Copyright

The S(war)tz Legacy and "Open" Lessons for India


Aaron Swartz is no longer with us; a towering intellect he was, representing the best of conviction and passion in a world where, as the poet Yeats sadly noted: 

 
“The best lack all conviction,  
while the worst are full of passionate intensity.” 
 
As this blog debates the “proportionality” of the US response to this access to knowledge crusader and the causal linkage between the prosecution and his death, I wanted to reflect for a moment on his legacy and the important lessons for India and educational access.  
 
T’was perhaps appropriate that Aaron had the term “war” embedded in his very name (Swartz). And he did fight many of them. From his battle against the infamous SOPA, to his stealth attacks to “open” up academic content from proprietary databases, Aaron fought and fought well, albeit through means that were not strictly legal. But then, so did our Mahatma, who mainstreamed the concept of civil disobedience and courted arrest time and again for breaking what were essentially “unjust” laws.  
 
Our reflection on Aarons’ legacy comes at a critical time for India, as access to education is under serious threat, thanks to an unfortunate law suit filed by leading book publishers against Delhi University and their photocopier. (I’ll leave discussions around the Quixotic wars being waged by the government of India against internet freedoms for another post).
The DU Copyright/Education Case:
Owing to a rather fine array of well paid lawyers hired by publishers and an unfortunate grammatical rendering, a restraining order issued almost immediately in this law suit, pitting the public interests of students and educational institutions against the private (commercial) interests of publishers.
For those that came in late, this creative copyright jingle (set to music by John Daniel and picturised by Sudarshan Suresh) appropriately captures the essence of the law suit and what it stands for. 
Let me take the liberty of reproducing the pithy video description of the case on Youtube here:
“A group of publishers (Oxford and Cambridge University Press and Francis & Taylor) have sued Delhi University & its agent, Rameshwari Photocopy Service for compiling short extracts from different textbooks into a digest for students to use as part of their study (commonly referred to as “course packs”).

Naturally, students, teachers and even authors of these text books have protested this aggressive law suit, particularly since this is perfectly acceptable under the Indian Copyright Act, which allows for “fair use” and permits any reproduction of copyrighted works, so long as it is done in the course of educational instruction.

This is not mala fide use, nor is anyone selling these ‘course packs’ for profit. Publishers going after students, many of them from economically disadvantaged communities, despite the high cost of textbooks, really begs the question – whither our constitutionally guaranteed fundamental right to education?

In this festive Christmas season of giving and sharing, one really wonders what is the point of all this copyright aggression. Do we want these poor students to buy entire textbooks for the sake of a few pages? Or perhaps access to knowledge is not a concern at all, when there is money to be made in the name of copyright.

The publishers have, using their legal might, secured a temporary victory with a recent Delhi High Court order restraining Delhi University and the photocopier from making and distributing ANY course-packs! Meanwhile, students have nowhere to go and are struggling to access very basic material required for exam preparations that are just round the corner.

“Pay up, pay up, pay up” seems to be the publishers’ mantra. But let’s sing along and battle this to the finish in true Christmas spirit. And lets hope that the new year brings in good cheer, as the Delhi High Court reverses the restraining order and rules in favour of students.

Share this with your friends, teachers, colleagues and others so everyone is made aware of this heinous injustice and we can all fight together to right this copy-wrong. For more information on this unfortunate law suit, see the well known Indian IP blog, SpicyIP which has been tracking these legal proceedings.”
 

In the Name of Authors:
A number of authors in whose names this law suit has been allegedly brought have already spoken out against this excessive copyright aggression that seeks to outrightly ban the creation of any course packs, even those that extract no more than a miniscule proportion of copyrighted books. The latest in this line of academic protesters‘ is Kaushik Sunder Rajan, a leading scholar at the University of Chicago (and author of the famous Biocapital) who in this email notes:
“One thing I would like to say (and will happily say on record) is that for me, as an author, the ability to have my work photocopied in India has been absolutely essential. I was not able to find an Indian publisher for Biocapital, even though the book deals with issues of Indian science. I have been very keen for my work to be read by Indian academic, activist and scientific communities.

The *only* way in which my book has been read has been through photocopying, and I have given copies of my book to individuals in India explicitly requesting that they photocopy and distribute as widely as possible. Without this, my work would only have been read by primarily Euro-American audiences, which would have defeated the very purpose of my being an academic.  

I am happy for you to quote this in any affidavit you may file if it is of use. I think it is important to establish that the ability to freely reproduce academic works through photocopying is important not just for consumers in (relatively) resource poor settings who cannot afford Euro-American prices, but is also important for authors who wish to disseminate their work outside Euro-American settings.
 
…This just makes the actions of OUP, CUP and T & F seem to me ever more petty, egregious, and worthy of the strongest opposition and condemnation.”
   
Publishers have offered and continue to offer the prospect of a license to Universities, seeking to convert what is essentially a copyright defence for education (where copyrighted works can be used without any payments whatsoever) to a compulsory licensing provision (where royalties/licensing fees would need to be paid). Tellingly, the Canadians who opted for the licensing route, are now bearing the brunt, as the low rates offered by publishers in the initial years have rapidly escalated. Some universities have wisened up and are now refusing to renew their license.
We need to ensure that the educational access space in India remains open and is not unduly constricted through an uncontested judicial process. A loose coalition of academics, lawyers, activists and students has therefore come together to intervene in this law suit and point the court to the fact that section 52 of our copyright act contains a rather liberal educational exception that covers the creation and dissemination of course packs. We are looking for more support and plan to file two sets of intervention petitions. One on behalf of students, and another on behalf of academics/authors. If you’re interested in joining us on the student petition, please email Amlan Mohanty at [email protected]. If you’re an academic or author and plan to join us in the intervention filed on behalf of academics, please email me at [email protected]
Back to Swartz and his incredible legacy in the short span of 26 years that he graced us with his presence. As a dear friend of mine put it so tellingly: “Even for a small fish like me, from a well funded university, the academic access  issue strangles my work and Swartzs’ battle is the defining battle of our times.”
And defining it is, in a world where the powers that be conspire time and again to reassert hegemony and re-establish control in a digital world whose essential DNA is one of openness and sharing.

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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