum of the objection, then it can always be countered by the argument that there are alternate ways of dealing with it which do not involve photocopying.
For instance, a long time back BITS Pilani had a system of “leasing.” The university would buy a number of copies of some of the more costly textbooks. Students who needed it could lease it for a semeseter or so and then return it, to be used by the next batch. In some cases, where the number of copies were not sufficient, the lease had to be “shared.” Inconvenient and all, but it worked. So why can’t it work now?
If the fair dealing/fair use argument has nothing to do with the ability to buy, then don’t bring it in. My personal impression — I am not a lawyer — is that the argument for fair use has nothing to do with the ability of consumers to buy. It seems rather to be based on the idea that allowing fair use brings economic benefits to society. In this view, therefore, the fair use argument stands even if all the consumers were millionaires. (See the section on “The Economic benefit of fair use” in the Wikipedia entry on “Fair Use.”)
If I had to make an argument for “fair dealing” it would probably be along similar lines but I guess most on this forum would disagree. Fair enough.
Last comment @11.30 gives a good perspective. And for all those who are arguing on the percentage, let me give a perspective:
Even if copying of 0.1% of the whole content makes the PURCHASE REDUNDANT (if that book is sold just because of that 0.1% content, for example it could be a photo, an interview or the analysis), it DOES amount to INFRINGEMENT.
For example, there is a 780 page report on the market of diagnostics of Malaria which is available at 4500 USD published by a well known market research company. Now, the last 13 pages and 3 pages of executive summary contain the summary of the report with all data, which if made available by photocopying would actually stop the sale of the whole report.
Further, suppose the Harry Potter series is a 100 volume book set which is printed as a single MegaBook. Now even if you photocopy the first volume which is mere 1%, it is infringement. No Fair Use.
You may continue…
Anony1
What is missing in every discussion about copyright law is the actual validity of The copyright act under the constitution, You should note that India is by her own constitution a socialist country, Govt places every restriction and aquisition of land and eviction etc. based on this principle, That no one has any right to private property and the Word Socialist appear in the pre-ample of our sacred document, Since the essence of socialism is common control of society on Products and channels of distribution, How can any law granting absolute exclusive right can pass the test of constitutional validity in the first place? Has anyone thought about or discussed this part?
Secondly it is the University itself who puts the students in great trouble, They must prepare the notes on topics and make sure , No Indian student will be forced to buy books from colonists of the west, Don’t DU has good scholars to write some notes and publish it? If someone wants further research give them a good library, It is a shame that we are relying on all these people to jaust study,
@ the comment at 10:47 a.m.
If one could truly satisfy oneself with sixteen pages of summary, I wonder what need the publisher would feel for printing 780 more pages.
Hi amlan,
You stated that photocopier and DU deliver the same purpose but i think they do not serve the same purpose. university purpose is totally different from the photocopier.
As you know, DU “essential” purpose is education, whereas photocopier purpose is to have a monetary gain. yea they do connect with each through the mode of education, but that doesnt mean that they serve same purpose.
Thanks.
I really appreciate your work, thanks for keeping us updated.
Cheers
The contention that some of the students cannot afford to buy the books cannot be a reason to allow copyright infringements in the same way that a stark poor person cannot be allowed to steal things so as to enable him to make his ends meet.
If there are students who show willingness to study but do not have sufficient resources to get the books, it is the duty of the administration (Delhi University) to provide them the books to such students through libraries.
it’s a good point to note but i think the perspective with which section 52 is to be seen is little different. its not about a poor student or a rich student. it should be seen from this perspective that as a student if one needs to study from 20 different books it is only reasonable to expect that he would buy a book which is central to the course being taught. All the incidental material he’d either read from a online database if subscribed by his college or as a last resort he’d take photocopy of that material. now it is here that the 10% rule comes into place. The incidental material should not exceed 10% of the total no of pages of that book. Chapter VIII of Prof Basheer’s recommendation to the standing committee on HRD can be referred to understand further how education is to be benefited by fair dealing.
Nice Post