The recent order passed against Delhi University restraining it and Rameswhari Photocopy Service from producing course packs provides the context for this post. Quite simply, the order does not even begin to consider the applicable defences and held course packs to be illegal in India. The following points demonstrate why they are in fact legal under current Indian law.
- Current Indian law allows reproduction in the course of instruction
Section 52(1)(i)(i) of the Indian Copyright Act says ‘reproduction of a literary work in the course of instruction is not copyright infringement’. There can therefore be no argument on merits that photocopying course packs is not permitted under Indian law. The two relevant phrases in question are ‘reproduction’ and ‘course of instruction’:
(a) Reproduction: It is obvious that making a copy of the course pack by using a photocopy machine is a permitted form of reproduction. One may also reproduce extracts from books in various other ways (one may have it scanned, for example) which is also a permitted form of fair use (see Hathi trust case). With advances in technology, who knows what technological method might be the norm in the coming years. But the legislative intent behind this exception must not be lost sight of. More importantly, Section 32 of the U.K. Copyright Act permits reproduction in such cases, but explicitly prohibits ‘reprography’ (reproduction in printed form). India does not prohibit reprography. Given that S.52(1)(i) is an educational exception and is to be interpreted accordingly, there is no doubt that photocopying of educational material is permitted in India currently. (Thanks to Professor Basheer for pointing this out)
(b) In the course of instruction: This definition would include any activity that imparts knowledge or skill or generally involves educating. As such, classroom teaching would squarely fall within its ambit. From experience, readings in these course packs are prescribed by teachers to be discussed during class to better understand a particular issue/argument/topic. Thus, course packs would be included in the definition of in the course of instruction.
Finally, read together, ‘reproduction in the course of instruction’ would include photocopying reading material from text books – whether reproduced by a pupil inside the classroom or outside and to be used inside the classroom or outside, as a means to follow an argument, or to facilitate the impartation of knowledge by the teacher (also see the interpretation of S.52(i) by Pranesh Prakesh and Lawrence Liang here).
- Current Indian law allows fair dealing for private use including research
Section 52(1)(a) of the Act says ‘fair dealing for the purpose of private use, including research’ is not copyright infringement. Fair dealing would include creating a copy of the work as well.
In a decision delivered this year, the Supreme Court of Canada held that the use of course packs by students falls within the definition of ‘private study or research’. Further, ‘private’ does not mean studying in isolation, but includes the classroom as well. The Court also determined that ‘instruction’ (found in India in Section 52(1)(i)) and ‘research and private study’ (found in S.52(1)(a)) were in fact a unified purpose since the purpose of the copier is to facilitate the research and private study of the student.
In the Indian context, N.S.Gopalakrishnan’s comments in the Annual Survey of Indian Law (2009) also supports this view, wherein it was observed that fair dealing for private use, research and criticism or review permits an individual, in some circumstances, to reproduce the complete work. It is therefore clear that making a copy of complete work or performing a work for private use or research is within the scope of fair dealing.
- Course packs are legal in other countries
There have been decisions from across the world, holding the making and distribution of course packs for a non-commercial, educational purpose to be completely legal, with no need for a license. In Canada, the Alberta case (discussed above) held the making and circulation of extracts is legal under the ‘private study, or research’ exception. It also said ‘instruction’ and ‘research’ are fused purposes and should be read together and since students use these materials in the course of instruction and for private use, this is permissible fair dealing. In the United States of America, the decision in Cambridge University Press v. Becker clearly indicates that making of course packs without permission of the owners is permitted subject to a fair use threshold of 10% (see Danish’s piece on Kafila for details) This is also important because in the present Delhi University copyright dispute, a majority of reproduction is under 10%. There are similar legal precedents in several other countries as well.
India’s fair dealing exception is almost identical to Canada’s, with India’s provisions actually wider in scope (the Indian Copyright Act says ‘private use, including research’ while Canada uses ‘private study, including research’). With the additional exception for ‘reproduction in the course of instruction’, there is no doubt that course packs are legal in India.
- Photocopying of course packs is not piracy and is done bona fidely and systematically
The production of course packs in India, although perceived to be an unregulated practice, is actually a systematic method of furthering instruction by teachers, especially considering the high costs, limited copies with libraries and frequent unavailability of textbooks in India. This is clearly demonstrated by the license agreement between Rameswhari Photocopy Service and Delhi University where strict guidelines have been prescribed by Delhi School of Economics to ensure it is for bona fide uses and for students and faculty only:
It is clear this covers photocopying of course packs as well:
More importantly, the photocopy shop here is only an extension of Delhi University and Ratan Tata Library and is even located within the university campus. They receive instructions from the Department on what exactly to photocopy, based on reading lists made available by professors and are barred from undertaking any ‘outside jobs’. There is a formalised license agreement, with rules and guidelines, including the price that must be charged:
It must also be borne in mind that the vendor was selected by the university after a careful tender process. Moreover, the prevailing market rates for photocopying a page in the vicinity ranges from 1 rupee to 2 rupees. The license agreement states that all operational costs, purchase of equipment, and other expenses must be borne by Rameshwari. This makes it amply clear that it is not a commercial enterprise with a profit motive since the rate of 40 paisa per page is the bare minimum required to operate the said venture.
The above factors are also what distinguish Rameshwari from Kinkos and other commercial photocopy shops that also produce course packs and have been held by American courts to be commercial enterprises.
- The amounts copied in course packs are within the permitted threshold
The course packs mentioned in the Delhi University case do not reproduce an entire book even in a single case. In fact, a majority of the reproduction is well below the fair use threshold of 10% (a minimum of 3.5%). However, this figure of 10% itself must be challenged keeping in mind India’s unique socio-economic conditions and the fact that access to knowledge is much easier in the U.S. compared to India.
Given all of this, how is it that the Delhi High Court has passed an order restraining the making of course packs? It just could not have been passed keeping the fair dealing defences in mind since even those cases where about 3% of an entire book is copied has now been declared illegal by the court (which is unarguably permitted, irrespective of the other educational exceptions to copyright). And if it is on the basis of some alleged admission by Delhi University (actually a grammatical mistake), hammered out by counsel for the publishers in court, then this may be overturned in a review petition. If not, there will surely be an intervention petition on this matter in the near future.
(Thanks to Pranesh Prakash and Rijul Kochhar for their inputs. Images from dynamicbookstore.com treehugger.com and mcu.edu)
Paragraph (iv) of the guidelines is bound to give Xerox Corporation a headache…Aspirin anyone!!!
The order passed on 17th October is here:
Thanks for the tip anon, for some reason the link has not posted. I”m posting it as follows: http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=212892&yr=2012
It appears to be only an interim injunction and the suit itself has not been decreed. Further, the order is clearly not a consent order and DU appears to have the right to appeal the order.
Prashant
I fail to see the relevance of points 3, 4, and 5.
Point 3: So what if course packs are legal in other countries? I would have thought that the question is whether course packs are in conformity with Indian law as it stands.
Point 4: Not all violations of copyright amount to piracy. Wikipedia notes that piracy has been traditionally defined as “copyright infringement intentionally committed for financial gain.” Has CUP/OUP alleged that DU (through Rameshwari) has deliberately ignored copyright for financial gain?
Point 5: The 10% limit seems to refer to rulings in American courts. How does that apply to India? Has any Indian court judged that 10% (or whatever) is the appropriate limit? Or is it that American court rulings are now binding on us?
With all due respect, this is not at all well argued. If you want to argue that something is legal in India, then the reference has to be to the provisions of Indian law. This is addressed to some extent in the first two points but even there, you have unnecessary references to happenings in Canada etc.
And I note with some amusement that all the photos seem to be American or more generally Western. Can’t you at least get photos featuring Delhi University (the defendant) instead of ones featuring Michigan State University? Yes, I suppose we ought to be saying “Go Spartans!”
Amlan, i have a question.
can a book published as a student series can be reproduced under the exceptions in section 52?
Hi Suresh,
Thanks for the comments. Appreciate it.
You cannot gloss over point 1 and 2 and then criticise point 3. I have attempted to show that the fair dealing exceptions in India are sufficient to permit photocopying of course packs.
In addition, since this is a ‘test case’ , it is useful to know how courts in other jurisdictions have decided. Especially those with identical fair dealing provisions. That’s the relevance of the Alberta decision. And that’s why it is relevant to know that course packs are legal in other countries.
I’m sure you will also appreciate the socio-economic argument therein. Countries in similar stages of socio-economic develpoment should perhaps have similar education policies and copyright exceptions. That’s why the recent executive decree in Costa Rica is so important: http://goo.gl/faw8J
To your next point, I would say there is no copyright infringement in the first place, let alone piracy. S.52(1)(a) and (i) are applicable exceptions.
Lastly, The 10% percent is considered to be a universal fair use threshold for such situations. It cannot be _nothing_ as it is an exception. So yes, the 10% figure is persuasive, although I would say still restrictive for a developing country like India.
Also, I like “Go Spartans”. Can I borrow that?
Warm Regards,
Amlan
Hi Anon (3:05) – it will depend the use (whether for research, review, criticism, education) and not what type of work it is. So yes, a book published in whatever form can be covered within the fair dealing exceptions in S.52(1)
Amlan:
I think the entire Canadian case is not properly presented here. As I read it (and this comes from a Canadian site, with which I agree):
“The Supreme Court of Canada did not make a definitive ruling on the issue of fair dealing. Rather, the Court held that the Copyright Board’s finding of unfairness was based on a misapplication of the fairness factors enunciated in CCH Canadian Ltd. v. Law Society of Upper Canada. The Court therefore remitted the case back to the Copyright Board for reconsideration as to whether photocopies made by teachers to distribute to students as part of class instruction at the primary and secondary level are subject to a tariff.”
Hi Amlan,
Had a few queries..
If a DU student makes 1000 copies of his course pack and sells them at nominal rates (say 25 paise per page)to his friends doing the same course in other universities, will his action come under fair use exception? Is the commercial point even relevant in determining fair use in this case..?
Also isn’t the purpose factor lopsided in favour of the end user in case of educational material with the presumption being if the reproduction is made or purchased by the student,it has to be use for educational purpose?
Even if this is fair use, is this fair?
Please clarify..
Hi Anon (2:54)
The guidance provided by the Supreme Court leave no doubt that circulation of extracts for private study or research is permissible. Can’t see the Copyright Board deciding any other way with the directions given by SC on ‘private’ and intended use.
Not sure which ‘Canadian blog’ you are relying on, but Michael Geist – one of the most renowned and respected copyright experts in Canada, seems to agree with me – http://www.michaelgeist.ca/content/view/6588/125/
Warm Regards,
Amlan
Hi Anon (11:35),
1) That’s an interesting question. For me, it is always the intended use (an end-user test) that is to be considered in determining fair use.
Keep in mind, legally this may prove difficult since courts abroad have ruled that only students enrolled for that particular course should benefit from course packs. There is also the issue of whether this is ‘in the course of instruction’ if the other students have not been prescribed these readings by their own professors (although this too is debatable). Ultimately, comes back to the issue of intended use, in my opinion.
However, the private use/research exception may still apply. irrespective.
2)Why would you say this is an unfair presumption? The purpose of copyright law is to promote creativity, foster knowledge and progress of the arts. It is not a natural property right intended to protect owners.
In fact, courts have found that if the use is non-commercial, there is a presumption of bona fide use and the burden is on the plaintiffs to prove market harm. I think that is very very fair.
Hope that answers your questions!
Warm Regards,
Amlan