OUP vs DU: A Simple Gutting of Copyright Defences?

Imagine yourself as a judge, blessed with legal acumen, integrity and what not. A case is brought before you, as below:
A person (Ashok) walks upto a shopkeeper (Ravi) and demands money for allegedly patrolling Ravi’s store and offering protection from thieves and the like. Ravi protests stating that he did not appoint Ashok to render the said services. In fact, Ravi had no idea that Ashok was doing so, and importantly, Ravi’s locks and other security systems within the shop were sufficient protection. 
Ashok continues to badger Ravi for money and finally decides to take the matter to court alleging that Ravi owes him money for the services rendered. Ashok’s argument before the court goes something like this: 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)!
As a judge, how will you decide? Will you accept this seemingly simple solution that disposes of the matter once and for all? Or are you mandated to first examine as to whether or not there is a legal obligation to pay at all in the first place!
A Simple Solution?
But first, why are we even discussing this  hypothetical on an IP blog. The answer lies in Prashants’ thought provoking post on the recent copyright controversy between Universities and book publishers, where he discusses a similar simple solution advanced by a book publisher.  
I quote relevant portions from his post:
“I received a very interesting email from the Managing Director of Cambridge University Press India Pvt. Ltd. – Manas Saika. In his email, Saika provides a rather simple solution to the current impasse at DU and which solution also appears to be quite affordable….

In pertinent part, Mr. Saika 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.” The acronym IRRO is an abbreviation for the longer ‘Indian Reprographic Reproduction Organization’ which is a copyright society set up by the publishing industry.

According to Mr. Saika the IRRO is ready to offer relatively affordable licences for photocopying. In pertinent part Mr. Saika states “For DSE Ratan Tata Library the tariff would not be more than Rs 24000 per year for ordinary photocopying which will cover all that is required for research etc.”

He goes on to state “In the case of Coursepacks, they directly eat into the sales of textbooks. Hence the rate is Rs 0.50 paise per page. Hence suppose a 200 page coursepack costs Rs 200 it will cost Rs 300 with a proper license from the IRRO. That additional Rs. 100 will be distributed to the respective publishers and authors. At the most what the fuss is about is about 2 cups of tea or coffee a semester. If the Delhi University so desires they can take the license themselves and subsidize their students even further.”

Prashant then goes on to observe:
“However keeping the jurisprudence aside and taking a decision based on the possible costs and uncertainty of any future litigation, I think DU would be better off with taking a licence from IRRO. It seems to be a fair price to pay for using books owned by these publishing houses and would ensure better royalty flows to the authors.”
In short, the seemingly simple solution is that Delhi University (DU) desist from contesting this law suit and simply accept this tantalising offer from IRRO and book publishers. But whither the law? Whither carefully crafted copyright exceptions and defences in section 52 of our copyright act? Exceptions that represent a critical balance between public and private interest that I harped on in my first take on this copyright litigation. 
Copyright Exceptions: Scope and Ambit
As I’d noted in my edit piece in the Indian Express, two potential exceptions could be invoked here:
(i) Section 52(1)(a) dealing with “fair dealing” for private use or personal use including research. I’d advocated that if a US court could condone 10% under this exception, we should do better. I’d also argued that since the photocopier is effectively an agent of the University (under a specific contract signed by Delhi University and the photocopier, under which course packs had to be provided at a fixed amount), defences applicable to the University would apply to the said photocopier as well.
Of course, a numerical test (whether 10 or 20%) comes with its own set of problems, but is advantageous in that it sets out a bright line rule for parties. Absent such a broad objective test, parties would routinely have to bargain and/or approach courts for adjudicating the “fair” scope of takings, leading to increased transaction costs. And more often than not, cases would never reach courts, as recipients of legal notices from IP owners prefer to cave in, than contest under the “shadow” of perceived illegality. CIS did an interesting survey on this aspect and documented the fact that even legally savvy ISP’s often caved in to legal notices without contesting the veracity of claims.
(nb: Amlan detailed out a Canadian decision that also spelt out a robust fair dealing defence for excerpting copyrighted material for educational purposes).
(ii) Section 52(1)(i), dealing with a very specific educational use exception. Given space constraints, I was unable to elaborate more on this section in the Indian Express piece. I hope to do this in a future piece. For the moment, let me try and reflect quickly on the broad contours of section 52(1)(i) and its applicability to the case at hand.

Section 52(1)(i) exempts from copyright infringement, “the reproduction of any work by a teacher or pupil in the course of instruction”. Here again, given that the photocopy shop is an agent of the University (which has effectively outsourced its functions to the said copier under a specific contract), exceptions that accrue in favour of the University are applicable to the photocopier as well. The question now is: will the creation and dissemination of course packs amount to a reproduction in the course of instruction?

In this connection, it is important to note that Section 52(1)(i) differs from section 52(1)(a) in that there is no “fair dealing” qualification in section 52(1)(i). Rather so long as the taking is necessary for the “course of instruction”, it does not matter as to how much of the copyrighted work was reproduced. 
The Delhi High Court will have to decide the scope and ambit of section 52(1)(i) and the kind of takings that is permissible under this exception. On the one hand, it will have to safeguard interests of copyright owners and ensure that wholesale reproduction of entire books (that may not be strictly required for the core readings) are not permitted under the guise of this clause. On the other hand, the court will have to appropriately carve out meaningful space for educational institutions to teach effectively in a space free from copyright encumbrances.
Most course packs that I have seen (that flow from an academically rigorous and well thought out course outline) excerpt only select portions of books and other copyrighted material. In fact, in the law suit under discussion, the evidence filed with the plaint suggests that in a majority of cases, the course packs that were photocopied amounted to less than 10% of individual copyrighted books.
It is important that DU, its students and the academic community at large contest this suit strongly and help evolve standards that appropriately balance out competing private interests of publishers against the wider public interest in access to education and the maintenance of a strong education defence that permits core educational activities (such as the creation of course packs) to continue free of copyright restrictions. 

Copyright Exceptions: Defences or Rights?

The apparently simple solution suggested by Mr Sakia and endorsed by Prashant effectively eviscerates an important educational exception and forces us to pay a monopoly rent, when we are not required to do so.  In fact, their logic would apply ad absurdum to every possible defence or exception carved out in section 52. And as many of you know, there are almost 30 such exceptions that have been carefully crafted by our policy makers! Exceptions that signal very clearly that copyright regimes are not about private commercial interest alone, but public interest as well…. exceptions that ensure that educational and cultural creations can be accessed, used, adapted, and built upon to create further educational and cultural works that benefit society. In fact, a number of globally reputed scholars such as Professor David Vaver argue vehemently in favour of copyright exceptions being seen as a “right” and not merely as a “defence” to infringement.
The Canadian Supreme Court endorsed this view in the CCH case, noting as below:
“Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”

On a related note, if the IRRO rates mentioned in Prashant’s post are indeed true, it would mean that a student pays double of what they are paying now for course packs (since I’m given to believe that photocopying costs around 50 paise per page on an average around most campuses). Illustratively, a course pack that costs a student Rs 500 earlier, would now cost Rs 1000. So the assumption that this is just a matter of an extra Rs 100 is not entirely correct.
Even assuming that it was only a matter of an additional Rs 100 or 200 per book or copyrighted material per book or copyrighted material, it is important to appreciate that while this figure may be insignificant for those of us that savour cups of tea at Rs 100 and above, it is a quite significant for those that cannot afford cups priced beyond Rs 5. 
Most importantly perhaps, why should we subject ourselves to the whims and fancies of publishers and the IRRO which may decide to jack up this price at a later stage? Or even decide to not license us at a future date, simply because our face is not pretty enough.
As Prashant himself admits in a response to a comment left by someone on his post: the IRRO charges for photocopy outlets appears exorbitant. How are we so certain that after we’ve conceded this litigation and effectively bludgeoned a valid educational exception recognised by our copyright regimes, the IRRO will not hold us hostage and hike their rates?
SpicyIP and Censorship
And this brings me to the final point in a rather long winded post..a rather shameless pat on the back for the blog and what it represents. As many of you may have noticed, SpicyIP bloggers often hold widely differing views on IP issues. In fact, barring issues of transparency and free speech, we constantly disagree on most other issues. However, none of our posts are censored; in fact, our editors neither screen nor check any posts prior to publication, unless the author is a recently joined novice. All blog authors have the right to automatically post on the blog without referring their writings to the editors. 
And this perhaps is our key strength. Prashants’ posts are reflective of this wonderful tradition of healthy debate and disagreement. In fact, I would strongly urge all our readers to please share your views with us, either in the comments section, or better still as a guest post. So long as the guest post is written in decent English and makes logically coherent arguments, we promise to publish without fear or favour. 
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.

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