This afternoon, in response to my post announcing a petition relating to the OUP-Delhi University copyright dispute, we were informed that an order had already been passed against Delhi University a few days ago.
WHAT IS THE BASIS FOR THE INJUNCTION AGAINST DELHI UNIVERSITY & RAMESHWARI PHOTOCOPY SHOP?
I have checked the Delhi HC website but the order is still not available. I managed to obtain a copy of the D.U.written statement, and having read it in its entirety, am convinced there is no admission of illegality or guilt. Throughout the 29 page written statement, counsels for D.U. have raised a vigorous defence on several grounds including S.52(1)(a) [for private use and research] and S.52(1)(i) [allowing reproduction by a teacher/pupil in the course of instruction] besides making several other very compelling arguments. Delhi University’s written statement is available here.
It appears that the court has entirely relied on one single inadvertent/ambiguous statement in the written statement to arrive at its decision:
“It is submitted that whatsoever has been done if at all were so done, were all done by the Delhi University only under the impression that they are permissible acts and are done bonafidely in order to serve the goal for which [Delhi University] was formed in order to impart education and give access to the books which are costlier and not available to the students.
[Delhi University] besides the same has no role to play and categorically states that Delhi University has no intention to breach any such law by making such reproduction and will not make any such reproduction in relation to the acts complained of in the suit. (para 21, page 14)
“It is submitted that whatsoever has been done if at all were so done, were all done by the Delhi University only under the impression that they are permissible acts and are done bonafidely in order to serve the goal for which [Delhi University] was formed in order to impart education and give access to the books which are costlier and not available to the students.
[Delhi University] besides the same has no role to play and categorically states that Delhi University has no intention to breach any such law by making such reproduction and will not make any such reproduction in relation to the acts complained of in the suit. (para 21, page 14)
However, as already pointed out, this particular statement seems to have been taken out of context. DU’s argument really (as per the averments in the written statement) seems to be that IF the court finds any act of infringement, then they would not continue to do it. However, what is imperative is that the Court must first find the acts to be infringement.
As pointed out by Saurabh Seth, counsel for Rameshwari Photocopy Services:
“a bare reading of the said para would reveal that DU was taking a defence of ‘good faith’ as provided in Section 76 of the Copyright Act to say that if the court finds any infringement, we were not doing it deliberately, and would immediately desist from doing the same “
This is certainly not an admission, purely on the basis of which an injunction can be passed. Thus, the order seems to have been passed without taking into account any of the fair dealing defences available to the defendants. More importantly, relying entirely on this one statement would effectively bind D.U. to a statement it has not made with the same intent being attributed to it. In my opinion, this is certainly a decision that can be challenged.
WHY WERE THE FAIR DEALING DEFENCES ARGUED BY DELHI UNIVERSITY NOT ACCEPTED?
From my conversations with DU students and others that attended court hearings, the court did not at all explore the scope of defences. This order, if in fact passed, appears primarily based only on the few lines relating to the good faith defence, which may have been trumped up as admissions made by DU. Even otherwise, having spent hours and hours meticulously calculating the quantum of reproduction in these course packs and making sure that the majority were under 10% (thereby increasing the likelihood that they would be covered under copyright defences of fair dealing etc), I am perplexed (to say the least) and enraged (at best) that a judge could have come to such a finding (assuming he did actually consider the defences, which I personally very much doubt).
What of the recent Canadian decision where course packs were explicitly held to be legal for educational purposes? What also of the recent decision in the United States where the court found that besides the right to make complete copies of books that were out of print, university libraries could, in addition, also make use of the fair use defences available under the Act?
How is it that the Canadian and American courts (not to mention a bunch of other countries with infant IP regimes) have held fair use defences to be applicable to the making of course packs, but somehow the Indian courts have found otherwise? If there is a country that requires wider exceptions to copyright, it is India – with its unique socio-economic conditions and population density, not to mention the prohibitive cost of books (see Lawrence Liang’s detailed empirical study).
HAS DELHI UNIVERSITY AGREED TO SETTLE?
I am hard-pressed to believe that D.U. wishes to settle this case when there is an active Facebook page campaigning against the publishers’ suit and letters from eminent former DSE faculty such as Amartya Sen, expressing their anguish at the policy decision of the publishers to file such a reprehensible suit. If D.U. does in fact wish to defend this case, and there is a lack of a reasoned order, then a review petition is certainly maintainable.
WHAT HAPPENS NOW?
So to conclude, I would only say this – if in fact the injunction was passed because D.U. no longer wants to pursue the case, that is another matter. However to my mind, nothing in DU’s written statement amounts to a specific admission of guilt/illegality or indicates it has agreed to settle this case. Anything to the contrary was merely inadvertent in the interest of caution or was simply a result of bad drafting.
If in fact counsels for D.U. argued the fair dealing defences in court, then it should have been considered by the judge before passing the injunction. I would very much like to see how the judge’s reasoning for why the current exceptions ‘do not cover course packs’, when judges from pretty much every other part of the world, think otherwise. We will have to wait for the order to see the actual reasoning employed, if at all. But as I said earlier, I very much doubt if this aspect was considered at all.
However, if the defences weren’t considered at all, that is definitely grounds for a review and hopefully we will have a strong legal precedent once and for all holding photocopying course packs to be legal in India.
If the defences were in fact taken into account and an injunction was passed after examining the provisions of the Indian Copyright Act, then we can all walk away from this episode with heavy hearts, knowing that the fair dealing exceptions in the Copyright Act inserted to further education and enable access to knowledge, have failed to fulfill the very objectives they were meant to achieve.
Finally, as a student myself, I have one closing thought – we enthusiastically celebrate the successes of Indian students as they outperform their peers in Ivy League colleges and the Oxfords and Cambridges of the world. But do we ever stop to think how they managed to achieve this in the first place? It is easy to discount and hard to quantify the influence of course packs or any reading material for that matter, on the successes of these students. But take it away and we will slowly but surely begin to appreciate its immeasurable importance. For as the saying goes – you don’t know what you’ve got till it’s gone.
To me, this order, which seems to be based on no legal reasoning at all, will have to be reviewed.
UPDATE: A complete list of signatories, including some very big names in the academic world, is available here (this will be continually updated). The petition has already amassed more than 600 signatories in just over 2 days. You can sign the petition by clicking here.
The stand taken by DU in Para 21 (Page 14) of their Written Statement was taken out of context and the same formed the basis of the order of the court.
In fact, a bare reading of the said para would reveal that DU was taking a defence of ‘good faith’ as provided in Section 76 of the Copyright Act to say that if the court finds any infringement, we were not doing it deliberately, and would immediately desist from doing the same.
I have tried to find out the order passed by the court. I was able to find a order passed by Justice Kailash Gambhir on 26th September, 2012 wherein the defendant no.2 (Its seems it is Delhi University) was granted last opportunity to file written statement within 1 week and also examine proposal of Reprographic Rights Organization to obtain license from them for preparing course pack. The case was adjourned for 17th October, 2012. I have also noticed that Mr. Sourabh Seth has appeared for defendant no.1 (RAMESHWARI PHOTOCOPY SERVICES). However, the orders passed by Justice Kailash Gambhir on 17th October, 2012 relating to all the cases have not yet been uploaded on the website of Delhi High Court.
The fact that Mr. Sourabh has posted his comment referring to particular paragraph and particular page of the written statement he must be right in his comments.
I have read Section 76 which reads “No suit or other legal proceeding shall lie against any person in respect of anything which is in good faith done or intended to be done in pursuance of this Act”. We do not know whether any specific defense was taken by Delhi University under Section 52. Be that as it may, according to me if the provisions of Section 76 have been invoked, it would cover Section 52 as well.
From your blog wherein you have reproduced the contents of the E-mail, it is clear that at least defendant no.1 did raise the defense of fair dealing. The contents of E-mail further reveals that court had agreed to the submission of plaintiff that the “making of course packs by photocopying out let could not be covered under the defenses of making photocopies/reproduction in the course of the instruction or a fair dealing for purpose of private use/research”. Accordingly the defendant no.1 has been restrained.
In my opinion it is not the consent order. Accordingly an application can be filed for review or even appeal can be filed.
We do not know whether there are further reasoning given by the court for passing the injunction order but what it seems from language of the contents of E-mail that the court has not given any reasoning, as such we do not know as to what actually happened to the defense of Delhi University under Section 76. However comments can be given after reading the written statement of both the parties and the order of the court.
I have noticed that the suit has been filed by THE CHANCELLOR, MASTERS & SCHOLARS OF THE UNIVERSITY…….. I raise an issue, can there be any owner of a trade mark or copyright which claims to be the owner by virtue of the rank like “Chancellor”, “Masters” and “Scholars”. This is a new thing to me. According to my little knowledge, there can be persons who are either natural or juridical persons which are definite persons who can be the owners of copyright/trademarks. The Chancellor, Masters and Scholars keep on changing. These non juridical persons would keep on changing. If the trademark/copyrights were owned by natural person, then there would be assignment in favour of the assignee on changing, but here there would be no assignment issue. Of course in juridical persons also there is no assignment on change of guard (read management), but then it is at least a juridical person which can sue and be sued in its name. Can one sue THE CHANCELLOR,MASTER & SSCHOLARS OF THE UNIVERSITY OF……..? I have also noticed that the registration of the mark has been granted in India in the name of THE CHANCELLOR, MASTERS & SCHOLARS OF THE UNIVERSITY OF …….. Should this not be challenged?
Amartya Sen is not an alumnus of the Delhi School of Economics, though he did teach there. After studying at Presidency College, Kolkata, he went to Cambridge (U. K.) from where he obtained his Ph.D.