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’:
: 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
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)